Happy Fourth of July!


Today I am thankful that I can say what I want, provide for my family, and succeed by my own hand in the greatest nation in the history of this Earth.

…and if you find this image triggering, then this holiday is not meant for you.

My tech toolbox will include less of the Google hegemony

“Then they came for me—and there was no one left to speak for me.”

This is actually a shorter version of a post I tried to put up earlier today. The gist is that I am uncomfortable with a few tech giants like Google deciding what communications can be consumed when the "soapbox” is effectively a virtual soapbox now and anything you want heard must go through the Interwebs. The First Amendment isn’t directly implicated, but a few companies now have almost total control over the digital public square, and they are putting their thumbs heavily on the scale.

I read an article yesterday that commented on internal Google emails that referred to Ben Shapiro and Jordan Peterson, and Dennis Prager as “nazis.” I find that both depressing and disgusting. Depressing, as it shows that the current members of society are profoundly ignorant about the Holocaust. Disgusting, since it is simply a horrible slander.

I have heard all three of them speak more than once (Ben Shapiro and Dennis Prager mostly on the radio and Jordan Peterson in interviews). While I don’t know what lies deep in their hearts, I’ve heard nothing remotely close to justifying that abusive label by Google employees. Moreover, nothing they have to say is sufficiently awful to support an effort by Google’s employees to craft ways to exclude their content from recommendation algorithms. According to the story I read, those three individuals all had relatives that were killed during the Holocaust. Now, I happen to think Ben Shapiro, in particular, is frequently an obnoxious and arrogant punk. But at least he refuses to back down from the heckler’s veto mob, so credit for having brass ones I suppose. And not liking an opinion does not make one a “nazi.” That should go without saying. Apparently, it doesn’t.

The bottom line is that, after seeing tech companies like Google and Twitter and Facebook de-platform people while hiding behind their Section 230 immunity, I’ve decided that Google doesn’t get to look at my every purchase, newsletter and interest to make money by targeting ads at me.

I have started to view these lockstep platform bans as cartel behavior. Certain practices in the restraint of trade are categorized as being automatically unlawful. Such practices include group boycotts of competitors, customers or distributors. Implicit cartel agreements to refuse to deal with a class of customers might be per se unlawful behavior in restraint of trade.

If it isn't per se unlawful, the fallback analysis is the "Rule of Reason." I don't specialize in antitrust (at all), but this seems like a theory that should be examined closely by organizations with some resources that are being de-platformed and de-monetized.

Martin Niemöller offered the right warning; if you stay quiet for too long, eventually nobody will be left to speak out when they come for you.

Open Friday Post

It’s Friday again, so here is another chance to put up your very first ever comment.

Here’s a topic (that troubles me as a blogger): Do you think allowing the very large social media companies to ban swaths of commentary based on viewpoint will be beneficial in the long run? I’m not talking about the common error non-attorney commentators make of confusing this with First Amendment issues. I mean just what I asked — can you see any way that this doesn’t slide into severe, and constantly changing, viewpoint suppression by actual or quasi-monopolies?

Here’s an example: Pinterest Blacklists PJ Media, Other Conservative Sites and This Is Just the Tip of the Censorship Iceberg. PJ Media, if you don’t know it, is clearly a conservative political commentary site. But it’s certainly not radical by any reasonable measure. Among other things, it hosts Tennessee College of Law Professor Glenn Reynolds’ blog, Instapundit, which is widely read and not a hotbed of crazy, whether you agree with the politics there or not. Glenn is cool enough to have a regular column in U.S.A. Today, so I think it is safe to say that blacklisting a site like PJ Media is well down the slippery slope to the place where that greased pig is picking up steam. It’s all fun and games until your speech is the suppressed and blacklisted speech.

Can’t wait until I’m blacklisted. Bright side: maybe I already have been!

Enjoy your weekend.

USC Law turns pathetic, moves to protect snowflakes and endorse heckler's vetoes

I attended USC Law School. When I was there, I don’t recall a lot of compassion for snowflakes troubled by school speakers. That was then. Now, USC takes a bold and decisive step to self-neuter, allowing graduation speaker Jeh Johnson, Former Homeland Security Secretary, to withdraw as a graduation speaker…because some people complained about him. His comment in withdrawing was certainly diplomatic, reportedly saying that “graduations should be free of tension and political controversy.” Noble sentiment. But what it actually does is permit a heckler’s veto over any idea more milquetoast than “You all get a diploma. Yay!”

To the students crying about a former Homeland Security Secretary that, shocker, made some mild efforts to enforce border security and control immigration, drop out now. To the faculty complaining about his work — in an administration not known for its overwhelmingly harsh stance on immigration and border control — find another career, as you are unfit to craft the minds of young people into solid attorneys.

To the Dean of USC Law, grow a pair. You should have told the faculty to stuff it and told the students they were free to be elsewhere on graduation day.

BREAKING NEWS: Troester v. Starbucks opinion will be released tomorrow

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Hot off the notification presses, the California Supreme Court will release its opinion in Troester v. Starbucks tomorrow, at about 10:00 a.m.

Wagers on whether California will adopt the Lindow rule for de minimis time?  Comments?

Eastern District of California, reeling under its load, requests additional judgeships


The United States District Court for the Eastern District of California carries one of the heaviest caseload in the country.  According to the District, the population served has grown 220% in the last four decades.  But no new judgeships have been created in the Eastern District in that time.  Now, the Eastern District is asking for help to address what it warns will be the "catastrophic consequences" of inaction.  Read the letter from the Judges of the Eastern District of California to members of the Senate and House of Representatives here.

