Thursday, November 29, 2007

Threats Database/Is There an MCRA Claim Here?

The Citizen Media Law Project has set up a threats database to log instances of threats leveled (typically by lawyers and government authorities) against persons for their online speech. I'm not sure how effective the database will prove as a shaming mechanism, but it certainly raises awareness about the problem and lets you know Who the Bad Guys Are and What They're Up To.

As for How To Get 'Em Back, I wonder if the Massachusetts Civil Rights Act doesn't furnish threat recipients with a cause of action for damages against lawyers who target "objectionable" speech with demand letters. Chapter 12, § 11H of the Massachusetts General Laws makes it unlawful for any person "to interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth." That section authorizes the state Attorney General's office to bring a civil case against violators to enjoin their unlawful practices.

Section 11I gives any person "aggrieved" by a § 11H violation the right to sue for compensatory damages. If the plaintiff prevails, he or she is entitled to attorney's fees and costs.

Although it warns that the law was not intended to create a "vast constitutional tort," the Supreme Judicial Court tends to read the MCRA pretty broadly. Speech certainly isn't "free" — at least not completely — if it's tortious, or if it infringes another person's intellectual property rights. But speech that isn't and doesn't (respectively) certainly is constitutionally protected, and a letter from an attorney has to qualify as an "attempt to interfere by threats, intimidation or coercion." My guess is that if any of the claims contained in an attorney's demand letter (defamation, copyright infringement, trademark infringement or dilution, etc.) has any merit, the MCRA claim would fail. If the asserted claim is a loser, the threatened party could well be entitled to damages — and certainly so if the case is frivolous.

A preemptive lawsuit would no doubt provoke a counterclaim from anyone who thinks he or she had asserted a nonfrivolous claim in the initial threat letter. But it has more kick than a lawsuit for declaratory relief, which would simply result in a statement from the court that the contested speech is not actionable, and the prospect of compensatory damages and attorney's fees adjusts the underlying economics of the confrontation in the threatened party's favor. At the very least, the MCRA offers a colorable predicate for a "threat letter-in-reply."

Finally, and perhaps most significantly, I don't see any reason why an attorney who overstated his or her client's position in a demand letter could not be personally named as a defendant in an MCRA case.

I'd be curious to know to what extent other jurisdictions carry laws similar to the MCRA.

Wednesday, November 28, 2007

Romney Can't Have It Both Ways

Christopher Hitchens deploys his snappy prose to explain why the public is entitled to inquire into his religious beliefs.

Now I enjoy reading Hitchens, particularly when I'm on board with his thinking. It's like watching a lion maul an antelope: if you can convince yourself the antelope had it coming, the mauling can be a thing of beauty. And Mitt Romney is a had-it-coming antelope in the worst way.

Hitchens's argumentation isn't always as polished as his prose, though, and here he skips over one crucial point: Romney put this issue in play a long time ago — not by initiating push-poll calls about his Mormonism in Iowa, but by leveraging his religiosity to appeal to Republican "values voters."

Back in June, Romney announced the formation of his campaign's "National Faith and Values Steering Committee." As he explained in the accompanying press release,

"The men and women of our National Steering Committee represent decades spent defending faith, religious expression and traditional values. I believe that our Party and our nation must stand for strong families, traditional marriage and the sanctity of human life. I am proud to be joined by these leaders in our campaign to change Washington."

A Presidential candidate can't make "moral values" a central component of his campaign, then declare that no one is entitled to inquire into the nature of his religious beliefs. Well, he can: but the candidate would have to state clearly and unequivocally that his personal religious beliefs do not inform, influence, or provide the basis of the "moral values" he hopes to advance as President. Romney certainly has not partitioned off his personal faith in that fashion. In fact, quite the opposite.

Three years ago, John Kerry "put in play" his military service. He "reported for duty" at the Democratic National Convention, and he stated that his tours in Vietnam uniquely qualified him for the position of Commander-in-Chief. Kerry could complain that the Swift Boat Veterans for Truth made misrepresentations or outright lied about his military service, but he certainly could not — and to my knowledge he did not — turn on a dime and say his tour in Vietnam was off-limits in the campaign.

Likewise, if a candidate — as candidates do — makes a big show of parading his picture-perfect family in TV spots or on stage after debates, then it would not be a breach of privacy for a news outlet to report on skeletons in the family closet.

If politicians want to use their personal religious faith to appeal to voters, they should be prepared to give full and complete answers to the public about what they believe. If a candidate promises voters that he will govern in accordance with his religious convictions, we ought to know what those convictions are. If he does not, I'm not interested. But you can't have it both ways.

Hitchens didn't make this point, and I wish he had. His thesis seems more striaghtforward: the public should know if a leading Presidential candidate is a whack-job. And I suppose it is more of a kick for Hitchens to explore all the way-out tenets and prophecies of Mormonism. Missouri, indeed . . .

