My Style - Reclaim My Identity : June 2018

Thursday, June 28, 2018

All The President's Lawyers: Manafort, Thinking It Can't Get Worse, Is Wrong

Wednesday, June 20, 2018

Randazza: Trump, Twitter, The NFL, and Everything

By Marc J. Randazza

The NFL says that players must stand (or remain in the locker room) during the National Anthem. No more "taking a knee." In the same week, Trump lost a case that says that the "interactive space" in his tweets is a "public forum" and thus he can't block people who criticize him. And, perhaps I did too much LSD in the 80s and 90s, but I see the two as intertwined. The real problem we have is that freedom of expression is the crown jewel in the American enlightenment, but that jewel is tarnished by the fact that our public square is increasingly privately owned. Privatization of the "public square" threatens to render the First Amendment meaningless.

We gotta fix that – or the First Amendment will only really exist in a few tiny spaces — "free speech zones" surrounded (literally or figuratively) by fences to keep the nasty stuff inside.

The NFL

The whole "take a knee" thing needs little explanation. Starting in 2016, some NFL players protested racial inequality in policing by taking a knee during the national anthem before games. The protests began with San Francisco 49ers quarterback Colin Kaepernick who initially sat during the anthem. He then had a talk with Nate Boyer, a veteran and former NFL player, who convinced him that sitting during the Anthem was disrespectful. However, the two agreed that taking a knee was a more reverent way to get the same message across.

Personally, I find the whole thing rather ineffective. Take a knee, don't take a knee. Nobody ever changed their mind about how cops behave or racism or anything over an NFL player taking a knee. But that isn't the test for whether the speech has value.

I may find the protest foolish, but I respect the hell out of Kaepernick for doing it. I support any player who wants to do it. If there's one thing that is supposed to differentiate the USA from the rest of the world, it is our purple-mountains-star-spangled commitment to freedom of expression. The second most patriotic thing we have is the National Football League.

Don't start with me with baseball, a boring ass adaptation of a crumpet-eating fairy-assed game from England that is primarily played by Dominicans. Basketball? Yeah, we invented it, but at its core it is a stupid game. Sure, we're the goddamn best at it, and unless we're playing it against the Croatians, we're going to win 101 times out of 100. The Canadians may have a "football league," but it would more appropriately be called the NFL's recycling bin. No other country even tries to compete with us in football. It is America's game. So it goddamn ought to reflect American values, as best it can.

Allowing protest and dissent ought to be ingrained at a chromosomal level if you think that you're amber-waves-of-grain entitled to wave the red, white, and blue.

So fuck the NFL for this policy.

And let me slap you across the face right now if you're starting with a comment like "well actually the NFL is a private employer, so it can have any policy it wants." This morning, I downed an entire mug of espresso, and 10 minutes later I took a huge shit that knows more about Constitutional law than you and your entire family ever will.

This isn't about what the NFL can do, it is about what it ought to do.

And dammit, the NFL ought to let its players take a fucking knee if they want to.

I will go get that shit out of the toilet and throw it at you, as if I were a caged chimp, if you start with the "oh, the NFL policy is just like Nazi Germany!" If that's your view, then correct it in the next 3 minutes, or you get sterilized when I am dictator. No, no, no, no, you fucking imbecile. Sure, Trump has expressed his view that you should "get out of America" if you don't stand for the anthem. That is a dumb-ass-moron position. But, it is hardly the government extending its hand down and pressing on the scale.

Do you think NFL players should shut up and do their job? Ok, fair enough. But, what makes you think that an NFL player can't be a voice of moral leadership? Remember Chris Kluwe? Back before it was cool to say you were in favor of gay rights, Kluwe had the balls to stand up and voice his support (I respected him for that). Did it matter? I think it did. Kluwe doesn't say much now, except for stalking articles about me, whining about who my clients are. Whatever, Kluwe, start shit with me and I'll just have my friend, Mercedes Carrera, intellectually kick your ass again.

But back to the subject at hand: If you think that the players ought to shut up and do their jobs and keep politics out of football, then lets try that.

No, lets really try that.

In 2015, Arizona Sens. Jeff Flake (R) and John McCain (R) revealed in a joint oversight report that nearly $5.4 million in taxpayer dollars had been paid out to 14 NFL teams between 2011 and 2014 to honor service members and put on elaborate, “patriotic salutes” to the military. Overall, they reported, “these displays of paid patriotism [were] included within the $6.8 million that the Department of Defense (DOD) [had] spent on sports marketing contracts since fiscal year 2012.” (source) (other source) (other source)

The NFL took millions of dollars in propaganda money from the military. So the WHOLE FUCKING THING is one big ball of political propaganda. At least the kneelers are honest and open about it. You fucking rubes who stand up during the anthem don't even remember that it wasn't even a thing until 2009. And, can someone remind me who was president during 2011 and 2014 when we were shoveling barrels full of taxpayer dollars into the pockets of billionaires to make sure that the uneducated slobs in the stands were sufficiently reminded of the message that "America" means bombing the living shit out of people thousands of miles away?

