Irony Meter Cleanup On Aisle Four!

Rarely do I come across a piece of legal history I know nothing about that is so steeped in irony it almost hurts.

I recently saw, for the first time, The Ox-Bow Incident. I’d heard about it before and it was on one of the high-numbered pay cable channels we get and figured it was worth checking out. Released in 1943 (and based on the novel of the same name published in 1940), it’s the story of a mob in a small western town that forms to track down and lynch a trio of cattle rustlers who apparently murdered a local rancher. Of course they didn’t – the whole thing is a taught psychological study of mob justice and how inflamed passions can lead to horrible outcomes. In this case, the three men and hanged and only later does the mob learn they were innocent.

OxBow

The movie struck me as the kind that law profs like to write about (there’s a thriving trade in analyzing how lawyers are portrayed in media), so I went looking for any scholarly discussion of The Ox-Bow Incident. I found a couple of interesting articles, one of which had an astounding tidbit in it that I had to follow up on.*

As I said, the movie came out in 1943. The author of the article expressed amazement that such a movie got made in the middle of World War II, given that it took aim at the traditional Western narrative of rugged frontier exceptionalism. Whatever else it is, The Ox-Box Incident is an unflattering portrait of the American West. It could never have been made during the First World War when, he writes:

[when even a patriotic epic celebrating the American Revolution became a target for federal seizure and prosecution on the chance that the film might excite anti-British sentiments.

What the holy hell? I followed the footnote and saw the same of the film was The Spirit of ‘76 and off to Wikipedia I went.

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Released in 1917, just after the United States entered World War I, it was, as you’d expect, about the American Revolution. It’s the tale of Catherine, a woman of mixed heritage (French father and Native American mother) who, somehow, becomes the “morganatic wife” (I had to look it up) of King George III. Honked off at George and by the treatment of the American colonists, she returns to become a hero of the American Revolution.

Pretty stirring stuff, right? I mean, hugely melodramatic, but still, it makes you want to stand up and waive a flag, doesn’t it? So what was the problem?

The problem was that, at the time the movie was released, we had just begun to fight in the war with the British as our allies. Allies who apparently weren’t up for depictions of

[quote]multiple atrocities committed by the British side during the war, including soldiers bayoneting babies and raping unarmed women, the Wyoming massacre, and the Cherry Valley massacre.[/quote]

So when the film premiered in Chicago the head of the local film censorship board – whose name was, I shit you not, Metallus Lucullus Cicero Funkhouser – confiscated it and forced edits. It showed in Chicago in edited form, but after the cuts were restored for a showing Los Angeles the producer, Robert Goldstein, was arrested, tried, convicted, and sentenced under the Espionage Act. He served three years of a ten-year sentence before he got a commutation from Woodrow Wilson.

There you have it – a movie about the “spirit of 1776,” which presumably has more than a little to do with love of liberty and fighting tyranny – was suppressed by the nation it celebrates, to the point that the person who made it went to prison for years. They used to say that irony died after 9/11, but I’m surprised there was enough of it left after that explosion of ironic particles for that to matter.

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Fun fact – if you’re wondering why the First Amendment didn’t protect Goldstein from going to prison, consider two things. First, the Supreme Court, in general, was bad on the First Amendment around the time of the First World War. Second, at the time the Supreme Court had held that the First Amendment didn’t cover movies. They were “a business, pure and simple, originated and conducted for profit” not “part of the press of the country, or as organs of public opinion.” The case was overruled in 1952, but that was much too late for Goldstein.

Not quite so fun fact – according to the Wikipedia entry, it’s unclear what became of Goldstein after his prison term. He returned to Europe and it was thought he died in the Holocaust, but there’s some evidence he might have gotten out in 1938. Nobody’s really sure.

* Not online – Harry F. Tepker, Jr., The Ox-Bow Incident, 22 Okla. City U. L. Rev. 1209 (1997)

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New Technology = Moral Panic

I’m reading Tom Perrotta’s new book Mrs. Fletcher, which is about a single mother navigating the modern world on her own once her brotastic son leaves for college. At one point she flashes back to a talk given to the local PTA addressing the then latest and greatest moral panic – Internet porn. It was delivered by a prosecutor, naturally, since history shows that the best reaction to any panic is to lock people in cages.

