Naked Politics

My least favorite law school class was Constitutional Law because, as I posited over a decade ago, "[a]ll that counts is what five out of nine middle-aged-to-elderly judges think."  What is constitutional one day might not be the next, simply because a president swapped in a new judge.  Similarly, what is constitutional one day might not be the next, simply because five of nine elderly judges want a different outcome.

For example, in 303 Creative LLC et al. v. Elensis et al., the Supreme Court held that a website designer does not have to design a website for a gay wedding when the designer believes that gay marriage is a sin and abetting the wedding would run counter to her Christian faith.  Writing for the majority, Justice Gorsuch observed:

Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait. Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. 

I understand what he's saying with these hypotheticals.  But does this also mean that a racist White person can refuse to make a website for an interracial wedding, effectively refusing to provide services to a Black person?  Justice Gorsuch refers to "all manner of artists"--how far does that extend?  Does the work of high-end chefs constitute art, and if so, can they refuse to provide their food to classes of people they don't like?  In other words, could a racist chef refuse to serve their food to Latinos?

Justice Sotomayor points to all of this and more in her dissent.  But the law of the land today appears to say, on First Amendment free speech grounds, that you can't force a business owner to provide "artistic" services to customers if the business owner does not agree with the content of the artistic work product.  I don't know how to reconcile that with discrimination.

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In another recent case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court held that public and private universities cannot consider race during the admissions process.  The Court pointed to the Equal Protection Clause of the Fourteenth Amendment and said that this affirmative action process was discriminatory.  Chief Justice Roberts's majority opinion interestingly says:

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.

That's weird.  I never worked in a college admissions office, but I assume that no one other than the admissions staff reads the essays.  No one knows what any particular essay says other than the applicant and whoever reads it.  How can anyone police essay review?  Does this mean that applicants can't address their race in their essay unless they discuss "discrimination, inspiration, or otherwise"?  What does that mean?  And most importantly, doesn't this limit what the applicant can say in their essay--doesn't this restrain the applicant's speech?

Maybe not.  Perhaps the applicants can write whatever they want and it's up to the admissions staff to ignore inappropriate sentences.  But does forcing the admissions office to ignore those sentences effectively curtail the applicant's free speech?  What good is free speech if the audience isn't allowed to consider it?

More succinctly, I think Con Law is bullshit.  Sometimes free speech trumps anti-discriminatory laws, while other times anti-discriminatory laws can limit free speech.  When and how the rules apply depends on how nine old people in DC feel about the matter at hand and the outcome they desire.  Mitch McConnell's gaming of the Supreme Court confirmation process got us these decisions.  No matter what you may hear, the Supreme Court is a nakedly political body.  And as much as I approve of naked bodies, we don't need any at 1 First Street.

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The Wisdom of Barbers Redux: Fox is Toast

I've written about the wisdom of barbers before when, after getting a haircut in August 2020, I opined that covid-19 "will soon run its course, turning into nothing more than a relatively routine but life-threatening infection like measles.  I predict this will happen around mid-October."  I was maybe a year too early with that prediction but that's where I think we are.

I got a haircut on Friday at that same barbershop and when I walked in the older guy, Johnny Cap, was vigorously holding forth about the Fox News defamation suit.  He read the texts and emails and was (and still is) livid that Fox reporters knowingly lied about election fraud.  He was all-in on Trump until January 6, now he's all-out.  After completing several tours of duty in the Middle East as a Marine mortarman, his son is now a National Guardsman and was deployed to the Capitol for something like two months after the riot.  Suffice it to say that blood is thicker than spray-tan, and he's pissed that Trump and his supporters ginned up a bunch of nonsense that put his son in harm's way.  Sort of like W and his supporters did--I sense a pattern here but that's something for a different post.

John is now of the view that you can't trust the news because it's all entertainment.  He parenthetically carved out the local news from that conclusion, "but that's all car accidents and murders."

This is a long-winded way of saying that we've reached a tipping point.  If Johnny Cap turned against Fox then a lot of other people have too.  Fox is toast.

