I Posted This Yesterday. Pulled it Down an Hour Later After Doing Some Deeper Research. And I Have Finally Found The Pleading.

(Not that I give a rip for Internet conventions. But I will acknowledge my error and correct the thing, at the end. With my explanation. Now here goes the repost of what I put up yesterday.)



Con law is her gig, and hell. Closest I get to dealing with actual legal issues lately is the procedural rules regarding discovery. Well, I am . . . what's the word for reverse exaggerating? But still. Point is, I haven't had to do constitutional analysis for years and years. So when I saw Ann Althouse's flip dismissal of the substantive challenge to the Wisconsin union busting law, I thought to check it out first, before accusing her of putting her politics above her education and profession. So I get to say . . . gotcha!

Yes, there's no suspect class here, with Wisconsin discriminating against one group of state workers by job classification, vs others (but that might be hard to defend on a truly rational basis. Particularly when the facts support political payback/vendetta. Nothing rational there.) But beyond that, the lawsuit is not only based on Equal Protection. They are claiming violation of First Amendment rights too. Freedom of association, and all that. So . . .


"A law attacked on equal protection grounds will be upheld if it survives rational basis review, unless the classification is drawn along suspect lines or infringes the exercise of fundamental constitutional rights, in which case it must survive heightened judicial scrutiny. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993); Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)."

City of Indianapolis, et al v. Armour, et al, No. 49S02-1007-CV-402, ___ N.E.2d ___ (Ind., May 10, 2011).

And never forget the obvious. No matter what Walker says about the why of it, that he was deliberately going after the collective bargaining rights of only some of the workers, that was exactly what he was doing. He was going after the (First Amendment) collective bargaining rights of some of the state workers.

I don't want to go too far out here. Based on what she posts on her blog and her performances she has made on Bloggingheads.tv, I know she has that annoying habit of talking about shit without doing the minimal level of work. Here, I think she just relied on a bad article that missed mention of the First Amendment Claim. But ya know? The First Amendment Claim is sort of a no brainer. Particularly when the person making the mistake preaches that "Culture of Free Speech," nonsense, guessing about the First Amendment Claim should be easy as pie. After all, collective bargaining is about the right a bunch of individuals to collective speech.

Either way, it's very embarrassing.

Well, at least we will finally get to the merits of the case.


(Update and acknowledgement of my errors.)

Honestly, I had been looking for the complaint, yesterday, and did not find it until early Friday morning. At least the one AFSCME site I visited did not have it up, and the District Court has a stingy website. Without a PACER account, you aren't getting much info on the docket, what not.

And as it turned out, I was not totally sure about collective bargaining being proper grounds for claiming a fundamental right. And it turns out the current case law says no, it isn't, but right of association is. So they pass the giggle test there. But the Fed Courts are doing something of a tap dance about where freedom of association ends and collective bargaining begins. But the drafters of the complaint found a clever way to avoid that shit. Yes, the complaint's cause of action under the First Amendment mentions association, but also claims that the unions' (and by logical inclusion, the membership's) political speech rights are being impaired in an unconstitutional way.

From the complaint:

"92. As set out above, unions may lawfully expend membership dues, and all of the plaintiff unions here do expend such union dues, on political advocacy and other forms of expression protected by the First Amendment of the United States Constitution. Where a union is able to secure an agreement with the employer to permit the union to collect dues on behalf of members who authorize payroll deduction or dues check-off, such an agreement facilitates the union’s ability to finance its lawful and protected political advocacy and speech."


Clever. I suggested first time, the core Equal Protection claim is based on Gov. Walker's obvious payback against his political detractors and reward to his political supporters. So this casting of the First Amendment claim is really quite a good way to not only pass the fundamental right requirement, but it really gets to the heart of Walker's intent. The unions he went after are the traditionally Democratic unions. So making this about political speech rights is not merely clever legal drafting, but it's really getting down to the core of the controversy. And what really is going on here is a group of people are being singled out and punished by the government for their political speech.

So I now do my limited mea culpa. I had the right idea, but guessed wrong about specifically which fundamental speech right was pleaded. Whoops! My bad. But it's still about speech.

Damn. I do wish I were working on this case. It's very interesting stuff.

Oh. And I was spot on in guessing they would argue that there was nothing rational (or legitimate) in stripping one class' bargaining rights and leaving intact the other's bargaining rights. And it really was a politically motivated thing.

