Wednesday Writs for 6/12


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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162 Responses

  1. Avatar Oscar Gordon says:

    L6: That is unfortunate, since the hullabaloo around suppressors is about as logical and rational as the hysteria around nunchucks.Report

    • Avatar pillsy says:

      There are a lot of things going on here, and the most important of those things is ignorance and almost superstitious fear on the part of anti-gun types, but man the way a lot of the most visible and noisy pro-gun sorts dress, act, and talk like they’re ready to go all SEAL Team 6 on the local vegan co-op or Democratic County Committee makes that kind of mistake a lot easier to make.

      The best thing in the world the typical gun owner can do for gun rights is to.. just not be weird about guns. However, the vast majority of gun owners are able to pull this off so well that the rest of us kind of forget they exist from time to time.Report

      • Avatar Chip Daniels says:

        It’s more than just the occasional gun nut, though.

        Browse through any magazine or website devoted to guns, spend a few minutes at a gun range or a gun show, and it is obvious that the entire gun culture is suffused with a barely concealed rage and fear.

        Even the design of guns themselves reflect this. Weapons like the Bushmaster were famously marketed as Viagra for the soul.

        Why do guns ostensibly designed to shoot paper targets go way out of their way to look like weapons of war? Because that’s the fantasy they are selling.

        And the rest of us can’t help but notice that the fantasy isn’t about shooting white walkers, zombies, or invading Canadians. The unnamed but omnipresent target of those guns is us, their fellow citizens.Report

        • Avatar pillsy says:

          I might be wrong about this, but I suspect you are dramatically over-estimating the extent to which the modal gun owner participates in that gun culture.

          Marketing materials for things like Bushmaster rifles (which are expensive and not-terribly-practical for most gun owners) aren’t going to be terribly representative of that broader culture, any more than marketing materials for high-end sports cars are going to speak to the cultural commitments of the average driver.Report

          • Avatar Oscar Gordon says:

            Agree, it depends on how that person relates to firearms. If it’s a tool, those kinds of ads do nothing. If it’s something else, well then…

            The broader, quieter culture, sees it as a tool. But as with many things these days, the narrow but noisy culture is thrust to the fore.Report

            • Avatar InMD says:

              Most of the people I know with a truly serious gun habit would easily be classified as nerds. Some are deeply into the engineering others deeply into the historical artifacts. Either way the nerdiness runs deep.Report

              • Avatar pillsy says:

                Yes, I can see how guns would appeal to a certain kind of gizmo enthusiast. And by a “certain kind”, I mean almost exactly the kind of gizmo enthusiast that I am, but less clumsy and absent-minded.Report

          • Avatar veronica d says:


            I was at one point a gun owner, and dammit I despised “those people.” I called them “paramilitary wannabes.” I would see them at the range, with their “military style” all black weapons, wearing all black tactical gear, etc.

            It’s like, “Dude, you’re an accountant. Get a grip.”

            Anyway yeah, gun shows are full of “those people.”Report

          • Avatar Chip Daniels says:

            I know you are right, because I myself am a gun owner and have enjoyed skeet shooting.

            But…that’s where I discovered that the gun culture is less and less a culture of sober hunters and more and more a culture of paramilitary fantasists.

            And we’ve discussed this many times, where we are asked not to lump in the sober types with the nuts.
            But they themselves do that, by invoking even the most mild forms of gun restrictions with blood curdling talk about watering the tree of liberty.

            It wasn’t liberals who made the NRA into what it is today; gun owners, even, or maybe especially the sober ones, did that all by themselves.

            Exhibit A is this very subthread, concerning some alleged right to own silencers in the case of WTF v. Are You Crazy?Report

            • Avatar Oscar Gordon says:

              Actually, I want to own a suppressor because it helps reduce hearing damage to me, to others nearby, and to the overall noise pollution.

              There is no ‘in case of WTF’ reason. If the government collapses and it’s Mad Max time, no one is going to be mounting suppressors.Report

              • Avatar Aaron David says:

                This. I think, from a technical point of view, that they are very interesting. And also from a historical point of view. But the idea of not having my hearing damaged (I have enough of that from punk and power tools) any more is a serious benefit.Report

              • Avatar Chip Daniels says:

                Which is why gun ranges conveniently offer earplugs to all customers.

                The fact that you can summon up a modest legitimate use for silencers doesn’t offset the obvious use of them in crime.

                Which is sorta par for the course in almost any gun related discussion.
                “I need a Bushmaster assault rifle when I walk to Krogers because…” “I need a 40 round clip because…”

                These all sound contrived and lame, like a kid explaining why he really thinks a new videogame console would help him study.

                And again, these are the sober responsible gun owners doing this, not the drooling nuts.Report

              • Avatar Oscar Gordon says:

                The fact that you can summon up a modest legitimate use for silencers doesn’t offset the obvious use of them in crime.

                Prove it.

                Suppressors are trivial to make. You only need a machine shop and the attendant skill if you want the suppressor to last a long time and not overly interfere with long range accuracy.

                And yet machined suppressors are very, very rarely used in crime. Why? because they are long, and bulky, and they alter the balance of the firearm, and that means the shooter needs to spend time using it, and when all is said and done, they still only reduce the sound by a bit. But that is enough to take the edge off the sound, and make hearing protection more effective, and reduce the noise pollution to others.Report

              • Avatar Chip Daniels says:

                Explosives are trivially easy to make, if you have the right equipment.
                But…very few people have such equipment.

                And they really aren’t used all that often in crime.
                Because…they’re banned, and really hard to get.

                The price you will pay for not being allowed to have a silencer seems trivial compared to the cost the citizens will have to bear if their use is unregulated.Report

              • Avatar Oscar Gordon says:

                Explosives are difficult to make, because you need the proper skill. Those who lack the skill and equipment and materials are not bomb makers, they are merely the first and hopefully the last victim.

                Suppressors are not banned, they are legal in most states, but require a $200 tax and an annoying additional background check. The same check one gets for buying machine guns, but for a muffler. The main complaint isn’t even the regulation per se, it’s a tax stamp that is often more than the cost of the suppressor, and ATF wait times of 6 months or more. Dump the tax stamp, make the background check an NICS check, and keep the registration. People would be much happier.

                The price you will pay for not being allowed to have a silencer seems trivial compared to the cost the citizens will have to bear if their use is unregulated.

                The government should not be allowed to ban things just because they think they will be used for evil. Sure, they do it, but just like the bans on nunchucks, the rationale was questionable (most of the 1934 NFA was based upon a lot of anecdata, rather than actual statistics regarding the frequency of use of the items to be regulated).Report

              • Avatar Chip Daniels says:

                Well jeez if the problem here is a simple fee and background check, that makes the argument even weaker.

                Because I don’t see that as onerous to a person with a legitimate need for hearing protection.

                And of course we ban and regulate some “things” all the time just because we think it may be dangerous, or even merely unpleasant.

                Because not all “things” are rights which are held to a higher level of scrutiny.

                No one is asserting a Constitutional right to hearing protection devices, right?

                The entire logic of the case is that silencers are not “hearing protection devices” but “arms” which are covered under the 2nd Amendment.Report

              • Avatar Oscar Gordon says:

                The government says they are arms, in the 1934 NFA.

                The argument, and what changes the public would accept, are two different things. People accept that arms can be subject to a background check. They even accept, grudgingly so, that some arms can be subject to a higher level of scrutiny. The problem is that a muffler should be treated the same as a machine gun, rather than like a common firearm, or a scope or holographic sight.

