Sunday, 5/4/14

    1. The Western Devil Made Putin Do It
    2. Capitalism: Unforgiving of Conservatives
    3. Intemperate speech again legal in Indiana
    4. Reading for the wrong reasons


It’s nice to read a bit of foreign policy sanity on the Wall Street Journal Opinion page:

[I]t must be borne in mind that the present crisis was triggered by the West. The overtures made by NATO to Georgia, Moldova and Ukraine in recent years effectively threatened to encircle Russia’s Black Sea Fleet in the only ice-free port at its disposal.

[S]ome hardliners in Washington, Brussels and Moscow obviously have their own agenda. NATO can chafe at the bit once again, and the powers-that-be in the Kremlin are not the only ones to have noticed that international conflicts are an effective way of distracting attention away from domestic problems.


Here’s what Marx got right—profoundly, overwhelmingly, admirably right: capitalism is unforgiving to “conservatives,” those who care about neighborhood, Church, family, loyalty, tradition. As Marx and Engels eloquently described in The Communist Manifesto,

The bourgeoisie, historically, has played a most revolutionary part. The bourgeoisie, wherever it has got the upper hand, has put an end to all feudal, patriarchal, idyllic relations. It has pitilessly torn asunder the motley feudal ties that bound man to his “natural superiors”, and has left remaining no other nexus between man and man than naked self-interest, than callous “cash payment”. It has drowned the most heavenly ecstasies of religious fervour, of chivalrous enthusiasm, of philistine sentimentalism, in the icy water of egotistical calculation. It has resolved personal worth into exchange value, and in place of the numberless indefeasible chartered freedoms, has set up that single, unconscionable freedom — Free Trade. In one word, for exploitation, veiled by religious and political illusions, it has substituted naked, shameless, direct, brutal exploitation.

The bourgeoisie has stripped of its halo every occupation hitherto honoured and looked up to with reverent awe. It has converted the physician, the lawyer, the priest, the poet, the man of science, into its paid wage labourers

The bourgeoisie has torn away from the family its sentimental veil, and has reduced the family relation to a mere money relation….

The bourgeoisie cannot exist without constantly revolutionising the instruments of production, and thereby the relations of production, and with them the whole relations of society. Conservation of the old modes of production in unaltered form, was, on the contrary, the first condition of existence for all earlier industrial classes. Constant revolutionising of production, uninterrupted disturbance of all social conditions, everlasting uncertainty and agitation distinguish the bourgeois epoch from all earlier ones. All fixed, fast-frozen relations, with their train of ancient and venerable prejudices and opinions, are swept away, all new-formed ones become antiquated before they can ossify. All that is solid melts into air, all that is holy is profaned, and man is at last compelled to face with sober senses his real conditions of life, and his relations with his kind.

If voters like the regulars at South Bend’s Simeri’s Old Town Tap believed that the Democrats could help their plight, they would have voted for Obama. If they believed that the Republicans were standing up for them (as they did in the 1980s), they would have voted for Romney. But they have concluded that neither party now represents the working class, and what they really care about—which is to be able to lead stable and decent lives without being ravaged by an economy run by distant decisions and absentee owners who seek only to increase their own bottom line. The Democrats, they have concluded, care most about advancing the libertarian lifestlyle agenda enjoyed by educated elites. In spite of the flurry of recent stories praising Thomas Piketty in the New York Times, what has gotten more coverage and dedicated discussion in its pages—income inequality, or gay marriage? And the Republicans, they have concluded—particularly regarding Mitt Romney, but not exclusively—are in the pocket of the very people who have been outsourcing their jobs and ravaging their places and people.

(Patrick Deneen)


For a time recently, harsh criticism of a Hoosier public official could have landed you in jail, due to a poorly-reasoned Indiana Court of Appeals affirmance of a criminal conviction of one Daniel Brewington, a man who just couldn’t let go of his anger long enough to look in the mirror and admit “Yeah, I guess I really am so unhinged that I shouldn’t be the custodial parent of my kids.”

This isn’t necessarily the fault of the Indiana Court of Appeals. Sometimes the advocacy of the parties leaves something to be desired until the beard-strokers of the Ivory Tower take note and say “didja see what the ICA did? Holy smokes! This mustn’t stand!”

Daniel Brewington’s story might be summed up by the way the Indiana Court of Appeals described the “standard of review” versus how the Indiana Supreme Court described it Thursday.

The Indiana Court of Appeals, 1/17/13:


Brewington argues that there is insufficient evidence to sustain his convictions for intimidation of Judge Humphrey, intimidation of Mrs. Humphrey, attempted obstruction of justice, and perjury.


When an appellant challenges the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses, and we affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable jury to find the defendant guilty beyond a reasonable doubt.

The problem here was that the jury had been poorly instructed in the trial court:

Brewington challenges the trial court’s Final Jury Instructions 1, 2, 3, and 5, claiming that they are legally incorrect because they failed to explain to the jury how to apply principles of free speech to the conduct that led to the charges of intimidating Judge Humphrey, attempted obstruction of justice, and perjury.

So deferring to the jury, and not re-weighing evidence, allowed the Court of Appeals to affirm a conviction that could have been based on Brewington’s constitutionally-protected harsh criticism of  the judge who decided his divorce case.

Bad idea. Really bad idea. The beard strokers, and particularly UCLA’s Eugene Volokh, took note, herehere and here.

The Indiana Supreme Court, having been fully briefed by parties and now by friends of the court (Amici Curiae in legal parlance) set aside the Court of Appeals opinion and for 35 methodical pages explained the relevant principles, still managing to affirm Brewington’s conviction. From it’s introduction of the case:

The United States and Indiana constitutions afford sweeping protections to speech about public officials or issues of public or general concern, even if the speech is intemperate or caustic. But there is no such protection for “true threats”—including veiled or implied threats, when the totality of the circumstances shows that they were intended to put the victims in fear for their safety. Fear for one’s reputation is often the price of being a public figure, or of involvement in public issues. But fear for one’s safety is not.

