Not at all about writing

This Argument Makes No Sense

/ JD Byrne / Leave a comment

Authorities in New Orleans have begun removing from public land a group of monuments dedicated to the Confederacy. It says something about how touchy a subject this is that the people doing the work had to be masked and protected by police snipers.

Among all the wrangling about this there’s one argument from the enablers of the Lost Cause that I just don’t understand, since it makes no fucking sense. It’s made repeatedly in the comments to this story in the Guardian. Here’s a representative sample, responding to the article’s point that this isn’t an issue of erasing history:

Yes it does. You have removed a piece of history from public view. Say you were walking past it with your young child and they said, “Daddy, what does that statue represent” then you could explain to them. Otherwise they are unlikely to learn about the past that has been removed, unless they teach it in school. But even then it’s not the same because it’s just words in books. It’s like removing fossils.

I can only figure that this is a post-hoc rationalization for a knee-jerk opposition to anything perceived as being done in the name of “political correctness,” because a couple seconds of thought shows is just doesn’t make a damned bit of sense.

Take this to its logical conclusion – once a monument of some kind has been erected, it can never be taken down without “erasing history.” If that’s true, we’re not exactly innocent:

IRAQ-BRITAIN-IRAQ-MILITARY-HUSSEIN-AUCTION-HISTORY-FILES

Then there’s the wholesale destruction of Nazi symbols and such in Germany following World War II. Or the toppling of statues of Stalin or Lenin following the end of the Cold War. The idea that monuments have infinite shelf lives simply isn’t rooted in history.

Beyond that, if a monument is history that can never be erased, does it create a perpetual obligation upon future taxpayers to keep it in good repair? Neither of those things can be true – they just don’t make any sense.

Let’s hypothesize using a silly example. In Futurama we learn that, sometime between Fry being frozen and thawed out, New York had a supervillain for a governor. Not only did he “collect” a bunch of famous monuments from around the world, he even added himself to Mount Rushmore:

Futurama_Mt_Rushmore

Now, years after the fact, are the citizens of New New York required to look at the face of evil everyday in the name of history? Do they have to pay to keep the super villain’s face looking crisp and life like? I’d say the answer is clearly no, but I’m not sure how those “this is erasing history” people could reach that conclusion.

Monuments and memorials are put up for a reason – because the people of that community at that time thought they were appropriate. There’s no magic in those intentions, nothing that shields the thing memorialized from future scrutiny. It’s entirely appropriate for future communities to decide that this thing is no longer worth celebrating.

Adios to the Hex

/ JD Byrne / Leave a comment

Here’s a bit of technical for you – the 2018 World Cup is already underway. Has been for months. What we normally think of as the “World Cup” – such as the event in Russia next summer or the last shindig in Brazil – is actually the World Cup “finals.” They only take about a month. The process of getting to the finals takes over a year, winnowing the field down from 210 countries to a relative handful.

One of the neat things about the process is that FIFA allocates slots in the finals to each confederation, but let’s each confederation figure out how to fill its allocation. Europe, for example, divides up into groups, with the winners advancing and some number of second-place teams matching up in playoffs for the other spots. South American, by contrast, puts everybody in one group and plays a true round robin tournament (easy to do when you only have 10 countries). Most other confederations use some group structure to do away with a number of nations over two or three phases.

CONCACAF – the federation that covers North America, Central America and the Caribbean – works that way. Two rounds of preliminaries produce six teams that battle it out in “The Hex” – ten games, home and away. The top three go to the finals, while the fourth has to playoff against someone else (from Asia, this time around) to get in. The bottom two go home. While the region isn’t the toughest as far as talent, the 10-game format still makes for a great combination of slim margins and long hauls. Witness 2014, when Mexico had to claw back into fourth place and win the play off to get to Brazil, or the current Hex, where the US is barely in fourth place after laying goose eggs in our first two games.

