Every college in America would be well advised to extract that pledge from incoming freshmen, under a new interpretation of the Americans With Disabilities Act issued by the Obama administration.

After the 2007 Virginia Tech shootings, many colleges amended their policies to make clear they could force students to withdraw if they considered them homicidal or suicidal.

But a change in Federal law now says that taking such actions is discrimination, particularly if the student is only a direct threat to himself.

However, making that distinction is difficult. And now, university administrators are confused about what they can and cannot do with students who are a direct threat to themselves or others.

The "change in federal law" is an opinion, issued in March, by the Justice Department that asking a student who poses a mere danger of suicide to leave campus violates the ADA, while asking a student who poses a danger of homicide remains permissible.  The opinion isn't actually a change in federal law; it's simply highly influential to federal courts called on to interpret the law.  It also permits the Department of Education to deny federal funds to colleges deemed in violation of the law, it permits the Justice Department to sue on behalf of suicidal students wrongfully expelled out of fear they might be homicidal, and it can be cited by private attorneys filing ADA lawsuits on behalf of those students.

Query:  A male student approaches the Dean, distraught that his girlfriend has left him, raving that he has a gun, and he's willing to use it.  The Dean, after counseling the student to seek help, may expel our hypothetical student (for the safety of his fellow students and college employees) if the student makes which of these statements?

A. I've got a gun.  I'm going to shoot that bitch!

B. I've got a gun. I'm going to shoot myself!

C. I've got a gun. I'm going to, I don't know what I'm going to do, but, ARRRRRRGH!!!!, the orbital mind control lasers! They command me to kill!

The answer is, only A.  Answers B and C expose the school to the threat of suit under the Americans With Disabilities Act.

Or a wrongful death suit, by the estates of former students and employees.

It's up to the schools to decide.  Or to Congress to rein in the Justice Department by amending the law, which will never happen until the next Virginia Tech  rolls around.

And then it won't happen either.

Think I'm wrong?  Consider the curious case of Wendell Williamson, who murdered two people in Chapel Hill, North Carolina, way back in the days before Virginia Tech.  Williamson and I were fellow students at the same law school.  I didn't know Williamson, but I know a lot of people who did.  One of them, a former roommate, recalled when I called him to ask what the HELL was going on in Chapel Hill that day, "Oh yeah, that was the guy who yelled at beer."

Meaning that Williamson would utter vague but dangerous sounding threats, to his beer, at the Henderson Street Bar and Grill, which in those days was the law school hangout.

Williamson was counseled by a dean I also knew, a man of the highest integrity and the utmost concern for his students, yet Williamson slipped through the cracks and went on a homicidal rampage.

Williamson is safely interned, today, at the North Carolina equivalent of the Arkham Asylum for the Criminally Insane.

But all that happened four years before Columbine, and twelve years before Virginia Tech.  Colleges and universities today are on heightened guard against internal threats   I have no doubt that, yesterday, a student who presented the apparent threat that Wendell Williamson presented would be asked to seek professional help but would also be asked to take a semester or two off from his studies.

Today I'm not so sure.

It is a truth universally acknowledged, that a single man on the deck of a fraternity house in proximity to a drunk shooting bottle rockets out of his anus should recognize himself amidst potentially hazardous circumstances.

But in this iconoclastic modern world, not everyone recognizes universal truths. Certainly neither Louis Helmburg III nor his lawyer Timothy P. Rosinsky recognize them. Perhaps that's why they are suing the Alpha Tau Omega Fraternity of Huntington, West Virginia, as well as hapless human asscannon Travis Hughes.

To hear Louis the Third tell it in his complaint, he was innocently standing on the deck of the ATO House at Marshall University, no doubt thinking about community service or church or his Org Chem homework, whilst some fraternity kids — and you'd better sit down, this will be difficult to grasp — were drinking underage and engaged in hijinks. Tumult ensued.

Defendant Hughes was highly intoxicated on this date and time, and decided in his drunken stupor that it would be a good idea to shoot bottle rockets out of his anus on the ATO deck, located on the back of the ATO house.

9. Upon information and belief, there were several other ATO fraternity members on the deck at the time of this incident, including one or more officers of the fraternity. Plaintiff and his girlfriend were also present on the ATO deck.

10. Defendant Hughes placed a bottle rocket in his anus, ignited the fuse, but instead oflaunching, the bottle rocket blew up in Defendant's rectum, and this startled plaintiff and caused him to jump back, at which time he fell off of the A TO deck, and he became lodged between the deck and an air conditioner unit adjacent to the deck.

Yes. Louis The Third went to a fraternity party, stood around while fraternity kids drank, and when one of them tried to shoot a bottle rocket of out his ass, he was "startled" and fell off of the deck and injured himself.

Believe it or not, I lived in an ATO house my senior year of college. No, I wasn't in a fraternity. ATO had been kicked off campus sometime back in the mists of prehistory, I believe, and their house converted into a dorm. How awesome was it? It had a roof deck. It had a sauna. Let me repeat — it had a sauna. Are you imagining it? Are you imagining why that was awesome? Yes. Yes it was.

But I digress.

Even as an insufferably nerdy college senior, I recognized that hijinks at an ATO House — even an ATO house converted into a dorm — posed patent risks. That's why I didn't sue the university the time I injured myself leaping out of a second-story window (the sophomores with water balloons and pellet guns were watching my door; it was the only way to flank them) or the time that I fell asleep in the sauna while intoxicated and dehydrated myself to the point of blurred vision. Because life has risks. And certain activities involve increased risks. Standing on fraternity decks while people drink and try to shoot rockets out of their asses is inherently and obviously risky.

But this is America. We sue. We sue even if we decided to stand on that no-railing deck during a drunken party and watch the guy light the fuse. In America, someone else is always responsible.

Hat tip to friend and law school classmate Marc on this one.

Yesterday in this post I mentioned a response I recently sent to a cease-and-desist letter generated in the course of a controversy about whether a particular seller was eligible to sell goods on the web site Etsy.

