Fatheaded Ed Brayton's new song and dance

BVD-clad yellow-journalist blogger Fatheaded Ed Brayton has a new song and dance to explain the mysterious disappearance and reappearance of one of his articles in Michigan Messenger. His song and dance includes the following statement:
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And as usual, his criticisms were way off base. He said, for example, that my statement that John Warner had reserved the room at the Dirksen building for the Moon gathering was wrong and he quoted an early Washington Post article saying that it was a mystery who had reserved it. Someone even posted, in a comment on Larry's blog, a later source where Warner had finally admitted to having reserved the room. AFTER he had seen that documentation on his own blog, he still posted the exact same claim in a comment when I reposted my article the next day. Clearly, Larry just doesn't care what the truth is as long as he can try and make me look bad.

Ed, you stupid fathead, all I did was just re-post my original comment which had been rudely deleted. I played dumb about Senator Warner to see if you could independently verify your statement about him. Instead of showing that you could do that, you simply deleted my comment. Yes, I did make you look bad again.

I am obviously still able to post comments on Michigan Messenger but I now consider that blog to be a waste of time. Of course, there is the problem that my comments there are always being deleted even when they are on-topic, polite, and serious, but also very few of the articles there have any comments at all and those that do generally have only 1-3 comments. It is not a place to go for a discussion.
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Ed Brayton violates code of ethics of blogging news group

BVD-clad blogger Fatheaded Ed Brayton announced,

I have been picked to be a fellow with the Center for Independent Media (which is not the same group as the Independent Media Center, or IndyMedia) and their New Journalist project. What that means is that, in addition to my regular blogging (which will not change), I will be writing for the Michigan Messenger, a new independent online site focusing on Michigan news.

The goal of the New Journalist project is to expand the voices heard in the media. They are taking groups of bloggers in each state and giving us serious training in investigative journalism, among other things. Our goal is to cover stories not typically covered and get those stories pushed in to the mainstream media.

I'll be covering many of the same issues I cover here, but those stories will be focused on Michigan. One of my first projects is going to be a long series of articles about the Rev. Moon and his activities in this state. I'll also be working on church/state issues, scientific and legal issues and whatever else catches my fancy.

By arbitrarily censoring comments and commenters on his own blog "Dispatches from the Culture Wars," Ed has been violating the following rules of the Michigan Messenger's New Journalist Code of Ethics:
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Support the open exchange of views, even views they find repugnant.

Give all the public the chance to respond to news stories, particularly those who might be accused of wrongdoing. Keep an open dialogue with the public.

Use both official and unofficial sources to acknowledge and give voice to those without traditional power.

Ensure the accuracy of all information, regardless of where it comes from. Review facts and stories. Never knowingly publish false information (Ed will often censor comments that correct falsehoods).

Keep an open dialogue with the public in an effort to maintain and improve standards.

Encourage the public to use the information they have to question and analyze news stories on their own, and voice grievances when they feel stories are wrong.

==================================================

The New Journalist Code of Ethics was inspired by the Society of Professional Journalists' Code of Ethics.The SPJ Code of Ethics is voluntarily embraced by thousands of writers, editors and other news professionals.

The present version of the code was adopted by the 1996 SPJ National Convention, after months of study and debate among the Society's members.Sigma Delta Chi's first Code of Ethics was borrowed from the American Society of Newspaper Editors in 1926. In 1973, Sigma Delta Chi wrote its own code, which was revised in 1984, 1987 and 1996.

As I have frequently pointed out, Ed kicked me off his blog permanently because my literal interpretation of a federal court rule was inconsistent with his preconceived interpretation of the rule. Even if Ed adheres to the New Journalist Code of Ethics while blogging on Michigan Messenger (which I doubt he'll do), he should not be allowed to blog on Michigan Messenger so long as he violates the code when on his own blog. And if Michigan Messenger is not going to enforce its Code of Ethics, then it is hypocritical to post it. I intend to complain to Michigan Messenger.

Ed continues,

The other states that already are up and running are Colorado, Minnesota and Iowa. The Colorado group was the first one to get an interview with the gay prostitute that Haggard was cavorting with. Hopefully we can beat the mainstream media to a bunch of stories in Michigan as well.

Without the "reporter's privilege" (the right to hide the identities of confidential sources), BVD-clad bloggers are going to find it hard to scoop the regular news media on news items involving confidential sources.
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Fatheaded Ed's anti-fundy bigotry

Ed "I don't need a policy against arbitrary censorship of blog visitors' comments because everyone agrees with me" Brayton said on his blog,

I merely said that the NCBCPS [National Council on Bible Curriculum in Public Schools] board includes several TV evangelists -- and it does. The point being that if you're going to put together an objective, scholarly curriculum, as the Supreme Court requires, then your board should be made up of real scholars rather than apologists and preachers (not to mention bad actors).

Where are the "several TV evangelists"? The NCBCPS has two boards, a board of directors and a board of advisors, and Ed does not say which board he is talking about. According to the bios of the nine members of the Board of Directors, only one is a TV or radio evangelist (though at least one other has appeared on evangelistic broadcasts). Out of 46 members of the Advisory Board, only two are identified as being in broadcasting evangelism. The Advisory Board has 13 legislators. The occupations of many on the Advisory Board are not identified, but Ed, if you claim that there are several TV (or radio) evangelists there, it is your job to identify them. As usual, Ed is just talking through his hat. Ed just pulls his "facts" out of thin air and censors anyone who challenges them or would challenge them. Ed has zippo credibility.

Ed's view that fundies should be barred from participation in public life is contrary to the "endorsement test" as enunciated by Justice O'Connor in Lynch v. Donnelly:
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The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive [465 U.S. 668, 688] entanglement with religious institutions. . . . . . . . The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

Furthermore, the "purpose prong" of the Lemon test applies to the purpose of government officials, not private individuals. And the Lemon test has been on the way out for years, anyway.
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Fatheaded Ed is talking through his hat again

Ignoramus Fatheaded Ed Brayton tries to give the illusion of expertise on a broad range of subjects by glibly rattling off long strings of unsubstantiated "facts" that he just pulls out of thin air. An example is the following statement:
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Darwin, of course, was actually quite enlightened on racial issues compared to the civilization and times he lived in. He was an outspoken opponent of slavery, for example, at a time when most people still thought slavery was the natural order of things. Indeed, he was far more enlightened on this question than his creationist counterparts in the United States.

"[At] a time when most people still thought slavery was the natural order of things"? Darwin was a Briton and Great Britain banned the Atlantic slave trade in 1807, before Darwin was born. Slavery was abolished throughout the British Empire in 1833.

What "creationist counterparts in the United States"? Ed does not identify them. Darwin introduced his evolution theory to the world in 1859 with the publication of his "Origin of Species," so there was very little time for development of a creationist opposition to his evolution theory before slavery was abolished in the USA in 1865. Almost no one in the USA continued to defend slavery after it was abolished there.

