Over at Orcinus, David Neiwert is busily ripping apart the “Bush haters are even more kookoo than Clinton haters” idea that the righties have been echo-chambering lately. David - a former MSNBC writer/producer - argues, persuasively, that the two things are not comparable; the right-wing ownership of cable news and talk radio guarantees that “Clinton-hatred,” no matter how insane it got, was treated with far more respect - and broadcasted far more widely - than it deserved.

I do have a couple of nits to pick with David’s argument, however.

First, David’s list of Clinton-hater charges against Clinton omits the whole Monica thing. But the Monicatastrophe is a major part of the anti-Clinton canon, and really can’t be skipped.

(Digression: Conservatives - in a transparent bit of partisan special-pleading - often say that they don’t object to Clinton having sex with an intern; what they object to is his lying under oath. Personally, I think just the opposite is true. That Clinton would break his marriage vows - and break them, furthermore, with an intern half his age, in a situation in which the power dynamics were so ridiculously unequal - speaks poorly of his character. (What kind of an asshole betrays his wife with an intern? Jesus.)

On the other hand, given the context, I think Clinton’s lie under oath is pretty understandable. First, the lie came up in the context of attempted, blatantly partisan, entrapment, which rather undermines the prosecution’s moral standing to ask questions at all. (It’s hard to feel that lying to a corrupt justice system is that big a sin). Second of all, attempting to cover up a tawdry, assholish affair seems like a reasonable thing to do, given that the alternative was to cause enormous damage to the well-being of the entire Democratic party, not to mention Clinton’s wife and child. End of digression.)

Secondly, regarding Juanita Broaddrick (the woman who claims that Clinton raped her in 1977), David writes:

The charges didn’t “gradually evaporate” - they simply had nowhere to go. From her first interview, it was clear that Broaddrick’s story could not be proven or disproven, and it was years too late for a trial. That’s where Broaddrick’s story stood in 1999, and that’s where it stands now.

Nevertheless, Broaddrick’s claim is stronger than David’s account admits. NBC interviewed several people who saw Broaddrick’s facial bruises in 1977, and who remember Broaddrick telling them that Clinton (who was at the time the Attorney General of Arkansas) had raped her. And NBC’s investigation was able to verify several other aspects of Broaddrick’s story.

It is true that Broaddrick had filed an affidavit denying any sexual contact with Clinton; what David doesn’t mention is that she filed the affidavit to avoid being used as a weapon against Clinton by Paula Jones’ lawyers. Under the circumstances, I think it’s perfectly understandable that Broaddrick chose not to cooperate with Jones’ lawyers, and that hardly proves that she’s “not a reliable witness” in general. (And if having told a lie once - even in understandable circumstances - does make one permanently unreliable as a witness, then why is David so willing to take Bill Clinton’s word?)

As for Broaddrick’s “profit motive,” I have no idea what David’s referring to - and since David doesn’t provide any links or evidence to support his claim, I can’t take it seriously.

There’s a big difference between a court of law and a personal opinion.

For all legal purposes, Bill Clinton is not a rapist. He has never been found guilty of rape in a court of law - he’s never even been charged.

My personal opinion? There’s no way to know for certain. Reading Broaddrick’s NBC interview, I think she tells a credible and realistic story. I don’t know if she’s telling the truth - but in my heart, I suspect she is. Sorry, Clinton-lovers.

UPDATE: Links to the Broaddrick transcript keep on dying, so in case the above link dies, here’s an alternate link.

SECOND UPDATE: Okay, with the help of the discussion in the comments, I’ve figured out what’s bothering me about the inclusion of Broaddrick in David’s post.

You might or might not believe Broaddrick’s story - it’s a question that reasonable people can disagree on. You might even say that it’s impossible to know for certain either way, and I’d agree with you.

But Broaddricks’ story does not belong on a list - to use David’s words - of “afactual rhetorical turds.” To put it on such a list - right after a piece of genuine paranoid nonsense like the “Clinton body count” - implies that taking a woman’s accusation of rape seriously is the equivilent of believing in utter nonsense like the “Clinton body count.”

Needless to say, the two are not at all equivilent. A woman’s story of being raped is not beyond skepticism; but neither should it be dismissed as an “afactual rhetorical turd.” Everyone - and in particular, progressives and liberals - should take accusations of rape seriously. I’m not saying that David doesn’t take rape seriously. I am, however, saying that David was mistaken to lump Broaddrick’s story along with the nonsense that comprised the rest of his “rhetorical turds” list.

Maureen Enns and Charlie Russell are a couple of naturalists who have been living with grizzley bears in Siberia, in order to demonstrate that grizzlies and humans can live together without violence. (They’ve got a website - be sure to check out the photo gallery).

Unfortunately, by protecting the bears, Enns and Russell pissed off some Russian gangsters who had been making money off of poaching grizzlies and salmon. This year, the gangsters decided to “send a message” to Enns and Russell by killing the dozens of bears the naturalists had been studying.

“I taught these bears to trust humans and it backfired,” Mr. Russell said.

Link via Metafilter.

I don’t expect to be blogging a lot until I return to Portland - even aside from the I’ve-gotten-too-used-to-a-fast-connection-to-go-back-to-using-a-modem issue, and aside from the there’s-only-one-computer- and-I-get-kicked-off-it- too-often-to-get-any-writing-momentum-started issue, there’s also the it’s-kinda-fun-to-take-some- time-off-from-blogging issue to consider.

But in the meanwhile, I did want to put in a pointer to the best thing I’ve read in ages, which is a series of posts on Pedantry on “language policy.”

Part one is a chapter-by-chapter summary of a scholarly anthology book on language rights and political theory, winningly entitled Language Rights and Political Theory. If that makes your eyes glaze over, you can go ahead and skip this part (like I did at first) - but you may want to go back and reread it after parts two and three have captured your attention.

