Patterico's Pontifications

1/18/2017

President Trump Will Be the Same Man Non-President Trump Was

Filed under: General — Patterico @ 9:08 pm

I agree with almost every word in this article. Here is the part that resonates for me:

We will not change him—no one can. His children may be able to soften the edges and his most trusted advisers may deflect him off his erratic courses, but nothing will teach him gravitas, magnanimity, or wisdom. Until he is impeached, thrown out of office in four years, succumbs to illness, or lasts through eight years, he is what we have learned he is, and will remain so.

Seemingly unrelated digression that is actually related:

I’ve been listening to The Great Courses lately on Audible — in particular the music courses. (I’ll have a lot more to say about these. It’s a great deal; as an Audible Platinum member you pick up a 24-hour-long course, that sells for hundreds of dollars on the Great Courses site, for less than $12. Try a free trial.) One of my favorite parts of the music courses are the biographical stories — and there are a couple of great stories about the composers Beethoven and Liszt and their attitude towards royalty. I’ll give you links to other sources, but I heard these stories on the Great Courses series of lectures:

The Beethoven stories:

A nobleman once talked during a performance. Beethoven stopped playing and declared, “For such pigs, I do not play!”

He would say to the face of a prince and benefactor,
“What you are, is by accident of birth;
What I am, I created myself.
There are, and have been, thousands, of princes;
There is only one Beethoven.”

Another story, which you can read here, is about Franz Liszt, who was playing a concert in Russia when Czar Nicholas I arrived late and started yammering during Liszt’s performance. Liszt stopped playing and bowed his head. When Nicholas asked why, Liszt replied: “Music herself should be silent when Nicholas speaks.”

Ha!

These really resonated with me because at heart I respect people for their actions and not their titles.

I do not believe Donald Trump the President will be different from Donald Trump the non-President. “We will not change him — no one can. . . . [H]e is what we have learned he is, and will remain so.”

Please do not expect me to start respecting him just because he happens to hold power. I’m a Beethoven fan, and worshiping people because of their titles is just not how my personality works.

What Does Today’s Supreme Court Oral Argument Mean for the First Amendment?

Filed under: General — Patterico @ 8:00 pm

Early this morning I previewed for you a major First Amendment case that was argued in the Supreme Court today: Lee v. Tam. The Court will decide whether the government can deny trademark protection to trademarks (like the band name “The Slants” or the team name “The Redskins”) which it finds to be disparaging.

I’ve now had a chance to read through the oral argument, the transcript of which is here (.pdf). Here are my impressions.

As I was this morning, I remain cautiously optimistic that the disparagement provision of the Lanham Act, which allows the U.S. Patent and Trademark Office (USPTO) to deny trademark protection to so-called “disparaging” trademarks, will be struck down as a violation of the First Amendment to the U.S. Constitution. I predict the vote will be 7-1 — with Justice Sotomayor, the “wise Latina,” in the minority.

Reading the tea leaves, I found it to be significant that Justices on both sides of the left/right spectrum seemed suspicious of the government’s asserted interest in preventing disparagement.

The government’s central argument this morning was a “government program” argument: that the disparagement clause “places a reasonable limit on access to a government program rather than a restriction on speech.” The “government program” argument came in for quite a bit of criticism. Right out of the gate, Justice Kennedy noted that copyright is also a “government program” but that a disparagement provision “wouldn’t work with copyright.” Justice Roberts observed: “Counsel, I’m — I’m concerned that your government program argument is — is circular.” And Justice Alito said: “I wonder if you are not stretching this, the — the concept of a government program, past the breaking point.”

It wasn’t just conservatives who didn’t seem to buy the government’s argument. Justice Kagan, a certified lefty, was particularly aggressive in her questioning of the government:

I always thought that government programs were subject to one extremely important constraint, which is that they can’t make distinctions based on viewpoint.

So why isn’t this doing exactly that?

That could be seen as a simple softball to get the advocate to articulate his position, but in context it sounded like Kagan was skeptical of the government’s position, especially when she followed up with comments like this:

So, for example, let’s say that I wanted a mark that expressed the idea that all politicians are corrupt, or just that Democrats are corrupt. Either way, it doesn’t matter. I couldn’t get that mark, even though I could get a mark saying that all politicians
are virtuous, or that all Democrats are virtuous. Either way, it doesn’t matter. You see the point.

The point is that I can say good things about something, but I can’t say bad things about something. And I would have thought that that was a fairly classic case of viewpoint discrimination.