Ed continues with more of his "batshit wingnuttery" (one of his favorite expressions, along with "for crying out loud") --

The whole world was racist back then, or at least the large majority of it. Even those who opposed slavery in the staunchest terms could hardly bring themselves to believe that the races were actually equal. What changed that? Science, of course, particularly biology. The data makes clear that there are no extent subspecies of Homo sapiens, that we are all one species, all equally "evolved."

Science has shattered the myth of racial division over the last 150 years.

Ed is so full of living crap here that it is coming out his ears. He presents no evidence to support his thesis that science deserves credit for the reduction in racism. We have known since time immemorial that the races can interbreed and hence belong to the same species. Science has actually been used to promote racism. Wikipedia says of biologist Charles Davenport, the founder of the Eugenics Record Office,

Davenport, along with an assistant, also attempted to develop a comprehensive quantitative approach to the question of miscegenation, or, as he put it, "race crossing" in humans. The resulting work, published in 1929, Race Crossing in Jamaica, purported to give statistical evidence for biological and cultural degradation following interbreeding between white and black populations. It is today considered a work of scientific racism, and was criticized in its time for drawing conclusions which stretched far beyond (and sometimes counter) to the data it presented.

Later, physicist William Shockley and the book The Bell Curve used the results of intelligence tests to argue that blacks as a group are intellectually inferior.

Furthermore, Fatheaded Ed helps maintain this illusion of broad knowledgeability by censoring comments and commenters that contradict him. He could have a little credibility if he would at least allow commenters to contradict him.
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Fatheaded Ed starts "Facebook" group

Logo of Fatheaded Ed Brayton's "Facebook" group.

I'd prefer a hole in mine.






Fatheaded Ed Brayton has announced formation of his new closed-membership "Facebook" discussion group. That figures.

There once was a blogger named Ed,
who was known as a stupid fathead.
The stuff he did write,
on his blogging site,
was like a balloon filled with lead.

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Another arbitrarily censoring blogger: Jason Rosenhouse

Touchy Jason Rosenhouse, blogger on the Evolution Blog and also a blogger on Panda's Thumb, said that his main reason for banning me from the Evolution blog was that he was offended by my post titled "Funny, he doesn't look like a Jew. Who knew?". Jason wrote,
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I've been barely tolerating you as it is, but you are not going to be using my blog to promote holocaust denial and anti-semitism. You are no longer welcome to comment here. I understand now why so many other bloggers have seen fit to ban you in the past.

None of my posts here are anti-Semitic. And I was not using Jason's blog to promote my holocaust revisionism -- I did not discuss the holocaust on Jason's blog and I did not link to any of my blog articles about the holocaust.

Jason said,

I've long had a policy of allowing people to post whatever comments they wanted at this blog, as long as they weren't vulgar or libelous. But your behavior in this thread has been so obnoxious and your remarks so idiotic that you have forced me to reevaluate that policy.

Here are some of my "vulgar," "libelous," and "obnoxious" remarks on Jason's blog:

There are always those self-appointed cyberbullying blogosphere goons who won't even give a commenter a chance to respond before they make a disparaging remark.

IMO Behe should apologize for quote-mining Coyne and you should apologize for charging that he "doctored" quotes and that his EoE ["The Edge of Evolution"] book quote-mined Carroll.

It is one thing to argue that Behe is wrong and something else entirely to charge that Behe quote-mined Carroll. I am astonished that I need to explain this difference to you people.

I can't believe this. I feel like I am Alice in Wonderland -- maybe at the Mad Hatter's Tea Party -- trying to reason with characters who are completely irrational and nonsensical.

"I will not be replying to any further comments from you. " Thank you -- I don't think I could stomach any more of your arguments.

You are just talking through your hat, Jason.

Those remarks don't sound very vulgar, libelous, or obnoxious to me.

The real reason why Jason kicked me off his blog was that he was upset that I had completely demolished his claim that two particular quotations in Behe's new book "The Edge of Evolution" were quote mines. A lot of the other commenters could do nothing but make their usual insults and ad hominem attacks against me.

An introduction to Jason's article, posted on Panda's Thumb, said of "The Edge of Evolution,"

A new ID book, a new selection of yummy delicious quote-mines to ponder. EoE offers up quite the little smorgasbord.

All that Jason provided on this "little smorgasbord" of "yummy delicious quote-mines" was just two quotations in EoE that were not quote mines at all. The Darwinists can dish it out but they can't take it.

Fatheaded Ed Brayton had to throw in his two cents worth in a post titled "Behe Caught Quotemining":

Jason Rosenhouse has the details. Fafarman shows up in the comments to disagree with him, which is pretty much prima facie proof that Jason got it right.

These stupid Darwinists have distorted the meaning of the term "quote mine" beyond recognition. The only way that these Darwinists could make the charge of quote mining in EoE was by making up all sorts of things that were not in the contexts of the quotations. To these Darwinists, any quotation whose use they don't like is a "quote mine."

Jason has unwittingly done me a favor -- my SiteMeter shows that his condemnation of this blog has backfired by actually increasing this blog's traffic. Once here, people can see how reasonable this blog really is.
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Two-faced hypocrisies of Fatheaded Ed and the ACLU

Above: Cartoon courtesy of the Wall Street Journal

Left: Mugshot of Ed's smirking face




I submitted the following comment for a post titled Ed Brayton’s doublespeak — When Glib writes it, he’s “ignorant,” when Wendy does, she’s right on the StoptheACLU blog (Wendy Kaminer wrote a Wall Street Journal feature article titled The American Liberal Liberties Union: The ACLU is becoming very selective about what it considers "free" speech):
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Glib,

I agree that Fatheaded Ed Brayton is a lousy two-faced hypocrite. For crying out loud (Fatheaded Ed's trademark expression), he kicked me off his blog permanently just because he disagreed with my literal interpretation of a federal court rule -- and BTW he did not even give me a single chance to respond to his objection to my interpretation. And since then this despicable BVD-clad blogger has not given me any chance to respond on his blog to personal attacks that he makes against me on his blog.

One of Ed's specialties is nitpicking and hairsplitting pettifoggery. For example, he tries to make a distinction between "reasonable criticism" and "batshit wingnuttery" -- but the "batshit wingnuttery" is often just truthful "zealous advocacy."

And you are right about the ACLU. Even when the ACLU's priorities prevent the ACLU from directly participating in lawsuits that the ACLU supposedly supports, the ACLU could just give moral support to those lawsuits but often fails to do so. I found that out when the ACLU of Southern California refused to even just make a public statement against California's grossly unconstitutional $300 "smog impact fee" on out-of-state vehicles (this fee was collected for about 8-9 years and was struck down by the state courts and most victims then got refunds). In contrast, the ACLU was a plaintiff in a lawsuit against an unconstitutional Florida tax on out-of-state vehicles.

Of course, I would like to post this comment on Fatheaded Ed's blog but cannot.

Ed Brayton's reply to the StoptheACLU post is here. Here is a discussion of Ed's kicking me off his blog.

