Record of N.Y. Times distortion of rap song case


This begins with an article posted on line in N.Y. Times 12/20 containing an unbelievable summary of an appeals court decision.  I sent an email to the public editor explaining exactly why this was so.  No response.  Then  an email to Eugene Volohk who agreed that it as a distortion.  Another email to the public editor, who sent it to the "standards editor" who sent it to the writer, who turned out to be a law professor.  Both the Times editor and then writer, Adam Liptak, JD a Columbia Law Professor
affirmed his summary- now in conflict with both this layman and Law Professor with National Blog, that's Eugene Voloch   Wrote about this turn of events to N.Y. Times public editor, once again, requesting correction of article - no response.
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This personal effort over many hours was prompted by my reaction after reading this section of the article:
A divided 16-member panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans,rejected Mr. Bell's First Amendment challenge.  Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was “incredibly profane and vulgar” and contained “numerous spelling and grammatical errors.”If there is to be education,” Judge Barksdale wrote, “such conduct cannot be permitted.”
I said to my wife, "I can't believe it, this Southern judge wrote it's O.K. to rule against a rap song because of spelling and grammar errors!"


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To Public Editor, N.Y. Times - (expanded version of original email in addendum)


The article contains this paragraph: 

A divided 16-member panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected Mr. Bell’s First Amendment challenge.  Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was “incredibly profane and vulgar” and contained “numerous spelling and grammatical errors.”  “If there is to be education,” Judge Barksdale wrote, “such conduct cannot be permitted.”

The wording and context of the above paragraph strongly implies that both of the two elements of the lyrics, including "numerous spelling and grammatical errors" were aspects that were considered in deeming that the posting was not protected speech. I was surprised and shocked that spelling and grammatical errors could ever have limited first amendment protections.

On pp 3 of the PDF transcript the context was clear.   Judge Barksdale stated that such errors were not, as is customary, corrected in the transcript of the rap lyrics.  His statement was appropriate, as the exact transcription was needed to evaluate aspects that could impact the case.  The quoted reference to spelling and grammatical errors was in lieu of  multiple uses of "sic" legitimate -- as described in this explanation from the Columbia School of Journalism.  

Either the Judge made a serious mistake if he did consider this, or what is more likely, The New York Times has trivialized and distorted the process of the jurists arriving at their decision.  If that is the case, the reporter who was tasked with reading the entire decision must have done this intentionally if not grossly incompetent. 

Please get back to me on this, as I presume others have contacted you on this issue.

Regards
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 Addendum:

 This video has the recording and commentary of the rap song, and a version of the text that is also included in the full  transcript of the appeals court case.   


------------------------—
My notes on appeals decision  pp 1-34 the words of Justice Barksdale,

pp 3  Use of “numerous spelling and grammar errors” as explanation of the lack of corrections for these in the transcript.

pp4  Use of “incredibly profane and vulgar” to describe the rap lyrics  (this perhaps the one of the three phrases that is arguably inappropriate, but this was not a description to a trier of fact, but a summary of the case.

pp 8, Bell’s punishment, seven day suspension,  not allowed to participate in extracurricular activities for and must attend special school for nine weeks 

pp10  plaintiff’s experts agreement on possibility of language being a threat
last par. pp11  Summary of District courts summary decision based on School District hearing that defined the facts of the case described in previous pages
pp14-17  History of Tinker case and others  Free Speech rights of school students

pp 19  With the advent of the Internet and in the wake of school shootings at Columbine, Santee, Newtown and many others, school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights.”).
Students now have the ability to disseminate instantaneously and communicate
widely from any location via the Internet.

pp23 bottom is an example when speech from outside school is protected by Tinker, IE if the instant case had these qualities district court decision would have been overturned.

pp33 is where the NY Times quote, “such conduct cannot be permitted” is used, but not as implied by the context, but as a conclusion      discussion of what extensive precedent has determined transcends the assumption of absolute freedom of speech.  I

pp26-34 discussion of precedents and course of this case.  Key is whether the rap video was a “threat” thus the meaning explored in detail 
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Sent Mr. Liptak. via N.Y. Times author's page

Your summary of the Taylor Bell 5th circuit decision appears to be seriously flawed as described in link below .  Perhaps since the article was not specifically on this, you may not have studied it, in which case you owe Justice Barksdale an apology, and a correction for the record

http://alrodbell.blogspot.com/2015/12/careless-or-biased-summary-of-first.html
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Liptak's response:

Dear Mr. Rodbell,

Thanks for writing and for your close reading of my article.

The quotation you discuss captures the judge's dismissive tone, which is what I tried to convey.  The opinion is, I think you will agree, shot through with that tone.  There was no risk that a reader would attribute "the numerous spelling and grammatical errors" of a high school student to a federal appeals court judge, but noting them certainly betrayed an attitude of superiority and condescension.

I didn't say the case turned on the judge's hostile tone, but I thought it was an interesting and telling point in a column about a clash between rap music and the legal culture.  

With all good wishes for the holidays,   

Adam Liptak
The New York Times
1627 I Street NW
Washington, DC  20006
Twitter: @adamliptak
--------------------------------
On Tue, Dec 22, 2015 at 2:22 PM, <ordercs@nytimes.com> wrote:


Email: AlRodbell@gmail.com
URL:Hip Hop Stars Support......
Comments:Mr. Liptak.

Your summary of the Taylor Bell 5th circuit decision appears to be seriously flawed as described in link below .  Perhaps since the article was not specifically on this, you may not have studied it, in which case you owe Justice Barksdale an apology, and a correction for the record

http://alrodbell.blogspot.com/2015/12/careless-or-biased-summary-of-first.html


This essay begins with an article in the New York Times of  December 20, 2015 
based on a decision of Fifth Court of Appeals  "Hip Hop Stars Support Mississippi Rapper in First Amendment Case"

The writer is  Adam Liptak, a legal scholar, which makes my effort all the more challenging.  He teaches at Columbia Law the term, "ipse dixit"  which means "he says so, or depending on the status of source rather then evidence" so this must be transcended to evaluate this challenge by a non-lawyer.

