I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Thursday, May 31, 2007

Alan Fox quits Association of Non-Censoring Bloggers

Alan Fox, the blogger on the Languedoc Diary blog, has quit the ANCB because I am a holocaust revisionist, even after I told him that being associated with a holocaust revisionist does not necessarily mean that he is a holocaust revisionist himself. IMO he is a hypocrite and I am now sorry that I ever urged him to join ANCB. I will remove his blog from my external link list. He can do what he wants with his posts on my ANCB website -- my no-deletions policy prevents me from deleting them myself. Alan's statement canceling his membership is here.

PS --

I might add that when someone from a big website told me that he and is teammates wanted to cite my blog but were afraid to do so because of my holocaust revisionism, I told him that I understood. I understood because he had a big, well-known website that had a lot to lose by being associated with a holocaust revisionist. But you just have a ridiculous little blog that is now averaging only about 10 visitors per day.



IP address blocking is illegal in California!


IP addresses are widely misunderstood, even by Internet professionals -- otherwise IP address blocking would not be so widely practiced. I don't even fully understand IP addresses myself, and I have been studying them for some time. Here are the characteristics of IP address blocking:

(1) It is often completely ineffective.

(2) Even where it is initially effective, it can often be defeated by stealthy countermeasures such as email forwarding services and anonymous proxies (e.g., www.hidemyass.com).

(3) Collateral damage: It usually results in the unintentional or wanton blockage of a large number of Internet users in addition to the intended blockee.

IP addresses and IP address blocking:
Some IP addresses are "static," i.e., they don't change with time, and others are "dynamic," i.e., they change each time an Internet user logs onto the Internet. Different Internet service providers have different setups. For example, on AmericaOnline, my computer is assigned a different dynamic IP address each time I log on, and this address is used to communicate with an AOL "proxy" server which then sends the recipient a "static" IP address (this address actually changes infrequently) along with my message. So my IP address that the rest of the Internet sees is the AOL proxy's static IP address, even though my computer's local IP address is dynamic. So blocking my IP address blocks a lot of AOL users who share the same AOL proxy. Members of some ISP's use a dynamic IP address to communicate directly with the rest of the Internet, and they are sometimes blocked by blocking a whole range of IP addresses, which of course also blocks a lot of other Internet users. There are about 4.3 billion numbers available on the current IP version 4 (there is also a new IP version 6), which is a small number in terms of the size of the Internet, so I suspect that maybe the only Internet users who have their own unique static IP version 4 addresses for communicating directly with the Internet are those who rent them.

Besides often unintentionally blocking a whole bunch of Internet users, IP address blocking is often ineffective. For example, blocking a single IP address won't work when a dynamic IP address is used for direct communication (also, some "static" IP addresses -- e.g., the IP address of my AOL proxy -- change occasionally). Also, blockage of IP addresses can sometimes be defeated by using "anonymous" proxies, e.g., www.hidemyass.com. I used anonymous proxies to post comments on Panda's Thumb for several months after I was "banned" there -- however, PT found a way to detect anonymous proxies, so they stopped working.

My blog has several articles about IP address blocking in post label groups titled "Internet censorship" in the sidebar of the home and archive pages. Originally there were two post label groups named (1 of 2) and (2 of 2), but I added a third group labeled (new #1). I kept the original names on the first two groups to ensure that old links to those groups would still work.

I have already shown that IP address blocking is illegal in the UK and is contrary to government policy if not illegal elsewhere in Europe -- see here and here. Now I have discovered that IP address blocking is illegal in California too!

IP address blocking is banned by California Penal Section 502

Below are relevant portions of California Penal Code Section 502, "Unauthorized Access To Computers, Computer Systems and Computer Data":

(b) For the purposes of this section, the following terms have the following meanings:
(10) "Computer contaminant" means any set of computer instructions that are designed to modify, damage, destroy, record, or transmit information within a computer, computer system, or computer network without the intent or permission of the owner of the information. . They include, but are not limited to, a group of computer instructions commonly called viruses or worms, which are self-replicating or self-propagating and are designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network.

The sender of information over the Internet is the "owner" of both the information and the IP address attached to the information. The practice of IP address blocking "records" the IP address and "destroys" the information in the message "without the intent or permission of the owner of the information," and "usurp[s] the normal operation of the . . computer network." Software designed to record IP addresses and use them to block messages is thus a "computer contaminant" according to the above definition.

Also, there are these other provisions:

(c) Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:

- - - - - -

(2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.

- - - - - - -

(4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.

- - - - - - - -

(5) Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network.

(6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.

(7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.

(8) Knowingly introduces any computer contaminant into any computer, computer system, or computer network.

(d) (1) Any person who violates any of the provisions of paragraph (1), (2), (4), or (5) of subdivision (c) is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in the county jail not exceeding one year, or by both that fine and imprisonment.

IP address blocking misuses IP addresses for something other than their intended purpose. Hence, IP address blocking "disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network." For the following reasons that I described above, it is obvious that IP addresses are intended for the purpose of making communications only and not for blocking communications:

(1) Many IP addresses that are received in messages change each time the original sender logs on to the Internet, i.e., they are "dynamic" addresses rather than "static" addresses. Such dynamic IP addresses are either impossible to block or can be blocked only by blocking a whole range of addresses, which of course is going to block a lot of Internet users, not just the intended blockee.

(2) Often, many Internet users share an ISP proxy that has a static IP address or a semi-static IP address that changes infrequently. Hence, blocking such IP addresses is going to block a whole bunch of Internet users and won't block the intended target if his IP address changes.

Well, what about the use of "spam filters" to filter out emails according to certain criteria, e.g., the senders' email addresses, the senders' email address domains, and keywords/phrases? By the above reasoning, isn't that also a violation of California Penal Code Section 502? Technically speaking, yes. However, there are some important differences between email spam filters and IP address blocking:

(1) Unlike spam filters, IP address blocking is often used for the unconstitutional practice of arbitrary censorship of comments submitted for posting on blogs and other websites.

(2) Spam filters do not necessarily automatically delete filtered emails but sometimes just divert them to a spam file (also called "folder") where they must be manually deleted. AOL considers email filtering by means of keywords/phrases to be so unreliable that the AOL spam filter does not offer an automatic deletion option for emails filtered out in this way, even when the keywords/phrases are user-chosen -- emails filtered out in this way are diverted to a spam folder where they must be manually deleted or saved. However, the AOL spam filter does offer an automatic deletion option on emails filtered according to senders, including emails filtered out by domain names (the domain name is the part of the email address after the "@" sign) and emails from senders that are not in special lists. Of course, filtering done by IP address blocking can use spam folders instead of automatic deletion, but IP address blocking is so unreliable and does so much collateral damage that it should not be used at all.

(3) Spam filters can target a particular sender whereas IP address blocking usually unintentionally blocks a whole group of senders who share the same ISP proxy address or range of addresses. However, a spam filter could also block a whole domain of senders.

(4) Email addresses are always visible to Internet users. In contrast, IP addresses are "transparent" -- i.e., they are normally invisible, like glass that you can see through but cannot see -- and are not intended to be seen or used by inept Internet users who are not even aware that IP addresses should not be used for blocking or filtering messages.

At the very least, any blocking or filtering of communications -- if done at all --should be done only at the end-user level. That is supposed to be the policy of the hypocritical Electronic Frontier (Fraud?) Foundation, but an unscrupulous EFF staff attorney, Kevin Bankston ( bankston@eff.org ), threatened to prevent my emails from reaching their EFF addressees.

In other words, in California it is no more legal to block IP addresses than it is to rob mail from the US postal service.



Wednesday, May 30, 2007

Noncommercial bulk emailers can ignore delisting requests

Those of you who have participated in my email protest campaigns that use email lists may have received requests from addressees asking you to remove them from your email list. The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) requires bulk emailers to comply with addressees' delisting requests only when the emails are commercial. BTW, here are the main provisions of the CAN-SPAM act:
(1) It bans false or misleading header information. Your email's "From," "To," and routing information – including the originating domain name and email address – must be accurate and identify the person who initiated the email.