So lets put a pin in that… millions of taxpayer dollars flowing toward the NFL for propaganda purposes. And lets add in the billions that the NFL and its teams get in taxpayer subsidies.

Twitter (and all of Silicon Valley) – the New Censorship

After the 2016 election, the Left freaked the fuck out. Quite honestly, none of us thought Trump could be elected. And the morning after, the Trump derangement syndrome set in. Nowhere did it set in more heavily than in Silicon Valley. So, the platforms immediately got to work making sure that they did their part to ensure that we would have a "blue wave" washing away our sins. They got to work banning anyone perceived as "alt-right." It started with literal Nazis, and then it continued to those who might associate with them, to others who simply harbored conservative views. All of this was under the opaque guise of "safety."

It was all bullshit, and we all knew it. If you didn't know it, you were willfully blind.

I don't have a lot of love for Richard Spencer's speech. I don't even like Andrew Anglin's speech, and I'm his goddamn lawyer. I do like Milo Yiannopolous, but that's beside the point. The point is that they started with speakers that would be easy to ban — speakers who lots of people disliked. And they proved that there wasn't a goddamn thing we could do about it.

And very few people saw this as the alarming move that it was. But, as Twitter, Facebook, GoDaddy, PayPal, Stripe, etc. all got into line — shaving off a large percentage of right wing speech, the left cheered. Yay! Maybe we can win next time! Yay Resistance! Go fuck yourselves — you're not a member of any "resistance" unless you just might get captured or killed — and you're certainly not part of any "Resistance" when you control most of the new public square, and you use that virtually monopolistic power to shut down debate.

The fact is, Twitter, Facebook, and Google are the new public squares, and that gives them incredible power. And they are using that power exactly the way a power-drunk dictator would use it — to try and suppress speech they don't like. If you're on the Right, you bemoan. If you are on the Left, you're probably cheering it (just the opposite of the tribal alignment on the NFL issue). But, if you're on the Left and you're cheering it, you're also probably the kind of person who would let a rabid chimp out of its cage if you thought it would tear off your enemy's face — not realizing that it will also turn on you and rip your face off, and your balls, and then probably sodomize you as it ate the back of your head.

Because one day, the CEO of Facebook, Twitter, Amazon, or Google is going to want to run for president. And then, you fucking idiots, they'll have nothing stopping them from suppressing any and all speech that supports their opponents. You'll have the equivalent of Silvio Berlusconi buying power by owning all the private networks.

A few of us see this danger. That's why I volunteered to work on a case for Jared Taylor, suing Twitter for banning him. Twitter filed an Anti-SLAPP motion, and we just got our opposition in. (Complaint, Memo ISO Anti-SLAPP, Opposition to Anti-SLAPP). The case went pretty well so far – if you want to read the transcript, here it is. At least one judge found that the suit has some merit — at least enough to move forward.

Naturally, many have criticized the case — especially since there are many who find Section 230 to be something worthy of religious devotion.

Section 230, for the uninitiated, is a law that was passed during the Clinton administration, which gives Silicon Valley immunity from virtually all lawsuits based on content provided by others. This is why you can post something obviously defamatory on Twitter, and even if Twitter knows it is defamatory and knows it is harming you, it can, and will, say "Fuck you, See 47 U.S.C. § 230."

Now when the Silicon Valley giants said "Fuck you, Section 230" in the past, it at least had some semblance of philosophical honesty in it. Until recently, Silicon Valley loved freedom of speech. The whole promise of the Internet was that we were going to see an explosion of diversity of thought. For a brief period, we did. Some of it was awesome — and some of it was not. We got more porn, more humor, more political engagement, Mr. Spock Ate My Balls, and we also got racist websites, sexist websites, and every other kind of scoundrel online that we could think of. But, we all expected that the marketplace of ideas would flourish. I would like to say it did.

Then came 2016.

In the lead up to the election and in the aftermath of it, the Left lost its fucking mind. Campuses went into overdrive banning speech they didn't like, and Silicon Valley gleefully followed suit. And we on the Left, who once hated corporations and hated the control they might have had over the market, cheered. (I didn't, but as a Leftist myself, I have to accept guilt for my tribe's sins).