This essay was prompted by my reaction after reading these three paragraphs of the article:
A divided 16-member panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans,rejected Mr. Bell's First Amendment challenge.  Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was “incredibly profane and vulgar” and contained “numerous spelling and grammatical errors.”If there is to be education,” Judge Barksdale wrote, “such conduct cannot be permitted.”
I said to my wife, "I can't believe it, this Southern judge wrote it's O.K. to rule against a rap song because of spelling and grammar errors!"

Donald Trump, through the lens of historiography-v 2.0

8/7/2015/
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1/2/2016    1st revision

The Trump saga continues into the new year,  This is supplemented by this essay: viral email, fraudulently attributed to William Bennett,   It echos this essay, but in a very different idiom, one designed to be an explosive condemnation of everyone who opposes trump, which actually is a definition of an historical figure who fits the mold of The Great Man theory of history, but actually the antithesis that so-called great men are more creatures of their time, requiring the conditions, the super saturated solution of society that has become unstable for various reasons that are too vast, too interconnected, to be addressed except by the will of a single individual. In this case the term, "misfit" is not an insult, but the essence of such a person.  From Sampson, to Jesus, to Marx to Hitler, the question is whether Donald J. Trump will join this list of "great men."      
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History is what happens -- events personal or profound that can never be universally understood as they are filtered through the people who experience, remember and sometimes write about them.  It is the difference between reading a daily paper and books written decades, or centuries afterwards that we define with the suffix of "ography."  I love to read old newspapers, yellowing, torn and about to be tossed into the trash, the dustbin of history.  Only with these contemporaneous stories do I get to understand the spirit of the times, the essence of the conflicts that were central to the public and the political actors.  They are often strikingly different than what historians write. 

It is impossible to know whether the headlines of a nations newspapers will make it to the chronicles of an era as they are unfolding, especially with the ever accelerating progression of news overwriting most events shorty after they occur.  We have metaphors, "flash in the pan" or "footnote in history" to describe this.  There is another difference, which is with unfolding events the writer is a participant, his/her selection of quotes and descriptions must by its very nature convey a viewpoint on a movement or individual that either is condemning or supportive.

This article is about Donald J. Trump, his background available in this Wikipedia article.  I am writing this under the rules of historiography where the outcome of events are known, yet any reader of this realizes this is almost silly,  as the anticipation of Trump's near term participation in the pending presidential election is a live issue,  where any meaningful opinion will ether advance or impede one or another outcome -- no matter how infinitesimal as is the case for this blogger.

I am putting aside my own personal views of Mr. Trump, which are biased by personally opposing his development of Riverside South,  16 buildings and 5700 apartments , which was opposed by the community and adversely affected our own home in Manhattan.  My antipathy for his success in this project exemplifies why so many others revere him, that he was able to achieve what other powerful groups could not over decades, which was to turn unused air space over a rail yard into a thriving community, and get richer in the process.   I happen to know that while this is seen as an example of free enterprise prevailing over big government, it only worked by manipulating existing laws to have the government (read taxpayers) underwrite the major loan -- with no participation in the profits.

During yesterday's debate,  Trump responded to accusations such as this with words to the effect, "That's right, I use our laws, and I buy politicians (naming those vying along side him for the same Republican nomination) on a regular basis and I'm proud of it."  Now here's where the "ography" issue arises.  Predicting a Donald Trump Presidency is more difficult in that others such as Dale Carnegie, Henry Ford or Bill Gates never chose to attempt to transition from entrepreneur directly to head of state.

Among the things that make Trump's serious effort to become President rare is that he is not of the political class, and as such has never had to procure a majority of any polity for his success.  Ronald Reagan parlayed his fame as an actor, but first to become the Governor of the largest state before going for the presidency.  This position required not only articulating his values, but demonstrating his methods of implementing them for voters to evaluate.  Trump has done none of this, and his entrepreneurial success was paradoxically by both making use the limits of our political governmental infrastructure while simultaneously condemning it in the broadest, almost cartoon-like language. 

We can draw on another career path that provides fame outside of the political system , which is military leader in a time of war.  Here we have mixed results, from George Washington, Andrew Jackson, Ulysses S. Grant, to Dwight D. Eisenhower.  All of these men were as untested in the political-governmental crucible as is Trump, yet the evaluation of their success as presidents are up for grabs, so much so that I will not go further exploring them.  My point is that we can usefully consider what it means to have never been part of what Ralph Nader defined as the American Duocracy -  the two parties as really branches of one in all important areas of public policy.   This is the historical aspect of the Trump phenomenon, which unlike Nader's run in 2000, with no chance of winning, he, under certain conditions does have such a chance -- and yet other than strong antipathy or animosity among the public, his actual place in the existing political spectrum is unknown.

If there were some index of scientific-technical-social change, there would be the long tail of static humanity, punctuated by landmarks -invention of writing, navigation, commerce, dynamite, telegraph, radio, nuclear weapons, population explosion of the last century, and then the internet revolution still upon us.  Others could come up with a better list, but mine is to only illustrate that the world has become more vulnerable than ever, by increasing orders of magnitude.  During the cold war we did come close to a civilization destroying exchange of thermonuclear weapons, yet these were controlled by only two nodes of authority, the hierarchy of the United States and the Soviet Union.

The new dangers are more diverse, less tangible, which makes one with a simplistic assurance of a solution that much more attractive.  The United States has affirmed that a devastating attack on the internet, now integral to much of the worlds commerce, is likely.  Unlike control of ICBMs during the cold war, the sources of such destruction are not limited to mature nations, but to those few hackers acting alone who find the many weak links of key networks.  Here Trump, of course, doesn't even posit a solution, but he can define something with a simple solution.

