Sunday, November 5, 2017

Will the Visual Artists Rights Act Prevent Cities from Removing Offensive Artwork?

I've been published!

We law review staff editors are required to write two short articles as well as our long comment. A handful of the short articles get selected for publication, and mine was one of those.

It was published here yesterday. In it, I discuss the Visual Artists Rights Act, the trouble it might cause for communities that want to remove offensive artwork, and how it's probably not that big of a deal after all.

It's fairly short, so please go check it out!

Sunday, October 29, 2017

Why I Hate Proprietary Technology

I like books. I like authors. I want to give them money, when I have some to spare. But, with the direction technology has been going, actually paying for books is becoming more difficult than simply stealing them.

Today, Amazon is giving away two free audio books and 30 free days of Audible (why do we have to pay $15/month for Audible when we're already paying for the books themselves??) to anyone who signs up for Audible. "Great!" I thought, "I'll be able to at least listen to part of Stephen Fry's recording of Hitchhiker's Guide to the Galaxy!"

So I signed up for Audible, found two audio books I wanted and purchased them with credit. Having a stupidly slow internet connection (Thanks, Verizon!), I wanted to actually download these books rather then streaming them from the cloud. So, I click on the "download" button next to the first book in my library. It opens a new page with lots and lots of different places I can download my book to. I want to just download it as an MP3 to my perfectly normal Windows 10 computer. That option is the very last one on a long page. It says I have to install Program 1 (names have been changed for simplicity's sake - the three programs involved have extremely similar names). This is not unexpected, as I know Amazon is highly proprietary, and I have thrice downloaded Kindle for my PC (it always stops working after a couple months for some reason. I have completely given up on Kindle as a result).

I click on the link to download Program 1. That takes me to a page saying I first have to download Program 2, then download Program 1. Well, that's fucking stupid, but OK. I really want to listen to this legitimately-obtained audiobook. I download Program 2 with no issues. After Program 2 is installed, it gives me several options for how to listen to my audiobook: via Program 1, via Windows Media Player, or via iTunes. I haven't used iTunes in over 5 years (it was impossible to use, so I will never touch it again), but I use Windows Media Player for music all the time. So I chose that option.

Then, thinking that maybe I don't need Program 1 after all, I again attempted to download the book. Nope. The download button still takes me to that huge page with all the download options. The last option listed at the bottom of the screen still tells me I need to install Program 1. OK, so I need Program 1 to download, but I can listen to it on something else. Fine, whatever. Unlike my last computer, I have tons of disk space on this computer for a pointless program. It's fine.

So I download and install Program 1. Program 1 then says it has an update. Great, let's just get that out of the way now. It works briefly on its update, then an error pops up saying that Program 1 is trying to close something in an unusual way (whatever that means) and the update is cancelled. Fine. I probably don't need that update anyway.

Back to the library page to click the download button again. Shit. No, it's still taking me to the giant page. The very bottom of the page where the most perfectly normal and average way one might want to download an audio file is listed still says I need to install Program 1. Well, fuck. I did that. It's installed. What the hell do I do now? There's a FAQ, but no troubleshooting guide that I can find.

Oh, the FAQ keeps talking about a free app specifically for Windows 10 that I can get through the Windows Store. Let's call it Program 3. Well, as I said, I have tons and tons of disk space on this computer. Let's go download a third redundant computer program.

Mind you, it has now been about a half hour of work to download these two books and all I have accomplished is downloading two useless programs onto my computer and signing into my Amazon account four times. If I wanted to download these books illegally, I would already have had a 20-minute head start on downloading them, at least. But I persevere. After all, I am a law student studying IP. I want to do things the right way, if possible.

If possible. If not possible, downloading pirated copies is not beyond me.

I open the Windows Store app and search for Program 3. Easily found, thank God, as Audible couldn't just give me a link to it, since it has to be downloaded through the Windows Store. God forbid you have the ability to download this free app anywhere else, right? Program 3, thankfully, down not take long to download and install. Oh joy, I have to sign in to Amazon for a fifth time this morning. Great. Not surprising, but certainly irritating. Also thankfully, once I sign in to Program 3, the books I have purchased automatically show up, with a download option. Programs 1 and 2 seemed entirely disconnected from my Amazon account, despite my singing in. This one is integrated with my account in a logical way. I click to download the first book.