Might Trump's Thin Skin Save Us?

Trump is the first "Twitter President." It makes me want to bash my head into the wall to type those words, but here we are.

He got sued for blocking critics on Twitter, and much to my surprise, a judge in the Southern District of New York held that Twitter is a "public forum" — well, at least in part. You see, she couldn't bear to actually rule that Twitter is a new public forum. I think it is. My view is consistent with the old Pruneyard decision. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). In that case, since the California constitution has an affirmative right to free speech, it could be interpreted as requiring private property owners to allow petitioning on their property, if it is a public space. This decision is not without its detractors. If you're a private property rights guy, you might hate this decision — because it does force a private property owner to allow speech it doesn't like on its private property. But, I think that if free speech means anything, it can't simply be the victim of progress moving the town square to an enclosed shopping mall, or even online.

The judge in the Trump case held:

we consider whether forum doctrine can be appropriately applied to several aspects of the @realDonaldTrump account rather than the account as a whole: the content of the tweets sent, the timeline comprised of those tweets, the comment threads initiated by each of those tweets, and the “interactive space” associated with each tweet in which other users may directly interact with the content of the tweets by, for example, replying to, retweeting, or liking the tweet. (Op. @ 41)

She had to rule against Trump. So, she created a new "public forum" limited to the comment threads in public officials' twitter feeds.

I think her decision is open to attack. I could see a pretty clean "Twitter isn't a public forum" decision. I could also see "Twitter is a public forum." But, this half-way decision is bullshit. Lets look at it this way: Twitter bans you because you make fun of Leslie Jones' face. Now you're banned also from the "public forum" of your President's tweets. If we were to analogize it, lets say there was a public park, designated for free speech activities. We privatize the area you have to go through to get into the park. The company that owns that area you have to go through just lets anyone go in and out. But, one day they decide that they just don't want to let anyone in who has ever been a proponent of legalizing marijuana, or who claims that there is a "wage gap," or who supports "Black Lives Matter."

Hey, it is a private property owner. Tough shit if they won't let you on their property. The free speech zone is there for you if you can maybe teleport into it.

So, the Trump decision is, perhaps, the crack in the wall. But, that leaves us with the NFL, and it also leaves us with the possibility that the 2d Circuit throws out this intellectually dishonest decision.

We have the power to break this

So what the fuck do we do?

The First Amendment is a wonderful thing, but what happens if the government just decides to give away all its public spaces to corporations and individuals who support its views? Don't laugh… in San Diego, the government let a huge crucifix go up on public land in a clear establishment clause violation. Federal court ruled against the government, so the government "sold" the little circle of land that the cross was on to a private group. Private group then kept the cross up on its land. That was deemed constitutional by a three member panel of the 9th Circuit.

So how do we fix it?

How about the First Amendment restoration act?

"No private entity may receive any governmental funds nor receive any statutory immunity unless it agrees to be bound by the First Amendment as if it were a government actor."

Why not?

Imagine if the NFL had to choose between receiving taxpayer funds or allowing its players to exercise their First Amendment rights. Imagine if Facebook had to choose between Section 230 immunity and incorporating the First Amendment into its terms and conditions.

Imagine if the First Amendment got the shot in the arm that it desperately needs.

Are there problems to be worked out here? You bet. How would I apply this to the comments section here, at Popehat? Maybe that's a bit too small of an actor to be subject to this Act? I've run this by some smart people — one suggested having it only apply to any companies that might be publicly traded or federally or state regulated. That way we would have just the giants, banks, etc. That might work.

What is clear is that what we have now is a road toward disaster. Because these private constraints on public speech are getting worse, more opaque, and more restrictive — and if we don't do something soon, we won't ever be able to get a handle on it.

And then you'll be left with a First Amendment that only applies in the gazebo in your public park, on alternate Thursdays.

Monday, June 18, 2018

The Southern Poverty Law Center Surrenders Unconditionally To Maajid Nawaz. We Should Be Concerned.

The Southern Poverty Law Center has surrendered, completely and unconditionally, in the face of a threatened defamation lawsuit by British activist and politician Maajid Nawaz. That surrender includes a $3.375 million payment to Nawaz "to fund work fighting anti-Muslim bigotry and extremism" and prominent written and video apologies.

This is a rout by Nawaz, a crushing victory on a scale I don't remember seeing in a threatened defamation suit. Though it inspires good feelings about fairness and truth, it ought also inspire concern about free expression and our broken court system.