War is equally more asymmetrical in more disturbing ways.  The problem of illegal immigration is presented as an intentional act by the Mexican government, one that he learned of not by obtaining private official communication; but acknowledged under pointed questioning, from gossip among the border agents. So, he defines an impenetrable wall, something like the one that protected China for all these centuries, simple and massive enough to be visualized by those who accept his imaginative scenario.   Trump chooses not to acknowledge the connection between failed states and dislocation of populations, now greater than any time since WWII.  No wall is high or long enough to contain this, any more than a modern military can even connect with the primitive genocidal aberration of one of the worlds great religions know as the Islamic State.   
 
On the domestic side, verities that seemed baked into the biological roots of our society that, in the absence of rare genetic accidents, we have two sexes --  are increasingly part of the political divide.  The change in the application of University of California to expand this to six is disorienting to those who are comforted by a degree of cognitive stability -- that what they absorbed as children still has validity.  Here was one comment on the linked article that expresses this:




I apologize for the way I am.  I am 'older' and like the way things were. In 20 or so years I'll be flower fertilizer and glad I am gone. This world has gone crazy - at least in my thinking.  I am just a private citizen pretty much minding to myself except for my few outbursts on this thing called the internet.  Rest assured when I am gone you crazy Bast*rds can wreck the planet even more than my previous generation did with the atomic bomb.

This is an expression of how for many what is often dismissed as Political Correctness is more than disturbing but assaultive.  For this unknown but sizable part of our county, Trump's crudeness, even his disingenuous, is not only accepted, but seen as a necessary component for anyone who has the ability to resist this change in norms that turns all of those who disagree with it into "bigots"of one sort or another.  To this group of unknown size, the more he is hated by the political establishment and the mass media, the more it confirms his individual courage and his danger to the status quo.

Since I'm not really writing "historiography" which is not conceptually possible to do contemporaneously, I owe any readers my own personal view.   As far as his militaristic bluster, he is a moderate compared to Lindsey Graham, who stated on the "loser's debate" a desire to invade and control the middle east to defeat ISSL.  He does not pander to the Ultra Fundamentalist Christians as does Gov. Huckabee, who says that each state has a duty to follow God's order  rather than the Supreme Court -- and he means it. 

Trump seems to have no conception of the limits of the presidency, clearly described by the incumbent "a couple percent at most."  While he can now unilaterally commit his own resources as he chooses, our system doesn't allow this for our national wealth.  His mythical scenarios could possibly bring him to the White House, but in short order reality would impinge.  Before 9-11 "changed everything," George W. Bush was starting to feel the malaise of this reality.  At least with Trump we know what we are getting, in contrast to the other Republican front runners, where we have no idea of what they promised the Koch brothers.   

Trump's presence has already shone a light on the deep corruption of our political culture.  He reflects our society, with its fears, hopes and illusions.  And his candidacy does provide genuine entertainment, which as an alternative to the constant drumbeat of international tragedies, is not something to be dismissed. 
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Addendum 8/8/2015

Proving that historiography can't be done contemporaneously, is this breaking Washington Post article: Donald Trump disinvited to speak at RedState event; Megyn Kelly invited

It's echoed in this from the N.Y. Times:  Hand-Wringing in G.O.P. After Donald Trump’s Remarks on Megyn Kelly

The Donald Trump of yesterday, could be be on the way out.  But he has not been humbled, as shown in this half hour CNN interview on the above events

8/10/2015

Expansion of how D.T. offers  liberation from the shackles of what we call "political correctness" 



       





  





  

Donald Trump- Revolutionary attributed to William Bennett -v2.1

The essay was written anonymously and spread through the far right viral email network, under Bennett's byline.  Bennett didn't write it, and has said that he opposes Trump's candidacy,  Following is the content, with my own commentary appended. 

What I See Happening In a Trump Presidency
By Bill Bennett
They will kill him before they let him be president. It could be a Republican or a Democrat that instigates the shutting up of Trump. 
Don't be surprised if Trump has an accident. Some people are getting very nervous: Barack Obama, Valerie Jarrett, Eric Holder, Hillary Clinton and Jon Corzine, to name just a few. 
It's about the unholy dynamics between big government, big business, and big media. They all benefit by the billions of dollars from this partnership, and it's in all of their interests to protect one another. It's one for all and all for one. It's a heck of a filthy relationship that makes everyone filthy rich, everyone except the American people. We get ripped off. We're the patsies. But for once, the powerful socialist cabal and the corrupt crony capitalists are scared. The over-the-top reaction to Trump by politicians of both parties, the media, and the biggest corporations of America has been so swift and insanely angry that it suggests they are all threatened and frightened. 

Donald Trump can self-fund. No matter how much they say to the contrary, the media, business, and political elite understand that Trump is no joke.  He could actually win and upset their nice cozy apple cart. I's no coincidence that everyone has gotten together to destroy The Donald.  It's because most of the other politicians are part of the a good old boys club. They talk big, but they won't change a thing. They are all beholden to big-money donors. They are all owned by lobbyists, unions, lawyers, gigantic environmental organizations, and multinational corporations like Big Pharmacy or Big Oil. Or they are owned lock, stock, and barrel by foreigners like George Soros owns Obama or foreign governments own Hillary and their Clinton Foundation donations.

These run-of-the-mill establishment politicians are all puppets owned by big money.  But there's one man who isn't beholden to anyone.  There's one man who doesn't need foreigners, or foreign governments, or George Soros, or the United Auto Workers, or the teacher's union, or the Service Employees International Union, or the Bar Association to fund his campaign.Billionaire tycoon and maverick Donald Trump doesn't need anyone's help. That means he doesn't care what the media says. He doesn't care what the corporate elites think. That makes him very dangerous to the entrenched interests. 
That makes Trump a huge threat to those people. Trump can ruin everything for the bribed politicians and their spoiled slave masters.







Don't you ever wonder why the GOP has never tried to impeach Obama? Don't you wonder why John Boehner and Mitch McConnell talk a big game, but never actually try to stop Obama? Don't you wonder why Congress holds the purse strings, yet has never tried to de-fund Obamacare or Obama's clearly illegal executive action on amnesty for illegal aliens? Bizarre, right? It defies logic, right?
First, I'd guess many key Republicans are being bribed. Secondly, I believe many key Republicans are being blackmailed. Whether they are having affairs, or secretly gay, or stealing taxpayer money, the National Security Agency knows everything. 
Ask former House Speaker Dennis Hastert about that. The government even knew he was withdrawing large sums of his own money from his own bank account. The NSA, the SEC, the IRS, and all the other three-letter government agencies are watching every Republican political leader. They surveil everything. 
 
