Martin Shkreli engaged in protected speech

Martin Shkreli, the CEO that so-called news organizations inappropriately refer to by the nickname “pharma bro”, recently had his bail revoked:

Shkreli, 34, was hauled off to the Brooklyn Metropolitan Correctional Center on Wednesday night after a judge revoked his bail over a Facebook posting that offered $5,000 to any follower who would grab a hair off Hillary Clinton’s head during her book tour.

The former pharmaceutical executive β€” who first came to national attention for hiking the price of a life-saving drug β€” insisted the posting was a joke. The judge, however, wasn’t laughing.

(To be clear, I don’t actually care that he has been nicknamed “pharma bro”. I just think it’s dumb that allegedly professional news organizations have taken to actually using that moniker.)

Here’s Shkreli’s Facebook post:

Shkreli

This is what is immediately clear about that post. 1) It has absurd premises. 2) His offer is absurd. 3) It was posted to his Facebook page, which is run for the sake of being absurd and/or trolling.

None of those things were taken into account by Judge Kiyo Matsumoto. Furthermore, she failed to take into account any of Brandenburg. As a result, she made this incorrect and irresponsible statement:

“This is not protected by the First Amendment,” U.S. District Judge Kiyo Matsumoto said before revoking the $5 million bond. “There’s a risk that somebody may take him up on it.”

Matsumoto had wide latitude to revoke Shkreli’s bail, so it’s perplexing why she would so intentionally spread misinformation. She ought to be embarrassed that she didn’t even pretend she was applying any basic First Amendment test here. This is a Maeghan Maloney-level understanding of free speech rights.

Shkreli’s bail status notwithstanding, if someone wants to show that his Facebook ‘offer’ was not protected speech, they need to apply the three-pronged Brandenburg test – something the judge didn’t do. Did his speech demonstrate 1) intent, 2) imminence, and 3) likelihood of lawless action? I don’t think it showed a single one.

Let’s start with intent. (This can include instances where a person should have reasonably expected his speech would result in lawless action.) Look at the post and how absurd it is at every turn. He said the Clinton Foundation has murdered people. He said he potentially already has Clinton’s DNA. He offered a tiny sum for a huge risk. It’s wildly clear that he isn’t even remotely serious. Even when he responded to someone where he said “I’m serious”, it’s impossible to believe him. He’s a 4chan poster without the anonymity. No reasonable person could believe that this was a real offer.

Next is imminence. How could this possibly result in imminent lawless action? Someone reading that post would have to 1) be in the same area as Clinton, 2) know she was in the same area, 3) know where to find her in the very near future, and 4) have a way to get close to her. It is 100% impossible that Clinton could have been in imminent danger. Even if a person was in the same city as Clinton and knew it, and even if she was in public at the very moment Shkreli made his Facebook post, that person would still have to have a way to get to her and to get access to her. And if they were across town and had to get in their car to drive to a convention center where they had to buy a ticket to get in? You’ve just lost your imminence.

And finally, likelihood. Give me a break. For it to be likely that someone would take him up on this offer, all of the following would have to be true of someone who read his post:

    They would have to be unaware that Shkreli is a dedicated troll.
    They would have to believe he was serious.
    They would have to be motivated by $5,000 per hair that had a follicle.
    They would have to think that more than one follicle was necessary for some reason, and that’s why Shkreli was incentivizing the capture of multiple strands.
    They would have to believe that The Clinton Foundation murdered one or more people.
    They would have to believe that Shkreli had Clinton’s DNA already.
    They would have to be willing to risk their freedom at the least and their life at the most.
    They would have to know where Clinton was and when she could be found in public.
    They would have to be near that location.
    They would have to be able to get near Clinton’s head.

There are two things in that list that are likely. One, people actually do think the Clintons have murdered people, so it’s not a stretch to say there are probably people who think their foundation has been complicit in killing. Two, I’m sure Clinton’s tour schedule has been published somewhere. But other than that? You could argue that it’d be possible to yank a hair from her head during some fan photograph session, but I don’t imagine that would go unnoticed by her Secret Service detail.

