Month: December 2019

In Brown v. City of Glendale (D. Ariz.), plaintiff is suing “for malicious prosecution (both under 42 U.S.C. § 1983 and under state law) following his acquittal in a state-court prosecution for sexual assault. Brown contends the charges arose because a member of the Glendale [Arizona] Police Department filed false police reports, lied in a search warrant affidavit and while testifying before a state grand jury, and concealed exculpatory evidence. The first trial against Brown, in 2015, resulted in an acquittal on some counts, a dismissal of some counts, and a mistrial on some counts, and the 2017 retrial resulted in an acquittal on all remaining counts.”

The case remains pending, and the charges against the City have of course not been either proved or disproved, but Friday Judge Dominic W. Lanza dealt with the City defendants’ sealing motion:

Pending before the Court is Defendants’ motion for leave to file their summary judgment motion and exhibits thereto under seal. For the reasons stated below, the motion is denied without prejudice.

The public has a general right to inspect judicial records and documents, such that a party seeking to seal a judicial record must overcome “a strong presumption in favor of access.” To do so, the party must “articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure….” The Court must then “conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records secret.” “After considering these interests, if the court decides to seal certain judicial records, it must base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.” Id.

The “stringent” compelling reasons standard applies to all filed motions and their attachments where the motion is “more than tangentially related to the merits of a case.” A motion for summary judgment is clearly such a motion, and the “compelling reasons” standard applies to the motion and its exhibits.

Defendants state that the motion “contains confidential medical records of testifying witnesses and privileged and confidential transcripts of grand jury testimony from Officer Gonzalez.” The motion to seal is three sentences long and seeks to seal 632 pages—the entirety of the summary judgment motion and all 18 exhibits. [“Defendants City of Glendale and Lawrence Gonzalez (‘Defendants’) move this Court for an order directing the Clerk to file under seal their Motion for Summary Judgment. The Motion contains confidential medical records of testifying witnesses and privileged and confidential transcripts of grand jury testimony from Officer Gonzalez. Therefore, pursuant to LRCiv 5.6, Defendants move this Court for an order directing the Clerk to file under seal Defendants’ Motion for Summary Judgment.” -EV] Essentially, Defendants request that the Court resolve this case entirely in secret.

Defendants have not attempted to “articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure….” Moreover, the Court notes that at least some of the exhibits the parties seek leave to file under seal seem so innocuous that the Court wonders what interest Defendants have in maintaining secrecy.

Thus, the motion is denied without prejudice. To the extent that the parties wish to try again, they must include—for each document they wish to file under seal—a specific description of the document and compelling reasons for sealing that document, supported by specific facts. The more specific and compelling the reasons and facts provided are, the more likely it is that the Court will find that compelling reasons justify sealing the documents. To the extent that only portions of certain documents might satisfy the Kamakana standard, such that Defendants wish to propose redactions, Defendants shall lodge under seal unredacted versions in which the text which Defendants wish to redact is highlighted to facilitate the Court’s review.

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Ram Dass, the psychedelic pioneer once known as Richard Alpert and notorious for getting fired by Harvard after giving undergraduate students drugs in the early 1960s, died at age 88 a little more than a week ago. So passed one of the figures who helped make postwar America vastly more individualistic, libertarian, weird, and wonderful.

Ram Dass’ journey from being the wealthy, repressed homosexual son of a railroad baron to a conventionally promising academic psychologist to the author of bestselling hippie bibles to the leader of a Hawaii-based New Age community was very public and extreme. But it neatly traces the arc of a square, buttoned-down Organization Man country into a place where hyperindividualized freak flags became the national uniform and the pursuit of spiritual and psychic wisdom became legitimate. Without figures such as Ram Dass—relentless seekers who challenged the boundaries of common decency and bourgeois respectability—we’d all be living in much duller, grayer world.