The case begins with the SPLC's October 2016 "Field Guide To Anti-Muslim Extremists," which listed Nawaz. Nawaz is Muslim and spends a considerable amount of his time calling out anti-Muslim bigotry. The SPLC put him on the list for, among other things, printing a cartoon of Mohammed, advocating a ban on wearing a veil in some public places, and — most significantly — providing British law enforcement with a list of Islamic organizations and saying that "the ideology of non-violent Islamists is broadly the same as that of violent Islamists; they disagree only on tactics." The SPLC's stance was met with rather broad criticism. They sent the "Field Guide" down the memory hole.

Nawaz did not take this characterization lightly. He attacked it repeatedly and publicly, threatened a defamation suit, and eventually crowdfunded a legal team to pursue that lawsuit. This settlement, reached in advance of any suit being filed, is the result.

The SPLC's agreed-upon apology is both complete and oddly vague:

The Southern Poverty Law Center was wrong to include Maajid Nawaz and the Quilliam Foundation in our Field Guide to Anti-Muslim Extremists. Since we published the Field Guide, we have taken the time to do more research and have consulted with human rights advocates we respect. We’ve found that Mr. Nawaz and Quilliam have made valuable and important contributions to public discourse, including by promoting pluralism and condemning both anti-Muslim bigotry and Islamist extremism. Although we may have our differences with some of the positions that Mr. Nawaz and Quilliam have taken, they are most certainly not anti-Muslim extremists. We would like to extend our sincerest apologies to Mr. Nawaz, Quilliam, and our readers for the error, and we wish Mr. Nawaz and Quilliam all the best.

The SPLC has fallen from being a justifiably respected warrior against bigotry and brutality to an unreliable, sophomoric, flailing orthodoxy-cop that struggles to distinguish organized hate groups like the Klan from trolls, idiots, or social conservatives. I would like to see them be more responsible. But I am worried — and you should be too — about the abuse of defamation law.

One of the most basic principles of defamation law, mandated by the First Amendment, is that pure opinion can't be defamatory. Only statements of provable fact — or statements that imply provable fact — can be defamatory. I write about this constantly. An opinion, however moronic or unfair, is absolutely protected by the First Amendment unless it implies that the speaker is relying on undisclosed provable facts. So, for instance, "look at what this guy wrote, he's a bigot" is by definition not defamatory; it's based on an interpretation of a disclosed fact, the thing the guy wrote. "I've listened to this guy's conversations and, let me tell you, he's a bigot" might be defamatory, because it implies undisclosed facts — whatever you claim you heard.

Here, the SPLC's fatuous Field Guide appeared to be classic opinion based on disclosed facts. The SPLC offered its opinion that certain people were "anti-Muslim extremists" based on facts it set forth and linked. Their conclusion appears unfair, narrow-minded, and uttered in bad faith, but opinions are absolutely protected whether or not they're unfair, narrow-minded, and in bad faith. It's possible that I have missed a textual analysis, but it appears to me that Nawaz' criticism of the piece was not that it unfairly characterized him based on facts, not that it got specific provable facts wrong.

That impression is fortified by the negotiated apology. The SPLC's apology — the precise language of which is dictated by the settlement agreement — says that the SPLC was wrong to put Nawaz on the Field Guide list and that Nawaz has done valuable work against bigotry. That's all true, rationally and morally. But what it very conspicuously doesn't say is exactly what facts the SPLC got wrong. It sounds like an apology for drawing an irrational, unfair conclusion, which is simply not defamation. Moreover, Nawaz specifically said he was going to sue to fight people who use labels like "racist" and "Nazi." But such labels are classic opinion.

It's impossible to overstate the extent of the SPLC's surrender here — I can't remember one combining this level of money and apology, especially pre-litigation. So why did they do it? Maybe there are specific false statements of fact in the Field Guide that haven't come to light. Perhaps discovery would have revealed ugly things about the SPLC's process of writing such lists. Perhaps the lawsuit would have resulted in sustained terrible publicity for the SPLC, undermining whatever credibility it has left. Maybe they're actually contrite.

But though I celebrate an apology for wrongdoing, I can't celebrate a surrender at swordpoint that encourages censorious litigation. Bad opinions are, and ought to be — must be — absolutely protected. If the SPLC surrendered because we've got a broken judicial system that makes litigation ruinously expensive and fails to protect free speech, the result is bad, not good. The threatened lawsuit appears to be part of a trend of suing the SPLC for its opinions and characterizations. The settlement will embolden that trend. The trend will not stay confined to the SPLC — that's not the way the law works. Especially in such bitterly divided times, suing over opinions is deeply censorious and corrosive of free speech. Nawaz — who has himself been the target of attempted censorship — should know that.