(2) It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.

(3) It requires that your email give recipients an opt-out method. You must provide a return email address or another Internet-based response mechanism that allows a recipient to ask you not to send future email messages to that email address, and you must honor the requests.

(4) It requires that commercial email be identified as an advertisement and include the sender's valid physical postal address.

The law apparently does not apply to noncommercial emails containing porn (I am not urging you to include porn in the email campaigns).

IMO you should not delist addressees when those addressees should be getting the emails because the emails are specifically about them, their organizations, or their occupations. Just ignore their requests to be delisted. If they are rude enough to ask to be delisted even though your emails directly concern them, then you can be rude enough to ignore their requests. And if these folks had a real spam problem, they probably would not bother to ask you to delist them if you send them emails only occasionally, since your emails would be lost in a flood of spam. And if they don't care what others may be reading about them or their organizations, then the hell with them. And these very same people who ask you to stop sending them emails usually expect you to read their emails -- I know their kind. Also, if your list is not automated, delisting addressees can be a lot of extra work for you -- the addressees have to be removed by hand from a list that might be non-alphabetical and if the list exists only in your emails then the delisting can be done only when you send out emails. However, as a courtesy to the addressees, you should do the following: (1) use the same sender address when sending emails to the group and (2) use descriptive subject lines -- make the subject line as specific as possible within the space allowed.

The trolls are now going to say, "Larry, you stupid fathead, just because something is not illegal does not necessarily mean that it is not unethical or discourteous." Thank you, trolls, I cannot think of a better argument against arbitrary censorship of visitors' comments on blogs. And IMO arbitrary censorship of blog comments is an infinitely worse offense than ignoring a request to be removed from a bulk emailing list.



Sunday, May 27, 2007

Judge Jones, eat your heart out! Museum of supernatural history opens

An AOL news article about the new Creation Museum in Kentucky says,

Here exhibits show the Grand Canyon took just days to form during Noah's flood, dinosaurs coexisted with humans and had a place on Noah's Ark, and Cain married his sister to people the earth, among other Biblical wonders.

Scientists, secularists and moderate Christians have pledged to protest the museum's public opening on Monday. An airplane trailing a "Thou Shalt Not Lie" banner buzzed overhead during the museum's opening news conference . . . .

. . . "Teachers don't deserve a student coming into class saying 'Gee Mrs. Brown, I went to this fancy museum and it said you're teaching me a lie,"' Dr. Eugenie Scott, executive director of the National Center for Science Education, told reporters . . . .


Other articles about the museum are here, here, and here.



Electronic Frontier (Fraud?) Foundation two-faced about "spam" emails

-- from an unsolicited email advertising herbal penis-enlargement pills. The subject line of the email was, "How would you like to be hung like a Rhino?" The reference to rhinos could be an allusion to the belief that rhino horn is an aphrodisiac because of its resemblance to a hyper-erect penis. However, a webpage titled "Penis Enlargement Products Come Up Short" says that these pills are worthless.


A webpage of the Electronic Frontier Foundation says,

Fundamentally, EFF believes that email recipients should control when and how they receive their mail. To the greatest extent possible, anti-spam measures should be controlled by end users, and any measure for stopping spam must ensure that all non-spam messages reach their intended recipients. . When antispam measures prevent activists and nonprofits from sending and receiving bulk noncommercial mail, EFF considers this a problem commensurate with the problem of spam itself.

I am an "activist" who has been emailing the EFF staff "bulk noncommercial mail" about issues of direct concern to the EFF. Despite the EFF policy statement above, Kevin Bankston (bankston@eff.org), an unscrupulous EFF staff attorney, asked me to stop sending emails to all EFF staffers and to just send the emails instead to a "legal intake coordinator," Julie Linder (julie@eff.org), for pre-screening. In other words, instead of just letting other EFF staffers decide for themselves whether my email is of interest to them, this "legal intake coordinator" would make that decision for them. He even had the gall to call my emails "spam" and threatened to put me in the EFF's "spam filter," and he had the presumptuousness of pretending to speak for the other EFF staffers. Meanwhile, the EFF staffers of course expect me to read all the emails that they send to me.

Let's cut the malarkey and get to the point. Email has to a great extent replaced postal snail-mail for communication. If you block the delivery of snail-mail to the intended personal addressees, you go to jail and they throw away the key. It should be the same for thugs who block the delivery of emails to the intended personal addressees.

Go ahead and ignore or filter out my emails, EFF staffers -- then you won't know what others are reading here about your disgraceful practices and policies.

The methods of blocking and filtering "spam" include IP address blocking, which as I pointed out is illegal in the UK and possibly elsewhere in Europe (see this and this), and IMO is also illegal in California (more about that later).

I think that the biggest reason why there is an email spam non-problem is that there are too many lazy bums out there who are too slothful to hit the "delete" button to get rid of unwanted emails. In fact, if they are lazy enough, they don't even have to do that much -- they can just ignore the unwanted emails. This degree of torpor makes a sloth (maximum ground speed about 5 feet/min.) look like a cheetah at full sprint. At least the orthodox Jews who don't want to push street-crossing buttons on the Jewish Sabbath have an excuse -- it is against their religion (for this reason, some places have automatically-timed traffic lights on the Jewish Sabbath). I have been on the Internet for many years and have never had a big problem with spam emails.

The most annoying spam emails are those without descriptive subject lines, so that they need to be opened to see if the contents are of interest. At least the above spam email advertisement of herbal penis-enlargement pills had a descriptive subject line: "How would you like to be hung like a Rhino?"

A law called the CAN-SPAM Act of 2003 has some restrictions on commercial and pornographic spam emails. If your emails are noncommercial and nonpornographic, there are apparently no restrictions on "spamming." Anyway, my emails to the EFF were not "spam" -- they were on subjects of direct concern to the EFF.

Here are some ideas:

(1) If one is on a list to receive emails that are on a subject of direct interest or concern to one's occupation or organization, requesting removal from the list should be considered to be rude. If you were on such a snail-mail list, would you bother asking a sender to be removed from the list? Not likely. Handgun Control Inc. once sent me five identical snail-mail letters -- with envelopes that said, "At last! Your first real chance to tell the NRA to go to hell!" -- in the space of about a month, and I never bothered to ask them to stop.

(2) As a courtesy, the subject line of your email should be as descriptive as possible. That will often save the recipient the trouble of opening the email to see if the subject is of interest.

(3) Use the same email address in sending emails to the list. Then the recipient can ignore the email if it is from an undesired sender. As for myself, if an email is on a subject of interest to me, I will not cut off my nose to spite my face by ignoring it just because I dislike the sender.

(4) It is a bad idea to threaten senders that you are going to ignore or filter out their emails. If the threat makes them mad enough, they may try to confuse you or bypass your spam filter by using different email addresses under the same ISP, using an email forwarding service, or using non-descriptive subject lines.

I previously reported that on the subject of blogs, the Electronic Fraud Foundation is concerned only with the rights of BVD-clad bloggers and is not at all concerned with the rights of blog commenters. The EFF wants BVD-clad bloggers to have special privileges without any responsibilities. Old organizations like the EFF tend to become big, fat, and smug. Well, borrowing the words of Handgun Control, Inc., here at last is your first real chance to tell the EFF to go to hell! Below are the EFF's email addresses:

bankston@eff.org, doctorow@craphound.com, hugh@eff.org, katina@eff.org, ren@eff.org, andrea@eff.org, cindy@eff.org, pde@eff.org, gwen@eff.org, marcia@eff.org, rebecca@eff.org, erik@eff.org, julie@eff.org, corynne@eff.org, le@eff.org, nicole@eff.org, danny@eff.org, lety@eff.org, seth@eff.org, jason@eff.org, derek@eff.org, sobel@eff.org, ssteele@eff.org, lee@eff.org, fred@eff.org, mattz@eff.org, jstyre@eff.org, brad@eff.org, barlow@eff.org, farber@eff.org, felten@eff.org, gnu@eff.org, brewster@eff.org, joe@eff.org, lessig@eff.org, pam@eff.org



Friday, May 25, 2007

Languedoc Diary blog invites guest posts

Details are here. Blogger Alan Fox is a member of the Association of Non-Censoring Bloggers, so you are assured that your post will get a fair hearing. The headline of Languedoc Diary says, "A place where IDers and Darwinists can post without the chance of arbitrary deletion (obscenity and spam excepted). Self-moderation is requested, no other moderation will be applied."