                You want it banned or highly restricted, it’s on you to prove it’s a problem, rather than just thinking it will be because you watch too many movies.Report

              • Avatar Jaybird says:

                In other news entirely, there is a lovely little air filter for a 308 lawn mower available out there on the open market. If you have a 9mm lawn mower, you’ll need a completely different air filter.

                (I have no idea why people think that this shit will be any different than the War On Drugs.)Report

              • Avatar Chip Daniels says:

                Because the 80 year ban on machines has in fact turned out very differently.Report

              • Avatar Chip Daniels says:

                Machine guns that is.Report

              • Avatar Chip Daniels says:

                I thought the issues was whether they were a Constitutionally protected right.
                I’m not seeing any arguments for that.Report

              • Avatar Jaybird says:

                Oh, a Constitutionally Protected Right?

                Well, what does the Constitution actually say?

                Here, let me quote it. Oh, you want to focus on a different clause that you feel invalidates the clause that I want to talk about? And you want to know if an air filter for a lawnmower constitutes an “arm”?Report

              • Avatar Oscar Gordon says:

                Let’s try a different tack.

                If cans* were as valuable an accessory to criminals as you imagine they are, there would be a robust black market in them, especially since, as JB points out, you can buy everything you need legally on Amazon or at an auto parts store. I mean, folks aren’t going to carry around a homemade can without the gun to go with it, and disposing of a can is way easier than a gun, since from a distance they look like common junk. So the risk of making black market cans is very low.

                And yet, TTBOMK, law enforcement finds very few. They are more likely to find pillows that have been shot through, or soda bottles stuffed with socks and wrapped with duct tape. But very few black market cans.


                Because they ruin the conceal-ability of a firearm, which is usually way more important than the minor reduction in noise. They ruin the ability to quickly draw and fire the firearm, also very important to criminals. As a matter of fact, they make handguns a royal PITA to use. Nobody, not the police, not the military, carries a firearm with the can attached**, because it makes them difficult to use.

                So how, exactly, are criminals going to be using cans in ways that are not already satisfied with existing means?

                *suppressors, I’m tired of typing that out

                **excepting certain SWAT and SOG members/teams.Report

              • Avatar Chip Daniels says:

                I don’t mind having this discussion at all, so long as we don’t start from a position that suppressors= gun= Inviolable right.

                Which seems to be the starting position of even the responsible gun owners, who argue from an absolutist position which doesn’t ever seem to find an end point at which it says, “Oh yes, THIS gun regulation is acceptable!”Report

              • Avatar Oscar Gordon says:

                But the law says they are an arm, as regulated by the NFA.

                So we have a problem. If they are an arm, then they fall under the 2A. If they are merely an accessory, then they do not belong in the NFA and should be regulated separately as an accessory similar to a scope or a flash suppressor.Report

              • Avatar Chip Daniels says:

                Automatic rifles are arms, as are grenade launchers, so what is the line of logic that says THIS arm is protected, but THAT arm is not?

                Obviously there must be one, right?
                Just as there are many types of speech which are not covered by the 1st Amendment, just calling something an “arm” doesn’t give it automatic protection.

                And that’s what I keep asking for, what line of logic would make us give such a high value to suppressors.
                The logic behind gun ownership has merit, based on self defense and maybe resisting tyranny.

                But once we get into “well, suppressors actually interfere with the basic function of a gun, and don’t really work well anyway, but might offer benefit in some circumstances”, I’m left wondering why they should be a Constitutionally protected right, instead of a handy gadget like a muffler.Report

              • Avatar Jaybird says:

                Let me say that I absolutely believe that rifle suppressors are not arms covered by the 2nd Amendment and can be banned without (Constitutional) worry.

                Wham. They’re illegal.

                Can I legally purchase an air filter for my lawn mower?Report

              • Avatar pillsy says:


                But once we get into “well, suppressors actually interfere with the basic function of a gun, and don’t really work well anyway, but might offer benefit in some circumstances”, I’m left wondering why they should be a Constitutionally protected right, instead of a handy gadget like a muffler.

                Doesn’t that “handy gadget like a muffler” apply just as much to guns themselves?

                I mean that’s what they are, right: gadgets that are useful for certain purposes. We just happen to worry a lot because one of those purposes is killing human beings, which we tend to frown on.

                But I have my own personal theory about why things are Constitutional rights that get explicitly enumerated in the Bill of Rights [1]. And it’s not because they are necessarily the most vital freedoms we have. I’m not trying to say they aren’t, either, just that, one way or another that’s not why they’re listed.

                They’re listed because they’re rights that a government might, you know, be particularly interested in violating, especially a government that was worried about people rebelling against it. Like, the US was founded by a bunch of people who had rebelled against one government and then discovered themselves faced with a bunch of new rebellions. They needed a stronger government than the one provided by the Articles of Confederation but didn’t want it to go crazy.

                And governments go crazy when they’re afraid they’re going to be overthrown. Totally nuts. It’s actually pretty understandable and a government that has no ability to deter rebellion isn’t a government at all, but then they start making you let troops sleep in your garage and read prayers from a single legally approved prayer book and throw you in jail just because they don’t like the look of you and it sucks.

                And from that standpoint, it makes sense why you’d call out “arms” in particular. That’s one of the things the state is going to reach for when it’s freaking out about challenges to its power. This isn’t a claim that civilian gun ownership is some kind of “reset button” or a necessary check against state power in and of itself [2], just that the underlying motive is likely to be fear.

                And, you know, at some point our government got less and less worried about being overthrown, started being more and more worried about crime. And controlling crime is almost as basic and necessary a state function as resisting being overthrown, so that makes plenty of sense, as rebellion became an ever more remote possibility.

                But there’s still that underlying fear, and that fear can still lead to wild overreaching in terms of attempts to prevent crime [3], and that can still be dumb, or domineering, or just generally leading to people’s freedoms being whittled away. The Fourth Amendment has been whittled to almost nothing for just that reason.

                So we have a bunch of people arguing that we make something illegal even though it’s not dangerous (they’re of limited, if anym use to criminals), though it does make life more pleasant for both people who use their guns in perfectly legal and respectable ways (like shooting at ranges) and the people who happen to live near those ranges.

                I dunno, that seems like maybe it’s not such a bad reason to have a Constitutional right after all.

                [1] Which, of course, doesn’t mean they aren’t the only Constitutional rights we have.

                [2] Really, I think both these arguments, despite their popularity, are quite frivolous.

                [3] Indeed, ordinary voting and tax paying citizens tend to get both very scared and very angry about crime.Report

              • Avatar Aaron David says:

                I agree with you that they should not be covered by the second amendment. Like all accessories, such as slings, scopes, bump fire devices, etc. And that they should fall to the states to decide.

                And as such, I could drive to a state that allows the purchase and make the transaction, no?Report

              • Avatar Michael Cain says:

                The hard thing, though, is that state X says it’s okay and will sell you one of whatever, and state Y says that possession is a crime.

                In 1978, on my way to my first day of work at Bell Labs in New Jersey, a NJ state trooper pulled me over because of my Texas license plates to (a) search my car for guns and (b) explain to me that I would have to register any guns I had brought from Texas.

                On a different topic, and with roles reversed, anyone old enough can buy marijuana in Colorado (granted, federal authorities could change that tomorrow, but don’t for various reasons). We get sued by red states around us who don’t want us to do that.Report

              • Avatar Aaron David says:

                That was pretty much my point. None of this is easy or readily agreed upon. And it is why I chose the specific accessories that I did.Report

              • Avatar Oscar Gordon says:

                I’m not arguing that they should be protected, per se. Honestly, no really is, AFAIK. What they are saying is that the NFA is wrong to classify them as an arm and attempt to regulate them as such.