Friday, June 15, 2018

Analysis: Michael Cohen Seeks Gag Order On Stormy Daniels' Lawyer Michael Avenatti

For months I've been trying to explain the ups and downs of the tumultuous lawsuit by Stephanie Clifford, also known as Stormy Daniels, against President Trump and his ill-chosen lawyer Michael Cohen. They should have sent a poet, but here you are stuck with an irritable prosaist.

Yesterday brought a significant new development:¹ Michael Cohen, through his attorney Brent Blakely, has filed a motion asking United States District Judge James Otero to issue a broad gag order stopping Avenatti from making prejudicial comments to the press about Michael Cohen and the case. The motion is factually robust but legally anemic, and I suspect it will fail.

First, and most boringly, consider the format, which likely dooms the motion immediately. Attorney James Moo analyzed this aptly on Twitter. Michael Cohen has filed the motion ex parte — on an emergency basis. Normally in federal court, lawyers file motions on schedules set by the local rules. Here in the Central District of California, that means filing your motion 28 days before the hearing date you've chosen. The opposition files their brief 21 days before the hearing, you file your reply 14 days before the hearing, and so on. An ex parte application is a motion outside those rules: it says "judge, drop everything and look at this now!" Lawyers abuse this, particularly now in the age of instant gratification. So local rules require lawyers to explain why they need emergency attention, judges' individual courtroom rules state that requirement even more strongly, and judges get quite vexed when you file them without good cause. Judge Otero is no exception. In fact, in his very first order in this very case, Judge Otero dropped a pointed footnote indicating he didn't want to see unnecessary ex parte applications: "The parties are advised that the instant litigation is not the most important matter on the Court's docket. Requests for expedited proceedings, hearings, and discovery not clearly supported by the record and law are discouraged." Michael Cohen's motion contains absolutely no plausible grounds for needing emergency relief. Michael Avenatti has been ubiquitous in the media for months; there's nothing magical about this week that requires immediate action. (Or is there? Stay tuned.) So — without even delving into the substance — at the very least Judge Otero is very likely to deny the motion in this form and tell the parties to brief it on a regular schedule. This seems dreary and technical, but law is very technical.

So. What of the substance? The motion is here. Cohen — supported by a satisfyingly arch declaration from Blakely — makes a very strong factual case that Michael Avenatti has been dumping on him, and his actions, and his defenses in this case, absolutely relentlessly in the national media. He documents 121 television appearances and 439 tweets. He quotes Avenatti at length: how Cohen will be indicted, how he will cooperate against President Trump, how his defenses are a distraction, how he has leaked financial documents about Mr. Cohen, and how he has speculated about Mr. Cohen's financial activities. He points out that Judge Kimba Wood, supervising the aftermath of the FBI search of Cohen's home and office, told Avenatti that if he wanted to join the proceedings before her he would have to choose the court road over the media road, and Avenatti chose the media road. It's rather stunning to see it all in one place. It's the most convincing case I've ever seen about how one party's media activities could prejudice the interests of the opposing party.

Cohen also makes a perfectly plausible case that Avenatti's behavior crosses the line from vigorous advocacy into unethical behavior. He quotes Rule 5-210 of the California Rules of Professional Conduct governing lawyers:

A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

But that's a matter for the state bar. This is a matter for Judge Otero, and Michael Cohen is asking the judge to do something extraordinary: issue a prior restraint.

Prior restraint is when a court tells someone in advance not to say something, as opposed to handing out some penalty or punishment after the fact. Though bumptious litigants routinely demand it, it is extraordinarily disfavored under the First Amendment and is almost never permitted, especially on issues of public interest. Michael Cohen is demanding a classic prior restraint: he's asking Judge Otero to forbid Michael Avenatti from speaking to the media on specified topics.

That doesn't mean that Cohen automatically loses. The Supreme Court, noting the constitutional right to a fair trial, has held that courts may under the right circumstances put some temporary limits on the speech of participants in a case, like lawyers and parties. Lawyers in a case, the Court reasoned, have a duty to the courts not to interfere with the fair administration of justice, and therefore their speech can be restrained somewhat more easily than the speech of an outsider. Cohen relies upon that rule and on Levine v. United States, the leading case here in the Ninth Circuit applying it.

Here Cohen falls short. He cites Levine, but he does not confront the extraordinarily heavy burden Levine places on parties seeking a gag order. Since a gag order is a prior restraint, it can only be justified if it passes a test called "strict scrutiny" — which legal scholar Gerald Gunther aptly calls "strict in theory and fatal in fact." It's quite rare for a challenged restriction on speech to survive strict scrutiny. Here's how Levine puts it:

Prior restraints are subject to strict scrutiny because of the peculiar dangers presented by such restraints. Accordingly, the district court's order may be upheld only if the government establishes that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) less restrictive alternatives are not available.