I've since spoken to the attorney to whom I wrote. We had a very civilized discussion, though we disagree on some fundamentals (including but not limited to the substance of his email).

He related to me that he is the husband of the young woman at the heart of the controversy, and the father to their two-year-old daughter. He said that since the controversy went viral, they have received a flood of abuse, both by email and in various internet postings. He said that the abuse included threats of physical harm against his wife. He said that people went as far as to post his daughter's school, its address, and a video of it. Though he complained about some of the factual claims made about the business in question, these threats and comments were his chief concern in his discussion with me.

For purposes of this post, I am taking him at his word.

I stand by what I wrote in my response to the cease-and-desist letter. Nobody who reads this site is likely to doubt my commitment to freedom of expression. But allow me to be blunt: if you are the sort of person who thinks it is funny to react to this sort of situation by making threats, or targeting somebody's kid, or engaging in harassment that crosses the line into illegal behavior, you are not a friend of free speech, and you are not my friend. You're an enemy.

The internet is full of assholes. I strongly disagree with this attorney's argument, which seems to be — in part — that people who write vehemently about controversial issues on the internet are morally or legally responsible for what assholes do when they read it. That's not the law. But that doesn't change the fact that people who make threats, and target the family members (especially children) of folks embroiled in controversy, and engage in direct harassment of them (as opposed to writing about the situation and stating their views), are vile, and we should call them out.

So. If you are someone who reacts to these controversies by sending threatening emails to the participants, or writes comments about how violence should be done to them, or posts their kids' schools, you are my enemy. I will call you out. You liked that response I sent to the cease-and-desist letter? You might not like the tone as much when it's naming and shaming you. You like it when I conduct lengthy and detailed investigations of fraud? You won't like it if I use those same techniques to track down people who make threats, and hand them over to the victims, or to law enforcement.

You want to argue? Fine. You want to criticize? Fine. You want to ridicule? Fine. But when you threaten, and if you cross the line into unlawful harassment, and if you target families of controversial figures, you're hurting the cause you think you're fighting for. You're also making it easier for law enforcement, and legislatures, and courts to justify censorship. You're a problem. And if you become my problem, I'm going to use my First Amendment rights to make you pay. You won't enjoy it.

My client in this matter engaged in clearly protected expression and said absolutely nothing that could rationally be taken as encouraging threats, violence, or unlawful harassment. If this attorney sues, I will fight him on every front without quarter and with all of the allies I can muster. But let's be clear: if you are someone who has been making threats against these people, then you are a substantial contributing factor to my client's stressful situation this week. That makes me angry.

Please don't make me angry.

Perhaps there is no perfect day to explain to your wife why dozens of strange women are talking about jumping your bones. However, some days are distinctly worse than others. Take, for instance, today, our fifteenth wedding anniversary. I remain astounded that such a smart, funny, and attractive person would be slumming with me. I keep worrying that she'll come to her senses. Thank God for the hot girl/goofy guy phenomenon.

You can find the satirical aspirations to pluck my virtue over here at Regretsy, in the comments to a post showing a letter I wrote in response to a legal threat to a pro-bono client. The underlying legal threat — which I have now learned was sent to some 42 people — is here. BoingBoing and Instapundit have picked it up, so it's getting some attention.

This is a good thing. Frivolous legal threats chill free expression. They work because the legal system is expensive and imperfect. The best way to fight them — and to fight for the First Amendment — is for all of us to band together to confront and defy legal threats. It's the reason I join with other lawyers (like the formidable Marc Randazza) in providing pro bono help to threatened bloggers, the reason I put up the Popehat signal to look for local counsel and others to help, and the reason that I choose to mix it up with the threateners.

Will you help? You can, you know. If you're a lawyer, you can be part of the pro bono network of lawyers stepping up to defy frivolous legal threats. If you're a blogger, you can write about them, and help expose thuggish attempts to chill speech. If you're just someone who reads stuff on the internet, you can tip off lawbloggers when you spot legal threats, and you can educate yourself about — and support — anti-SLAPP laws and the efforts of organizations like the Electronic Frontier Foundation. Pick up the banner, fight the good fight.

By the way — if any of the other 41 people who got this threatening email are out there, I'd be happy to try to connect you with pro bono counsel.

Reminder: though the links reveal my Seekrit Identity and the letterhead of my firm, this blog is run only by me and my friends and co-bloggers. My firm has no involvement in its content.

At least some prostitutes have a sense of humor.

A Tuesday evening press release published by PR Newswire announced that the winner of Girls Gone Wild’s “Search for the Hottest Girl in America” would land in an unlikely place: an office on Capitol Hill.

Not only would she win the coveted title of “Hottest Girl in America,” she would also get a four-week internship in the office of Arkansas Democratic Sen. Mark Pryor.

To be clear, I know of no credible allegations that Arkansas Democratic Senator Mark Pryor has ever sold his body for the sexual pleasure of paying customers.  Any implication that Pryor is a prostitute arises naturally from his status as a United States Senator. It isn't his virtue that Pryor sells: He had to sell that to be elected in the first place.  No, if Pryor is a prostitute, it's because he daily sells his vote to the highest bidder in return for campaign contributions.

The release itself, to be clear, does not directly call Mark Pryor a prostitute.  It merely takes advantage of justified public cynicism about Congressional morals, and perhaps Arkansas politicians in general, in a crass attempt to make a buck.

So we've established that Mark Pryor is probably not a prostitute, literally speaking.

As for Pryor's qualifications as a thug, we're on firmer ground.  He's called in the Federal Bureau of Investigation, demanding that the author of an obviously parodic press release be prosecuted for "fraudulent impersonation", "attempted fraudulent sale of a government office", and unauthorized use of the Great Seal of the United States Senate, whatever that means.