Part 2 is a discussion of linguistic diversity and language education, which spreads out into a consideration of minority language rights and the economics of second-language fluency. (Or maybe it’s a discussion of those latter items which digresses into a discussion of the former? Whatever). Anyhow, it’s fascinating.

Part three, released today, is actually a continuation of a Pedantry post I linked to back in June, discussing the difference between a collection and a collective. (Scott was at that point arguing that Palestinians and Israel are not morally equivalent, since “Palestinians” - like “Israelis” - are a collection, and collections cannot make centralized decisions, whereas “Israel” is a collective which can make (and be held responsible for) its centralized decisions).

In today’s post, Scott argues that even a single individual can be conceptualized as “a collective,” and develops his argument that collectives can sensibly be seen as morally responsible for their choices and actions. As an illustration, Scott uses this approach to justify affirmative action.

This, to me, is the most troublesome part of Scott’s discussion. I have disagreements with almost every detail of Scott’s discussion of black-white inequality in the USA. (For example, Scott puts too much weight on the economic value of skills, while seemingly ignoring the essential importance of inter-generational wealth transfers - a formulation of the problem that is, I’m sure unintentionally, more flattering to white people than we deserve.) However, although I will probably discuss Scott’s (imo) errors in a future post, nonetheless it’s important to note that my disagreements with Scott do not undermine his central argument:

(Scott’s approach here isn’t unique - I’ve read people who have more-or-less taken the same approach to justifying reparations.)

Scott also argues for “self-development” as the central goal we should be seeking in our policy choices:

Naturally, my post here doesn’t even scratch the surface of Scott’s discussion. I’m looking forward to reading part four of this series. Meanwhile, I highly recommend y’all go check out what Scott’s writing - for my tastes, there is nothing more interesting going on in the blogoverse.

Well, I’m in New York (state). The weather is gorgeous, albeit rather too hot for my tastes. Out the large windows to my right, the trees sway in the breeze. Out the large windows to my left, sun sparkles on blue lake. My father is observing the shabbatz by snoring on a couch nearby, and at his feet the dog lies snoreless but napping on a fake but soft bearskin rug. (When I say “fake,” I mean it’s not even attempting to pass for the real thing; it’s more like a gigantic, flat teddy bear). On another couch, Mom is sprawled out working her way though today’s Times.

Things could certainly be worse.

I’m off to spend a week in lovely Duchess County, New York. I have no idea how much access to the internet - if any - I’ll have in New York. So I may or may not be posting in the next week.

Of course, Bean might post. Then again, she might not. She’s very mysterious.

Anyhow, have a nice week.

• Law professor Michael Dorf has written a good FindLaw article - “Can Kobe Bryant Be Convicted on ‘He Said, She Said’ Evidence Alone?” Among other things, he punctures the myth that rapes are the only cases where juries can decide guilt based on one person’s word versus another’s. He also has a good discussion of rape shield laws.

• I thought this sarcastic comment, left on TalkLeft by Kynn Bartlett of Shock & Awe, was too good not to quote.
  I always forget that there’s a rulebook which says how women should act before and after a rape. Clearly, if she isn’t following the rules, she must not have been raped. After all, everyone KNOWS there’s only one way to deal with something like this. If, say, your coping mechanism isn’t fully in line with (mostly male) expectations, then there was never a rape.

  Too many of the “who needs a trial, Kobe’s obviously innocent” group seem to beleive that if a woman is actually raped, she does nothing with the rest of her life but hide in her room weeping, perhaps taking a break from her weeping now and again in order to browse through information about local nunnaries. There is no “right” way for rape victims to act; nor is rape a crime that happens exclusively to conventional people with no blemishes on their past or their psyche. that an alleged victim once had an overdose, or may even had made a joke about her (alleged) attacker’s private parts, doesn’t prove that she’s a liar.

• The text of many Colorado sexual assault laws can be found here.

The Kobe Bryant case has provided a context for defense attorneys to attack “rape shield” laws. So defense attorney Barry Tarlow, writing in the LA Times, claims that Colorado’s “stringent” rape shield laws are an “impediment to fair trials.”

But what does Colorado’s rape shield law actually say? First of all, it says that evidence of “the victim’s sexual conduct” is “presumed to be irrelevant.” There are three exceptions to this.

1. “Evidence of the victim’s prior or subsequent sexual conduct with the” defendant is admissible.

2. Evidence that someone other than the defendant in fact committed the act the defendant is accused of. (For instance, if the accuser says “Bob raped me and got me pregnant,” and the defense has evidence that in fact Jim got her pregnant, that’s admissible).
3. Any other evidence whatsoever is admissible, as long as the defense attorney can convince a judge that the evidence is relevant.

So this is the big complaint about rape shield laws - defense attorneys are limited to presenting evidence that’s actually relevant to the case. This means that if the victim has (for example) a provable pattern of making false accusations, that would virtually certainly be admissible evidence. On the other hand, the “nuts and sluts” defense - an attempt to convince a jury that because a woman has willingly had sex with people in the past, therefore she must have agreed to have sex with the defendant, and anyway she’s probably crazy because look, she got drunk at a party once and goes to therapy once a week - is a great deal less likely to be acceptable.

Is this really such a loss to fairness and justice?

Tarlow opens his op-ed by longing for the good old days when “those accused of rape or sexual assault could defend against the charges on the theory that people behave in conformity with their character.” What is he referring to by “character”?

He’s not referring to defenses based on the idea that “Joe Accused is a man of good character, who would never do such a thing.” Such defenses are now as legal as they ever were - Joe Accused is free to call as many witnesses to his good character as he wants to. (In fact, if my understanding is correct, the prosecution isn’t even allowed to bring up the issue of Joe’s character unless Joe himself chooses to bring it up in his own defense).