But I won't spike the football. Low hanging fruit, all that.





The Complaint.

First Amendment Extremist Immature Insane Batshit Crazies

One of the weird little issues that have popped up collateral to the whole Wisconsin melt down (for lack of a better way to say it,) is that some professor in the State University System has been harassed by a FOIA request by some GOP hack legislators. They are after certain emails, designated by certain key words. They claim the right to do so under some open records law. Ok. The opposition seems to be relying on the fictional, childish, extremist free speech ideology, and as well, "academic freedom." What silly assed bullshit. That. The opposition.

My heart goes out to the professor. But he apparently never had "that" conversation with a good lawyer. One as good as me. As I will explain. Before I get to the part where I quote myself and my counsel, I'll give the preface.

I have worked as a contractor, sub contractor, temp for so many years, it is not funny. I remember working at this one shop for a spell. I was on a team that was processing mass tort claims. We lawyers had our own work stations, email, normal Internet access, and shared paralegals (really liked that part.) And not only did management make it's use policy clear, the IT crew were more blatant. One guy told me point blank, yes we do monitor the Internet use policy. And that was cool. Meaning, it was legal. Why? Anything done on the employer's equipment, on the employer's network was their business to pry into. Simple rule, Ain't it?

Fast forward to my time as a union/employment lawyer. I would give "the speech," often. I would give "the speech," at the drop of a dime, even if not in context of the consult. Short version of the speech? I have typed part of it already. "Anything done on the employer's equipment, on the employer's network was their business to pry into." I took it another step further. I would tell people,"Assume your boss reads each and every email you send on work place equipment." If I were being even more particular I might throw in, don't even use a personal net mail account. They have the right to fire your ass for that. So don't even do that.

But here's the thing some morons do not get, even if they should know better. Just about every employer above a certain size has the same core Internet policy. You are only supposed to use their network and equipment for work related reasons. And breaking that rule is grounds for being fired. More to the point, though, most places above a certain size make you sign an E-policy form where all that shit is laid out. So no one has any cause to whine here. Or in a similar circumstance.

This is not about free speech. It is not about academic freedom. It's work place/employment law. It might not be kind. But there nothing ambiguous about it.

Quickies. What do You Call Reverse (Geographically) China Syndrome?

Do you call it Toledo Syndrome? I don't have a globe here, and I am not up for the math. Wait. Let me google it. Ok. I got a little obsessed there, worked it out and if that reactor in Japan that has melted the floor of the plant keeps melting shit until it comes out the opposite side of the planet, I expect it to come out off shore of Argentina. So call it South Atlantic Syndrome?

Moving on. Donald Trump is full on racist opportunist mode, with his birther whoring. I always thought there was something fundamentally shitty about him. Now I am convinced beyond any doubt of that.

Bill O'Reilly can't see the forest for the trees, re Mrs. Palin. Yes, she appears weak in not talking to the REAL press, but I don't think her poll numbers are down on account of that. They are down because even with out real reporters asking her real questions, she still comes across as some ignorant, snowbilly who's maximum brain power is equal to a bucket of snot.

Oh, and speaking of insulting Mrs. Palin, it's not necessarily sexist to use really harsh insults in her specific direction. It might be mean and nasty and meant to sting, ya. But it is not an indictment or slur against all women to viciously insult her for being no smarter than a bucket of snot, in the harshest terms possible. (Bill Maher is a Jersey boy. Love us or hate us, we usually don't do passive aggressive insulting. We call out a ho as a ho! If we really go old school we use the pronunciation who-ah.)

Anything else? Herman Cain. Kudos Herman. You have just proven as a concrete fact that yes, blacks can be every bit a racist as white folk. It's just that you happen to be a black wing nut racist.

Lastly, touching on one of my pet peeve topics of late. Yes Andrew Breitbart. We are trying to shut you up. You make us sick. And as opposed to wing nuts, who seem to believe in some childish, warped, redneck outlaw, unsophisticated and all the fuck ways hypocritical view on non-governmental involved free speech, we hold some values higher than that. For example, I would say my right to tell you to shut the fuck up means more to me than your right to be an obnoxious liar and rat fucking GOP hack badly masquerading as a journalist. But that is my explicit way of saying it. The more general liberal way of saying it, is society has a right to protect itself from being violated by shit like you. If society does not have the right to set standards, there is no real civilization. There's just outlaw rednecks, stinking up the joint. And we don't need any more of that, fuck you very much. Ok. I'll end there.

