Recently I’ve been dwelling more on the relationship between religion and politics.

One reason is tumult in the town next door, the town where my father grew up and where I grew up and where two of my kids went to school and where I’ve gone to church for 25 years. I’m fond of the place. It’s overwhelmingly white and, for the last two generations, Asian-American. You might get pulled over there if you’re not. It’s adjacent to a notorious sundown town that was popular with American Bundists, and its schools started as a white flight haven, but it’s quiet and has broad leafy avenues and craftsman or Spanish houses set back from the street. Sometimes people ride horses off of the horse trails past the Round Table Pizza, which incidentally is a sore spot on the neighborhood Facebook groups because a lady who may be homeless was seen hanging out there.

The oldest church in town was started in the late 19th Century as a Congregational community. Its sanctuary was built in the 1920s and has stunning stained-glass windows. Earlier this century it reclaimed its Congregational name and identity, and a young and energetic pastor has taken over. Under his leadership the church has articulated values to the town through children’s activities and movies in the park and speaker series in the church and outreach and participation. The values they have articulated are Christ’s love for everyone, tolerance, inclusion, compassion, and concern for the mortal and material fortunes of least of us. You know — woke stuff. It’s very nice and I’ve gone to a number of speaker series there but I will likely stick with my nearby Presbyterian church. It’s a little too informal for my taste. You can take the boy out of the Jesuitism but you can’t take the Jesuitism out of the boy.

The pastor and members of the church have felt free to articulate the church’s values in the town’s political and social circles, on social media and in letters to the community and before the tiny City Council. Most people in the town approve or are at least tolerant. But this unapologetic articulation of values — particularly toleration of the LGBT community — is abhorrent to a few. It has brought out the worst intolerance from, forgive me God, the worst people. Some of them are frankly unhinged about it. Religious people! Articulating their values in the public sphere! In MY America? They view the church as Babylon and the pastor as the child of Che Guevara and a knife-wielding drag-bruncher. They attack the church and its pastor, distribute anti-gay and anti-trans literature at the church, bray about how they don’t belong here and their participation in public discourse should not be tolerated.

As one born there I am embarrassed by their intolerance and more than a little concerned by their spittle-flecked fervor. But on some level I’m sympathetic to not liking religion in politics. (The same people absolutely favor imposing their religion forcibly through politics, and are currently trying to do so by corrupting the school district, but consistency is the hobgoblin and so forth.) I grew up Catholic, and have attended a Presbyterian church most of my adult life, but I’ve always been deeply ambivalent about the role of religion in American politics. Political invocations of religion here are characterized by arrogance.

When it comes to politicians invoking God, Abraham Lincoln is my favorite. His references show a common thread of humility before God. Consider the closing of his Second Inaugural Address:

Lincoln notes explicitly that we ought to be cautious about whether we know what’s right — whether we know God’s will. Similarly, at Gettysburg:

Our political invocation of God is mere air, Lincoln points out. It does not match people’s sacrifices. Lincoln’s religious humility may be a result of his religious uncertainty; his biographers have written volumes about it.

Modern political invocations of God are mere hubris in comparison. “God bless America” is almost mandatory in a speech by any Presidential candidate. Its absence is notable. Sometimes it is rendered as “may God bless America,” which I prefer, but too often it is rendered as GOD BLESS AMERICA. If we said it in Latin it would be in the imperative. It’s a command - God, bless America, and another Dewars while You’re up. God, it suggests, You must give us our due. Give us what we are owed. Or else it’s rendered as a boast — a way to say “God, naturally, blesses America.” And so He does, though perhaps His blessings fall more visibly upon some of us than others. It’s rendered in a tone that implies division — here we are, together, the ones preferred by God.

It certainly could be rendered more humbly. God, we spent half a billion on pet Halloween costumes and then walked the pets past mentally ill veterans sleeping on the sidewalk but if You could refrain from smiting us and bless us instead we would be quite grateful. God, rather that visit people in prison like You said we thought we’d cage more of them than anyone else and abuse them and then ridicule people for talking about the abuse, but still, if You could bless us, that would be just swell. God, whoah, okay, that’s a lot of dead kids, but still, You know, etc. God, I know that we were strangers in the land of Egypt but these strangers are vermin poisoning our blood, so, i can haz blessings plz k thx.

I would feel more comfortable listening to those invocations of God — ones characterized by humility before God, by uncertainty, by confession of our failings. I feel they would have landed more easily on the ears of my late father, an agnostic who felt despised by American political rhetoric. I would feel less threatened — feel more that the words echoed the Sermon on the Mount or Matthew 25 and less a triumphal and somewhat spiteful someday every knee shall bow, less a way to say someday we shall prevail over them.

But that’s not what I’m going to get, at least in mainstream American politics. The Jerry Bruckheimer version of “God Bless America” will continue to prevail for now. I am unlikely to make an impact on that on a national level.

But perhaps I can locally. Perhaps you can as well, if you care.

I still love the town, warts and all. There is the place where I drank three Cokes after soccer practice and threw up! There’s where mom ran her bike into a mailbox on the way to the Thai place! There’s where I kissed a girl the first time! It’s changed. When I was a kid the notion that a classmate could be openly gay was absolutely unthinkable. Boys played rough games of “smear the queer” at recess and the message was received. My classmates who weren’t like me often lived quiet lives of misery. Now it’s better. My youngest is finishing her senior year at the school where I graduated and the kids could absolutely not give a shit if their classmates are gay or lesbian or bi or trans or anything. I hear them talk and marvel at it. They have each other’s backs. I wish I had been brave enough to have my classmates’ back the same way in 1986.

I won’t change how Americans talk to or about God. But I might help change it in this town, just a little. I might help more young people that a church can be characterized by acceptance and values that appeal to them. And I might convey to the worst people in town that if they want to go after a church for preaching tolerance and decency, they’ll have to go through me.

During COVID, I walked a lot. As a consequence, I started listening to more podcasts. Since then the walking has dropped off dramatically, as my wife would tell you. The habit of listening to history podcasts has stuck. I’ve been binge-listening to two of my favorites recently, The Rest is History and Fall of Civilizations, and I couldn’t help but notice that for most of history everything usually sucked.

Wars! Banditry! Plagues! Famine! Nothing resembling justice! Oppression! Frequent cruelty and death! Brutality as the unquestioned norm! Great civilizations collapsing from without and within! Unfairness! History is fascinating but as a lifestyle it had very little to recommend it until quite recently. Things have only gotten better in fits and starts for a tiny slice of the time we’ve been recognizably human. It got a little better with the Renaissance, a little better with the Enlightenment, and in many ways somewhat better over the last century. Many things still suck, but there are fewer of them, and they suck a little less.

Modernity has spoiled us in thinking things won’t get dramatically and catastrophically worse, worse in a way that will last for generations. But things have gotten abruptly much worse before, and they can again. And yet people must persevere, even if their children and grandchildren who will see the benefits and not them.

Trump won yesterday, as I feared he would. I firmly believe America — and likely the world — will get significantly worse for at least a generation, probably more. I’ll spare you, for now, the why. Frankly, I think you either already accept it or will never accept it. The things I care about, like the rule of law and equality before it, freedom of religion, freedom of speech, free trade in service of free people, relative prosperity, protection of the weak from the strong, truth, and human dignity are all going to suffer. Bullies and their sycophants and apologists will thrive.

What should we do?

I have a few thoughts.

Ask Yourself if You’ve Earned The Right To Wallow: I’m a middle-aged, comfortable, straight white guy. I’m not going to take the brunt of what happens. So I have decided not to wallow or give in to hopelessness. I haven’t fucking earned it. Americans far less fortunate than I fought greater and even more entrenched injustice. Civil rights protestors, anti-war protestors, African-Americans, women, gays and lesbians, Jews and Jehovah’s Witnesses, all sorts of people have bravely faced death and penury and injustice without giving up and without the protections I enjoy. What right do I have to give up? None. Maybe you’re different. You may not be as fortunate. I’m not judging you. I’m only judging myself and inviting you to ask the question. Be patient and merciful with people less able to fight.

Reconsider Any Belief In Innate American Goodness: Are Americans inherently good, freedom-loving, devoted to free speech and free worship, committed to all people being created equal? That’s our founding myth, and isn’t it pretty to think so? But a glance at history shows it’s not true. Bodies in graves and jails across America disprove it. We’re freedom-loving when times are easy, devoted to speech and worship we like with lip service to the rest, and divided about our differences since our inception. That doesn’t make us worse than any other nation. It’s all very human. But faith in the inherent goodness of Americans has failed us. Too many people saw it as a self-evident truth that the despicable rhetoric and policy of Trump and his acolytes was un-American. But to win elections you still have to talk people out of evil things. You can’t just trust them to reject evil. You must persuade. You must work. You have to keep making the same arguments about the same values over and over again, defend the same ground every time. Sometimes, when people are afraid or suffering and more vulnerable to lies, it’s very hard. Trump came wrapped in the flag and carrying a cross (upside down, but still) and too many people assumed their fellow Americans would see how hollow that was. That assumption was fatal.

Start Out Making a Small Difference: A country that votes for Trump is broken in very complicated and daunting ways. Harris could have won in a landslide and 45% of the people voting for Trump would still have reflected a country broken in terrible ways. Moreover, any road out is long and rocky and painful. A Trumpist GOP has control of the entire government, the judiciary is dominated by judges who are Trumpist or willing to yield to Trumpism if it gets rid of Chevron deference, and state and local politics are increasingly dominated by extremists. The GOP is doing everything it can to rig the game to make it harder to vote our way out, and after four more years a stuffed judiciary will be even less inclined to stop them. The struggle to fight back is generational, not simple.

But nobody’s telling you that you have to fix everything. You can fix something. In Schindler’s List, Stern tells Schindler “whoever saves one life saves the world entire.” So save the world that way — one fellow American at a time. You can’t stand up alone against all the Trumpist bullies in America, but maybe you can stand up to a few local ones in defense of a neighbor. You can’t save everyone from mass deportation but maybe you can help one family. You can’t save all trans people from the terrible, cynical jihad against them, but you might be able to support one trans person. Start small. Make a difference for just one person. Use the gifts you have. Use your voice.

Believe Unapologetically: Nobody likes to lose. So when your side loses an election, there’s huge social and psychological pressure to change your stance, to moderate what you believe so you don’t feel like a loser. Don’t do it. Things are worth believing and fighting for. Did you ever see a Trumpist moderate or express doubt? No. Trump spewed loathsome bigotry and lies and ignorance and promoted terrible and cruel policies, many of which he may actually implement. The fact he won big doesn’t mean you were wrong to oppose those things and condemn them. Nor does it mean that you can’t win an election in the future by opposing those things and condemning them. Even if it did mean that — even if America as a country has gone so irretrievably wretched that ignorance and bigotry are essential to electability now — then it would be time for something new and different rather than the Republic we have now.

Trump won; opposition to Trump lost. People will want you to abandon your believes because of that. They want you to bend the knee. Screw them. Evil has won before and will win again, and it’s not an excuse to shrug and go with the flow. It’s going to get harder to stand up for decent values. You will face scorn, official suppression, even violence. That’s not enough reason to stop.

Not only is abandoning your values weak, it’s credulous. The Trumpist narrative will be that the electorate soundly rejected anti-Trump values. But did they? How much of the electorate acted from indifference, indifference that will be swayed the other way some day by different economic or cultural factors? Consume skeptically the “this shows you must abandon these goals” narratives.

Fuck Civility: Do you need to be screaming and waving your middle finger in the face of Trump voters? Only if you want to. Live your best life. But please don’t be conned by the cult of civility and discourse, the “now is the time to come together” folks. You are under no obligation to like, respect, or associate with people who countenance this. We’ve all heard that we shouldn’t let politics interfere with friendships. But do people really mean that, sincerely? Do people really think you shouldn’t cut ties with, say, someone who votes for an overt neo-Nazi, or an overt “overthrow the system and nationalize all assets” tankie? I don’t buy it. I think everyone has their own line about where support of — or subservience to — a doctrine is too contemptible to let a civil relationship survive. For most of my life no major party candidate was over that line for me. I have trusted, liked, and respected people who have voted the other way for decades. But whatever my feelings about Trump in 2016 or 2020, Trump in 2024 is definitely over my line.

Furthermore, no civility code or norm of discourse is worth being a dupe. Trump and his adherents absolutely don’t respect or support your right to oppose him. They have contempt for your disagreement. They despise your vote. They don’t think it’s legitimate. The people who voted for him, at a minimum, don’t see that as a deal-breaker. So Trump voters, to the extent they fault you for judging them, have a double standard you need not respect. Part of the way Trumpists win is when you announce “ah well, voting for Trumpists is just a normal difference of opinion, we all share the same basic American values,” while the Trumpists are saying “everyone who disagrees with us is cuck scum, they’re the enemy within.” Stop that nonsense.

I am invited to break bread with people who think my children, by virtue of being born elsewhere, poison the blood of America — or at least with people who think it’s no big deal for someone to say so. I decline. I decline even to pretend to accept or respect the suggestion that I should.

Don’t Let Regression Trick You Into Abandoning Progress: I know what Christ calls me to do — to turn the other cheek and love the Trumpists. I am not equal to the task, and I’m at peace with that and will accept the price. However, I must advocate for a similar concept: we can’t allow Trumpism to trick us into abandoning key values like due process of law, freedom of expression, and freedom of religion, just because they scorn them.