Sadly, The Hex is almost certainly dead. Last year, when FIFA announced that the World Cup finals would expand to 48 teams (from 32) in 2026, everybody was fairly certain that would be the case. All the extra spots would call for a massive reorganization of qualifying the world round. But now, with FIFA announcing the allocations for 2026, it’s official – there’s no point having The Hex if six teams will qualify for the finals from CONCACAF.

I’m not sure whether the expanded World Cup finals will be an improvement over the current setup. The bloated European Championships last year included an awful lot of dull group games, although the knockout rounds were better. And I’m all for letting more people get to the biggest dance in the world (sorry, March Madness). But it will undoubtedly depressurize qualifying, at least in most confederations.

So, adios to The Hex.

Hex

The False Unity of Opposition

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I had a thought on election night back in November, as we slowly crawled to the fact of President Trump. I wished I’d blogged it back then, but I’ll just have to ask you to trust me about this.

The thought, as I sat there and contemplated Republican control of both houses of Congress and the White House, was this – can the “party of no” go from playing opposition to actually governing? Recent events suggest they may not.

Since the passage of the Affordable Care Act (aka “Obamacare”), Republicans have pledged to repeal it. It was a promise Trump embraced enthusiastically during the campaign. If there was one clear thing Americans could expect a united GOP power structure to do, it was to gut Obamacare. Last Friday, House Speaker Paul Ryan withdrew the proposed “repeal and replace” bill, rather than watch it go down in flames on the House floor. Democrats only had to smirk from the sidelines.

What the hell happened? How could a party so unified in the past about a goal fall apart so quickly?

Because being the opposition helps creates a false sense of unity among those doing the opposing. Think about it – so long as the only thing a group has to do is say “no” to some outsider they don’t have to deal with their own internal divisions.

Make no mistake – during the Obama years, the GOP was the opposition. While they controlled both the House and Senate (for varying lengths of time), it wasn’t enough to override a veto, if it came to that. Measures with bipartisan support were possible (if vanishingly rare), but true GOP proposals were dead on arrival. Hence those 54 votes to repeals of the ACA, none of which actually accomplished anything (aside from being red meat for fund raising).

That’s not quite true – it papered over the differences in the party itself. After all, when the default position is anti-whatever the other party wants, it’s easy to stick together. It doesn’t matter why you take that position, only that you do. That one group of reps are coming from a deeply ideological direction and a second from a  more moderate one is irrelevant so long as they both arrive at the same result.

There’s an old saying that pure democracy is two wolves and a sheep voting on what’s for dinner. While we can assume there’s at least two votes not to eat the wolves, we might not assume there’s the same support for eating the sheep. After all, one of the wolves could be a vegetarian.

So now, I suppose, the question is – how long before the GOP wolves finally figure out how to eat the sheep.

Democracy_f59523_1766271

Three Laws to Rule Them All!

/ JD Byrne / 1 Comment

If you’re any kind of science fiction fan, you’re familiar with Isaac Asimov. He didn’t come up with the concept of robots, but a lot of what we picture when we think about robots in fiction (and otherwise) flows from his stories and novels about robots.

Among his contributions are the Three Laws of Robotics. They debuted in a 1942 story called “Runaround” and go like this:

1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.

2 A robot must obey the orders given it by human beings except where such orders would conflict with the First Law.

3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.

The Three Laws were a response to the hoary trope (even in 1942!) of robots run amok, turning on their masters. In other words, turning into Bender:

Bender

If you’re already programming them, why not program them not to kill you? Seems sensible.

Which is why, perhaps, one of my local legislators is appropriating Asimov’s Three Laws for West Virginia’s. Feast your eyes on House Bill 2881, introduced last week. It would amend “the Code of West Virginia, 1931” – dig our retro legal code! – by inserting language addressing legal requirements for a “robot” or “autonomous vehicle.” Anything look familiar?

§15-14-3. Minimum safety standards for robotic technology.

(a) A robot may not be enabled, by design or human command, to injure a human being.

(b) A robot shall be designed to obey the orders given to it by human beings except where such orders would conflict with subsection (a).

