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realitybasedcommunity.net - writings on establishment clause, free exercise, free speech, free press, copyright, trademark, right of publicity, media law, defamation, new media law. about scott pilutik.
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UNDER CONSTRUCTED REALITY
October 01, 2008 roe v. wha?We've had advance notice for the last few days that in the Sarah Palin interview with Katie Couric, Palin was unable to name another Supreme Court case besides Roe v. Wade. Troubling, yes, but it unfortunately eclipsed a more troubling answer, which occurred when Couric asked Palin if she thought there was a "right to privacy" to be found in the Constitution. Despite that Palin had just finished saying that she disagreed with Roe v. Wade, she answered "yes," that there is a right to privacy to be found in the Constitution. The unenumerated "right to privacy," found in the due process clause of the 14th Amendment, is, of course, the underlying basis for Roe v. Wade--ask any self-described "strict constructionist" conservative, as they've been howling at the moon for years over this. Thus, if Palin actually knew what she was agreeing to, she'd also know that her agreement and disagreement are entirely incompatible. Obviously I'm giving her too much credit (when Couric even reminded her that Right to Privacy is the cornerstone of Roe v. Wade). I think she simply thought that right to privacy sounded neat--who doesn't like privacy? The beginning of the clip below shows Biden discussing Roe v. Wade with Couric as well, except that Biden has obviously read the case. posted by scott pilutik at 08:15 PM
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reddit September 23, 2008 fail guys
posted by scott pilutik at 09:14 PM
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reddit August 25, 2008 Hillsong misuses copyright law to create distance between itself and religious fraudster GuglielmucciThe following contains every element necessary for a good story: religious fraud, pornography, and copyright abuse. As Wikipedia puts it, "Michael Guglielmucci is a former pastor and songwriter with some of Australia's biggest youth churches...," specifically Hillsong Church, which is affiliated with Assemblies of God Pentacostal denomination, and for which Guglielmucci wrote and recorded numerous songs, which Hillsong published. One of Guglielmucci's songs (which were apparently quite popular within the Christian youth demographic) drew direct inspiration from Guglielmucci's revelation that he had an aggressive form of cancer. The song, "Healer," was a huge hit: Healer became an anthem of faith for believers, many of whom are suffering illnesses and were praying for Mr Guglielmucci. Except Guglielmucci didn't have cancer, which has led to a police investigation (Guglielmucci has been soliciting and receiving donations), and some degree of embarrassment on Hillsong's part. Somewhat hilariously, Guglielmucci's father, when interviewed, chose to blame his son's need to perpetrate religious musical fraud on his addiction to internet pornography, a connection I don't quite see, no matter how much I squint. And here's where the story gets interesting. Even though videos of the song have been littered all over Youtube for awhile now, Hillsong has issued DMCA takedown requests on all the videos. Copies of the video, some which had received up to 300,000 views, now read: This video is no longer available due to a copyright claim by Hillsong Publishing A good friend of mine, Deana Holmes, edited the video down (which shows Guglielmucci on stage, introducing Healer with an oxygen tube inserted in his nostrils) and put it up on Youtube, which is the copy embedded below. While I don't think the video needed Deana's insightful commentary in order to bulletproof it as fair use, her commentary does supply some welcome context. I'll cheerfully host a full copy of the video (which can be seen here, at least for the moment) because publication of the entire song, at this point, falls under fair use--the video's newsworthiness as evidence of Guglielmucci's fraud trumps whatever copyright interest Hillsong has in controlling the publication of existing copies, so long as Hillsong's apparent interest is in burying its own shame in the deceit. See DMCA sec. 512(f), and Deibold v. OPG, 337 F. Supp. 2d 1195 (N.D. Cal. 2004) . Realize that I'm not accusing Hillsong of participating in Guglielmucci's fraud, only that they are misusing copyright law to distance itself from the entire unholy mess. posted by scott pilutik at 02:22 PM
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reddit August 15, 2008 Google terminates NYC Scientology critic site's AdSense accountGoogle terminated EpicAnon.com's AdSense account yesterday, informing the site by e-mail: While going through our records recently, we found that your AdSense account has posed a significant risk to our AdWords advertisers. Since keeping your account in our publisher network may financially damage our advertisers in the future, we've decided to disable your account.Google's highly successful AdSense program is a cost-effective way to place non-obtrusive advertising on your website and generate revenue. Website owners do not control which ads appear on the site--AdSense matches ads based on a site's particular content. Thus, because EpicAnon.com is largely concerned with Scientology, ads for Scientology--Scientology