Martin Shkreli’s Facebook post fails every single part of the Brandenburg test. Every. Single. Part. It’s not even a close call that what he said was entirely protected speech – at least outside a bail hearing. And, once again, that’s what makes this so perplexing. Judge Matsumoto didn’t need to make up an incoherent First Amendment claim in order to justify revoking bail. She could have just done it. She ought to be embarrassed at her actions on the bench.

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No, you don’t get to conflate correlation and causation because it fits the narrative you want

Racists of a handful of varieties (neo-Nazis, white supremacists, white nationalists, etc) descended upon Charlottesville, Virginia this past weekend. They quickly clashed with counter-protesters, resulting in their previously-legal parade being declared unlawful. Soon after this declaration, one of the racists got in his car and attempted an act of terroristic mass murder that resulted in one death and at least a dozen and a half injuries. This horror was, ultimately, spurred by the racist hatred and ignorance of the racist marchers, but the ostensible reason for the protest was the proposed removal of a Confederate statue. This faux excuse to promote racist views has, thankfully, caused a number of Confederate statues and memorials to either be removed or be proposed for removal. Unfortunately, this faux excuse has also caused some bad science. Take this MotherJones article:

Most of these monuments were not erected right after the Civil War. In fact, all the way to 1890 there were very few statues or monuments dedicated to Confederate leaders. Most of them were built much later. And since I’m not an academic, I feel comfortable squeezing this history into a very short, oversimplified summary:

1861-1865: Civil War.

1865-1875: Reconstruction Era.

1875-1895: Reconstruction Era ends. Blacks are steadily disenfranchised, allowing Southern whites to enact Jim Crow laws. In 1896, Jim Crow is cemented into place when the Supreme Court rules it constitutional.

1895-1915: With blacks disenfranchised and Jim Crow laws safely in place, Southern whites begin a campaign of terror against blacks. Lynchings skyrocket, the KKK becomes resurgent, and whites begin building Confederate statues and monuments in large numbers.

1915-1955: Jim Crow reigns safely throughout the South.

1955-1970: The civil rights era starts after the Supreme Court rules in Brown v. Board of Education that Jim Crow laws are unconstitutional. Southern whites mount massive and violent resistance, and start putting up Confederate monuments again.

Yes, these monuments were put up to honor Confederate leaders. But the timing of the monument building makes it pretty clear what the real motivation was: to physically symbolize white terror against blacks.

Oversimplified, indeed.

The case being made by MotherJones is right there in the last paragraph: due to timing, we know these statues were built to symbolize white terror against blacks. That is, they were specifically built to first and foremost scare black people into submission and to remind them of their place in this country. Unfortunately for MotherJones, the facts don’t support this argument.

First, let’s look at the MotherJones chart and another, more comprehensive chart (both from the Southern Poverty Law Center):

Confederate monument chart

Confederate monuments.jpg

Look at two of the more notable spikes on the chart: around 1911 and around 1961. What could possibly make those dates special? They’re the 50th and 100th anniversaries for the Civil War. It should surprise absolutely no one that we would also see a spike in memorial dedications around those times. Furthermore, consider the common timings of when war memorials are built in general. It can happen any time, but it certainly would seem to accelerate as veterans get into their old age. This could be due to a combination of factors, such as a younger generation being prepared to romanticize their elders, and older people generally having a disproportionate amount of political power (not to mention the personal time and means to take on memorial efforts). Just think to the period of time you recall hearing about ‘The Greatest Generation’ the most. It wasn’t in the 1950s, was it? No. It was into the 90s and early 2000s.

Let’s also look at the rise of the KKK. As the second chart notes, the organization was founded in 1866. What the chart doesn’t note, however, is that the KKK was at its most powerful around 1924. The economy was roaring, as they say, racists were more than plentiful, and the desire to instill fear in minorities was higher than ever. Yet memorials fell. This could be due to a host of reasons. Most Civil War veterans would have been dead (if the mean age of a soldier was 26 in 1865, then the mean age of veterans (dead and alive) would be 85 in 1924), so the push for memorials would be pushed into the backs of people’s mind. We also just finished an even larger war (albeit with fewer deaths), so our most pressing veteran’s issues were much more current. And, of course, we just had a period of time where we built and dedicated quite a few memorials. Whatever the reasons, the evidence points to the timing of these memorials having little to do with racist flare-ups.