                And if you are going to lump them in with machine guns and AOWs, then you have to argue that they are as dangerous as those things, which is a tough argument, given it’s essentially a barrel extension that doesn’t improve accuracy or range.

                The overall goal is to get cans pulled out of the NFA, and regulated some other way.

                If cans really did reduce the noise to something like we see in the movies, I’d be much more willing to argue against them.

                But if we are really concerned about sound suppression, I’d be much more concerned that someone is going to make an easily portable version of this system.

                *technically, grenade launchers are not illegal, or even lumped in with machine guns. They are sold just like rifles and shot guns, but the only ammo you can get is stuff like flares and smoke bombs, no explosives.Report

              • Avatar InMD says:

                You do realize that a suppressor isn’t like a James Bond movie right? Shooting with one is still really damn loud, like over 100 decibels loud.Report

              • Avatar veronica d says:

                Hearing protection does seem like a legitimate use-case. And sure, you can wear ear-protection on your head, but you can also use both, which I suspect would be even better on your hearing.Report

              • Avatar Morat20 says:

                Wouldn’t ear protection be cheaper?

                They make some fantastic ones these days — muffle the loud sounds, increase the quiet ones. They’re like 30 bucks.

                I’ve found them invaluable when shooting, because it not only allows me to hear the shooter easily, but it’s possible to carry on a quiet conversation while other people are shooting.

                And I mean heck, you can even listen to music if you pay 10 bucks more for one with Bluetooth.

                Seems like a much better solution than a silencer, since even with one of those you should be wearing sufficient ear protection to not worry about damage. (And also, I suspect the headphones degrade a lot slower than a silencer. The pairs we keep around for shooting are a few years old and doing fine.)Report

              • Avatar Oscar Gordon says:

                And suppressor plus headphones is even better.

                Plus, part of the public benefit is a reduction in noise pollution for people living near shooting ranges (which is why, IIRC, a lot of European countries encourage their use).Report

              • Avatar Aaron David says:

                Just using hearing protectors is not as advantages, as it dampens ALL sound. Having all of one’s senses working is always better.

                This is kinda like cars having mufflers vs. everyone on the street wearing hearing protection.Report

              • Avatar Oscar Gordon says:

                Those fancy new electronic ear muffs are real nice and do a fantastic job damping out the upper dBs, while leaving the lower dBs intact.

                But all earmuffs can only dampen noise by about 20-30 dBs. Which is about the same as a can. So a can + muffs gives you 40 – 60 dB reduction, which puts the noise level down into the ‘probably won’t destroy your hearing’ range.

                Plus the reduction in noise pollution.Report

              • Avatar Aaron David says:

                Oh, I don’t disagree with you Oscar, just that if I had my choice I would pick the one over the other. Where applicable.Report

            • Avatar dragonfrog says:

              But…that’s where I discovered that the gun culture is less and less a culture of sober hunters and more and more a culture of paramilitary fantasists.

              Sure, the sober hunters have a hunting culture. Competition marksmanship enthusiasts have a culture of competitive target shooting. For those folks, a gun is a tool that enables them to pursue the activity they enjoy.

              If you’re into restoring antique automobiles, you’re going to have various wrenches around, in a variety of purpose-specific sizes and configurations, probably including some unusual looking ones that you don’t just pick up in the wrench set aisle of any old hardware store.

              But you’re not participating in some kind of “wrench culture”. If there is some “wrench culture” that’s dedicated to the wrenches themselves, in the absence of any particular thing you need them for, well, a bunch of those guys are probably going to be a bit off as viewed from outside.Report

              • Avatar Aaron David says:

                You have never been to or partaken of the Northwest Tool Collector Association meetings, various tool swap meets around the country and related events. We tool collectors often use our vintage tools, but others are strictly collectors. I personally have a very large and complete collection of Plomb and Proto tools and have branched out into the World of Snap-on.


                Don’t kink-shame us.

                Above, Pillsy basically pulled the “Ya know, she was wearing a short skirt…” in regards to gun culture, please don’t do that here.Report

    • Avatar Michael Cain says:

      Republicans have introduced bills in both the House and Senate this year that would reduce/eliminate the registration and licensing fees for suppressors. The Senate bill has been referred to the Finance Committee. The House bill has been referred to the Subcommittee on Crime, Terrorism, and Homeland Security. So far as I can tell, neither committee has scheduled hearings or votes on the bills.Report

  2. Avatar DensityDuck says:

    [L5] so can we, at this point, admit that all along this wasn’t about anyone’s freedom to do or be whatever, and more about a couple people who were snubbed by a cake shop and were SO ANGERY about it?Report

  3. Avatar Aaron David says:

    L1 – I am struggling to see where an officers speech, not a question but a speech, would be inadmissible. I am a big believer in things such as Miranda, due process, etc. But, Williams had asked for his lawyer so he presumably knew his rights, one of which is the right to remain silent and another is that anything you say can and will be used against you. And with those rights comes the flip side of that; namely that the officers get the ability to work around and within those parameters.

    L5 – That woman is a Grade-A asshole, doing more damage to the acceptance of LGBT rights than any cake baker.Report

    • Avatar pillsy says:

      How odd that someone who’s become nationally famous for being an asshole would attract the attention of other assholes.Report

    • Avatar Slade the Leveller says:

      L1: I really struggle with these cases. On one hand, you would think someone opening a business would be happy to do anything legal. On the other, if you don’t want someone’s money you’re free to not take it.

      If you’re going to choose the latter, then just don’t take it. You don’t get to excoriate the would be purchaser in the process of not taking his money.Report

    • Avatar PD Shaw says:

      L1 — It’s not discussed in the majority opinion, but Williams’ attorney had arranged for Williams (an escaped mental patient) to voluntarily surrender himself to authorities and obtained an agreement from the cops not to question Williams during the ride, but refused his request to be allowed to ride along with Williams to the booking.

      It’s a pretty egregious (*), but still I wouldn’t expect the SCOTUS to accept a rule by which the right to an attorney and the right against self-incrimination can be waived by “asking” questions in declaratory form.

      (*) Not complying with the agreement with his lawyer is an additional layer of denial of legal counsel.Report

      • Avatar Aaron David says:

        But nothing in Miranda was violated. Using the declaratory form is NOT asking a question. Again, the police get to use the law also. I agree with you about not allowing the lawyer in the car, but THAT should have been the sticking point, not the oration.

        EDIT my first sentence refers to the oration only.Report

        • Avatar Em Carpenter says:

          Miranda requires that the defendant be read his rights prior to questioning. Miranda is not the issue. He invoked his right to silence, at which point the police are required to stop trying to get information from him. That is the state of the law. Declarative statement or interrogatory matters not- it was an attempt to elicit information, which is a constitutional violation.Report

          • Avatar Aaron David says:

            That is a doctrinaire position arising from contemporary jurisprudence. And on that aspect, I disagree. There is nothing wrong with your position per se, I simply feel it places undue restrictions of the officers. And not from a pro-police stance, but from a rhetorical position.

            Then again, I am not a lawyer.Report

            • Avatar Em Carpenter says:

              If a suspect invokes, stop saying things to him to try and elicit a confession. That’s not restrictive- it makes no difference what form your words take if the intent is to get the suspect to talk.
              Don’t get hung up on whether the form of a question was used. That’s not the standard- its whether or not the officers continued to try and elicit information after the suspect invoked.Report

              • Avatar Aaron David says:

                So, could the two officers talk, amongst themselves, about their children? The road they are on? Maybe show pictures to each other of said kids? Talk about the snow and Christmas and the missing girl’s parents? I mean, they can talk to each other right?