I do of course strongly disagree with Alan's statement, "Things have gone very quiet since the Kitzmiller decision. The Intelligent Design movement has been sidelined as a political force and, to date, there has been no serious attempt to justify in any real sense the claim that ID is scientific." On the contrary, the debate over ID and evolution is now hotter than ever and the Kitzmiller trial and decision added a lot of fuel to that debate.


Tuesday, May 22, 2007

It's the Darwinists who drive away people, businesses

We often hear the charge that prominent critics of Darwinism are "embarrassments" who drive away people and businesses, but in fact it is really the Darwinists who are the embarrassments who drive away people and businesses. The Darwinists point fingers at a prominent critic of Darwinism in their university, state, etc. and tell people and businesses, "Hey, you see this fundy nutcase here? This guy gives off bad vibes. You should stay away from this place."

Irreducible complexity proponent Michael Behe is a nationally known professor at Lehigh University. A news article dated Oct. 31, 2005 said,
Two months ago Lehigh's Department of Biological Sciences, where the 53-year-old Behe has taught for 20 years, publicly repudiated his views in a notice on its Web site, saying that they had "no basis in science." . . .

. . . . "Our concern was that we maintain our reputation as scientists, as well as the department's and university's reputation in the sciences," said Neal Simon, chairman of the department, in a recent interview . . .

. . . In the recent publicity surrounding intelligent design, biologists at Lehigh received e-mails questioning where the department stood on intelligent design. "We felt that, given the number of people who were writing to us, that we were endorsing, even if by passive action, Professor Behe's views, and we felt a public statement was appropriate," said Simon.

All 21 of the department's faculty members approved the statement placed on the Web. Behe said even he signed on, because of his colleagues' "right not to be associated with an idea they do not agree with." Still, he added, the whole affair was "a little bit uncomfortable."

OK, the web notice repudiating Behe's views was apparently not initiated solely by his Lehigh colleagues -- apparently the notice was partly a response to "emails questioning where the department stood on intelligent design." But did Behe's colleagues perhaps overreact to those emails by posting the web notice? Why should his colleagues have pandered to those who wrongly identified them with Behe? I view people as individuals -- it never occurred to me suspect that Behe's Lehigh colleagues shared his unorthodox views.

Well, how much has Behe really hurt Lehigh's reputation? For example, has he hurt Lehigh's ability to attract good students? Another news article says --

At Lehigh, known for its strength in engineering and business, about 12,000 students applied this year. That is a whopping 50 percent increase in applications over seven years ago and more than 10 times the seats available in a freshman class of 1,150. The median SAT score of admitted students has climbed about 10 points a year in recent years, officials said . . . .

. . . ."We’re getting a remarkably gifted group of students," said Gerard P. Lennon, associate dean in the college of engineering and applied sciences at Lehigh, who has taught at the university for 27 years. The median SAT score in the combined verbal and math parts of the test is now 1,320 out of 1,600. (That is not counting the writing section of the test.)

Maybe what Lehigh needs is more Behe's.

The article that discussed Behe also said,

At Iowa State University in Ames, Iowa, 124 faculty members endorsed a petition in August decrying "efforts to portray intelligent design as science." Unnamed in the petition, but the obvious target, was Guillermo Gonzalez, an assistant professor of astronomy.

Gonzalez has never taught intelligent design in his courses, according to the university. But in a book, "The Privileged Planet: How Our Place in the Cosmos is Designed for Discovery," co-written with a senior fellow at the Discovery Institute, a conservative research group in Seattle, and funded by the John Templeton Foundation, which describes itself as pursuing "research at the boundary between science and religion," Gonzalez proclaims that the universe is "so skillfully crafted for life and discovery that it seems to whisper of an extraterrestrial intelligence."

And a recent news article said,

In the summer of 2005, three faculty members at ISU drafted a statement against the use of intelligent design in science. One of those authors, Hector Avalos, told The Tribune at the time he was concerned the growing prominence of Gonzalez's work was beginning to market ISU as an "intelligent design school."

The statement collected signatures of support from more than 120 ISU faculty members before similar statements surfaced at the University of Iowa and the University of Northern Iowa.

Gonzalez was recently denied tenure at ISU and has appealed the denial. This denial of tenure is a big issue on other websites and I am not going to bother posting "me-too" articles about it here. Evolution News & Views and Uncommon Descent are posting articles about it almost hourly, it seems. Panda's Thumb is of course also posting articles about it but what PT says should be taken with a grain of salt because arbitrary censorship of comments is especially heavy at PT. Here is a PT comment thread where many of the comments refer to comments by "Anonymous" which are nowhere to be found because they were censored. The blogger gives no reason for censoring Anonymous. The brazenness of such censorship bespeaks the sickness of an Internet culture that condones and even approves such censorship.

There are other examples of where critics of Darwinism have been scapegoated for real or imagined problems. For example, a news article reported,

Calling the Kansas State Board of Education one of the state's worst public relations tools, Gov. Kathleen Sebelius on Tuesday said she would push in a second term for a constitutional amendment to shift the board's powers to the governor's office . . .

. . . .The Democratic governor said the board has been an embarrassment to the state in the board's efforts to alter how evolution is taught in the classroom. In an interview, Sebelius said she has encountered people outside the state who have heard of the board's decisions -- and little else -- when it comes to Kansas. . . .

. . . ."Fred Phelps and the school board are all they know about," she said. "No amount of economic development dollars can cancel that out." . . .

. . . . But Republican school board member Ken Willard, a conservative who is vying for re-election in Hutchinson, said Sebelius' plan would strip power from voters.

"The further you get that decision-making from the voters, the less responsive it is to the wills and desires of the voting public," Willard said. "I, for one, wouldn't be interested in being on an advisory board. You'd be relegated to insignificance."

And he tried to throw water on the notion the board had been an embarrassment to Kansas. Told of Sebelius' comparison to Phelps, Willard shot back: "What is she doing about it? What kind of communicating are we doing across the country about the great things in Kansas?"

Yes, there are great things in Kansas -- for example, Wichita, Kansas has been called "the Detroit of the general aviation industry."

BTW, there is now a big stink over Ken Willard's unopposed candidacy for the presidency of the National Association of State Boards of Education.

And BOE member Steve Abrams responded:

“I expect a big-government liberal like our governor to oppose conservative politics. But to infer that the State Board of Education is responsible for the lack of economic development in Kansas is laughable”

I think that Kansas University professor Paul Mirecki takes the cake in regard to embarrassing his own state, school, etc.. He wrote that his new course with a title that labeled intelligent design and creationism as "mythologies" would be a "nice slap in the big fat face of the fundies."


Monday, May 21, 2007

Legal arguments for a "fairness doctrine" for blogs

This post is a long one, so I decided to make a table of contents:

1) Introduction

2) First Amendment requires fairness doctrine for blogs

3) The phony "privacy" argument

4) Unwanted blog comments have a very low nuisance level

5) The FCC fairness doctrine and Red Lion Broadcasting Co. v. FCC

6) Reno v. ACLU is about Internet obscenity, does not apply

7) 47 USC §230, "Protection for private blocking and screening of offensive material," does not apply to censorship of inoffensive material

8) Miami Herald Publishing Co. v. Tornillo (1974) is about newspapers, does not apply and is worthless crap anyway

9) Open challenge to a debate about a fairness doctrine for blogs

Larry Fafarman
Founder, Association of Non-Censoring Bloggers


1) Introduction

To me, the term "fairness doctrine" -- originally used by the FCC -- means a requirement that publicly accessible sources of information -- e.g., TV, radio, newspapers, magazines, and blogs and other websites -- make reasonable efforts to give all views a fair opportunity to be heard. On blogs, this means no arbitrary censorship of visitors' comments.