The panic over Internet porn is hardly the first situation where an emerging technology leads some people to think said tech is going to lead the world to hell in a hand basket. In fact, it’s a fairly predictable pattern that’s played out many times throughout history.

Slate has an article about the moral panic that surrounded the great technological breakthrough of . . . cheap paper.

Although the printing press had brought reading out of the monasteries and upper classes, the actual production of books didn’t ramp up all that much because of the lack of quality paper. People lower down the socio-economic ladder didn’t own books, they owned a book – usually a Bible.

That started to change in the 19th century:

The paper machine, invented in France in 1799 at the Didot family’s paper mill, could make 40 times as much paper per day as the traditional method, which involved pounding rags into pulp by hand using a mortar and pestle. By 1825, 50 percent of England’s paper supply was produced by machines. As the stock of rags for papermaking grew smaller and smaller, papermakers began experimenting with other materials such as grass, silk, asparagus, manure, stone, and even hornets’ nests. In 1800, the Marquess of Salisbury gifted to King George III a book printed on ‘the first useful Paper manufactured solely from Straw’ to demonstrate the viability of the material as an alternative for rags, which were already in ‘extraordinary scarcit’ in Europe.

Then, in the 1860s, came the real breakthrough – paper made from wood pulp. Upwards of 90% of modern paper is made from wood pulp or recycled pulp. This cheaper, more readily available paper led to the explosion of low-cost books for the masses. That’s why it’s called “pulp fiction.”

You know, things like this:

CrookedCity

NakedandAlone

And it was of the Devil:

Detractors delighted in linking ‘the volatile matter’ of wood-pulp paper with the ‘volatile minds’ of pulp readers. Londoner W. Coldwell wrote a three-part diatribe, ‘On Reading,’ lamenting that ‘the noble art of printing’ should be ‘pressed into this ignoble service.’ Samuel Taylor Coleridge mourned how books, once revered as ‘religious oracles … degraded into culprits’ as they became more widely available.

By the end of the century there was growing concern—especially among middle class parents—that these cheap, plentiful books were seducing children into a life of crime and violence.

* * *

Moralizers painted the books as no better than ‘printed poison,’ with headlines warning readers that Pomeroy’s brutality was ‘what came of reading dime novels.’ Others hoped that by providing alternatives—penny delightfuls or ‘penny populars’—they could curb the demand for the sensational literature. A letter to the editor to the Worcester Talisman from the late 1820s tells young people to stop reading novels and read books of substance: ‘[F]ar better were it for a person to confine himself to the plain sober facts recorded in history and the lives of eminent individuals, than to wander through the flowery pages of fiction.’

It’s easy now to look back at such panics and roll your eyes and the naive concern about cheap books or television or whatever kind of music kids are listening to at the time. But history, as they say, repeats itself. Rather than being smug in our modern superiority, maybe think twice the next time some panic is sweeping the nation. Try not to give future generations something to roll their eyes about.

ThinkoftheChildren

Really Denmark?

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?!?

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Legal Realism In the Wild

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.

All Vocabulary Is Good Vocabulary

There’s no point in lying – I’m fond of profanity. I don’t trot it out all the time (I’ve managed to never let expletives fly in a legal brief, for instance), but I don’t lock it away as something evil, wicked, or never to be said. It creeps into my writing sometimes (much to the consternation of my mother-in-law – but she came around!).

More than anything else, I’ve always thought that deciding not to use certain words because they were “bad” is just silly. I take the position Henry Drummond, the William Jennings Bryant doppelganger in Inherit the Wind, does:

I don’t swear just for the hell of it. Language is a poor enough means of communication. I think we should use all the words we’ve got. Besides, there are damn few words that anybody understands.

Sometimes “fuck” really does say it all in a way that something more elevated just can’t. It always aggravates me when courts bowdlerize cursing in opinions if they’re quoting something a defendant said – if it’s important enough to report, it’s important enough to report accurately!