It would be tempting to throw up our hands and give up on those values. They have proven wholly inadequate to counter Trumpism and to protect themselves. Trump is a rampant criminal who will escape consequences because the system failed us. It remains to be seen if the system will protect us as he and his followers seek to use it to retaliate against their enemies. Maybe the Federalist Society can have a Chick-Fil-A sack lunch to talk about it. What good is freedom of speech if it elects someone whose overt agenda is to limit freedom of speech? What good is freedom of religion if it least to the triumph of foul Christian nationalism? What good is due process if it protects the rich and suppresses the poor?

The answer is not comforting: nobody promised you a featherbed. The promise has never been that due process and freedom will always prevail. The argument has never been if we have them we’ll never be vulnerable to tyranny again. That’s not how it works. The argument is that they are better than the alternatives, more righteous, better to promote human dignity, less likely to be abused by the powerful against the powerless than the alternatives. The premise is that the alternatives are more dangerous. Believing in due process, freedom of speech, and freedom of religion are a form of humility: it shows we know we are fallible and should be trusted with as little power as possible.

With Trumpism ascendant, there will be huge pressure to abandon these values that weren’t enough to protect us. For instance there will be wider calls for regulation of media - even as a Trump administration may retaliate against media enemies. But don’t let Trumpists turn you into a Trumpist. The existence of Trumpists — the existence of people who would, at a minimum, shrug and accept Trump’s abuses — shows why government power should be limited.

That means supporting due process and freedom of speech and religion, even for Trumpists who do not support extending the same values to you. That’s the way it works. That’s as close as I get to turning the other cheek.

Trumpism Is Not The Only Wrong: The essence of Trumpism is the Nixon-to-Frost proposition that “if my side does it, it’s not wrong.” Trump dominates American conservatives and putative people of faith even as he rejects the values they’ve previously claimed, because they’ve decided he’s their guy. He’s famously intolerant of dissent within his camp and that’s only going to get worse.

Don’t be like Trumpists. Keep criticizing people “on your side” when they are wrong. Criticize your side on Gaza. Criticize your side on criminal justice — God knows Biden’s and Harris’ records warrant criticism. “My side, right or wrong” is not a way to live. We are all in this together, but you can’t protect values by abandoning them to appease allies.

Stay Tuned For Violence: Violence is as American as cherry pie. America was founded on, by, and through violence, and maintained by violence on several occasions. Debate is preferable. Jaw, jaw is better than war, war. But most Americans would agree with what Thomas Jefferson said about the blood of patriots and tyrants. At some point violence is morally justified and even necessary. Americans will disagree on when. But I think Trumpism brings it closer than it has been in my lifetime — certainly the prospect of defensive violence, if (when?) the Trumpists use it first. When? I don’t know. Putting more than ten million people in camps with the military and a nationalized law enforcement is a very credible candidate, though. 

Resist. Do not go gently. Do not be cowed by the result. Resist. Agitate, agitate, agitate. The values you believe in, the ones that led you to despise Trumpism, are worth fighting for whether or not we are currently winning. Ignore the people who will, from indifference or complicity or cowardice, sneer at you for holding to those values. Speak out. Every time you act to defend your fellow people, even in small ways, you defy Trumpism. In the age of Trumpism, simple decency is revolutionary. Be revolutionaries.

This week on Serious Trouble we got less overtaken by events than I anticipated. Yes, I said that I thought Trump wouldn’t testify despite his boasts, but come on, that’s a gimme.

My father would have been profoundly irritated by the phone call I received telling me he was dead.

He would’ve been at peace with the dead part. He was 88; he had a good run. He’d been struggling with congestive heart failure for a few years. His world gradually shrunk to the few paces he could manage from bed to chair to kitchen, and he was very tired. He knew the end was near. We planned for it together, and he was at peace with it. He would go on his own terms, as one should. When we talked about current events he remarked he was glad he didn’t have to stick around to see the current apocalypse play out.

But the call would have irked him. Dad wanted you to get to the point. “Just answer the question” he said innumerable times to me or my mother, perhaps throwing in a rude adjective if circumstances warranted, fixing his eye upon me as I temporized and danced around his question. Where did that big black bumper-shaped mark on the garage door come from? Well, Dad, first you have to appreciate the context. This was excellent training for speaking with judges.

Patience is not a recognized virtue of the men of my line. Dad’s patience would have been sorely tried by the young medical assistant who called me at work from his retirement community one evening a couple of weeks ago. As soon as he identified himself I knew there were only a few possibilities. My Dad might be dead. He might have fallen again or had another heart attack and they might be taking him to the hospital, a grim scenario Dad dreaded, carrying the likelihood of suffering, indignity, loss of autonomy, and decline and death on the hospital’s terms. Or, I thought, it was entirely possible that Dad was being thrown out of another retirement community. Congestive heart failure was inadequate to stop him from launching another agnostic’s schism amongst religious octogenarians if that is what struck him as righteous, proper, and entertaining.

A few short words, direct but kind, would resolve my suspense. But the young medtech didn’t have the heart to say them. He explained that they had gone into Dad’s apartment to check on him, and launched into a fairly detailed explanation of the technological system that allowed the management to determine if any doors had been opened recently, including both the specific methodology and the philosophical underpinnings of the program, vis-a-vis expectations of privacy and whatnot. This took a couple of minutes. Then he said they had encountered my Dad, though he was not immediately clear about Dad’s condition upon being encountered. He did not note whether Dad had any comments upon being found, as I would expect him to. He explained that they set out to determine how Dad was, and the methods they used.

Oh my God, I thought. I am being cat-up-on-the-roofed.

He mentioned there was some blood, which frankly was still consistent with any of the three possible scenarios I mentioned, and that the police were present, though not why. Surely email flame wars about why one must wear a jacket in the dining room on Sundays are outside the ambit of the Pasadena Police Department.

At this point I began to suspect that this call was not within the scope of the young man’s normal job duties. Compassion, not clarity, was his calling.

He mentioned they found Dad in the bathroom. “Like Elvis,” I said, my voice cracking, almost but not quite losing my shit altogether.

“I’m not sure,” said the young man, sounding nonplussed. Like many health care workers he was an immigrant and though his English was impeccable he may not have been familiar with The King. He returned to the familiar safety of retirement home protocol and began to discuss the process for evaluating a resident’s condition. Three or four minutes into the call he still had not said explicitly whether Dad was dead, or incapacitated, or embarked again on a campaign of rebuking society’s intrusive presumption of a common set of religious beliefs as a prerequisite for participating in public life.

I gently asked to speak with one of the police officers, and the young man handed the phone to the officer with palpable relief, and the officer immediately said “I’m sorry for your loss,” and that was that. Say this for cops: they will rip the band-aid right off for you.

As I’ve gotten older, figuring out my parents has been central to figuring myself out. Time has humanized them, transforming them from a child’s omniscient protectors to an adult’s fallible and relatable companions.

This began with my Mom, whose illness and death in 1998 stripped the hagiography from her. I began to understand then that she was just another person along for the ride, making things up as she went as often as not, her air of certainty an accommodation to parenthood. That was comforting, not scary. If she could make her way, so could I. Though the process is not without its bumps. “WHAT THE FUCKING FUCK” I exclaimed suddenly this weekend as I read one of her letters to my dad from college in 1960, which he carefully maintained in its original envelope. “I am writing this to you from class, in which, for the record, I am carrying a D,” said the woman who would later tell me that people who get a C+ quarter grade in French become ditch-diggers or drug dealers or possibly drug-dealing ditch-diggers. Seriously Mom?

That process — figuring out what it means to be human by figuring out your parents are human — was even more profound with Dad. He was somehow never complete without Mom, and in watching that I reevaluated what it meant to be a husband, and father, and friend, even one is an introvert and even a bit of a misanthrope. I rethought what it meant to be private and independent but to love and be loved as he reconciled his fundamental taste for solitude with his love for his grandchildren. As I struggled with depression and anxiety he opened up to me about his experiences with them, thoughtfully passed through DNA from his father. The difference, I realized, is that he did it without therapy or meds or any social sanction to talk about it to anyone. Jesus, the strength of the man.

I also figured out a great deal about being a lawyer. My youth was spent with him editing drafts of essays, in occasionally angry disputes over the placement of this comma or that phrase, learning to care about words and their power. If I can write, or speak, it’s because of him. But later he taught me more important things. Having spent my college years thinking my parents were hopelessly regressive like all Olds, I learned as an adult that for many years he had been drafting effective estate plans for same-sex couples protecting their rights in the case of medical emergencies or death. He didn’t do it because it was progressive. He was neither loud nor quiet about it. There was neither fanfare nor deliberate lack of fanfare. He just did it. He did it decades before anyone talked about legalizing same-sex marriage. He did it because a lawyer’s purpose is to serve the client and work towards the client’s goals. I thought about that when I went to court the morning after he died, because the client needed me and that’s what Dad would expect of me. I was a little brittle, to be frank.

Since my Mom died — many years now, half my life — I’ve struggled to balance respecting Dad’s independence and privacy and making sure that we were there for him, welcoming to him, including him. It was sometimes frustrating, and it caused occasional hard feelings. But by grace that eased in the last couple of years as his condition worsened. I visited every week, particularly as he could no longer leave his apartment. He let me help him more than he wanted and I tolerated his stubbornness more than I wanted. The natural friction between two very independent people smoothed. We understood each other. I cherish those hours, and our rambling conversations, as I cherish the time I spent with my Mom when she was ill.

There’s never enough time to ask what you’d like to ask. I read his letters to his mother from Korea in 1959, my Mom’s letters to him before they married trying to reconcile his stubborn agnosticism and her devout Catholicism. They figured it out; he read the newspaper in the car outside many a church when we travelled on vacation, and I never heard him question faith until I was an adult, though I could feel him not questioning it. I wish I could ask questions now about those letters, about who is standing beside him in some of these pictures, about where he found a particular piece of art. I sift through his possessions. I found a very old compass, the brass shiny from rubbing fingers, compact and light and perfect for the wilderness adventures he hated. Did his father give it to him? Does he keep it to remember, even though he hated the wilderness and they had a very fraught relationship that was never repaired? No one alive can say. The answers are left to whatever end awaits us all.

I am fiercely proud to be his son. I will not see his like again.

I was preparing to revive an ancient Popehat post concerning a defamation lawsuit among Bigfoot hunters when I was quite transfixed by a thought: is litigation concerning Bigfoot common? By not only posting about a Bigfoot-related defamation case, but re-running it, am I giving my readers a false impression of the frequency of such cases? Or, to the contrary, am I giving a false impression by not posting enough about Bigfoot? Am I a willful suppressor of legal Bigfoot news?

My reputation as a law pundit at stake, I researched the matter. I present to you my conclusions.

PART ONE: CASELAW CONCERNING BIGFOOT

The most difficult element of Bigfoot legal research is that most cases that mention Bigfoot only involve the misappropriation of his name for commercial purposes. The dusty pages of American common law are thick with tire stores, truck stops, equity funds, and the occasional strip club using the name. But when they come to court, they do so over petty concerns like trademark, wrongful termination, bad Yelp reviews, and so forth.

It takes a careful eye and steady hand to separate out the authority that is actually about Bigfoot qua Bigfoot. But patience is rewarded with verifiable sightings.

The subject of my original post was John Johnsen v. Matthew Moneymaker, Loren Coleman, and Cryptomundo, Inc., Case No. 512011CA-5176ES (6th Judicial Circuit, Pasco County, Florida). Defamation was the case. Johnsen claims that Moneymaker conducted cryptozoological research expeditions seeking Bigfoot in the Ocala National Forrest, that Johnsen joined such an expedition in February 2005, and that in June 2011 Moneymaker published a post on Cryptomundo’s site falsely accusing Johnsen of being mentally ill and of carrying firearms into the Ocala National Forrest during the expedition. Specifically, Johnsen claimed that Moneymaker and Cryptomundo said that Johnson was “not in the same reality as the rest of us,” that is, not in the same reality as the other persons on an expedition to find Bigfoot in Florida. The case presents fascinating issues of the distinction between provably false statements of fact susceptible to defamation analysis versus hyperbole, rhetoric, and opinion. Mr. Moneymaker later figures in another case on this list. Mr. Johnsen produced “Hunt the Dogman,” which Reddit informs me is the “best documentary out there on Dogmen.”

Claudia Ackley v. State of California et al., CIVDS1801387 (San Bernardino County Superior Court) is both the most notorious and most disappointing recent litigation concerning Bigfoot. Ms. Ackley, who firmly believed she saw Bigfoot on a hike, sued the State of California and various agencies thereof, seeking a writ of mandate compelling California authorities to abide with the rule of law in connection with Bigfoot: for instance, by monitoring Bigfoot’s well-being under Fish and Wildlife Code section 1008, which obligates the California Department of Fish and Wildlife to “investigate all diseases of, and problems related to, birds, mammals, or fish, and establish and maintain laboratories to assist in such investigation.” However, Ms. Ackley dismissed her lawsuit before it could establish useful precedent, and through she promised to refile it, she regrettably passed away before she could, reputedly of hypertension.