So by “people,” Tarlow can’t be referring to defendants - defendants are allowed to defend themselves based on their character. So when Tarlow talks about “people”’s character, what he means is that defendants should be able to base their defense on the character of the alleged victim; and that rape shield laws prevent defendants from doing this.

But in what way could “the theory that [alleged victims] act in conformity with their character” be relevant?

1. Tarlow could mean that someone who has a provable pattern of making false accusations has demonstrated a character flaw, which should be enough to provide reasonable doubt in the defendant’s favor. I’d agree with that. But that can’t be what Tarlow is referring to, because Colorado’s rape shield law wouldn’t prevent such a defense - as law professor Michael Dorf writes, “Colorado law permits the defendant to show that the alleged victim has a history of bringing false rape accusations against men with whom she had consensual sex.”

2. Tarlow could be referring to the theory that if a woman is promiscuous, she would probably lie about being raped, or is incapable of being raped. Put another way, this is the theory that because she’s willingly had sex in the past, in the case under issue she “acted in conformity with her character” and willingly had sex again. (Sounds ridiculous - but before rape shield laws, this “theory” got many an accused rapist off the hook.)

   The problem is, this theory is demonstrably false. That a woman has slept with two men or twenty-two men in the past does not prove that she consented to have sex with Joe Accused, or even that she’d be likely to consent to sex with Joe Accused. And needless to say, even if some puritanical juries might be convinced that a promiscuous women is incapable of being raped, that’s not the case under the law (or any legitimate definition of rape).

Tarlow goes on to argue that nowadays, “in cases of sexual assault, it is the accuser, not the accused, who is presumed innocent.” But this is nonsense. First of all, alleged victims of rape are neither presumed innocent or guilty - much as Tarlow and other defense attorneys seemingly regret this fact, the victim is not on trial. Secondly, and more importantly, nothing in the rape shield law reverses the presumption of innocence. Nothing in the rape shield law relieves the prosecution of their burden of proving guilt beyond a reasonable doubt.

Tarlow continues:

Mr. Tarlow is apparently unaware that Kobe Bryant is represented by one of the best criminal defense lawyers in Colorado. He will have a more than fair chance to present himself in an angelic light - that’s what a defense is for. He’s also have a fair chance to confront his accuser (or, more literally, to have his attorney confront her), and to do his best to make her look like a jerk, a liar, or a wacko while doing so. (Unlike Bryant, the alleged victim won’t have her own attorney there to defend her interests). The only real limitation Bryant’s attorney faces due to rape shield laws is that she can’t drag in irrelevant evidence that Bryant’s accuser has voluntarily had sex with men other than Bryant in the past.

Now, Tarlow does make one legitimate-sounding point; he argues that it’s unfair that the prosecution can bring up Bryant’s sexual history, but the defense can’t do the same for accusers.

Frankly, I doubt that this is really Tarlow’s concern - after all, hypothetical evidence that Bryant has slept around a lot, if brought up in court, would embarrass Bryant personally but would hardly hurt his case legally. (On the contrary, faced with hypothetical evidence that Bryant is slutty, a jury would be likely to think “Why would he force someone when he has so many willing partners?”)

But in any case, Tarlow forgets to mention that there are already many rules preventing prosecutors from bringing up irrelevant or prejudicial evidence if its not related to the case. (And that’s good, of course). If Mr. Tarlow thinks the current rules don’t protect defendants enough from irrelevant or prejudicial evidence, then his logical course of action would be to advocate for improved rules protecting defendants. To argue instead, as he does, that defendants should instead be given an extra right to run a “she’s slept around, therefore she wasn’t raped” defense is both illogical and unconscionable.

Mr. Tarlow does say one thing I agree with - “The legitimacy of a system of justice depends on the perception that it is fair and evenhanded.” If Mr. Tarlow’s proposed return to the bad old days becomes law, then once again rape victims will be advised “don’t press charges. If you do, you’ll be the one on trial, not your rapist.” The system Mr. Tarlow longs for, in which defense attorneys were free to attack alleged rape victims by convincing the jury that they were too slutty to be raped, is rightly remembered by most people as an entirely unfair and illegitimate system. I dearly hope we don’t go back.

(Link via TalkLeft.)

(Updated to add the quote from Michael Dorf).

I don’t have any opinion on Kobe Bryant’s guilt or innocence - and furthermore, I think people who have an opinion at this pre-evidence stage are just demonstrating their own bias. Unfortunately, TalkLeft - a blog I respect - has already decided that Bryant “is the victim… in this case.” In keeping with her prejudgment, Talk left has been linking to articles using the Bryant case as a pretext for attacking rape victims’ rights under the law.

By far the scariest article TalkLeft has linked to is this FindLaw article by defense attorney Jonna Spilbor, who says the central question of the case is “has this good guy been falsely accused?” (Note the presumption, before the evidence has even been heard, that Bryant is a “good guy.” Yes, courts and juries should presume innocence; but Spilbor isn’t a court or a jury, and she should keep her mind open to the possibility that occasionally people accused of rape are, in fact, rapists). The problem, Spilbor thinks, is that women who make false accusations are not punished enough.

Now, to some extent I agree with Spilbor - certainly, a deliberate false accusation, if proved in court, deserves a much harsher sentence than “a fine, ranging from fifty-bucks to $750, and up to six months in the county jail,” which Spilbor says is the current maximum penalty in Colorado. But Spilbor misleads her readers by implying that this is all the punishment a false accuser could receive - she neglects to mention that in Colorado, people found guilty of first-degree perjury can be sent to prison for five years.

After that, Spilbor soars into defense attorney never-neverland:

In effect, Spilbor’s proposal would mean that at rape trials, the alleged victim would literally be put on trial - and if the jury finds against her, she would lose some of her legal rights, and be publicly branded a liar by the court system. What’s the problem with this? As Avedon Carol has pointed out, this means that the alleged victim would be put on trial - and, if found “not credible,” punished - without the benefit of having her own lawyer or the opportunity to prepare her own defense.