This analysis echoes what I said this morning in my preview post:

[T]his provision would allow the term “Scientology” to be approved as a trademark, while anti-Scientology trademarks could be rejected. When the government puts its imprimatur on the trademark of a cult, but refuses one to people who seek to expose the cult, that is not benign. But in addition, it’s simply not the business of government to be doling out privileges, or refusing them, based on the viewpoint of the people seeking the privilege.

I won’t quote Sotomayor’s rantings at length, but I got the impression that she might be the one Justice willing to vote for the government in this case.

Looking at the argument in its entirety, I concluded that the Court probably won’t announce a completely straightforward principle wherein the government can never deny privileges such as trademarks based on viewpoint. The questions to the attorney for the respondent (Tam, the Slants member) seemed to betray a concern on the part of some Justices that the government may have legitimate reasons at times to discriminate on the basis of viewpoint. For example, at one point Justice Alito said:

For example, could the government say — and maybe it already has said — that a manufacturer of cigarettes could not place on a package of cigarettes “Great for your health. Don’t believe the surgeon general”?

Based on the argument, I think that the Justices are more likely to decide the case on a narrower ground: that there is an insufficient connection between the disparagement clause and the specific interests that trademarks are designed to further.

If I’m right, it’s still a win for free speech. And that means a win for the good guys.

Of course, I predicted Hillary Clinton would be President this Friday.

Let’s hope my prediction on this case is more accurate.

[Cross-posted at RedState.]

Killer of Family of Bryan Harvey (House of Freaks Lead Singer) Put to Death

Filed under: General — Patterico @ 7:49 pm

I recently wrote a post titled This Is The Greatest Thing I Have Seen on The Internet in Ages. You might remember it. It was about George Wendt (Norm from Cheers) and his fanatical devotion to a great little band I once loved, and saw live twice, called House of Freaks. The post featured Wendt doing a karaoke version of one of the band’s great songs. If you missed that post, go read it and smile. The rest of this post is pretty dark.

In that post, I briefly alluded to the horrible murder of the band’s lead singer, Bryan Harvey, and his entire family, including two young daughters, by an evil degenerate son of a bitch. In a comment I noted that I had marked my calendar, as the murderer was slated to die in January.

Mark my calendar I did — and I bring the good news that the scumbag is dead.

Ricky Javon Gray was executed by injection Wednesday night for the slaying of two young Richmond sisters on New Year’s Day 2006.

Gray, 39, was pronounced dead at 9:42 p.m. at the Greensville Correctional Center. Asked if he had any final words, Gray said, “Nope,” according to a prison spokesperson.

Gray was sentenced to die for the Jan. 1, 2006, slayings of Ruby Harvey, 4, and Stella Harvey, 9. He and accomplice Ray Dandridge, 39, also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39, in their Woodland Heights home.

A few days later, Gray and Dandridge killed Ashley Baskerville, 21; Baskerville’s mother, Mary Tucker, 47; and stepfather, Percyell Tucker, 55, in their South Richmond home. Dandridge, Gray’s nephew, was sentenced to life for those killings.

The Harveys were tied up, their throats cut and beaten with a hammer. Their house was set on fire by the killers when they fled and the victims were initially discovered by firefighters.

I’m not a religious man, but I hope Ricky Gray is burning in hellfire tonight. May he suffer for all eternity.

Programming Note

Filed under: General — Patterico @ 7:24 pm

Several commenters have made incorrect assumptions about my recent post asking for an email if you really want me to see something. I read people saying, for example, that I was giving up the blog, that I was going to RedState exclusively, that I would no longer read comments on my blog, etc.

None of this is true.

Here’s the thing. This past Monday, when I put up that post, there were criticisms coming in at me from all sides. I won’t bore you with the details. I had responses to each and every criticism, but there were so many criticisms that it would have eaten up a good chunk of my day to type up all the responses.

I chose to spend my day (and my weekend) in other pursuits.

I’ve been through periods of intense criticism from commenters before. The time Obama first took office comes to mind. Back then, I had this idea that I had to respond to every criticism, no matter how silly or off-base, or it would look like I have no response, and therefore I would appear to be in the wrong.

It was very unpleasant. I’m not going to repeat that process.

I may take up criticisms from time to time, but it will be my decision, made on my own terms. If I don’t reply to your point, it does not mean that I had no reply. It could be that I did not have the time or energy for it.

Also:

I won’t lie, if I see a lot of negativity aimed at me — especially of the “your blog sucks now!” variety — it can get me down. In the old days, at least a lot of like-minded people would rise to my defense. Many of my favorite people have been driven away by the general tenor of the comment section lately.

I’m determined not to let my own blog become a negative in my life. If reading my own commenters gets me down, the best thing to do in that situation is to walk away from the keyboard. So, while I have always tried to read most of the comments, the more comments I see that are variants of “this blog is going downhill!” and “I used to email your posts to friends but no more!!!” . . . well, the more comments I see like that, the more likely I am to take a little break from responding to, and possibly even reading, the comments.