At both the state and federal levels in California we demand too much from our courts and provide too little support.  If you happen to have the ear of a member of the Congress or Senate, put in a good word for the Eastern District.  I restate my long-standing position that inadequate support and funding of the judicial branch is an unconstitutional infringement on a co-equal branch of government.

By the way, however bad you imagine the situation is in the Districts with the worst loads, it's worse.  The Eastern District has 1,229 pending cases per judge as of March 31, 2018.  See, Federal Court Management Statistics.  (For a real horror show, imagine being one of the 5 Judges in Indiana - Southern, with over 1,400 cases each, and it is only the third worst in the country.)  And the Eastern District is about to be hit with a one-two punch of judicial retirements and a marked increase in federal prosecutions now that the U.S. Attorney's office has increased staff.

Note:  the statistics cited in the Eastern District's letter vary slightly from the officially reported data, but the difference seems insignificant.

Troester v. Starbucks set for oral argument before California Supreme Court

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Troester v. Starbucks Corporation has been set for oral argument before the California Supreme Court on Tuesday, May 1, 2018, at 9:00 a.m., in San Francisco.

LAW-LESS FRIDAY: Conflicting signals for the health of the legal job market

Well, it isn't a post that is devoid of law as a subject, but no appellate decisions to digest here at any rate.

Two stories caught my eye over at abovethelaw.com.  In the first, it is reported that young associate hiring is set to increase at law firm. Yay! But, in the second, a hint that large corporation general counsel are looking at refusing to pay for time billed by young associates.  That would impact the leverage model that large firms use.  I suppose one is a longer term trend while the hiring is immediate, but it isn't outside the realm of possibility that the net impact of service outsourcing and automation, coupled with events like the proposed refusal to pay for young associates, might result in the substantial restructuring of the legal market in the next couple of decades.

Occidental College, my alma mater, vexes me greatly

Hey, so I went to Occidental College.  Just like Mr. Obama (Emily Post says the title of "President" ends with the end of the term of office - yes, I checked).  Two differences stand out between us, I think.  I graduated.  And he's more famous.  Oh, plus I never inhaled.

So I mention Occidental College because I received correspondence from my alma mater today that struck me immediately as insipid and deeply troubling.  Here's what the e-mail said:

To the Occidental Community,

n Charlottesville last weekend, we saw the ugly face of racism and hate, naked and unadorned. White supremacy in all of its manifestations is an assault on the fundamental values of Occidental, the community of scholars of which we are a part, and the kind of country we want to be. Love of knowledge, intellectual rigor and mutual respect are essential in creating the kind of just, inclusive and loving community we all want to be a part of. As we welcome the Class of 2021 to campus next week, and throughout the coming months, let’s embrace these values as we continue our effort to create such a community here at Oxy.


President Veitch

A few questions came to mind immediately.  The first thing I asked myself was whether the current crop of incoming students needs to be told that white supremacists are bad.  It never came up when I was there, but I'm really confident that had I conducted a poll, 100% of my classmates would have, without hesitation, said, "Bad."  (A few might have first asked if it was some sort of trick.)  This would have been the easiest quiz, with the highest average score in the history of Occidental.

But, today, not so much.  The school has to tell them it's bad.  Here's my first tip to the admissions committee at Occidental:  if you think you need to tell incoming freshmen this, raise your standards. You are diluting the value of my degree.  Maybe there's a class action there.  Kidding. Probably.  No, kidding for sure.

The second thing I asked myself was why the President of Occidental didn't think to make any mention of the fact that Occidental also abhors the use of violence to silence even reprehensible hate speech.  I've heard quite a few political commentators in recent months suggesting that the First Amendment doesn't protect "hate speech."  Go check with a colleague that practices First Amendment law and see if they concur.  Surely it must be the case that as much as hateful viewpoints like white supremacy, misogyny, or other bigoted beliefs are contrary to fundamental values of Occidental, so, too, are any attempts to forcibly silence even unpleasant ideas.  However, as I am sure that President Veitch did not issue this letter without substantial thought and input, I have to wonder whether the omission of any warning to new students that violent suppression of speech will not be tolerated was intentional.

I can't say it isn't tempting to be sympathetic, for a moment, when a nutter white supremacist is receiving a beat down with a club.  But I would caution everyone to remember Neimoller's words:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

You can't send a message that criticizes what is, fortunately, a viewpoint considered by a vast majority of Americans as reprehensible while tacitly condoning vigilantism to silence that idea (if you actually doubt that, consider that a little more than 100 years ago, the KKK had membership in the millions, but a century later the membership was believed to be under 10,000). Violent repression of speech won't stop at the white supremacists.  It's already moved past that. Recall riots at Berkley, the birthplace of contrary viewpoint expression, to silence a speaker.  If thuggish retaliation against speech is allowed to build up a head of steam, it will be hard to stop.

Occidental's alumni should be very disappointed by the absence of a strong message renouncing violence to limit speech and encouraging civil dialog between members of the Occidental community at all times (with at least an implied reminder that anyone acting contrary to that principle will need to find themselves a new college to attend in short order).

I would note, in closing, that Occidental's website does a far better job of recognizing that dialog can often be challenging, but open discussion and critical thinking are central to the educational mission.  Why doesn't the President of Occidental know that?