"Batshit wingnuttery" -- LOL. That is almost as good as Wesley "Ding" Elsberry's "pseudo-aggrieved put-uponness".

Wendy Kaminer's WSJ article said,

Despite its professed commitment to religious liberty, for example, the ACLU tends to absent itself from cases on college campuses involving the associational rights of Christian student groups to discriminate against gay students, in accordance with their religious beliefs. But conservative students might be grateful for the ACLU's absence. Consider its intervention in a successful federal court challenge to an unconstitutional speech code at Georgia Tech, brought by the Alliance Defense Fund in 2006 on behalf of two conservative religious students. The ACLU of Georgia filed an amicus brief proposing a substitute but still overbroad "antiharassment" policy that included a prohibition on "injurious communications . . . directed toward an individual because of their characteristics or beliefs." In other words: Students should be punished for sharply criticizing or satirizing each other's beliefs if their remarks are deemed "injurious." Occasionally an ACLU affiliate does intervene in defense of politically incorrect speech and vigorous debate on campus. But the Foundation for Individual Rights In Education has become a much more reliable advocate for the rights of all college students, regardless of ideology or religion. (I serve on both FIRE's advisory board and the board of the Massachusetts ACLU affiliate.)(emphasis added)

Ed's response to the above statement was,

I agree with this completely. Yes, the ACLU takes an official position against hate speech codes on campus . . .

WHAT? Whaddya mean, "Yes, the ACLU takes an official position against hate speech codes on campus . ."? The WSJ article said, "The ACLU of Georgia filed an amicus brief proposing a substitute but still overbroad 'antiharassment' policy that included a prohibition on 'injurious communications . . . directed toward an individual because of their characteristics or beliefs.' " Sheeesh.

Also, Glib Fortuna, the author of the above StoptheACLU post, wrote on Ed's blog,

. . . I was no more harsh on the ACLU than WK [Wendy Kaminer] was. As a matter of fact, she went further than I did in my criticism on campus issues. I criticized the ACLU for being absent. WK actually went further by saying that the ACLU's rare involvement has been deleterious as the ACLU has supported reconstituted speech code-lite. So as far as your charges of my post being hyperbolic and "overblown," you cannot avoid attaching the same rider to WK's "constructive criticism" if you're being consistent.

Glib then astutely observes,

This post is the perfect example, Ed, of you depending on your readers to read nothing beyond your selective analysis, cherry-picked to serve you, but to disserve the people who trust you.

And one of the ways that Ed assures that his readers read nothing beyond his selective analysis is by censoring dissenting comments.

Also, Ed said the following about Wendy Kaminer:

. . . .she's one of the good guys and she speaks not as an enemy of the ACLU out to demonize the organization but as a passionate supporter and longtime civil liberties activist out to save the ACLU from itself . . . . I think her criticisms deserve to be taken seriously.

Glib Fortuna is right -- why in the hell should the validity of criticism of the ACLU depend on who is doing the criticizing?

Also, it is noteworthy that Ed lets Glib post comments on his blog but won't let me do so. The reason for this discrimination is that cowardly Ed is afraid of Glib because Glib blogs on a big, popular blog, StoptheACLU.

I don't agree with StoptheACLU on a lot of issues, but I certainly agree with them on this one.

Also, Fatheaded Ed says on his blog,

E-mail Policy
Any and all emails that I receive may be reprinted, in part or in full, on this blog with attribution. If this is not acceptable to you, do not send me e-mail -- especially if you're going to end up being embarrassed when it's printed publicly for all to see.

I therefore have no qualms about publishing the following reply that Ed made when I emailed him the above comment that I submitted to the StoptheACLU blog:

Larry, exactly how fucking stupid are you?

The trolls here -- Voice in the Wilderness, Voice in the Urbanness, Hector, Bill Carter, etc. -- will now say what a wonderful guy Ed is and that Glib Fortuna and I are the bad guys.
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Hypocritical Ed Brayton outdoes himself

Glib Fortuna of the Stop the ACLU (STACLU) organization hit the nail right on the head in ridiculing Ed "It's My Way or the Highway" Brayton's treatment of the recent ACLU v. NSA surveillance decision:

Hypocrisy at a rolling boil — in the very post that he accuses others of judging court rulings based solely on the result, he giddily does just that EVEN after admitting how atrocious this one is.(emphasis in original)

Here is what Ed -- who has added a smirking mugshot of himself to his blog -- said in that "very post":

Taylor, a Federal judge in Michigan's eastern district, has granted the plaintiffs' request for an injunction against the NSA's warrantless surveillance programs. That, of course, will mean she will immediately be branded a judicial activist, a liberal ideologue, and a terrorist sympathizer by the STACLU crowd (without any actual legal analysis of the opinion, of course; the mere fact that she did something they don't like is all the proof they need, facts and legal reality be damned) . . . . . . I'm just beginning to read the ruling now, so I'll have more analysis later.(emphasis added)

-- and in the very same post, Ed says,

Will the ruling stand up? Frankly, I doubt it. I think it should, but I don't think it will. It will be immediately appealed to the 6th circuit court of appeals, where I think that even if the court agrees with her on the basic premise, they will probably knock the case down on the basis of standing.

So there it is -- Ed said that he thinks the ruling "should" stand up not because he thinks that the reasoning is sound (he had not even read the decision when he made this statement), but because he likes the result. He did just what he accuses others of doing.

In other posts, Ed said much the same thing:

Here's Jack Balkin's analysis of Judge Taylor's ruling in the NSA warrantless wiretapping lawsuit. He likes the outcome, doesn't like the rationale and isn't sure it will survive an appeal. I tend to agree with him.(emphasis added)

- - - - - - - - - - - - - - - - -

It is pointless and absurd to scream about how wonderful a ruling is because you like the outcome if the result is that its weak reasoning gets it easily overturned on appeal, which is exactly what I predict will happen. We can certainly make the case that the result reached is a good result, and I've done so. But all of that does no good if it gets overturned.

- - - - - - - - - - - - - - - - -

I said it was a "fascinating" decision, and it certainly was. I said that her handling of the state secrets privilege was both "creative" and "clever", and indeed it was.

These examples are taken from here, here, and here

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Well, Ed, you didn't think that there was anything "fascinating," "creative" or "clever" about my literal interpretation of Rule 12 of the Federal Rules of Civil Procedure. In fact, you kicked me off your blog permanently because of that interpretation, which you never denied was literal -- you disliked my interpretation only because it differed from your preconceived notion of what Rule 12 is supposed to mean. Since then, you and your followers have taken cowardly potshots at me from the safety of your blog, even devoting entire posts and threads to attacking me and my ideas.

Ed has also repeatedly claimed that the only reason people could possibly have for disagreeing with the Kitzmiller v. Dover ID decision is that they don't like the result.

Ed, you are a hypocrite, liar, bigot, ignoramus, scoundrel, and general all-around worthless piece of crap, and words are hardly adequate to describe my contempt for you.