In Todd Standing v. Minister of Forests, Lands, Natural Resources and Rural Development (Her Majesty the Queen in Right of the Province of British Columbia), 2018 BCSC 1499, the plaintiff was similarly disappointed. Mr. Standing, a Bigfoot researcher, brought suit seeking a declaration that Bigfoot was real (either Giganto Horridus Hominoid and/or Gigantopithecus) and that the government had committed a dereliction of duty in failing to recognize Bigfoot and had infringed Mr. Standings’ right to freedom of belief, opinion, and expression by failing to recognize Bigfoot officially. I am an American lawyer, and unreliable on the structure and traditions of Canadian government, but it seems to me that technically speaking Todd Standing sued Queen Elizabeth II to establish that Bigfoot is real. The Supreme Court of Columbia found that the government’s failure to believe in Bigfoot did not impede Mr. Standing’s right to believe in Bigfoot and ordered him to pay the government’s costs. Thus ever are freethinkers treated.

Newgrowth Capital Corp. v. Craig Woolheater and Cryptomundo, LLC, No. 07-V-0307-L (N.D. TX 2007) concerns the “Kentucky Clip,” videotape of Bigfoot taken in Kentucky in late July 2005, possibly without his consent. Matt Moneymaker — yes, the same one — sold the Kentucky Clip for $20,000 to the Bigfoot Researchers Field Association. BRFA asserted in the lawsuit that the defendant obtained access to the Kentucky Clip without signing the nondisclosure agreement Bigfoot researchers were required to sign to access it and that BRFA was afraid that he would use it to compete with BRFA through the Texas Bigfoot Research Conservancy, a Texas Domestic Non-Profit Corporation. The case was transferred to United States District Court for the Central District of California, where the plaintiff had already filed a similar suit, where it was dismissed. As is often the case, hopes of fame in Los Angeles were dashed.

Dahinden v. Byrne, No. 79-968, 1982 WL 1162, at *1 (D. Or. Apr. 14, 1982), on reconsideration, No. 79-968, 1982 WL 63775 (D. Or. June 21, 1982), concerned a copyright infringement lawsuit brought by the author of Sasquatch, a work analyzing reports by Russian scientists who, in turn, analyzed the famous “Patterson film.” Since the parts of the work alleged to be infringed were, themselves, materials from other sources like the Patterson film and the Russian reports, the matter was dismissed.

W. Commc'n Corp. v. Barnick, No. 18-CV-10437, 2018 WL 2717781, at *3 (E.D. Mich. June 6, 2018), is about a commercial dispute unrelated to Bigfoot — or is it? The plaintiff included allegations that one of the defendants’ Chief Executive Officers was an “incompetent, crooked, religious fanatic” and “a crazy recreational bigfoot hunter.” The United District Judge granted a motion striking these allegations as impertinent and irrelevant to the commercial disputes at issue. This further emphasizes the duality in American law between Bigfoot and commerce.

In Doyle v. Comm'r, New Hampshire Dep't of Res. & Econ. Dev., 163 N.H. 215, 219, 37 A.3d 343, 346 (2012), the court agreed that the First Amendment protected Mr. Doyle’s right to dress as Bigfoot, or Yoda, or a pirate, for performance art purposes at Monadnock State Park notwithstanding regulations purporting to forbid such activities in the absence of a permit. The performance art had resulted in local reports of Bigfoot sightings, though not Yoda or pirate sightings. Before you ask, no, he was not dressing as Chewbacca — I checked.

State v. McNearney, 193 Wash. App. 136, 144, 373 P.3d 265, 270 (2016), rejected a defendant’s attack on a prosecutor’s closing argument, which featured Bigfoot. The prosecutor, in the course of refuting the defendant’s alternative theory of the case, suggested that if your child claims that they did not eat the brownies, but Bigfoot did, evidence is not required to refute the suggestion. This did not, the appellate court found, impermissibly reduce the government’s burden of proof.

Disability Rts. S.C. v. McMaster, 24 F.4th 893, 908 (4th Cir. 2022) featured Bigfoot as a figure of philosophical analysis. The dissent, rejecting the logic of the majority, intoned “Choosing not to reject the possibility of a proposition is not the same thing as accepting that proposition. For example, not rejecting the possibility that Bigfoot might exist surely does not mean accepting that Bigfoot does exist.” Bigfoot did not meaningfully contribute to the debate.

Farrell v. Burke, 449 F.3d 470, 478 (2d Cir. 2006) involved a parolee’s First Amendment challenge to his parole officer’s restrictions on his possession of pornography, including “My Comrade.” The parolee argued that My Comrade was more satirical than pornographic: “it appears intended more to amuse than to arouse. It contains a few depictions of nude men, but they are usually in a satirical context, as with the drawing of a furry (but obviously male) naked creature accompanying the article entitled “I Had Gay Sex—With Bigfoot!” I doubt that Western social norms and sexual mores can be easily imposed upon Bigfoot.

Malone v. Royal, No. CIV-13-1115-D, 2016 WL 6956646, at *8 (W.D. Okla. Nov. 28, 2016), aff'd sub nom. Malone v. Carpenter, 911 F.3d 1022 (10th Cir. 2018) is a habeas corpus action involving a defendant who blamed some of his actions on methamphetamine use, saying that methamphetamine made him moody and paranoid and that he would hear people in the attic and that he “saw Bigfoot” while was out cooking on the lake. As a result of grammatical ambiguity it is not clear whether it was Malone or Bigfoot who was cooking on the lake. Is there analytical literature about whether Bigfoot uses fire? Of course there is.  

PART TWO: MISIDENTIFICATIONS

As an undernourished black bear or stray Unix coder may be mistaken for Bigfoot, so may many cases easily be mistaken as being about him. Careful forensic case analysis is necessary.

For instance, in State v. Orr, 3 Wash. App. 2d 1039 (2018), aff'd sub nom. State v. Moretti, 193 Wash. 2d 809, 446 P.3d 609 (2019), Mr. Orr was convicted of breaking into an occupied house in northwest Spokane while armed with a metal pipe and then attempting to fight his way off the property, motivated by a rumor that Sasquatch was obtaining sexual favors from Mr. Orr’s girlfriend in exchange for drugs at that residence and also holding children against their will. This was a misidentification. “Sasquatch” was merely an alias for someone who was not Bigfoot at all. There is no reliable evidence that Bigfoot is a sex trafficker or drug user.

PART THREE: ANTICIPATED LITIGATION

There are times when Bigfoot has not yet generated litigation, a researcher familiar with the highly litigious character of the American public, and to some extent with Bigfoot, can reasonably anticipate it is likely to occur.

For instance, in Flathead County, Montana, a man dressed as Bigfoot was struck by cars — one driven by a 15-year-old, one by a 17-year-old — and tragically died. Although it would seem that the statute of limitations has long passed, my experience of American law will not admit the possibility that litigation will not ensue.

Or take Leslie Cockburn, a Congressional candidate in Virginia, who accused her opponent Denver Riggleman of producing Bigfoot erotica. Bigfoot sexuality is beautiful and natural and I support it, though I would prefer it not be associated in my mind with Republican members of Congress. Riggleman did not sue; he won the election, became a Member of Congress, and went on to write Bigfoot . . . It’s Complicated, which despite my first impression is not a book about relationships but about his status as a “Bigfoot Scholar.” Though Riggleman has not yet sued, performative and fundraising defamation suits have become extremely common among Republican politicians. I hope that Riggleman will not risk his reputation as one of the most respected Republican members of Congress with a futile suit.

This week on Serious Trouble, the DC Circuit says “how about NO” to Donald Trump, Fani Willis responds forcefully to conflict allegations, and a Senate amateur porn enthusiast skates.

University students are not the greatest threat to American liberty.

That sounds obvious, but you might not know if you listened to popular discourse about universities. Universities, we’re told, are hotbeds of ruthless woke kulturkampf, indoctrinating students into far-left ideology and giving them an unslakable thirst for censorship that will be unleashed on America upon their graduation. This is not a new moral panic — there was one about “political correctness” like it when I was in college, back in the last millennium — but it’s noisy and omnipresent.

I dissent for several reasons. First, and most importantly, the greatest threat to American freedom of speech comes from our elected leaders — leaders who pass shamefully pandering laws restricting campus speech, leaders who normalize and encourage performative and cynical defamation cases against political enemies, leaders who abuse government power to suppress dissent, leaders who convey through the force of law that dissent is illegitimate and un-American. Sometimes those leaders are university administrators. Trying to focus our attention on college students whose power to suppress is much more temporary and limited in scope is a dangerous misdirection.

Second, a substantial part of the tumult about university students is right-wing kayfabe. The hostility towards students is often hostility against a set of values most popular with students — views about ethnic diversity, gender, and sexuality. I am unconvinced that the loudest voices angrily denouncing students sincerely believe in freedom of conscience and expression. I think they hate the students for their values.

So we shouldn’t make university students the scapegoat for America’s political and cultural woes. On the other hand, we shouldn’t condescend to them, infantilize them, or fail to speak forthrightly when they are wrong. Sometimes students are insufferably censorial. We should ask them to do better.

This is one of those times. The crucible of wrongness is the Gaza conflict, as has so often been the case recently.

At Columbia Law School, students who want their organization officially recognized must be approved by the Student Senate, and you spotted the problem already, didn’t you? In the last year one group out of nine applicants has been denied — Law Students Against Antisemitism. By an anonymous vote, the Columbia Law Student Senate rejected them. They’re controversial because they subscribe to a definition of antisemitism offered by the Holocaust Remembrance Alliance. This, student senators thought, was unfair and potentially suppressive of anti-Zionist speech:

Now, Columbia Law’s students are perfectly right to be vigilant about attempts to suppress criticism of Israel. Plenty of people of bad faith have been trying to disguise suppression of anti-Zionist or pro-Palestinian thought as concern about antisemitism. Colleges have been complicit and sometimes students are the ones advocating suppression.

But Columbia Law’s Student Senate is being fuzzy-headed at best, and acting at bad faith at worst, to say that a student group shouldn’t be approved if its values and viewpoints could lead to censorship if widely accepted, or that its definition of racism is wrong. A newly formed Law Students Against Antisemitism would only be able to add one additional voice — a student voice — into the incendiary debate about Israel. Their definition of antisemitism is subject to critique, like everybody else’s. They would have no official power to enforce it, only the power to associate with each other and speak their views. Their power to argue that some criticism of Israel is antisemitic is no more powerful — and no less a legitimate part of the debate — than Students for Justice In Palestine saying that it isn’t.

I also question whether the supposed logic is sincere. Would the Columbia Law Student Senate deny recognition to, say, the Black Law Students Association, on the basis that students from that group have sometimes called for the punishment of speech they perceive as bigoted? Somehow I think not; nor should they.

So does the Columbia Law Student Senate think that it’s necessary to stop speech to save it? Possibly. It’s the sort of philosophical fatuity that students have always eructed. Realistically, though, it’s more likely that these particular students think that when they don’t agree with speech, it’s legitimate to suppress that speech by any means at their disposal, including official and quasi-official means. It’s more likely that they think they have some kind of right not to be exposed to speech they hate. They see no value in the utterance of things unless they agree with those things, and don’t share the value that they should respond to speech rather than preventing it. I feel no obligation whatsoever to respect that sentiment or the students who hold it, as I’ve made clear before. And I am perfectly capable of regarding them as censorial dipshits while recognizing that they are also mostly insignificant censorial dipshits, compared to our nation’s leaders.

The fact that Columbia Law is private, and not bound by the First Amendment, does not change this analysis. Columbia advertises itself as a haven for free expression. If Columbia law wants to be free for expression that its Student Senate agrees with, maybe it should say that on the package. The belief “there is only one correct way to view the conflict in Gaza and we will not recognize student organizations who disagree” is loathsome and un-American whether or not it violates the First Amendment.

I think the students could do better. In fact I expect it of them. I expect students at one of America’s best law schools to say “I think your definition of antisemitism is overbroad and wrong, but you get to advocate it just like other groups do.” I hope that age and experience will rub the censorial dipshittery off of them. But all of this may mark me as naive. Has the America of this century provided a good example of the value of liberty? Have these students’ local and national leaders modeled a mature and civically responsible approach to encountering speech they don’t like? Likely no.

Finally, though I was initially inclined to call them cowards for voting anonymously to suppress speech, after some thought I repented. Any vote on this subject is likely to expose them to death threats encouraged by bad actors. That’s not an appropriate or proportional response to censorial dipshittery.

I first wrote this post at the old Popehat site in August 2011. That would have made the kids 10, 7, and 4. Now two are in college and one in high school. Time flies; enjoy it.

Katrina, my dad, and the kids took me out to dinner for my 42nd birthday last night. I was forced to wear a big stupid sombrero at our favorite dive while the staff (who has seen our kids come home and grow up) sang for me. It was OK. As part of the festivities, the kids demanded -- as they do these days -- that I tell various classic family stories that have now passed into myth and legend: the story of Ken, the shovel-nosed shark, and the boat wreck; the story of Poppa, Nana, and the ill-advised twilight hike; the story of Ken being set loose in Mainz to fend for himself by two parents who had discovered a particularly good Riesling, and so on.

On the way home, Abby and Elaina demanded the much loved story of Sig and the skunk. It was just long enough for the drive home. "You have to write the story down," said Abby, "so we can read it whenever we want."

And so I did.

The Tale of Sigmund and the Skunk

This story concerns your daddy, a skunk, and a dog named Sigmund. Sigmund was daddy's dog when daddy was a boy growing up around these parts. Sigmund was a large black dachshund. He was the sweetest, most friendly, and most gently dispositioned dachshund you are likely to meet, but he was not blessed with an abundance of brains or good sense, even for a dog. It might be said of Sig that he always meant well, bless his heart.

One day Poppa and Nana were away someplace and daddy was at home. Daddy was probably playing primitive computer games like they had back then, or reading something awful. Anyway, about mid-afternoon, daddy heard Sig barking furiously in the back yard.