But what really drives me nuts is the superiority that those who forgo cursing wield over the rest of us, particularly the argument that cursing is a sign of a limited vocabulary. The implication, of course, is that we’re just simple minded beasts, not refined human beings.

Turns out that might be complete fucking bullshit!

A bigger vocabulary is a bigger vocabulary — no matter whether you are quoting Shakespeare or cursing like a sailor.

This is the takeaway from a study recently published in the journal Language Sciences, which finds that fluency in ‘taboo words’ is correlated with having a larger vocabulary in general.

As the article points out, this goes against common sense (which, in my experience, is mostly wrong anyway) and some prior research, but it seems solid:

These findings suggest the idea that ‘fluency is fluency,’ as the researchers write. People who could recall a lot of bad words also tended to be more eloquent in general. In other words, swearing is not necessarily a sign that a person has a limited vocabulary or can’t think of anything better to say.

Some other interesting findings include that the amount of cursing isn’t linked to how religious people are and that the foul-mouthed tend to be more neurotic and less agreeable, but also more open to new experiences. In other words:

swearing is mostly a vehicle for expressing strong emotion – anger, frustration, derogation, surprise and elation — among people who care less about who they might offend. Cursing is an intense, succinct and powerful way of expressing yourself, even if some people find it unpleasant.

Fuckin’ A. Couldn’t have said it better myself.

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When Law and Literature Collide

Let’s get one thing straight up front – any state that wants to throw someone in jail for criticizing its leader is repressive and not a friend to human rights. If free speech means anything, it means being able to say impolite things about those who wield power over you. Wherever the line is drawn when it comes to such things we should all be able to agree that, say, making fun of the king’s dog shouldn’t be a jailable offense.

Having said that, sometimes regimes that are so intent on maintaining their honor that they’ll lock citizens up for saying mean things about them at least make for interesting entertainment.

Consider the ludicrous prosecution of physician Bilgin Çiftçi in Turkey (via). His supposed crime? He shared a meme that compared president Tayyip Erdogan to Gollum from Lord of the Rings, particularly the Andy Sekris-inhabited version from the movies. Something like this:

o-RECEP-TAYYIP-ERDOGAN-GOLLUM-SMEAGOL-LORD-OF-THE-facebook

Stuck with a horribly oppressive law, Çiftçi is doing the only thing he could in his defense – he’s leaning in:

when he appeared in court, Çiftçi insisted that he hadn’t insulted anyone at all. For all his slimy skin and questionable syntactic habits, many say Gollum is not a villain. He may even be a hero. After all, it was he who freed Middle Earth from the tyranny of the ring by biting it off of Frodo’s finger and (albeit inadvertently) plunging with it into the lava roiling inside Mount Doom.

That might have been good enough – sure, it’s a post hoc justification most likely, but it’s plausible. We’re talking about art here, something open to multiple interpretations none of which are “wrong.” Alas, it wasn’t, leading to the court to summon an expert panel of five people (academics, psychologists, and a TV/movie expert) to weigh in on the merits. No word yet (that I can find) on the verdict.

Let’s hope Çiftçi’s ploy works, as he faces up to four years in prison if it doesn’t.

At least he’s not in Thailand, where the law prohibits anybody criticizing or making fun of the (largely ceremonial) king, even a king that’s been dead since 1605. The “lèse-majesté” even trips up unwary diplomats, such as US ambassador Glyn Davies (who, given his line of work, ought to know better). It even extends to making fun of the king’s dog, for which one unwary Facebook user is facing a potential 37(!) years in prison! He may not have as clever a defense:

‘I never imagined they would use the law for the royal dog,’ Siripaiboon’s lawyer told the Times. ‘It’s nonsense.’

It is nonsense, but not because it’s a law being stretched beyond its reasonable limits. It’s nonsense because such laws shouldn’t exist in the first place. They’re designed to be used unreasonably to stifle legitimate dissent and soothe hurt feelings. Being a president or a king (or even the king’s dogs) requires a little bit thicker skin.