BTW, I happen to agree with the ACLU v. NSA decision, and one of my reasons is that I disagree with the federal rules of judicial standing, which have no express constitutional basis. I will discuss this in another article.

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Ed Brayton: Judge Jones is above criticism

So far as hypocrite Ed Brayton is concerned, Judge Jones, the infamous judge who decided the Kitzmiller v. Dover case, can do no wrong.

In a recent article on his blog "Dispatches From the Culture Wars," Ed Brayton said,

Jon Rowe and I have spent much of the last two years pointing out the numerous false quotations and false claims about the religious views of the founding fathers that are tossed about by both sides in debate over church/state separation. While false quotes are not as common on the separationist side, they're not unheard of, and we still have to deal with the perpetual "they were all deists" claims, which is as false as claiming that they were all Christians.

Yet Ed has never condemned Judge Jones for Jones' following false claims in a commencement speech:

. . . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Far from condemning Judge Jones for stereotyping the religious beliefs of the Founders, Ed Brayton actually expressed approval of Jones' above words -- see here and here.

Judge Jones probably thought that this alleged universal "true religion" of the Founders was Deism, but Deist beliefs include the teleological argument of design. It is sheer speculation to suppose that the Founders who were Deists would have accepted Darwinism -- with its numerous warts -- as a replacement for the teleological argument of design. Even Ed's pal Jon Rowe conceded, "Because our Founders lived before Darwin, ultimately, whatever contemporary position they would have held is speculation and their legacy thus can be taken only so far in this battle."

Furthermore, IMO, "originalism," the idea that our interpretations of the constitution should be governed by the beliefs -- or the perceived beliefs -- of the founding fathers, is asinine. Why should we turn back the clock over two hundred years and live under the principles of another era? We could not even have kept the same basic Constitution for so long if we did not constantly re-interpret it to suit changes in society and technology. Many of the big issues today -- e.g., environmental problems, rights of free expression and privacy on the Internet, and (yes) the controversy over evolution -- were not even on the radar screens of the founding fathers. Originalism has only fostered disrespect for the founding fathers, who are now condemned as racist, sexist and elitist by people who argue against originalism.

This blog has the following related articles:

Judge Jones wrong about Founding Fathers' "true religion"

Judge Jones flunks history and philosophy as well as law and science

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More hypocrisy from Ed Brayton

Hypocrite Ed Brayton made the following comment about the replacement of DaveScot as comment moderator on Uncommon Descent:

I don't think the fact that he edited people's comments to put his own in was a big deal. You could still tell who said what, so it's just a matter of format. It was the inconsistency with which he did it. With the Panda's Thumb, we have 25 different contributors, each of whom controls the content of their own posts and the comments attached to them, and we simply don't all agree on how to handle them. You can expect inconsistency there. But DaveScot kept making grand pronouncements of what he was and wasn't going to allow, he deleted comments (and posts) based solely on what made him look bad, and he treated even those on his own side like dirt. Even the ID fans on the blog thought he did a lousy job. He's one of those guys who runs on pure ego, and those are the last kind of people you put in charge of anything.

This is coming from a jerk who banned me permanently from his blog because he disagreed with my literal interpretation of Rule 12 of the Federal Rules of Civil Procedure. Talk about running on "pure ego."

As for DaveScot's complaint that dropping out of the comment moderation window in order to post a separate comment would have been a burden for him, I think that complaint would have some validity if the comment moderation window does not identify the topic or thread where the original comment is posted (I am emailed copies of all comments posted on this blog but the topic or thread is not identified, so I often have to search for the comment if I want to post a response).

DaveScot's replacement as comment moderator will be Denyse O'Leary, the new co-host of Uncommon Descent.

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Ed Brayton still lying about HR 2679

Desperate Ed Brayton is still making his fallacious arguments against HR 2679. In his latest diatribe, "More Anti-ACLU Lies", he said,

Out of such awards first has to come all of the costs of the litigation, which can be very high depending on how long the case dragged on, how many depositions were taken, and so forth. Then in most cases, the bulk of the fees will go not to the ACLU but to the private law firm that handled the case. In most such cases, the ACLU will end up with only a small portion in legal fees, but even then they can only recover the fees for the billable hours their attorneys actually put in on the case. So the rewards merely cover the expense of the trial. It's hardly a profitable thing to do.

Ed has nothing to back up his statements as to what happens in "most" ACLU lawsuits. Ed is always jumping to conclusions -- in contrast, when I don't know something, I admit that I don't know. We do know, however, what happened in Dover: the outside law firm is getting only reimbursement for expenses, and what is left of the $1 million award after deduction of expenses (I believe that expenses were $250,000) is being split by the ACLU and the Americans United for Separation of Church and State. For information, see here and here.

Also, Ed does not understand that the cost of the litigation is usually small compared to the attorney fee award. As I remember, the plaintiffs' expenses (costs) in Kitzmiller v. Dover were $250,000, a fairly small amount compared to the original calculated bill of $2,067,226. With attorneys' hourly rates so high, it is easy to see why the attorney fees greatly exceed expenses.

Though we generally don't know how the awards are split, the American Bar Association's Rule 6.1, Voluntary Pro Bono Publico Service says that pro bono attorneys should donate at least part of any fee award:

[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory lawyers' fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means. (emphasis in original)

Anyway, these attorney fee rip-offs are a problem regardless of who finally gets the money.

Ed ignores the fact that the Dover plaintiffs and their legal representatives made no effort to economize: (1) there were 9-10 plaintiffs' attorneys of record, with at least five of them in the courtroom on every day of a six-week trial; (2) they had 6 expert witnesses, and the defense was under pressure to initially present a like number of expert witnesses; and (3) there were unnecessary depositions of expert witnesses who had all submitted expert witness reports.

The double-talking Darwinists, ACLU, etc. claim that these exorbitant fee awards are not "punitive" and then use the threat of these awards to blackmail governments into doing their bidding.

Ed cites cases in which these attorney fees have probably been awarded to plaintiffs in free exercise lawsuits instead of establishment clause lawsuits, but I have heard no one else complain about fee awards in free exercise lawsuits.

I have proposed a sensible alternative: a cap on attorney fee awards for both establishment clause and free exercise clause lawsuits. This should cover the clear-cut violations of these clauses.

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Cowardly hypocrite Ed Brayton has refused my challenge

Ed Brayton is not only a hypocrite -- he is a cowardly hypocrite. I sent an email to him saying, "Ed, It is easy for you and your pals to take cowardly potshots at me from the safety of your blog, where I am banned. So I am challenging you to either unban me on your blog or debate me on my blog." In a post titled "Larry's Plea for Attention", Ed turned down my challenge. Well, Ed, I certainly do not need to plead for attention from you -- I get plenty of attention from you whether I want it or not.

Ed wrote, "You're banned here because you annoy me." OK, you trolls, let's hear again that Ed is tolerant of comments that he disagrees with.