Reason # 119 Why I Feel Alienated from the Rest of America

Is it me or has ABC deployed every one of its other television shows to promote "Dancing with the Stars?" Since when do developments in reality TV qualify as "news?" I know Fox is in this habit, too: it devotes ten minutes in its late local affiliate news to recap "American Idol." But Fox is Fox, right?

It's bad enough that stories of celebrities' rehab stints/bail proceedings are crowding out world-important events (say, the political crisis in Pakistan) in the public consciousness. At least Hollywood scandals aren't manufactured by the very networks that promote them.

Newsflash, people: whether or not Marie Osmond delivered an effective cha-cha two nights ago is not, er, "Newsflash" material.

And finally, do you suppose Diane Sawyer ever looks at herself and wonders how her career in journalism went from possible Deep Throat candidate to Kathie Lee Gifford wanna-be?

Monday, November 26, 2007

Some Further Thoughts Re The Arcade Fire, and of the Importance of Irony in Rock Music

The recommendation I made below was sincere. The Arcade Fire is one of the best live acts I've seen in a while. But as much as I admire them, when the subject of this band comes up, I always feel as though I'm the least admiring fan in the room. Critics call them the second coming of U2 and Springsteen, their roster of celebrity supporters (the Edge, David Bowie) is impressive and apparently growing by the day. And as I say, wherever I go I feel like a bit of a heretic among The Converted.

I've wondered why this is, and I suppose it's because I'm a sort of heretic by nature. Naturally suspicious: "You say this is the best grilled cheese sandwich you've ever had. Why? Do you remember them all? When you can't account for all your sandwiches — and you certainly can't compare them under controlled conditions — would you stake your honor on so dubious a proposition?" And so on.

I'm pretty sure it was exactly this sort of heretical (maybe agnostic is a beter word) aspect of my character that drew me to rock music to begin with. There are so many repositories of sanctimony and earnest in the world. We create institutions of all kinds — nations, churches, ideologies, even sports teams — and we invest so much idealism in them. These institutions carry imperfections. They have to: they're the work of imperfect people. And when they inevitably rot, when they become corrupted and disappoint, we're torn to pieces. We get bitter.

Rock music, to me, lives outside that paradigm. Or it ought to. Because rock, more than any institution or art form (and let's call it what it is: an institutionalized art form), is founded on irony. Not so long ago Sasha Frere-Jones wrote a piece for The New Yorker in which he himself grappled with The Arcade Fire Problem. Frere-Jones concluded that The Arcade Fire is simply too white: his thesis is that the band has no soul because, well, it has no soul. Maybe he's getting at the same point I am, but I'd like to come at it from a different angle. Yes yes yes, the band is half-Texan and half-French Canadian. There's a lot of light reflecting on that stage, and not a lot of funk in their music. Maybe "blackness" or some derivative form of it is an important active ingredient of rock 'n' roll: I'll leave that to Sasha to hash out. My focus is on another such ingredient: irony. Irony makes rock not serious, and therefore worth taking seriously. Irony is the privilege of the young. It's a mark of sophistication, humility, and good humor. And The Arcade Fire don't have it.

Read this compilation of lyrics from Neon Bible, and tell me (1) if you could actually make it to the end without barfing, and (2) whether or not you did, if you agree with me that The Arcade Fire is comprised of 100% earnestness and 0% irony. This breakdown, if you can call it that (and I intended the double entendre), is just not suitable for a rock band. Let's have our cult leaders, our Dr. Phils, our Bolsheviks 100% earnest. But not our rock bands.

There's a time in life — as I wrote below, when you're around fourteen — when you're looking for conviction and depth of feeling, and the only medium you're in a position to explore is rock music. If you grew up in the 1980s, you found "answers" and "sympathy" in U2 and the Smiths. As you got older, you remember how ridiculous you were. You put those old Smiths albums back on, expecting to cringe in embarrassment, and you're pleasantly surprised because ten years later you're glandularly capable of identifying and appreciating Morrissey's irony. He meant every word of it, but he didn't mean any of it. As a result, the Smiths were geniuses.

U2 less so. The first half-dozen or so U2 albums, from Boy through Rattle & Hum, are so god-awful earnest that you have to be in a nostalgic mood to tolerate them. I'm not saying The Joshua Tree isn't a terrific album, or that "Sunday Bloody Sunday," performed live with the white flag at Red Rocks, wasn't brilliantly conceived and executed. But you just can't help looking at Bono (or yourself, as you sing along — "NO MORE! WIPE YOUR TEARS AWAY!") and seeing a complete naïf. To their credit, U2 recognized this and tried to correct it. They spent the 1990s recording "ironic" albums like Pop and Zooropa, and Bono began prancing around in gold lamé, with devil horns on his head. This was not brilliantly conceived and executed. As a result, U2, in my estimation, are not geniuses. You can't decide, mid-career, to add irony. You have to mix it in with some subtlety.