How obvious is it that the press release was a parody?  Judge for yourself by reading the (now edited) original:

According to [Girls Gone Wild founder Joe] Francis, "At this time more than ever, women need strong representation in Washington. Women's issues and rights have been completely assaulted by the Republican candidates during this year's Republican primaries." Francis goes on to say, "When this opportunity presented itself, I felt there was no better way to empower women than to send the winner of Girls Gone Wild's 'Search for the Hottest Girl in America' contest to Washington D.C. I truly believe that women, not men, should be making decisions for women in this country."'

No doubt the overreaction on Pryor's part came from his surprise at learning that Joe Francis is not an advocate for women's issues, and that "Girls Gone Wild" is not a feminist wilderness conservation society.

Pryor knows that the FBI will inform him that no crimes were committed in the writing of this press release, though it's certainly possible that tits were shown.  That makes him none the less a thug, threatening criminal prosecution from his perch in the United States Senate over an obvious prank, and wasting the time and resources of the FBI in the bargain, time that agents could have spent on vital government business such as walking illegal guns into neighboring countries, entrapping 17 year old boys in false plots to blow up non-existent buildings, or planting electronic listening devices in houses of worship.

All for nothing: it's damned hard to make Joe Francis look like a good guy, and Senator Mark Pryor isn't up to that task.  Unfortunately, it's easy to make the Senate and Congress look like a corrupt cesspit of bloviating thugs, and for that, I guess, Mark Pryor can be proud.

Via Bruce Schneier, a refreshing exploitation of the (modified) Prisoner's Dilemma round on the split-or-steal game show Golden Balls.

I apologize to our readers, but I didn't want this image (which I forgot to insert into last night's post) to go to waste.

According to Charles C. Johnson at Breitbart, it's probable that Barack Obama has never eaten a dog in his life.

[I]n Jakarta, where the Obamas lived with their Indonesian stepfather, Lolo Soetoro, dog meat is illegal. In the majority Muslim Indonesia, eating dog is forbidden among most ethnic groups in the islands, though a small, black market is said to exist for those looking for it. The only exception are the Batak people, principally of Northern Sumatra who eat it on holidays–but Obama's stepfather, who was raised in West Java, isn’t a part of that ethnic group. Besides, the Obamas lived hundreds of miles and several islands away.

A diplomatic source close to the Indonesian delegation in the U.S. confirms that while dog is sometimes eaten in Indonesia, it is done so very rarely. “Obama had to go hunting for dog meat,” the source, who didn’t want to be identified, told me.

“I don’t know of anyone who eats it and frankly, I’m a little offended you would ask.”

Breitbart.com scoured Indonesian cook books. Not one mentions ways to prepare dog.

It seems that dog meat is harder to find in the streets of Jakarta than on the streets of Michael Bloomberg's New York (hint: you can get it a little north of Greenwich).  Which raises the inference that this passage from Obama's bestselling Dreams From My Father:

With Lolo, I learned how to eat small green chill peppers raw with dinner (plenty of rice), and, away from the dinner table, I was introduced to dog meat (tough), snake meat (tougher), and roasted grasshopper (crunchy). Like many Indonesians, Lolo followed a brand of Islam that could make room for the remnants of more ancient animist and Hindu faiths. He explained that a man took on the powers of whatever he ate: One day soon, he promised, he would bring home a piece of tiger meat for us to share.

is a complete fabrication.  James Taranto of the Wall Street Journal posits that young Obama was simply a very gullible boy.  Imagine this conversation around the Lolo family table:

Barack:  Ooh! The chicken is a little overcooked, dad.

Lolo: That's not chicken you're eating, son.

Barack: It's not?  What is it?

Lolo: That's 100% Grade A Prime Indonesian dog you're eating.

Barack: NOOOOOOOOOOOO!!!

Lolo: Next week we're going to have grilled tiger. <winks at Mrs. Obama>

I, on the other hand, refuse to accept that the man who killed Bin Laden was anyone's fool, even at the age of ten.  But it wouldn't surprise me at all to learn that Obama, back in his salad days as the hippest and most exotic young man at Columbia, Harvard, and Chicago, embellished a bit.

You know, to freak the mundanes. To impress those who are most easily impressed by "otherness."

Again, imagine the conversation around the dinner table:

Bill Ayers: I have a feeling you're going to love this chicken, Barack. It's free range, raised on a little farm just outside the city that no one has discovered, and fed exclusively on flaxseed.

Bernadine Dohrn:  Oh, it's too bad Barack couldn't make it to the get together at the new sushi place last week. They served an organically raised sea urchin harvested only at the bottom of the Marianas trench.

Barack Obama: Um, did I ever tell you about the time I ate a dog?

Ayers and Dohrn: WHOA!!!

It probably seemed like a good idea, back in 1994, to throw a few tidbits about eating dogs and snakes and orangutans and whales and unicorns and whatnot into Dreams From My Father.  No doubt Barry had been telling such tall tales for years…

and after all, who was ever going to read it?

Today early voting begins in North Carolina for the May 8 primary election.  Now that Rick Santorum has abandoned his campaign for President, the most important issue facing North Carolina voters, of any or no party, is to vote FOR or AGAINST the following amendment to the State Constitution:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

The amendment appears on the ballot because in November 2010, North Carolina voters understandably outraged by an unemployment rate above ten percent, a spectacularly corrupt statewide Democratic Party that had run North Carolina for over 100 years, and a government in Washington seemingly more concerned about promoting solar power and mandatory health insurance than about getting the economy back on track (though it had plenty of time to interfere with elections in a city with a population under 25,000), threw the bastards out.  They voted out longstanding Democratic majorities in the State House and Senate, and would have voted out the Governor and the State Dog Catcher if they'd been on the ballot.

The newly empowered Republican legislature, after running on a platform of economic freedom, budget reform, and government transparency, promptly delivered to voters concerned more than any other issue about jobs hemorrhaging from their cities and towns … a constitutional amendment to ban same-sex marriage, which is already illegal in North Carolina …

thus delivering on a longstanding promise that motivated exactly zero voters to switch their support from the Democrats to the Republicans.