For the sake of completeness, you can review the Delaware (that's where Dominion sued Fox) civil pattern jury instructions here.  I already did this so you don't have to.  Here's what the jury will be told about defamation:

Defamation is a communication that tends to injure a person's "reputation" in the ordinary sense of that word; that is, some statement or action that diminishes the esteem, respect, goodwill, or confidence in which the person is held and tends to cause bad feelings or opinions about the person.  Defamation necessarily involves the idea of disgrace.  In this sense, a communication is defamatory if it tends to lower the person in the estimation of the community or if it deters third parties from associating or dealing with the person defamed.

But defamation occurs only when the defamatory information is communicated to someone other than the person to whom it refers.  In the law, this is known as "publication."

Del. P.J.I. Civ. § 11.1.  Dominion's reputation absolutely suffered based on Fox's coverage.  I'm also willing to wager that a lot of municipalities don't want to do business with Dominion because (1) they believe that Dominion machines are rigged, or (2) they don't want to deal with constituents who believe that Dominion machines are rigged.  Looks like defamation to me.

Here's how the jury will be instructed about "the truth" as a defense to defamation:

It is an absolute defense to a claim of defamation that the alleged defamatory statements were substantially true at the time the statements were made.  Thus, even if you find that [defendant's name] made defamatory statements about [plaintiff's name] that proximately caused [him/her/it] injury, you cannot award damages if you find that the statements were substantially true.

The alleged defamatory statements don't have to be absolutely true for [defendant's name] to successfully assert this defense.  Substantially true statements are not defamatory.  To determine if a statement is substantially true, you must determine if the alleged defamation was no more damaging to [plaintiff's name]'s reputation than an absolutely true statement would have been.  In other words, if the "gist" or "sting" of the allegedly defamatory statement produces the same effect in the mind of the recipient as the precise truth would have produced, then the statement is "substantially true" and you cannot award damages to [plaintiff's name] for the statement.

To prevail on this defense, [defendant's name] bears the burden of proving by a preponderance of the evidence that the alleged defamatory statements were true or substantially true.

Del. P.J.I. Civ. § 11.12.  I think it's pretty clear that Dominion's voting machines did not flip votes to Biden; Hugo Chavez wasn't involved either.  Chris Krebs told us that.

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So what does Dominion have to prove to beat Fox?  I think they qualify as a "public figure" so it's a relatively high bar:

[Plaintiff's name] has the burden of proving by a preponderance of the evidence facts necessary to establish each of the following elements of [his/her/its] claim:  

(1) that [defendant's name] defamed [him/her/it]; 

(2) that [defendant's name] published the defamatory matter; 

(3) that [defendant's name] intentionally or recklessly failed to determine the truth of the defamatory matter; and 

(4) that the publication of the defamatory matter caused injury to [plaintiff's name].

Del. P.J.I. Civ. § 11.7.  We established a defamatory statement above, that's element 1.  And we have publication--Fox news said it over and over on TV, that's element 2.  

For element 3, Fox knew these statements were untrue.  For example, Sean Hannity said "that whole narrative that Sidney [Powell] was pushing.  I did not believe it for one second."  Dana Perino said this story was "total bs," "insane," and "nonsense;" much like most people, she also pondered "Where the hell did they even get this Venezuela tie to dominion? I mean wtf?"  Even Rupert Murdock said "It’s been suggested our prime time three should independently or together say something like ‘the election is over and Joe Biden won,’” and that such a statement “would go a long way to stop the Trump myth that the election [was] stolen.”

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As to injury, the fourth element, Dominion notes that "Where a defendant's statements are per se defamatory, the plaintiff need not prove damages to establish liability Instead, in per se defamation cases, 'injury is assumed.'" Celle v. Filipino Rep. Enterprises Inc., 209 F.3d 163, 179 (2d Cir. 2000).  A statement is per se defamatory "if it (1) charges the plaintiff with a serious crime; [or] (2) tends to injure the plaintiff in her or his trade, business or profession." Kasavana v. Vela, 172 AD3d 1042, 1044 (2d Dept. 2019).  I suspect Dominion can show that they lost contracts which would establish prong 2 (and damages).  Election fraud is, of course, a serious crime.  So we can check off element 4 as well.

Whether you go with a seat-of-the-pants/man-on-the-street hot take or a reasoned review of the legal standards, Fox is screwed.  Fake news indeed.