Now, looking at the first chart, we see an attempt to correlate monument building with the lynching era. Except the greatest number of lynchings actually occurred in the decade prior. Forget about arguing causation. The chart hasn’t even successfully argued for correlation on this point.

I’ve been making these basic points across various social media platforms for the past day or two because I find this abuse of statistics 101 to be offensive. As a result, I’ve been called a Nazi sympathizer and/or had my motivations questioned. It doesn’t matter if I give a plain objection using the dry facts or if I preface my position by pointing out that, yes, of course these statues and memorials are racist monuments* to the losing side of a racist war. We now live in a culture where even the slightest bit of nuance that disagrees with side A means you must fully agree with side B. It’s utter horseshit. We have good reason to believe Civil War memorials and dedications spiked due to mundane factors such as veterans aging and anniversary dates. That does abso-fucking-lultey nothing to take away from the narrative that the Confederacy and memorials to it were and are racist. It does nothing to disparage efforts to remove statues. It simply demands that we rely on basic facts to make our points and arguments.

*There are a narrow band of monuments and memorials that should not be controversial because they honor and remember conscripted soldiers who often fought for reasons very different from the wealthy slave owners (who, of course, hired poor people to take their place on the battlefield). The band is very narrow, but it exists.

Shaun King, Thomas Jefferson, and the facts

Activist Shaun King recently published an article where he attacks Thomas Jefferson for being an evil man:

I genuinely view men like Thomas Jefferson in the same way I view any other intelligent, gifted leader who also happened to be cruel beyond belief β€” he was a monster. Owning, buying, selling, trading, and raping human beings, no matter what year or era you did such things, is monstrous.

King goes on about Jefferson’s relationship with Sally Hemings, his slave with whom he is said to have fathered 1 to 6 children. He also criticizes Jefferson for holding 600 slaves, only a few of whom he ever freed. King continues:

He knew good and well it was as evil then as it would be today, but he deliberately and purposefully maintained the system of slavery not only in his own life, but also for the nation.

As President of the United States, he did absolutely nothing to slow slavery down. As the physical owner of 600 human beings who openly admitted he knew what he was doing was evil, he made a daily decision to be evil.

This is the sort of patently false claim you get when someone is more excited about saying something controversial rather than saying something which is true. Jefferson introduced bills and made proposals to stop or stem slavery all throughout his life, including while he was President. He drafted legislation to stop importing slaves to Virginia in the late 1770s. He later proposed banning slavery in the expanding west. As President, he signed legislation to stop the importation of slaves. After his presidency, he proposed an economic solution to slavery where the government would pay slave owners for their slaves. The slaves would then be trained in various trades. At multiple other points, he encouraged the farming of crops that required little slave labor.

Jefferson held a strong belief that freeing slaves all at once would lead to a flood of unskilled workers with no personal resources, no job prospects, and a large pool of discrimination against them. Of course, he didn’t necessarily disagree with the discrimination aspect, but his view was not without merit. After the Civil War, many former slaves remained where they were for lack of other options. This continued for some for decades. Indentured servitude became the default status of many. For others, they experienced a less disastrous economic outcome, albeit one that was far from ideal or remotely fair.

The reality is that any political attempt of a mass freeing of slaves would have been an utter disaster on every front in the late 1700s, early 1800s. The US was still fragile and likely to lose states over any issue big enough to divide them. And, undoubtedly, there was no bigger issue than slavery – even a half century after Jefferson’s presidency, we had to fight a war over the matter. A principled stand by Jefferson as president may have made him a darling of history, but it would have led to southern secession – which would have probably been successful at that time. The northern states wouldn’t have had the industrial power to operate a war time economy, much less the clout to cripple the southern economy. We would have seen slavery in a nation of the southern states well past 1863; Jim Crow laws would either still be in place today or only have been eliminated within recent memory.