A box pops up. "Streaming is also available! Would you like to turn on streaming?"

FUCK NO. What do you think I've been going through all this trouble for? Why would I download this fucking program if I was just going to stream the damn books? I have three fucking browsers that can do that just fine.

Anyway, I am now in the process of downloading the books, which, thanks to Verizon, will take a few hours.

I used to work at a used book store. We sold audio books. They were on CD and cassette tape. You went to the store, found one you wanted, bought it, then you could just play it on anything that can play CD or cassette. That's it. No downloading special programs. No jumping through hoops to figure out why those programs won't work. No clogging up bandwidth. No monthly fees. Just a fucking physical object and a machine to play it on.

I also remember when buying a computer program meant you could use it forever. Now they're all licensed yearly, for the same price per year that used to get you the program forever. It's all a fucking scam by companies desperate to reduce pirating. But they don't seem to understand that they are driving us to pirating. I definitely prefer to do things the "right" way. But it's a hell of a lot harder than doing it the illegal way. Sometimes, it's simply a choice between pirating or not having it at all. Not because of the price, but because the software the company requires you to use to listen to your audio books doesn't work. If I didn't have Windows 10, I would have to stream these books because Programs 1 and 2 don't work. If my husband also has to do something on the internet, thanks to Verizon's shitty, shitty internet, I couldn't listen to the books. And there is no reason for that except Amazon's paranoia about pirating.

Thursday, October 26, 2017

Education v. Training

 [UPDATE: Just read this comic instead:]

I write this today primarily as a public announcement of my intention to curtail my computer use and increase my book usage. I may begin using this blog to share my thoughts about things I am reading and thus encourage myself to focus not just on taking in the information from the books I am reading, but to engage with the writing and develop critical thinking skills.

By most measures, I am a well educated person: two Associates degrees, a Bachelors degree, and almost halfway through a J.D. I've been in school for approximately 24 years now, starting at age 5.

Yet, I increasingly feel like I have had nothing more than a sporadic and meagre education. I also feel more and more like any education I have actually received has been of my own doing and not through anything required at any school I went to. My years of schooling have, for the most part, been mere training, not education.

What is the difference between training and education?

To me, the difference lies in which skills are being emphasized. Training involves practical skills. How to sit still, how to listen, how to follow directions, how to get along with others, how to tie your shoes, how to line up and calmly walk out the door when the fire alarm goes off, how to read, how to do basic math, how to draw so there isn't a gap between the ground and the sky, how to fill out scantrons, how to take standardized tests, how to do simple science experiments, how to write checks, how to not get pregnant,  how to fill out job applications, how to fill out FAFSA forms, how to figure out what the professor wants you to say so you get higher grades, how to write an essay, how to use computer programs, how to deal with bureaucracies. Most of these things are very important to know generally. Some of them simply make teachers' or school administrators' or government officials' lives easier and have no value in and of themselves.

Education is less obviously practical. Education requires a logical step before one sees any usefulness in it. Education is inherently philosophical in nature. It is less about "how to" and more about "why to." Having an education will of course mean that one knows how to do something, because the practical skills often go along with the philosophical understanding. But mainly it is a different type of "how to": how to think critically, how to analyze, how analogize, how to contextualize.

Only the very basics of these higher-order skills are taught in American public schools.

Schools* teach classes that provide a basic groundwork of a liberal arts education - science, math, reading, language arts, social studies, foreign languages, art, and music (well, among those schools that still bother teaching art and music, anyway). But, as anyone who has spent time in a typical American classroom knows, before college, most of class time is spent either on busy work or on keeping a small number of students from disrupting the class. There is little time spent discussing what we have read, and the "discussion" is primarily based on facts, not analysis. Quizzes and tests mostly only tell the teacher whether a student has done the reading, and at most ask if the student understood the reading. They never ask whether the student can analyze, contextualize, critique, or analogize the writing. "Did you do what you were told to do?" and "Do you have basic reading comprehension skills?" should be questions teachers stop having to ask after elementary school, if students are receiving an education and not just training.