Cohen doesn't quote, discuss, or confront that heavy burden. That's likely fatal to his motion. He doesn't explain how more publicity is going to make things substantially worse. He doesn't discuss the fact that the case is currently stayed pending the criminal investigation of Cohen in New York. He doesn't discuss the relatively narrow scope of the issues before Judge Otero — recall that the next step would be either sending the case to private arbitration under the $130,000 hush-money agreement (if Trump and Cohen win) or a mini-trial on whether that agreement was ever formed (if Clifford wins), so that a full-blown jury trial of the full merits is not something anticipated soon. He doesn't analyze less restrictive methods like jury questionnaires. In short, he does not take his burden seriously.

Brent Blakely is not a bad lawyer, but this is a bad motion. When a not-bad lawyer files a bad motion, one asks why. The easiest explanation is plausible here: Michael Cohen is a terrible client and is demanding this out of anger. But there are other potential explanations. It makes little sense to get Avenatti to stop talking now — that horse has left the barn. The horse isn't even on the same continent as the barn any more, and the barn is on fire. But it might make sense to stop Avenatti from releasing more damaging documents, if Cohen thinks he has them. Moreover, the motion – and its self-defeating emergency format — might make more sense if Something Big Is About To Happen in the criminal investigation of Cohen, such that he's worried about the impact of ongoing publicity on that case, and wants to preempt Avenatti from talking about it.

Were I a gambler, I'd gamble that Judge Otero will issue an order reminding the parties not to file emergency motions and setting a regular schedule or telling Cohen to re-file the motion on a regular schedule. But this is 2018; it's the Age of Possibility. Who knows what dramatic updates this very day may bring?

Sunday, June 10, 2018

Randazza: Trying to make sense of Bourdain

By Marc J. Randazza

I did not know Anthony Bourdain. But, he was a good friend to a good friend. I'm upset about his death for a few reasons. First, and foremost, a good friend lost a good friend. Selfishly, I always had it as a given that I would have drinks with him one day. Any time I wanted, really. I just had to ask. It never occurred to me that he would be gone before I made the time.

And now that he is gone, the post-mortems are oozing like honey out of baklava. Messy, sweet, and getting on everything. Almost all of them are flattering, as they should be. Yeah, there's always one douche with something awful to say, but lets not focus on those few bitter nothings. Every account of him that I've ever heard was a man who had plenty of time for everyone. He may have had his faults, but he spread respect, understanding, and curiosity. The world was better because we had Bourdain in it.

Most everyone thought so, even before he died.

After a celebrity takes his own life, the questions are predictable, and fair. This was no tragic accident. This was no cancer-took-him-too-soon. This was a bright bright neon light that turned itself off. How does someone with the best job in the world, at the top of his game, with seemingly everything, "throw it all away?"

If I could really answer that question, I would get a Nobel Prize, I imagine.

I can't. But I'll try. I hope in trying, I do no harm. Regular readers will agree that I am really good at irreverence, but have little demonstrated experience with reverence. May this piece only pop corks on bottles of compassion. To the extent it has a shred of douchetasm in it, I hope my reader understands that at worst, any harm I inflict is negligent. And nothing in this piece should be interpreted as me saying that I know a goddamn thing except this: What I do know is "why would he throw it all away?" isn't the right question. And if you're asking that question, you might be asking someone you know the wrong questions.

So do I get it? The fuck I know. Can I try? I'll try.

Lets look at who Bourdain was – at least to me. To me, he was "one of us." By that I mean those of us who were misfits who succeeded in spite of ourselves. Bourdain was very open about his prior drug use – not shy at all about it, in fact. He regularly dropped references to his prior heroin habit. I loved that about him. "Yeah, I used to shoot smack, and look at me now." He was not a "say no to drugs" guy. He was a keep-on-raging guy, even if he did gain a high degree of responsibility in his older age. He let that flag fly, and in doing so, he sent signals to some of us who understood him on that level.

Bourdain was not the kind of guy to get an honorary degree and then give a speech extolling the virtues of studying hard and working hard. Bourdain was a pirate. I can think of no higher praise than to call him that.