                “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

                That’s Miranda. Should the officers not be able to ask if the suspect understands? That is a question. What happens if the suspect says she doesn’t understand? Should they keep repeating Miranda, or would that be categorized as a declarative sentence? Or are only some questions OK and others not? Now, I am fine with that, but it does go counter to what you are saying.

                Should they not take the last line as a possibility? There is not a single word about anyone having to shut up or stay shut up in there. Why not? Because that is an interpretation. No more and no less. And as we saw with CU, the current judicial interpretation can, and will, turn on a dime.

                I happen to disagree with the reasoning behind shutting up, as I feel that places an undue burden on law enforcement and their first amendment rights. You don’t, and as I said earlier, you are entitled to your opinion, which happens to be the one that is currently in vogue. I am not trying to be a dick here, I just have a major disagreement with this aspect.Report

              • Avatar DensityDuck says:

                And I should also point out that I’m willing to accept an answer of “no, due to the possibility of coercion or elicitation, nothing an arrested suspect says or does between asking for counsel and getting it can be presented as evidence in any subsequent legal proceeding, regardless of any behavior or lack-of-behavior by law-enforcement personnel”. I just want to hear you say it.Report

              • Avatar Aaron David says:

                Is this to me or Em? If it’s to me, I think a situation like that would be ideal in preserving the rights of both parties.Report

              • Avatar DensityDuck says:

                “Is this to me or Em?”

                Both; I felt it worth pointing out that since we’ve rather gotten into a hole about the definition of “elicitation”, then invalidating the bit in Miranda about “Anything you say can and will be used against you in a court of law” is a way out of the hole. But I want to make sure we understand that’s where this is going, not to back into it and then act all surprised when we learn what it means.Report

              • Avatar Em Carpenter says:

                I had a long reply typed out but it’s pointless. If you can’t see the constitutional danger in giving cops- you know, professional interrogators trained in techniques to make a citizen confess, sometimes falsely- free reign to coerce a confession from someone who has said they do not wish to speak to law enforcement, I guess we are done.Report

              • Avatar Aaron David says:

                And I feel that we have already created an even greater constitutional danger in what we have done by removing someones right to speak.Report

              • Avatar PD Shaw says:

                Let me put it this way, do you believe consenting adults have a right to have sex with each other? And do you think that consent would at all be impaired by the fact that one of the participants is in custody?

                The underlying issue that the Miranda decision sought to deal with was how to assess whether waiver of a Constitutional right is made voluntarily, knowingly and intelligently when an individual is in custody. They’ve had many freedoms impaired — their ability to move, to engage in meaningful employment, to associate with whom they choose, when they choose, to bear arms, and to whom they can speak or at least when they can speak.

                You’ve advantaged the right to speak in one particular way, to incriminate oneself, but the reality is that they are deprived of so many freedoms that consent to incriminate oneself shouldn’t be considered voluntary.

                This isn’t strictly a Miranda case, but Miranda created a dynamic that was intended to tease out whether incriminating statements were voluntary. It put the burden on the accused to invoke rights guaranteed by the Constitution, but once invoked it was a bell that was hard to be unstruck.Report

              • Avatar Aaron David says:

                None of that removes the idea that the officer still has a right to speak. I definitely consider this to be on a parr with a defendants rights a la Miranda, so I feel we should either split the baby with an officer being able to speak but not question, or rule inadmissible anything said without a lawyer present.

                In this particular case, due to the lawyers not being allowed in the car after being requested, there is a severe problem in my eyes as I feel that Miranda was violated. But not on the officer speechifying.

                I want to reiterate that one of the things I find most compelling about this that an officer must be allowed to speak. The dept. could chastise him for what he said, but not be held unable to speak in general. I find that as disconcerting as a suspect not given his Miranda rights. I know the reasoning behind both your and Ems arguments, but I disagree with some fundamental aspects of what should be important constitutionally.Report

              • Avatar George Turner says:

                But the suspect was not deprived of his right not to speak, the cops just weren’t enforcing that right for him by taping his mouth shut, which ironically would violate his free speech rights.

                Miranda stems from the Constitutional right against self-incrimination, but it doesn’t mean people don’t also have the right to incriminate themselves if they feel freely inclined to do so. If after the slightest suggestion that they and everybody involved would feel better if they fess up, and they fess up, that’s a pretty efficient way to handle things.

                The protection was against police using all sorts of dubious methods to make people fess up, such as beatings, sleep deprivations, constant streams of threats and lies, and psychological tricks, all aimed at depriving suspects of their agency and securing a conviction.

                If there’s even a taint of that, the court is justified in throwing out all the evidence thus obtained.

                However, the police are not officers of the court and they serve a different purpose, keeping society from social breakdown, finding lost cats, and at times trying to prevent damage and undoing damage that is done. These goals do not completely coincide with that of the courts.

                For example, suppose a clever thief manages to steal just about everything in the Louvre or Metropolitan, but gets nabbed before he can hop on his private jet and flee the country.

                The court’s interest is in making absolutely sure that all his rights are observed and that he gets a fair trial in front of an impartial jury. The cop’s interest is in trying to locate a billion dollars worth of priceless and irreplaceable stolen art before it ships out on a cargo freighter to North Korea, Yemen, or Libya.

                What happens to the art is about a million times more important than what happens to the art thief, who in the scheme of things might as well be a random guy who held up a 7/11.

                The cop doesn’t really care whether the perp walks free on a technicality or serves forty years, he just wants to recover the stolen art while there’s still time to do so.

                Is the cop wrong to get the art thief to tell him which foreign-flagged freighter has a load of Warhols, Picassos, Rembrandts, Da Vincis down in the hold? I would say he’s not wrong, even if it means the state will have no case. The cop is just acting while the action can still be meaningful, instead of having a DA offer complete immunity three months after the thief’s information could have made a difference.

                And this illustrates a case where maybe the Miranda warning that “anything you say can and will be used against you in a court of law” is a mistake. There is grounds for the state making an exception and ensuring that certain information may not be used against a defendant. If a suspect is given the opportunity to do the right thing (in particular cases in a particular manner), and choose to do that right thing, perhaps we shouldn’t use that against them later.

                “If you’re willing to help everyone out, we’re willing to pretend that some of this never happened.”Report

              • Avatar DensityDuck says:

                “free reign”

                You’re a professional writer, you should know better than this.Report

              • Avatar Em Carpenter says:

                No, actually, I’m not a professional writer.
                It’s a hobby.
                I’m a lawyer.
                So please pardon my careless error. I’ll have Truman dock my next pay check and refund the cost of your OT subscription.Report

              • Avatar Michael Cain says:

                I feel that places an undue burden on law enforcement and their first amendment rights.

                As an individual, not on duty, the officer has much broader first amendment rights than an officer on duty does. A judge may place a gag order on officers, or my employer may restrict my first amendment rights when I am speaking as a representative of the company.

                I would have less problem with an officer making statements of fact — “This diner has great donuts; it’s currently snowing here” — than with speculation — “It will be harder to find the child’s body; we may not find the child’s body; the parents will want a Christian burial.” If a prosecutor made such statements in court, the defense attorney would object and the judge would likely strike them from the record, no?Report

              • Avatar Aaron David says:

                Gag orders, which I am also not at all a fan of, are specific. Employers have a very important right to make speech codes for work, but that doesn’t apply in this case as it is antithetical to what is going on. Should an officer be able to state, to play on your example, “Snow sure will make it hard to find a body.” I mean, that’s a fact right?

                My position stems from an officer should be able to talk to her partner. And if they can, as I believe, they should be able to speculate on the case between each other. Which leads to them making speeches to each other, to them making speeches to the suspect.

                I know this is not the same as what is now practiced through the current reading of Miranda. And I am not arguing that it is. I am arguing that there are other things which I find equally important.