And yet these questions continue to be the most important ones teachers want answers to up through college! The required "liberal arts" courses at many colleges are little more than a continuation of high school classes with fewer disruptive students, but larger class sizes. Read this, regurgitate its facts, maybe do some simple analysis or analogy, move on to the next thing. Only a couple of people participate, the rest are mere warm bodies in seats, assuming they bother showing up for class. The tests are easy and primarily fact-based or repeat the simple analysis already done in class (thus only answering the questions "were you in class?" and "did you pay attention in class?") so that grading can be uniform. It is not under the upper-level courses, when one has chosen a specialty, that one begins getting an education in that topic. But even then, the emphasis is often on simple analogy and basic critique and is never cross-disciplinary. For those majoring in something "practical," (i.e., there's a job title in the name of the major) the upper level classes focus almost entirely on practical skills.

So, most of us either essentially go without an education or we have to teach ourselves.

I have been somewhat trying to give myself an education, simply by reading a lot of various books. I have a theory that a focus on reading primary sources (and good translations of primary sources) can increase critical thinking skills, simply because the material isn't being analyzed for the reader as in a secondary source. Unfortunately, since starting law school,** I have had less time to read non-legal primary sources.

I have, however, maintained plenty of time for Twitter and video games.

A simple solution reveals itself.

*When I say "schools" I am talking only about American public schools, and am mostly generalizing from my own personal experience. I have no clue whatsoever what private schools teach. That is an entirely different world than the one I am familiar with.

** Law school is, at its heart, a trade school. The purpose of going to law school is to learn how to do a specific job. However, the professors have to write all these academic articles and like to believe that law school is not a trade school, but an academic pursuit. Thus, strangely, law school provides something of an education, though only in law. Tests are heavily focused on analysis and are frequently open-book after the first year. Meanwhile, law school fails at being a trade school because it provides little training in the practical skills needed to be a lawyer. It's a strange world we live in.

Monday, September 11, 2017

Betsy DeVos at UB

Over the weekend, students at my school, The University of Baltimore, found out that the commencement speaker for Fall 2017 is going to be Betsy DeVos. Many students are livid. The emails that have been going around have been civil and level-headed for the most part, but clearly, the SGA is not happy about this decision. The university's president made this decision without consulting with any students.
I am very happy to see President Schmoke's response to the outcry. It is honestly not how I expected  this controversy to work out, but it is heartening to see.
Below, I have included screenshots of all relevant communications that I have received thus far and will continue to update as I receive further communications.
Tomorrow and Wednesday there will be gatherings on campus to discuss the issue. Today, there are two "walk outs," one at noon (as I write this) and one at 6:15pm. I hope to attend as many of these meetings as possible and will report anything interesting that I observe.

First, an email from the Student Government Association on 9/8 (highlighting in all screenshots not in original):

President Schmoke issued a statement on the morning of 9/11, which I received in an email at 11:45am:

The Student Bar Association replied to President Schmoke's statement on 9/11 at 11:19am:

The Vice President of Student Affairs, on 9/11 at 11:36am:

UPDATE: 9/11 3:15pm: The Baltimore Sun has picked up the story. The Real News were broadcasting live from the noon protest and will likely be broadcasting the 6:15 protest live as well.
UPDATE: 9/11 7:28pm: I attended most of the afternoon protest. I recorded video of many of the speakers and hope to have those uploaded soon. The main themes of many of the speakers were 1) their dislike for DeVos's policies and opinions and their belief that she would not represent the views and interests of the graduating students, and 2) frustration and anger that the students had no say whatsoever in the process of choosing a commencement speaker.

Tuesday, August 22, 2017

Con. Law II - Day One

This semester is going to be fucking awesome.

Con. Law II (which at UB is entirely about the First Amendment) is the class I have been waiting over a year to be able to take. And if last year's Con. Law I course and today's class are any indication, Professor Closius will be the best person I could hope for to teach this class.

He was literally getting in students' faces and yelling "fuck you!"

Just to make a point, of course.