This in itself was not a notable event. Sig, his excellent disposition aside, was wont to bark at squirrels, at leaves, at the wind, at the ineffable passage of time, and occasionally, so far as daddy could tell, at the crushing realization that he was a long, squat, chunky dog bred to flush badgers out of holes, and yet there were no badgers about, thus frustrating Sig's ability to achieve the Platonic ideal of dachshunditude.

Never mind what those words mean.

Eventually Sig's barking became so loud, so pronounced, so frantic, that daddy was moved to investigate. Daddy opened the back door and looked out on the back lawn behind the kitchen.

There he saw Sigmund and the skunk.

The skunk was lying on the lawn on its back. Its legs were splayed limply. Its tongue dangled from its mouth. It did not move. Daddy suspect that, were he to approach close enough to pry the skunk's eyelids open, there would be a little cartoon X over each eye. Sig was madly circling the skunk at a prudent remove, barking furiously, redolent of skunk spray.

Well, sh .. shucks, daddy thought, now daddy has to dispose of a dead skunk and de-skunk a frantic dachshund.

First things first. Daddy grabbed Sig by the collar and dragged him into the side-yard, which was surrounded by a high-chain link fence with sturdy gates. Daddy shut all of the gates and went to look for a shovel and a bag to dispose of the skunk.

Daddy, as you may know, is unaccustomed to the use of tools, and was having some difficulty locating the shovel when he heard Sig start barking again. Sig's bark was, if possible even more frantic, and now had a new tone, a tone daddy would later conclude was one of incredulity.

Never mind what that word means.

Daddy returned to the side hard. There, in the side-yard, was Sig, circling a skunk -- the same skunk that had previously been on the lawn outside of the side yard, on the other side of the high chain-link fence and formidable gate.

The skunk's condition had not, so far as daddy cold tell, improved. It remained on its back, limbs splayed, tongue out, immobile, by all appearances dead. Sig had backed into the furthest possible corner of the side-yard and was barking himself hoarse at the skunk.

Now, you might expect that daddy's most pressing question under these circumstances would be how the apparently dead skunk got from the lawn to the fenced-off side yard. But children, you would be wrong. You see, daddy has always had a touch of the philosopher in him, and yearns to know not only the mundane how but the cosmic why of things.

Why would the skunk, safe on the lawn with the frantic dachshund secured behind a fence, contrive to slip past that fence to re-join the dachshund? Was it, as you kids say these days, for the lulz? That strikes me as unlikely; we really didn't know about lulz in those days.

Daddy could have stood there all day pondering such things, which was frequently what he would do when called upon to do physical labor with implements like a shovel. Instead, he resolved to calm the dog, who was becoming hoarse and frankly unbalanced. Daddy grabbed the stinking hound, opened the side door into Nana's office, and locked the dog in Nana's office bathroom, where Nana would sometimes retreat for prolonged periods when the weight of the world was too much with her.

Daddy knew from prior experience that a dog sprayed by a skunk must be washed with tomato juice, which would case a chemical reaction of some sort that daddy would understand better if he paid attention in Chemistry, which he did not, even though you should. But there was no tomato juice to be had. Daddy briefly contemplated using Poppa's V-8, and was spared Sophie's choice between a vengeful father and a odoriferous dog by the fact that there was no V-8 left.

Never mind who Sophie is.

If there was no tomato juice, what could daddy use? Daddy eventually settled upon a large jar of zesty Ragu pasta sauce. Daddy figured that it was tomato-based, and that the chunks of mushroom and garlic should not prove a substantial impediment to its chemical effectiveness. Daddy manhandled the unwilling dachshund into the tub in Nana's office bathroom and commenced to bathe the dog in tepid water and Ragu. Sigmund, as was his normal practice, reacted to the stress of the experience with prolonged and profound flatulence. Soon Nana's bathroom was splattered with red like an abattoir and smelled of skunk, Italian food, and farts.

I can't continue the story until you calm down. No, you can't use that word just because daddy did. Oh, go ahead and tell your mother!

Anyway, daddy dried the dog and deposited him, exhausted and somewhat stunned by the experience, into his bed. Daddy then retrieved the trash bag from the kitchen and the shovel from the garage and returned to the side yard to make a proper end of the skunk.

Of course the skunk was gone.

Daddy returned the shovel to the garage and decided that there were, perhaps, things that daddy was not meant to know, that there are more things about skunks and dachshunds than are dreamt of in daddy's philosophy.

But does the tale end there? No, you are correct -- it does not. Late that evening, when Poppa was snoring thunderously on the couch and Daddy was abed, dreaming of starlets who are now likely in their sixties, there was a blood-curdling scream. Nana had left the house in her bare feet to empty the trash and, in the dark trash area on the other side of the garage, stepped upon the now sincerely and unequivocally deceased skunk, who had apparently traveled there and expired after escaping the fenced-in side yard.

After that, it became daddy's job to take out the trash.

Daddy examined the side-yard fence with great care and never found any holes in it. To this day, daddy wonders how the skunk defied the gates -- but it is the why that keeps him awake at night. Who knows what lurks in the hearts of skunks?

So remember, children: things are not always what they seem. What you think is impossible may in fact be possible. Barriers may be defeated. Also, watch your step.

_{Photo credit: https://picryl.com/media/dachshund-dog-pet-animals-a5598a}

Angry federal judges, trivia contest winners, gratuitous Elrond references, and more: all this week on Serious Trouble.

So. I was interviewed on federal criminal justice and First Amendment issues for a Frontline documentary about the Congressional and Special Counsel investigations of Trump for the events of January 6. It’s out today. I get some screen time, but not as much as David French. It’s all about whether or not you know Aquaman.

Years ago I worked on the indigent defense panel serving federal courts here in Los Angeles. For very little money, I represented federal defendants who could not afford a lawyer. They were accused of immigration crimes, drug crimes, violent crimes — the whole family of blue-collar federal criminality.

Their attitude about their circumstances was very different than the attitude of my paying clients. My paying clients are usually accused of white collar crimes, usually college-educated and raised in upper-middle-class or better environments, and usually have no prior contact with the justice system. They tend to experience that system in a conspiratorial light. The criminal justice system is so perverse, so Kafkaesque, so indifferently brutal, that it seems inexplicable that what is happening to them happens to everybody. Instead, they usually believe that someone — an investigator, a prosecutor, a judge — had a grudge and is singling them out for especially brutal treatment, usually at the secret instigation of their enemies. They often believe that the case might be made better by complaining about the prosecutor targeting them for unfair or unusual treatment.

My indigent clients didn’t express that feeling at all. They had no expectations of fairness or courtesy or reason. Most of them had been through the system before, or had family who had been through the system. They expected Kafka, and got him. They might say that witnesses were lying, that the case was bullshit, or that the sentence was unfair, but they never thought they were being singled out. They knew this was how it worked.

This gulf between people with a fantastical view of the justice system drawn from myth and people who have been on one end of it or the other has been particularly gaping for the last five or so years. The Robert Mueller investigations and prosecutions, the January 6 prosecutions, and the cases against Donald Trump and his entourage have all produced outrage about selective prosecution and biased treatment. In the vast majority of cases, the outrage has been directed at the system doing what it does all of the time, but doing it against powerful, rich, or famous people, who usually escape such treatment.

Today’s example comes from New York Times columnist Bret Stephens, a man of deep concerns that, if not serious, are borne seriously. In a dialogue with Gail Collins, he expressed outrage at E. Jean Carroll’s $83.3 million verdict against Donald Trump for defamation:

This is a classic example of an elite person — here, a New York Times columnist born to good fortune and educated at the University of Chicago and the London School of Economics — suddenly becoming outraged at the injustices of the system when it is used against another elite person — here, a famous and powerful billionaire who was the President of the United States and might be again.

There are plenty of revolting aspects of our justice system, criminal and civil. There are many things that could, or should, outrage Bret Stephens about American justice. This is an odd place to start.

First, Stephens complains that a “socially unpopular figure” can be accused of a “heinous crime” in the “jurisdiction where he is hated the most.” Generally, people who are accused of awful things are hated in the places where they are tried. Take the Central Park Five. They were accused of horrific crimes and tried in a city that reviled them. In fact Donald Trump — the man who arouses Bret Stephens’ civic sympathy — bought a full page ad demanding their execution. Let me tell you: people accused of crime, particularly violent crime, are generally reflexively despised in America. All it takes to be “socially unpopular” is to be accused.

Second, Bret Stephens complains that Trump has been tried “without any realistic chance of defending himself” because the case involves an accusation of decades-old sexual assault. This is nonsense, based on the common-from-dudebros mantra that it is illegitimate and unreliable to try someone for something based on one person’s word against another, as opposed to based on a panoply of CSI-style evidence.

But as both criminal lawyers and civil litigators will tell you, cases routinely turn on key issues that come down to one person’s word against another. That might be a cop’s word about what a suspect said, or it might be a CEO’s word about whether a fact was disclosed in a pitch meeting. But it is absolutely mundane for juries to be asked to weigh one person’s version of events against another’s. Usually one of those people isn’t a billionaire former President with unending access to top lawyers and political connections. Poor people are generally not sued for millions of dollars, because poor people don’t have even hundreds of dollars. But poor people routinely suffer in our system based on a single person’s word. They are denied bail, convicted of crimes, their probation revoked. They are evicted and their benefits are cut and they lose custody of kids. The word of a single person — a cop, a landlord, a bureaucrat — is commonly treated as inherently more believable than theirs. In happens every second.

Unstated but implied in Bret Stephens’ gripe is the premise that women accusing men of sexual assault are particularly unworthy of belief when uncorroborated by physical evidence, or that some sort of hysteria about sexual assault has addled our ability to weigh credibility. This is a worldview, to be sure. It’s just odd to see it raised on behalf of Trump, and not someone far less able to defend themselves. Donald John Trump is no Scottsboro boy. Donald Trump is someone with the maximum possible capacity to defend himself. And he did: represented by very capable counsel at the first Carroll trial, if not the second, and he used every argument and technique possible to convince the jury not to believe Ms. Carroll’s account, and that her delay in reporting rape and lifestyle choices made her unbelievable. Well, every technique except two — he didn’t present any defense witnesses and he didn’t testify. Perhaps Bret Stephens means that, in a he-said she-said case, it’s impossible for “he” to win if “he” is so transparently narcissistic, unlikable, and incredible that it would be suicidal to testify. Well, no system is perfect.

Bret Stephens is also upset that in civil cases, the jury decides who won using the standard of preponderance of evidence, rather than the beyond a reasonable doubt standard applicable to criminal cases. Does Stephens think that the higher standard should apply when billionaires are accused? When women accuse men? It’s not clear. But his quarrel should be with the legal minds of the 18th Century, when the standard was developed.

As a criminal defense attorney, and a commentator on criminal justice, I spend a lot of time thinking about what arguments will move an audience. I am a realist. I know that some audiences begin with their arms folded against me. In Bret Stephens, I have the audience of a man who is inspired to outrage by a large judgment against Donald Trump, a billionaire who deliberately treated his trial like a circus. Stephens’ analysis resolves every doubt, every question, every issue in his favor. But that same audience’s sympathy goes in the other direction if the protagonist in question is, for example, a 13-year-old Latino:

Well, Bret Stephens thinks, if we cannot save the 13-year-old poor boys, at least we should try to save the millionaires.

“But the precedent will eventually come to haunt someone who doesn’t deserve this kind of treatment,” Bret finishes.

Oh Bret. They might not teach you this at the London School of Economics. But deserve’s got nothing to do with it. And the precedent was set long ago, on the backs of far more humble people than Donald Trump.

The Popehat Report is now hosted here on Beehiiv, which will allow a number of design and feature changes.  If you are a subscriber but didn't get an email with this post, check your spam filter.

Some new features at the new location:

• You can find the site at www.popehat.com

• I’ll be importing some old favorites from the now-defunct Popehat blog.

• Sometimes I’ll be adding content here without emailing it — like an old-style blog — so that I don’t overwhelm your inbox.

• There will be occasional open posts for discussions and questions.

What makes a good lawyer? Is it arrogance? Peevishness? Obsession with minutiae? Capacity to endure being yelled at by elderly white men? At least one good suit? It is all of these things. But being a good lawyer shares a fundamental rule with being a good doctor: first, do no harm. Lawyers encounter people in crisis, and their first duty is not to make the crisis much worse.

This is a straightforward task if you stay in your own lane by practicing the sort of law you know, or relying heavily on more experienced lawyers to learn a new area. But lawyers who blunder alone into unfamiliar areas of law can make things catastrophically worse for clients. My favorite example is defamation law. Under exceptionally speech-protective American law, any defamation lawsuit faces a daunting array of legal barriers and pitfalls. It’s not rocket science, but a lawyer who doesn’t know the law will fail in flamboyant, expensive, and humiliating ways. Moreover, defamation cases proceed under the looming shadow of a crucial social law — the Streisand Effect. That’s the proposition that if you sue, or threaten to sue, over a nasty thing someone said about you, it will inevitably draw orders of magnitude more attention to that nasty thing.

It’s common — mundane, really — to see lawyers try their hand at a defamation case, fail miserably because they don’t understand the law, and utterly destroy their client’s reputation in the process. Today’s story is a prime example.