                I also hate the infield fly rule.Report

              • Avatar Michael Cain says:

                Let me pose some different situations. If the suspect were in an interrogation room, and the police had forced his lawyer to leave, then stood in the room for an hour or two and speculated about the difficulty of finding the body, would that speech have been protected to such a degree that it doesn’t infringe on the suspect’s rights? If the suspect were in a cell with his lawyer not present, and the officer had stopped outside for a couple of hours and speculated about the difficulty of finding the body, would that have been okay? For me, a suspect separated from his lawyer and confined in the back of a car for a two-hour (or more) drive is no different than those two.Report

              • Avatar Aaron David says:

                I have already said that due to the police not allowing the lawyers to be present Miranda was violated in this case. A lawyer was asked for but representation was prevented. And I think that the confession should be inadmissible for that reason alone. The officer making a statement, reading a prepared speech? Sorry, no. Shutting him up violates his rights.

                What I am saying, and let me be perfectly clear here, is I feel that the Miranda warnings are correct, but they say nothing about a policeman’s right to speak, which I feel is every bit as important as the suspects right in re the 5th amendment. And as I said, making anything that happens between asking for a lawyer and a lawyer being presently inadmissible is a very good solution to this.Report

              • Avatar George Turner says:

                That won’t work.

                “I’d like a lawyer.”
                “Okay. Just sit here while we contact the PD’s office.”
                “Ha! Yeah I did it! I killed her for the inheritance and then dumped the gun in the well in her rose garden!”
                “We didn’t ask you that.”
                “Oh yeah you did, with the way your eyes were boring into my soul.”
                “You’re about to tell us where every single clue is, aren’t you.”
                “Yep. And none of it will be admissible.”Report

              • Avatar Oscar Gordon says:

                And that is why you video record all interrogations.Report

              • Avatar DensityDuck says:

                You’re certainly allowed to get search warrants based on suspects’ statements. You’re just not allowed to introduce those statements as evidence in a court proceeding.Report

          • Avatar DensityDuck says:

            So if any spontaneous statement by an arrested suspect is assumed to be the product of elicitation, then is it even possible to confess without a lawyer present? Is it worth paying attention to anything a suspect says between their request for counsel and counsel actually showing up?Report

            • Avatar Em Carpenter says:

              Spontaneous is different. This was not spontaneous for the very reason that it was elicited. Had they not spoken to him or said things intended to get him to confess, which they clearly did, then a spontaneous confession after invocation is admissible.
              Elicitation does not have to mean a threat or a brow-beating. He was talking directly to the suspect, using a guilt trip to convince him to talk. That’s just as much elicitation as if he had asked questions right out.Report

              • Avatar Oscar Gordon says:

                So if one cop was just talking to another cop within easy earshot of the suspect, and basically said the same thing, and that caused the suspect to confess, it’s all golden?Report

              • Avatar veronica d says:

                As an engineer, I’ve noticed a certain way legal reasoning differs from the hyper-literal “mathy” reasoning of we engineer types. It is this: in legal reasoning, you’re allowed to draw inferences as to people’s state of mind. For example, I’ve read that juries are allowed to evaluate what a witness says based on what they guess might be based on biases and motivations. They are not required to be hyper-literal. They can evaluate subtext. They can “read between the lines.” Also, consider the various “reasonable person” tests.

                (I would be very interested in hearing from attorneys on this.)

                If the police claim, “Oh, we were just having an innocent conversation in earshot.”

                Well, should we believe them?

                I don’t. They’re fucking cops.Report

              • Avatar Michael Cain says:

                When I worked for the state legislature, I always said that being an old-school programmer was good training for the staff jobs. Think of the 23 books of state statute as a program — the biggest, ugliest mess of spaghetti code you’ve ever seen. Bills and amendments are diff files — quite literally in Colorado, as they are instructions to the enrollers as to how to change the 23 volumes of statutes (or to change other diff files). You can reason about all of it the same way you can reason about a program.

                The big difference is that lawyers are allowed to suggest that the opcodes should mean something different going forward. Sometimes the judges even agree with them, and suddenly the statute means something quite different.

                I quickly became the go-to guy in the office for proofreading staff-drafted amendments. Diffs of diffs, rigid use of punctuation — heck, I did that for decades.Report

              • Avatar veronica d says:

                I don’t really mean how people interpret the regulatory structure, which isn’t something I know much about. Instead, let me give an example.

                Back when Napster was being sued for copyright stuff, some nerds came up with an idea to beat copyright. It would work like this: you would take the original digital file (of a song or movie or whatever). Then you would generate a totally random file of the same length. Then you would do a bitwise XOR of the original file with the random file. Then you would publish the XOR’ed file on one server and the random file on another. You would not publish the original file. Next you let users know where the two files are. They could download each, XOR them, and presto! the original file.

                Here was the argument: both files are “mathematically random,” thus neither violates copyright. Furthermore, if the two servers belong to two different organizations, neither can be accused of storing copyrighted data.

                My counter argument: judges aren’t stupid.Report

              • Avatar Michael Cain says:

                Ah, been there too. When I was the “weird tech” guy at the telecom company where I worked, Legal would occasionally come to see me to say, “We bought a company and inherited this contract. Is there any technology way to get around the terms?” From the side conversations, my impression was they weren’t trying to get out of the contract entirely so much as trying to negotiate a lower price.Report

              • Avatar Em Carpenter says:

                I think it depends on the circumstances. If in this case for example, the officer made his speech to the other officer but with the suspect in the backseat, I think there’s an excellent argument that the intent was the same as saying it directly to him. If they’re off in the corner somewhere in a room and one of them says something similar but more innocuous, like “man I hope we find that little girl before the snow comes so her parents can bury her” and he overhears, as much as I still think that’s hinky, there’s less of an argument for the defendant.Report

              • Avatar George Turner says:

                Well, if the defendant is loony as a fruitcake and guilty as sin, do the particulars of the trial matter all that much compared to recovering the girl’s body and saving all the searchers the time and trauma?

                Basically, does getting an airtight murder conviction even matter in the grand scheme of things, since the crazy person isn’t going to walk free no matter what?Report

              • Avatar DensityDuck says:

                “This was not spontaneous for the very reason that it was elicited.”

                I’d consider it an entirely reasonable argument that the stressful and uncommon situation of having been arrested and detained constitutes elicitation all by itself, and that no statement could be truly said to be “spontaneous” in those circumstances.

                And, hell, “put ’em in the tank and let ’em sweat for a while” is not exactly unknown in this world.Report

        • Avatar PD Shaw says:

          Em Carpenter know more about this area than me, but looking back at the earlier case (there were two SCOTUS opinions and I overlooked the earlier one), the main issue was that Williams had retained counsel to represent him this matter (actually two attorneys at either end of the road trip). And the law enforcement agents admitted that the “speech” was intended to elicit information from Williams about the location of the girl before he “got back” to his attorney.

          So it wasn’t a traditional case where the warning is given, which the person in custody invokes its protections or not. He invoked the right to an attorney by having an attorney present beginning at the initial stages, and law enforcement schemed to deprive him of his right to legal counsel. The SCOTUS didn’t feel the need to address the additional violation of the right against self-incrimination.Report

    • Avatar Em Carpenter says:

      It’s not just a speech though. It was an attempt to elicit information after the right to remain silent was invoked. That just can’t be allowed.

      Re: the asshole: agreed.Report

  4. Avatar Michael Cain says:

    L1: The “inevitable discovery doctrine” has always bothered me. In the original case, the officer actually suggested to the suspect that discovery was not inevitable. In the more recent case, it seems to me large assumptions were made: that a warrant would have issued and that the evidence wouldn’t have been removed.