We had a nice discussion about why "fucking" is considered offensive but "freaking" isn't. We listened to some oldies. We talked about hate speech. (Yes, I was the only one who said we shouldn't limit it.) We talked about pornography. And, y'know, we talked about levels of scrutiny and all that dry legal stuff from last semester, too.

One thing Closius said I don't quite agree with. I get his point, but I wouldn't have made nearly as broad a statement as he did. He said that today, everyone is a First Amendment liberal.


The example he gave was the song linked above, "Rhapsody in the Rain" by Lou Christie. (It's an excellent song. I grew up hearing it on the radio and if you don't like it, fuck you.) If you don't feel like listening to it and aren't familiar with it, it's a late-60s teen love ballad about two unmarried youths fucking in the protagonist's car. Not in so many words, mind you, but that is very clearly what the song is about.

Closius polled the class, asking if any of us found the subject matter of the song to be offensive. Of course, no one did. He then told us about the reaction to the song back in 1966 and how very very few radio stations would dare play it because it was scandalous. He then claimed that no one would find that song offensive nowadays.

Um, yes, there are plenty of people in the US who would find that song offensive today, many of whom were born well after the song was released. Try polling some rural evangelicals rather than urban law students and see what sort of unanimity you end up with.

So that example is bunk, but let's focus on something other than sex for a minute (it's only one minute, it won't kill you).

Let's look at Milo Yiannopoulos's book. I seem to remember a lot of angry people saying it shouldn't be published. Some were merely advocating boycotting the book or the publishing company. Others would prefer that such things be banned entirely in our country. Are they First Amendment liberals? Seems no different to me than calling for a song to be banned from the radio (worse, actually, since radio is passive consumption, whereas reading a book requires active participation with said book).

Let's look at flag burners. I distinctly remember people among my Facebook friends saying that one shouldn't be allowed to do that (most of them were actually saying that it is currently illegal to burn the flag, an inaccuracy with which they vehemently agreed). I distinctly remember a couple of my Facebook friends saying that anyone who does that should be shot, that if they saw someone burning the flag, they personally would shoot that person. Are they First Amendment liberals? Fuck no, that's about as illiberal as you can get.

The problem with making absolute statements is that a single counterexample refutes the whole thing. That's why we're taught in law school to couch statements with words like "maybe," "probably," etc. Even a seemingly-obvious statement like "every person is human" isn't really right all the time, because many see their cats and dogs as "people," myself included. Words are squishy things, which makes law difficult and nuanced.

Closius is known for hyperbole, and he is right that, as a general culture, we are a lot more liberal on free speech issues now than we were in the 60s (probably, anyway. If you've got some poll numbers from the 60s, please send me a link). However, his bold claim that everyone is a First Amendment liberal is, unfortunately, incorrect. Plenty of people in this country seek to censor what they find offensive, some seek to kill over it. Let's not go around applying the word "liberal" to those people.

Wednesday, July 19, 2017

Ben Cardin Graduated from MD Law without Learning About the 1st Amendment

What other explanation is there? Our Maryland Senator is one of the sponsors of a bill that would make it a felony to support a boycott of Israel. It's hard to imagine a more blatantly unconstitutional law being proposed in Congress than this one.

Therefore, either Mr. Cardin doesn't care about basic American principles or Maryland Law is a much worse school than we University of Baltimore students make it out to be.

I am far too angry right now to write about this issue coherently, so I will leave my comments at that for now.

Saturday, June 17, 2017

Arguing with an Authority

Just because someone is an authority on a subject does not mean that person is always right about things related to that subject. Thus, one may occasionally find oneself in the position of wanting to argue against something an authority says about their special subject. This phenomenon has become all the more common since the advent of social media but has occurred since time immemorial. In the 19th and 20th centuries, a common way to rebut an expert was through newspaper op-eds.

The op-ed rebuttal is still alive and well, as seen in this short article. OK, maybe "well" isn't quite correct, but it's extant and frequent. In that article, the author, Stephen W. Ball, is replying to an article written by Ken White (@Popehat), who is considered something of an authority on the First Amendment. At the very least, he is known within First Amendment circles as someone who knows what he's talking about.

Go ahead and click through and read Ball's article. It's only 4 short paragraphs long, and only three of those paragraphs are substantive.