With tender hearts we share that Ram Dass (born Richard Alpert) died peacefully at home in Maui on December 22, 2019 surrounded by loved ones.
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He was a guide for thousands seeking to discover or reclaim their… https://t.co/rWZdF09wEW

— Ram Dass (@BabaRamDass) December 23, 2019

Richard Alpert‘s father was the president of the New Haven Railroad, and the future Ram Dass grew up rich and entitled. He eventually made his way to Harvard as an assistant professor of psychology, where he crossed paths with Timothy Leary and helped create the “Good Friday experiment,” which catalyzed the nascent psychedelic movement. In short order, he and Leary were kicked out of Harvard and ended up living in a commune in upstate New York where they, along with Ralph Metzner (who himself died earlier this year), published an acid-drenched version of the Tibetan Book of the Dead that inspired the Beatles, among others.

In 1967, Alpert migrated to India and came back to the United States a few years later as Ram Dass. His 1971 book Be Here Now, cheekily dedicated to “the one eye love” and subtitled a “cook book for a sacred life,” helped introduce America to the now-ubiquitous term namaste and other Eastern mystical concepts. He eventually landed in Hawaii and created the Love Serve Remember Foundation.

Stripped of its Day-Glo, larger-than-life trappings, Ram Dass’ personal and public journeys are not so different from the ones traveled by the rest of postwar America. Given a materially rich and privileged starting point, he became interested in more spiritual and existential questions than he might have had he been born just a few generations earlier. Even as he strove for the divine, he struggled with basic instincts, including an unwillingness to forgive the future New Age superstar Andrew Weil, who as an undergraduate at Harvard blew the whistle on the drug experiments that led to Alpert’s and Leary’s dismissal from that institution. Ram Dass eventually made peace with it all, including with his frenemy Timothy Leary, with whom he had many disagreements over the years. As Leary approached his own death in 1996, Ram Dass remarked that they’d engaged in a “hell of a dance” with each other and the wider world. (Watch that moment below, as captured in the 2014 documentary Dying To Know.)

Namaste, Ram Dass, namaste. We bow to the divine in you, as you blew our minds and expanded our consciousness. Our world is bigger, less conformist, and more interesting because of you.

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2019 was the year that the term cancel culture went mainstream, as a rotating cast of characters (some famous, some not) who did unwise things (some awful, some not) faced the shame mobs.

It was not always a fate worse than death. Indeed, critics of the concept have claimed that to be canceled is merely to be criticized, often deservedly. The New Republic‘s Osita Nwanevu called cancel culture a “con” on the grounds that several of the better-known victims of attempted canceling have actually come out ahead (Dave Chappelle being a prominent example).

But for every Dave Chappelle, there’s a Shane Gillis, who was fired as a Saturday Night Live cast member for using offensive language in some his previous comedy. Gillis isn’t dead; he isn’t even unemployed, as he’s performing standup again. But his chance at mainstream success is ruined for now, because a journalist thought it critically important to subject his past work to our current moment’s standards for acceptable comedy.

Democratic presidential hopeful Andrew Yang, the only candidate to address cancel culture in any meaningful sense, said of Gillis: “I believe that our country has become excessively punitive and vindictive about remarks that people find offensive or racist and that we need to try and move beyond that, if we can. Particularly in a case where the person is—in this case—a comedian whose words should be taken in a slightly different light.”

I’m with Yang: We would all be better off showing a little more mercy in 2020. But first, let’s recall five of the most notable cancel culture moments of 2019.

1. The Carson King episode wins first prize. King, a 24-year-old security guard who parleyed a viral ESPN College Gameday moment into an impressive $1 million charity haul, gave an interview to Des Moines Register reporter Aaron Calvin. Calvin’s eventual article included insensitive tweets that King had sent years ago, as a 16-year-old, which prompted Anheuser-Busch to disassociate itself from King. The paper initially doubled down on the decision to mention the tweets, but then fired Calvin after social media users discovered that the reporter had also tweeted dumb, insensitive things when he was younger. The former Register reporter nonetheless denies that he was canceled, or that he canceled King, or that cancel culture is even real.