I have already argued ad nauseam on this blog in favor of a "fairness doctrine" for blogs (and remarkably, I even have some new arguments to make here). In summary, the reasons for such a fairness doctrine are as follows:
(1) The more popular blogs have become major de facto public forums. Nowhere does the First Amendment say that bloggers on the more popular blogs are more equal than others in regard to the right to influence public opinion.

(2) Blogs are being authoritatively cited by court opinions, scholarly journal articles, official news services, and other authorities. Blogs which lack reliability and fairness because of arbitrary censorship of comments should not be authoritatively cited.

(3) The unlimited comment space on blogs means that there is no need to pick and choose comments for posting. This is discussed further in the next section on the First Amendment.

I have also proposed a fairness-doctrine exemption for blogs that have a prominently posted "freedom-of-speech disclaimer" notice stating that comments are subject to arbitrary censorship (I feel that this exception is needed because the sole purpose of some blogs is to promote or advertise a political candidate, commercial product, etc.).


2) First Amendment requires fairness doctrine for blogs

The First Amendment actually contains two freedom-of-expression clauses: (1) a "freedom-of-speech" right for individuals and (2) a "freedom-of-the-press" right for the media (though blogs often just represent individuals, blogs are often classified as belonging to the "media" for purposes of the First Amendment). I assert that there must be a truly compelling reason to infringe on one of these two rights for the purpose of protecting the other, and that such a compelling reason does not exist in the case of blogs because the unlimited space for visitors' comments means that there is no need to pick and choose visitors' comments for posting. In fact, according to the Darwinists' argument that the establishment clause is the most important clause in the Bill of Rights because it appears first, the freedom-of-speech clause should have priority over the freedom-of-the-press clause because the former clause precedes the latter. The same kind of constitutional pecking-order argument has been made about the 2nd Amendment. However, I feel that the order of appearance of amendments and clauses in the Bill or Rights has nothing to do with their relative importance.

Also, I feel that a fairness-doctrine exemption for bloggers who prominently post the above-described "freedom-of-speech disclaimer" would provide protection for bloggers who want to be allowed to arbitrarily censor comments.


3) The phony "privacy" argument

Opponents of a "fairness doctrine" for blogs hocus-pocus that the blogs of BVD-clad bloggers are "private" and therefore immune from government regulation. But these same folks see nothing wrong with the idea of the government giving these "private" BVD-clad bloggers special protections and privileges, e.g., (1) immunity from liability for material left on their blogs by visitors, even when the bloggers are aware of the material, and (2) the "reporter's privilege," i.e., the right to keep their sources secret. There are already several laws governing blogs -- a "fairness doctrine" would just be another law.


4) Unwanted blog comments have a very low nuisance level

One relevant factor that I have not yet considered on this blog is the nuisance-level issue for unwanted communications. For example, unwanted telemarketing phone calls are obviously a big nuisance. The government therefore created a National Do Not Call Registry for those who do not want to receive unsolicited telemarketing calls. But there is no National Do Not Send Registry for postal junk mail because this mail has a low nuisance level and because it would be too much trouble for the post office to sort out the junk mail. And blog comments -- unless they are intended to harass -- have a very low nuisance level; they are silent and do not have to be read or answered by the blogger. So the very low nuisance level of blog comments is another very strong argument in favor of a fairness doctrine for blogs.


5) The FCC fairness doctrine and Red Lion Broadcasting Co. v. FCC

The now-dormant FCC fairness doctrine for broadcasters was upheld by the Supreme Court in Red Lion Broadcasting Co. v. FCC (1969). A webpage of "Exploring Constitutional Conflicts" says,

. . .Red Lion Broadcasting v Federal Communications Commission . . . considers the constitutionality of a FCC rule requiring broadcasters to notify individuals who have been personally attacked in their programming, and to offer the attacked individual a chance to respond over the airwaves. The Supreme Court unanimously upheld the FCC rule, concluding that scarcity of available spectrum space justified regulating broadcasting to ensure a diversity of voices.

It appears that opposition to a "fairness doctrine" for the Internet is largely based on the following three authorities: (1) Reno v. ACLU (1997), (2) 47 USC §230, and (3) Miami Herald Publishing Co. v. Tornillo (1974). I will show here that each of these three authorities is inapposite.


6) Reno v. ACLU doesn't apply

The webpage of "Exploring Constitutional Conflicts" says,

In Reno v ACLU (1997), the Court considers what level of scrutiny should apply to content regulation of the Internet. The Court decides the the (sic) medium deserves the highest level of First Amendment protection, noting that anyone and everyone can develop a website--the scarcity rationale of Red Lion for greater regulation therefore has no application.

For the following reasons, I assert that the above statements do not apply to arbitrary censorship of comments on blogs:

(1) Reno v. ACLU is about censorship of Internet obscenity and not about arbitrary censorship of inoffensive comments on the Internet.

(2) The term "First Amendment protection" above refers only to freedom of the press and ignores freedom of speech.

(3) The term "scarcity rationale" above refers only to the issue of scarcity of "sites" ("sites" being radio and TV stations, websites, etc.) and ignores the very important issue of the scarcity of comment space per site. The latter issue was not an issue in Reno v. ACLU. As I noted above, the absence of scarcity of comment space on blogs means that there is no need to pick and choose comments for posting.

So although Reno v. ACLU is about censorship on the Internet, application of this precedent to the issue of arbitrary censorship of blog visitors' comments is grossly out of context. Pettifoggers just love to make blind, grossly out-of-context applications of precedents.


7) 47 USC §230, "Protection for private blocking and screening of offensive material," does not apply to censorship of inoffensive material

The very title of this law, "Protection for private blocking and screening of offensive material", implies that this law does not apply to arbitrary censorship of inoffensive comments. A reading of this law shows that this law in fact does not apply to arbitrary censorship of inoffensive comments. The law gives bloggers two protections: (1) immunity from liability for visitors' comments and (2) immunity from liability for censorship of offensive visitors' comments. The statement of the first of these protections, 47 USC §230 (c)(1) says (for definitions of terms, see the law),

(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Actually, contrary to the law's title, "Protection for private blocking and screening of offensive material," the above provision provides immunity from liability for failure to block, screen, or delete offensive and/or illegal material.

BTW, the above provision actually has the effect of encouraging bloggers to not censor visitors' offensive or even illegal comments because this provision immunizes the blogger from liability for visitors' comments that the blogger does not censor!

The law's section containing the second of these protections is,

(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). (footnote: So in original. Probably should be “subparagraph (A)”)

Paragraph (A) above is the one that applies to bloggers. As for the term "otherwise objectionable," in the present context it would be stretching things to interpret this term as including any comment that a blogger disagrees with. BTW, as for the statement, "whether or not such material is constitutionally protected," IMO Congress has no power to create an exception to a constitutional protection. IMO the freedom-of-speech clause would protect an obscene comment that has some "redeeming" value, but would not protect an obscene comment that has no redeeming value. Anyway, the bottom line is that 47 USC §230 offers no protection from liability for censorship of inoffensive comments, e.g., censorship of a person's inoffensive rebuttal to a blog's defamatory statement about that person. So this means I could sue Fatheaded Ed Brayton and Sleazy PZ Myers for refusing to post my rebuttals to defamatory statements that they make about me on their blogs. Furthermore, 47 USC §230 is just a law and not a constitutional protection, and therefore is subject to legislative change.

Paragraph (B) applies to Internet Service Providers, blog services, etc.. What this paragraph says is that an ISP, blog service, etc. cannot be sued for giving "information content providers" -- e.g., bloggers -- the ability to delete or block comments. That's nice to know.