Done? Good. What did you think of it? Cuz I thought it was shit.

Does the author bring up some good points? I mean, like, kinda. He's not entirely wrong in what he says, but damn does he not know how to make a good argument.

When you argue against an authority about their subject of expertise, you need to make sure you fully explain yourself. It is nowhere near enough to simply say, "well, actually, you're wrong," and leave it at that. No one with a head on their shoulders will believe you. You must fully explain your position and cite direct evidence or other authorities. You must be persuasive.

Ball's entire article is just a series of one-sentence points saying, "well, actually, White is wrong about that," and never going on to explain how White is wrong. It's as though he brought up some talking points and then wanted to sit back and let the people in the comments section make his arguments for him.

I think I'll just go ahead and do that. I'll make his arguments for him. Sounds fun. Even better, I'll point out why his arguments are stupid, and maybe we'll all learn something.

One: "Well, actually, Schenck is still good law."

Well, actually, pretty much everyone thinks you're stupid for trying to make this argument. Is he right? Only in a very technical sense. I guarantee you will not see Schenck cited as anything other than historical curiosity in a SCOTUS decision anytime soon (unless they decide to finally get around to explicitly abrogating it).

Here's the argument he should have made when he decided going down this path was a good idea (note: I mostly pulled these arguments from Wikipedia, which I suspect is where Ball learned everything he knows about Schenck anyway):
"Schenck is still good law because the Supreme Court has never explicitly overturned it. Even Holmes' dissent in Abrams wouldn't have overturned Schenck, but instead, would have differentiated it. Furthermore, the same line of reasoning used to decide Schenck was used in Brandenburg v. Ohio, which established the current standard for incitement. Presently, Schenck appears to still be good law for matters concerning national security, as shown in the reasoning for Holder v. Humanitarian Law Project . According to Shepard's, Schenck was cited positively in an appellate decision as recently as 2010."

That's the best I can do in making that argument without spending far too much time on it. It's better than what Ball said because at least I included the word "because" and some sort of backing.

Is it an oversimplification of Brandenburg? Yes. Brandenburg didn't follow Schenck, it just considered the same sorts of things. In fact, Brandenburg explicitly rejected the "clear and present danger" test used in Schenck.

Does it matter in the slightest whether Holmes would have overturned Schenck in his Abrams dissent? Not really. It's a dissent.

Was Schenck actually cited as precedent in Humanitarian Law Project? No. The argument that these cases are related comes directly from Wikipedia and is interesting, but not entirely honest. While Humanitarian Law Project might have rejected a specific intent requirement for sedition supporting terrorism, it didn't do so by relying on Schenck. The only mention of Schenck in that case is in Breyers' dissent. There, he cites Schenck once as an example of a case badly decided due to a perceived national security threat:
 I am not aware of any case in this Court--not Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), not Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470, 17 Ohio L. Rep. 26, 17 Ohio L. Rep. 149 (1919), not Abrams, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173, not the later Communist Party cases decided during the heat of the Cold War--in which the Court accepted anything like a claim that speech or teaching might be criminalized lest it, e.g., buy negotiating time for an opponent who would put that time to bad use.
Was that 2010 decision (the 9th Circuit's opinion in US v. Alvarez) really upholding Schenck? Not really. Alvarez was about the Stolen Valor Act, which made it a crime to falsely claim military honors. The court cited Schenck as upholding the idea that speech may be criminalized if it poses a "clear and present danger." I don't know what clerk decided that was still a test that courts use for anything or why no one caught that error, but Brandenburg explicitly killed the "clear and present danger test." Importantly, for all its positive discussion of Schenck, the 9th Circuit nonetheless found that Act to be unconstitutional under the First Amendment. Also importantly, Alvarez was granted certiorari to the Supreme Court, which affirmed the 9th Circuit in an opinion which makes no mention of Schenck whatsoever. In fact, according to Shepard's, the Supreme Court has never cited Schenck positively. Now, of course, Shepard's has its flaws and its limits, but as a first step in research, and considering how old the case is, that should be a good sign that Schenck isn't exactly a highly regarded case.