How many people of the people voting on May 8 have read the Amendment's text and considered the effect it will have on the State and its people if passed?  I don't know, though I suspect that many of the legislators who put it on the ballot haven't.  I have, and for reasons which will follow in this and succeeding posts, I recommend that my fellow North Carolinians vote against Amendment One.

What is Amendment One supposed to accomplish?

According to its sponsors, the Amendment will prevent rogue judges from overturning existing statutory law (N. C. G. S. 51-1), which defines marriage as between "a male and female person", by inventing a right under the North Carolina Constitution for same sex couples to wed.  The Amendment will also prevent judges from forcing the State to recognize same sex marriages, or civil unions, solemnized in other states under the "full faith and credit" clause (Article IV, Sec. 1) of the United States Constitution.

Since the Constitution is the supreme law of North Carolina, the Amendment will indeed prevent either of these scenarios from coming to pass.  Of course, given the history, and past, present, and likely future makeup of the North Carolina Supreme Court, a body which so rigidly adheres to precedent that it refuses to abolish the antediluvian torts of alienation of affections and criminal conversation (common law torts which allow a cuckolded spouse to sue the "other woman / man" for money damages), despite the fact these laws make the State a national laughingstock, it is safe to say that there is precisely zero chance of a final judgment in this State ever recognizing a Constitutional right to same sex marriage.

I thought the law already defined marriage as a union between one man and one woman?

It does.  The question on May 8 is whether the Constitution should be amended to include that definition and (as we'll see below) a whole lot more.

If there's no chance that some rogue judge can "invent" a right to same sex marriage in North Carolina, why do we need to amend the Constitution?

I don't know.  My honest opinion is that the Amendment is on the ballot as an act of legislative pandering, but that's beyond the scope of a legal analysis.

So if marriage is already defined as a union between one man and one woman, does Amendment One do anything else?

Why yes it does.  I'm glad you asked.

Self-declared and contractual domestic partnerships would become unlawful.

Despite the existing statutory definition of marriage as between a "male and female person", a number of same sex (and opposite sex) couples have done everything they can to create a relationship which gives them, to the extent possible, the benefits of marriage.  I will interview such a couple later in this series of posts.

This is done through wills, grants of power of attorney for health care and financial decisionmaking, and, where employers offer it, declarations of domestic partner status granting access to employer-provided health and insurance.  A number of local governments in this State offer such benefits to declared domestic partners of their employees, including the County in which I reside.  If the Amendment passes, these benefits will become unlawful immediately.

This is because the Amendment goes much further than existing law.  It states that the only "domestic legal union" that shall be "valid or recognized" in North Carolina is an opposite sex marriage.  The term, "domestic legal union" is not defined, but it surely includes within its sweep the arrangement discussed above.  Such unions will not be "recognized" (meaning to have their existence acknowledged) by any court.

This means that, for domestic partners of employees of Carrboro, Chapel Hill, Durham County, the city of Durham, Greensboro, Mecklenburg County, and Orange County, a list that includes two of the State's five largest counties, and two of its five largest cities, all such benefits will end immediately.  They may also end, or become much more difficult to enforce, for domestic partners of private employers, many of which offer such benefits as an employee recruitment tool.

I'll discuss this further below.

I thought the Amendment doesn't prohibit private contracts?

What's a contract?

At its simplest, a contract is a legally enforceable agreement between two parties in which one party agrees to exchange goods or a service for money or other goods or service ("valuable consideration").  If Wimpy promises to Bluto that he will gladly pay five dollars on Tuesday for a hamburger today, that's a contract, which the law will enforce regardless of the fact  Wimpy and Bluto are enjoying a romantic relationship, whether or not this Amendment becomes law.

However, a court will not enforce a contract in which what's promised is found to be against the public policy of the State of North Carolina.  Such a contract is void.  The classic example of a contract void as against public policy is a contract to commit murder for hire, but there are many other such exceptions in North Carolina, such as a contract to repair a home entered by an unlicensed general contractor, or an agreement to waive liability for negligence against a builder.

If this amendment passes, expect lawyers to argue that all sorts of contracts which now pass without objection are void as against public policy, because they're founded on an unlawful domestic union.  I'll expand on this below.

Now, what isn't a contract?

A last will and testament is not a contract.  A will can be revoked at any time, regardless of promises made.  If this Amendment passes, any will in which one member of a same sex couple devises his or her property to the other will be open to challenge by spurned relatives, who can claim that the will was procured through "undue influence," in other words the love and affection between a couple engaged in a domestic relationship which is constitutionally enshrined as unlawful in North Carolina.

A power of attorney, whether for financial purposes or for health care, is not a contract.  State run hospitals may be required to disregard a health care power of attorney where power is held by a domestic partner.  Suppose Wimpy suffers a massive stroke and goes into a coma.  Wimpy has told his domestic partner Bluto that he does not wish to be fed through a tube, unable to enjoy hamburgers as a living vegetable.  Wimpy has even given Bluto a power of attorney over all health care decisions, so strongly does he feel about this.  If Wimpy is hospitalized at the University of North Carolina hospitals (a state facility), Wimpy's niece Olive, his only lawful relation, will now have a strong case to challenge Bluto's decision on the grounds that the law does not "recognize" a power of attorney procured through a domestic partnership, which is unlawful in the State of North Carolina.

Of course, even facially valid contracts, as discussed above, will be subject to challenge as against public policy, or procured through undue influence, if this Amendment passes.

Okay. The Amendment jeopardizes estate planning and health care decisionmaking for unmarried couples. Does it have any other effects?

Oh yes it does.

Any adoption, or custody arrangement, where the child enters a same sex household is automatically suspect.

North Carolina, like every other State, gives social workers and courts the power to remove a child from a household when it is deemed to be "in the best interests of the child".  While it is biologically impossible for same sex couples to produce children, such couples adopt children frequently, particularly in States where they can marry.