Nikko D’Ambrosio is a Chicago 33-year-old employed in the age-appropriate activity of wandering about society in a backwards hat trying to get laid. One of the young women he dated wrote about him on the Chicago chapter of a popular Facebook group called “Are We Dating The Same Guy,” a forum for women to commiserate about the men they date. Her gripes (as reflected in the exhibits to his eventual lawsuit, linked below) were, to my taste, rather mild: unflattering, but not outside what’s expected of modern manchildren. She said he was “clingy very fast,” that he “flaunted money very awkwardly,” that he “kept talking about how I don’t want to see his bad side,” and that he texted her from a different number after she blocked the first one. Another woman claimed D’Ambrosio had slept with her and then ghosted her. Yet another said she had heard that he sent a bunch of rude texts after a women declined to sleep with him. Still another referred to him as a “psycho.”

Most of these were statements of opinion (“psycho” without more is an opinion-based epithet, “clingy” and “awkward” are thoroughly opinion-based) and very difficult to establish as defamatory statements of fact. The claims that D’Ambrosio ghosted a woman after sleeping with her or texted another rudely after being rejected could be false statements of fact, and therefore potentially defamatory, but a sensible grown-up would walk them off.

Nikko D’Ambrosio was aggrieved. He needed good, competent advice. A sensible, competent lawyer would advise him that any defamation claim would face substantial legal challenges, that recovery was unlikely, and that the cost of litigation would be heavy. Just as importantly, a competent attorney would advise Nikko D’Ambrosio that suing over these statements would be permanently disastrous for his reputation, and that any such lawsuit would go viral. A competent defamation attorney would point out that this particular factual scenario — a dudebrah with a not-common name suing women for more or less calling him a dudebrah — would be unusually bad for his online reputation, elevating him into the immortal pantheon of permanently infamous dudebrahs, a sort of Pluto of Petulance, an Ares of Assholery. Nikko D’Ambrosio needed a wise counselor.

But Nikko D’Ambrosio went to The Trent Firm and hired two guys named Marc Trent and Daniel Nikolic, and they gave him absolutely abysmal advice. If they told him about the Streisand Effect — if — he didn’t listen. Instead, they filed a stunningly terrible federal lawsuit on his behalf on the United States District Court for the Northern District of Illinois, suing a few dozen people and entities.

The complaint that the Trent Law Firm filed for Nikko D’Ambrosio is astoundingly sloppy and incompetent — and that assessment comes from me, an aficionado of bad lawyering, a misanthrope who seeks out and grumbles about amusingly incompetent lawsuits as a form of ritual self-abuse. It takes a lot to shock me, but these guys managed. They sued not just the disappointed woman who made the key comments about him, but two of her relatives, a host of other people with unspecified roles, and a long series of entities associated with Facebook. It is impossible to exaggerate how badly drafted this complaint is. These are just a few of its deficits:

• The caption of the lawsuit proclaims that it’s a class action, and D’Ambrosio’s lawyers have made comments suggesting that they see themselves as suing on behalf of “victims” other than D’Ambrosio. But other than the caption, the lawsuit contains not a single relevant allegation about being a class action. It doesn’t plead any of the factors necessary to qualify as a class action. It’s also obviously unsuited to be a class action: a class action requires a pool of plaintiffs with factually and legally similar claims, but defamation claims are by their nature very individual and context-specific, and each aggrieved man’s case would be very different depending on what was said about them.

• A federal court can only hear a case when it has jurisdiction over the case under federal law. The most common forms of federal jurisdiction are federal question jurisdiction — when the lawsuit asserts a federal statute as the basis for the claim — or diversity jurisdiction — when the plaintiffs come from a different state than the defendants and more than $75,000 is in dispute.1 D’Ambrosio’s lawyers assert diversity jurisdiction but make an utter dumpster fire out of it. They admit that both D’Ambrosio and at least one of the defendants come from Illinois, which defeats diversity jurisdiction. They admit they don’t know what state a bunch of the defendants come from. They identify a bunch of the defendants as limited liability companies, but don’t plead the facts necessary to identify those entities’ citizenship for purposes of diversity. This is the kind of thing that makes federal judges issue orders of their own accord saying, in judicial terms, “what the fuck is this shit?”

• The entire premise of the lawsuit is that a wide array of people and entities are legally responsible for unflattering things that a few women posted about Nikko D’Ambrosio. This theory ignores the existence of Section 230, the federal law that says that websites and their proprietors are not responsible for what users post there, even if they engage in moderation. Under Section 230, each woman who posts to “Are We Dating the Same Guy” can be held liable for what she posts, but Facebook, and the entities associated with Facebook, and moderators on Facebook groups, and people merely associated with the group, cannot be liable for what she posts. This complaint does not suggest that the lawyers who drafted it are familiar with Section 230, which would be the most important legal issue facing them.

• The complaint attaches screenshots of some posts — that’s how we know what the women said — but it utterly fails to specify what statements are alleged to be defamatory. The lawsuit claims that multiple women made defamatory statements, but doesn’t specify which defendants did what. Vagueness in legal threats is the hallmark of meritless thuggery. More importantly, the lawsuit claims in very general terms that the roughly 30 individual defendants and dozen entities are personally responsible for the (unspecified) defamatory statements, and implies it’s because the individuals were responsible for moderating or running the Facebook groups, but offers absolutely no specific facts supporting that legal conclusion. You can try that shit in state court, or maybe a food court, but in federal court you have to plead specific facts that plausibly support your legal conclusions. They haven’t. Just as one example, they’ve sued two people with the same last name as the woman in question — her parents? siblings? — but offer no facts to explain why they are named or what they did or how they could be liable.

The incompetence doesn’t end there, but I will. This may be the most badly drafted complaint by a lawyer I have seen this millennium. It will probably get dismissed for jurisdictional defects, quite possibly by the federal judge without anyone’s request. It is bad to the level of warranting sanctions, and likely to draw them even with a federal judiciary famously reluctant to sanction. If they fix the jurisdictional issue (probably by re-filing in state court or by ditching the defendants who defeat diversity jurisdiction) they’ll face an implacable host of other legal issues.

That’s the legal result. The social result is predictable. Nikko D’Ambrosio has gone viral. He is now That Guy. He will remain That Guy. He was concerned about his reputation as a member of the dating pool; now his reputation is a sullen narcissist who will bring a lunatic class action against you and your relatives if you say he’s clingy. I don’t pretend to be an expert on women but I think that may be a red flag. If there are any women attracted to it they have a really extremely specific kink.

Why is this happening? There are plenty of reasons. There’s a culture of entitlement and ego, among both litigants and lawyers. There’s the trend towards performative, headline-grabbing, but thoroughly bogus lawsuits as a lawyer marketing tool, encouraged by some of the most prominent politicians in the country. There’s the failure of courts to sanction lawyers who act like this. There’s the lack of a federal anti-SLAPP law that would allow the defendants to force these dipshits to pay their legal fees. There’s so much wrong with us. 

Nikko D’Ambrosio was upset, but now he’s permanently infamous and likely to get poorer.

Members of the Trent Law Firm, dismiss this atrocity before you get sanctioned so hard your great-grandkids will come out with the judge’s bootprint on their asses. Nikko D’Ambrosio, go get a good malpractice lawyer.

First Amendment rights are constantly misunderstood by most Americans enjoying their protection. Were it not so, what would I have to gripe about?1 One of the most misunderstood questions in First Amendment law is whether government employers may fire government employees for their speech. As I explained at the beginning of this year, answering that question requires a complicated analysis of whether the speech is part of the employee's job, whether it's on a matter of public interest, and whether the government employer's interest in preventing disruption outweighs the employee's interest in speaking. Since that was my first post of 2023, it seems only fitting to return to the subject for the last post. But where to find a good example of the dilemma for analysis?

My friend and classmate Mitch Epner, who is always worth reading, came to the rescue with a piquant story out of Wisconsin. Joe Gow, the Chancellor of the University of Wisconsin-La Crosse, has announced that he was fired for appearing in porn videos:

So. Can they do that? The university I mean. Clearly Mr. Gow and his wife have a First Amendment right to produce, appear in, and distribute pornographic videos, so long as the videos do not stray into the very narrow and very rarely prosecuted First Amendment exception for obscenity. “Obscenity” for these purposes is material that meets the three-part Miller test, which may be summarized like this:

I prefer Justice Potter Stewart’s summary “I know it when I see it,” but opinions vary.

Anyway in modern America, as the obscenity test is applied, it’s not plausible that a video of two people having sex is going to meet this standard unless they are really very inventively filthy. You may think it should qualify as obscene under this test, but there’s functionally no chance that it will be prosecuted.

But that’s about the government wearing its “sovereign” hat — acting as Chancellor Joe Gow’s civic authority with the power to prosecute. What about the government wearing its “employer” hat — can it fire him from his government job?

Here’s how we answer the question.

First, we ask if Mr. Gow was speaking as a private citizen or in his capacity as a government employee. If he was speaking on the job, the First Amendment doesn’t protect him from being fired. That allows the government to fire you for being insubordinate, bad at your job, and impolitic at representing the government. There’s an exception to this rule for public university professors engaged in teaching, who are still protected even though their job is to teach. Here, there’s no indication that performing in pornographic videos was within the scope of Mr. Gow’s job as Chancellor. It’s not UNLV after all.2 So far so good for Mr. Gow.

Second, we ask if Mr. Gow was expressing himself on a matter of public concern. Matters of purely private concern and grievance (like, say, whether the Inspector General’s secretary keeps microwaving fish during her lunch break and the whole office smells like ass) are not protected. Matters of public concern are traditionally issues that are of legitimate news interest. You could certainly make an argument that the public is interested in pornography, given its vigorous consumption of it. But it appears to me that the Supreme Court has already foreclosed that argument. In 2004 they held that a City of San Diego police officer was not expressing himself on a matter of public concern by selling pornographic videos of himself, and that therefore the First Amendment did not protect him from termination. So this part of the test is fatal to Mr. Gow’s First Amendment claim unless his videos include some sort of commentary or exploration of a newsworthy issue. I don’t know, like, it’s a satire of Wisconsin’s redistricting crisis with the title “either way voters get screwed.”

Third, if Mr. Gow’s claim survived, we ask whether the government did something to retaliate against the protected speech. Here that’s easy — they fired him and apparently told him they were firing him over the porn videos. That’s clear retaliation. Sometimes it’s not so simple if the retaliation is some minor discipline or counseling or an investigation. The test is whether . . . oh dear . . . the test is whether a person of ordinary firmness would be chilled from speaking by the employer’s actions.

Fourth, the government can defend itself by proving that it would inevitably have fired Mr. Gow for reasons unrelated to his speech even if he hadn’t spoken. There’s no indication that defense applies here.

Fifth, if Mr. Gow’s claim still survives the analysis, then a court must engage in a balancing test, weighing the employee’s interest in their free speech against the government employer’s interest in workplace harmony and effective operation. Here, the fact that Mr. Gow’s job of Chancellor requires him to represent the university as its public face, and interact with alumni, donors, and the state legislature, probably plays a determinative role. Even if a court found that Mr. Gow’s pornographic videos represented speech on a matter of public concern, it would likely find that the university could fire him on the grounds that appearing in the videos was detrimental to his public role and therefore to the university. That’s how several courts have ruled — for instance, finding that sheriff’s deputies’ appearance in pornographic videos undermined their fitness and the reputation of the department. You could say that this analysis reflects a prudish and outdated attitude towards sex and/or pornography, but the point is that it’s a very practical and plausible concern about the reaction of the people Mr. Gow has to deal with on the job. (In recent years this balancing test often comes into play when public employees post racist garbage on social media and get fired, especially if they are in public-facing jobs where the public is supposed to rely on their professionalism and even-handedness.)

Remember that this test has nothing to do with whether Mr. Gow’s pornographic videos are protected from prosecution or lawsuits. Those represent Mr. Gow in his capacity as private citizen and the government in its capacity as sovereign. We’re talking about whether the government can discipline or fire him while wearing its employer hat. As you can see, the government has substantially more leeway to fire employees for speech than it would have to prosecute them for it. That’s a feature, not a bug.

In short, if Mr. Gow sues over his termination, he will probably lose.

Substack has Nazis, because of course it does. Substack is on the internet, Nazis are on the internet, and if Substack doesn’t want Nazis it has to take affirmative steps to get rid of them. Flies don’t stop coming into the house because you want them to; they stop because you get off the couch and close the screen door. Any social media or blogging platform faces this. Substack may attract more Nazis than average because Substack has a “okay you don’t agree with me now but what if I wrote another 8,000 words about it” vibe. 2023 Nazis have a very “I didn’t have this insight until I read The Fountainhead for the sixth time, let me elaborate” thing going. Say what you want about the 1939 Nazis, but at least they were occasionally terse.

Substack having Nazis1 is currently the subject of debate. The Atlantic ran a piece about Substack’s “Nazi Problem” and recently a group of Substack writers wrote a group letter about it, asking Substack to get rid of the Nazis. They point out, correctly, that Substack authors have abandoned the platform before over its moderation choices and might again. On the other side, a bunch of Substack users offered a group letter saying they don’t want Substack to made content choices; they like a system where each writer and reader makes their own moderation choices. Substack’s co-founder Hamish McKenzie has now responded with a post confirming that it’s not going to moderate Nazis. So that seems to resolve that.