Does it matter at all that a Circuit Court treated Schenck positively? Maybe. It's evidence that it's still seen as an important decision by some judges, or at least by some misguided clerks. However, the fact that the court spent so much time discussing Schenck is odd, to say the least. I'll just quote the dissenting opinion here:
The majority is wrong. The Court has never used the "clear and present danger" test to determine whether a category of speech is protected in the first instance. Much to the contrary, the Court has specifically held that the existence of a "clear and present danger" of harm is irrelevant in the context of unprotected categories of speech. ... Schenck dealt with a content-based restriction of a category of speech that would now be considered clearly entitled to First Amendment protection.
Ultimately, though, no one who knows what they're talking about (such as Ken White) views Schenck as good law. And even if one finds a situation where it could be considered "good law," in pretty much every instance there is a better case to be found.

Two: "Actually, true speech can be illegal."

The preferred word is "unprotected," not "illegal," but we get the point. And he's right. When it comes to determining if certain speech is protected, truth is not always a determining factor. Ball backs up this claim by paraphrasing an example from John Stewart Mill: "It is still criminal to incite mob violence or carnage at the house of a corn dealer even if the speech there is true." That's nice that he's reading Mill, but that's not a terribly good example to back up his argument. There have been some small but important changes to the concept of incitement since Mill's time. I simply cannot imagine a scenario where someone says a series of true statements which will cause a group of people to attack a corn dealer or burn down his house or whatever. Maybe the corn dealer was a really nasty guy, I dunno. But, for it to be incitement nowadays, the person charged with incitement would have to have spoken an opinion or a command at some point indicating a desire to have the mob attack the corn dealer. Such a statement would necessarily go beyond the realm of factual statements that can be described as true or false.

Here's the argument he should have made: "It overly simplifies the law to say that true speech is always protected. There are several instances where one may speak only truthful, factual statements and their speech still be unprotected. For example, Public Disclosure of Private Facts may involve speech that consists entirely of truthful statements, and yet that speech would be unprotected. Also, certain content-neutral regulations ban truthful speech along with all other types of speech, such as ordinances which prohibit protesting within a certain distance of a funeral. Someone may be protesting by holding a sign containing only truthful statements but would still be in violation of that ordinance. Thus their speech would be unprotected even though it is true."

There's nothing actually wrong with this argument. It's a bit pedantic, though, to argue about a single over-simplification in an otherwise good op-ed, especially considering the word count limitations. It just seems douchey to write your own op-ed saying, "well, you know, actually, these two minor points that make no difference to your main point you got slightly wrong, but otherwise it was good."

Three: "Here's a tangential obvious point."

Another reason not to make truth or falsity the test of protected speech is that what was once thought false might turn out to be true.
Yeah, no shit. And vice versa. That's part of the reason why it's not the test. Ball never does explain what this sentence has to do with the rest of his article, but then, he doesn't make a habit of explaining anything at all. So there it is. No, he didn't expand on this thought either. It's just this sentence sitting right after the single sentence about truthful speech sometimes being "illegal." Honestly, I'm almost embarrassed for him. The whole thing reads like an outline of a rough draft.

Four: "Let me start making a point and not finish it."

There should be no doubt, however, that so much of so-called hate speech is legally protected but is nevertheless currently suppressed — especially on college or university campuses (I am a philosophy professor at Cal State San Luis Obispo). “Hate speech” has come to mean whatever political speech one hates or finds offensive.
Thanks. You're really adding to the discussion. Maybe, being a philosophy professor, Ball could have added some insight by discussing things he has observed on campus as examples of "hate speech" being suppressed. He didn't, though. He just paraphrased part of White's article and made sure everyone knows he's a philosophy professor. This adds nothing. It's as though he thought of a good point, wrote down a couple sentences introducing that point, then promptly forgot to make the point before finishing his op-ed. It's just two sentences sitting there without backing or explication or anything. I totally agree with these two sentences, by the way, but this is not how one makes a good argument.

So, in sum: if you want to argue with an authority, make sure you know what you're talking about, back up your claims with evidence, keep to the point, and finish your thoughts. And that's a minimum. If you want to get beyond simply avoiding people laughing at you to start winning arguments, you'll need to start looking beyond Wikipedia for sources.