If Amendment One is ratified, it will become much easier for police or social workers to justify seizing such children, in the "best interests" of the child, even if the child was adopted in another State by a same sex couple lawfully married in that State, because such relationships are against the public policy of North Carolina.  Likewise, it will be easier for District Court Judges to justify such seizures.  An appellate court may reverse such a decision, but when was the last time you paid for an appeal to the Supreme Court of North Carolina?  It isn't cheap.

If Amendment One passes, my advice to same sex couples married in other states, particularly where children are involved, would be never to bring those children to North Carolina.  North Carolina has lovely mountains and beaches, but so does Maryland and so do many others states which don't enshrine discrimination in their Constitutions.

These considerations also apply to custody and visitation for biological parents of children who later enter same sex relationships (it happens).  It will be much more difficult for those parents to establish custody or gain visitation rights in North Carolina, no matter how good they are as parents.

You're in good hands.  But maybe you shouldn't drive a car in North Carolina.

Want to know how Amendment One will affect automobile insurance in North Carolina?  Vote for it and see.

The typical automobile liability, or uninsured / underinsured motorist, insurance policy, provides coverage to "You", the policyholder, or "any family member", meaning your child or spouse.  Under North Carolina law "foreign" insurance policies (meaning those written in other states) are construed under the law of the State where the policy was written.  So if one spouse (in a same sex marriage) is driving from Massachusetts to Florida and has an accident in North Carolina on Interstate 95, he or she will be covered under his or her spouse's Massachusetts auto insurance policy, written in a State where same sex marriage is the law of the land.

But will North Carolina courts enforce an out-of-state contract which violates North Carolina's Constitution and public policy?  Can they "recognize" a contract founded on a marriage which the State Constitution says is unlawful?  Partners in same sex marriages are not "family members" in North Carolina.

Again, if Amendment One passes, I wouldn't advise anyone married lawfully in a same sex marriage from another state to test that question.  Don't drive a car in North Carolina.

I'm not gay, but I'm living with an opposite sex partner.  Will Amendment One affect me?

I've limited my discussion here to same sex couples, because I believe the sole reason this Amendment is on the ballot is to enshrine bigotry against gay and lesbian people in our Constitution.  The short answer is "yes," it will affect you.  For a much longer answer, please see this paper by Professor Maxine Eichner of the University of North Carolina School of Law.  I'll add that I am deeply indebted to Professor Eichner for her writing on the Amendment, some of which has guided me as I wrote this post.

What is to be done?

In evaluating any law, one should examine its benefits in light of its drawbacks.  In this post, I've attempted to highlight certain and potential drawbacks of Amendment One.  Personally, I foresee no benefit whatsoever from the Amendment, but I recognize that many have religious reasons (the only beliefs I would concede are even potentially valid) for supporting marriage restrictions.

Even those voters should consider the harm this Amendment will do, before deciding whether to vote for or against.

Even if I oppose same sex marriage, do I support stripping health insurance away from same sex partners of city and county employees, who bargained with their employers for those benefits?

Even if I oppose same sex marriage, do I support overturning legally valid wills?

Even if I oppose same sex marriage, do I want to interfere in my fellow citizens' personal health care decisions?

Even if I oppose same sex marriage, do I support taking children out of loving families, and giving them to the State?

Even if I oppose same sex marriage, do I want to increase the number of uninsured motorists driving on the highways of my State?

All of these are certain or potential consequences of Amendment One.  I suspect that even most supporters of the Amendment don't want them to come to pass.  Supporters of the Amendment should consider such consequences strongly, before deciding to vote in favor of what I submit is a most poorly thought out law.

I have further things to say about Amendment One.  In the near future, I will post an interview with a same sex couple who will definitely be affected, for the worse, by passage of the law.  I'll follow that with some thoughts about what opponents of the Amendment can do to oppose the Amendment politically between now and May 8.

Charles wrote earlier today:

[ it's ] Not racist against Obama but once you've hit the realm of "dog recipes" the joke isn't really about Obama anymore. It is about weird cultural practices that other people have and we don't.

Racist is not the same as culturalist.

Racism is bad. Culturalism is not, because culturalism is really about VALUES. Folks who want to stamp out culturalism know – at some level – that most people are not only culturalists but feel pretty darned good about being culturalists, which is why they never say things like "attacking a foreign culture for eating dogs or cutting off clitorises is bad". No, they first map a culture to a race, so that if you CLAIM you dislike people who engage in blood feuds and cut off clitorises the TRUTH is that you really dislike brown people.

Nonsense.

I've hired black, white, brown and yellow people. Straight, gay, and even "wears a fur suit to cons on the weekend" people.

I've hired them without reference to their skin color or sexuality BECAUSE I know their culture – they believe in hard work, prudence, and losing face vis-a-vis a customer when the job calls for it.

I ran into cultural problems once when an employee couldn't stand to lose face and acted out – by throwing a stapler against a wall.

I fired him.

This is despite the fact that he and I had identical ancestry.

He was a CULTURAL misfit in my organization.

I don't hate Obama because of his skin color (I don't even "hate" him at all).

I loath Obama because he's a member, not of some Islamist culture, but because he's a member of the American leftist culture where "clever ideas", credentials, left wing shibboleths, good intentions and personal contacts trump actually delivering value.

As such I see that tying Obama to Indonesian culture is funny, but a bit silly. Obama gives no evidence of having internalized any Indonesian culture, so it's an attack that has no body to it.

Attacking Obama on his ACTUAL culture of American corporatist / group-rights / technocratic / top-down centralism makes much more sense to me.

(Note: feel free to replace "Obama" with "Romney" in the above rant)

This is a story about when stupid jokes stop getting stupid and start getting real. If you think I've used the word stupid too many times already, get used to it because I'm just getting started.