It’s horrifying to think that Spilbor is a lawyer - has she even heard of the Constitution? It’s also horrifying that a defense lawyer - who should be the first to understand the principle “innocent until proved guilty” - is proposing that alleged false accusers be found guilty (er, I mean “not credible”) without their own trial.

Spilbor also doesn’t consider the deterrent effect her proposals would have on genuine rape victims. As it is, rape is possibly the most underreported crime - according to a nationally representative study of rape victims, The National Women’s Study, only 16% of female rape victims ever report their rape to the police. How many fewer would report if they knew that they’d be subject to a “not credible” ruling if the defense lawyers can succeed in smearing them enough?

Finally, why are alleged false accusations of rape such a uniquely high concern? Yes, false accusations of rape can ruin innocent people’s lives; but so can false accusations of drug dealing, false accusations of murder, and so forth. As a defense attorney, Spilbor must realize that lying witnesses (such as a jailhouse snitch - a type of prosecution witness that should be outlawed entirely, in my view) can lead to false convictions in all sorts of felonies, not just rape. All false convictions are a miscarriage of justice; it’s discouraging that the only time the media seems to give a damn, however, is when there’s a chance to paint a stereotype of all rape accusers as liars.

Next post: Rape Shield Laws and the Kobe Bryant Case

• So anti-feminist and former “positive incest” advocate Warren Farrell is running for Governor of California. So if you’re convinced that the most pressing issue in this election is discrimination against men, or perhaps if you just think that incest is frowned upon more than it ought to be, here’s your candidate. (Via Trish Wilson, of course).

• Speaking of Farrell, he’s one of the candidates whose views are given in the Likely Story’s “Virtual Online Debate.” I note that Farrell’s opinion that “a pregnant woman should notify the father immediately [of her pregnancy]; if either wishes to care for the infant-in-process, then the fetus must become a child” is another way of saying “women should only be allowed to have abortions if they can get the father’s permission.”
• Mark Evanier is an outlaw, man, an outlaw!
• Speaking of Evanier, nothing I’ve read today has given me more pleasure than his ongoing summary of the obscure Dick Van Dyke comic book. Be warned, though: he does give some of the gags away. Some people really dislike it when gags are given away.
• The Slacktivist discusses “The Javert Syndrome” - the theory that police become so attached to the guilt of “criminals” they catch, that even proof positive of innocence cannot change their mind. He suggest therapy.
• I’ve been watching a lot of Farscape lately - I just got through the end of the second season. What I like about this show, I’ve decided, is that it’s simply far more grotesque than most shows in the “have starship - will wander” genre are. I like grotesque.
• The Right Christians talks about “the importance of ’some’” - that is, that it’s importance that when progressive criticize Christians, we make it clear we’re criticizing certain conservative Christians, not all Christians - many of whom are, or should be, potential progressive allies.
• How to explain American Foreign Policy to your Child. As Half the Sins of Mankind points out, the child in question is “implausibly well-informed.”
• An interesting BBC article on the struggles of Iraqi women to be free now that they’ve been freed.
• Another, better link listing last meal requests on death row. I have no idea why I find this so interesting… but I note that cheeseburgers are the most popular meal of those about to die. Via the similarly fascinated Lumpley.
• Speaking of Lumpley, he also let me know about a new role-playing game, Universalis, which looks very interesting - an approach to role-playing (or, in this case, story-telling) mechanics quite unlike anything else I’ve seen.
• Easily Distracted argues that superhero comics, to remain interesting, must begin to account for how strange superhero universes are… “To make them more real, they’re going to have to accept and embrace and evolve the unreality of the setting and all the humanity it contains, not just of the main characters. If superheroes can teleport to the moon, maybe fewer ordinary people would be on the subway. If a villain kills a hundred people, maybe he’ll be executed.” He’s correct if we’re talking about old-time readers, but I think superhero comics are instead set up to perpetually attract new readers, who are more thrilled by the unrealistic stuff that has gotten old to Easily Distracted.

  In the end, I think his post of a few days later - in which he writes, “find someone with a firm, distinctive, original grasp of what entertains, amuses, delights and inspires, give them some money and stand back and watch what happens” - is a better guide to producing great superhero comics, or great anything else.

• Claude Steele’s classic Atlantic article on “Stereotype Threat” - reporting on his research showing that Black students perform below their abilities on tests where they, as Blacks, would be expected to do worse than white students - is something I’m linking to just so I can find the link easily in the future.
• Greg’s Digital Retouching Portfolio is just fascinating - particular for seeing how women’s bodies - even the bodies of professional swimsuit models - are “touched up” to be good enough to show in advertisements. No one human qualifies as beautiful, apparently. Via Feministe.
• Trish Wilson rips apart “Marriage Initiatives.” Go Trish!

Adam at The Likely Story has a pretty entertaining story. As I’m sure everyone remembers, back on May first President Bush made a speech on some boat or other, announcing that “Major combat operations in Iraq have ended.” The White House printed the text of this speech on the White House website, under the caption “President Bush Announces Combat Operations in Iraq Have Ended.”

Today, the President revised his view. From the Washington Post:

What’s really fun about this, though, is that the White House is busy revising its website. Remember that speech which, on the White House website, used the title “President Bush Announces Combat Operations in Iraq Have Ended”? Well, it now reads (emphasis added by me) “”President Bush Announces Major Combat Operations in Iraq Have Ended.” And that’s not all - according to Adam, “The White House web team is systematically going through their archive of the USS Abraham Lincoln speech and inserting ‘major’ in every document. I don’t know which is funnier, their inept attempt to play historical revisionists OR the fact that we’re watching this (unbeknownst to them) in real time as they do it.”

Fortunately, Adam and others have been taking screenshots documenting this pathetic display. Check it out.