Thirdly, many Republicans are petrified of being called racists, so they are scared to ever criticize Obama or call out his crimes, let alone demand his impeachment. Fourth , why rock the boat?  After defeat or retirement, if you're a good old boy, you've got a $5 million-per-year lobbying job waiting. The big-money interests have the system gamed. Win or lose, they win.
 
But Trump doesn't play by any of these rules. Trump breaks up this nice, cozy relationship between big government, big media, and big business. All the rules are out the window if Trump wins the Presidency. The other politicians will protect Obama and his aides  but not Trump. Remember: Trump is the guy who publicly questioned Obama's birth certificate.  He questioned Obama's college records and how a mediocre student got into an Ivy League university.  Now, he's doing something no Republican has the chutzpah to do.  He's questioning our relationship with Mexico; he's questioning why the border is wide open; he's questioning why no wall has been built across the border; he's questioning if allowing millions of illegal aliens into America is in our best interests; he's questioning why so many illegal aliens commit violent crimes, yet are not deported; and he's questioning why our trade deals with Mexico, Russia and China are so bad.
Trump has the audacity to ask out loud why American workers always get the short end of the stick. Good question! I'm certain Trump will question what happened to the almost billion dollars given in a rigged no-bid contract to college friends of Michelle Obama at foreign companies to build the defective Obamacare website.  By the way, that tab is now up to $5 billion. Trump will ask if Obamacare's architects can be charged with fraud for selling it by lying.  Trump will investigate Obama's widespread IRS conspiracy, not to mention Obama's college records. Trump will prosecute Clinton and Obama for fraud committed to cover up Benghazi before the election.  How about the fraud committed by employees of the Labor Department when they made up dramatic job numbers in the last jobs report before the 2012 election? 
Obama, the multinational corporations and the media need to stop Trump. They recognize this could get out of control. If left unchecked, telling the raw truth and asking questions everyone else is afraid to ask, Trump could wake a sleeping giant.  Trump's election would be a nightmare.  Obama has committed many crimes.  No one else but Trump would dare to prosecute.  He will not hesitate.  Once Trump gets in he gets a look at the cooked books and Obama's records, the game is over.  The jig is up.  The goose is cooked.  Holder could wind up in prison. Jarrett could wind up in prison.  Obama bundler Corzine could wind up in prison for losing $1.5 billion of customer money.  Clinton could wind up in jail for deleting 32,000 emails or for accepting bribes from foreign governments while Secretary of State, or for misplacing $6 billion as the head of the State Department, or for lying about Benghazi .  The entire upper level management of the IRS could wind up in prison.

Obamacare will be de-funded and dismantled. Obama himself could wind up ruined, his legacy in tatters. Trump will investigate. Trump will prosecute. Trump will go after everyone involved. That's why the dogs of hell have been unleashed on Donald Trump.  Yes, it's become open season on Donald Trump.  The left and the right are determined to attack his policies, harm his businesses, and, if possible, even keep him out of the coming debates.  But they can't silence him.   And they sure can't intimidate him.  The more they try, the more the public will realize that he's the one telling the truth.
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This is  the end of the text of the email that I received, but the nature of a viral email network is that the original text can be altered by anyone, and then sent along to others to be read by millions in one form or the other.  One feature of the above version is that while focusing on the corruption of current Obama administration to make it attractive for the right to keep it passed along, there are sections that define Trumps mortal enemies as being of both parties, the commonality being part of the political establishment.
  
Much of what is said in this fraudulent email, happens to be valid, although the animosity toward Obama subordinate these points to the political rant.  I have attempted to express much of what is described here in this essay that looks at Trump in an historical perspective.  This screed if one ignores the anti-left rage provides a pretty good list of why the phrase, "if he didn't exist we would have had to invent him" applies to this person at this time. 

 

Careless or biased summary of First Amendment appeals court decision -

THIS HAS BEEN REPLACED BY THIS CONDENSED UPDATED VERSION


This essay begins with an article in the New York Times of  December 20, 2015 
based on a decision of Fifth Court of Appeals  "Hip Hop Stars Support Mississippi Rapper in First Amendment Case"

The writer is  Adam Liptak, a legal scholar, which makes my effort all the more challenging.  He teaches at Columbia Law the term, "ipse dixit"  which means "he says so, or depending on the status of source rather then evidence" so this must be transcended to evaluate this challenge by a non-lawyer.

This essay was prompted by my reaction after reading these three paragraphs of the article:
A divided 16-member panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans,rejected Mr. Bell's First Amendment challenge.  Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was “incredibly profane and vulgar” and contained “numerous spelling and grammatical errors.”If there is to be education,” Judge Barksdale wrote, “such conduct cannot be permitted.”
I said to my wife, "I can't believe it, this Southern judge wrote it's O.K. to rule against a rap song because of spelling and grammar errors!"  I've been reading the Times regularly for more than five decades, and have great respect for it as an institution. Its Pulitzer Prize wining art critic, Danel Hennihan, and I spent dozens of hours walking our dogs together in N.Y. Riverside Park, and Gail Collins and I chatted for a magic ten minutes after listening to an early campaign speech by George W. Bush in South Carolina.  So, the Times means something to me on multiple levels.

I wrote the following to the ombudsman of the Times (some additions included) :
---------------------
Public Editor, N.Y. Times


The article contains this paragraph: 

A divided 16-member panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected Mr. Bell’s First Amendment challenge.  Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was “incredibly profane and vulgar” and contained “numerous spelling and grammatical errors.”  “If there is to be education,” Judge Barksdale wrote, “such conduct cannot be permitted.”

The wording and context of the above paragraph strongly implies that both of the two elements of the lyrics, including "numerous spelling and grammatical errors" were aspects that were considered in deeming that the posting was not protected speech. I was surprised and shocked that spelling and grammatical errors could ever have limited first amendment protections.