Site moderation is a big bundle of choices. As a writer and reader, I decide what’s important to me when I choose a site. Sometimes it’s about content I want to consume or avoid and fellow-travelers whose society I crave or despise. But sometimes it’s an ethos I want to endorse, or be seen as endorsing. Do I want to go on Twitter to signify that I am not a snowflake and that I am open to discussions of how the Jews created polio? Do I want to go on Mastodon to signify that I believe human perfection can be achieved through scolding? Do I want to go on LinkedIn and talk exclusively to people who hope to monetize my existence in their quest to be Deputy Assistant Regional Manager? Do I really only care if the app works on an iPad? It’s up to me and my array of values.

Site managers make choices too. What ethos do we want to signal, and what crowd will that attract, and how much money can we make from them? If we moderate content, will it turn into an expensive, thankless, all-consuming task? Will moderating some people (like Nazis) result in constant demands that we moderate a huge array of things that make people angry (like, say, posts that are either too supportive or not supportive enough of Palestinians)? Will it attract more people than it alienates? If we don’t moderate will the place turn into a notorious sewer? What’s our moderation brand?

That’s what Substack is up to: branding. They’re betting they attract more people than they repel with the “we don’t believe in Big Tech choosing what you can write or read” brand. They’re betting that the “we are the intellectual and moral superiors to the woke left” brand is profitable — and it is. They calculate that getting involved in constant disputes over what content is acceptable on their site would be a big waste of time and money and focus. Maybe they’re thinking that the Overton Window has shifted such that a substantial portion of mainstream American thought is kind of Nazi these days and that they can’t afford to lose that market.

Are they wrong?

No. As a matter of marketing, they’re not. The brand is effective and lucrative. The “we’re the noble defenders of civilization, upholding free thought from the onslaught of the woke hordes” sells these days. It sells even when free thought is actually under more profound assault from cynical and powerful and absolutely not woke forces. It sells even though — as I will get to in a minute — there’s a difference between tolerance and platforming.

They’re also not wrong to the extent they think that critics will never be satisfied and that getting into the business of moderating content is expensive and never-ending. It’s notable that the critics of Substack’s “Nazi problem” do not offer a specific definition of what content they’d moderate. It’s a know-it-if-you-see-it type of thing. Moreover, the critics of vigorous moderation are right about something — we are living in an area of near-constant demands to deplatform content. It’s easy to dismiss it as “oh that’s just people trying to protect vulnerable people from Nazis,” but that’s just not right. It’s often directed at less powerful people, and it’s often a tool of geopolitical disputes, as we see particularly powerfully since October 7. Demands come from humans and humans are frequently partisan, hypocritical assholes. It’s fair for Substack to complain that if they deplatform Nazis they’ll need to deal with a constant stream of other demands to deplatform content and be forced into the business of adjudicating speech about bitter disputes.

Substack’s also right that it’s built a platform that’s qualitatively different than many others. On Twitter, Nazis were constantly in my face, I had to painstakingly block them one by one, and the interface recommended that I follow them. Here I generally only encounter them if I look for them or, very occasionally, if one wanders into my comments for me to block. You can publish here and comment here and never encounter Nazis stuff here. With respect to my friend Mike Masnick, I think that makes it a bit less like his Nazi bar analogy and more like a Nazi-tolerant banquet hall. You can have your niece’s quinceañera or your parents’ 50th anniversary there and probably won’t feel much of an impact from the fact that they’re always booked solid on April 20 unless you think about it. Put another way, it’s more like selling your books or goods on Amazon if Amazon allowed lots of overtly Nazis stuff instead of just thinly veiled Nazi stuff.

So I am not inclined to denounce people who publish on Substack nor assert that fleeing Substack is the only moral choice. I think that reasonable minds can differ on the morality of renting a walled garden at an estate that also rents walled gardens to Nazis, especially when the other walled gardens on the market are all rife with their own problems. I think reasonable minds can differ on the ethos of creating a platform that makes a conscious decision not to moderate based on most content.

But that doesn’t mean I have to accept Substack’s attempt to convince me that its branding is about the good of humanity. It’s about money. Hamish McKenzie’s apologia for Substack’s approach is full of dubious (if common) arguments. Let’s address just a few.

First, McKenzie’s post consistently blurs the roles and functions of the state and the individual. For instance, he pushes the hoary trope that censoring Nazis just drives them underground where they are more dangerous: “But some people do hold those and other extreme views. Given that, we don't think that censorship (including through demonetizing publications) makes the problem go away—in fact, it makes it worse.” That may be true for the state, but is it really true for private actors? Do I make the Nazi problem worse by blocking Nazis who appear in my comments? Does a particular social media platform make Nazis worse by deciding that they, personally, are not going to host Nazis? How do you argue that, when there are a vast array of places for Nazis to post on the internet? Has Gab fallen? Is Truth Social no more?

McKenzie continues the blurring by suggesting that being platformed by private actors is a civil right: “We believe that supporting individual rights and civil liberties while subjecting ideas to open discourse is the best way to strip bad ideas of their power. We are committed to upholding and protecting freedom of expression, even when it hurts.” That’s fine, but nobody has the individual right, civil liberty, or freedom of expression to be on Substack if Substack doesn’t want them there. In fact that’s part of Substack’s freedom of expression and civil liberties — to build the type of community it wants, that expresses its values. If Substack’s values is “we publish everybody” (sort of, as noted below) that’s their right, but a different approach doesn’t reflect a lack of support for freedom of expression. McKenzie is begging the question — assuming his premise that support of freedom of expression requires Substack to accept Nazis, not just for the government to refrain from suppressing Nazis.

Moreover, McKenzie admits they don’t accept all speech. “Our content guidelines do have narrowly defined proscriptions, including a clause that prohibits incitements to violence.” That’s not quite right. Substack has exercised its right to make choices in what content to exclude, and bans speech that the First Amendment protects:

• Substack’s hate speech policy says “Substack cannot be used to publish content or fund initiatives that incite violence based on protected classes. Offending behavior includes credible threats of physical harm to people based on their race, ethnicity, national origin, religion, sex, gender identity, sexual orientation, age, disability or medical condition.” That’s ambiguously broader than the First Amendment standard, under which unprotected incitement is only speech intended and likely to cause imminent lawless action. It’s also deliberately open-ended, since it says “offending behavior includes.” It means whatever Substack chooses it to mean.

• Substack prohibits what’s commonly called “doxxing.” “You may not publish or post other people's private information (such as a personal phone number or home address) without their express authorization and permission. We also prohibit threatening to expose private information or incentivizing others to do so.” That’s fine. That’s Substack’s choice. But the First Amendment generally protects that conduct. Is it bad to find a terrible person and post their phone number so people can call and denounce them? Maybe. That’s a value judgment.

• Substack prohibits “harmful” activities: “We don’t allow content that promotes harmful or illegal activities, including material that advocates, threatens, or shows you causing harm to yourself, other people, or animals.” That’s vastly broader than the First Amendment exception for incitement. I think Substack is aiming here at stuff like crush videos and people who promote eating disorders, but those are protected by the First Amendment.

• Finally, the big one: “We don’t allow porn or sexually exploitative content on Substack, including any visual depictions of sexual acts for the sole purpose of sexual gratification. We do allow depictions of nudity for artistic, journalistic, or related purposes, as well as erotic literature, however, we have a strict no nudity policy for profile images.” This is perfectly fine. It’s within Substack’s First Amendment rights to choose this policy. It’s a choice about branding, about ease of moderation, and about vibe.

My point is not that any of these policies is objectionable. But, like the old joke goes, we’ve established what Substack is, now we’re just haggling over the price. Substack is engaging in transparent puffery when it brands itself as permitting offensive speech because the best way to handle offensive speech is to put it all out there to discuss. It’s simply not true. Substack has made a series of value judgments about which speech to permit and which speech not to permit. Substack would like you to believe that making judgments about content “for the sole purpose of sexual gratification,” or content promoting anorexia, is different than making judgment about Nazi content. In fact, that’s not a neutral, value-free choice. It’s a valued judgment by a platform that brands itself as not making valued judgments. Substack has decided that Nazis are okay and porn and doxxing isn’t. The fact that Substack is engaging in a common form of free-speech puffery offered by platforms doesn’t make it true.

This brings us to McKenzie’s discussion of his infamous promotion of the noxious Richard Hanania, in which he says he’s not promoting Nazis:

Again, McKenzie is smuggling a host of value judgments under the pretense of not making value judgments, and it’s dishonest. There’s an infinite number of cranks and lunatics; choosing which ones to promote as plausible is a value judgment. There are people who are eagerly (if not necessarily sincerely) saying that Trump was elected in 2020 or that the Earth is flat; promoting them or not is a value judgment. We all make judgments all the time about which speech is within or without our circle of acceptable decency, speech that is worth sober debate on our own platforms. We should, at a minimum, be honest about it. If “racism is within my circle of decency and debate” is our point, we should make it openly, not evade it. 

The suggestion that Hanania was not an overt racist before his pseudonymous background was published is an argument, but a very bad one. McKenzie has a choice of whom to invite on his podcast. McKenzie could have invited David Duke or Nick Fuentes, who are also prolific contributors to the public discourse, but selected Richard Hanania. Presumably McKenzie thinks that Hanania is a plausible, within-the-Overton-window voice and the others aren’t. That’s a value judgment that Hanania’s racism is inside-the-circle, and it’s one that promotes Hanania. Moreover, McKenzie’s choice to accept Hanania’s deeply dubious confessional to “reforming” also reflects a value judgment — a judgment in favor of slack-jawed credulity, in my view.

Taking everyone at their word that they’re not a Nazi, and deciding to accept that they mean racist things in non-racist ways, is a value judgment too. It’s a decision; you can’t plausibly spin it as a refusal to make a decision. So is the sentiment that tolerance requires not just refraining from government force but refraining from private association and judgment.

I dislike McKenzie’s apologia for Substack’s policy and for Richard Hanania because it has a sort of detached, sociopathic philosophy popular with techbrahs that all differences of opinion are equal — that a dispute over whether black people are human is like a dispute over the best programming language or whether Rocky Road is the best ice cream. This, too, is a value judgment. It’s not one I share.

In short: agreeing that Substack is an acceptable place to publish or comment does not require you to accept Substack’s sales puffery about it.

What will I do about it?

I haven’t decided. McKenzie’s apologia deeply annoys me because it treats me like I’m a moron. It’s the equivalent of yelling over the wall of my walled garden “don’t worry, those guys three gardens over really just like Hugo Boss, and also they have some points on tax policy.” There’s a difference between the ethos of “we’re a platform that’s decided not to make value judgments about offensive speech, if that’s okay with you, you’re welcome” and the ethos of “we’re a victim of cultural Marxism and we see that a lot of these guys are not that bad and we’re doing a service to humanity by platforming them and listen to their guest spot on my podcast.”

Previously I was thinking of monetizing this newsletter. A primary barrier was putting in the work to post much more regularly — at least 1.5 times a week, I think - to make it plausibly worthwhile. This episode is another significant strike against deciding to do so here, or staying here. The platform is convenient, easy to use, effective, and has a good interface and has a lot of content I like. I suspect there are going to be shitty things about any platform and that any platform will have content I hate. But I’m unhappy with this, and I’m rethinking my plans.

This post may be less solicitous of your feelings than you may hope.

America faces many problems. The easy ones we solve or ignore. We struggle with the hard ones. Hard problems raise complex questions that lack glib, one-word answers. The stubborn thirst for simple answers to hard questions is bad for America. It’s anti-intellectual, pro-ignorance, pro-stupidity, pro-bigotry, pro-reactionary, pro-totalitarianism, pro-tyranny, pro-mob.

Take this week’s Congressional hearing about antisemitism on college campuses, titled “Holding Campus Leaders Accountable and Confronting Antisemitism.” A generous interpretation — a credulous one — would be that the hearing was designed to inquire why colleges aren’t protecting Jewish students from antisemitic harassment. A more realistic interpretation is that the hearing was a crass show trial primarily intended to convey that a wide variety of dissenting speech about Israel is inherently antisemitic, that American colleges are shitholes of evil liberalism, and that Democrats suck. Since Democrats do suck, they mostly cooperated.

The core Two-Minute Hate of this carnival was Rep. Elise Stefanik’s demand for yes-or-no answers to questions about whether policies at Harvard, Penn, and MIT would prohibit calling for the genocide of Jews. You might think Elise Stefanik is an unlikely standard-bearer for a crusade against antisemitism, given that she’s a repeat promoter of Great Replacement Theory, the antisemitic trope that Jews are bringing foreigners into America to undermine it. But if you bought Stefanik’s bullshit, you probably didn’t think that far. The college presidents did a rather clumsy job of saying, accurately but unconvincingly, that the answer depends on the context. Stefanik and every politician our loudmouth who wants you to hate and distrust college education and Palestinians pounced on it. And many of you fell for it. You — and I say this with love — absolute fucking dupes.

If you think the question “is calling for the genocide of a group against your policy” is an easy question with a one-word answer, you’re wrong. I understand you want the answer to be easy, but that’s not the same thing as it being easy.

Even though private colleges aren’t bound by the First Amendment, let’s first look at it as a First Amendment question, as the outer limits of what’s permitted. Is calling for the genocide of a group protected by the First Amendment? In America, the answer is yes, unless it also falls into an established First Amendment exception. The First Amendment protects advocacy of the moral, historical, and practical correctness of monstrous, immoral, and illegal things, unless they are:

• Conveyed as a true threat — that is a threat intended to be taken, and likely to be taken by a reasonable observer, as a sincere expression of intent to do harm to someone;

• Conveyed as incitement — that is, intended and likely to cause imminent lawless action;

• Part of a pattern of harassment — that is, directed to someone under protected circumstances (such as an employee or student) and meeting a stringent test for harassment, described below.