After he died, a wise man wrote: "Very successful people often become successful because they are unhappy." And that makes sense when you look at Bourdain. Nobody shoots heroin because they are happy. A demon chases you into that place. That demon talks to you. He lies to you. He tells you to go ahead and jam that needle into your arm, because you are different. It won't hurt you because you're different – and that difference makes you alone, and that heroin makes you forget about being alone. Not the "alone" like being in the house all by yourself. The "alone" someone feels while they are the center of attention in a huge crowd. That alone. That cold-alone that is more alone and cold than you'd be if you were strapped to Voyager One like a freezing dark hood ornament. That alone that isn't even black – because at least you can lose yourself in blackness. Blackness and darkness at least has quiet and tranquility. That evil aloneness is grainy. T.V.-static-alone. That alone of "did I just hear something?" And you didn't hear anything. You wanted to. You wanted to hear something so badly that your ears start creating sounds that make sense in the static. The noise. Just. One. Fucking. Sound. That. Makes. Sense. Please. God. Fucking. Dammit. Or at least, some quiet. And the quiet won't come. And the sounds won't organize into voices that speak to you. And you just want to hide.

Heroin is an awesome place for someone like that to hide. Those of us who have been there, with lost weeks, months, even years, know that quest for tranquility and how heroin can get you there. For a while.

Of course, Bourdain quit heroin – as you must to in order to achieve anything except knowing where to buy heroin. For most junkies, heroin is a disease. For them, it is usually easy. Step one: Quit heroin. Step two: Get better.

For people like Bourdain, heroin is a symptom. The steps defy logic. Quit heroin, problem remains. Seek new cure. Fail. Rinse. Lather. Repeat.

I can picture Bourdain now, the smart junkie, with everything as sanitized as possible. The candle burning. The spoon over the flame. The water. The powder. The little tiny bit of cotton to filter out the impurities. Apply heat. Watch just the edges of the water boil. The powder vanishes like magic and there's just a clear shot of liquid in the spoon. Push the cotton into the middle of the water, and draw it all into the syringe. The strap around the arm digs in and makes that vein bulge out – creating a target for the stinger. As it pierces the skin, it settles into place, and *puff* … a little red flower blooms inside the syringe as the blood pressure pushes just a kiss of blood into the clear watery mixture. The thumb goes down, and …. whoosh…. his pupils pull tight into little pinholes. His head gets lighter than hydrogen. Every pleasure center in his brain is switched on. And he floats. In tranquility. For a while.

The T.V. Static loneliness turns to black. The good kind. The calming kind. The static is squelched.

It wears off and the noise comes back. Maybe that night he hits it a few more times. Maybe he takes the day off the next day. Maybe a week. Maybe not. But, in general, days run into weeks, into months, and every time that flower blooms, it is a little less beautiful. Every time that lightness lasts just a little less time. The blackness doesn't ever go to that pure pure black that it was the first time. And, eventually, Bourdain figured out "this is not going to save me anymore."

Figuring that out about heroin is easy. Everyone knows heroin is bad. You want to quit heroin? You find lots of friends. Everyone wants to help you. Friends will babysit you. You'll get excused for puking at inopportune times. "He's drying out from junk." Hell, you can almost act any way you want when people know you're kicking a junk habit. For Bourdain, a famous curmudgeon, the kicking-the-habit time must have been mentally satisfying, even if physically grueling.

When he came out of that sicknness, finally, it didn't likely feel like he crossed a finish line. The junk habit goes away slowly. It is as if the sickness has a half-life, and every day it gets a little less sickening and painful – until finally, he couldn't remember what the sickness really felt like. He was in the clear.

But then that demon that put the stinger in his arm starts talking to him again. The T.V. static loneliness starts to creep in again. The noise. It hurts. There must be a cure.

For a lot of people, that means going right back to the old bad habit. For others, especially intelligent ones, there is a recognition that you don't want to go down that path again. That was a dead end, so they try something else. Religion. Family. Gardening. Compulsive masturbation. Whatever the fuck. But, something needs to get laid over the crackling hiss of loneliness and alienation. For some, the cure is called "success." And people like Anthony Bourdain chase it the same way that a junkie chases that feeling he had the first time he shot up.

Success is a wonder drug for people like Bourdain. Strapped to the rack of his own insecurities and unhappiness, he mainlined success. He dragged a lot of people along with him too — my friend Mike, for example. Bourdain shared his success with him, promoting his book and doing whatever he could to contribute to his success. Bourdain was a curmudgeon, but not an asshole. He kept climbing that mountain of success – from his first column in The New Yorker to his acclaimed show to his ascendancy as a cultural icon. Bourdain was not just a celebrity chef, but an ambassador. Bourdain was Bourdain.