    I admit that I’m kind of a nut on the subject. Rules are there for reasons, and once exceptions start being made they keep on being stretched.Report

    • Avatar Slade the Leveller says:

      I have to agree. We should be making the police’s job as difficult to do as humanly possible, given the consequences. Allowing but for scenarios accomplishes exactly the opposite.Report

  5. Avatar Jaybird says:

    L5: I’m just glad that this isn’t happening during the run-up to an election year.Report

    • Avatar Jaybird says:

      (Though I will say that having it right at the same freaking time as the Youtube/Google/Twitter fight is indicative of Cognitive Dissonance.)Report

      • Avatar pillsy says:

        Maybe instead of concern trolling about it for the millionth time, you could state your position clearly, in order to reduce the internal tensions you see, instead of further enhancing them.Report

        • Avatar Jaybird says:

          Is this one of those things where all I have to do is just point out that the owner of the cake shop is a jerk? Man! What a jerk!

          It looks like both sides are screaming “we should win and the other person should lose!” and appealing to principles that are abandoned the second (and I mean the *SECOND*) that they become inconvenient to the new position they’re arguing.

          But, for what it’s worth, I think that people who hold up a sign that says “WE RESERVE THE RIGHT TO REFUSE SERVICE TO ANYONE” when a customer comes into the business are jerks who probably shouldn’t be in business.

          And I can believe that at the same time that I can believe that Ms. Scardina is engaging in harassment of said jerk who probably shouldn’t be in business.Report

          • Avatar pillsy says:

            Is this one of those things where all I have to do is just point out that the owner of the cake shop is a jerk? Man! What a jerk!

            It absolutely is one of those things. Do you understand why I think that?

            It looks like both sides are screaming “we should win and the other person should lose!” and appealing to principles that are abandoned the second (and I mean the *SECOND*) that they become inconvenient to the new position they’re arguing.

            Yes, there is a lot of that going around.

            Which is why pointing out that you do believe the bakers are being bigoted jerks is almost certainly going to be an important part of the compromise.

            Because you can get people to agree to principles and freedoms that sometimes protect bad people in the name of a greater good, with the implicit or explicit promise that it will protect good people too.

            However, the folks defending the Masterpiece bakers, as a political coalition, have done an incredible amount of work to avoid saying that they believe that the bakers are bigoted jerks, which raises the question of whether they’re defending the bakers because they think the bakers aren’t doing anything wrong.

            If that’s the case, the compromise cannot hold, because people on the other side have every reason to doubt that they will be granted the same sort of protection under the regime that the Right (really, let’s not be coy) wants to use the current controversy to justify.Report

            • Avatar Jaybird says:

              What’s a good equilibrium state, do you think?

              Personally, I think we need to find a rule that we will be able to apply more or less universally.

              Either a “hey, you don’t get to use Twitter/Facebook/Youtube but, hey, you have that one cakeshop in Colorado, jerks!” position or a “yay! we made that cake guy make a dildo cake! NOW NOBODY EVER BUY A CAKE FROM HIM EVER AGAIN! But, yeah, that means that we have to deal with twitter accounts we don’t like…”

              But demanding “we win, no matter what” is going to result in a failure to even want to discuss compromise.

              Or, worse, it’ll result in a Citizens United kinda situation.Report

              • Avatar Chip Daniels says:

                Wouldn’t a universal rule demanding tolerance, apply only to those who refuse to be tolerant?

                Like, a baker who refused to serve gays, and a Youtube guy who goes on intolerant rants about gays, would both be prohibited?Report

              • Avatar Jaybird says:

                Run with that!

                See where it takes you.

                Man, imagine how awesome it will be when you inevitably win!Report

              • Avatar George Turner says:

                I think people who don’t tolerate intolerant people should be put in jail, because we shouldn’t tolerate their intolerance.Report

              • Avatar pillsy says:

                Personally, I think we need to find a rule that we will be able to apply more or less universally.

                Yes, and introducing ambiguity about why you think the bakers should be allowed to bake the cake makes it much less likely that people will believe that you are advocating for a rule we can apply more or less universally.

                If you’re just doing it because you think disapproval of LGBT people is right and proper, well, that makes it that much less likely that you’re advocating for a rule we can apply universally to both YouTube and Masterpiece Cakes, and that much more likely that you’re supporting a status quo where Stephen Crowder gets to say all the anti-gay slurs he wants on YouTube while the bakers also get to discriminate against gay people.

                Oh, and not just the bakers. It’s the current position of the conservative movement (as expressed through the actions taken by its de facto leader, President Donald Trump) that healthcare providers should also be allowed to discriminate against LGBT people as a matter of religious freedom.Report

              • Avatar Jaybird says:

                There are two issues here.

                The first is The Cake Itself. What was the cake *THIS* time?

                It was a Pink Cake with Blue Frosting. They said “We will be happy to make this cake!”

                Then the cake guy was told “it’s because I am a transgender person!” and he said “Nope! I am not going to make this cake!”

                So we are no longer in “is it a wedding cake” territory (which was adjacent to the narrow grounds of whether his religious views got a fair hearing in Colorado) but in “he won’t make a Birthday cake like he said he would in testimony!” territory.

                So, on the narrow legal question of whether this case is going to find against him, I’m pretty sure that it *WILL*.

                On the somewhat less narrow existential question of “is this guy a jerk?”, the answer is “yeah, looks like he is.”

                And now we just have to deal with the whole issue of “what happens when this case gets noisier and noisier at the same time as all of the youtube/twitter/facebook stuff?”

                Because it strikes me as not only obvious that the guy ought to lose in some spiritual-justice sense but that he should in the legal sense.

                But the fact that it’s happening concurrently with other cultural phenomenae strikes me as worth concern trolling about.

                To the point where it strikes me as secondary that I ought to do the “the baker is a jerk!” dance.

                The second issue is the lawsuit and the attendant trouble that comes naturally for anybody when they are being sued.

                Given that he’s (pretty obviously) going to lose this one, this strikes me as likely to be a fairly big battle to win in the short term…

                That will bring up a handful of principles that *WILL* be brought up in the next fairly big battle.Report

            • Avatar DensityDuck says:

              “the folks defending the Masterpiece bakers, as a political coalition, have done an incredible amount of work to avoid saying that they believe that the bakers are bigoted jerks”

              Maybe we didn’t say it because we assumed that the people we were talking to were mature enough to know about David Goldberger and understand why he did what he did.

              I mean, you want people to say they’re jerks? Fine! They’re jerks, they’re stupid jerks, total kneebiters, absolute fuckfaces, horrible, just the worst, the most absolutely awful people you can imagine! Jerks with a capital “J” for JERK. You’re SO ANGERY at these jerks? Sure! You ought to be! They’re BIG FAT JERKS.

              Doesn’t mean they have to bake the cake.Report

              • Avatar greginak says:

                One way to answer Pillsy’s question would be to affirmatively state that LBGTQ should be able to buy all the goods and services they need to survive and thrive in the world today w/o discrimination but that you don’t see special cakes as part of that. So no housing/medical/etc discrimination at all. LBGTQ people should be able to live freely and openly without fear they will be discriminated against.