Here, the Court of Appeals failed to distinguish between those two types of fear. Many of Defendant’s statements, at least when viewed in isolation, threatened only to harm the victims’ reputations—hyperbolically accusing them of “child abuse” and the like. To the extent those statements were aimed at a public official or involved an issue of public concern, they are subject to the steep constitutional “actual malice” standard for defamatory speech, and the Court of Appeals erred in relying on them to support Defendant’s convictions for intimidating a judge and attempted obstruction of justice.

But Defendant’s other statements and conduct, understood in their full context, clearly were meant to imply credible threats to the victims’ safety. The “true threat” inquiry requires reference to all the contextual factors—one of which is the anger and obsessiveness demonstrated even by the protected portions of Defendant’s speech. And Defendant had also demonstrated mental disturbance, volatility, violence, and genuine dangerousness directly to both of his victims during his years-long vendetta against them. In that context, Defendant’s conduct, including showing his victims against a backdrop of obsessive and volatile behavior that he knew where they lived, was clearly intended to place them in fear—not fear of merely being ridiculed, but fear for their homes and safety, the essence of an unprotected “true threat.” Causing that fear is unlawful in itself, and all the more damaging when, as here, it aims to interfere with these victims’ lawful obligations of being a neutral judicial officer or a truthful witness—both of which are at the core of our justice system.

And the failure of the jury instructions and general verdict to distinguish between protected speech and unprotected true threats did not prejudice Defendant’s substantial rights here. To the contrary, we conclude that he deliberately invited that error, because requesting only broad-brush free-speech instructions enabled a broad-brush defense—emphasizing the protected, “political protest” aspects of his speech that threatened only the victims’ reputations, while glossing over his statements and conduct that gave rise to more sinister implications for their safety. That approach was constitutionally imprecise, but pragmatically solid—and nothing suggests that counsel blundered into it by ignorance, rather than consciously choosing it as well-informed strategy. It was an invited error, not fundamental error or ineffective assistance of trial counsel.

Here’s how the Indiana Supreme Court described the appropriate standard of review (citations omitted):

Standard of Review

Defendant’s free-speech challenge to his convictions, at bottom, questions the sufficiency of the evidence. Ordinarily, we would review such an issue with great deference to the jury’s verdict—considering only the evidence favorable to the conviction, and affirming unless no reasonable factfinder could find the necessary elements to have been proven beyond reasonable doubt.

But here, as further discussed below, constitutional protection for Defendant’s speech hinges on state-of-mind issues—particularly, whether he intended his communications as threats and whether his victims were reasonable in perceiving them as threats. Deferential review of such questions creates an unacceptable risk of under-protecting speech. It is our constitutional duty, then, to “make an independent examination of the whole record, so as to assure ourselves that the [conviction] does not constitute a forbidden intrusion on the field of free expression.” This “rule of independent review assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact,” no matter whether the finder of fact was a judge or a jury.

Here, we have independently reviewed the record de novo, and are convinced beyond reasonable doubt that Defendant fully intended to make “true threats” against his victims, and that his victims were reasonable to perceive them as threats in view of the context in which he made them. But because many of Defendant’s statements, in isolation, were protected—and even his true threats were carefully veiled—we will discuss “all of the contextual factors” of his statements in considerable detail ….

An interesting twist is the paragraph above about “invited error.” Brewington maybe could have had an instruction that the jury couldn’t convict him for harsh criticism, but only for true threats, but he “rolled the dice” hoping to gloss over the truly threatening language and conduct.

And an interesting dictum in the case is that a portion of Indiana’s criminal law probably can never be applied where the “victim” is a public official or the “threat” involves a matter of public concern:

“Threat” means an expression, by words or action, of an intention to:

(1) unlawfully injure the person threatened or another person, or damage property;

(2) unlawfully subject a person to physical confinement or restraint;

(3) commit a crime;

(4) unlawfully withhold official action, or cause such withholding;

(5) unlawfully withhold testimony or information with respect to another person’s legal claim or defense, except for a reasonable claim for witness fees or expenses;

(6) expose the person threatened to hatred, contempt, disgrace, or ridicule;

(7) falsely harm the credit or business reputation of the person threatened; or

(8) cause the evacuation of a dwelling, a building, another structure, or a vehicle.

I.C. § 35–45–2–1(c).

Subparts (c)(6) and (7), then, essentially criminalize defamation by including it in the definition of a punishable “threat.” The same constitutional free-speech protections that apply in civil defamation cases therefore must also apply to prosecutions under (c)(6) and (7).

As the discussion above illustrates, the “actual malice” standard is so steep that prosecutions involving public figures or issues of public concern under Indiana Code section 35–45–2–1(c)(6) or (7) are all but impossible. When a “threat” of ridicule or embarrassment is made against a public figure, New York Times applies as a matter of federal law-and if the speech implicates an issue of public concern, Bandido’s applies as a matter of Indiana law. In either event, proof of “actual malice” is required for a conviction to survive constitutional scrutiny. Only where a purely-private figure is involved, and the alleged “threat” involves no colorable issue of public concern, may subparts (c)(6) and (7) be applied as written; and otherwise, the actual malice standard will preclude most prosecutions. As a result, the State will often be well-advised to avoid bringing charges under those subparts—or even including them in jury instructions ….


I’ve never used Goodreads, but I’ve Tweeted and Facebooked Kindle snippets, so I think I know what Gracy Olmstead is talking about.  It is food for thought.

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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)

Some succinct standing advice on recurring themes.