R.E.M. is an interesting example, because R.E.M., of course, cheated. R.E.M. recorded Top 40 pop songs with irony self-consciously written into the package — they even called one of the songs "Pop Song." So the record goes gold, and half the buyers like R.E.M. because it's catchy and upbeat, and the other half applaud R.E.M. for the great moment of satire. "Shiny Happy People" is the "My Name Is Earl" of pop music. R.E.M.'s doctrine was that they were earnest about being ironic. It was enough to tie you up into knots.

John Lennon, of course, was irony incarnate — the Primal Source From Which All Rock Irony Flowed Thereafter (although some will point to Elvis almost a decade earlier: note the smirk on his face as he did his signature hip-swiveling during "All Shook Up"). Lennon's mother lode of irony made him the perfect counterweight to McCartney's jaunty tunesmith character. Beatles? Genius. Punk rock was genrified irony. The bands of that era had the irony written into their DNA; they only had to conceive and execute, and those that did became signature rock 'n' roll acts. Compare the rock "street cred" of acts like the Pistols, the Clash, and the Damned to Yes, Genesis, and Rush: it's irony that made the difference.

I could go on at length, but I need to get back to The Arcade Fire. At some point, one or more of the hundred people in this band need to show me something — something that says they don't really mean to be taken as seriously as they are. It could be something as easy as a well-timed wink from Win or Regine. Or the drummer could get hammered and crash his car into a swimming pool. Or in an interview one of them could go off-message and declare that it's just a frickin' riot being a famous rock star. I just need something that will register the slightest bit on my irony-ometer. My worry is that so long as they have every fan, every critic, every rock band peer fawning over them like fourteen-year-olds, it's not going to happen.

And that's how I feel about The Arcade Fire.

The Arcade Fire on Austin City Limits

This is a terrific 60 minutes of television.

I saw The Arcade Fire at the Orpheum earlier this year, and they were extraordinary. I had bought both albums, found them both a bit overwrought — i.e., I felt like I was unable to "feel things" as deeply as Win Butler does, because I'm not fourteen years old (and neither is he, which is what made me uncomfortable).

That said, I enjoy the songs, particularly "Haiti," "Neighborhood 2," and "Rebellion" on Funeral, and "Intervention" on the new album, Neon Bible. Once I saw them perform live, I added them to my list of Bands Not To Miss When in Town. It's a real spectacle, and they actually put forth an effort. There are about a hundred band members, and several of them jump from one instrument from another. They produce crash cymbals — crash cymbals! why hadn't anyone in rock thought to deploy them before? — and carry drums out into the crowd.

If you've got a DVR, look for a replay of the Austin City Limits performance. Something to see. Note as well: the sample track they're showing on PBS, "Keep the Car Running," doesn't do them full justice.

Saturday, November 24, 2007

More Judge-Bashing from Romney

From today's Boston Globe:

"Twenty months after he put a career prosecutor on the Massachusetts Superior Court bench, confident in her law-and-order credentials, Mitt Romney called yesterday for the judge to resign because she released without bail a convicted killer who went on to allegedly kill again."

It's conventional wisdom by now that when a judge grants a convict/defendant parole/pretrial release, and then the convict/defendant goes out and does something [else] awful, it's the judge's fault. This is Chapter One in the Tabloid Journalist's Handbook. In this case, the murderess-by-proxy is the Honorable Kathe Tuttman, a former prosecutor nominated to the Superior Court bench by (gasp!) Republican Presidential candidate and Perfect Head of Hair Mitt Romney. Cue the feeding frenzy: Willie Horton, anyone?

Naturally, Romney has called for Judge Tuttman to resign her post. Of course, he's not Governor or Massachusetts anymore (he was barely the Governor back when he nominated her). So he doesn't exactly have the authority to sack anyone in the judiciary: no, wait — as a Chief Executive in a constitutional system with checks and balances, he never did have that authority. But that's never stopped Our Mitt from ranting to excess about judicial decisions he doesn't like, as is his right, and apparently his compulsion.

But why should Romney suddenly take such a keen, take-the-judge-down interest in a murder case in Massachusetts, where he hasn't had very much of a presence since, oh, some two years into his term as Governor there? The answer is straightforward: Judge Tuttman's career should be over because the consequences of her decision reflect poorly on Mitt Romney's law-and-order credentials. She's a political liability. And that's really what these murders are all about: not Brian and Beverly Mauck (the victims, in case you were wondering), but Mitt Romney.

Judge Tuttman, don't your remember your oath? You swore to uphold the constitution and laws of the Commonwealth of Massachusetts, along with the Presidential candidacy of Willard Mitt Romney. On that latter score, you failed. Now pack up your gavel and robe and go home, so we can get on with the business of "doubling Guantanamo."

UPDATE — Nov. 25, 9:01 a.m.: This morning Romney also called for the deceased couple to come back to life, "pronto." "I can't see why they haven't done it yet," he told reporters at the Boston Herald. "It will be better for them and better for me."