(c) A robot shall be designed to protect its own existence so long as such protection does not conflict with subsection (a) or subsection (b).

All right, it doesn’t track Asimov’s Three Laws word for word, but it’s pretty damned close. Frankly, given the dumb stuff our legislature tends to come up with, cribbing a law about robots from Asimov seems pretty astute, not to mention slightly ahead of the curve. It’s not like you can just throw the three together – you got to get the order right:

the_three_laws_of_robotics

What’s funny – or disturbing – is that Asimov himself wrote a short story about autonomous cars. It doesn’t end well. They may not take well to the Three Laws.

Maybe we should think about this a bit.

Really Denmark?

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You see a headline about a blasphemy prosecution and assume it’s about some Third World dictatorship or Alt-Right fever dream. But dateline Copenhagen? Really? Per The Volokh Conspiracy (aggregating other sources):

A Danish prosecutor says a 42-year-old man in northern Denmark has been charged with blasphemy for allegedly burning the Quran and posting a video of it on Facebook.

Jan Reckendorff says it was the first time since 1971 that a person was charged for ‘publicly mocking a religious community’s religious doctrines or worship,’ adding it is punishable by imprisonment for up to four months or fine.

No prosecutions in my lifetime? Either the Danes are very pious or this is the kind of stifling speech law that gets used so rarely that it’s impossible to say what’s allowed and what isn’t. The other few cases that have been prosecuted suggest just that:

This marks the fourth time in history anyone has been prosecuted under Denmark’s blasphemy clause: four people were sentenced for posting posters mocking Jewish teachings in 1938; two people were fined for carrying out a fake baptism at a masked ball in 1946; and two programme leaders at Danish Radio were exonerated in 1971 for airing a song mocking Christianity.

I mean, come on, Denmark. You’re one of those magical European places that liberals like me point to and say, “see, if they can do all these humane things, why can’t we?” Then you go and do something like this. I guess nobody’s perfect.

But, still, Denmark – really?!?

really-snl

Legal Realism In the Wild

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Ken over at Popehat poses an interesting philosophical question:

If a tree falls in the forest, does it make sound? If a right goes unrecognized and defied by the people charged with enforcing it, is it a right at all?

The answer may seem obvious, but it falls into what’s traditionally been a blind spot in legal philosophy.

A major enterprise of the philosophy of law is not only defining what a “law” is, but also identifying when, if ever, said laws shouldn’t be followed. To that end, there are two large camps among legal philosophers (along with numerous fringe theories that I’m just going to assume don’t exist for the length of this post).

Natural law theorists are that laws (or at least just laws) exist outside of human efforts at generating them. Therefore, human laws that conflict with natural law are invalid can be ignored. By contrast, legal positivists argue that what makes a law valid and just is the way its produced, thus making it completely a creature of human endeavor.

Both positions have serious issues. Natural law theory all but invites people to ignore laws they don’t like on the ground that it conflicts “natural law” (probably God’s law, but not necessarily). That’s fine and dandy if it’s not abiding by the Fugitive Slave Act, much less so if a modern Abraham decides he needs to engage in child sacrifice. But the legal positivist argument loses sight of broader notions of justice in favor of procedure. After all, lots of laws in Nazi Germany were properly proposed and enacted, but they were still vulgar and (at a gut level) invalid. Neither theory completely survives interaction with the real world.

So what happens in real life when, as Ken asks, a right is defied by the people responsible for protecting it? Something like this.