Reviews Are In. Ya Suck. Don't Give Up Your Day Job.

(Usually I cross post from here, to my FB page. Today is ass backwards day. Yea. But I am adding to my remarks, there. Anyway . . .)

One of the non stories of the past couple weeks involved some ding bat blonde Cali Girl at UCLA who thought it would be appropriate (if not funny) to post an anti Asian rant on You Tube. It went viral, but not the the way she hoped.

Most Hated Blonde Chick in the USA (After Ann Coulter, likely.)

From the article:


"In a statement to the Daily Bruin campus newspaper, Alexandra Wallace said she has chosen to no longer attend classes at UCLA because of what she called "the harassment of my family, the publishing of my personal information, death threats and being ostracized from an entire community" in the wake of the three-minute video.

"In an attempt to produce a humorous YouTube video, I have offended the UCLA community and the entire Asian culture," Wallace said in the statement, her second apology of the week. "Especially in the wake of the ongoing disaster in Japan, I would do anything to take back my insensitive words. I could write apology letters all day and night, but I know they wouldn't erase the video from your memory, nor would they act to reverse my inappropriate action.""


Naturally, I did not even watch the video. Why ingest that poison? Why smell the thing you are already know stinks? But I love the outcome of this story -- except for the death threats. That's uncalled for. But let me break this down.

Ok. The chicklet in question claims she did that as an attempt at humor? Well honey. Here's the rule in comedy. If you dare to offend, you very well might offend. That's why comedians who have a bad set say they,"Died out there."

Reviews are in. Ya suck. Don't give up your day job.

Beyond that general rule of comedy, ya had to go for the racist joke? Ya had to go with that, not making fun of people like you, who look like you. You had to go all racist, ya know, you being a blonde white American, picking on any one else?

I repeat. Reviews are in honey. Ya suck. Don't give up your day job.

Beyond that, dismissing as bullshit your "attempt at humor" defense. All you did was give voice to a bundle of stereotyped, bigoted, anti Asian, racist sentiments. Let's be real.

That kinda shit used to pass for humor in the USA . . . . thirty years before you were born.

Here I am going further afield, and these are some of my pet peeve theories. And I am going to curse, more so for the joy in doing so, but hey, I am using them for the purpose of injecting some emotional emphasis to my words. Here goes.

Motherfuckers need to learn that speech ain't free. Speech has a price. At minimum, the price is you will be judged on the content and nature of your speech, and perhaps harshly.

Motherfuckers need to learn that if they are not already honing their stand up routine on the circuit, even if only at one local club, they should not think they are funny, no matter how many friends say they are. Never minding if one is a sorta fine looking Cali Blonde, and all the guys are kissing her back side, to get at the front side.

Motherfuckers need to know that if at the base line, any attempt to communicate any message has a built in risk factor, cracking jokes has a much greater risk factor.

Motherfuckers need to know that the do not have a right to be loved by The Masses. The Masses is a dangerous, fickle beastie. Trying to get love from that beastie will likely get you "killed," not in the literal sense, but in the metaphoric sense that comedians use to describe a bad turn on stage.

Motherfuckers need to know that the beastie knows as "The Masses" takes on a more vicious nature, in the virtual world of the Internet.

Motherfuckers need to learn they are not really good at some shit. Or more importantly, they need to know how much they suck.

Motherfuckers need to know that even if in this age, TV is dominated by untalented, insane, nasty, fucked up specimens of humanity, that unless and until they sign a contract with a production company, they are still just unfunny, untalented, nobodies.

You can try to launch your career on the Internet. But as someone who was a theatre major, finished the program and actually worked in the industry can say, most motherfuckers crash and burn. It was that way before the Internet, and it still is that way now.

Oh. and lastly, motherfuckers need to know that, call them race based jokes, or blatantly racist jokes. Playing with that shit is like juggling hand grenades. Don't be surprised if all you do is blow your own shit up. Or off. Metaphorically speaking, of course.

"Has Anyone Paid You Money to Tell Jokes? No?"

"Then take that as a clue."