“The specter of ‘cancel culture’ is a concept most often invoked to protect those in power, often straight white men such as myself, from facing consequences for their actions, but I want no part in it,” wrote Calvin in a bizarre and frequently contradictory piece for the Columbia Journalism Review. “I’m not going to start a YouTube channel railing against the perceived dangers of PC culture. I believe I lost my job unfairly. At the same time, I firmly believe that people, especially those in power, should be held accountable for what they say and do.”

2. Trolls from the far right and the far left worked together to publicize racist comments that Parkland survivor and conservative activist Kyle Kashuv had made in a group chat. Kashuv, a teenager, had made the rude comments long before the Parkland shooting, which he said had forced him to “mature and grow in an incredible drastic way.” He apologized for the remarks he had made as a “petty, flippant kid,” and he practically begged Harvard University not to de-admit him. But Harvard’s admissions office, which takes racism very, very seriously (except against Asians), was not in a forgiving mood, and Kashuv lost his spot.

3. J.K. Rowling confirmed the long-held suspicions of the progressive left when she tweeted in a defense of British think tank employee who had lost her job for criticizing ideas associated with the trans rights movement. Eagle-eyed Twitter users had previously noticed the no-longer-beloved Harry Potter author favoriting tweets from noted TERFs (that’s Trans Exclusionary Radical Feminists). Vox lamented that Harry Potter was now basically ruined forever: Harry, Ron, Hermione, and Hagrid would have to be canceled along with their creator, it seems.

4. Rowling was hardly the only author of young adult fiction to face the proverbial guillotine in 2019. Indeed, Y.A. online culture is one of the most toxic, cancel-prone corners of the internet. Here’s Jesse Signal on the crazy controversy over one book, Blood Heir, that faced absurd allegations of racism:

Amélie Wen Zhao, a woman of Chinese descent who was born in Paris and raised in Beijing, had won herself an enviable three-book deal for an Anastasia-tinged adventure: “In the Cyrilian Empire,” went the publication materials, “Affinites are reviled and enslaved. Their varied abilities to control the world around them are unnatural—dangerous. And Anastacya Mikhailov, the crown princess, might be the most monstrous of them all. Her deadly Affinity to blood is her curse and the reason she has lived her life hidden behind palace walls.” The adventure kicks off when Ana’s father is murdered and she is framed, forcing her to flee. The first book was due out in June.

At some point in January, though, there emerged a vague Twitter-centered whisper campaign against Zhao….

It was open season from there: People picked over the limited information about the book to find something, anything, to justify being angry. L.L. McKinney, a Y.A. author who recently published her own debut novel and who tends to be an active participant in these pile-ons, noted that some of the publicity material described Blood Heir‘s world as one in which “oppression is blind to skin color.” “….someone explain this to me. EXPLAIN IT RIGHT THE FUQ NOW,” she tweeted, accusing the author of “internalized racism and anti-blackness.” (The logic appears to be that because our world has racism, it’s unacceptable to imagine a world that does not.)

Zhao decided not to publish Blood Heir, then announced it wouldbe published after all—pending a thorough review by sensitivity readers.

In true Carson King/Aaron Calvin style, one of Zhao’s main critics, a writer named Kosoko Jackson, himself became a target of the cancelers after his novel foolishly included a Muslim villain. How dare he.

5. Not all of the canceled are people. A mural at George Washington High School in San Francisco depicted scenes of slavery and of violence against Native Americans. The artist, a 1930s leftist named Victor Arnautoff, wasn’t celebrating those things. Quite the opposite: He didn’t like the ways the U.S.’s flawed and often brutal founding had been whitewashed, and he wanted to expose America’s complicity in those crimes. It’s a progressive message, but it offended some progressives who thought high school students might be triggered by the truth, so the school decided to get rid of it.

The price tag for canceling the mural: $600,000, thanks to a mandatory environmental impact report.

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