is an AdSense customer--appear on EpicAnon.com, which unsurprisingly drives the Church of Scientology nuts. Although the notice doesn't say, Scientology certainly complained to Google that its ads were appearing on a critic site—but Scientology was not motivated by the awful specter of members of Anonymous clicking through the ads to their site as they were motivated to harm the site owner economically (which it did—AdSense accounted for 80% of the site's revenues). AdSense makes a great deal of economic sense for both advertisers and site operators, who would find the costs prohibitive were they try to forge optimal one-to-one relationships on their own. Google, which is well-placed to direct advertisers' messages to the right audiences, is in the middle, taking advertisers' dollars and paying site owners a small percentage. For small, non-commercial site owners, like EpicAnon, that meager percentage is all that keeps a site afloat. But since Google is only taking dollars from one party (the advertiser) in an AdSense transaction, it can be picky about how it chooses site owners--it doesn't need any site in particular because there is simply no shortage of websites. It's understandable that many advertisers wouldn't want their ads appearing on certain types of sites (or even specific sites), but where should Google be drawing the line where it terminates a site owner from the program? Google, despite merely serving as the middleman has a long list of content prohibitions. From Google's AdSense site (under Site Content): Sites displaying Google ads may not include:
Legally, there's no reason Google can't proscribe overbroad terms—everyone is free to use or not use Google's service. But because of Google's ubiquity and market dominance, the choices for both advertisers and site owners are slim, to the point where the public trust has to account for more. Remember back in the day when "Don't Be Evil" was Google's one overriding principle? Yeah, those days are drifting into the oblivion for me too. By so narrowly defining what constitutes acceptable content on behalf of its advertisers, and then only enforcing that policy selectively, opaquely, and at the hidden behest of advertisers who use Google as a useful proxy in a larger game of lawfare (a game of which they're well aware, having appeased Scientology whining as to its search engine rankings in the past), Google is Being Evil. Much of that evil is clear from the above-mentioned prohibitions—"advocacy against any … group or organization" accounts for a huge chunk of web, and would, if the natural meaning of its language were observed, exclude 90% of political blogs from participating as AdSense publishers. But it's relatively easy to find political blogs where 9 of every 10 posts advocate against the opposing party. AdSense members? Sure. Advocacy for anything regularly necessitates advocating against opposition to that thing, which usually appears via some public interest group. People who are for feeding starving African children are naturally against the Mugabe regime in Zimbabwe. Members of Anonymous are for free speech, religious transparency, and families, and are thus naturally against the Church of Scientology. Google selectively ghettoizes sites opposed to Scientology, punting them into the same bin as porn, white power, and viagra spam sites. This would matter less if Google was not so ubiquitous and have such a significant say in the manner of Internet content. Google is practically a public utility by this point and perhaps the laws that govern broadcast, gas, and electric companies should also govern Google to some degree. Libertarians would be horrified if such a direct line were drawn between a company in such a new industry, even a company as dominant as Google, and the public trust. But Google is not just some passive reporter--it has become such a large part of the whole Internet fabric that its policies now directly affect content creation. By its AdSense program, it is dictating commercial orthodoxy, declaring sites such as EpicAnon as "unsafe marketplaces." If whistleblower-style sites can't participate as AdSense members (and there are no comparable substitute products available from any competitor), there will be fewer of these types of important sites. Google is not only dictating orthodoxy, it's mandating complacency. As the mainstream media further demonstrates its unworthiness of First Amendment protections by becoming subsumed by the government it is supposed to serve as a check against, smaller online media need greater consideration under the law. These outlets need more than press badges though; they need to be given equal opportunities to thrive. posted by scott pilutik at 02:30 PM