Josh Chafetz of Oxblog has a cover story (!) in the current Weekly Standard, “The Disgrace of the BBC.” First of all, Maziltov! to Josh on the story publication - I think the cover of the Standard is quite a cap-feather.

What’s striking to me about Josh’s story is how much envy I feel of Brits. They, after all, did have critical coverage of the lead-up to war on major networks. That wasn’t all they had - it’s my impression that the interested Brit could find plenty of pro-war views in both major dailies and on the major networks - but that had it at all is, to me, something stunning. In the United States, there was no critical coverage of the “march to war” until well after the war had begun.

This is a much more important “free speech” issue than the censorship of Demon Beast Invasion, by the way. The marketplace of major news outlets - which sells their product to advertisers, please recall, and not to the general population - decided, for whatever reason, to be overwhelmingly in support of George Bush in preparing the American people for war with Iraq. From September 2002 to March 2003, a large minority of Americans - between 33% and 43% - opposed invading Iraq. (The numbers opposed to an invasion were larger in other polls, depending on how the question was asked; for example, a CBS poll in February 2002 found that 61% of Americans prefered to “wait and give the United Nations and weapons inspectors more time.”)

Admittedly, 33-43% is a minority - but it’s a very large minority, and one whose size was never reflected in the coverage given their views in the lead-up to war on TV or in major newspapers. For example, FAIR did a study of major American network coverage in January and February, and found that “17 percent of the total on-camera sources, represented skeptical or critical positions on the U.S.’s war policy– ranging from Baghdad officials to people who had concerns about the timing of the Bush administration’s war plans.” That’s not just folks who were anti-war; there were only 17% of sources who were skeptical at all. Other numbers are even more depressing; of the 267 Americans interviewed by the major networks in reports on Iraq, only 17 (about 6%) expressed any skepticism about invading Iraq.

So somewhere between 33% and 43% of Americans opposed invading Iraq; but if you were watching network news, only 6% of the Americans you saw were even skeptical about the prospect.

Isn’t that a problem? To my mind, this kind of censorship - the kind of marketplace preference that makes certain views simply disappear into insignificance - is the biggest problem in the media today.

Meanwhile, conservatives in the US are infuriated that even one British network had the nerve to express any skepticism.

Oy.

If it’s true - and I’m not at all convinced it is - that the BBC had an anti-war bias in its reporting, then my feeling is, great. At least British TV viewers had that one alternative; they could flip their channels and see more than one view on the war presented. In the US, viewers didn’t have that option. (Unless they had cable TV, that is. With cable, we could choose between the war boosters on the networks, and the war cheerleaders on FOX).

Josh’s case against the BBC isn’t that impressive - basically, in months of 24-hour reporting, the Beeb made a handful of generally slight errors. Not exactly a stunning indictment. As Kevin at CalPundit argues:

Kevin goes on to point out that on the most substantial issues, the BBC seems more correct than wrong:

Meanwhile, some significant counter-evidence - such as an academic study which found that the BBC was actually one of the most pro-war of British networks - is simply ignored in Josh’s article.

Sadly, Josh hasn’t yet replied to CalPundit, although he did reply to the (in my opinion less substantial) criticisms made on Matt Yglesias’ blog (by both Matt and Matt’s readers). Mainly, Josh seemed put off - understandably - that one person accused him of being a “sell-out,” and many questioned the motives of a Rupert Murdoch-owned magazine criticizing Murdoch’s competition.

Josh also seem annoyed at how many people brought up the case of FoxNews for comparison. But Josh has only himself, or perhaps the Weekly Standards‘ editors, to blame for that. The sub-headline of his story (” Unfair, unbalanced, and afraid”) implies a comparison between Fox and the BBC; it seems a little unfair of Josh to object to critics making the same comparison.

There is something of an ad hominom in certain of the criticisms (such as the “sell out” comment), and Josh is right to treat those comments with disdain. But I think he’s missed a larger point - and one that, admittedly, in no way refutes Josh’s case against the BBC. Nevertheless: The Weekly Standard didn’t publish Josh’s article because it was well-researched, or well-written (although it was); nor did the Standard print it because they are in any way opposed to media bias. They published Josh’s piece for one reason only: Because it attacked the BBC.

To see what I mean, imagine that Josh (who, to his credit, dislikes Fox News) wrote an equally good article outlining Fox’s considerable bias. Is there any chance that the Standard would run it as a cover feature? Heck, would they print it at all? No, of course not. Doing that would be be criticizing both Murdoch and the right, and the Standard will not do that (unless they’re trying to avoid being dragged down with a drowning man, e.g. their criticism of Trent Lott). The Weekly Standard doesn’t care about media bias or dishonesty; they only care about these things insofar as they’re useful as partisan tools for bashing the left.

In that sense, I think the critics of this piece were on to something. Until the Standard finds dishonesty, bias and hypocrisy on Fox News worth criticizing, it does seem rather self-serving and smug of them to criticize the BBC’s far less egregious bias on their cover. Regardless of the fact that Josh’s own motives in writing the article were, I believe, high-minded.

Right Wing News has released its poll of lefty bloggers - “Left-Wing Bloggers Select The Greatest Figures Of The 20th Century.” I was disappointed with the paucity of women on the list - Eleanor Roosevelt and Marie Curie both deserve to be on such a list, I’m sure. But shouldn’t at least one suffragette be on the list? (I would have voted for Alice Paul). And how about Ella Baker - a woman who was arguably just as important to the civil rights movement as Martin Luther King Jr., who was the figure the most left-wingers voted for?

When the right-wingers came out with their list, there was some criticism of how sexist it was. I’m disappointed - but not surprised - that the left-wing bloggers polled didn’t do any better.

Ah, well. Check out this post (and the comments following) for more women who should be included on lists like this one, but are too-often left off. (Admittedly, not everyone mentioned in that post is from the 20th century, and no non-Americans are included… but I’m feeling too lazy to make a “great 20th century not-necessarily-American women” post right now.)