By now, and particularly based on recent posts, ya'll should know I think that the right wing, idiotic, crazy shit, immature understanding of free speech is nothing but bullshit. With out checking if Ann Althouse is whining about this guy's basically being fired for a really nasty-bad joke, I will report on it, here and now.

Asshole fired for truly ugly joke about Lara Logan.


Just for the record, and in case you haven't heard yet, CBS Foreign Correspondent Lara Logan was brutally assaulted during the "celebrating" following the victory of the protesters in Egypt, there in Tahrir Square. And it was reported as being a sexual assault. And ass hole man basically lost his part time gig at NYU on account of the ugly joke about her, he twitted. (Ok, the proper usage might be twittered, but here, twitted seems a better fit.)

I, as a general matter, believe in accountability. I believe that one should own one's own shit. And if one posts some really ugly shitty joke on their twitter page, and offends people, they have to own that. If they lose respect, friends, and even gigs, based on the stupid shit they say, that is a perfect example of the world working as it should. Remember. Folk are free to say any ugly, stupid assed shit they wanna. And the rest of us are free to take offense and otherwise judge the asshole in question, and harshly, if that's our feeling at the moment.

I repeat: that is the world working as it should.

But regarding deliberate jokes, and not even dealing with the right wing, libertarian, childish view of "free speech," I am definitely a hard ass. That's based on my past life career in show biz. Now I never did stand up, but I did do some emcee work back in college. So I get to say I did get paid to tell jokes (among a lot of duties I had for that one gig.) And what I said there in the title and the first line of this post is the set up and punchline of a real life joke-remark I told to a friend of mine, back when we were in law school. He had a rare, if not odd sense of humor, and his jokes kept blowing up in his face. Instead of telling him flat out, stop that shit, I couched that message in vocational terms.

But if I am not being sensitive to people's feelings I tell them flat out. Go ahead. Ignore my advice. But firstly, you ain't that funny. But no matter what you think, no one else has to like you attempts at humor. Expect them to reject you. It's their right. Leave the joke telling to the professionals. And you are no where near that level.

Don't get me wrong. I'm not literally saying that the only people who can tell jokes are professionals. There are many gifted joke tellers out there. My ex, from years ago? She had a way with delivering some ordinary joke that made it even funnier. But she never wrote her own material. And that is were people tend to fuck it up. It really is not the telling the joke part that causes people to lose respect, and friends, and gigs. It's the really lame if not ugly jokes their warped little brains make up, that usually are the cause of the fuck up. And that leads to people judging them harshly, not so much for the delivery, but for the warped joke and the warped mind that thought that ugly shit was so funny.

Althouse Watch (this might become a semi recurring thing.)

Today's silly shit from Wisconsin's most famous blogger. She's bitching and moaning about a how a tenured law professor at Widener U. might get stripped of his tenure and fired, for (among other right wingy ass holey things) repeatedly using the Dean by name in hypos where she gets shot.


Talk about bullshit.

But I need to go to sidebar, here. The best gig I had was as a staff attorney for AFSCME. But I was not just a union lawyer. I was an employment lawyer. I would routinely tell my peeps to treat each and every email they sent through the state's servers as if they were being read by their bosses.

Seems like the asshole in question needed to hear and follow some similar advice, specifically assume your boss will hear about you making violent jokes about them in the workplace, eventually. I can not imagine any scenario where I would say it was ok for a worker to even joke about any sort of violence happening to their bosses. Same goes for co-workers. Tenure will only protect an asshole's ass, so far. And that is how it should be, people. There needs to be standards, and if someone can not tell the difference between engaging in "free academic speech," and breaching standard work place conduct limits respecting respecting co-workers and bosses, that asshole should not be in academia.

If you wanna have no fucking limits on what the fuck you say, say it on a fucking blog. And that doesn't mean you will never get judged (I am sure my lousy spelling, sloppy editing, and careless posting will bite me in the ass, eventually.) But tenure does not equal license to be a flaming ass.

More is the point. Tenure does not negate ordinary workplace law, rational judgment, and human decency.

Oh. And if I was not clear (and if you did not follow the link,) the asshole in question is a conservative. What the fuck is wrong with these conservatives who think that "free speech" as an idea negates being judged for one's deliberately violent, carelessly violent, or just plain stupid shit and/or bullshit? Where the fuck is it written that anyone gets a pass from being weighed, measured, and found lacking?