On pp 3 of the PDF transcript the context was clear.   Judge Barksdale stated that such errors were not, as is customary, corrected in the transcript of the rap lyrics.  His statement was appropriate, as the exact transcription was needed to evaluate aspects that could impact the case.  The quoted reference to spelling and grammatical errors was in lieu of  multiple uses of "sic" legitimate -- as described in this explanation from the Columbia School of Journalism.  

Either the Judge made a serious mistake if he did consider this, or what is more likely, The New York Times has trivialized and distorted the process of the jurists arriving at their decision.  If that is the case, the reporter who was tasked with reading the entire decision must have done this intentionally if not grossly incompetent. 

Please get back to me on this, as I presume others have contacted you on this issue.

Regards
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This was written before I discovered the background of the writer.  After three days, and a repeat request, no response.


 Addendum:

 This video has the recording and commentary of the rap song, and a version of the text that is also included in the full  transcript of the appeals court case.   A comprehensive article on the appeals decision from The College Fix


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Notes on appeals decision  pp 1-34 the words of Justice Barksdale,

pp 3  Use of “numerous spelling and grammar errors” as explanation of the lack of corrections for these in the transcript.

pp4  Use of “incredibly profane and vulgar” to describe the rap lyrics  (this perhaps the one of the three phrases that is arguably inappropriate, but this was not a description to a trier of fact, but a summary of the case.

pp 8, Bell’s punishment, seven day suspension,  not allowed to participate in extracurricular activities for and must attend special school for nine weeks 

pp10  plaintiff’s experts agreement on possibility of language being a threat
last par. pp11  Summary of District courts summary decision based on School District hearing that defined the facts of the case described in previous pages
pp14-17  History of Tinker case and others  Free Speech rights of school students

pp 19  With the advent of the
Internet and in the wake of school shootings at Columbine, Santee, Newtown and many others, school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights.”).
Students now have the ability to disseminate instantaneously and communicate
widely from any location via the Internet.

pp23 bottom is an example when speech from outside school is protected by Tinker, IE if the instant case had these qualities district court decision would have been overturned.

pp33 is where the NY Times quote, “such conduct cannot be permitted” is used, but not as implied by the context, but as a conclusion      discussion of what extensive precedent has determined transcends the assumption of absolute freedom of speech.  I

pp26-34 discussion of precedents and course of this case.  Key is whether the rap video was a “threat” thus the meaning explored in detail 
----------------------------
Sent Mr. Liptak. via N.Y. Times author's page

Your summary of the Taylor Bell 5th circuit decision appears to be seriously flawed as described in link below .  Perhaps since the article was not specifically on this, you may not have studied it, in which case you owe Justice Barksdale an apology, and a correction for the record

http://alrodbell.blogspot.com/2015/12/careless-or-biased-summary-of-first.html

Affirming a Principle of Religious Bigotry to Combat it

12/14/15

Part 1
Part 2- unintended consequences section

Fareed Zakaria's monologue this Sunday morning on his television program, repeated in his column in Time magazine began with:

I think of myself first and foremost as an American. I’m proud of that identity because as an immigrant, it came to me through deep conviction and hard work, not the accident of birth. I also think of myself as a husband, father, guy from India, journalist, New Yorker and (on my good days) an intellectual. But in today’s political climate, I must embrace another identity. I am a Muslim.

After a pause to let these words sink in, he continues with words that I see negate the clear identification of his religion:

I am not a practicing Muslim. The last time I was in a mosque, except as a tourist, was decades ago. My wife is Christian, and we have not raised our children as Muslims. My views on faith are complicated — somewhere between deism and agnosticism. I am completely secular in my outlook. But as I watch the way in which Republican candidates are dividing Americans, I realize that it’s important to acknowledge the religion into which I was born.

This monologue sheds light on an important issue, which is how does, not only the individual, but the  rest of the world view one who is “of a given religion.”  As a child on my first day in kindergarten, the first question kids asked was, “what are you?” expecting an answer such as Catholic, Italian, or Jew (we were only five years old) But, that meant something to us then, just as now as adults we quickly learn whether a stranger is liberal, conservative or variations thereof. 

What does it mean to be a Muslim who never practices the religion, or goes to its house of worship, and defines himself as “completely secular.”  I’m a Jew in much the same way that Zakaria is a Muslim.  What struck me in Zakaria’s monologue was the time and place that it would have been valid -- which was under the  Nuremburg Laws of 1933.  Then, one’s religion was defined by blood, not belief.  The single religion focused on then happened to be Judaism, but the principle was the same.  Only in that era, would my belief, practices, ideology not in any way change the reality that in that society,  I was a Jew.

Zakaria goes on in his monologue to castigate Donald Trump for his bigotry against Muslims which is actually missing the greater point of his candidacy, which while delivered with bluster, crudeness and distortions, is, perhaps inadvertently, challenging the deep, unexamined political-cultural assumptions of our country and the Western world.  It seems that the voting population of this country is divided, either kill the messenger or cheer him on, with every attack further instilling admiration among his acolytes for this iconoclast.  In some ways,  Zakaria stating “I’m a Muslim” and then pausing a beat to let it sink in, was just short of proclaiming “Allah Akbar.”  His message is such piety is something he defends, yet, in reality, he has chosen to reject it; and given his intellect, not for trivial reasons.  I would guess they were similar to my own rejection of Judaism, and all other structured religions that require a suspension of critical faculties in deference to one who is “higher,” be it in wisdom or closer to God Almighty.

Fareed Zakaria is no more a Muslim than Barack Obama is a man who subscribes to any set of religious tenets, be it Christian or, as he is still accused of, Islam.  Bernie Sanders is in the same bind, accepting the Nuremburg premise, where, a secularist such as he is seen as in the same category as Vice Presidential candidate, Joe Lieberman who is a practicing, and thus believing, Jew. Actually, a nasty practice of many religions is punishment for those who publicly renounce them, the act of “apostasy.”  So open denial of their ostensible religion would have consequences.  For Obama, it would have been his never having entered political life;  for Zakaria, depending on the nature of his rejection it could very well be a Fatwah that could be more deadly.