I'm not a Mitt Romney fan for all the reasons a liberal would not be a Mitt Romney fan. Accordingly, I've had a great deal of fun with the Saga of Seamus, the Romney family dog who was strapped to the roof of the car for a family trip. It has everything you want in a profoundly stupid story: it fits certain useful narratives (a robotic candidate acting soulless and the vulture capitalist who is even mean to his dog), the candidate can't respond to the story without sounding stupid (Mitt said that he wouldn't put a dog on the roof if he knew people would get upset, which is exactly the wrong answer, and just what you'd expect from a flip-flopper) and it prominently features diarrhea. For all of these reasons it has had remarkable staying power in the public imagination, via sites like Dogs Against Romney, for example, even if it rarely makes it into the mainstream media by anyone not named Gail Collins.

But, like I said, it is a really stupid story. Ann Romney finally went on the offensive, claiming that Seamus loved riding on the car roof and that he loved going on vacation with the family because it beats being in the kennel. And you know what? I've assumed that all along. A trip on a car roof is no different from a ride in the back of a pickup truck and every time I get a few miles outside of the city limits, that's what I see. And when I see a dog in a car in the city… he's sticking his head out of the window. The Seamus meme generally maintains that the dog got diarrhea because he was terrified during the ride; Ann says no, that he ate turkey off the counter and… well, that's probably too specific but I'm willing to accept that Seamus got the shits because finding the worst possible time to have gastrointenstinal difficulties is basically what dogs do. Hell, taking a long family trip in a station wagon with five kids and a dog is literally the only human behavior I've ever seen attributed to Romney.

(This whole line of attack is more like the Swift Boating of Kerry than anything else with the caveats that (a) nobody is lying about whether Seamus was on the roof whereas there is no real evidence that Kerry lied about his injuries and (b) it would have been a huge, non-stupid deal if Kerry had lied about his injuries, so basically it is like Swift Boat in that it is pure political nonsense that is impossible to respond to without having the principal effect of prolonging the story.)

Alas, every stupid story attacking one side has to have an equally stupid story in response. Today, the Daily Caller found the perfect one: on page 37 of Dreams From My Father, President Obama offhandedly noted eating dog as a child in Indonesia. If strapping a dog to your roof is bad, eating dog is worse. And, though there are obvious reasons why this is silly (he was six; he didn't choose his diet; if your culture doesn't keep dogs as pets, meat is meat (we'll get back to this one)) kudos to Jim Treacher for sussing out a great joke and really hammering it home. On his post, Treacher keeps jabbing at Obama, implying that Bo is not safe with Obama around. This led to a million jokes about Obama eating dogs on Twitter none of which bothered me. It is a stupid joke playing out the string. Obama ate dog; if we can't joke about that why bother telling jokes.

Sadly, here's where the record scratch comes and I stop sounding like someone who has a sense of humor. That I have let the word "diarrhea" do most of the heavy lifting so far, humor-wise, isn't making much of a case for me either, I admit.

It didn't take much time for the joke to get out of hand. #Obamadogrecipes was, to me, the death of the Obama-ate-a-dog joke. The brainchild of Iowahawk, the Obama Dog Recipes hashtag exploded. But, seriously, this is gross and kinda racist. Not racist against Obama but once you've hit the realm of "dog recipes" the joke isn't really about Obama anymore. It is about weird cultural practices that other people have and we don't. Substitute "Obama" with "Korean" or "Indonesian" in the hashtag and see if that doesn't make you a little uncomfortable. Even Iowahawk admitted that he was a little uncomfortable about it.

As stupid as the Seamus story is, the joke never turned into something about Mormons or even vulture capitalists. It was just a joke about a guy who hosed off a dog that was shitting itself on the roof and then stuck him back on the roof and kept driving. When Obama eating a dog jokes are about Obama, I have to admit that all is fair in politics. When the joke shifts to everyone taking an old racist standby about foreigners for a few laps around the track… ick.

Stop it. That's the entirety of my point, despite how long it took to get here. Stop it.

I can't believe this is what I came back to the blog for. I'm going to go pet my cat.

The headline in yesterday's Minneapolis Star Tribune reads, "Dangerous Dogs are a quandary for police," but the story beneath tells us that "Poorly trained police are a hazard to dogs, their owners, themselves, and three year old girls".

Oh, the story begins well enough for the police, with the tale of an officer who, in safeguarding himself from two dangerous pit bulls, wounded a fellow officer by shooting him in the leg.  But there's a buried lede:

The shooting of two dogs during a police raid on April 13, 2011, has led to a civil lawsuit against the city by their owners, James and Aisha Keten.

The couple's three-year-old daughter was eating breakfast at the kitchen table in the Humboldt Avenue North house when police entered the front door on a warrant. As soon as the officers entered the house, they shot and killed one dog, Kano, in the living room, then moments later fired "multiple, hollow-point rounds towards the kitchen table, killing another of the Keten's dogs," Remy, that was lying beneath the table, the suit alleges. The Ketens say neither dog displayed aggression and the bullets passed very close to the 3-year-old.

The officers then restrained James Keten, 28, with plastic zip ties and beat and kicked him in the head, neck and face while he lay on the floor, the suit alleges. After a search of the house, Keten was not arrested or charged with any crime.

The city of Minneapolis denies that its officers kicked James Keten in the head, neck and face, but it admits that Officer Chad Fuchs was aware that a three year old girl was sitting at the table even as he fired multiple, hollow point rounds in her direction.

Fortunately only the dog was killed.

The story illustrates one of the most common forms of journalistic malpractice: taking the police at their word.  Reporters, as much as lawyers, are aware that police lie all the time, and yet so seldom do journalists apply the sort of admirable scrutiny we've seen applied to law enforcement in the Trayvon Martin case to the ordinary, humdrum police work of firing multiple, hollow point rounds at stationary dogs and the three year old girls who own them.

Such as questioning whether the dogs officers shoot are really dangerous.

Or whether the officers who say they're justified in the shooting dogs are people of good, honest character.