It’s easy to look back today and declare that Jefferson and others should have done what they knew was right, but it is almost always a mistake to ignore the politics and context of the times. One man cannot sway an entire culture so dramatically entirely on his own. We saw this not long ago with the policy of Don’t Ask, Don’t Tell. The odds that Bill Clinton and many other Democrats actually believed that was a good policy in and of itself is incredibly low, but they knew it was a good policy insofar as it represented progress. If Clinton believed in equal rights for gay people (which he likely did and, of course, does), is the argument that he should have only advocated for completely fair treatment? That might feel nice to say, but it isn’t an argument that lives in reality. Clinton could have either made an argument for complete progress or he could have won a second term. Anyone who thinks he should have only argued for what was right should ask themselves how they would have felt about President Dole.

Returning to King on Hemings:

She was his legal property. Thomas and Martha Jefferson owned Sally from the time she was an infant. She could not leave. She was not free. Both Martha and Thomas Jefferson refused to free Sally Hemings their entire lives. Hemings remained enslaved at Monticello into her 50s.

Once again we see King not doing basic research – research he could have included while still making his same basic point. But, no. Any nuance which might muddy the waters even slightly isn’t allowed, apparently. Specifically, Sally Hemings could have petitioned for her freedom while in post-revolution France. She was in a country where slavery had been outlawed, and Jefferson quite clearly knew this. He even paid her a monthly wage so that he would be in compliance with French law. If he was absolutely against allowing her to leave, he never would have brought her to country where she could have readily done so. King’s statement that the Jeffersons refused to free Sally Hemings is simply false. Furthermore, there is documentation that Hemings was recorded as a free person in the 1830s anyway. This was after Jefferson’s death and keeps with the fact that he believed most freed slaves would face excessively difficult conditions on their own.

Had King done this research, he could have still made the point that Hemings was not free in any meaningful way for most of her life. She was impregnated at 16 in a country where she barely spoke the language. Her entire family was still in the United States. She had little choice but to return. Or, that’s at least one viable argument. And it’s the same basic point he wants to make. Except he can’t make it with the same, easily-digestible short-and-to-the-point sentences. Nor can he avoid the fact that someone with no choice in a matter doesn’t get to negotiate the freedom of others – something Hemings did for her children in exchange for returning to the United States.

The notion that Thomas Jefferson was a perfect person is not one that anyone holds, but it is entirely ridiculous to argue that he was some evil man who deserves nothing but the scorn of history. His visionary contributions to his time have fundamentally reverberated into modern times – perhaps more than those of any other political or cultural figure. We should acknowledge his flaws and faults and failings, but we cannot simply dismiss the honor his monumental place in US and world history deserves.

Thought of the day

I’m still waiting to read the first news article ever to discuss the disciplinary record of a cop who is also a victim of a crime. Because the media seems to have no problem when the victim is a black man – even one who complied with everything and did absolutely nothing wrong.

Science moves on bodies of evidence

I’ve long made the point that science moves on bodies of evidence, not individual studies. If you don’t have repeatable data, then you don’t have much of anything. This is why the media is frequently so bad when it comes to reporting on recent studies; they report (or at least imply) individual study results as conclusions that are being made by the scientific community at-large. The truth is usually more like, one group of researchers found some interesting results.

And with that in mind, I turn to one of my favorite topics in science, circumcision. My numerous posts are easily searchable, so I won’t bother to link them, but for those who are unfamiliar with my stance, let me be clear: I am hugely in favor of circumcision because the science is in – circumcision saves lives. Furthermore, there is a very clear body of evidence that circumcision does not decrease sensitivity or sensation. In fact, a recent study found just the opposite:

Of 454 circumcised men, 362 (80%) returned for a follow-up visit 6 to 24 months after VMMC (voluntary medical male circumcision). Almost all (98%) were satisfied with the outcome of their VMMC; most (95%) reported that their female partners were satisfied with their circumcision. Two thirds (67%) reported enjoying sex more after VMMC and most were very satisfied or somewhat satisfied (94%) with sexual intercourse after VMMC. Sexual function improved and reported sex-induced coital injuries decreased significantly in most men after VMMC.