UPDATE: Matthew Yglesias comments:

The problem with having an exceptionally entertaining and interesting discussion in comments is that it really takes away from my blogging time - I’ve got a huge build-up of links that I’ve been meaning to blog about, and yet I haven’t posted a new blog entry for days and days.

I’ve been meaning to link to a post by Prometheus 6, for example, in which he bounces off an old comment of mine (which itself bounced off a comment of Bean’s) to discuss what the meaning of “racist” is. But now some time has passed, and I can’t even find the post. Weird. (Go read Prometheus 6 anyway, there’s always a lot of great stuff at his blog).

Anyhow, the comments to that post (which I maybe just imagined?) led me to read Vision Circle, a groupish-blog sort of thing that is largely (but not exclusively) focused on race issues, and in particular on Black issues. There’s a lot of really excellent blogging going on there. For example, I thought this classification of racism into three classes of action was interesting:

Also highly recommended: This post, discussing the DLC’s belief that Democrats lose elections because special interests scare regular folks away from the Democratic Party. But in practice, it seems that “special interests” is a code for “black people”… and “regular folks” is code for “white men.”

And here’s a third example - this time a terrific post about Measure 54, the proposed California law which says that the government shouldn’t even acknowledge race when doing things like measuring inequality or gathering statistics.

Anyhow, go check it out.

• Greg Palast discusses the cause of the blackouts, and provides a brief (and enjoyably biased) history of power deregulation. Via Elayne Riggs.

• A lot of bloggers have gone “Fair and Balanced” this week. I mean, a lot of bloggers. (Once again, via Elayne Riggs).
• Matthew Yglesias critiques a recent New Yorker article on helping poor folks via government “marriage incentives” programs. As he points out, the needy woman profiled in the article could be helped with much more certainty by a well-funded bus system.
• Wired has a fascinating article about new technology for manufacturing diamonds - but these are real diamonds, not cubic zirconia. If so, the potential benefits are endless: faster personal computers, cheaper gems for all, the undercutting of the “blood diamond trade,” and the screwing over of De Beers, one of the most evil corporations in the world. Via Blueheron.
• When George Bush meets a U.S. soldier, does he need to struggle to keep himself from openly sneering and spitting at the soldier? I wonder. Anyhow, check out this well-done flash animation on the subject, linked to by Making Light.
• Pigs and Fishes does a wonderful and intelligent job ripping apart an anti-gay-marriage argument.
• Sometimes it’s hard not to like mob violence. Wis[s]e Words has an example of what I mean, from Argentina.
• In the last several years, I’ve paid literally hundreds of dollars in overdue library fines. It’s because I tend to take dozens of books out at a time, so if I forget to renew for even a short period the fines build up very quickly. But as the Head Heeb recounts, I’ve gotten off very lightly compared to poor old Henry Justice.
• Body and Soul discusses a recent article on the ongoing tragedy of Afghanistan, and relates it to the tragedy-in-the-making that is our Iraq policy.
• Trish Wilson dissects the so-called “war on boys” in higher education.

For folks who are interested, here are some more links about the Jesus Castillo case. This isn’t meant to be a comprehensive list - just some of the posts that have caught my eye.

• The Comics Journal Weblog’s Dirk Deppy discusses the case, and my posts in particular. Dirk agrees with me that “Arguing that Demon Beast Invasion contains some sort of serious artistic worth is an uphill battle, especially once you’ve read the work in question.” However, unlike me, Dirk thinks there is a danger of a slippery slope.

• Julian Sanchez responds to me, as well, and he and I have a brief debate in his comments section. With all due respect (and I like Julian a lot), his belief that “banning Maus would be no better and no worse, in itself, than banning Demon Beast Invasion” is exactly the kind of nihilism that makes it impossible for me to relate to the first-amendment-purist position.
• I’ve linked to this Beldarblog entry before, but he’s added so much in updates that it’s worth reading again.
• Eugene Volokh examines the case, and concludes that “the flaw, if there is one (and I think there is) is with obscenity law generally, or the court of appeals’ application of it, and not with some new standard being created for comic books.”
• Amused in Review comments “I definitely think you ought to expect more of a lawyer who manages to rack up $60,000 in fees defending a misdemeanor case that netted a $4,000 fine and 180 day suspended sentence.” (The title to this post is pretty clever, too.)
• Jaquandor of Byzantium’s Shores uses this case as an example of what’s wrong with arguments based on “common sense.”
• Peter David takes the opportunity to make a general argument against obscenity laws.
• Kevin at Lean Left writes about the injustice of arresting a clerk for this sort of thing, regardless of what you think of obscenity laws.

Some readers have asked me to explain this passage, from the post before this one, in more detail:

Avram responded:

The analogy I’d use is elephant ivory. Having a market for new elephant ivory is obviously a bad thing; it encourages poachers to kill elephants, leading to near-extinction.

What’s not so obvious is that having a legal market for old elephant ivory also encourages poachers to kill elephants. Why? Because in practice, it’s practically impossible to tell the difference between new and old elephant ivory. Therefore, if there’s a profitable market in old elephant ivory, that will motivate poachers to kill elephants and sell the new ivory, falsely claiming that it’s old ivory.

If we want to take as much of the profit out of poaching as possible, it’s not enough to just outlaw selling new elephant ivory. We also have to outlaw selling anything that’s in practice nearly impossible to distinguish from new elephant ivory.

Similarly, it’s not enough to outlaw possessing or selling “real” child porn - by which I mean, child pornography that was produced by actually sexually abusing real children. We also have to outlaw “virtual” child porn - that is, child-porn-like images so realistic that they’re indistinguishable from the real thing. If there’s a marketplace for material that’s for all practical purposes indistinguishable from real child porn, in practice that creates a market on which real child porn - falsely marketed as “virtual” - can be sold.