                Now this wasn’t’ exactly what Pillsy’s asked but it’s not like the fear of what discrimination could lead to hasn’t been raised.Report

              • Avatar pillsy says:

                That’s not what I asked, but it certainly is my most significant concern, since the Right as a whole is very much invested in ensuring that discrimination against LGBT folk in all areas of human endeavor is viewed as a matter of “religious freedom”, and really has been playing that particular repulsive game for decades.Report

              • Avatar greginak says:

                Yeah it wasn’t’ what you were asking but answering the other sides most serious concern is one way of answering back. That hasn’t been happening and it would be nice to see conservatives answer that. It would be good to see C’s answer the wider question about whether LBGTQ people can live freely w/o the burden of discrimination so i was trying to drag the convo that way.Report

              • Avatar DensityDuck says:

                Since it apparently needs to be said in so many words: Yes, someone who chooses to act as a provider of vital services necessarily surrenders part of their freedom of contract as part of that choice, and decorated wedding cake is not a vital service.Report

              • Avatar greginak says:

                That is a great start. Now we have the task of figuring out what is vital and what isn’t. Fancy cake doesn’t seem that vital, but medical services, housing, general shopping are. The current admin and R’s in general have put forward legislation or rules saying that pharmacies or medical providers don’t’ have to treat “those people.” So that seems like a really big deal and a direct cause of the anger on the left you keep noting.Report

              • Avatar Jaybird says:

                medical services, housing, general shopping are

                Is access to speak in the public square on there?Report

              • Avatar greginak says:

                Oh yeah of course. Private services may be different of course. And even your local burger king or public square provider can boot people for threats and certain conduct.Report

              • Avatar Jaybird says:

                Private services may be different of course.

                So if I have control over what is “public” versus “private”, I can legally pick and choose winners or losers?

                “certain conduct” oh, now I’m positively *SALIVATING*.Report

              • Avatar pillsy says:

                What makes you think you have control over what is “public” versus “private”?

                This isn’t that silly thing about how the government shouldn’t be barring individuals from using social media, is it? Because if your concerns are anything like what I think they are, you really don’t want that to change.Report

              • Avatar Jaybird says:

                What makes you think you have control over what is “public” versus “private”?

                Oh, I don’t. Yet.

                But I have confidence that when my team wins the next election, people who share my sentiments will be doing so.

                This isn’t that silly thing about how the government shouldn’t be barring individuals from using social media, is it?

                No, this is the even sillier thing of making distinctions between publishers and platforms and which of these is best analogized to, say, the college quad or the area in front of the food court at the local mall.Report

              • Avatar greginak says:

                You could also try to make a good argument. Do you want me to make your argument for you, because this is just weak.

                Like what is this private you speak of??? Private property…never heard of it.

                Sorry officer, you can’t kick us out of the McD’s playland for having sex in the ball pit. This is a free country..amarite?

                Come on. Give me something less mockable.Report

              • Avatar Chip Daniels says:

                Where did this concept of “vital” come from anyway?

                Certainly lunch counters weren’t vital, but they formed the basis for the civil rights movement.Report

              • Avatar DensityDuck says:

                “Certainly lunch counters weren’t vital, but they formed the basis for the civil rights movement.”

                If there’d been court cases over the Greensboro Sit-In that would be more relevant.

                Instead, they just did it, and a little while after that everyone quietly agreed that segregated lunch counters were just gonna stop happening.Report

              • Avatar Chip Daniels says:

                Uh, no not even remotely.

                Discrimination was rampant in the early 1960s which led to the bitterly contested 1964 Civil Rights Act, and its successive acts, and numerous court challenges, sometimes violence, more marches and protests, more court cases, some of which persist to this day.Report

              • Avatar DensityDuck says:

                This isn’t a conversation, this is Calvinball.Report

              • Avatar pillsy says:

                Maybe we didn’t say it because we assumed that the people we were talking to were mature enough to know about David Goldberger and understand why he did what he did.

                That would be a more convincing defense if you weren’t part of a political coalition that also contains many members who are defending the bakers out of conviction that LGBT people are bad and discriminating against them are good.

                And that you generally seem, personally, to only bring up the issue as another opportunity to own the libs.Report

              • Avatar DensityDuck says:

                “That would be a more convincing defense if you weren’t part of a political coalition that also contains many members who are defending the bakers out of conviction that LGBT people are bad and discriminating against them are good.”

                Interesting how me disagreeing with you means I’m part of a “coalition”. I guess that makes it easier for you. All I’m speaking here for is myself, dude, if you want to be SO ANGERY at other people that’s great but don’t ascribe views to me that I’ve never stated or implied that I held. I defy you to find actual statements, from me, saying straight-out “gay people should not be permitted to be part of civil society”. Not “interpreted to mean”, not “sounds like”, not “adjacent”. The actual words.

                ” you generally seem, personally, to only bring up the issue as another opportunity to own the libs.”

                well it’s in the OP hoss so maybe you should take this one up with CarpenterReport

              • Avatar pillsy says:

                All I’m speaking here for is myself, dude, if you want to be SO ANGERY at other people that’s great but don’t ascribe views to me that I’ve never stated or implied that I held.

                Why shouldn’t I?

                Because it makes it difficult for you to maintain that studied ambiguity that makes it easy for you to carry water for homophobes without getting the stink of their bigotry on them:?

                I defy you to find actual statements, from me, saying straight-out “gay people should not be permitted to be part of civil society”. Not “interpreted to mean”, not “sounds like”, not “adjacent”. The actual words.

                So you believe that it should be illegal to refuse to hire people for being gay, or refuse to rent or sell housing to them if they’re gay, or refuse to provide medical care to them if they’re gay?Report

              • Avatar DensityDuck says:

                “Because it makes it difficult for you to maintain that studied ambiguity that makes it easy for you to carry water for homophobes without getting the stink of their bigotry on them:?”

                You seem like you’ve got a lot of emotion wrapped up in this. If it makes you so angry that you can’t even type properly then maybe you need to back off for a while and think about that.

                “So you believe that it should be illegal to refuse to hire people for being gay, or refuse to rent or sell housing to them if they’re gay, or refuse to provide medical care to them if they’re gay?”

                objection, asked and answered.Report

              • Avatar pillsy says:

                Asked, yes, answered, no.

                In particular, you didn’t answer the question about employment.Report

    • Avatar North says:

      The good news in L5 is that the CO Human Right Comission has washed its hands of the matter as of lawsuit #2 and isn’t involved. So this is now just a trolling LGBT customer harassing a fundamentalist cake baker on her own dime.
      I do wish she’d cut it out though.Report

  6. Avatar Jaybird says:

    L3: We will soon see an adult set up a stand selling Margaritas at the side of the road. Strong ones!Report

  7. Avatar Jaybird says:

    L8: Nobody hates old people more than I, but isn’t that (morally, anyway) a murder variant?Report

  8. Avatar Jaybird says:

    L2: This is a toughie. It strikes me as similar to the Death Penalty insofar as if we are certain that the suspect did, in fact, commit the crime of which they were accused that this would make for a somewhat apt (if ironic) punishment.

    But that requires a level of trust in law enforcement and the justice system that I am not sure is warranted.Report

  9. Avatar Jaybird says:

    Nevada bans employers from refusing to hire those who fail marijuana tests

    From the article:

    There are some exceptions. The law does not apply to firefighters, EMTs, employees who operate a motor vehicle, or those who, in the determination of the employer, could adversely affect others’ safety.

    That’s not what’s going to make it to SCotUS, though. THIS is the one that is going to go all the way to SCotUS.Report

    • Avatar Aaron David says:

      One thing to keep in mind is that many lower-mid level jobs involve driving. Truck drivers, HVAC guys, the guy who picks up for Goodwill, carpet cleaners and so on. That is an exemption big enough to drive said truck through.Report

      • Avatar Jaybird says:

        I’m sort of iffy on whether it would be appropriate to drug test the guy who ran the machine press but not the guy in accounting.

        Because the guy who ran the machine press risked the life and limb of himself and his co-workers (but the guy in accounting was not risking that)… but that presents pretty identically to “blue collar jobs get tested, white collar jobs don’t”.