Or whether the threats good, honest officers face justify any force whatsoever, much less deadly force.

On the other hand, perhaps these are dangerous questions.  Unlike accused drug dealers and people who against all reason and sanity draw weapons on heavily armed police officers, dogs are friendly animals, beloved by most Americans.  If the media were to look into the facts behind the case every time a police officer shoots a dog, someone might call for that level of scrutiny every time a police officer shoots a human being.

And who knows where that could lead?

I'm in a rush, but I can't avoid commenting on the affidavit of probable cause submitted in the matter of George Zimmerman's shooting of Trayvon Martin.

It's a piece of crap.

Explaining why could be an epic post, but I don't have much time, so I will make it brief.

The affidavit is argumentative, it's conclusory, and it lacks attribution.

An affidavit shows proper attribution when it explains how the affiant knows each piece of information in the affidavit. That doesn't mean that a proper affidavit can't be based on second-hand or even third-hand or fourth-hand information — it can. But a proper affidavit must explain how each link in the chain gained the information — how everyone knew what they knew — so that the judge can make an intelligent assessment of the sufficiency of the evidence.

For example, a properly attributed affidavit might say "On April 13, 2012, I spoke with Officer Smith, one of the other officers on the case. Officer Smith told me the following: a few hours before he spoke with me, he interviewed witness Jane Doe. Ms. Doe told Officer Smith that she was walking down Main Street when she saw a man she recognized from the neighborhood as Dastardly Dan running out of the bank."

By contrast, a bad affidavit would say "Witnesses indicated that Dastardly Dan was seen running out of the bank." An even worse one says "Dastardly Dan ran out of the bank," and offers nothing to indicate the basis for knowledge.

Even though it was produced under the supervision of a special prosecutor, under circumstances that I'd assume would warrant extreme care, the Zimmerman affidavit falls into the "even worse" category."

The affidavit takes the lazy way out, starting with a paragraph that says, in effect, "we investigated a bunch of stuff, and here's what we learned," followed by a narrative of what the affiant believes happened. Almost nothing is specifically attributed — that is, for most facts asserted in the affidavit, it is impossible to determine whether a witness told the affiant the fact, how the witness knew, or whether it is just a conclusion drawn by the affiant.

This makes the argumentative and conclusory elements of the affivadit that much more problematical. For instance, the affidavit states that Zimmerman "profiled" Martin. But it's impossible to determine if (1) that's the affiant's characterization of the narrative that follows, or (2) that's intended as a separate factual assertion based on unspecified facts or evidence or witnesses. Similarly, the affidavit makes numerous statements about what Zimmerman thought or intended. It is impossible to determine whether these statements are (1) conclusions based on Zimmerman's actions and statements to the 911 dispatcher, (2) admissions Zimmerman made in some unspecified statement, or (3) mere argument.

The affiant occasionally gets it right — for instance, stating that Martin's mother identified his voice on the 911 tapes as the person calling for help. But for the most part, the affidavit offers a narrative of events, not a description of evidence supplying probable cause. Moreover, it is bizarrely vague at the most critical juncture — it blandly states "Zimmerman confronted Martin and a struggle ensued."

This is not the worst affidavit I've ever seen — but it's damn close, and the decision to proceed based on it in such a high-profile case is stunning. Cynics may say that I've been spoiled by federal practice, where affidavits are on average considerably more careful and well-drafted, particularly in some districts. But if it takes a high-profile case to highlight shoddy practices in everyday cases, so be it. An affidavit like this makes a mockery of the probable cause process. There's no way that a judge reading this affidavit can make an intelligent or informed decision about the sufficiency of the evidence — even for the low hurdle of probable cause.

Edited to add: it ought to be obvious, but in case it wasn't, this isn't a comment on whether or not Zimmerman committed a crime.

Edited again to add: I sure wish people wouldn't take this as an opportunity to veer into the case as a whole, which was not the point of this post. Also: I didn't give anyone permission to copy this, particularly not any nutjobs and/or trolls. Hear that, "Jason," person that I've never met and do not work with?

There are many federal criminal statutes susceptible to frighteningly broad interpretation. One of them, as I've suggested before, is the federal computer fraud statute, 18 U.S.C. section 1030. It can be interpreted to make it a federal crime to violate your employer's computer use policies (for instance, by reading Popehat at work) or to violate a web site's terms of use, however obscure. That's exactly the argument the feds made in their prosecution of Lori Drew, which was ultimately unsuccessful. This is some of the problematical language of the statute:

a) Whoever—
. . . .
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—
. . . .
(C) information from any protected computer;

Since "protected computer" means any computer in or affecting interstate commerce (any computer connected to the internet, basically), this can be read to criminalize logging onto a site beyond "authorized access" and getting information — including, hypothetically, registering for Facebook with any false information and getting information online from Facebook as a result.

The danger is not that the government will prosecute everyone who lies about their weight on Match.com or lets their 12-year-old register on Facebook or visits Popehat from Canada without sending us donuts. The danger is that the government will selectively prosecute people they don't like — that the government will use this statute to scratch their "there oughta be a law" itch when they are mad at someone who hasn't actually committed a real federal crime.

Fortunately, the government's ambitions have now been thwarted — at least in the Ninth Circuit. In United States v. Nosal, a divided Ninth Circuit panel rejected the broad interpretation of Section 1030 and adopted a narrower approach. I'm in appellate brief Hell, so I won't give you the full rundown. Look instead to Orin Kerr — the victor in the Drew case, who has been sounding the alarm on the dangers of this statute for years — or to Jacob Sullum. The decision — written in typically entertaining fashion by Judge Kozinski — does an excellent job of explaining how a broad interpretation of the statute could criminalize a vast swath of typical behavior. This ruling puts the Ninth Circuit at odds with other Circuits, but to a good end.

Edited to add: Doug's take is well worth reading. And not just because he quotes me.

I no longer write here.