8) Miami Herald Publishing Co. v. Tornillo (1974) doesn't apply and is worthless crap anyway

In this decision, the Supreme Court struck down Florida's "right of reply" statute that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper. I assert that this precedent does not apply to arbitrary censorship of blog comments because comment space on blogs is unlimited whereas comment space in newspapers is limited. And not only does this decision not apply directly to blogs, but it is also a worthless piece of crap. For starters, this decision says,

It is correct, as appellee contends, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster, but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available. (pages 256-257) (emphasis added)

However, there was nothing in the Florida "right to reply" law that required an "infinite expansion" of a newspaper's column space -- this law strictly limited the length of replies, as follows:

The reply must appear in as conspicuous a place and in the same kind of type as the charges which prompted the reply, provided it does not take up more space than the charges. (page 244) (emphasis added)

Also, the "right to reply" law was absurdly compared to censorship:

The Circuit Court concluded that dictating what a newspaper must print was no different from dictating what it must not print. The Circuit Judge viewed the statute's vagueness as serving "to restrict and stifle protected expression." (page 245)

The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter. (page 256)

If Florida's "right to reply" law is comparable to censorship, then the FCC "fairness doctrine" that was upheld in the Red Lion case is also comparable to censorship.

The Exploring Constitutional Conflicts webpage says,

It is interesting to contrast Red Lion with the Court's decision in Miami Herald v Tornillo, just five years later. . . . Despite the similarity of the question to that presented in Red Lion -- and the fact that Red Lion was the case most discussed in briefs for both parties -- the Court never even so much as mentioned Red Lion in a footnote! (emphasis added)

The relationship between Red Lion and Miami Herald is also discussed here.

The court even ignored its own highly applicable citations of precedents and other authorities, e.g.,

Proponents of enforced access to the press take comfort from language in several of this Court's decisions which suggests that the First Amendment acts as a sword as well as a shield, that it imposes obligations on the owners of the press in addition to protecting the press from government regulation. In Associated Press v. United States, 326 U.S. 1, 20 (1945), the Court, in rejecting the argument that the press is immune from the antitrust laws by virtue of the First Amendment, stated:

. . . Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some . . . (pages 251-252)

The approximately 30 bloggers on the Panda's Thumb blog constitute a "nongovernmental combination" that has conspired to impose restraints on others' freedom of speech.

It is noteworthy that although the US Supreme Court voted 9-0 against the "right to reply" law, the Florida Supreme court voted 8-1 to uphold this law! The citation for the Florida Supreme Court opinion is Tornillo v. Miami Herald Publishing Co., 287 So. 2d 78 (Fla., 1978) (per curiam, 8-1)


9) Open challenge to a debate about a fairness doctrine for blogs

I am going to issue an open challenge over the Internet to a debate about a fairness doctrine for blogs. I will take all comers -- attorneys, law professors, judges, paralegals, legal secretaries, amateurs, BVD-clad bloggers, etc.. Pettifoggers are especially welcome! We can have the debate on my blog or on another blog. If this challenge is not answered within a reasonable time, I will declare victory by default.

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Sunday, May 20, 2007

Note about list of external links

Often I don't post a "me-too" article on an important current controversy when I feel that the controversy is being adequately covered on external links. An example is the big stink over the denial of tenure to Iowa State University astronomy professor Guillermo Gonzalez. Also, it is often hard to keep up with these current controversies because the news about them often changes so rapidly. I don't want to clutter up this blog with a lot of "me-too" articles that would obscure what I feel are the unique or special articles on this blog.

If you are particularly interested in the main subjects of this blog, I suggest that you check the linked websites from time to time. I keep my list of external links fairly short because I regard many (but not all) of the linked websites here to be among the best sources of information on issues of concern to this blog. In contrast, many blogs list dozens or hundreds of links and it is virtually impossible to determine which are the best ones. Of course, I could keep separate lists of websites that I consider to be most important and less important, but (1) that would be a lot of extra work for me and (2) people represented in the list of less important links might feel slighted.

The bottom of the sidebar of the Panda's Thumb blog has good lists of links for websites that frequently deal with the evolution controversy. There is a list for "science & evolution blogs" (I agree that science does not include evolution) and a list for "pseudoscience websites."


Saturday, May 19, 2007

Gingrich, Carter hurt push for balance in evolution education

To the extent that the push for balance in evolution education is perceived by some as part of a fundy plot to hijack the government, recent remarks by former House Speaker Newt Gingrich and former Pres. Jimmy Carter are definitely not helpful.

A news article about Gingrich's commencement address at Liberty University said,
"A growing culture of radical secularism declares that the nation can not profess the truths on which it was founded," Gingrich said. "We are told that our public schools can no longer invoke the creator, nor proclaim the natural law nor profess the God-given quality of human rights.

"In hostility to American history, the radical secularists insist that religious belief is inherently divisive and that public debate can only proceed on secular terms," he said.

Gingrich also rebuked what he said was an American judiciary that had gone too far separating church and state.

"Too often, the courts have been biased against religious believers. This anti-religious bias must end," he said.

And Jimmy Carter said,

Carter . . . offered a harsh assessment for the White House's Office of Faith-Based and Community Initiatives, which helped religious charities receive $2.15 billion in federal grants in fiscal year 2005 alone.

"The policy from the White House has been to allocate funds to religious institutions, even those that channel those funds exclusively to their own particular group of believers in a particular religion," Carter said. "As a traditional Baptist, I've always believed in separation of church and state and honored that premise when I was president, and so have all other presidents, I might say, except this one."

And in this context, Pres. Bush's statement of support for balance in evolution education was about as welcome as Typhoid Mary.



Friday, May 18, 2007

"BVD-clad bloggers want privileges without responsibilities" post now open to comments

I discovered that the "no comments" option on the above post somehow turned itself on. I have now corrected the problem and this post is now open to comments. Sorry, folks.


Proposal for blog comment policy form

Blog services should provide standardized comment policy forms where bloggers can fill in the details of their own policies. The form or a link to the form can then be posted in a prominent place on the blog. Posting the comment policy should be mandatory and not optional -- people have a right to know whether or not the blog has a fair comment policy.

Here is a proposal for such a form --


Arbitrary censorship of comments --

No arbitrary censorship *

Arbitrary censorship of comments that I disagree with

Arbitrary censorship of comments submitted by people I dislike and comments that I suspect were submitted by people I dislike

Abuse --

No abuse allowed

All abuse allowed

Abuse discouraged but allowed if it does not disparage anyone's race, color, sex, religion, sexual orientation, or national origin *

Abuse OK only from my supporters

Abuse OK only if accompanied by serious commentary *

Credible threats OK

IP address blocking (note: may be ineffective and/or illegal and can block comments from large numbers of Internet users)

No *


Holding up comments for moderation--

No *


Anonymous commenters --

Allowed *

Not allowed

Allowed only if I do not suspect that it is someone I dislike

Commenter registration hassles --

No *


Closing of comment threads --

No *


Assistance or advice to commenters who have trouble in posting comments --

Yes *


Member, Association of Non-Censoring Bloggers --

Yes *


Additional rules or modifications of the above rules -- ? ? ? ?

Choices that are asterisked above are the preferred policies, especially for blogs that: (1) -- are popular blogs that have a lot of influence on public opinion; (2) -- have a fairly good chance of being authoritatively cited by court opinions, scholarly journal articles, official news services, and other authorities; (3) -- have received or compete for blogging awards; and (4) -- belong to the Association of Non-Censoring Bloggers.