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reddit July 12, 2008 Intelligent Design evolves into Academic FreedomThe Louisiana legislature passed an insidious bill that, according to NewScientist, seeks to "bestow on teachers the right to introduce non-scientific alternatives to evolution under the banner of 'academic freedom.'" While I'm not surprised that the Louisiana legislature is that stupid, the vote itself jarred me: it passed 94-3. The State Board of Elementary and Secondary Education, upon request of a city, parish, or other local public school board, shall allow and assist teachers, principals, and other school administrators to create and foster an environment within public elementary and secondary schools that promotes critical thinking skills, logical analysis, and open and objective discussion of scientific theories being studied including, but not limited to, evolution, the origins of life, global warming, and human cloning.The Act then schizophrenically goes on to say the following: This Section shall not be construed to promote any religious doctrine, promote discrimination for or against a particular set of religious beliefs, or promote discrimination for or against religion or nonreligion.That 93 out of 97 Louisiana legislators apparently believe that this disclaimer rinses the religious purpose from the Act is stunning. But then, we all saw this bill coming--this bill has effectively been in the works for nearly a century. Undercutting evolution was easy at first, when legislatures could simply prohibit it from being taught. But then the courts eventually stepped in and invalidated law after law that sought to insert creationism into public school systems on the basis that these laws violated the establishment clause. With each judicial rebuke, creationism evolved, first into "creation science," and then into intelligent design, each incarnation stripping away the perceived legally problematic elements. After intelligent design was thoroughly savaged by Judge Jones in the Dover trial, another legally problematic element was shed... which now brings us to Louisiana and its Louisiana Science Education Act. By itself and free from any context, the act promotes progressive, harmless sounding values; after all, who could possibly be against "critical thinking skills, logical analysis, and open and objective discussion of scientific theories"? But the Act's faults don't lie its stated, admittedly neutral-sounding values, but in the implications that flow from the subjects the legislature sees as lacking sufficient objectivity, namely, "evolution, the origins of life, global warming, and human cloning." Taking evolution separately for the moment, the problem the legislature will have when this inevitably goes to federal court is that scientists do not view evolution as it is commonly taught in public schools as lacking objectivity. The court is going to ask why these particular subjects were targeted and from that inquiry will spill who--and who wants to target evolution? Biblical literalists and ... well, pretty much just biblical literalists, whose opposition to evolution is heavily documented. How can this be reconciled? But this bill is not just the next evolved step in the secularization of creationism; when compared with the clumsy attempts by the school boards in Dover and Cobb County, it reveals a sophistication, deliberateness, and insidiousness that may indeed win the day, at least at the trial court level, and perhaps in the appeals court as well. I say this for two reasons. First, the Act brilliantly targets not only evolution, but origins of life, human cloning, and global warming. This makes the Act harder to defeat as a whole, because while it's easy to find the religious purpose where evolution is attacked, it's less simple to trace back attacks on global warming and human cloning to religion (which is not to say that religious motivations don't also lie behind attacks on global warming and human cloning--they do--but unlike evolution, some varying degree of nonreligious opposition against them also exists). Thus, the Act could be successfully attacked on one front and survive on another. And this is why the presence of "origins of life," alongside evolution is especially scary because of how the two subjects overlap; its inclusion could possibly give Louisiana two bites at the same apple. If the inclusion of other topics besides evolution is predicated on giving the Act multiple lives, the purpose of the aforementioned 'no-religion' paragraph is to bulletproof the Act. Where §285.1(B)(1) provides for a brand of "academic freedom" that can only be satisfied by maintaining a constitutionally impermissible religious purpose, and §285.1(D) expressly prohibits the promotion of religious doctrine, you don't have a bill so much as an unworkable paradox--a Mobius Loop. Thus, even if a court recognizes the loop, it may still find this section as a sufficient guard against unconstitutional activity, since that's precisely what it purports to do. But this Act is even smarter yet. It seems possible, and even likely, that the type of religious activity that would naturally occur in the course of administering §285.1(B)(1) would be abstract and ambiguous--and not considered "religious doctrine," which, along with relgious discrimination, is all §285.1(D) prohibits. I'll have a lot more to say on this particular Act because it seems destined for court, and if it does, many will be watching. posted by scott pilutik at 10:41 PM
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reddit July 03, 2008 grahame the scientologist and study tech disinformationI posted a comment to the blog of a Scientologist named Grahame, refuting some of Grahame's claims that Study Tech is secular. Grahame didn't publish my comment, but nevertheless saw fit to edit my comments and respond to the edited comments on his blog, naming me in the process. While I don't mind my name being used on his site (I obviously wouldn't have commented using my full name otherwise), I believe that it's sleazy to name a commenter whose work you're responding to while simultaneously presenting a edited-down version of those comments.