Fareed Zakara’s “My Take” statement as a whole is meant as opposition to bigotry, but his words, his assertion that his religion is what he was born into, is not to be ignored.  He could have substituted, “I am an atheist (agnostic or secularist).  Yet, a part of me will always be Muslim, the religion I was born into.”  Such a statement may have just provided the needed first blow to crack the rigidity, the myth of religious identity being in the blood. It is this that is the root of religious bigotry, with its outbursts of genocide that have plagued humanity throughout history.

Section 2

Two weeks after what I describe and criticize in Part 1above, there was another opening to Zakaria's TV program, also in his Washington Post column, as excerpted here.  It is more important than part 1, but may not have happened if he had not made his, "I am a Muslim" statement.  My criticism of that statement pales in comparison to what followed, as he describes:


>As it happens, in recent weeks I was the target of a trolling campaign and saw exactly how it works. It started when an obscure website published a post titled “CNN host Fareed Zakaria calls for jihad rape of white women.” The story claimed that in my “private blog” I had urged the use of American women as “sex slaves” to depopulate the white race. The post further claimed that on my Twitter account, I had written the following line: “Every death of a white person brings tears of joy to my eyes.”

Disgusting. So much so that the item would collapse from its own weightlessness, right? Wrong. Here is what happened next: Hundreds of people began linking to it, tweeting and retweeting it, and adding their comments, which are too vulgar or racist to repeat. A few ultra-right-wing websites reprinted the story as fact. With each new cycle, the levels of hysteria rose, and people started demanding that I be fired, deported or killed. For a few days, the digital intimidation veered out into the real world. Some people called my house late one night and woke up and threatened my daughters, who are 7 and 12.

It would have taken a minute to click on the link and see that the original post was on a fake news site, one that claims to be satirical (though not very prominently)
I am involved in what has become a cause, perhaps taking too seriously.  But this incident of Zakaria being attacked for a fictional article, reminds me why I'm combating a willful distortion by the N.Y. Times of an Appeals court decision.  If the Times can blatantly do this, it is a challenge not to me, but to the underpinnings of freedom of speech itself.  This freedom is not absolute, for the Times anymore than those who wrote the false article that led threats against Zakaria.  What is not protected is  speech that defames or threatens.  The one defense against the charge of defamation,  is "that it is true."  Yet a society, a nation- indivisable must have a source that is agreed upon as upholding the conveyance of such truth, always subject to revision with new information.  The New York Times has been that vital institution, which in the case I'm addressing they have abrogated. .

Fareed's terrified children remind me that my effort challenging the Times is worth fighting for.  

L.I.F.E. Senior Project Structure Proposal

December 20, 2015

Life Is For Everyone or LIFE is a project associated with MiraCosta College of San Diego County, (web page) 

The group has existed in one of the two campuses in Oceanside for several years and has been started last year at the San Elijo Campus (SEC)  in Encinitas referred to as LIFE-SEC.   It is this new group that this essay is written about and for.

The individual who has been central to this new group is Sally Foster, a recently retired dean of the school, who has arranged access to the facilities and guided the transition from weekly films sponsored by the foreign language department to this new organization.  We are similar to the Oceanside group, but independent, allowing this group to be open to defining goals and procedures.  This provides the potential to be focused on the demographic of retirees who have an active interest in contributing their own life experiences in a unique venue -- specifically one that is not sponsored by commercial or partisan interests - something more rare than we realize.

Until last year the weekly event that has evolved to LIFE-SEC was mostly free foreign films every other Friday afternoon,  which as they say, "what's not to like?"  What you are now reading is my own view of what could be valuable, obviously to myself personally, but mainly for others to consider for a larger conversation. 


Films as More Than Entertainment:

Movies have been part of our lives from our earliest years, including for all but the oldest of us, television adaptations of the cinematic experience.  This has been so ubiquitous that it's like the proverbial fish who don't know they are living in water, as they have nothing to compare it to.  Here's a quote from an article by the writer Matt Taibi that brings this home in discussing something ongoing, the chaos in the middle east and fear of domestic terrorism as a central issue in the coming national elections.
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There are some people now who are urging the media to ignore (a named candidate for the Republican nomination), and simply not cover him. But it's a little late for that.

The time to start worrying about the consequences of our editorial decisions was before we raised a generation of people who get all of their information from television, and who believe that the solution to every problem is simple enough that you can find it before the 21 minutes of the sitcom are over.

Or before we created a world in which the only inner-city black people you ever see are being chased by cops, and the only Muslims onscreen are either chopping off heads or throwing rocks at a barricades.
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My proposal is that films presented by LIFE-SEC be more than commercial products where the main focus is necessarily on maximizing profit, meaning obtaining a mass market, ideally with a lucrative  aftermarket. There are many examples where the entertainment can also elicit thought about a social issue that would otherwise not be part of the public's consciousness.  In fact, some of the greatest films do both.

"Doctor Strangelove" and "Fail-Safe" in the 1960s both managed to demonstrate the danger of the Cold War becoming a world catastrophe.  The former was a mordant comedy, while the latter a realistic drama, yet both have become film classics that had some effect on international policy that hastened dismantling the tripwire to thermo-nuclear war.

Other films are less known, requiring guidance by someone who has explored the subtext and background of the film.  My proposal is that the films selected for the LIFE-SEC be "sponsored" by individuals who desire to provide this, both as an introduction and leading a discussion after the showing.  The film "Honey" that was shown last week was an example.  I happen to have written an essay  that focuses on the social-political issue that parallels this film about assisted suicide. The comments on this website illustrate the type of discussion that would ideally be generated. One of the comments lead to the little known unintended consequences in another country that adopted this law, that I would never have known about but added an entire new dimension to this issue.  This subject could be either liberating or depressing to an older audience, which is why the sponsor's introduction will allow self selection among members.