And this is why I say, if it’s really important for you to place something in front of me, send me an email.

And if it’s absolutely critical that you get a response from me, PayPal me $100 and I will respond. Absent such a payment, I’ll have to choose whether responding is worth my time or not.

The unpleasantness in 2009 passed, and this too shall pass. It’s not a big thing, when you take the longer view. Just wanted to clear up some of the many, many misconceptions I had seen in the comments (because I do read them, for the most part!).

I’m closing comments to this post because, frankly, I’m a little concerned that a lot of people would want to respond with something like: “You’re not understanding my point about why your blog sucks these days” . . . and guess what? Oddly enough, I’m really, truly, supremely uninterested in reading more comments like that.

The Likely Reason Bob Corker Says He’ll Pass on Tillerson’s Nomination to the Floor . . . No Matter What

Filed under: General — Patterico @ 7:00 pm

Committee chair assures in advance that the vote of his committee will be meaningless. Wait, what?

In an unusual move, Republicans plan on bringing Donald Trump’s nominee for secretary of state before the full Senate for a vote even if he does not earn the support of the foreign relations panel.

Bob Corker, who chairs the Senate Foreign Relations Committee, told CNN’s Manu Raju Tuesday that he would “absolutely” offer former ExxonMobil CEO Rex Tillerson for a floor vote even if he is not given the blessing of his committee, which oversees the nomination.

“I plan on moving Tillerson to the floor,” Corker said. “Without getting into all the machinations, I would expect there to be a vote of Rex Tillerson on the floor and I expect him to be confirmed.”

Why is Corker doing this? I have an educated guess.

In recent days, I have gone way out on a limb and predicted that Marco Rubio will be voting “no” on Tillerson.

I haven’t found any talking head, columnist, or blogger who agrees with me. And I could be wrong. But after watching Rubio’s grilling of Tillerson, that’s my prediction and I’m sticking with it.

Wouldn’t that explain Corker’s announcement?

I think this means Rubio has decided he’s going to vote “no” on Tillerson, and Rubio got the word to Corker. (CNN says “Corker said he had not spoken to Rubio recently about his thinking” — but hey. Someone else could have conveyed the message.)

Unless a committee Democrat votes “yes” on Tillerson, Rubio’s “no” vote would put the vote at 11-10 against reporting the nomination to the floor. Absent an announcement like this, the story of the day would be a grand discussion about whether Tillerson would even get a floor vote. After this announcement, Rubio’s “no” vote will engender no such speculation.

I think that’s what’s happening. And I’m sticking with that story until it proves to be wrong.

Then I’m taking it back . . .

[Cross-posted at RedState.]

Will Assange Keep His Promise To Turn Himself In If Manning’s Sentence Is Commuted?

Filed under: General — Patterico @ 11:00 am

In an interesting side note to the commutation of Bradley Manning’s sentence, Julian Assange recently promised through his Wikileaks account that he would surrender himself to the United States if Manning were granted clemency:

Now that Obama has indeed commuted Manning’s sentence, the question is: will Assange keep his promise? This tweet would appear to confirm that he will:

Just one question, though: has Assange actually been indicted? Glenn Greenwald argues that it is “bizarre” to talk about Assange surrendering, given that there is no evidence that he has been indicted. Ken White, a former federal prosecutor, points out that indictments are typically kept under seal until an arrest is made. That being said, White also opines that, given the Obama administration’s leaky nature and penchant for grabbing headlines, the existence of an indictment is “possible but unlikely.” As of 2013, “senior law enforcement sources” told the Washington Post that no sealed indictment had been filed.

It’s as good a time as any for Assange to make his offer. He can find out whether the U.S. has indicted him. And if there is an indictment . . . well, if anyone is ever going to pardon Julian Assange, it would be Donald Trump, wouldn’t it?

And Hannity could give him the first triumphant post-pardon interview!

UPDATE: This post, drafted early this morning and scheduled to publish in the late morning, was…overtaken by events, to a large extent — events that occurred after it was written but before it was scheduled to publish. Assange now appears to be weaseling. (Hard to believe he might be dishonest!!!) More later, but I wanted to bookmark the weaseling over my lunch hour.

A Major First Amendment Case Will Be Argued Today at the Supreme Court

Filed under: General — Patterico @ 6:45 am

Can the United States government refuse to give you a governmental benefit because it thinks your speech disparages a group of people, or even a belief? That is the issue that will be argued this morning in the Supreme Court.