posted by scott pilutik at 05:27 PM
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reddit June 30, 2008 Ortega unearths unpublished-til-now 2002 article on WollersheimThe excerpt below is an introduction to a long but riveting piece by veteran journalist Tony Ortega, now editor-in-chief of the Village Voice. Ortega wrote the piece 6 years ago for the New Times LA, which folded before it could be published. It largely concerns the legal travails of ex-Scientologist Lawrence Wollersheim, whose litigation against Scientology could serve as the sole basis for a 4-credit Civil Procedure course, with credits to spare for Torts and Constitutional Law. Six years ago, when I was a reporter at New Times LA, I’d written several stories about Scientology (Los Angeles is one of its headquarters), and I was about to uncork the longest one yet—a 7,000 word piece about an embarrassing, $8 million defeat Scientology had just suffered, when the weekly paper suddenly folded. posted by scott pilutik at 09:55 PM
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reddit Will Smith's Scientology School The LA Times is reporting on Will Smith's New Village Academy because of its admittedly close association with Scientology. While I'm happy to at least see a 'there's a controversy' article, the author seems unable to grasp precisely why there's a controversy, other than that the school claims to be secular yet will use L Ron Hubbard's "Study Tech." The reader has to wade through a sea of fluff (ooh, the school will have karate?) before the controversy is made clear by Dave Touretzky: But critics contend that the school is not being honest about its links to Scientology. David S. Touretzky, a professor of computer science at Carnegie Mellon University, created a website that dissects study technology and asserts that it is Scientology religion disguised as education. [link added]Dave Touretzky's point is that Study Tech, both in theory and as it will apply in the classroom, is indistinguishable from the religious content of Scientology. Scientology front groups often claim to be secular (largely so they can keep their hands out to receive public funding, or else such funding would violate the establishment clause), but even light scrutiny--which the LA Times appears unwilling to provide--reveals claims of secularity to be patently false. Side by side comparisons of Study Tech content and content which Scientology considers religious couldn't make the point more plain. Scientology routinely gets away with this secular/religious distinction because the religious content of Scientology does not appear to resemble religion as most people think of it. And to this end, most people have a point: Scientology does not concern itself with a supreme being, it is uncharitable (indeed, charity violates the Scientology tenet of "exchange"--meaning that people who get something for nothing are "out-exchange"), and there's no praying or Sunday worship services (although on occasion they'll occasionally resort to Sunday worship services as a recruiting tool, when they sense that implying a kinship to Christianity might help it). But regardless of where you fall on the Scientology is/isn't a religion question (I say it is, but that doesn't make it any less of a cult), the federal government considers it as such, at least in the sense that the basis upon which it receives a 501(c)(3) exemption is as a religion. Thus, when Scientology front groups begin touting secular programs that are indistinguishable from Scientology religious beliefs, such programs are violating the establishment clause (if they're receiving public funding, as is often the case), or they're just plain lying to the parents of potential students, as in the case of Will Smith's New Village Academy. posted by scott pilutik at 10:46 AM
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reddit June 27, 2008 Holy Joe and the Church of DoublespeakVia Talking Points Memo; Joe Lieberman manages to talk out both sides of his mouth in the span of a single sentence: "In fairness we don't know if Rev. Wright said these inflammatory, anti-American, racial comments every Sunday, but I would not continue to go to a synagogue where that kind of rhetoric was spoken," Lieberman said, adding, "I think it did raise questions in people's minds about why did he stay in the church that long," but he said he would "take (Obama) at his word" and move on.Ned Lamont is spinning on his couch. posted by scott pilutik at 10:47 AM
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reddit Holy Joe and the Church of Doublespeak Via Talking Points Memo; Joe Lieberman manages to talk out both sides of his mouth in the span of a single sentence: "In fairness we don't know if Rev. Wright said these inflammatory,Ned Lamont is spinning on his couch. posted by scott pilutik at 10:46 AM
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reddit June 24, 2008 Google v. Community StandardsThe NY Times reports on an interesting obscenity defense tactic: In a novel approach, the defense in an obscenity trial in Florida plans to use publicly accessible Google search data to try to persuade jurors that their neighbors have broader interests than they might have thought.Obscenity convictions hinge on violating local community standards, which obviously vary from community to community, and can appear to vary greatly, at least if your gauge is the make-up of the city council or the school board's proposals. While I'm surprised (but pleased) that this evidence was allowed in (it seems as if you could argue that Google Trends proves either everything or nothing), I'll bet this tactic, should it be permitted elsewhere, ultimately demonstrates is that every community is as degenerate and deviant as the next, a realization that will hopefully collapse the entire community standard. posted by scott pilutik at 08:45 AM
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