FLOG

The price of vigilance is eternal boredom

Even so, you might wanna keep an eye on this.

A rule of construction

The US Supreme Court long ago adopted a general rule to apply in construing vague or ambiguous statutes. Essentially, if a statute can be construed in a way that does not offend the Constitution, the Court will follow that interpretation rather than overturn the statute. It's a form of deference to congressional intent: "We'll presume, Congress, that you wanted this law to pass constitutional muster. If it can, by a reasonable interpretation, we will follow that reading."

Well, lately I got to thinking about this rule of construction at the same time I was thinking about the Flaming Lips. This was shortly after seeing a Spongebob Squarepants windsock in Newport, if you were wondering about my thought process.

And I got to thinking about rock band names. Geek that I am, I hit upon a rule of construction for interpreting band names: if there is a reasonable interpretation that would allow the name to be dirty, you must adopt that reading rather than conclude that the name is innocent.

This may seem obvious for some bands: The Buzzcocks. The Flaming Lips. The Butthole Surfers.

But others are borderline cases: The Kinks. The Super Furry Animals. Pearl Jam. Nine Inch Nails. Tower of Power. This rule would require that we take the filthiest interpretation possible for such borderline names.

Then there are the ones seemingly on the clean side of the line, but susceptible to a dirty reading. The Wailers. Modest Mouse. The Talking Heads. Cat Power. Willie Nelson. How to construe these names? It's a tricky business, but I think the rule is sound. Interpret at will.

Derision as a teaching tool II

"What? No questions! There are no good questions!"

-Prof. Bonine again. I love this guy.

But it's still unclear whether you can shout "movie" in a crowded firehouse

You've all heard, no doubt, that it is illegal to shout "fire" in a crowded theater. But is it true?

Not exactly. This infamous hypothetical originated in Oliver Wendell Holmes' opinion in the case Schenck v. US, 249 U.S. 47 (1919). And, as often happens with this sort of thing, a few key elements of Holmes' formulation got lost on the journey into maxim. Here's what he originally wrote, in discussing the boundary between protected speech and incitement:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

The conventional wisdom is that

1. shouting "fire";
2. in a crowded theater;
. . . is incitement, and not protected speech.

Yet this omits two elements and a key detail from Holmes' hypo, which stated fully is as follows:

1. shouting "fire";
2. with knowledge that the information is false;
3. in a theater;
4. causing a panic;
. . . is incitement, and not protected speech.

The missing elements are knowledge of falsity and resulting harm. Absent those, you may shout "fire" in a crowded theater with impunity. On the other hand, Holmes does not limit the realm of unprotected speech to "crowded" theaters. He speaks of "theaters," period. So while one does not lose constitutional protection unless one speaks with knowledge of falsity and causes harm, still, if one has done so, he loses protection even in a sparsely occupied theater, under the true constitutional test.

So now you know.

UPDATE 9/29
Justice Douglas, concurring in the much later case of Brandenburg v. Ohio, 395 U.S. 444 (1969), which announced the modern incitement test, wrote:

The line between what is permissible . . . and what may be made impermissible . . . is the line between ideas and overt acts.

The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.

This is, however, a classic case where speech is brigaded with action. They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution.

It seems that Douglas takes Holmes to mean that speech can only be punished if it results in actual harm, which is how I broke down Holmes' hypo. Perhaps, as explored in the comments, Holmes didn't mean that exactly, but here we are. It has become doctrinal. Indeed, when speech leads to actual harm, Douglas suggests it is the harm that is to be punished, not the speech.

On the other hand, he got it wrong that the theater had to be crowded.

Derision as a teaching tool

"You guys collaborate like a roomful of cats!"

-Professor John Bonine

Ah, it makes me miss my 1987 London schooling, where I was reminded of my stupidity several times a day.

Underneath the nudity, this post reeks of sincerity, too

Blog, I never got around to sending you a dirty postcard from Germany, because they had the nerve to run their postal service in German. But I can see you need cheering up, so here it is. Gaze at the inscrutable nudity until you feel at peace . . .

. . . And remember, things'll be all right. You've got a lot of talent and many more fans than you think you do. Con your way into college, claw your way up the ladder, or even start drinking heavily. But please don't throw in the creative towel.

Entomology Corner Part II

Yet another interesting creature that alighted at Nacho Rancho.