For someone like me who is greatly in favor of circumcision, this is great news. While it is only a survey study rather than a research study, it still provides evidence that circumcision is even better than the scientific community thought. However, that’s just not how science moves. Find me another several dozen studies like this using a variety of methods, and if they show a trend that confirms the results here, then I’ll start believing it. But as things stand now? I can’t make the leap. There is a standing body of evidence that says circumcision doesn’t affect sensitivity or sensation one way or the other; for every study that reports positive results, there’s one that reports negative results (and more often, studies report mixed or push results).

For sports fans only

For as long as I’ve had a deep interest in sports beginning in 2005, I’ve been of the opinion that people who don’t watch or follow sports should remain out of the majority of discussions in that area. For instance, after news came out of Joe Paterno’s failure to act at Penn State, people were calling for the school to be stripped of a significant number of wins. That eventually happened, though once everything quieted down, it was reversed. Why? Because the huge number of non-sports fans demanded it. They applied pressure and got a result that made them feel good, but which held zero consideration for all the players, coaches, and staff that had nothing to do with the incident. Non-sports fans wanted to punish an entire school and every individual associated with a huge sports program because of the acts of a few. That was utter horseshit. Plenty of non-sports fans may think that sports are ‘just a game’, but that’s pure ignorance; just because something isn’t important to your life doesn’t mean it therefore isn’t important at all. Fortunately, those who are actually involved in college football saw fit to correct the mistake.16508166_626391204214106_2020830949610527241_n

All that brings me to this recent garbage meme I’ve been seeing about Tom Brady.Β  On the right side of this post, it includes a quote from media day prior to the Super Bowl. He was asked a couple of questions about Trump and he dodged them. After a third question, he said that he wasn’t going to talk about politics. Somehow this has become an instance of white privilege rather than an example of avoiding irrelevant questions.

There are multiple failings surrounding this meme, but I’ll start off by pointing out the one that’s unique to the ignorant non-sports fan. Tom Brady and the New England Patriots are known throughout the league for avoiding distractions as best as they can. This comes from the top of the staff in Belichick. He sets the tone year-in-year-out by giving gruff press conferences where he dismisses shitty, irrelevant questions. We saw it this year when Jimmy Garoppolo did well after his first game and reporters attempted to manufacture a quarterback controversy. After making it clear that Brady was their guy come game 5, Belichick was still asked if Garoppolo would be considered for that start. Belichick simply grumbled “Jesus Christ” and moved on to the next question.

For people who have any idea of what they’re talking about, it’s pretty obvious that Brady’s comment isn’t an example of whatever political or social narrative someone is looking to push. It’s an example of ‘the Patriots way’ (a phrase I’m positive non-sports fans aren’t even remotely familiar with). This is one factor in why this organization has been so successful over the years. Focusing on football creates team cohesion that matters.

Another failing of this embarrassing meme is that it assumes Tom Brady is somehow required to talk about politics. He isn’t. If you tried to force your colleagues into talking politics or religion or sports or whatever topic you cared about despite them telling you they weren’t interested, you’d be hearing from HR pretty soon. You might even get fired. And if you complained that Bob in the next cubicle was a big jerk for not talking immigration with you, you’d get lambasted. Bob deserves to have his wishes to keep his views to himself respected. Why we think non-political celebrities don’t deserve the same respect is beyond me.

And, finally, if Tom Brady focusing on the Super Bowl (that jerk!) wasn’t enough, and if Tom Brady making sure he doesn’t distract the team (what an asshole, amirite?) wasn’t enough, then the fact that he has already made his views clear should be enough. He has said that he has a friendship with Trump that goes back a decade and a half, long before Trump had even significantly waded into politics. He has also pointed out that knowing someone doesn’t mean you agree or disagree with everything they say or do.

So, no, this isn’t an example of white privilege. You don’t know what you’re talking about if you think that; you’re intentionally ignoring context. This is an example of a non-politician staking out a non-political position in an effort to deflect irrelevant and, frankly, inappropriate questions.

Thought of the day

I’m thankful every day that I don’t have some terrible condition like diabetes or heart disease or even colon cancer.