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Say, That's Not Peter Cetera

Summertime is here again, our just about, and with that comes a bevy of music festivals, countrywide rock tours, and summer shows in each of the gheorghies' respective homelands.  I implore you people: go out and take in some live music, then blog about it at GTB.  I love to read about what you guys are listening to and the shows you see.

Some of you ask: what shows are out there?

Go here:  Pollstar.  Individual band pages are worthy but take longer to sift through.  Other sites exist and are fine (Bandsintown, JamBase, etc.) But Pollstar has been my go-to for a long time, and you can search by city, venue, or band quickly and easily.

So, what should these good people see?

Whatever you want! And if what you want is to see a big-name act that costs more than it should and you're stuck in row YY or at the back of the lawn and you're watching the band on a screen and they look like Fisher-Price figures, at the very least... at the very least... they should be the band you intended to see.

What the hell does that mean, Whitney?

Okay, forgive the rant, but there is a growing trend I'm seeing wherein older bands of prior popularity are touring the globe with a hodgepodge of musicians who were not a part of the original incarnation of the band.  Sometimes those stand-ins have replaced vital elements without whom, this really isn't the same band, now is it? But you see no asterisks or disclaimers.  And it's crap.

Obviously, things happen in the course of the life of a musical act.  People die.  People fight and leave.  People go solo.  People just get tired.

Obviously, there are some slots in the roster of a given band that could be filled by just about anyone.  For Random Idiots, that was 2nd pots/pans player.  Scott MacDonald took Jason Elliott's spot there for "Dr. Seuss" because Elliott was on the john or talking to his girlfriend or something.  Nothing was lost, and the rest is history, of sorts.

But when either the role that is replaced is a major one, or the talent that is lost is formative and foundational to the band, please don't ask the listening audience to just nod along like it's the same ol' same ol'.  It's not.

Lead singers are tough to replace, fair or not.  When Brian Johnson replaced Bon Scott, AC/DC recorded an amazing classic album's worth of material before hitting the road.  A quick switch of Brian as Bon just wouldn't have worked. Talking Heads cannot continue without David Byrne. It would rob the public of what they paid to expect.  Say what you will about Dead and Company, but at least they aren't out there peddling the name Grateful Dead without Jerry.  Without John Fogerty, the rest of the dudes took to Creedence Clearwater Revisited. It's about truth in advertising.



Here we go.  I've taken the liberty of doing some work for you. I'm taking a look at the landscape of summer tours and letting you know which are the real deals, which are close enough, and which are pale facsimiles for which you should be paying knock-off prices.

To preface this, I include an interview from Derek Trucks after Gregg Allman died. Keep an eye out for the subtle dig:

Trucks closed the book on the Allman Brothers Band forever after the deaths of both Allman and his uncle, who died in January. "You can't have an Allman Brothers gig without an Allman brother," Trucks said. "I've heard people try to argue that you can, but I'm not buying it. If [late band co-founder] Duane [Allman]'s not there, Gregg certainly better be there. There are a few bands out there right now that are using names that maybe shouldn't be. That's another discussion." 

This is that discussion.  Here goes.

Lynyrd Skynyrd
Hey, boys, if your ears were ringing, it's because you are the A#1 band out there that's using a name you maybe shouldn't be.  Ronnie Van Zant and Steve and Cassie Gaines died in one of rock's greatest tragedies. Ronnie's voice and lyrics were at the core of every Skynyrd song. After a 10-year hiatus, a handful of the survivors reformed as Lynyrd Skynyrd.  Maybe shouldn't have. Ronnie's little brother Johnny has manned the mic since. Through the years, original members have faded to the point where it's only guitarist Gary Rossington left.  Admire the perseverance, but it's not Skynyrd and if even one unknowing ticket-buyer thinks they're getting the original... hell, maybe they deserve what they get at this point. Anyway...  Verdict: Cover Band.