A woman in Georgia complained on Facebook that her ex-husband wouldn’t help out by making a drug store run when she and kid (the ex’s kid, too) had the flu. In other words, she called him a jerk (a friend chimed in that he was a “POS”). However, the ex just happens to be an officer in the local sheriff’s department. Thus, in a lawsuit she:

contends that her husband, a friend in the Sheriff’s Department, and a county “magistrate” put her in jail for her Facebook comment. According to her, Captain King filed a police report with his friend, Washington County Sheriff’s Investigator Trey Burgamy. Washington County magistrate Ralph O. Todd — who is not a lawyer, and who ran unopposed last year — issued a warrant requiring Anne King and Susan Hines (who had responded on Facebook by suggesting Captain King is a “POS”) to appear at a hearing. After a hearing at which Captain King was the only witness, Magistrate Todd caused a warrant to issue charging Anne King with criminal defamation: “SUBJECT DID, WITHOUT A PRIVILEGE TO DO SO AND WITH INTENT TO DEFAME ANOTHER, COMMUNICATE FALSE MATTER WHICH TENDS TO EXPOSE ONE WHO IS ALIVE TO HATRED, CONTEMPT, OR RIDICULE, AND WHICH TENDS TO PROVOKE A BREACH OF THE PEACE, SPECIFICALLY, SUBJECT DID MAKE DEROGATORY AND DEGRADING COMMENTS DIRECTLY AT AND ABOUT COREY KING, FOR THE PURPOSE OF PROVIDING A BREACH OF THE PEACE. Anne King also contends that Magistrate Todd threatened to “ban her from Facebook.”

The magistrate also falsely informed her that although she could call the ex a piece of shit to his face, she couldn’t post it on Facebook. Just to make it perfectly clear, the statute she was accused of violating was always a violation of the First Amendment, was recognized as such by the Georgia Supreme Court in 1982 and removed from the books by the legislature in 2015. In other words, neither the cop nor the magistrate had any legal authority to do what they did and the woman had a clear First Amendment right to say what she wanted (a few days later a “real judge,” as Ken puts it, dismissed the charge).

How does either natural law theory or legal positivism deal with this woman’s experience? Not well, which is why there’s a third way, one which I’ve subscribed to for a long time – legal realism.

Legal realism says, in essence, that law is whatever those with the power to make it and (more importantly) enforce it say it is. Higher notions of what law should be or what makes a “just” law don’t make any difference. If The Man says you’re going to jail, you’re going to jail.

My go to hypothetical for this used to be if the president signed a “Legal Philosopher Protection Act” that made a particular philosopher (John Rawls, Ron Dworkin – insert your favorite here!) off limits from academic criticism. Professor says, “that clearly violates the First Amendment” and duly proceeds to slag off on Rawls or whoever. Student reports Professor, who is hauled out of the classroom by a pair of US Marshalls. At some point things get sorted out, but not before an arrest, some period of custody/incarceration, and an awfully lot of bruised feelings.

Yet, that’s essentially what happened to the woman in Georgia – arrested for violating a law struck down during the Reagan administration for conduct that anyone with a working knowledge of the First Amendment knows cannot be a crime. And yet, there was an arrest. There was custody. And there are certainly hurt feelings.

There’s a meme that floats around about science:

science

Law kind of works the same way. We can argue esoterically about the nature of law, what it really is, and whether any particular law is just. But at the end of the day, when the cops arrive at your door to slap the cuffs on, they’re not interested in any of that. What they say goes, at least for long enough to make things miserable. Any theory that doesn’t recognize that has serious issues.

Hear Those Tiny Auto Horns

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Sometimes a headline skips across your screen and you just have to see if the article really lives up to it. Take this one, from CNet a few weeks ago:

Moths take tiny cars out for a spin

You have my attention.

Turns out, scientists have gotten silkmoths to drive tiny cars in search of mates using pheromones:

The methodology taps into how moths sense the world around them: the sensitive scent receptors on their antennae. The researchers placed a target scented with female silkworm moth pheromones, then observed the tethered male moths driving the car toward that target.

How does a moth drive a car with no hands? With an air-supported trackball, much like a mouse trackball. As the moth crawls around on the ball toward the scented target, optical sensors track the ball’s movement and translate that into steering, moving the car in the same direction.

The end game is a better understanding of the ability of insects to detect scents. That could, in theory, lead to a future where the bomb-sniffing dog or cadaver dog is replaced by a drone or robot guided by insect senses.