Quickies . . .

No, you wing nuts. It's not a double standard when Dems do not go bat shit when people insult Clarence Thomas. We don't like him!

No, you wing nuts. It's not invidious discrimination that causes the imbalance in higher ed academia. It's just that not only are liberal, Dem leaning people more likely to seek a career in academia (pay sucks, even if the benes are not bad.) But any political pov does not rise to the protected statuses, such as race, origin, sex/orientation. Nor should it.

(The presumption is political party is no more worthy of protection than being a "Real Housewives," fan.)


No, you wing nuts. All ideas and speech are not equal.

No, you wing nuts. You don't have a right to an audience.

No, you wing nuts. Right to free speech cuts both ways. If you say your stupid shit, expect to be called out on your stupid shit.

No, you wing nuts. The actual meanings (found in the dictionary) matter more than what you think the words should mean.

No, you wing nuts. If you use the words, don't be surprised if people take you to mean those words.

No, you wing nuts. Violent speech is violent, actually, even if you did not mean it literally.

No, you wing nuts. Believing in magical fixes is not a basis for governmental policy.

Lastly, no, you wing nuts. We know you all are full of bullshit. We know your message, as a whole, is nothing but bullshit. We are on to you. That is why we don't take what you think or say, as serious things. But we do know you tend to break the government when ever you get control of it. So we do know, you all might not be bright, but you all are dangerous.

The Impossibility of Not Covering Again, Old Ground.

I have had a certain thought in my head. And I would have posted about it (again) but there's the dilema. If I have not explored that idea here, in the past, I am sure I made the argument as what I would call a "throwaway." That's what I call it when I toss off/out the bare bones of the argument, while either bolstering a main line of attack, or otherwise going all shotgun/scatter shot about it.

Anyway, the thought in my head was how twisted the GOP is nowadays. It resembles more the traitors who made war against our great nation, back from 1861-1865, than the Republican Party that fought that war to preserve our Perpetual Union. Not a terribly original thought. But some days the noise level from them people just highlights that fact moreso, than other days.

Anyway, some other thing has been crashing around in my head. And that would be that silly argument Ann Althouse made in that bloggingheads.tv performance I linked, over the past few days. (Either way you are going to get something partially recycled from me, today.)Personally, I find that libertarian, Pollyanna view of non-judicial, extra legal, not constitutionally protected free speech, to be flat out childish. And at some point today, it occurred to me, that is not only merely bullshit (as I said last time visiting the subject,) but it is a logic loop of stupidity, to say it is anti free speech to express the idea that some people need to shut up (get off the TV, what ever) with the shit they spew.

Mind me. First you have the offensive shit spewer. They are engaging in "free speech." Then we have the critic who takes offense or otherwise rejects the first speaker. That's "free speech" too, even if the speech is,"For the love of all that is decent, shut the fuck up with that mindless shit!"

But now we have the libertarian, "free speech" extremist, bullshit child mind's "free speech." Perversely, they do essentially the very same thing speaker number two does, and that is deliver a message ,"You should not say what you did just there. STFU with that!" But oddly, if not hypocritically, they engage in the very same sort of (allegedly) anti free speech, at the very time they claim to be defending "free speech." It's as consistent a matching of ideology and behaviour as to be in the middle of the act of beating your dog with a pool cue, while waxing forth about the evils of animal cruelty.

Analogy aside, it's just plain stupid.

And no matter how much longer the the chain or argument goes on and on, we still have lots and lots of "free speech" flying around. But the perversity of criticizing some one's speech for their criticizing of an other's speech is just it's own level of bullshit.

And again, I am not a free speech extremist. I would rather see less pointless bullshit than more. And no kiddies. the mere fact you think you have a point doesn't mean you are not engaging in bullshit. The level of sincerity you show your thought is not even relevant. Well, I have to correct myself there. As Professor Frankfurt would say (spoiler alert) and as the last line of his book reads:

"Sincerity itself is bullshit."


Last thought. I have been stuck on the overlap between politics and linguistics and rhetoric for years. And I retreat to that meta level of analysis sometimes, just to avoid dealing with the same old partisan shit. And today is one of those days. (And it's not like it is worth it, every day at least, to actually spend my time deconstructing the bullshit arguments the other side makes. And makes. And makes. Talk about covering old ground, again!)