However, this one's interesting as much for the textural company he keeps as for his entomology -- the oddly frosted storm glass of our back door. It's the sort of glass in which you could see the blessed virgin, were that your bag.

As for the second pic, I'm entertaining offers from cynical, eclectic, kinda dark indie-rock bands for use as album cover art. C'mon, it's custom-made for the right ironic title. A tad too "Alice In Chains" it may be, but you can't resist the bargain-basement prices!

By the way, this is very lately threatening to become a photo blog, if you hadn't noticed. Is this a bad thing? I figure it is better than it becoming no blog at all. But let me know what you think, my 5 loyal American readers and my expansive Brazilian fan base.

Some people are just born with the right idea

Click!

Strange Things Afoot in Yachats

The following series of photos is true.

'Tinued

This really ain't worth blogging, but I've been quiet so long that I feel I have to make up for it with crap like this.

Anyway, awhile back I had the lapse in judgment necessary to buy a set of CD's called Kingtinued. For those of you who have not seen the ads late, late at night on backwater cable, this set consists of an Elvis impersonator singing, in Elvis style, contemporary songs and songs Elvis just never got around to recording. Here's the playlist:

1. La Vida Loca
2. Tears in Heaven
3. Smooth (Santana and that douchebag from wherever)
4. Jump Jive and Wail
5. Graceland
6. England's Rose (Memorial to Princess Diana)
7. How Do I Live
8. Can't Get Enough of Your Love
9. I Swear
10. Friends in Low Places
11. All My Ex's Live in Texas
12. Achy Breaky Heart
13. Crazy Little Thing Called Love
14. Have I Told You Lately
15. Pink Cadillac
16. Statue of a Fool
17. You Light Up My Life
18. Freeway Free For All
19. Wind Beneath My Wings
20. Hush
21. Candle in the Wind
22. I Can Help
23. Mony Mony
24. Yesterday
25. Heart of Rock and Roll

So tonight I got to thinking, what if this were done for Bob Dylan? Think of songs Dylan has yet to sing, but should . . . No, really, think of some. I can't. Now more scotch.

FLOG™ learns of another extremely brief brush with fame, shivers like a happy school girl

Here, a Cato Institute thinkin' feller and fairly well known blogger links for the second time to my long-ago-penned review of bottom-shelf wines.

From all the feedback I've heard over the last half-decade, from friends and from strangers alike, that wine review is the best bit of writing I've ever published. Yet, ironically, it emerged from a truly nasty-ass time in my life. My family was splitting up, I couldn't get laid to save my life, I was repeatedly in trouble with the law, and I damn near flunked out of college. I generally look upon that year as one in which I teetered on the brink of disaster. So it's odd to find that a piece from then is regarded as a classic, even now, by folks I don't even know. This here innernet shore does stump a feller time to time. Gerblesit.

Entomology Corner

How's this for a return from dormancy? Pretty left field if I do say so myself. Yessir, we got us here some Strange Bugs!

These were sighted at the Nacho Rancho over the summer.

This is a white-lined sphinx moth. It preys mercilessly on helpless flowers such as "columbines, larkspurs, petunia, honeysuckle, moonvine, bouncing bet, lilac, clovers, thistles, and Jimpson weed." It has also been known to plague Utah from time to time.

Here it is with a penny for scale. It's a big-ass moth, kids. That other moth, there, above the penny? It can't even step to the white-lined sphinx. The white-lined sphinx is on a whole 'nother plane. A whole 'nother game.

This is some kind of beefly. Can't pin down which particular beefly it is, but some kind. Beeflies are called beeflies because they are flies that resemble bees. I didn't know the Gud Lowered had even saw fit to make such a critter 'til we found this one crawling around in the bathroom.*

Here is the beefly trapped momentarily under a martini glass for scale. Sadly, it was near death. I released it outside shortly after this, only to find it dead on the pic-a-nic table come the morn. I hope it wasn't the last one.

So there you have it.

This foray into The Terrifying World of Science would not have been possible without the entomological internetical research efforts of FLOG™ette. Also she held up the penny.

*Tangential questions: For colonial insects, would they have brought an entire nest/hive aboard Noah's Ark, or just a queen and a drone? Would such a drone live long enough?

(Sometimes, as Carlin says, I have the sort of thoughts that kept me out of the really good schools. Then there are the thoughts that kept me out of Bob Jones University.)