But what about college policies? Private colleges don’t have to follow the First Amendment, do they? With certain complex exceptions1 , no. But despite wall-to-wall propaganda about how American colleges routinely suppress any speech seen as remotely racist, many colleges have speech policies that are either vague or that protect speech rather broadly and robustly. Since Harvard was on the hot seat, let’s look at theirs. Here is the most recent update to their Nondiscrimination and Harassment policy:

That policy mirrors federal law - specifically, Title IX of the Education Amendments of 1972, which prohibits certain kinds of sex discrimination in education. There are parallel prohibitions on racial discrimination. In other words, Harvard prohibits speech that would violate federal educational anti-discrimination law. Just as the law gradually came to recognize sexual harassment as sex discrimination, sexual or racial harassment can be educational discrimination. But not everything that offends someone is illegal discrimination, at work or at school. As with the test for sexual harassment, the bar is set pretty high. Here’s how the Supreme Court described what speech or conduct would constitute harassment violating Title IX: “plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victims are effectively denied equal access to an institution's resources and opportunities.” As you can see, Harvard’s policy echoes that language.

So. The university presidents were completely right. Whether calling for the genocide of the Jews, or any other group, violates a school’s policy depends on the context. For instance:

• Going to a campus chapter of Hillel and chanting “kill all Jews” is probably so severe, objectively offensive, and destructive of students’ educational experience that it violates the standard.

• If four students are talking politics in a dorm room, and one (by dramatic convention, a sophomore) says “we should just wipe all the Palestinians out,” and one of the four repeats that to someone else later, and that person is horrified, that is almost certainly not severe or pervasive or contextually destructive of the educational experience enough to qualify.

• If a professor uses the Israel-Palestinian conflict to discuss whether armed revolution is morally or legally justified, and presents the argument that armed revolution by Palestinians is justified, that almost certainly doesn’t violate the standard, although some people argue that it inherently calls for the genocide of the Jews.

• If a professor reads out sentiments expressed by different groups in a discussion of the war in Israel, and sentiment one the professor mentions is “kill the Jews,” that does not qualify. If you think that’s a silly example, you’re wrong.

• If one student makes a point of saying “all Jews should die” to a classmate every time they meet to express a sentiment about Israel, that’s probably severe and pervasive enough to qualify.

• If a student says, at a rally about Palestinian rights, “they want to kill all the Palestinians, but I say they should kill all the Jews first,” the context probably means that’s not severe, pervasive, or destructive of the educational experience enough, since it’s expressly conditional and political.

The list goes on and on, as complex and diverse as human communication and experience.

Stefanik’s purpose was transparent. No matter how the college presidents answered, she won. If they answered accurately — that the question depended on the context - she could shriek neeeeeerrrrrrdddd like a football player bullying a kid with glasses, and credulous people would eat it up. If the presidents answered inaccurately but simply “yes,” she could make her next point: then why aren’t you punishing people who advocate intifada? Why aren’t you expelling students for saying “from the river to the sea”? Why aren’t you punishing people for accusing Israel of genocide? That was her express, explicit purpose:

There’s the rhetorical trick. Calling for Intifada is not the same as calling for the genocide of the Jews, and it’s just dishonest to say it is. Not all Jews are Israeli. Arguing that a particular group has a moral right to violent revolution against the power over it is not a call for the genocide of a group. The argument about when violent revolution is morally justified is ancient. Whether or not you agree that Israel is tyrannical or the Palestinians are unjustifiably oppressed, you can’t outlaw arguments that they are and pretend you’re anything but an absolute censor. The hearing was full of gripes like that — contentions that the slogan “from the river to the sea” should be outlawed and complaints that colleges had invited speakers with radical pro-Palestinian views. The crystal clear message was we think protecting Jews from antisemitism requires suppressing a broad range of speech from Them.

And many people bought it, and now it’s being used as part of the culture war against higher education, and too many of you fucking fell for it.

You might say I am being more than usually uncharitable in this post. That’s because I think people falling for Stefanik’s gambit have been more than usually gullible. They’ve become useful idiots for evil. They’ve become the dupes of people who will wave the banner of “fight antisemitism” while pushing Great Replacement Theory. They’ve become the patsies of people who transparently want to use Jews as an instrument and excuse to suppress speech they don’t like. They’ve become the creatures of cynical, dishonest politicians who want to treat hard things like they are simple to rile up mobs.

There is absolutely no doubt in my mind that antisemitism is on the rise in America in the wake of October 7th. It’s on the rise on college campuses. Sometimes criticism of Israel or defense of Palestinians is explicitly antisemitic, sometimes it is implicitly antisemitic, and sometimes it incorporates classic antisemitic tropes. Sometimes people of bad faith take advantage of the ambiguity. (I think some people use “from the river to the sea” that way, as a deliberately ambiguous taunt, a big brother’s back-seat ha-ha-I’m-not-touching-you, but with an implicit allusion to genocide.) I don’t blame Jews who feel under siege in America or on campus, even if I sometimes disagree with their interpretation of criticisms of Israel. Feelings are not right or wrong, and in the face of so much overt Jew-hatred, I understand a tendency to interpret ambiguous statements in the worst way possible. I think we should feel compassion and empathy for people who feel that way.

None of that is solved by pretending hard questions are easy. None of that is solved by letting demagogues and hucksters take advantage of the moment to push their agenda. None of that is solved by contributing to what America is becoming — stupider and meaner.

Edited to add: Predictably, Elise Stefanik has discovered that fighting antisemitism will require Congressional investigation of Diversity, Equity, and Inclusion programs on campus. Swell job, dupes everywhere.

I confess! I have been wrong, and have wronged many. I have called false things true and have slandered the upstanding as evil. I have expressed prideful, stubborn resistance to the concept of free speech culture, and been an apologist for the rankest cancellation. I have indulged in snobbish skepticism of the comparative risks that sophomore comp lit majors pose to the very freedoms that better men than I have fought and died to protect.

No more. Now I see the light. How could I not? Great beams of it have shone upon my eyes, cast by the best thinkers of our society. My inflexible dogmatism is no match for them. The insubstantial line I imagined between government force and private criticism has vanished like a mist. Now I see. Criticism is censorship. Is not all censorship speech? “You’re under arrest” is speech. “We the jury find the defendant guilty” is speech. “You’ve been found liable for defamation” is speech. We all agree those things are censorship. So how can brutal speech like “racist” and “antisemite” and “lunatic” and “disconcertingly puffy serial divorcee” and “I think I will chose to advertise elsewhere” not be censorship?

It took better men — titans of America, really — to show me. Elon Musk, billionaire scientific genius and social philosopher and equestrian innovator has explained it. As it was necessary to destroy Bến Tre to save it, it’s necessary to sue journalists for criticizing the way you exercise freedom of speech, to protect your right to utter that speech without anyone reacting negatively. It’s simple, and pure, like a koan. I am indebted, too, to Texas Attorney General Ken Paxton — the stalwart of the speech-defending Federalist Society — who showed me that it’s necessary to use the apparatus of government to protect free speech by criminally investigating people who oppose and suppress free speech by criticizing how someone else uses it. 

Musk and Paxton have converted me; they have immersed me in the baptismal font of free speech culture. I see that my focus has been wrong. I have been preoccupied with petty concerns — is this speech protected by the First Amendment? — and not with the more fundamental and important question: “does this speech make someone else feel uncomfortable about what they just said?”

I see now I was wrong, badly wrong, shamefully wrong, about recent events on Elon Musk’s platform X. I reacted with scorn and contempt and abuse when Elon Musk endorsed the notorious anti-Semitic theory that Jews are importing foreign minorities to undermine the West. I engaged in abuse, not debate. But in a civilized society, that’s not how we proceed. We debate. Until we know all of the facts, how do we know whether or not Jews are pushing hatred of white people and importing hordes of minorities to undermine Western countries? Did these critics, these journalists, these bloggers, these advertisers, show that they cared about truth by saying “interesting point, Elon — which Jews are doing that, and how are they doing it, and are some of the minority hordes worse than others?” The debate would be enriched by the many thoughtful participants in the marketplace of ideas who have signified their eagerness for dialogue by paying $8 per month for a blue check. Instead, the scorn and abuse heaped on Elon Musk threatens to lead to less speech — to fewer people talking about how Jews are ruining America.

Trying to shun or shame Elon Musk for his speech is arrogant. It supposes you know everything and can’t be wrong. You believe that there is a not a cabal of Jews seeking to overthrow the Christian West by importing foreigners with different values. Are you infallible? Are you God? No. You’re capable of being wrong. You don’t know for sure what happens after we die. You don’t know whether string theory is right. You can’t be sure which tax policy will produce the best results. You don’t know if Judy Blume actually died trying to sneak a guy named Ahmed into your garage. So since you can be wrong — since you’ve been wrong before — where do you get off criticizing Elon Musk? Where do you get off, Apple, pulling your advertising dollars, when the iTunes app has always sucked, showing your fallibility?

Does condemning Elon Musk for his speech demonstrate a willingness to live and let live, share our institutions with those who hold differing views, and refuse to let beliefs divide us? It does not. It shows the contrary. It shows an entitled, brutish intolerance, saying “this country isn’t big enough for you, who argue we are a historically evil pernicious force seeking to undermine America from within, and us, who argue we aren’t.” It seeks to shun.

But the core of free speech culture is that we must seek to persuade rather than to shun— to succeed in the marketplace of ideas, which is as efficient and reliable as the economic marketplace that empowered Elon Musk to pay $44 billion for Twitter. You may think that boycotts and other pressure on advertisers are “speech,” just because every court says so and because they’ve traditionally been used by civil rights activists and Gandhi and farm workers and labor unions and stuff. You’ve been deluded. They’re not. When the world’s richest man tells 160 million X followers that Jews are importing non-whites to undermine America, that’s speech; when you tell IBM to stop promoting that by advertisements, that’s coercion. It inevitably harms the marketplace by reducing the number of billionaires willing to enter the debate over the truth of Great Replacement Theory. It’s anti-speech, and what else is the law there for but to protect speech from anti-speech things?

It’s also deeply dangerous. It promotes covert evil. Free speech culture helps us know what ideas are out there, even the worst ones. If billionaires are shamed, shunned, or economically pressured when they articulate historic antisemitic tropes, how will we know which billionaires believe in antisemitic tropes? We can’t all just ask Clarence Thomas; that’s impractical.

Or take Pizzagate. Is it right, or just, that the media and the conformist masses should rebuke Elon Musk simply for expressing receptiveness to a theory that key Democrats are operating a pedophile ring out of the basement of a pizza restaurant? It is not. The way for a healthy society to address such a question is through searching and open debate: Elon Musk, Mike Cernovich, and 4chan user kill@llniqqrs on one side of the proposition and, other the other side, ready to provide convincing evidence to disprove the proposition, any detractors. We should not allow one side of the debate to rule certain topics “off limits” in the marketplace of ideas, whether by ad hominem attacks or by manipulative tactics like asserting that the pizza place does not technically, physically, have a basement. 

I’ve travelled part of the way down this path before. I’ve noted that Americans — including college students — sometimes engage in fatuous and intolerant demands to use official power to silence dissent, and sometimes imagine that they have the right not just to criticize speech but to prevent it from happening. But I have evaluated risks wrong. I have struggled with the pedantic error of legalism — of thinking that it’s somehow worse for a billionaire to act in concert with an Attorney General to use civil and criminal force to punish journalists than it is to tolerate a culture where people can socially sanction a billionaire for saying Jews are using dark people to destroy America. I regret the error.

As I join the free speech warriors who have spoken out bravely against cancel culture — Elon Musk, Donald Trump, Ron DeSantis — I am reminded of the most fundamental precept of free speech culture: we must always presume that everyone is arguing in good faith, and that everyone wants a fair debate. We must treat each argument with seriousness and dignity, no matter who speaks it, or how. We cannot be confined by our prejudgments. As free speech advocate Kanye West put it, “How I’m antisemitic? I just fucked a Jewish bitch.” That is the only path to the society we deserve.

I was wrong. But it’s all right, everything is all right, my struggle is finished. I have won the victory over myself. I love free speech culture.

Elon Musk wants you to know that big advertisers hate free speech and want to suppress yours.

Now, surely part of that is a pitch — Musk wants you to pay for Twitter Premium (sorry, X premium) so you don’t have to see ads while you consume X’s content. But there’s a big dollop of sincerity too. Elon Musk genuinely feels that advertisers are a threat to free speech. Why? Because many advertisers fled X after Musk eagerly endorsed a bigot’s articulation of anti-Semitic theories, including that Jews promote hatred of whites and that Jews are importing “hordes of minorities.” Unsurprisingly, many companies aren’t cool with that. That’s a mix of corporate leadership thinking that such bigotry is bad business and thinking that it’s immoral.

Private companies have a First Amendment right to make such a decision. They have the right to express their values — and choose their marketing strategy — by deciding what kind of media content to promote. They have freedom of association to refrain from advertising on platforms that repulse their customers. Those rights are held both by the corporate advertisers and by the individuals making decisions for them. Elon Musk’s sullen yawp amounts to a claim that he has a right for companies to sponsor his speech, no matter what he says. That’s nonsense, both legally and philosophically.

It doesn’t stop there. Musk is also a fan of the theory that when he speaks, your criticism of him violates his rights. His latest articulation of this theory came after Media Matters published an article claiming that X is running ads for prominent companies next to bigoted content on X. Musk responded with an extravagant, mostly incoherent threat to file a “thermonuclear” lawsuit against Media Matters and its board and donors “to protect free speech,” whose criticism “seeks to undermine freedom of expression on our platform.”