The Court will hear argument today in Lee v. Tam, a major First Amendment case. Michelle K. Lee, the Petitioner (who is appealing) is the Director of the United States Patent and Trademark Office (I’ll call them the USPTO in this post). Simon Shiao Tam, the respondent (defending the judgment below) is a member of The Slants, a rock group whose members are Asian. The group sought trademark protection for the name “The Slants” as an effort to “take back” the term, much as many black Americans have done with another racially ugly word. The USPTO denied the trademark, citing the disparagement clause of the Lanham Act.

The case has significance, not just for speech generally, but also for the Redskins trademark, which has also been rejected by the USPTO pursuant to the disparagement clause.

You can read the brief filed by the Respondent (the Slants) here. It presents the issue in this way:

The disparagement clause in section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), prohibits the registration of a trademark that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The question presented is whether the disparagement clause is contrary to the First Amendment.

The names on the brief include Eugene Volokh of the Volokh Conspiracy, and my own pro bono lawyer Ron Coleman, about whom more below.

The answer to the question presented to the Court should seem obvious. The central purpose of the First Amendment is to prevent the government from engaging in viewpoint discrimination — and viewpoint discrimination is precisely what the disparagement clause of the Lanham Act is all about. Sure, this may seem benign to some — who wants to see Asians or Native Americans disparaged? But it’s not benign, at all. First of all, this provision would allow the term “Scientology” to be approved as a trademark, while anti-Scientology trademarks could be rejected. When the government puts its imprimatur on the trademark of a cult, but refuses one to people who seek to expose the cult, that is not benign. But in addition, it’s simply not the business of government to be doling out privileges, or refusing them, based on the viewpoint of the people seeking the privilege.

We should get a sense today of how the justices feel. I’m cautiously optimistic.

A side note: today’s oral argument will be heard by eight justices, not nine. Donald Trump is two days from his inauguration, and while he has been meeting with potential replacements for Supreme Court nominees, he has not yet chosen one. This raises the issue whether Trump’s new justice, who is likely to be confirmed before this case is decided, could participate in the decision, even though he or she will not have participated in the arguments. A January 12 piece in the American Bar Association Journal notes that, in the past, cases have been decided only by justices who participated in oral argument. This is a matter of tradition, not law, and it could be broken:

The new justice could rule after reading briefs and listening to the oral arguments. But, in the past, new justices have ruled in argued cases only when they are reargued.

One of the experts who spoke with Supreme Court Brief is William Suter, the former clerk of the Supreme Court. “I know of no statute or rule that would prohibit a new justice from participating in such a case,” he said.

Suter nonetheless had misgivings about a new justice deciding cases already argued. “I think the ‘common sense rule’ would be that a new justice would not participate,” he told Supreme Court Brief. “It would look fishy, especially if the newbie voted with the majority in a 5-4 decision.”

The article notes that the Supreme Court has not scheduled arguments in some cases that usually would have been argued at this point. The court appears to be waiting for a new justice who might prevent a 4-4 split.

This tends to suggest that the Slants case is considered by the existing justices to be one of the less controversial cases on the docket. I hope so, and cautiously expect that to be the case. While I do not want to jinx Ron Coleman (one of the lawyers for the Slants), it would not surprise me to see a lopsided vote striking down the disparagement provision, such as 8-0, or 7-1. But we should know much, much more after today’s oral argument. Many of the justices tend to signal strongly in oral argument how they will vote. Time permitting, I’ll provide an analysis of the oral argument as soon as I can get to it.

Finally, three cheers for Ron Coleman. In 2015, he became a partner this year at Archer & Greiner, a firm which has definitely had its profile elevated by virtue of Ron’s involvement in the Slants case — and I know they appreciate him for that. In addition to his work for The Slants and in running the Likelihood of Confusion blog, Ron, along with the excellent and reliable Bruce Godfrey of Jezic & Moyse LLC, is still defending me in a censorious lawsuit brought by convicted bomber and perjurer Brett Kimberlin. Not to mention that Ron — along with Kenneth P. White of Brown White & Osborn LLP and the essential Popehat blog — achieved an excellent result from me in another silly case in which I was sued, in which the plaintiff dismissed the claims without getting a cent or any other concession from me.

All three of these gentlemen are excellent lawyers, and they work for pay in addition to their copious and admirable pro bono work. Please keep them in mind.

[Cross-posted at RedState.]

Liberty Classroom Contest Winner

Filed under: General — Patterico @ 12:01 am

We have a winner in the Liberty Classroom contest I ran last Black Friday weekend: Jim B.

Jim wins a year of Amazon Prime, on me.

I have sent him an email but have not heard back yet. Hopefully this post helps bring his good fortune to his attention!


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