Idiot-savant Eugene Volokh is two-faced about blogs v. Wikipedia

I call Prof. Volokh -- a blogger on the very popular law blog Volokh Conspiracy -- an idiot-savant because he was a prodigy in math and computer science, getting a BS degree in these fields from UCLA at the incredibly young age of 15 (UCLA must have waived some general-ed requirements), but in his chosen field, the law, he is too stupid to even just recognize his own blatant contradictions. A previous post on this blog shows that he is in favor of arbitrary censorship of blog visitors' comments, and he is completely unconcerned about how this censorship can adversely affect the reliability and fairness of authoritative citations of blogs by court opinions, scholarly journal articles, and other authorities. However, his views on citation of Wikipedia are a completely different story. In a post on his blog, he said,
. . . .I much admire the Wikipedia project, and my hat would be off to Larry Sanger and Jimmy Wales, its cofounders, if I wore a hat. The concept of an encyclopedia that is cowritten by lots of people, each of whom has the power to edit any of its pages — with the main screening mechanism being the possibility of correction by others — sounds odd. But it seems to work pretty well; and of course the real question isn't whether the work is perfectly reliable, but (1) how reliable it is compared to the alternatives, (2) whether that's good enough for the particular use you're making of it (e.g., casual attempts to satisfy curiosity rather than decisions where someone's life or even a lot of money is on the line), and (3) whether the work's advantages in thoroughness, currency, convenience, and low cost exceed the possible reliability disadvantages. (Here, by the way, is the Wikipedia response to the arguments that free editing may make the encyclopedia too unreliable.)

Still, I wonder whether it's good for court opinions, which not only resolve disputes between parties but also effectively create law that governs future disputes, to rely on something that at least has the potential to be so easily compromised, whether as part of a deliberate strategy or not . . . .And I suspect the main source of error in court opinions isn't relying on simply mistaken information but rather relying on one source that says one thing when a dozen other more reliable sources that the court hasn't found say the opposite, and more persuasively. Maybe on balance Wikipedia is good enough, especially when the information that the court is drawing from it is likely to be pretty uncontroversial. Nonetheless, it strikes me as something that judges and law clerks should be cautious about using.

And I suppose that blogs that arbitrarily censor visitors' comments do not have the "potential" to be "easily compromised" as "part of a deliberate strategy"? And Volokh does not even mention one of the main sources of unreliability and unfairness in Wickedpedia articles: Wickedpedia admininstrators' censorship of disputed ideas and factual information. Many of the Wickedpedia administrators are cranks themselves.

For a list of this blog's posts about Wikipedia, just click on the "Wikipedia" label below. The posts in the list will be shown the way that they appear in the home and archive pages.

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BVD-clad bloggers want privileges without responsibilities

Many BVD-clad (or PJ-clad) bloggers want privileges such as the reporter's privilege but at the same time want to be free of responsibilities such as a rule against arbitrary censorship of visitors' comments. This arbitrary censorship is a particular concern because: (1) the more popular blogs are major de facto public forums that have a lot of influence on public opinion and (2) blogs are being authoritatively cited by court opinions, scholarly journal articles, official news services, and other authorities. Also, blogs' unlimited space for comments eliminates the need to pick and choose comments for posting. IMO blogs that practice arbitrary censorship of comments should be required by law to post in a prominent place a message like, "This blog has a policy of censoring comments solely because (1) the blogger disagrees with them, (2) dislikes the person who submitted them, or (3) dislikes the person who the blogger suspects submitted them." How can it be argued that the law can give bloggers special privileges but cannot impose on them special responsibilities?

I previously reported a law journal article that argues in favor of extending the reporter's privilege to pajama-clad bloggers. Now there is a book that is making the same argument: "We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age," by Scott Gant. A book review in Publishers Weekly says,
Using specific landmark constitutional law cases, as well as contemporary examples, including the Valerie Plame case and the San Francisco Chronicle reporters who uncovered the BALCO scandal, Gant makes the case that the health of our democracy requires a press clause that entitles journalists to constitutional protection from revealing their sources . . . . . His scope is radical, simultaneously calling for the enactment of federal shield laws for the press and a greatly expanded definition of who is a journalist (roughly, everyone). Gant's forward-thinking logic is presented convincingly, though he dismisses the most immediate problems with suspicious facility.

Some of the "immediate problems" of granting the reporter's privilege to BVD-clad cyberjournalists are discussed on pages 72-78 of the law journal article I mentioned.

The book's table of contents is here. The book's first chapter, which gives an overview of BVD-clad cyberjournalism, makes no mention at all of the problem of arbitrary censorship of blog visitors' comments. For example, the first chapter says,

. . . many bloggers specialize in topics to the extent few professionals employed by media companies can, and the Web arguably provides better error-correction mechanisms than traditional media with large numbers of "fact-checkers" weighing in at warp speed.

But with arbitrary censorship of comments, there is no "error correction mechanism" from "fact-checkers." And arbitrary censorship of comments not only prevents correction of factual errors but also prevents the presentation of dissenting opinions.

I prefer "BVD-clad" to "PJ-clad" because Hugh Hefner considers PJ's to be formal wear.



Wednesday, May 16, 2007

Anti-ID candidate outvoted by pro-ID candidate in Dover school board race!

Dover Area School Board incumbent Heather Geesey voted in favor of the ID policy that eventually cost the school district $1 million in an attorney fee award to the Kitzmiller v. Dover plaintiffs, and she was also the only member of the current board who voted in favor of appealing the decision. In contrast, Carol "Casey" Brown served more than 10 years on the board before resigning in protest in 2004 over the board's enactment of the ID policy. If the Kitzmiller case's cost to the school district were still an issue, it seems that Dover Area school district taxpayers would regard Brown as a hero and Geesey as a villain, but in a recent school board election, the votes were as follows:

Geesey -- 1162

Brown -- 934
However, neither candidate got enough votes to qualify for the fall ballot.

Anyway, contrary to what Fatheaded Ed Brayton seems to believe, the election was apparently not a referendum on the ID policy. Otherwise, how does he explain why Geesey got more votes than Brown? Also, the board incumbents who lost the fall 2005 elections all lost by comparatively small margins.

Heather Geesey is the only member of the current board who was consistent from beginning to end -- she voted for the ID policy and she voted to appeal the Kitzmiller decision. On the other hand, the two-timing other current members of the board campaigned against the ID policy but refused to repeal it in early December when a repeal might have saved the school district a lot of money in attorney fees.




Dover Ain't Over III -- update on Fundies v. UC (ACSI v. Stearns)

A Panda's Thumb article, ACSI v. Stearns, aka Wendell Bird vs. UC, reports that a lawsuit by Christian schools against the University of California is going to trial. Background information on this case is presented in "Dover Ain't Over" and "Dover Ain't Over II".

Wendell Bird is the lead attorney for the plaintiffs, so saying "Wendell Bird v. UC" is like saying "ACLU v. Dover" ( or even "Judge Jones v. Dover"). The Darwinists are very upset that the ACLU is widely regarded as the plaintiff in establishment clause lawsuits -- the Darwinists insist that the ACLU's mascots are the real plaintiffs. However, I presume that the plaintiffs in ACSI v. Stearns can afford to pay their way and are therefore not mascots, even if Bird and the other plaintiffs' attorneys are representing them for free (I don't know).

The following facts are noteworthy: (1) UC did not claim that students who used the Christian-school textbooks were not adequately prepared to study science at the college level, and (2) UC did not claim that anything was wrong with the science textbooks except for their religious viewpoint (one of the biology texts has a section on creationism but also has a section on evolution).

IMO this trial is about to repeat the same mistake that was made in the Kitzmiller v. Dover case: a "battle of the experts" and possibly a ruling on scientific issues. A post on this blog gives several reasons why the courts should try to avoid ruling on scientific issues. This is going to be just another of what the Edwards v. Aguillard opinion called a "Monday-morning" battle of the experts, i.e., testimony from experts who did not directly influence the actions which led to the lawsuit and which therefore cannot illuminate the motives of those who took those actions. Also, because this is a free exercise clause suit and not an establishment clause suit, it doesn't matter whether the challenged material in the science books is scientific or not or religious or not (actually, because this is a free exercise case, a ruling that tne material is religious might actually be to the advantage of the plaintiffs). Actually, most of the expert witnesses listed in the Panda's Thumb article are not scientists, and that is because many of the challenged textbooks are not science textbooks.