Last Friday night Musk announced that X would sue Media Matters “the split second court opens on Monday.” I’m confident that Musk’s obliging attorney, Alex Spiro, knows that complaints in both San Francisco County Superior Court and the United States District Court for the Northern District of California may be electronically filed 24/7 these days. In fact I’m confident he has e-filing accounts for both courts. It may be Mr. Spiro didn’t see fit to tell that to Elon Musk Friday night. One sympathizes. Mr. Spire’s firm Quinn Emmanuel is as crowded with former federal prosecutors as a judicial convention, and carefully cultivates its reputation for being almost as good as it thinks it is. They’re excellent trial lawyers; just look at their advertisement saying so on the concourse at Burbank Airport.

Some might suggest that suing journalists to defend free speech sounds Orwellian and even unhinged. That’s because you haven’t considered that free speech also requires that journalists be prosecuted for fraud:

Just as the tree of liberty must occasionally be refreshed with the blood of patriots and tyrants, freedom of speech must occasionally be protected by an unemployed ghoul and a personality disordered Boer persuading a bland FedSoc apparatchik to pester journalists for questioning billionaires.

It would be easy to blame this contemptible nonsense on Elon Musk being socially inept, proudly ignorant, and grotesquely petulant. But when it comes to thinking that the right to free speech includes the right to silence others, Elon learned it by watching us, okay? He learned it by watching us.

“Your criticism violates my right to free speech” is a fatuous but common American sentiment. It has been for some time. We’ve long heard it from athletes, like John Rocker complaining of a “defective reality” in which free speech is a myth because we’ve lost the ability “to speak freely without fear of chastisement.” We’ve long heard it from entertainers, like Clint Eastwood complaining that he should be able to tell ethnic jokes without fearing he’ll be called “a racist,” or Kirk Cameron saying that he should be able to speak out condemning homosexuality without being “slandered” or “accused of hate speech.” Note all of those stories are more than a decade old; I raise them to demonstrate that this has been going on a while, and I’ve been complaining about it for a while.

“Criticism is censorship” has been a standard trope in politics and punditry even longer, and has persisted there even more consistently. Calling Trump a racist, we are frequently told, violates his free speech rights:

Pundits, academics, and politicians are all guilty of this. College presidents assert that students protesting studio executives are infringing on free speech. Senator Ron Johnson claims that criticizing his stance on Black Lives Matter amounts to “silencing him,” and Justice Samuel Alito suggests that criticizing anti-gay political and legal positions impairs free speech. The trope is so embedded in the culture that even people with admirable records of free speech advocacy convince themselves that people protesting them are against free speech as opposed to disagreeing with and criticizing their speech.

Regrettably, the notion that criticism is censorship has been encouraged by the dialogue about “cancel culture.” The New York Times Editorial Board proclaims Americans are losing “ right to speak their minds and voice their opinions in public without fear of being shamed or shunned.” An earnest but painfully vague letter from literary luminaries in Harper’s conflates “restriction of debate, whether by a repressive government or an intolerant society.” People who are sincerely concerned about free expression, people I admire and respect, argue that we must avoid “manipulative” and “ad hominem” criticism to protect speech — without really engaging the problem that both the critic and the criticized are people with free speech rights and interests.

I’ve argued that if “cancel culture” dialogue is to actually promote free speech — as opposed to just picking sides and choosing whose speech we care about, who should feel comfortable speaking — it needs to acknowledge the speech interests of everyone involved and be more specific, even to the point of pedantry. That’s not happening. If anything, the dialogue is getting muddier. Witness the disastrous discussions about campus speech about the war in Israel, characterized by commentators claiming back and forth that their rights are infringed by other people’s speech about war and death, that criticism of their speech about the war violates their rights.

I’m not optimistic, frankly. Elon Musk’s gripe that advertisers are attacking free speech, and that journalists are infringing speech by criticizing it, has become perfectly plausible to many Americans. In my view, too many critics of “cancel culture” are recklessly promoting not the speech of the powerless, but the censorious resentment of the powerful.

After months of anticipation, Donald Trump and 18 people who thought it was a good idea to trust Donald Trump have been indicted by a grand jury in Fulton County, Georgia. Fulton County District Attorney Fani Willis — notoriously fearless, particularly of cameras — is prosecuting them on a 41-count trek through Georgia criminal law. But one law leads every story and falls from every lip — RICO. Yes, Ms. Willis has charged the defendants with conspiracy to violate Georgia's Racketeer Influenced and Corrupt Organizations law, commonly known as RICO, modeled on the infamous federal statute.

Georgia RICO’s statute contains a core prohibition:

The indictment charges the defendants with violation of the conspiracy component of the statute:

After the preliminary charging language, the indictment launches into a 52-page, 161-act list of acts committed by the defendants:

This has led to much comment and confusion. Some of it is contrived and in bad faith, some of it reflects honest concern or confusion. The thrust of it is this: wait, some of the acts on that list aren’t crimes, are they? And aren’t some of them speech protected by the First Amendment? Here’s a not-good-faith example:

Political theater and propaganda aside, there are some reasonable questions here: how can a tweet (like act 101) or statements at a press conference (Act 3) be a crime?

The answer is that they’re not crimes — or, at least, that’s not what the indictment claims. They’re overt acts.

Overt Acts: Originally A Bulwark Against Tyranny, Now Mostly For Exposition

So what is an overt act?

A criminal conspiracy is an agreement by two or more people to do an illegal thing. An overt act is some step, however small, intended to promote that illegal goal. Many conspiracy laws require — like the Georgia RICO statute here — that the government prove that at least one member of the conspiracy committed one overt act. There’s no need to prove multiple overt acts, and no need to prove that each defendant committed one.

Why are overt acts a thing? The requirement is a reaction to the tyrannical experiences with laws that criminalized mere thought or discussion. For instance, the Treason Act of 1351 made it a crime to “compass or imagine the death of our Lord the King,” something that could be and was interpreted to cover mere discussions or idle talk without action. The Treason Act of 1351 gradually became understood to require proof of some overt act beyond mere talk, though there are disputes about whether that was mere tradition or a legal requirement, and about whether it reflected sensibilities about the adequacy of evidence of intent or some sort of minimum action requirement to qualify as a crime.

At any rate, the concept that conspiracy should require an overt act was well-developed at the time of the Constitution, as reflected in the Constitutions’ carefully narrow definition of treason:

All of this reflected several traditions and sensibilities. The first was recent memory of how accusations of treason and conspiracy had roiled England and led to violence and tyranny. Another — given the notoriously hard-drinking life of the Founders — is that what a bunch of idiots agree to do in their cups, and what they are interested into putting into effect in the morning, are two very different things. As one scholarly work puts it:

So you can think of an overt act as a sort of evidentiary requirement, and overt acts as evidence of a criminal conspiracy, not as the crime themselves. These days the custom is for prosecutors to use the overt act requirement to tell the story of the case at length in the indictment. Prosecutors also use it as a gambit to make it more likely that evidence will be admitted at trial (it’s a strong case to admit evidence of something if you’ve called it out as an overt act), and often try to connect every defendant to an overt act, even though that’s not a requirement, just so the defendant can’t say at trial “look, I didn’t even commit an overt act.”

Overt Acts Are Evidence Of The Criminal Conspiracy, Not The Crime Themselves

Once you view overt acts as a sort of evidence, it’s easier to see why they don’t have to be crimes themselves, and why they can even be acts that would otherwise be not only legal but protected speech.

The First Amendment protects my right to indulge in nationalistic and racist rants against, say, the Belgians. If my friends and I engage in loud calls to kill all the Belgians, and walk up and down my Belgian neighbor’s house observing the entrances and exits, and if I ask my priest whether it is morally and scripturally appropriate to kill the Belgians, all of those things are legal and protected by the First Amendment. But if my Belgian neighbor winds up murdered in his bed, those things are all evidence that I did it and of my intent when I did it, and also potentially overt acts in a conspiracy with my anti-Belgian friends to do it.

American law is quite clear on this distinction. “The overt act, without proof of which a charge of conspiracy cannot be submitted to the jury, may be that of only a single one of the conspirators, and need not be itself a crime.” (Braverman v. United States, 317 U.S. 49 (1942). Georgia law is the same. 

Somewhat less clear is the concept that an overt act — since it is only evidence of the criminal conspiracy, not the crime itself — may be speech protected by the First Amendment. Back 1957 in Justices Black and Douglas, two of the most important thinkers on the First Amendment, had a rip-snorting debate on this concept in the dissent to one of the anti-Communist cases, arguing rather persuasively that at the least the government should have to prove at least one overt act not protected by the First Amendment in order to convict someone of conspiracy. But the Supreme Court has not adopted that rule, and the current law seems to be this:

This has continued to be the rule, notably during the Great War On Terror:

Is this right? Were Black and Douglas right in 1957? How, exactly, does this mesh with the complex and ill-defined First Amendment exception for speech inherent to criminal conduct? Hell if I know. But that, for now, is the law.

But Wait, There’s Also Racketeering Acts

So: to the extent the Georgia RICO indictment lists mundane and non-criminal things as overt acts, or even protected speech, that’s all perfectly legal, for better or worse. But Fani Willis has chosen to draft the indictment in a way that causes further complication and confusion by putting two different things in the same list of acts: overt acts in support of the conspiracy (which don’t have to be crimes) and racketeering acts (which do have to be crimes).

The Georgia RICO act makes it illegal to engage in a “pattern of racketeering activity.” That’s defined elsewhere as committing two or more crimes from a list of specified crimes. So, that list in the indictment reflects things that are just overt acts, and things that are identified as specific crimes constituting acts of racketeering and that are also overt acts:

Call me an insufferable pedant or, worse, a former federal prosecutor, but for clarity I would have separated the things that the government says are racketeering acts from the things just being identified as overt acts, particularly in a case of such historical interest and in an area with such potential for confusion. The overt acts are evidence of the conspiracy; the criminal acts are predicate crimes for the RICO enterprise. They’re different and it would be clearer if they were more clearly listed differently.

Leaning Into The Controversy, Or Indifferent To It?

So: that’s how, in charging a conspiracy to violate Georgia’s RICO statute, you wind up with a list consisting of both specific alleged criminal acts and mundane acts, including acts otherwise protected by the First Amendment.

In my view, the Georgia RICO indictment is gratuitous, self-indulgent, and careless of the appearance of legitimacy. Yes, under current law protected speech acts can be overt acts. But that doesn’t mean a prosecutor should gratuitously include such acts. There are so many arguable crimes that serve as both overt acts and racketeering acts, and so many communications that expressly incorporate fraud and deceit, that it would have been easy to draft an indictment to leave out tweets and speeches and the like. Putting them in seems like leaning into the pro-Trump talking points and accepting accusations of overt political bias.

The indictment also suffers from a lack of framing language — language that puts in context the difference between lawful and unlawful political acts. Jack Smith did a good job of this in the D.C. indictment against Trump, which similarly set out to tell a complex story:

That sort of table-setting costs nothing and contributes tremendously to promoting public understanding of the distinction between protected political speech and unlawful fraud. Similarly, Smith went out of his way to identify overt acts that were clearly fraudulent — that had the wrongdoing evident and built-in.

The different styles reflect different prosecutorial cultures. Federal prosecutors are, on average, much more cautious and risk-averse than district attorneys. Federal judges are somewhat (not nearly enough) more willing to force federal prosecutors to follow rules and call them out on bullshit. By contrast, state judges — who are often elected and used to seeing colleagues who are “soft on crime” lose their seats — tend to let district attorneys get away with much more. This can promote a defiant attitudes, with local prosecutors believing that any barrier to doing whatever they want to do is a grave illegitimate injustice.

Before Ms. Willis took office, an appellate court rebuked the Fulton County District Attorney’s Office for making a “bizarre” argument defending a conviction, and they leaned into it as a point of pride, making “Bizarre for Justice” t-shirts.

Fani Willis is a darling of people who hate Trump right now. I think Trump and his team committed crimes, and that the indictment captures some of them. But — as has been common for the last five years — Trumpian cases tend to flip the script and make people who would be skeptical of law enforcement into credulous law enforcement fans, and vice-versa. That leads us to ignore cultural problems with prosecutors. Some of the drafting of this indictment strikes me as gratuitous, unsound, unnecessarily invoking First Amendment and political concerns, and kind of sloppy. But I don’t actually think it’s because Fani Willis is an anti-Trump zealot — at least not primarily. I think its because she’s a classic DA — kind of arrogant, kind of entitled, dismissive of arguments and concerns about how her office wields power, confident (usually justifiably) that judges won’t hold her to account, and tending to view constitutional and statutory rights as obstacles rather than as the accepted rules.

In a perfect world, fans of Fani Willis would think about how this approach works when applied to people who aren’t famous or rich or conservative. For instance, how many people can defend themselves if Fani Willis decides to add them to a 28-count indictment for RICO where jury selection alone has taken eight months? Can she - can any DA — be trusted to wield the RICO statute fairly, or will they inevitably resort to using it to strongarm court reporters for using the wrong font to make more money? In that same perfect world, Trump supporters (or anti-anti-Trump folks) would have an epiphany — holy shit, if they can do this to Trump and his crew, what are they doing to regular folks? Is my trust in police and prosecutors misplaced?

Isn’t it pretty to think so.