Of course, my blog takes potshots at Ed, too -- but the difference is that Ed and his pals are free to post comments over here (and both Ed and his pals have posted comments here) while I cannot post comments over there. Ed and his pals have been taking potshots at me where I am an unable to respond. I cannot even directly respond to Ed's articles that are entirely devoted to attacking my ideas. That's cowardice on the part of Ed and his pals.

Ed Brayton has no credibility. He is just a big bag of hot air.

POSTSCRIPT (the following section was added several hours after the above section was posted):

In his above article, Ed also attacked my remarks about the Edwards v. Aguillard case in my article (post) titled "The case against expert witness testimony in monkey trials". Ed said,

As usual, Larry completely misreads the opinion. Notice that the statement from the court is very specific in saying that expert testimony would not illuminate the purpose of the Louisiana legislature when it made the law. Why is this important? Because the district court's ruling considered only the purpose prong of the Lemon test, not the effect or excessive entanglement prongs. (emphasis in original)

So? The Dover case could also have been decided solely on the basis of the Lemon test's "purpose" prong, because of the obvious religious motivations of the school board members.

Furthermore, I also addressed the issue of the applicability of expert witness testimony to the effect prong -- I said, "(7) -- in establishment clause cases, expert testimony often does not illuminate the purposes of the government or the perceptions of the local community, i.e., this testimony is a "Monday morning battle of the experts" (emphasis added to original). The "effect" prong in these cases was primarily concerned with the perceptions of the local citizens as to whether or not there appeared to be a government endorsement of religion. However, the highly advanced knowledge presented by the expert witnesses in three weeks of testimony in the Dover case far exceeded what a fairly well-informed but not expert local citizen -- or that citizen's proxy, the imaginary "objective" or "reasonable" observer -- would be expected to know. According to the Dover opinion (page 16), the "reasonable observer is an informed citizen who is more knowledgeable than the average passerby," but there is no requirement that the reasonable observer be exceptionally well informed and I assert that such a requirement would be unreasonable because the reasonable observer is supposed to represent the typical well-informed citizen.

As for the Lemon test's third prong, the "entanglement" prong," Justice O'Connor said that this prong applies only where the government is directly involved with a religious organization, as in giving aid to religious schools. Where this prong is applicable, it is often incorporated into the second ("effect") prong, as noted in the Selman v. Cobb County district-court decision.

Ed said,

Judge Jones didn't need to refer to expert testimony to conclude that the board acted for a religious purpose, all he needed was the fact witnesses' testimony - just like in Edwards.

YES! So you actually agree that the expert witness testimony was not necessary in the Dover case -- Judge Jones could have ruled against the defendants solely on the basis of their religious motivations.

I'll bet that Ed is now going to complain that I "quote mined" him.

Note -- my original statement has been revised as follows:

"Unfortunately, the courts in later cases did not follow Edwards' lead of refusing to hear the testimony of expert witnesses who had played no part in directly influencing the government policies where such testimony was arguably not necessary for deciding the case."

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Challenge to Ed Brayton and his pals

You and your pals talk big, Ed, but you are just big bags of hot air. Since you have banned me from your blog, I challenge you and/or your pals to come here and debate me out in the open. Many of my opponents here are just hecklers who have done nothing except call me wrong, stupid and ignorant and post breathtakingly inane wisecracks.

Now for some more replies to Ed Brayton's nonsense.

In yet another article, Ed Brayton says, "The fact is, the only reason they [the Dover plaintiffs] asked for the nominal damages of $1 per plaintiff was to avoid having the case mooted in case of a school board change (which, of course, did happen) and force the court to rule in the case."

This notion that a claim for nominal damages is alone sufficient to prevent a case from being declared to be moot has been thoroughly debunked in this blog. If there were such a general rule, then all plaintiffs would claim nominal damages and no lawsuit could ever be mooted. Reductio ad absurdum. Q.E.D.. It appears that the 2nd, 6th, and 10th circuit federal courts of appeals have accepted this absurd idea, but there is no evidence that there is generally any such rule about nominal damages. What is the point of having just a claim for a lousy $1 if all your other claims are moot? No one has yet provided a single instance where a court has granted nominal damages and nothing else. Nominal damages are just symbolic tokens of vindication on some other claim -- when all other claims become moot, then the nominal damages claim should become moot also.

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Ed Brayton said,

The legal bills in Lamb's Chapel and Good News Club were almost certainly in the millions of dollars, especially since both went all the way to the Supreme Court and thus required an addition 3 years or so of legal work. Why, then, do we never hear the right accusing the American Center for Law and Justice or the Alliance Defense Fund of using legal fees to "intimidate" school districts into compliance?

Why should the right be complaining about that? If attorney fee awards in free exercise suits are a problem, then why isn't the left complaining about it?

Also, just because these cases went to the Supreme Court does not necessarily mean that they cost millions of dollars in legal fees. You are always jumping to conclusions. Often, the biggest expenses are incurred in the trial court. Appeals are usually done just with briefs, with very short oral hearings sometimes included. In appeals actions, normally the appellant/petitioner gets to file two briefs and the appellee/respondent gets to file one, though sometimes there are extra briefs, like a petition for rehearing. The big factors that drove up costs in Kitzmiller v. Dover were: (1) a horde of plaintiffs' attorneys of record -- 9-10 -- with at least 5 of them in the courtroom every day of a six-week trial; (2) a lot of expert witness testimony -- six plaintiffs' experts and several defense experts; and (3) lots of pre-trial discovery, including depositions. In contrast, the Lamb's Chapel and Good News Club cases were much more clear-cut and probably had no expert witnesses and little or no pre-trial discovery -- these were cases involving exclusion of religious organizations from after-hours use of public-school facilities. However, it is true that other seemingly clear-cut cases also ran up big legal bills, though not as high as Dover -- it has been reported that the ACLU was awarded nearly $800,000 in attorneys’ fees from the city of San Diego, Calif., in a successful effort to prevent the Boy Scouts of America, which acknowledges God in its oath, from continuing to use Balboa Park and that the ACLU, Americans United for Separation of Church and State and the Southern Poverty Law Center gained about $540,000 from the state of Alabama in a successful challenge of the Ten Commandments monument displayed in the State Judicial Building by Alabama Chief Justice Roy Moore.

Anyway, I said that instead of just banning attorney fee awards in establishment clause cases, there should be caps on attorney fee awards for both establishment clause and free exercise clause cases.

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Ed Brayton said,

..... the fact that Pepper Hamilton decided in this case to forego any reimbursement for billable hours by the attorneys is an anamoly. In most such cases, they will take at least partial repayment of those billable hours, at least enough to break even.....Ordinarily when the ACLU wins a big case like this, they only get a small portion of the legal fee reimbursement because they only have one part time attorney working on it,

How do you know that Dover is an "anomaly" in this regard? You are always jumping to conclusions. A former ACLU staff attorney said,

The ACLU, posturing to the public that it acts on principle and pro bono, in the public interest and without fee, in fact has raked in enormous profits in lawsuits brought under the "establishment clause."