But the real question that needs immediate follow up is this – when these moths are out cruising for chicks, are they cranking side one of Led Zeppelin IV?

Favorite Tunes of 2016

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I know this is a bit late, since most “best of” lists tend to come out well before the year is out, but it kind of fits. I’d meant to write more about music this year, since it was a pretty good year, aside from the seemingly endless kill off of big time musical names (to cite just a few). But I didn’t, so here’s a quick amends.

A note about what this isn’t – it’s not a list of the “best” albums of 2016. For one thing, music is all subjective so talking about “best” is kind of pointless. For another, I couldn’t hope to listen to even a fraction of all the music that came out in 2016, so my choices are drawn from a small sample.

No, these are just eight albums that I thought were really good, that connected with me in  some way. They’re organized alphabetically, of course. No winners here.

Bent Knee – Say So
My breakout band for the year. A collection of young kids (I can say that now – I’m old) from Boston who meld the furiosity and energy of prog metal or punk with delicate, almost ambient passages, all tied together with great vocals. They played both ROSFest – generally regarded as a more “safe” prog festival – and ProgDay – where anything does – this year and blew the roofs off the joint both times (metaphorically at ProgDay, since it’s outside). Say So doesn’t quite capture the power of their live show, but it comes awfully close.

Eveline’s Ghost – The Painkeeper
Just prior to ROSFest, Greg Walker sent out one of his periodic Emails with new releases. Most of them have YouTube or Bandcamp links these days, so I spent some time clicking through. Once I heard the first few seconds of this Italian band, I knew I wanted to hear more. I didn’t realize (until I’d picked it up from Greg at ROSFest) just how good this album was. It takes the more complex/busy side of prog (think early echolyn), but never takes it too far. The songs are melodic and engaging, with some nice jazzy touches here and there.

Mike Keneally – Scambot 2
Mike Keneally really contains multitudes – crafter of catchy hooks, exquisite guitar player, conjurer of bafflingly complex arrangements – but he rarely lets them all fly together at once like he has on the Scambot albums. This, the second in a planned trilogy about the titular “composer with no finished compositions” and “grump”, cracks right out of the gate and never lets up. It’s less aggressively weird than the first volume, but just as knotty, clever, and intense. As usual, Keneally pulls it off with the assistance of talent collaborators like Bryan Beller, Marco Minnemann, and Kris Myers (of Umphrey’s McGee fame). My only complaint is that the last track, “Proceed”, sounds like it has a lengthy ride out guitar solo in it that he didn’t decide to let out!

Knifeworld – Bottled Out of Eden
Although they sound nothing alike, Knifeworld reminds me a bit of Keneally, because main man Kavus Torabi (also of Gong and Guapo) manages to build musical confections that are, at once, complex, deep, and layered but also hooky and compelling. This album has a lighter vibe than the last one, but the tunes are just as sharp and interesting.

Marillion – Fuck Everyone And Run
Marillion’s not exactly ever been an “up with people” kind of group (there’s a joke that they specialize in “songs about water and death”), but FEAR is more pessimistic than usual. Lyrically, it’s largely bound up in the mess in which the world currently finds itself. The epics “El Dorado” and “The New Kings” both alternate between anger and disillusionment, while the kind of title track, “Living in FEAR,” provides some naive hope that maybe we easily panicked humans might not have to live that way (as I said, it’s a naive hope). Stuck in the middle is another epic, “The Leavers,” which, amazingly, has nothing to do with Brexit and is actually about life on the road. The epics all hang together really well (better than “Gaza” and “Montreal” from the last album) and there are plenty of patented Marillion moments sprinkled throughout. Is it, as advertised, their best since Marbles? Absolutely, even if it doesn’t live up to that milestone.