The same argument applies to rape porn (that is, photos or films depicting realistic-seeming rape scenes). If we want to outlaw people making money by selling films of real rapes, then we have to outlaw all rape porn.

To see why, imagine the police raid a porn producer’s studio and find tons of photos of children being raped. The porn producer says “sorry, I bought all of these from someone - I forget who - and he said he generated them on computer.” Suddenly, it becomes, for all practical purposes, impossible to enforce child-porn laws. I’m not willing to pay that price in order to protect the market viability of virtual child porn.

Lis wrote:

I wouldn’t outlaw prose and poetic descriptions - the only “virtual” porn I’d outlaw is visual representations so realistic that they’re not easily distinguishable from the real thing, for the reasons I just described in my answer to Avram.

Also, I’m calling for this in the context of the Miller decision - which says that no work that, taken as a whole, has serious literary, artistic, political or scientific value, can be obscene. So performances of Romeo and Juliet would be safe.

UPDATE: Reading the comments, I think I’d better clarify something (thanks, Charles and Kip!).

This post is not calling for an expansion of censorship laws. On the contrary, I’m saying the censorship laws should be narrowed, so that fewer works are deemed “obscene” and therefore lacking first amendment protection.

Under current law, all the stuff I talk about above is obscene - plus many more things besides, such as Demon Beast Invasion. What I’m advocating is that only rape porn and child porn (as defined in this post, above) should be censored; nothing else should be. I’m arguing for less censorship than we currently have, not more.

Jim of Unqualified Offerings responds to my previous entry thus:

* * *

Apparently Jim entirely missed the point of my previous post, which was

1. the reason the jury found no serious artistic or literary merit in Demon Beast Invasion is that there was none to be found; and
2. folks like Jim who think this ruling strips first amendment rights from the entire comics medium have misunderstood the decision, and are needlessly spreading panic. Contrary to Jim’s opinion, the sky has not fallen.

* * *

I’m not sure what Jim means by a “feminist” disapproval - as anyone who knows feminism knows, many feminists disagree about obscenity laws. (Try asking Nadine Strossen, the very feminist president of the ACLU, or Avadon Carol what they think).

More importantly, Jim’s putting words in my mouth. Of course, I don’t think Jesus Castillo deserves a felony on his record, a $4000 fine, or any jail time. I’d rather that Texas had never put Mr. Castillo on trial at all; as I said in my previous post, prosecuting this case was a waste of court time and taxpayer money.

The good news for Jesus Castillo is that Jim has again misunderstood the case. Mr. Castillo was sentenced to a year’s probation; assuming he doesn’t break probation, he won’t spend any time in jail. And his conviction is a misdemeanor, not a felony, so he’s spared reporting a felony conviction on future job applications. (I got this info from William Dwyer’s excellent post on the case, by the way - link via Jim).

Of course, $4000 is still way too high a fine (it certainly seems like a whopping sum to me - that’s a third of my annual income!), but compared to other miscarraiges of justice (innocent folks on death row, Patriot-Act-related travesties, etc) it doesn’t seem like a world-shattering injustice. And the good news (via Tom Tomorrow) is, the fine has been paid ” by customers of the shop and other local supporters.” (Good for them!)

* * *

It should be pointed out that first amendment crusaders like the CBLDF are part of the problem in Mr. Castillo’s case, not part of the solution. Without the drumbeat of first amendment crusaders demanding a courtroom fight, Mr. Castillo might have chosen to cop a plea, and would probably have gotten off with a $500 fine. Since he was clearly guilty under the law, that would have been the most sensible course for him to take.

It’s only because he went to trial (and because his lawyers failed to get a record of the sentencing hearing, making it impossible for Mr. Castillo to appeal his sentence) that he wound up being sentenced as harsly as he was

* * *

By the way, don’t any of the CBLDF’s donors and supporters care that the defense in this case seems to have been rather on the incompetant side? If I were a CBLDF donor, I’d be pissed off; those folks are definitely not getting their money’s worth.

* * *

More generally, what censorship laws would I approve of?

Personally, I think that child porn and rape porn should be censored as heavily as possible (within the bounds of the Miller decision) and driven as far underground as possible. Allowing a market for child or rape porn (including “virtual” stuff) to flourish is wrong, because those markets encourage porn producers to harm real people.

Beyond that, I really don’t give a damn. But for me, “not giving a damn” goes two ways. I don’t agitate for Demon Beast Invasion and its ilk to be censored; but neither am I going to panic and start screaming “comics have lost all first amendment protection!” when a piece of worthless porn crap with zero artistic merit like Demon Beast Invasion gets censored.

UPDATE: I’ve removed a couple of paragraphs speculating about how the fine could be paid, replaced by the good news that customers and local supporters have paid the fine. Thanks to Lis for providing that info in the comments. Also, to prevent confusion, I changed my wording in the final paragraph; see my exchange with Eli in the comments for details.

SECOND UPDATE: See this response to me from Jim at Unqualified Offerings. The area of disagreement between me and Jim has gotten much narrower.

I also very much agreed with this post of Jim’s, in which he calls for the comics press to investigate this case, and in particular investigate whether or not the $60,000 CBLDF defense screwed up the case.

There’s lots of outrage in the comics blogosphere, because the Supreme Court declined to reconsider a finding that the comic book Demon Beast Invasion (issue two) is obscene. Jim at Unqualified Offerings writes:

Peter David - the much-acclaimed writer who’s associated with the Comic Book Legal Defense Fund (CBLDF) - concurs:

Damn, sounds bad, doesn’t it? Fortunately, it’s bullshit.

First, despite Jim’s claim, he has no way of knowing what the jury bought or didn’t buy. It’s quite likely that they examined the comic book, listened to the testimony, and decided that Demon Beast Invasion was obscene.