Another illustration of my proposal is the Spanish film, "Butterfly" that is, on the surface, a touching tale of a child and his teacher in his first year of school.  The tension in the plot is provided by the political forces that are brought to bear, that happen to be historically accurate -- taking place during the a time of political turmoil that reflected the forces that were to congeal into World War II.  The brief text at the beginning is enough to convey the ominous threat, but it takes the research of the sponsor to provide answers to the questions raised about the actual events that were being dramatized. 

Taibi's quote referenced above define the norms of passive consumption of entertainment that turn meaningful social challenges into the dramatic tension of a plot, and then provides emotional release that displaces active participation by the viewer, who are the citizenry of a country.  In the film "Honey" this was illustrated by the audience wanting to see what the suicidal character would finally do, (the film was inadvertently truncated) as this would have provided closure to go on with one's life.  Lost on our generation is the idea that individuals have not only the right -- but the obligation to evaluate questions as meaningful as ease of committing suicide -- whether a given society should strongly discourage it or subtly present it as an acceptable option.  The film presents the challenge, but in the democratic ideal, it's the people who should grapple with the solution.

Those past the time of career pressures are an untapped resource, being in the last act of their own personal drama.  It can be a time of relaxation and satisfaction, or disappointment over what might have been.  Either way,  it provides the freedom to think in ways not open to others who are influenced by manifold consequences of "going along." 

Lectures with priority to member presentations

What I have presented for the film part of LIFE applies also to lectures.  Those who have experience, or have done research and developed original approaches to specific issues should have priority of presentation in this venue, as there are vast resources on the Internet for videoed lectures on any topic by acknowledged experts.  Examples are a lecture presented by a Naval Officer who was a consultant for the film, "Top Gun," and an upcoming one by a man who was in the Peace Corp in Nigeria in the 1960s.

Certainly, for discussions on Earthquakes we need a geologist, and on El Nino, an oceanologist such the young woman  from Scripps Institute who spoke last week.  For other areas, such as dealing with memory decline, the research that exists is influenced by culture, personal experience and a broad range of commercial interests.  Unlike geology, there is no settled science among any profession, including physicians, on how to handle this aspect of aging.  If a member of LIFE presents his/her proposal for a lecture in a technical area, a version of "affirmative action" should be considered for the benefit of stimulation of intellectual challenges among this age group.  .

This new venue for LIFE presents an opportunity to create a structure responsive to the needs of our age, in both senses of the individual and our society.  It is for this purpose that I submit this proposal for consideration.

Al Rodbell
AlRodbell.com 

  

From Holocaust to Marriage Equality - how bends the arc of history?

Introduction

"The arc of history is long but bends towards justice." 


Twenty years ago, a man I played tennis with on the Riverside courts in Manhattan, Jeff Baron,  asked if I would take a look at a draft a of his manuscript for a play.  I took it as a complement, since while only in his early thirties he  had been a professional writer for a popular television show, unlike so many in this city who have worked on screenplays that have provided dreams of success that sustained them on menial jobs for their entire lives. 

I read it, then once again with more care. In my three page analysis I complemented him on his vivid writing, and then said, "If you leave it as it is, it will undoubtedly be a success among gays, but if you want to go beyond this, you have to tone down your premise that rejection of homosexuality is tantamount to the Nazi genocide of Jews." Several years later, after the play, "Visiting Mr. Green" had been translated into twenty three languages with 400  productions in 45 countries, at a reading by the star, Eli Wallach in the General Assembly building of the United Nations, I remarked that it had changed since it's earliest tryout in a summer stock performance.  Jeff responded, "Al, did you think I didn't pay attention to your criticism?"

Well, not too much attention. As the play that helped change the course of western values still conveyed the message that while rejecting homosexual orientation was similar to the Nazi's hatred of Jews, it was a benign defect for the individual, who, if having a good heart, could transcend their experiences to become accepting of those who are different. 

I am writing this "book" (you are reading an introduction) at a moment in history that augurs a flex-point in the "post holocaust era of redemption", a concept that hasn't become "a thing"; such as global warming that encompasses technology, demographics and politics at every level in all countries.  With global warming, there are melting glaciers and ancient temperature indications that allow objective analysis.  What I'm presenting is as real, but unlike the measure of temperature variation, the manifestations are amorphous, and have become so much part of the most rancorous aspects of the culture wars that they only exacerbate partisan antagonism, rather than advance investigation of the deeper dynamics. My task, well over my pay grade and talents, is audacious. Rightly to be left to academics if it weren't that this hallowed turf too has become part of the very phenomenon I'm articulating.  This will be the subject of its own chapter in my hypothetical book.    

This is why what I describe is not a blog article, or an essay, but structurally a "book"  or "thesis" meaning a presentation of a different perspective that must first describe elements that will be examined; this in order to make a case that there must be a larger conceptual context, a more useful paradigm to explain the cited phenomena. 

While the introduction to the first chapter could be entitled "when homosexuality became gay;" my "thesis" is more encompassing, requiring inclusion of the long and continuing movement to end Jim Crow domination of Blacks* in America before the mid twentieth century. The central impact to this country from the importation of African slaves is part of this thesis only because I argue, it, like the gay rights movement, although only a short half century old, are now both part of an unspoken western world zeitgeist that fits a pattern that is perhaps as dangerous as the threat of climate change.   

 Another, is women's rights, especially the fight for access to abortions. The abortion issue is one of values, with no disagreement among advocates of the science of terminating a pregnancy, meaning the ending of life of an unborn human while still in the uterus either before or after the point of viability.  The two sides have taken agreed upon truths as their motto, as the act does entail both ending of "life" and the exercise of "choice."  The very names of the contending  political groups focus on one with the assumption that it negates the other, where it is actually the debate of which of these should gain legal-political ascendancy. 

Homosexuality and abortion, are different from race -- in the U.S. focusing around issues relating to Negros.  The very use of this "N-word" for many is the end of the conversation, as it is not consistent with the social norms that have evolved.  My contention is that these social norms obviate, make impossible, going beyond what has replaced racial, gender and sexual orientation stereotypes of the pre 1960 era-- to establishing an entire new taxonomy of terms. While replacing those terms that had the effect of insulting or denigrating people who were the object of invidious discrimination, over the decades they have elevated political discourse above scientific investigation.   .