No More Pain – The Spader EP
In the modern digital world the line between LPs and EPs is finer than ever (one of the AV Club’s best albums of the year was a “long player” that runs 21 minutes), but this 5-part epic is as long as many classic LPs of yore, so I think it stands on its own. No More Pain is another discovery of the year (thanks to ROSFest), a prog metal band from New Jersey that manages to be heavy and rocking without getting all “metally” in the way many bands do. Of course there are chops a plenty, but there’s also a sense of humor, which you’d have to have to produce an EP about and dedicated to an early supporter of the band (from the liner notes: “We are in independent group and stealing our music will make us very sad and we will cry little bitch tears as we text each other crying-face emojis”).

The Rube Goldberg Machine – Fragile Times
This is a quiet (the first track is called “Background Noise,” after all), small album (it’s not much longer than The Spader EP), but it’s full of nice moments. The band has a kind of post-rock sound, but shot through with more of a melodic sensibility. To borrow an observation from my brother (who said it about Marillion), there’s just enough proggy stuff going on to keep things interesting, but it doesn’t overwhelm the songs. Some really nice, melodic fretless bass work, too.

Thank You Scientist – Stranger Heads Prevail
Another entry from New Jersey (must be something proggy in the water), this band managed to avoid any drop off from their first album, Maps of Non-Existent Places. There’s a heaviness and lots of riffs that sound like they could come from a standard prog metal band, but the compositions are more interesting, not to mention the arrangements. Horns and violin are constants, with some tuned percussion popping up every now and then. Plus, they rock out at a solar powered milk farm. How can you not love that?

Like I said, not a bad year at all.

2016albumsoftheyear

A Modest Proposal – Play to Win

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December marks an end to the American soccer season – Major League Soccer wraps up with the MLS Cup Final and college soccer does the same with the College Cup. It wasn’t all that pretty this year, as Mike Woitalla notes:

What a weekend for American soccer! The Seattle Sounders won MLS Cup without a shot on goal. Stanford prevailed in the college final four without scoring a goal.

If you watched both MLS Cup on Saturday and the NCAA College Cup on Sunday, you sat through nearly four hours of scoreless soccer. (Before defeating Wake Forest with a penalty-kick tiebreaker, Stanford beat North Carolina on Friday in the same manner after 110 minutes of scoreless play.)

As Woitalla points out, this is not just a case of American exceptionalism. Last summer’s Copa America Centenario final didn’t produce a goal in 120 minutes and the 2016 European Championship final produced just one in the same amount of time. Low scoring in finals is, sadly, a fairly common occurrence.* The question is why?

For Woitalla the culprit is poor officiating. Specifically, the referee is so scared of being blamed for deciding the game because of a big call that he refrains from making lots of calls that should actually be made. As a result, defenders are free to foul attacking players with impunity, effectively strangling goal scoring chances in their crib.

Woitalla isn’t alone in his assessment and he’s not wrong. I’ve never understood the objection to a ref making a big call and “deciding” the game. After all, failing to make the call in the name of “letting the players play” helps decide the game, too. More consistent officiating would certainly be a good thing.

But I think the problem goes deeper than that, to something that is unique to soccer. It is alone among stick-and-ball sports in not forcing its championship contestants to fight until somebody actually wins. Baseball has extra innings; football, basketball, and hockey all have overtime periods of various kinds; even golf goes to extra holes (sometimes even an entire extra round!) to resolve ties. Why should soccer, alone, thrown up its hands after 120 minutes and say, “well, that was pointless, let’s try PKs!”

I can already hear an objection – that soccer is different because of its limited substitution rules and the fact that players cover an massive amount of ground in 90 minutes, much less 120. Going on and on with tired players just makes things worse. As evidence, the objector might point to the extra time of just about any game that gets that far.

True as that is, I think it puts the cart before the horse. There comes a point in these finals where one team, if not both, simply decide the best strategy is to take no chances, avoid the risk of losing, and play for penalties. There is, after all, a light at the end of the 120-minute tunnel. But what if there wasn’t? What if players and coaches knew from the get go that they’d play until somebody actually won the game. Might they not actually try harder to do that? That’s my theory, anyway – take away the certainty of a tie breaking and games would open up as both teams would need to try and actually win the damned thing!