These lawsuits are nationwide, coast to coast, and run literally into millions of dollars in the pockets of the ACLU in "attorney fee awards" - although in fact neither the ACLU nor its mascot plaintiffs have incurred any actual attorney fees.

As a onetime ACLU staff attorney, I know that the ACLU recruits attorneys to take on its cases without fee, and that the ACLU does not charge attorney fees to the persons it uses as plaintiffs.

Large firms often provide attorneys from their pro bono units at no cost to the ACLU....

=====================================================

Before, I called the attorney fee awards in establishment clause cases "draconian," but suggested only one way of reducing the awards -- reducing the number of plaintiffs' attorneys. I will suggest other ways here as well.

Here are some ways in which the Dover plaintiffs' legal representatives could have economized:

(1) -- reduce the number of attorneys of record. There were 9-10 attorneys of record, with at least 5 of them in the courtroom on every day of a six-week trial. In contrast, the defense had just four attorneys of record, and I heard that only one of them was a full-timer.

(2) -- eliminate the expert witnesses or reduce their number. Initially there were six expert witnesses for the plaintiffs and six for the defense, but two or three of the expert defense witnesses dropped out. The testimony of these experts was mostly just a "Monday morning battle of the experts" that did little or nothing to illuminate the purpose of the school board or the perceptions of the local community. In Edwards v. Aguillard, the district court judge refused to hear such expert testimony and the Supreme Court expressly agreed with that decision.

(3) -- eliminate deposition of expert witnesses. There was no reason to depose the expert witnesses, because all of them had submitted expert witness reports and supposedly had long paper trails of publications. Deposing these expert witnesses was like "deposing" federal judicial nominees prior to Senate confirmation hearings.

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Ed Brayton's outrageous potshots

Considering that Ed Brayton has banned me from posting on his blog, his taking potshots at me on his blog is outrageous. They are here and here.

I will comment on a few of his claims.

First, Ed was totally wrong in his statement that the "ACLU likely got only a small portion" of the $1 million attorney fee award in the Dover case -- the ACLU and the AUSCS split what was left of the award after the deduction of expenses (as I remember, the expenses came to about $250,000). Also, I read somewhere that the ACLU requires its volunteer attorneys to agree to not accept any compensation from attorney fee awards, but I cannot now find proof of that.

Also, Ed also took issue with my following statement from my post titled, Hypocritical Ed Brayton still doesn't get it on HR 2679:

What if this $1 million bill had been called "punitive damages" or a "fine"? As Juliet in Romeo and Juliet would say, "What's in a name? What we call an attorney fee award, by any other name would ...", well, you know the rest. This draconian penalty virtually violates the 8th Amendment's prohibitions against "excessive fines" and "cruel and unusual punishment.

Ed is too dense to understand that (1) my comparison of the $1 million fee award to excessive punitive damages or an excessive fine was perfectly reasonable and that (2) "virtually violates" does not mean the same as "literally violates."

Also, Ed took issue with my following statement from the same post:

(7) The ruling in Blum v. Stenson, 465 US 886 (1984), that the attorney fee award of 42 USC §1988(b) may not be reduced on the grounds that the legal representation was by a non-profit organization (this ruling also presumably applies to representation that was initially pro bono) was based on an erroneous interpretation of a Senate report accompanying the statute. The Supreme Court's quotation of the Senate report said, "It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature......" S. Rep. No. 94-1011, p. 6 (1976). (emphasis added) The quotation of the Senate report said that the fees should not be reduced on the grounds that the rights involved are nonpecuniary in nature, but the quotation nowhere expressly said that the fees should not be reduced on the grounds that the representation was non-profit and/or initially pro bono.

Note the emphasis on the word "expressly" in my above statement. There is simply no proof that the Senate committee ever considered the issue of whether or not the fee award should be reduced on the grounds that the legal representation was non-profit and/or initially pro bono. The Senate report's mere citation of court cases where there was such representation is not proof that the committee specifically considered that issue. Generally, people who read the report rely on what the report expressly says -- this is not a guessing game of trying to read the minds of the report's authors. The court's claim that its decision was based on the Senate report was completely erroneous -- the court might as well have not cited that Senate report at all. That is all there is to it.

Ed Brayton thinks that the fact that the decision in Blum v. Stenson was unanimous is significant. Apparently he never heard the story of the little boy who said that the emperor had no clothes.

I was banned from Ed Brayton's blog mainly because I interpreted a federal court rule in a way that he didn't like, but my interpretation was literal. And a friend of Ed's who claimed to be a teacher of constitutional law chimed in with a response that contained nothing but insults and ad hominems.

On second thought, maybe I should not be so mad at Ed for taking potshots at my blog -- he is giving me some free publicity. I just wish that Panda's Thumb would do the same.

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Hypocritical Ed Brayton still doesn't get it on HR 2679

Ed "It's My Way or the Highway" Brayton is still making his hypocritical arguments in opposition to HR 2679, the bill that would bar attorney fee awards in establishment clause cases -- see here and here. He is still arguing that the only reason the bill's supporters have for supporting it is that the plaintiffs usually win establishment clause lawsuits in court. Wrong.

Also, Ed Brayton makes the big blooper of assuming that the ACLU is getting only a a small part of the attorney fee award in Kitzmiller v. Dover. Pepper-Hamilton is getting nothing except reimbursement for its expenses and the whole kaboodle after deduction of expenses is going to the ACLU and the Americans United for Separation of Church and State.

Here are some points about these attorney fee awards:

(1) The attorney fee awards that defendants must pay in establishment clause cases are often draconian. The Dover school board was soaked for $1 million in fees, though the board deserved little more than a slap on the wrist, if even that much. What if this $1 million bill had been called "punitive damages" or a "fine"? As Juliet in Romeo and Juliet would say, "What's in a name? What we call an attorney fee award, by any other name would ...", well, you know the rest. This draconian penalty virtually violates the 8th Amendment's prohibitions against "excessive fines" and "cruel and unusual punishment." Yet the Darwinists and the ACLU crowd see nothing wrong in this -- many of them even say that the school board "got off easy."

(2) The ACLU, the Americans United for Separation of Church and State, Darwinists, etc., make no bones about the fact that one of the main purposes of these attorney fee awards is intimidation.

(3) Rip-off artists ACLU and AUSCS uses these lawsuits as a major means of fundraising. The ACLU has its own staff attorneys, but outside attorneys who represent the ACLU in litigation work for free and all the attorney fee awards go to the ACLU. Notice that I said "represent" the ACLU, because the ACLU is often the "plaintiff-in-fact" and the nominal plaintiffs are just mascots. The ACLU et al. should find other, more reputable means of fundraising.