Fleetwood Mac
Last month the band announced that Lindsey Buckingham was no longer a part of the band. Okay, so the band has had numerous lineup shifts throughout its 50-year career, and maybe you were big fans of the Peter Green or Bob Welch eras of the band with hits like "Black Magic Woman" and "Albatross." You weren't. The core lineup since' 75 of Fleetwood/McVie x 2/Buckingham/Nicks was a hit machine for a brief moment, and they are a terrific live act to see.  But Buckingham is a living genius and the heart of too many of those hits. He and Nicks left the band in the late 80's, and the number of people that attended Mac shows without them you could fit on a single school bus.  And they were disappointed.  Stevie is there, but without Lindsey, leave it be.  Verdict: Not the Same.

Weezer
Their songs have faded into dreck, but I've seen Rivers Cuomo and Co. in recent years. Still good, 3/4 intact, and Cuomo is most everything to Weezer. Verdict: Good to Go.

Pixies
Pixies were a band most (included me) missed seeing in their original stint ('87-'92).  I did catch them when they reformed in 2004, and they were great.  Black Francis still leads the band around the country, (now with Weezer in tow) but there's one problem.  Kim Deal left the band 5 years ago this week.  There's a reason the Dandy Warhols sang "Cool as Kim Deal." Her voice, her bass, her cool.  An irreparable divot. Verdict: Not the Same.

Steely Dan
A two man classic.  Fagen and Becker.  Becker and Fagen. Walter Becker died in September. To tour again as the Dan without him there?  Verdict: Eat Bat Prick

Guns N' Roses
It's simple.  Axl, Slash, and Duff is good enough.  Axl and Buckethead and whoever else? You're crazy. They have the core together right now, so go see 'em before they implode again. Verdict: Good to Go.

Eagles
A strong assemblage of talent from their earliest days, but Henley and Frey were at the center.  Minus Glenn Frey, the best days of the Eagles are already gone. Verdict: Not the Same.

Stone Temple Pilots
Name someone in this band beyond Scott Weiland.  He died. Verdict: Not the Same.

Alice in Chains
I grant you, you can likely name Jerry Cantrell.  But Layne Staley meant too much to the band.  Verdict: Not the Same.

Styx
Tommy Shaw and a couple of others are in.  Dennis DeYoung and Mr. Roboto are out. Verdict: Not the Same, but do any of you guys really give a crap?

ZZ Top
All present and accounted for, sir.  Verdict: Good to go.

Def Leppard
Lead guitarist Steve Clark died of alcohol poisoning when the elder gheorgies (excepting Monsignor KQ) were in college poisoning themselves with alcohol, and Rick Allen is missing an arm, but otherwise they're the same.  Verdict: Close enough.

Journey
Wow, this one is interesting.  Dude, if you love Journey, and more people than ever seem to, go see Arnel Pineda. The sound is extraordinarily similar, and Steve Perry ain't walking back through that door. Verdict: Good to go.

The Who
Keith Moon died 40 years ago.  The Ox 16 years ago.  Daltrey and Townshend are all-timers among all-timers and worthy, though.  Verdict: Legit.

Little Feat
Lowell George 1945-1979.  Enough said.  Verdict: Cover Band.

The English Beat
Dave Wakeling is still the voice, and that counts for a lot. Verdict: Good enough.

Cheap Trick
Amazingly, mostly intact. Touring with "Skynyrd." More authentic. Verdict: Good to go.

Foghat
Also touring with "Skynyrd" this summer. Only the drummer from the original lineup. Verdict: Cover Band.

Violent Femmes
2/3 together. Vitally importantly -- with Gordon Gano.  Verdict: Good to go.

Phish
Simple.  They are still the same dudes.   Verdict: Good to go.

Chicago
Rob's first concert featured Peter Cetera and the gang. Now it's just the gang. Verdict: Not the same.

REO Speedwagon
Mostly still together, Kevin Cronin still singing. Roll with the non-changes. Verdict: Good to go.

Steel Pulse
David Hinds and Selwyn Brown and a newer crew. Get behind me Satan. Verdict: Good enough.

The Wailers
Debatable, a pale imitation of their former leader, but at least Family Man Barrett is there.  Verdict: Eh.

U2
Just kidding. Some things never change. Verdict: Duh. Good to go.

10,000 Maniacs
Natalie Merchant left during the Clinton administration. Verdict: Not even close.

Barenaked Ladies
Steven Page left in 2009.  Sang most of their best songs. Verdict: Not the Same.