The Panda's Thumb article makes some criticisms of one of the biology books, though these criticisms are of no consequence in ACSI v. Stearns if UC did not raise them. For example, the article says,

Chapter 1 is botany, done in the way of old-fashioned Linnean taxonomy plus an ag- and industry-heavy “practical” view of plants.

Linnaean taxonomy is hardly "old-fashioned" -- it is still very popular, especially outside of paleontology, and has not been replaced by the newer evolution-based cladistic taxonomy. The Wikipedia article on Linnaean taxonomy says,

Though the Linnaean system has proven robust, expansion of knowledge has led to an expansion of the number of hierarchical levels within the system, increasing the administrative requirements of the system (see, for example, ICZN), though it remains the only extant working classification system at present that enjoys universal scientific acceptance.(emphasis added)

The Panda's Thumb article says,

Back to the “traditional” biology on p. 89:
The taxonomic work of Linnaeus was very successful. His basic system is still used today, although there is disagreement among taxonomists as to the number of kingdoms that exist, as Table 5.3 shows.

Table 5.3, by the way, asserts the the five-kingdom model of Plants, Animals, Protists, Fungi, and Monera is the “[s]ystem predominantly used today” (p. 90). If you believe that, I’ve got a covered bridge to sell you.
[I thought that the bridge for sale was supposed to be the Brooklyn Bridge, not a "covered" bridge.]

However, Wikipedia says,

Originally, Linnaeus established three kingdoms in his scheme, namely Plantae, Animalia and an additional group for minerals, which has long since been abandoned. Since then, various life forms have been moved into three new kingdoms: Monera, for prokaryotes (i.e., bacteria); Protista, for protozoans and most algae; and Fungi. This five kingdom scheme is still far from the phylogenetic ideal and has largely been supplanted in modern taxonomic work by a division into three domains: Bacteria and Archaea, which contain the prokaryotes, and Eukaryota, comprising the remaining forms. This change was precipitated by the discovery of the Archaea. These arrangements should not be seen as definitive. They are based on the genomes of the organisms; as knowledge on this increases, so will the categories change. (emphasis added)

So it looks like the fundy text's five-kingdom model might still be reasonable and has the advantage of some stability. When I was in high school in the early 1960's, we were taught the original "three"-kingdom scheme, actually a two-kingdom scheme because the "minerals" kingdom is obviously invalid -- so we were taught that there were just the animal and plant kingdoms.

The Panda's Thumb article faults the book for not giving the correct height of the world's tallest known tree -- but the article's Wikipedia citation for the correct height says that this tree was discovered in Summer 2006!

Panda's Thumb also reports that Michael Behe, the lead plaintiffs' expert witness at the Kitzmiller v. Dover trial, is on the expert witness list for ACSI v. Stearns.

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Monday, May 14, 2007

Courts are using Wikipedia's definitions of terms

An article in the New York Times said,

A simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre — such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of “beverage” that involved hundreds of thousands of dollars, and, just this week, a case in Federal District Court in Florida that involved the term “booty music” as played during a wet T-shirt contest.

Also, the courts' use of Wikipedia's definitions of terms is discussed here and here.

Courts' acceptance of Wikipedia's definitions of terms is especially alarming because there has been a lot of controversy over some Wikipedia definitions and in many cases dissenting views about those definitions have been suppressed. For example, there have been big Wikipedia controversies over the meanings of the following terms:
"reverse engineering" -- there is a controversy over whether the "reverse engineering" of natural objects -- as opposed to man-made objects -- should be included in the definition.

"banned book" -- there was a big controversy over whether the book "Of People and Pandas" meets the definition of "banned book." Some hocus-pocused that it wasn't really banned because Judge Jones did not expressly ban it but only banned the statement that mentioned it. Others hocus-pocused that it wasn't banned in the school library but was only banned in the curriculum. Others kept obstinately insisting on a statement from a "reliable non-partisan source" that the book was banned.

And of course there is a huge controversy over the definition of term "intelligent design."

As I said, it is impossible to reach a consensus on a single undisputed Wikipedia presentation of a controversial subject. IMO the only solution is just to add disputed items to Wikipedia along with notices that the items are disputed and links to external websites where the disputes are discussed or debated.

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The myth of "meticulous" Nazi holocaust records

An AOL news article says,

AMSTERDAM, Netherlands (May 13) - As the Third Reich headed to defeat in World War II, the Germans burned millions of records to cover up history's worst genocide. But the fraction that survived was enough to make up the largest Nazi archive in existence . . . . .

. . . . . The 11-nation commission governing the International Tracing Service, an arm of the International Committee of the Red Cross, meets in Amsterdam Monday and Tuesday to decide when and how to make electronic copies of its files available to researchers.

So far the archive of 30 million to 50 million pages in Bad Arolsen, Germany, has been used only to help reunite families and verify restitution claims. The files were closed in 1955 because it was feared that unfettered access could violate the privacy of Holocaust victims, both living and dead.

Who in the hell cares about protecting the "privacy" of people who have been persecuted, tortured, and murdered?

The Nazis destroyed 90 percent of their files, said Dieter Pohl, of the Institute for Contemporary History in Munich. The office headed by Adolf Eichmann, who orchestrated the transport of millions of Jews to the gas chambers, began burning its records in February 1945, nearly three months before Germany surrendered.

So not only were the overwhelming majority of the records destroyed, but what remained was not generally opened to researchers.

Among the documents that survived are millions of pages of death registers, concentration camp records, transport lists, and internal Nazi communications, such as Gestapo chief Heinrich Himmler's command to evacuate the concentration camps before they were captured.

"No prisoner must be allowed to fall into the hands of the enemy alive," it said.

Why would the Nazis have allowed such a document to fall into enemy hands? And we know that some prisoners were allowed to fall into the hands of the enemy alive.

Over the decades, the Tracing Service has responded to some 11 million inquiries from survivors or families, but it has rarely allowed anyone to view the actual records. However, the U.S. National Archive and Israel's Yad Vashem Holocaust memorial were allowed to copy some of them in the early 1950s.

Why all the secrecy? I smell a conspiracy here.



Law Blog Metrics announces law blogs that are merely clerical, lack originality

Many of the law blogs announced by the Law Blog Metrics blog are mainly clerical in nature and lacking in originality. These blogs just report court decisions, articles published elsewhere, etc. without added commentary or original legal analysis. Practically all of the information and ideas in some of these law blogs can easily be obtained from other sources. For example, the Law Blog Metrics announced a blog titled Cruise Ship Law Blog, whose home page consists almost entirely of complete copies of news articles without added commentary. Such copying gives a misleadingly impressive appearance of a lot of text when none of it is original, and furthermore this copying is being done here for the purpose of promoting a business, a law firm. IMO this is a violation of copyright laws. This is just one notch short of plagiarism. When there is no added commentary, just a URL link to the source should be given.

Meanwhile, the pajama-clad bloggers of the Law Blog Metrics blog refuse to announce my blog "I'm from Missouri," even though my blog contains around 150 posts on legal subjects, with many of those posts each based on a lot of research and containing a lot of added commentary and original legal analysis. An example of such posts is my group of posts about legal experts' opinions about the famous Kitzmiller v. Dover intelligent design case. My blog contains dozens of other posts about law that are just like those.

Many of the clerical-type blogs that are announced by the Law Blog Metrics Blog probably serve useful functions, and it is a shame that I have to belittle other blogs in my campaign to have my blog announced by the Law Blog Metrics blog.



Sunday, May 13, 2007

Webpage about First Amendment and the media

A website called "Exploring Constitutional Conflicts," which is maintained by my "home" state's (remember, I am from Missouri, even if only in spirit) Univ. of Missouri-Kansas City Law School, has a webpage titled "Levels of First Amendment Protection for Different Media". I am particularly interested in this subject because I would like to see the FCC's "fairness doctrine" applied to public blogs and other public websites by law and/or custom.