At one time (this has always been Ken's site), I was the junior member of a thriving partnership, but it's evolved into a solo firm.  I'm sorry that I don't write here any longer, but for reasons various and sundry it isn't where my heart is any longer.  That's happened in the past.  I began blogging here, left for my own moody reasons (which had nothing to do with Ken), wrote my own blog which became too much work, and returned to the fold.  Primarily because I like Ken.  I've never met him.  I may never meet him, but I enjoy his virtual company.  He's the best blogger I read.

That said, I'll be blogging here for a few days next week, over a major political problem in my fair state, one which bothers me enough that I've spent hours digging through the mathom hall, to find my sword.  May it only wound evildoers.

Speaking of swords, let's talk about books.  Specifically the genre of "Swords and Sorcery", as Gary Gygax among others called it.  I recently re-read the collected stories of Robert E. Howard, those concerning the fictional character, place, and time who will carry his name forward not just into this century, but the next, Conan the Cimmerian, of the Hyborian Age. The appellation "the Barbarian" was popularized by others, principally L. Sprague DeCamp (a fine fantasy writer in his own right), who discovered the stories of Howard in the pages of Weird Tales  (one of the most important literary magazines of the twentieth century, which no serious person would now deny), and as with August Derleth and H.P. Lovecraft, refused to allow his predecessor's work to die.

As with Derleth and Lovecraft, Howard's work was saved because DeCamp (whose own Grey Mouser and Fafhrd work is superior to what he did to Howard) re-wrote and changed the chronology of the Conan stories.  Howard was a pulp author, but so were Raymond Chandler and James Cain, authors whose genius no one disputes.  The Conan stories (along with the rest of Howard's work) have recently been reprinted, as originally written, with interpretation and comment of an almost academic stripe.  "Beyond The Black River" is one of the five best short stories I've ever read.  You might consider reading it and other stories of Conan the Cimmerian in:

The Coming of Conan

The Bloody Crown of Conan

The Conquering Sword of Conan (my personal favorite, and Howard's last, and most mature, work)

Now at this point you're saying, Patrick, you're shitting me.  There's no way that a bunch of stories about Arnold Schwarzenegger are as worthy of study as the work of, say, Nobel Prize winner Doris Lessing (who reluctantly admits she's dabbled in science fiction and fantasy), but I'm saying it.  Raymond Chandler, whose work was considered trash by everyone except Ben Hecht when he wrote it, pointed out the now fully accepted truth that, "Down these mean streets a man must go."  A timeless truth Howard only wrote better at his best, and the man walked wearing sandals.

Don't believe me?  Try the Wall Street Journal.  A hundred years from now, Conan the Cimmerian will still be read and appreciated, while the works of Doris Lessing will be consigned to the one-dollar-a-mindlink (the inflation of a hundred years will make the dollar equivalent to a modern penny) Thoughtbin at Amazon.ch.

On that note, I've also been reading the re-released work of Michael Moorcock, who back when boomer males could get an erection without the aid of blue pills was considered a revolutionary in fantasy, acclaimed by such modern heroes as Neil Gaiman and Alan Moore.  While Moorcock now writes "literary fiction" (whatever that means), his most influential work (apart from inspiring the "Lawful" and "Chaotic" alignments in Dungeons & Dragons"), remains the Elric series of short stories, later re-written (by anonymous editors) and, as with Howard's work, re-assembled into some form of God-forsaken chronological  narrative series of fake novels, under the Del Ray imprint.  As with Howard's stories, the Elric series was originally written in no particular order, each story reflecting a phase in its hero's life, the last perhaps occurring decades before the next, as though told around a campfire.

And shouldn't all fantasy be appreciated out of chronological order, like yarns spun round a campfire?

Anyway, Moorcock's Elric stories, also, have recently printed in America in the original order and as originally written.  I'll just link to the first volume:

The Stealer of Souls

in which the reader is introduced to, in many ways, the 1960s' answer to Conan, a magician rendered a weakling by genetic infirmity, not a barbarian but the product of an ancient and decadent civilization, whose powers are based on magic, addiction to drugs, and a demon disguised as a sword far more intimidating than any Arthurian toy, Stormbringer.

Moorcock, by the way, when he's not writing fantasy and/or litfic, is a political theorist.  A self-proclaimed atheist anarchist who trumpets the virtues of socialism, to which I, in my non-ancient, non-decadent, barbaric mind, can only reply: Huh?

Judge for yourself, as Moorcock denounces all science fiction writers Who Came Before as racist, authoritarian, and insufficiently dedicated to government-enforced redistribution of wealth.  Tolstoy was also an anarchist and a socialist, but as a religious mystic he had little use for practicality or consistency. And unlike Moorcock (a writer I quite admire), Tolstoy was a genius.

Socialism is the anarchism of fools.

Speaking of socialism, can we talk? Due to my partner's political proclivities, we are near bombarded with calls from Barack Obama, or his surrogates, asking for money.  I can tell it's them because they open the conversation with "Mr. [my partner's last name which is not my last name]?"  Then they go into their spiel.  At the first breathing point, I reply with…

"I'm sorry, I'm a libertarian."

At which point they go on with their talking points, ignoring what I said to be answered with a dial tone, get off the phone on their own, answer with some non-Moorcockian equivalent of "Huh?", or, most rarely, try to discuss politics in their crude, Flatlandish way with me (usually these are the college kids), a la:

"So you support children working in factories 14 hours a day?"…

To which I respond:

"Only if the children are there voluntarily, as free agents."

Mind you, I once made the mistake of donating to a Republican, and we get occasional calls from them as well.  Last election season, one of them, a college Republican sort, engaged me in a similar discussion, asking me whether, since I wasn't going to donate to McCain, I supported polygamy and bestiality.

To which I responded:

"Only if the animals are participating voluntarily, as free agents."

There are probably many flaws to libertarianism as a political philosophy, but it's the ultimate excuse when one wishes to end a stupid political conversation.