 ---------------------------
*I will use, when plausible, the earliest term and most precise term even when archaic or seen as a slur, such as homosexual for gay, or Negro for now current words, Blacks and African American, both terms inherently loaded by political movements. The purpose of this book is to understand why our society has discarded a neutral descriptor to one that reflects a political ideology, irrespective of how universally it has been adopted.  To clarify: "abortion" is subject to extensive debate often with their own terminology (liberals will never use "abortion on demand")without changing the word of the actual procedure. This will be explored in a separate chapter. 

Thanksgiving Day 2015

Cultures demands mythology, as this week we are about to celebrate one, the joining of the European Christian culture with that of the indigenous people of this new continent who were known in my childhood as Indians.  Just as the name was based on a sizable geological error of location, the end result of the destruction of a native civilization is subordinated to the myth of comity between the two cultures, rather than a slow cultural if not complete actual genocide.

Mythology, from earliest tribal images to modern national historiography, provides something vital for any culture, something that we may not be able to appreciate until it starts to collapse.  Exploring this subject presents the, "Fish don't know they are living in water" problem, that we have no way of grasping or discussing something so universal that there are no handles, words or concepts to deal with it.  If fish are removed from water, there is no problem to be resolved or corrections to be made -- they are dead.  So too, our American-Western-Enlightement culture is so vital for our civilization that when there are processes that are like the loss of water environment for aquatic creatures there are no evolutionary adaptations for combating this occurrence.  A shark may slap his fins, bare his teeth, blood would rush to his organs of flight or fight, but to no avail, as the change is so beyond any even ancient forebears faced that there is nothing, even in incipient form, available.

I'm writing this essay based on this premise: first that civilization is to humanity as water is to aquatic animals, and further, that civilization, in the aggregate meaning all of the systems and norms of a given time; or viewed over all of human existence require a common frame of reference that is beyond scientific verification, but rather in the realm of common belief.  Myth, or Mythos and the word Ethos is the best approximation for this discussion.   

I'm writing this essay at a time of personal loss, meaningless for the world but profound for me.  My interpersonal connections are tenuous at best, really for almost a decade being on a single liberal website, Dailykos, with a million members and a few who know me from my handle Arodb.  And then there is a group who play tennis every morning at a public court,  where after the informal doubles sets some of us, maybe a few, sometimes a dozen go to our coffee shop to shoot the breeze.  These conversations, my joining right after Obama's election, can be mundane (finding the best tire shop) to the most personal and profound.  It's the diversity that makes it work when it does.  As I write this I have come to the conclusion that even if I were to continue with both of these settings, the magic that made them so important to me over so long a time are not sustainable under the stresses of this particular moment in history.

"Ethos" happens young, to this child before I had anything to compare Union Station crowded with soldiers who enjoyed a connection with a cute kid.  I reached my fifth year in the protected environs of the white side of the street of Washington D.C. feeling the sadness when Roosevelt died and the joy when we had won the war.  In the Washington Post when I was just starting to read, I remember this heading, "American is great because American is good, if American ever ceases to be good she will cease to be great."  At the time, almost seventy years ago, there was no reference I can remember to the author of this aphorism, Alexis de Tocqueville so I pondered it in my very naive brain, and felt it just seemed too simplistic, even though everything that was printed must, of course, be true!

At that tender age, the "idea" of a nation being "good" made me think, but with no possibility of clarifying the point.  I knew enough not to raise the issue with my dad, who happily ending his formal education at thirteen, and with this,  his own exploration of such conundrums.  As far as the United States being good, always having been and in the future being so, was not really in doubt. We were the "good guys," with movies showing heroes who killed Indians and Japs and benevolently dominating "gals" and "colored people" with any moral qualms not being raised as even existing.

There was a slight problem, which was that we were Jews, a group not that common in that neighborhood of D.C at that time.  The American ethos was intertwined with Christianity, as we followed our teacher's instructions to sing hymns to the one "born as the king of Israel."  I knew that the new nation did not have a king, and if it did it would not be Jesus Christ, since my Rabbi would have told us.  But, years later, when he was pressed during my daily classes leading to my Bar Mitzvah, he unleashed an explosion of ridicule of that "crazy person" that my teacher, classmates and country so revered.  He forgot to add as I walked away somewhat stunned, "Lot's of luck dealing with this, kid" 

Before I give anyone the idea that what I say here is meant to be the sum total of my formation, I have no such illusion.  Millions of Jewish kids of my era faced these conflicts, and managed to deal with them and thrive in this country.  I'm writing this because my experiences forced me to grapple on a personal level challenges similar to what this country, probably the world is facing on this Thanksgiving day.  One of the most quoted lines of  the Poem by W.B. Yeats "The Second Coming" is "Things fall apart; the centre cannot hold;"  I had felt the power of these words, yet never till now
understood his dire warning.  He wrote those words in 1919, when a horrible war was ending not in real resolution, but a time-out when the conflicts of the previous conflagration were to fester and metamorphose into genocidal monstrosities.  Yeats could only sense the consequences of this loss of the center, the common values, too deep and amorphous to be codified into law, but which allowed human beings to connect on this vital indefinable level.

I will miss my after-tennis group, yet how can I expect a more profound conversation than that which takes place among the political leaders of our country.  All that's left is taking sides, choosing the most vivid expression of vilification of the opposition to endorse.  There is no appreciation that we are reliving the words of Yeats' poem.

Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned.
The best lack all conviction, while the worst
Are full of passionate intensity

The "Centre" that could not hold in 1919, is now being overwhelmed by an even more cacophonous machine of a media made more graphic and intrusive.  Only those blessed with a simplicity of thought have the hubris to stand up and shout- with each outburst -- if looking up would see:

Turning and turning in the widening gyre
The falcon cannot hear the falconer;

Things fall apart; the centre cannot hold;