Pearl Jam
Locked and loaded with most of the original crew.  Verdict: Good to go.

Yes
This one's for Mr. KQ. The roster rotates every few years. Steve Howe is pretty much the only original in the current iteration.  Verdict: No. (Sorry.)

The Cult
It was always Ian Astbury and Billy Duffy.  Still is. Verdict: Good to go.

Squeeze
Same with Squeeze: Chris Difford and Glenn Tilbrook.  Verdict: Good to go.

Dave Matthews Band
You know what's odd?  Dave is obviously still there, but with LeRoi passed on and Boyd now out (in lots of ways), is it the same experience? Verdict: Debatable.

INXS, AC/DC, and REM aren't doing this any more, but they were never the same after losing members of the band and now they are all kaput.

If you're at the State Fair and see "Quiet Riot" or "Thin Lizzy" playing, keep in mind that there are no original members in either band.

And Michael McDonald is... out of the Doobies.

Oh, one last one.

The Beach Boys
A few years back, I took my daughters to see them when Brian and Al joined #1 d-bag Mike Love for the 50th reunion tour.  It was great.  Soon thereafter, of course, it fell apart again, and now it's back to just Mike and not-quite-original-but-close Bruce Johnston and others (not John Stamos). This is bullshit of the highest order, as Mike Love continues to sue for the right to be the only Beach Boy in The Beach Boys™. Honestly, people. Verdict: Bad cover band.  Don't do it.


Be forewarned, and don't be afraid to write into Dear Gheorghe with questions about a band coming to your town.

That's Bullshit

Now that I've listened to all seven episodes of Shit Town, I'm seeking new auditory distraction for my workouts. In the course of my searching, I came across the college course that we all dreamed of taking, one that seems perfectly matched to our stupid fucking era.

INFO 198/BIOL 106B is being offered this quarter at The University of Washington, taught by Carl Bergstrom and Jevin West. You'll know it by its title, 'Calling Bullshit in the Age of Big Data'. You'll appreciate the synopsis, "Our world is saturated with bullshit. Learn to detect and defuse it." And once you've read the Learning Objectives, you'll find yourself trying to figure out how to audit the course online:

Our learning objectives are straightforward. After taking the course, you should be able to:

• Remain vigilant for bullshit contaminating your information diet.
• Recognize said bullshit whenever and wherever you encounter it.
• Figure out for yourself precisely why a particular bit of bullshit is bullshit.
• Provide a statistician or fellow scientist with a technical explanation of why a claim is bullshit.
• Provide your crystals-and-homeopathy aunt or casually racist uncle with an accessible and persuasive explanation of why a claim is bullshit.

We will be astonished if these skills do not turn out to be among the most useful and most broadly applicable of those that you acquire during the course of your college education.

The course just entered its seventh week, the focus shifting from a baseline understanding of forms of bullshit to more straightforward academic treatment of big data and statistical analysis. You can find the course lectures online here.

This course should be required for every American before he or she is eligible to vote, paired with Clay Johnson's The Information Diet: A Case for Conscious Consumption and Tom Nichols' The Death of Expertise. (The latter's op-ed this week in USA Today, headlined, 'Are Trump Voters Ruining America for the All of Us', set off a gloriously amusing shitstorm on his Twitter feed. That he's a public conservative intellectual didn't stop Pepe and the Nazis from pulling out the 'libtard Hillary-lover' card.)

Bergstrom and West are serious academics, and take pains in the course FAQ to explain that, despite the catchy name, this course isn't a joke. In it, they note,

"As we explain on our home page, we feel that the world has become over-saturated with bullshit and we're sick of it. However modest, this course is our attempt to fight back.

We have a civic motivation as well. It's not a matter of left- or right-wing ideology; both sides of the aisle have proven themselves facile at creating and spreading bullshit. Rather (and at the risk of grandiose language) adequate bullshit detection strikes us as essential to the survival of liberal democracy. Democracy has always relied on a critically-thinking electorate, but never has this been more important than in the current age of false news and international interference in the electoral process via propaganda disseminated over social media."

We here at G:TB are facile at creating and spreading dipshittery, but our unique brand of bullshit isn't dangerous. Much appreciation to the good professors for doing their part to stop that which is.