(4) Because outside attorneys who help the ACLU and AUSCS are volunteers, there are often more plaintiffs' attorneys of record than there would otherwise be. In the Kitzmiller case, five attorneys from Pepper-Hamilton volunteered, and two of them were partners, a high rank in a 400-attorney law firm. All of the attorneys of record may charge for their time, which can greatly drive up attorney fee awards. In the Kitzmiller case, there were at least five plaintiffs' attorneys in the courtroom on every day of a six-week trial.

(5) Establishment clause lawsuits -- as well as free exercise lawsuits -- are an area of the law that is highly uncertain, inconsistent, and unpredictable. This is especially true because of the infamous Lemon test, which applies only to establishment clause cases. These factors of uncertainty in combination with the threat of an exorbitant attorney fee award often intimidate governments into avoiding actions that the courts might determine to be constitutional. A good example is the Los Angeles County Board of Supervisors' decision to cave in to the ACLU's threat to sue if a tiny cross is not removed from the Los Angeles County seal. No local government in America has deeper pockets than L.A. County, so if the ACLU can intimidate L.A. County, the ACLU can intimidate anyone.

(6) It seems to be generally assumed that only the plaintiffs are eligible for an attorney fee award, but there is no such provision in the fee-shifting statute, 42 USC §1988(b), which only provides for an attorney fee award to the "prevailing party."

(7) The ruling in Blum v. Stenson, 465 US 886 (1984), that the attorney fee award of 42 USC §1988(b) may not be reduced on the grounds that the legal representation was by a non-profit organization (this ruling also presumably applies to representation that was initially pro bono) was based on an erroneous interpretation of a Senate report accompanying the statute. The Supreme Court's quotation of the Senate report said, "It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature......" S. Rep. No. 94-1011, p. 6 (1976). (emphasis added) The quotation of the Senate report said that the fees should not be reduced on the grounds that the rights involved are nonpecuniary in nature, but the quotation nowhere expressly said that the fees should not be reduced on the grounds that the representation was non-profit and/or initially pro bono.

(8) Public officials often find themselves between a rock and a hard place in regard to public expressions of religion, e.g., where there is a question of whether to allow a private individual or organization to publicly express religion, there is a threat of a free exercise lawsuit if such expression is censored and a threat of an establishment clause lawsuit if such expression is allowed. I think that to help keep the playing field level, there should be caps on attorney fees awards for both establishment clause and free exercise lawsuits instead of a ban on fee awards for establishment clause lawsuits only. However, as I said, I think that the current version of HR 2679 is much better than nothing.

Related articles on this blog:

"HR 2679, the bill barring attorney fee awards in establishment clause lawsuits"

"Is the party almost over for ACLU and AUSCS?"

A related article on Uncommon Descent:

"Write to Your Congresscritters in Support of H.R. 2679"

Considering that so many of Ed's positions are so weak, it is no wonder that he bans commenters and comments that disagree with his positions.

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Ed Brayton falsely labels Michigan bill "pro-ID"

According to Ed Brayton, the following language in the Michigan legislature's HB 5251 is "pro-ID":

10) Not later than August 1, 2006, the state board shall revise the recommended model core academic curriculum content standards in science to ensure that pupils will be able to do all of the following:

(a) Use the scientific method to critically evaluate scientific theories including, but not limited to, the theories of global warming and evolution.

(b) Use relevant scientific data to assess the validity of those theories and to formulate arguments for or against those theories.

Nothing in the above bill mentions or even implies ID -- the bill only talks generally about using scientific methods to argue against evolution. There are arguments against evolution that have nothing to do with design -- I have presented some such arguments in this blog (arguments concerning co-evolution, chromosome counts, and the propagability of beneficial mutations in sexual reproduction). Of course, if the Darwinists can succeed in persuading enough people to believe that (all criticisms of evolution) = ID = creationism, then the Darwinists can succeed in discrediting all criticisms of evolution and having them banned from public schools.

It is obvious why I was banned from Ed's blog -- he can't stand to have anyone there who tells the truth. I could try to post comments there under false names, but it would not do any good because the comments would be deleted anyway.

I agree with Ed about the Michigan legislature's unfairness of allowing short public notices of hearings and giving special treatment to some public commenters: special advance notice of the hearing and more time to speak than opposing commenters. However, even California's Brown Act, possibly the most stringent open-meetings law in the USA, evidently does not apply to the state legislature: the preamble of the Brown Act says, "54950 In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly." Anyway, Ed, where were you when Herr Fuhrer Esley Welsberry (pronounced "Velsberry") of Panda's Thumb banned further discussion of my idea that the Ohio Board of Education should have heard public comments before rather than after voting on the evolution lesson plan, his reason being that he was not aware that any of the Ohio public commenters had complained about it?

If the Michigan legislators are concerned about the possible expense of a lawsuit, my article titled "Often the best defense is a good offense" has suggestions for minimizing the expense. And certainly a big state like Michigan should not be intimidated by the potential expense of a little lawsuit.

Another Darwinist fallacy is that ID is not scientific. The principal scientific component of ID, irreducible complexity, is based on scientific observations, and irreducible complexity deals with the probability and possible mechanisms of the evolution of complex biological systems that appear to be irreducible. Something does not have to be testable, falsifiable, and a complete explanation of observed phenomena in order to be considered to be scientific -- macroevolution theory is not testable or falsifiable. Something can be just a criticism of a scientific theory and still be scientific.

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More shenanigans from Ed Brayton

This is a follow-up to my post titled STOP IMPERSONATING MY BROTHER. Ed just posted another lie -- "The Real Dave Fafarman Revealed" -- in which he falsely accuses me of impersonating my brother Dave! Dave tried to post a response on Ed's blog, but found that his post was held up for "moderation." So I decided to publish Dave's response below --

Ed Brayton wrote --

One of my friends in the NCSE office emailed Dave and put him in touch with me. Dave confirmed that he did indeed write the first comment under the Typekey username DaveFxxx, but did not write the comment with the Typekey user name Dave Fafarman.

Any combination of you, your friend, and "Dave" are lying. Since you obviously do not believe in the free exchange of ideas (you arbitrarily banned Larry for disagreeing with you), why should anyone trust you?

Notice that the IP addresses for the fake Dave and the two Larry comments are identical - 207.200.116.13.

Larry already explained why the IP addresses are identical, moron -- Larry and I share an AOL proxy with the same IP address.

Now, take a look at the ARIN whois information for that IP address and you'll see that, contrary to Larry's claim, this number is not a dynamic IP address:

What do you mean, "contrary to Larry's claim"? Larry already said that it is not a dynamic IP address.

Notice that Larry is on AOL, while Dave is on SBC. And Larry's IP is not portable, while Dave's IP is. And guess where the email from the real Dave came from? Yep - SBC, not AOL.

The fake Dave is on SBC. The real Dave -- me -- is on AOL.

When he said that his IP address changes every time he dials in, he was lying.

Larry said that his computer's local IP address changes every time he dials in, which is true. However, the IP address of the AOL proxy that he communicates through remains fixed -- and that is the IP address that the rest of the Internet sees.