IMO, the title of the webpage, "Levels of First Amendment Protection for Different Media," is a misnomer because the freedom-of-the-press right of the media is not the only First Amendment issue here. There is also the freedom-of-speech right of those outside the media, and speaking of "exploring constitutional conflicts," which is the subject of the website, the main conflict here is the conflict between these two First Amendment rights. IMO this freedom-of-speech right can be particularly strong, as when a newspaper has defamed a political candidate and the candidate seeks publication of a rebuttal in that newspaper.

The webpage speaks of a "scarcity" rationale:

In Reno v ACLU (1997), the Court considers what level of scrutiny should apply to content regulation of the Internet. The Court decides the the (sic) medium deserves the highest level of First Amendment protection, noting that anyone and everyone can develop a website -- the scarcity rationale of Red Lion for greater regulation therefore has no application.

I disagree -- I assert that the scarcity rationale does apply to the Internet, and the rationale in regard to the Internet is that the total absence of scarcity of comment space on websites means that it is unnecessary for the website owner (e.g., a blogger) to pick and choose which comments to publish. The webpage's above statement wrongly implies that the scarcity of sites (i.e., the number of radio stations, newspapers, websites, etc.) is the only scarcity issue --there is also the question of the scarcity of comment space per site. Radio and TV broadcasting are generally the most heavily impacted media in regard to the scarcity of both sites and comment space per site (except that radio and TV broadcasting stations can distribute copies of programs -- even unaired programs). In contrast, the Internet has virtually no scarcity in availability of both sites and comment space per site. This issue of scarcity cuts both ways: in broadcasting, the scarcity of broadcasting channels raises the issue of a monopoly on viewpoints, and in blogging, the limitless abundance of comment space means that it is unnecessary for the blogger to pick and choose comments to publish. Now somebody is going to say that this "limitless abundance" argument does not apply because blogs are "private" and therefore the bloggers have the right to control their blogs' content by censoring comments that they don't agree with. However, the more popular blogs have become major de facto public forums, meaning that control over the content of comments on these blogs can have a great influence on public opinion. There is nothing in the First Amendment that says that bloggers on popular blogs are more equal than others in regard to the right to influence public opinion. Also, another reason why blogs should be open to all views is that blogs are being authoritatively cited by court opinions, scholarly journal articles, and other authorities. Court opinions should of course not cite blogs that have policies of arbitrary censorship of comments -- to me this is a no-brainer. Some of the other authorities that cite blogs are either parts of the government or are private entities that are directly or indirectly supported by tax dollars -- needless to say, people's tax money should not be used to aid and abet in any way the censorship of their opinions. That's another no-brainer.

Here are excerpts from Reno v. ACLU:

At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three judge District Court that the statute abridges "the freedom of speech" protected by the First Amendment. . . . . .

. . . . unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It provides relatively unlimited, low cost capacity for communication of all kinds. The Government estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999." This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought." 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

So Reno v. ACLU was about obscenity on the Internet. For the reasons I gave above, I assert that the Reno v. ACLU opinion's above statement about the "scarcity" issue does not apply to arbitrary censorship of non-obscene comments on blogs.

BTW, I was surprised by the statement, "we agree with the three judge District Court," because Supreme Court cases are normally appealed from appeals courts rather than district courts. However, this case was in fact directly appealed from the US District Court for the Eastern District of Penn.. I think that such direct appeals from district courts are a bad idea -- except in dire emergencies -- because IMO it is a good idea to get a second judicial opinion before the case is heard by the Supreme Court. I was also surprised that there was a three-judge panel in the district court -- district court cases are normally heard by single judges.

A longer background of Reno v. ACLU is given in the syllabus. Reno v. ACLU struck down two sections of the Communications Decency Act of 1996; another section of the act was not challenged in the suit and survives today as 47 USC §230, which I have discussed elsewhere in this blog (here and here).

Finally, I will play the devil's advocate here. What about partisan blogs that are set up to promote or advertise something, e.g., a political candidate, a commercial product, or a particular philosophy? Shouldn't those blogs be allowed to censor contrary comments? OK, so long as such blogs make it clear that their sole purpose is to promote something and they do not hypocritically pretend to be open forums. Such blogs should be required to post a prominent notice that arbitrary censorship of comments will be practiced (e.g., "This blog has a policy of censoring comments solely because the blogger disagrees with them"). And generally such blogs should not be authoritatively cited by court opinions, scholarly journal articles, etc., and if such a blog is authoritatively cited, the citation should include a warning note that the blog has a policy of arbitrary censorship of comments. We will then see how many bloggers choose to arbitrarily censor comments.

We already have laws that regulate blogs and there is no reason why we cannot have laws that regulate bloggers' comment policies. However, as I said, laws against arbitrary censorship of blog comments are not the only answer, because most victims of such censorship have neither the time nor the money to sue. There needs to be a change in the Internet culture so that such censorship is widely frowned upon -- right now we have an Internet culture that condones and even approves such arbitrary censorship. And even if we never have a law prohibiting arbitrary censorship of blog comments, merely debating whether we should have such a law will hopefully help to change the Internet culture.

Related articles in this blog:

No, Ed, it's not your blog -- blogs are not private or personal

Prof. Volokh approves of arbitrary censorship of blog comments



Saturday, May 12, 2007

Censorship, discrimination by Law Blog Metrics bloggers

The Law Blog Metrics blog is part of the Law Professor Blogs Network, which is sponsored by Thomson-West and affiliated companies. Thomson-West is a major publisher in the law field. The names of the pajama-clad bloggers of the Law Blog Metrics blog are Ian Best, Joe Hodnicki, and Ron Jones. These bloggers have done the following:
(1) -- censored a comment I submitted about a law blog journal article that was announced on their blog. I sent a copy of the comment to the author of the article and she requested sua sponte that I post the comment on her blog. How can that request be explained if my comment was so offensive, off-topic, or whatever? I posted an expanded version of the comment on her blog. This expanded version is essentially the same as an article on this blog.

(2) -- refused to post an announcement of this blog. The Law Blog Metrics blog routinely posts announcements of new blogs that deal with law subjects. I pointed out the following: (a) this blog has close to 150 articles that are specifically about law subjects, and many of the other articles have legal implications; (b) my articles are indexed by subject in the sidebar so that articles on specific law subjects can quickly be found; (c) many of the articles are based on extensive research and have lots of references; and (d) I have an area of legal focus -- legal issues related to evolution education (though I have lots of articles on other legal subjects as well). I pointed out that my blog is well established and available for their inspection if they are so inclined. I asked that the Law Blog Metrics blog visitors be allowed to decide for themselves whether or not my blog is of interest to them instead of the bloggers making that decision for them.

I know that the Law Blog Metrics blog is active because I see new posts being added to it all the time. I received no response at all from these pajama-clad bloggers, so of course no reasons were given for the above actions. I assert that this behavior is discriminatory, unethical, malicious, anti-intellectual, unscholarly, extremely petty, uncalled-for, and unprofessional. Since my Blogger.com profile indicates that I am not a legal professional, the behavior of these pajama-clad bloggers is reflective of the legal profession's rampant snobbery and jealousy directed against laypeople.

If any blogs can be considered to be truly private or personal (and I disagree that any public blog can), the Law Blog Metrics blog is certainly not one of them. This blog and the Law Professors Blog Network are based at the University of Cincinnati, a public tax-supported university. Many of the other blogs on this network are based at public tax-supported universities.

There is absolutely no reason why these things could not happen to you, and if you don't speak up in protest, you increase the likelihood that they will happen to you! Protests may be sent to the following email addresses. If you send nothing else, you could just send a link to this article to show that you have seen it. I would appreciate it if you would demand that the Law Blog Metrics bloggers post an apology for the way I am being treated.

Enough is enough.

Pajama-clad Law Blog Metrics bloggers:


Other bloggers on the Law Professor Blogs Network:


Other law bloggers:


University of Cincinnati Law School staff:


Electronic Frontier Foundation:


Federal government blogging managers: