Author Patricia Cornwell knows the boons and banes of success, enjoying multi-million book advances and battling lawsuits and stalkers. The Boston Globe has an article today about her troubles with Leslie R. Sachs who, since 2000, “has been filling websites with a relentless stream of vitriolic accusations against Cornwell . . .” I won’t repeat Sachs’s paranoid accusations, which The Globe article recounts. My interest is in Cornwell’s defamation suit against Sachs, specifically in the federal court order she obtained this week that requires Sachs to remove his attacks from the Internet. Enforcing this order reminds me of playing with the blobs of mercury my dentist gave me as a child (it was a more innocent age–I don’t think it was a plot to poison me): you push down in one spot and the blobs squish apart and reform elsewhere. Cornwell’s Boston counsel, Joan Lukey, has developed a smart strategy to address this problem. Rather than provoke the knee-jerk Internet response of spreading Sachs’s rants in response to what some would perceive as court-ordered censorship, Lukey is sowing an information campaign to dilute them:
Lukey intends to take [the court’s] order to Internet service providers and search engines, and ask them to put up a link, so a search that turns up Sachs’s allegations will automatically lead to the court order that found them to be false, rather than try to get them to remove Sachs’s pages from the search results. Already a Google search using “Patricia Cornwell” turns up news stories and blog comments reflecting her side of the battle.
I just performed a Google search for “Patricia Cornwell.” As of this writing Wikipedia, the second result, is the sole hit in the top ten to mention Cornwell’s libel suit against Sachs. (Sachs has tried to rewrite Cornwell’s Wikipedia biography only to be have his revisions undone.) References to Cornwell’s defamation suit show up among the next ten links. No doubt Cornwell would like higher search placement but the court order has only been in effect since yesterday. I’ll compare the results in a few days.
A decade ago a common belief was that the Internet would inevitably free societies from governmental regulation, John Perry Barlow’s “weary giants of flesh and steel.” Times change. In chapter 6 of Who Controls the Internet? Jack Goldsmith and Tim Wu describe how China has created what is, in essence, a national intranet, “an Internet that is free enough to support and maintain the world’s fastest-growing economy, and yet closed enough to tamp down political threats to its monopoly on power.” A network that provides market-sensitive information on German fixed-income rate fluctuations and bars information on Falun Gong is not supposed to be possible, information wanting to be free* and all that, but there you have it. Perhaps the tensions inherent in such a network are irresistibly fatal, yet meanwhile China continues to pursue information-control duality. It was widely-reported this week that China has barred licensing of new Internet cafes for the rest of the year to allow investigation of existing cafes’ compliance with licensing and customer-registration requirements and to “clean up ‘Internet culture.'”
*If Wikipedia is an appropriate source for anything, it is for a cyberworld quotation such as this.
A lone pine leaning over water is an iconic lake-country image. I’ve been fortunate to enjoy my own leaning pine. I’ve admired it from the dock, napped in a hammock shaded by its spreading boughs, used it as landmark when kayaking, and swum beneath it every summer morning, a standard to measure my progress across the cove. My wife would ask “aren’t you worried about that tree falling on you while you swim?” “Naah” I would reply. Sometimes during my swims I would quicken my strokes when I glanced at its bulk and long, thick body-piercing branches, but I was not truly concerned. I was prudent. I knew it would fall sometime, probably in an ice storm or high wind.
In the calm, quiet weather last Friday night or early Saturday morning it fell. There was no wind, no rain, no ice, no nothing. It just fell. I didn’t hear it. Standing on the dock I turned my head and there it was, prone in the water.
Before Saturday I dreaded the clean-up it fall would entail. Now that it’s in the water I kind of like it. It’s stable, for now, its shattered trunk attached to the lake bank and its limbs bracing it against the lake bottom. I’ve removed most of the branches above the water and can walk to its tip. Sawing the branches I saw an 18″ smallmouth bass swim beneath. A short while later a turtle rose from the lake bottom, stuck its head from the water, and eyed me. The critters seem to like it. Who am I to disagree?
Yesterday the Second Circuit issued a 2-1 decision in Fox Television et al v FCC, holding “that the FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” The fleeting expletives–what a great term!*–at issue were:
- Cher’s statement at the 2002 Billboard Music Awards: “People have been telling me I’m on the way out every year, right? So fuck ‘em.”
- Nicole Richie’s statement at the 2003 Billboard Music Awards: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
- Characters on NYPD Blue saying “bullshit,” “dick,” and “dickhead,” and
- A bounced Survivor contestant referring in an interview on The Early Show to a fellow contestant as a “bullshitter.”
The case arose when Fox sought review of the FCC’s intent to sanction Fox for the Billboard Music Award incidents. The proposed sanctions reflected what the majority considered to be “a significant departure from positions previously taken by the agency and relied on by he broadcast industry.” The court vacated the FCC’s order and remanded the matter to the commission for further proceedings.
The court’s Administrative Procedure Act analysis focused on the FCC’s inability to explain its evolving policy regarding fleeting expletives–expletives that are accidental, spontaneous, or isolated as contrasted with expletives that stroll in leisurely, take off their coat, pull up a chair, and stay for dinner. The court took the FCC to task for the inconsistency of its new policy, treating fleeting expletives uttered during bona fide news broadcasts as not indecent or profane. That an interview with a former Survivor contestant on The Early Show is considered to have occurred during a bona fide news broadcast should make Edward R. Murrow rise from his grave in righteous indignation, but I digress. The court also noted that the FCC’s policy fails to distinguish between literal use of expletives to refer to sexual or excretory functions and non-literal use such as Bono’s exclamation that winning a Golden Globe award is “really, really fucking brilliant.” Amusingly the court reinforces the point about non-literal usage by citing “President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to ‘get Syria to get Hezbollah to stop doing this shit’ and Vice President Cheney’s widely-reported ‘Fuck yourself’ comment to Senator Patrick Leahy on the floor of the U.S. Senate.”
While not deciding them the court nodded to the Constitutional issues raised in the briefs and at oral arguments, stating “we are skeptical that the Commission can provide a reasoned explanation for its “fleeting expletive” regime that would pass constitutional muster” and warning the FCC that, on remand, it cannot merely articulate reasons for its new policy regarding fleeting expletives without modifying the policy to take the court’s analysis into account. The Second Circuit expects the FCC to litigate the matter further.
FCC Chairman Kevin Martin’s 635-word press release criticizing the Second Circuit decision uses “fuck” or a variation six times and “shit” four times, achieving an impressive 1:63.5 expletive-to-benign ratio. In other words, the Chairman is really f***ing s***ting bricks.
*Is a “flying fuck” an example of a fleeting expletive?
As reported in The New York Times a study conducted by psychologists at the University of Chicago, the University of Colorado (Boulder), and the Denver Police Department reports that police officers have a greater ability than civilians to set aside racial bias when deciding whether to fire on potentially armed suspects. Participants pushed a button to either shoot or hold fire in response to rapidly viewing 50 threatening video images of men, half of them black and half of them white, each shown once carrying a weapon and again carrying something non-threatening. Response times showed the effects of racial stereotyping: “[b]oth officers and civilians took 10 to 20 milliseconds longer to make a decision when they saw either an unarmed black man, or an armed white man, compared to the other images. This tiny twitch of time reflects the cultural expectation that it is black men who are more likely to have a gun, experts say, and some studies suggest that blacks as well as whites are susceptible to it.” When pushing the “shoot” button the police officers, however, disregarded race, firing at about 13% of both unarmed black men and unarmed white men. Civilians shot at about 35% of unarmed black men and 29% of unarmed white men. The researchers ran the trial again and reached the same results, concluding that police are “less trigger-happy” than the public at large. The test did not take into account all of the factors that go into a police officer pulling the trigger, such as the effect of a hostile crowd or the influence of other police officers, but one doubts that untrained civilians would resist those forces better than police officers.
These findings bear on the recent posts about the Second Amendment (here, here, and here). Police officers shot the wrong person 13% of the time in laboratory conditions. Pro-gun forces presented the Virginia Tech shootings as an illustration why more citizens should carry weapons. The study suggests that, given the opportunity to shoot, armed civilians would injure or kill two to three times as many unarmed persons as do the police. In a situation requiring an armed civilian to make a split-second decision to fire, an unarmed black man faces better than a 1-in-3 chance of being shot. Unarmed white men fare only somewhat-less-fatal odds.