You should consult someone who knows something about IP addresses.

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For a more complete explanation of Dave's above response, see my following comment --

http://im-from-missouri.blogspot.com/2006/05/stop-impersonating-my-brother.html#c114858431986463769

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Brayton, Take 3

In another article, "Fafarman, Take 3", Good Ol' Ed Brayton says --

Here's the rule when you deal with cranks and trolls - if you engage them, it proves that their ideas have to be taken seriously; if you ignore them, it shows that you're afraid of their ideas. Heads they win, tails you lose.

Are Darwinists any different? If you don't answer them, then you lose the debate, and if you do answer them, you lose anyway because you don't know what you are talking about and your only reason for discussing anything with them is -- or should be -- to be "educated" by them. Yup, that's right -- heads they win, tails you lose.

Panda's Thumb does not even need to "engage" me -- supposedly all PT has to do is just post a link to my blog so that people can see for themselves how stupid my posts supposedly are. But PT has not even done that.

And banning and deleting commenters -- which Ed Brayton and Panda's Thumb do frequently -- are the surest signs of fear of their ideas.

Postscript:

It is apparent that many people who claim that I just post nonsense have been spending a lot of time reading my comments in great detail. I find that to be very strange, because when it becomes clear to me that someone else just posts nonsense, I very quickly stop wasting my time reading that person's comments.

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Good Ol' Ed Brayton, Part 2

Since I am banned on Ed Brayton's blog, I have to answer him here.

This is an update of my previous article, "Ed Brayton wrong again on Dover mootness issue"

In a new article, "Good Ol' Larry Fafarman, Part 2", Good Ol' Ed Brayton says,

Now Larry, I know that reading comprehension isn't your strong suit, nor is thinking for that matter. But even you must be able to recognize that I can't link to a post until after it's been posted.

You are the one with poor reading comprehension. I said that you did not post a link to this blog -- not that you did not post a link to my article, "Ed Brayton wrong again on Dover mootness issue." You could have posted a link to this blog without waiting for me to post that article first. And I have noticed that Panda's Thumb has not had a single article containing comments about the blog of PT's favorite troll. I have posted about 20 substantial articles here and I am wondering why PT has been in no hurry to attack a single one of them.

Anyway, Ed goes on to say,

the man is so dense that he doesn't see the difference between a judge not allowing an amended complaint to ask for damages after the grievance has been redressed and a judge not mooting a case in which nominal damages had been part of the original complaint

Well, you must be pretty dense, too, Ed, because you did not note this alleged "difference" in your original article, "A New Case on Mootness". In fact, according to what you said in that original article, the plaintiffs never asked for nominal damages at all. You said, "There was no request for nominal damages in the UNC case," which as you now indicate is untrue, because there was a request for nominal damages in the plaintiffs' unsuccessful motion to amend the complaint. And the judge also did not note this alleged "difference" between original and amended complaints in regard to nominal-damage claims -- the judge only said, "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." There is no reason to believe that his decision to declare the nominal-damages claim to be moot would have been any different if the claim had been in the original complaint.

Ed, why don't you take your arguments to Dover and use them to campaign for re-election of the Dover school board members, and see how far you get.

Banning me from your blog, Ed, shows that you do not believe in the free exchange of ideas. That attitude is not going to help any of your causes.

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Ed Brayton wrong again on Dover mootness issue

Ed Brayton, in an article titled "A New Case on Mootness" on his blog "Dispatches from the Culture Wars," is now arguing that a new federal district-court decision, Alpha Iota Omega Christian Fraternity v. Hamm, does not support the idea that the Dover school board could possibly have mooted the Dover lawsuit and thereby avoided attorney fees by repealing the ID policy prior to judgment. He got it wrong again.

In that new decision, the judge ruled that the case was moot as a result of a change in policy by the University of North Carolina while the case was pending. Ed vainly tried to distinguish this case from the Dover case.

Ed made the following arguments:

A. There was no request for nominal damages in the UNC case. Indeed, the judge's ruling specifically notes that fact because, if it had been otherwise, it would have demanded a ruling on the merits.

Wrong. The plaintiffs amended the complaint by adding a claim for nominal damages and other new claims (page 23 of opinion). The opinion said, "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." (page 29 of opinion)

B. No trial had taken place in the case. The judge had issued a preliminary injunction against the university, but the actual trial had not taken place on the merits of the case yet. In Dover, the trial was over and a ruling was a mere few days away.

As for no trial having taken place in the case, the courts have never ruled that the stage of the litigation should be a consideration in deciding whether a case should be declared to be moot. After great expenditures of time and money by the parties involved, the Supreme Court dismissed the Marco DeFunis reverse-discrimination case as moot because he was about to graduate from the law school whose admission policies he challenged. The Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) case was declared to be moot after the plaintiff had incurred considerable legal expenses, and the Supreme Court ruled that the "catalyst theory" (the notion that when a case is dismissed as moot because of the defendant's voluntary cessation of the challenged action, the plaintiff is entitled to a statutory award of attorney fees on the grounds that the lawsuit allegedly caused the voluntary cessation) did not entitle the plaintiff to an award of attorney fees.

C. There was far less chance of the new policy being reversed, for several reasons. First, because university administrations do not change every year (or two years) the way school boards do. Second, because the judge's injunction clearly told the university that if they reversed themselves, they'd get hauled into court and almost certainly lose.

As for the statement "There was far less chance of the new policy being reversed," judgment of the likelihood of repetition is subjective and speculative. In the Dover case, there were the following major disincentives for re-instatement of the ID policy or something similar: (1) the ID policy and the lawsuit had deeply divided the community and brought notoriety to the community; and (2) there was the possibility of more legal expenses. As for the statement that the judge told the defendants in Alpha Iota Omega that they would "almost certainly lose" another lawsuit, Ed Brayton's quote of the opinion said nothing of the kind. All this quote said was that the judge was satisfied that the possibility of re-instatement of the challenged policy was "unlikely" and that the defendants could be "trusted" to not re-instate it. Also, a judge telling defendants that they would "almost certainly lose" another lawsuit would have been improperly giving legal advice to the defendants. Also, the purpose of a preliminary injunction is not to send a message to a defendant of likely loss of a lawsuit -- the purpose of a preliminary injunction is to provide temporary relief or prevent irreparable harm pending further rulings by the court. To grant a preliminary injunction, a judge does not even necessarily need to be convinced that the suit has merit.

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I would like to post these rebuttals on "Dispatches from the Culture Wars," but I cannot. I have been banned there. Ed Brayton has just posted an article there -- "Good Ol' Larry Fafarman" -- that brazenly brags about banning me and that ridicules me for thinking that he might have the decency to change his mind by considering at least some of my comments for posting. However, he didn't carry out his threat to post a link to this blog -- apparently he is afraid to do that. The bloggers and their handpicked commenters on Panda's Thumb and Dispatches from the Culture Wars congratulate each other when they easily win debates after opposing arguments have been censored.

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