        Which is kinda messed up.Report

  10. Avatar DensityDuck says:

    Oberlin college will pay $33 million to settle racism lawsuit

    I get the idea that “shoulda settled, dumbass” takes are popular in these weekly roundups, and that definitely applies here.Report

    • Avatar Oscar Gordon says:

      Oh no, I was rooting for Oberlin to ride that straight to hell. Hopefully other colleges will think twice before risking enough cash to empty out a healthy endowment on such antics.

      If the kids want to rally and protest over stupid crap, let them, but once you allocate effort and resources to them, you’d better be sure you are in the right.Report

      • Avatar pillsy says:

        This is a very bad take IMO.

        Like if we’re actually worried about unpopular people being punished for unpopular (in this case, deservedly!) free speech, a creeping expansion of the definition of “defamation” being used to extract huge judgements from deep pocket defendants should really scare the hell out of us.

        This was my knee jerk going into this, and it was cemented by this piece.Report

        • Avatar DensityDuck says:

          “It’s true that Gibson’s Bakery suffered terrible economic harm from Oberlin and its students, and so far no one has presented any serious evidence of racism by the bakery.”

          WOMP WOMP

          very seldom do I see a column shoot itself in the ass quite so directlyReport

          • Avatar pillsy says:

            That’s an interesting take. Interesting, because it actually ignores the point of the column, best summarized thusly:

            But that makes no sense. There is no connection between the level of harm in a statement and whether it is an opinion. Some opinions can cause serious harm, and some facts cause no harm. The test of whether something is an opinion depends on whether it’s an opinion, not the level of harm.

            I mean if you want to follow, “Well, this speech actually caused somebody economic harm so it’s OK to award the target millions of dollars,” well, I don’t think that’s going to wind up where you’re hoping.Report

            • Avatar Oscar Gordon says:

              My understanding of such things (and IANAL, so…) is that it’s not just about calling someone racist. How it’s presented matters.

              So saying something like, “I think Joe is racist.” is not actionable, but saying “Joe has a long history of being a racist.” could be.

              Also, as we’ve discussed before, civil defendants should not necessarily be protected from screwing up their own case.Report

              • Avatar pillsy says:

                They should not necessarily be protected from screwing up their own case.

                However, there are times where they should be, and I’d argue this is one of them.[1]

                And my understanding is that there’s a good chance they will be, and defamation verdicts are often overturned on appeal. Juries will decide on the basis of whether the defendant was an incredibly obnoxious dumbass,

                Of course there were other problems beyond the matter of the defendants screwing up. Like, in a defamation case it’s actually important if the charge has any evidence behind it, so cutting off all discussion of whether the bakery really was racist seems rather like problem.

                And don’t get me wrong, it sounds like the bakers in this instance really did get fucked over, and Oberlin really did act like absolute trash, and part of me really does want to be like, “That’s what you get!”

                But that’s the whole free speech thing about scoundrels.

                [1] IA also NAL.[2]

                [2] That said, I don’t really see how what you linked changes things.Report

              • Avatar Oscar Gordon says:

                IIRC, Ohio uses a different jury for the penalty phase, so the jury who decided guilt is not the jury deciding on the damages. Which perhaps tells you something about the case itself.

                Looking at the link you posted, there is a section where the author claims that this:

                And the statement about “ a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION”…

                Is opinion. Now I don’t have the evidence from the trial in front of me, but unless there is some kind of qualifying statement preceding the snippet , that looks like Oberlin was making a claim of fact regarding the bakery. This is where what I linked to plays into it, because if you make such a claim, you’d better be able to back it up, or you may find yourself guilty of defamation.Report

              • Avatar George Turner says:

                Founded in 1885, I’m pretty sure Gibson’s bakery had spent five generations happily serving black students at Oberlin, which was one of the first colleges in the US to admit black students.Report

              • Avatar pillsy says:

                Yeah I think that is the nut of our disagreement then. That really looks like just a straight opinion to me.

                (Not a good opinion, mind you.)Report

              • Avatar Oscar Gordon says:

                If I had the time, I’d go paw through all the public statements Oberlin made and be able to form a better opinion, but I don’t.

                That said, we had a similar discussion recently. I would assume that either the judge, or the defense in this case would have made a solid effort to make clear the distinction between protected statements of opinion, and defamatory statements. So either the Jury was just so pissed off that they ignored those distinctions (possible, and why we have appeals), or Oberlin failed to prove that such statements were protected.

                I mean, we have some pretty tight definitions for things like slander, libel, and defamation, which is why such lawsuits tend to not succeed except when the plaintiff has all their ducks in a row.Report

              • Avatar InMD says:

                See below. It’s the apparently false statements of fact about the incident (‘they discriminated,’ ‘they profiled’, etc.). That’s not an opinion, that’s something that happened or didn’t and if it didn’t and whatever other elements California uses to establish libel/defamation were proved then the outcome is well within established jurisprudence.

                The Gawker thing is pretty different.Report

              • Avatar Oscar Gordon says:

                Sure, that’d work. These kinds of cases are hard to prove, unless you’ve got some pretty good evidence of public statements that fail to be crafted to clearly be opinion.

                Like maybe if you were an institution that had been getting a pass on such careless public statements for so long that you thought yourself immune…Report

              • Avatar InMD says:

                *Obviously Ohio not California.Report

              • Avatar InMD says:

                I don’t know why it isn’t in the link but the nexus of this lawsuit was an attempt to shoplift and use a fake ID by a black patron followed by a physical confrontation between an employee, the patron, and 2 other black students. The patron and 2 others were charged and plead to misdemeanor crimes. Oberlin then encouraged the boycott/protest with fliers stating that the patron was racially profiled and discriminated against by the store. My guess is that those and similar specific statements of fact are what got them in trouble.Report

              • Avatar pillsy says:

                Yeah if it’s in line with how things already work and it was clearly distinguished from opinion then fuck ‘em.Report

        • Avatar Jaybird says:

          We haven’t seen where “Freedom of Speech doesn’t mean Freedom from Consequences” will end up, but one of the waystations is this verdict.

          (And, seriously, I thought that inept handling of the defense since the Gawker trial was bad. This may have been worse.)Report

          • Avatar pillsy says:

            I don’t really see why. It’s not like defamation verdicts are a new thing, nor is it a new thing for people to be slapped with them erroneously and then go on to lose at trial because they’re assholes and their lawyers suck.

            And… to sort of repeat myself, if you want to follow this to its natural conclusion, I don’t think it’s going to wind up any place you like.Report

            • Avatar Jaybird says:

              if you want to follow this to its natural conclusion, I don’t think it’s going to wind up any place you like.

              That would have been good advice for the college following the shoplifting incident, now that I think about it.Report

    • Avatar George Turner says:

      Here’s a video from the Harvard Law professors who got axed at Winthrop House for choosing to represent Harvey Weinstein.Report

    • Avatar Jaybird says:

      Oberlin was punching up. This makes it okay.

      The grocers were punching down. This makes it not okay.Report

  11. Avatar Jaybird says:

    If one of the lawyer types could go through the various trial posts at the bottom of the page there, it’d help me. I mean, it seems to me that we’re deep enough in Oberlin being at fault territory that they *WILL* be shelling out some serious change, even when the appeals happen.

    (I mean, the judge also awarded lawyer fees. Is that common? I am under the impression that it wasn’t. That seems to me to be an indicator of how egregious Oberlin’s behavior was. Am I wrong on that?)Report

    • Avatar DensityDuck says:

      I’m sure there’s a pour encourager les autres going on here.

      I am also sure that’s what the Oberlin management was telling themselves when they decided that they were going to win and therefore they should go to trial.Report