Bourdain being Bourdain was a man climbing a mountain to conquer that solitude that heroin couldn't crush. Every step he took on that climb toward the summit put him in more rarified air. As he looked up, and it seemed that the summit was in reach, the air got thinner and thinner, making each step exponentially harder than the one before it. Like climbing a smoking volcano, where it gets colder, and the air more sparse, and each step is not not just on rocks that might slip and tumble beneath his boots – but now into crusted snow. And the air gets thinner and thinner. He looks back at those who couldn't get there with him, who turned around, or who were satisfied at where they reached. All the while, that smoke coming out of the volcano – noxious gas – is under nobody's control. One shift of the breeze and sulphur dioxide can come streaming toward his face.

And now you, dear reader, start to ask yourself: Am I reading about rising up to the greatest heights? Or am I reading about a dangerous agonizing climb toward not a summit, but a crater?

The answer is "yes."

From our comfortable chairs down at the base-camp of life, it looked like he was a legend. How fortunate he was to see things from that height. How strong he was to climb that volcano. How could he "throw that away?"

He didn't "throw it away."

Bourdain climbed that volcano – racing away from the loneliness to try and find the summit. But, every step up was toward more alienation. Every success was another shot that just temporarily made the pain go away and brought a bit of calm, but that pushed him toward disaster. And, unlike heroin, the drug of success and achievement wasn't something he could just tell his friends "I gotta dry out," and find a shower of support. The climb was a trap. Not just an addiction, but an addiction for which there is no treatment – and for which each shot put him further away from a cure.

He lost who Bourdain was. He lost that, because (in part) of us. Bourdain wasn't "Anthony" anymore. He became "Bourdain." Quit success? How could he do that? Why would he do that? The eyes were on him. The drug was in him. But he did not "rise." He climbed. Climbed toward the sun, trying to find that quiet. Climbed to run away from that voice and noise. The pressure on him to keep climbing, because that's what you do when you're a success. His seemingly positive pattern of self-medication through triumph pushing him up higher and higher.

Until that day in that hotel room where he just couldn't climb anymore.

We all lost Bourdain, when he just decided to finally, once again be Anthony.

Lonely, confused, Anthony. Just wanting the static and the noise and the hurt to go away.

Anthony couldn't carry Bourdain up that mountain anymore. So Anthony sat down in the snow and waited for the wind to shift that sulphur dioxide toward him, and breathed in its searing heat to just make it all stop.

Do I know? The fuck I know anything.

Tuesday, June 5, 2018

Randazza: Masterpiece Cakeshop – A Whole Lotta Nothing

By Marc J. Randazza

Masterpiece Cakeshop was supposed to be one of the decisive battles in the war for "religious freedom," or "gay rights" or "free speech," or whatever you wanted it to be. And, yesterday, the Supreme Court issued its opinion. The syllabus to the case might as well have said "we really hope y'all didn't shave your balls for this, because it ain't gonna be that kind of date."

By now, everyone knows the case, right? Two guys go to a bakery and ask him to make a cake for their big fat gay wedding. Bakery owner says "I'm not doing that, because I am a Christian, and my Christian beliefs require me to be a douche to queers." I paraphrase, but that's essentially what it was.

But, operatively, he did say that they could have anything else they wanted, so he would serve gays, just not a gay wedding cake – because again, his interpretation of Christianity didn't jibe with two guys either being really happy together or making the same stupid decision that straight people have made for generations.

The baker claimed that "using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs." But, when he was brought up on charges before the Colorado Civil Rights Commission, the members of the commission "showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection."

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re- solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Ultimately, in this case, nobody really "won." The baker "wins" because technically he "won." But, all he "won" was the right to have the charges brought against him without the administrative panel making snarky comments about his religious beliefs.

The cause of gay rights was not advanced at all. And, the real issue here — the First Amendment issue, is not being addressed at all — except in a pretty damn good concurrence by Justice Thomas, joined by Justice Gorsuch. (Starts on Page 38 of 59) His concurrence is, of course, foreshadowing either the majority or the minority when this case finally comes to a head. Thomas (I believe correctly) says that designing a wedding cake is no mere act of throwing eggs and flour into a bowl – but is full of artistic creativity. Harnessing (or enslaving) an artist to create that which he does not wish to create is a travesty against the First Amendment.

In any event, this is a pretty short post on a pretty long opinion – because that's all this opinion needs. Those celebrating a "victory" and those bemoaning a "defeat" are both wrong. This case is a punt of epic proportions, leaving nothing resolved. So, if you're a Gay Rights fan, to the extent you would sacrifice the First Amendment at the altar of "equality," then you should not feel defeated. If you're a First Amendment advocate, you really shouldn't feel too smug – except in knowing that you have a guaranteed two votes when this comes up again. However, you should also understand that you definitely don't have Ginsburg or Sotomayor on your side either (they wrote the dissent).

So, once this case finally gets back to the Supreme Court, it is a 2-2 tie at the outset.