Ties are an inherent part of the game of soccer. There’s nothing wrong with that. Goals being a precious commodity makes the scoring (and preventing) of them all the more special. It’s fine, during a long league season, to walk away after 90 minutes and split the points. And there are such things as exciting 0-0 draws, where both teams really go for it. But too many teams, when it comes to a final, play not to lose, to preserve their chance of prevailing in a shootout. Take that chance away and goals will have to come, regardless of how long it takes.

This isn’t a viable solution for prior tournament games that require a winner. It would destroy a team’s fitness for the next match. But for a final, where there is no next match, what have we got to lose? Only the pain of suffering through another two hours of scoreless soccer and a champion decided in the crapshoot of penalty kicks. It’s time to try something – anything – different.

nogoals

* Props where it’s due – the exception to this pattern was the final of the Women’s College Cup, in which my WVU Mountaineers fell to USC 3-1. At least it was a fair beating.

Music – Even Bad Music – Isn’t A Crime

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People can get passionate about music. I understand – I certainly fall into that bunch. When emotions flare people might even talk about music being so bad it’s criminal. But it’s good to know that such thoughts are limited to the realm of friendly hyperbole, at least in the First Circuit.

Musical taste should have been the least of Neftali Alvarez-Nunez’s problems. Alvarez-Nunez was a habitual user of marijuana and addicted to Percocet, which meant it was illegal to possess a firearm. But the firearm he possessed was actually an unregistered machine gun, so he got charged with two federal firearm offenses. He pleaded guilty and faced a maximum recommended sentence of 30 months, according to the United States Sentencing Guidelines.

However, in the report that included those calculations, the probation officer also included “a surfeit of information about the defendant’s musical pursuits.” These included being a member of Pacho y Cirilio, a somewhat popular group in Alvarez-Nunez’s housing project in Puerto Rico. The groups songs tended to (in the probation officer’s words): “promote violence, drugs and the use of weapons and violence.” That was particularly important because the housing project was “known to be associated with murders, drug sales and smuggling and weapons trafficking” (the First Circuit later would refer to it as a “no-man’s land”).

The probation officer, and later the Government at sentencing, suggested that this was a basis for imposing a sentence above that 30-month threshold. The Government introduced one of the group’s videos which, the court concluded, “included rifles and grenade launchers, along with children.” After rejecting Alvarez-Nunez’s argument that considering his music violated the First Amendment, the court imposed a sentence of 96 months – more than three times what the Guidelines recommended.

Thankfully, the First Circuit vacated that sentence (it called the sentencing court’s rational “implausible”), although the line between acceptable use of a defendant’s artistic expression and First Amendment infringement is a little finer than it perhaps should be. The court notes that there is no per se rule against considering “one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.” A defendant’s writings or recordings could be relevant to the stated purposes of sentencing, but there wasn’t any showing of such relevance in this case. The fact that some of Pacho y Cirilio’s songs involve unsavory or illegal conduct isn’t enough.

In reaching that conclusion, the court noted an obvious, but apparently overlooked, truth:

Implicit in this rationale is the assumption that the lyrics and music videos accurately reflect the defendant’s motive, state of mind, personal characteristics, and the like. But this assumption ignores the fact that much artistic expression, by its very nature, has an ambiguous relationship to the performer’s personal views.

In other words, Johnny Cash did not really shoot a man in Reno just to watch him die, Steve Hogarth was not an abused girl found catatonic on the Severn Bridge, and Roger Waters did not really construct an emotional wall around himself to cut himself off from the pain of real world. All right, so that last one actually happened, but you get my point. Need I say that I did not bash in the skull of my mentor and lead a rebellion? I’m not even blue, to tell the truth.

There are lots of things that are relevant to figuring out the right sentence for any particular person. The music they make, or listen to, really shouldn’t be one of them.