To be obscene in the United States, a work needs to meet the three-part Miller standard. The Miller standard asks:

Much has been made of the two expert witnesses, who the defense called to try and establish that Demon Beast Invasion has “serious literary, artistic, political, or scientific value.” But it’s plausible that the jury decided that the testimony of the two experts simply wasn’t very credible. Frankly, from what I’ve read, I don’t find their arguments very convincing. (I say this despite the fact that one of the experts is a friend).

• Both experts claimed that the worth of Demon Beast Invasion (issue two) couldn’t be judged without having also read issues one, three and four, but that’s not very plausible. After all, issue two was sold alone, as a distinct unit (the store didn’t even have the other issues available, according to the testimony of the Detective who bought the comic book). Comic books are sold in issues, and fans are entirely used to judging artistic merit by reading just one issue. Professionals do it too; it’s not unusual for comics to win awards based on only a single issue of a longer-running serial.

• Both experts testified that Demon Beast Invasion reflected Japanese culture, and used themes that were common in works of Japanese literature (although one expert, Scott McCloud, admitted under cross-examination that Demon Beast Invasion issue two consists of “basically sex”). But inevitably, even the worse imaginable piece of crap will draw on themes and reflect something of its cultural context. That isn’t enough to show serious literary or artistic merit (unless one wishes to argue that all art, regardless of how awful it is, has such merit).
• One expert, Professor Susan Napier, claimed that Demon Beast Invasion was beautifully drawn. I’ve seen artwork from DBI reproduced online, and from what I’ve seen it’s badly drawn hackwork. If I could recognize that, so could the jury.
• I’ve seen several people - including Peter David and the CBLDF - claim that there was no testimony to contradict the expert testimony. But that’s simply not true - the policeman who bought the comic testified that he felt the comic had no serious artisitc worth, and met the requirements of US obscenity law. One could argue that his testimony shouldn’t have been allowed, because he’s not an expert - but in order to argue that, the CBLDF lawyers would have had to have made that objection during the trial. They did not. Maybe that was an error on the CBLDF’s part - but if so, they shouldn’t blame the jury.

The bottom line is, the jury believed their own eyes. They were given a comic book to read featuring demons variously seducing/raping humans; the comic had no characterization to speak of, lousy drawing, and had nothing to say. It was an empty-headed collection of mean-spirited, degrading sex scenes. It had no artistic merit - at least, not to anyone who doesn’t consider the idea of artistic worth to be more than a joke.

(And speaking frankly, it’s hard to imagine my friend the expert witness - who has very refined taste in comics, and has often pointed out to me this or that comic book that was artistically interesting or exciting in some way - ever saying to me, “hey, Barry, check out this issue of Demon Beast Invasion, it’s really good.”)

* * *

It’s also been claimed that this decision is dangerious because it sets a precedent that comic books are for kids, and therefore should be judged by a different standard than other media.

No such precedent was set. In fact, the court never ruled on that question one way or the other. Why not? Because the CBLDF’s lawyers, once again, failed to object to such testimony during the trial - and thereby gave up the right to argue that such testimony is or isn’t allowable.

So - for better or worse - the Dallas Court of Appeals’ decision (which is the one that carries the precedental weight) on this case doesn’t consider this question one way or the other.

* * *

The fact is, the court did not censor Demon Beast Invasion because it was a comic book. They censored Demon Beast Invasion because it is obscene and not protected by the first amendment. The idea that this decision puts Watchmen or Maus - or Peter David’s work, or my own - in any danger is absurd.

The problem for Peter David and the rest of the CBLDF crew is, Demon Beast Invasion is obviously obscene, misogynistic crap. It has no value of its own. No one’s life will be lessened because they lose the chance to read it, and the political and artistic discourse in the United States will if anything be improved by a lack of Demon Beast Invasion in the mix.

So instead, we get the slippery slope argument: This isn’t a case about Demon Beast Invasion! They’re going to take away first amendment rights from all comic books!

Get real. The jury found no artistic merit because there was none to find. If a comic book that actually had some artistic merit had been under issue - one of Robert Crumb’s pornographic comics, for example, or an issue of Naughty Bits - the defense would have had a much easier time, because then they could have made substantial, reasonable arguments for artistic merit.

But it’s unlikely that any Crumb comic would ever get to that point - because prosecutors and police don’t like losing cases, and don’t tend to pursue unwinnable cases. Which is almost certainly why the cop picked out Demon Beast Invasion, rather than picking out Crumb or Naughty Bits.

Just to be clear, I’m not saying that all obscenity convictions are reasonable. There have been unreasonable decisions - and those are battles worth fighting. It’s true that an obscenity conviction like this one is a waste of courtroom time and taxpayer money. But it’s also true that defending Demon Beast Invasion is a waste of the CBLDF’s time and their contributors’ money.

And to claim that this decision - which says nothing more than that the same old obscenity laws that have always applied, still apply - has suddenly put all comic books in danger of widespread, arbitrary censorship is nonsense.

UPDATE: Whoops - I originally credited the decision to the Fifth circuit. Actually, the decision was made by the Dallas Court of Appeals (which is “technically, the court for the fifth of fourteen appellate judicial districts in the Texas state-court system”). I’ve updated the post above. Thanks to Beldar for providing this info in comments.

I can’t resist quoting at length from this excellent Through the Looking Glass post…

It’s worth it to read the whole post. (Via The Sideshow, whose post is also good reading).

I agree with the libertarians that freedom from government intrusion is a good thing - reproductive freedom, for example, and freedom from goverment censoring boards. But other freedoms matter as well - freedom from the threat of hunger and poverty, for example. Freedom from having a political process dominated entirely by the wealthy and by corporations. Freedom from discrimination. None of these freedoms, however, seem worth protecting to libertarians.

UPDATE: Will Baude responds and, unsurprisingly, disagrees. If the permalink doesn’t work for you, look for the entry dated August 13 2003.

UPDATE the SECOND: The blog Freespace disagrees with me, also.