State of the Blog: Yesterday marked the 365 day low point in Ethics Alarms traffic after what was otherwise a lively year. Coincidentally, it also marked the all-time high point in Ethics Alarms followers, if you don’t count Twitter, which I do not.
I’ve got a lot of housekeeping to do on the blog, and I’m hoping the annual dead spot after New Years gives me time to do i. This includes fixing some broken links, continuing to fix typos both old and new (Pennagain and Other Bill provide a marvelous service by flagging them, and I am behind right now), taking down some pages and categories that are or will soon be out-dated in the wake of President Trump’s defeat, taking the time to see if I can master the WordPress “block” system which right now robs me of an extra 30 to 40 minutes every day, and finishing and posting several articles that have been hanging around my neck in various states of incompletion. There are a couple of rationalizations that need posting, too, and some Comments of the Day that fell through the cracks.
I always have hope that I will get up the Ethics Alarms Awards for the year, which I have failed to do now for several cycles. They are fun, but they take a lot of time, and the stats say few read them. I may try a less ambitious version
Facebook finally allows me to link to articles, though it won’t post the graphics like it will for other websites, but after two years of being blocked for violating Facebook community standards, I consider that progress.
To be honest, I’m tired, and right now I’m sick and tired. The core group of commenters here keeps me focused on the mission, and for that I am grateful beyond words.
1. I was going to devote a whole post in rant form to this, but I calmed down. In August of last year, The Robert H. Jackson Center hosted a discussion on comedian George Carlin’s “7 Dirty Words” and the 5-4 FCC v. Pacifica Foundation SCOTUS decision in 1978 upholding the broadcast restrictions on George Carlin’s “seven dirty words” routine as well as the words he discussed. Emmy-nominated producer Stephen J. Morrison, serving as moderator, was joined by comedian Lewis Black, Carlin’s daughter Kelly Carlin and Cornell Law professor Howard Leib. I stumbled upon a recording of the discussion on the Sirius-XM “Classic Comics” station, and my head exploded so many times that I had to clean up the car like John Travolta in “Pulp Fiction.”
These four smug progressives went on and on about how backwards America was to still censor mere words on radio and TV, how they were just words, after all, how the sound and rhythm of particular words meant that artists could not just substitute less offensive or coded versions of words to comport with “community standards” and should not have to. They extolled the “more mature” approach of Europeans. Black got a big laugh when he said that Europeans knew that their children wouldn’t hear a “bad word” and scream, “OH my GOD! I heard that WORD!’ and “jump in the river.” The audience, progressives all, I presume, based on the questions they asked, laughed and cheered. Words don’t hurt anyone! Ever! The people who claim otherwise are religious zealots and fools.
You know what word nobody mentioned? “Nigger.” Yet I bet nobody in that room has raised a peep in public—I’ve looked—about professors losing their jobs because they dared to discuss that word. I doubt that Lewis Black would have the guts to do a routine about the absurdity of the decree that using “N-Word” is OK but expressly saying “nigger” makes you a perpetrator of systemic racism. (Louis C.K. has done such a routine, but then he’s already cancelled.) You can’t grandstand about how “fuck” is “just a word” and how words can’t hurt people as censors claim without at least addressing the black elephant in the room….and none of these hypocrites did. Worse, they spoke as if there were no such elephant.
George Carlin, who died 12 years ago, was not a hypocrite: he had the integrity to treat “nigger” like any other word. In one routine he said,
For instance, you take the word “nigger.” There is absolutely nothing wrong with the word “nigger” in and of itself. It’s the racist asshole who’s using it that you ought to be concerned about. We don’t mind when Richard Pryor or Eddie Murphy say it. Why? Because we know they’re not racist. They’re niggers! Context. Context. We don’t mind their context because we know they’re Black.
Carlin’s daughter didn’t have the guts to bring up his argument, and I’m willing to bet she and the rest of the panelists have refused to condemn those who seek to “ban” the word while cancelling anyone white who lets it escape their lips. I think the group agreed to ignore the issue so they could spend an hour making fun of conservatives. You see, the words that they think are bad for society are really fine, but progressives know what words are really bad for society.
2. Oh, the weird places trademark law goes! “Oh, the Places You’ll Boldly Go!,” an unpublished comic book mash-up launching the crew of the Star Trek Enterprise into the world of Dr. Seuss, was not fair use under the Copyright Ac according to a December 18, 2020, U.S. Court of Appeals for the Ninth Circuit opinion. Judge Martha McKeown (whom I knew in law school!), writing for the 3-judge panel, held that it wasn’t even a close call, even though the district court had granted summary judgment for the defendants based on fair use.
Applying the four fair use factors of 17 U.S.C. § 107, the court concluded that all of them weigh “decisively” against a finding of fair use. The key issue was whether the mash-up is “transformative” under the standard set by the supreme Court in Campbell v. Acuff-Rose. The court was not persuaded that the “extensive new content” created by the work is enough, holding that “the addition of new expression to an existing work is not a get-out-of-jail-free card that renders the use of the original transformative.” Rather than parodying, commenting on, or shedding new light on Dr. Seuss’s original, the mash-up, Judge McKeown said, merely “repackaged” the original work by Dr. Seuss “into a new format, carrying the story of the Enterprise crew’s journey through a strange star in a story shell already intricately illustrated by Dr. Seuss.”
3. What’s wrong with this headline? “11 More Republican Senators Plan to Back Futile Bid to Overturn Biden’s Election.” The article goes on to say that “A group of senators and senators-elect, led by Ted Cruz of Texas, said that they would object to the outcome of the election, while conceding that their effort would be unsuccessful.” You see, if I decide to protest something I find unacceptable by saying “Stop it!,” I am not in fact “bidding” to stop it. I am making a point. That is what the 11 GOP Senators are doing, and there is a material distinction. Here is the joint statement by the Senators. It is very clear that they are not trying to overturn Biden’s election, but demonstrating what ought to be done to bolster public trust in the process.
The statement says in part,
“…[The] deep distrust of our democratic processes will not magically disappear. It should concern us all. And it poses an ongoing threat to the legitimacy of any subsequent administrations.Ideally, the courts would have heard evidence and resolved these claims of serious election fraud. Twice, the Supreme Court had the opportunity to do so; twice, the Court declined. “On January 6, it is incumbent on Congress to vote on whether to certify the 2020 election results. That vote is the lone constitutional power remaining to consider and force resolution of the multiple allegations of serious voter fraud….there is long precedent of Democratic Members of Congress raising objections to presidential election results, as they did in 1969, 2001, 2005, and 2017. And, in both 1969 and 2005, a Democratic Senator joined with a Democratic House Member in forcing votes in both houses on whether to accept the presidential electors being challenged….The most direct precedent on this question arose in 1877, following serious allegations of fraud and illegal conduct in the Hayes-Tilden presidential race. Specifically, the elections in three states-Florida, Louisiana, and South Carolina-were alleged to have been conducted illegally. In 1877, Congress did not ignore those allegations, nor did the media simply dismiss those raising them as radicals trying to undermine democracy. Instead, Congress appointed an Electoral Commission-consisting of five Senators, five House Members, and five Supreme Court Justices-to consider and resolve the disputed returns. We should follow that precedent. To wit, Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission’s findings and could convene a special legislative session to certify a change in their vote, if needed.…
If the Times headline were correct, that would mean that such a commission’s investigation would threaten to result in a rejection of the election results. It that’s true, then it means that election may have been “rigged.” An effort to make certain the public is confident that election wasn’t rigged is not an attempt to overturn the election unless it was rigged.