A Moynihan intro on theft and “Jew face” Lara Bazelon on rap lyrics as evidence, January 6th prosecutions, RICO, prosecutorial insecurity and overreach Artists, characters, and belief A Title IX violation is worse than being convicted for robbery Lara’s new podcast
Ok, thank you for this - I made a similar comment but I don’t have any IRL Fif friends so I have no one to keep me honest…but I’ve been convinced there’s some pretty overt flirting.
Third Sunday penciled in for 8 pm ET tonight, via Zoom. Expect an email. All columnistas actually in the country, if not quite the mainland United States. Weekend post coming up soonish.
Not sure how I'll active I'll be, but id rather be a member for when i get cancelled (I'm being tongue in check, stem is mostly ok except for annoying performative colleagues
So I'm going to push back on the part about using lyrics as part of evidence.
First, what Willis said IS chilling and bad. But "Prosecutor says dumb, overzealous shit" seems about as newsworthy as "local man mows lawn on Saturday".
As far the actual legality goes, evidence of a crime doesn't have to be illegal.
Like if someone say "I really wish someone would take care of Johnny" and then goes and buys some carving knives and tarps and is then caught by traffic camera driving toward Johnny's house the night before he is killed by carving knives.
Well none of those things is a crime. It's not illegal to say you wish someone was dead. Buying knives and tarps aren't crimes. Driving somewhere isn't a crime. But they are all EVIDENCE of the crime.
So even they conceded "Well unless he was rapping about something horribly specific". So it basically comes down to them saying "only good evidence should be allowed" but the eternal question of these things of good/bad is who determines what's good and bad?
Well, thankfully in the legal system there's a very clear answer, that's exactly what juries are for for deciding issues of fact and what is and is not compelling. It's not a legal procedural question and frankly what people write about can obviously be evidence. I agree that in this case it's BAD evidence, but it IS evidence. We don't want a system where there's someone determining what's good and bad evidence before it goes to the jury whose job it is to decide questions of fact.
You see the same shit on the Trump defenders now from her indictment of him. (and PS, don't listen to anyone who isn't familiar with Georgia law, specifically about the RICO stuff as it's quite different there) basically the stuff laid out as evidence of the crime isn't a crime. Like....no shit. Evidence doesn't have to be illegal.
100% this is my position. If the guy who wrote true detective gets implicated in some weird sexual cult where where there are girls raped and posed with antlers on, well then his fiction should absolutely be admissible.
Let the jury sort it out. And if the worry is that juries are stupid and vulnerable to persuasion, well that is just an argument against using juries at all. If you think they are too dumb to judge this evidence with the appropriate weight why should they be trusted with all the other evidence?
If the guy who wrote true detective is implicated in a cult like that then there should be other evidence to go on. There is a chilling effect when someone's fiction or art can be used against them.
That's what makes a case though. The sum of all the evidence. It's extremely common for any particular piece of evidence to not be problematic in and of itself. It's in the context of everything else that it becomes a problem.
Like they have a record of me buying two gallons of bleach. Then they find some blood stains in my house and that it's been cleaned with a lot of bleach and the two gallons I bought are nowhere to be found.
Buying bleach isn't problematic. Not having bleach at home isn't problematic. The two facts together in context of the situation are evidence. A piece of evidence isn't proof of something, it's part of a whole story.
Yes, artistic expression is very different than buying bleach. One is an act where people explore ideas, perform alter egos, create fictions, etc. If we allow the careless inclusion of these things as another thumb on the scale it will have a reliable chilling effect on the culture.
So as Lara said, if you have the evidence of the crime, that should stand on its own. You don't need to stack on the character assassination of "this person writes violent lyrics as a part of their art"
I'm not going to say there will *never* be an instance where it should be permissible but it should be a very high bar. I think the California law that sets that high bar got it right so I agree with Lara here
I am not really at all worried about a chilling effect of people writing about crimes that then get accused of those crimes, that is a very very tiny slice of creators and in pretty much all the famous examples the people did in fact commit those crimes so there is no actual hazard demonstrated.
If this was just “they are rappers and rappers are violent”, or “they are rappers who rap about guns”. But that isn’t the case there are details that are relevant and connected. It might not be knock down evidence, but it absolutely IS evidence.
And there is no reason to disallow it. There simply is no demonstrated chilling effect nor a deep public interest in more art about crimes by criminals.
You don't need to worry about self censoring if you aren't going to be committing crimes. And I don't really care about the impacts on the creative free expression of criminals.
"I agree that in this case it's BAD evidence, but it IS evidence. We don't want a system where there's someone determining what's good and bad evidence before it goes to the jury whose job it is to decide questions of fact."
Don't judges often decide the permissibility of evidence? I'm with Lara on this one. Artistic expression should be protected. If there's material evidence that links them, great, but even if they wrote something very specific, the free expressions component trumps the interest in using it as evidence imo
Let's take someone has a lyric "I'm gonna kill my wife on May 12th with a 9mm" and then they find his wife on May 13th dead with a 9mm wound.
Clearly that's worth considering. At what point of abstraction does it stop becoming legitimate evidence? And the legal system is full of subjective tests but they at least try to have some criteria to evaluate and I just don't see how it's possible.
To me that's a question of credibility and not something for the judge to decide. I think this discussion would be helped by someone much more knowledgeable about evidentiary procedure than either of us, though.
yes, I understand that's the argument and of course did not think that anyone was saying that the lyrics themselves were the crime. Did you think that's what I was saying?
That may be the case in some cases but not in most, I don't think. I believe the California law being discussed on the pod is aimed at art being used as evidence, not art that is a crime itself.
Someone with superior audio editing skills needs to make a super-cut called Great Moments in Moynihan Negging Lara Bazalon. “Lara, do you want to make America great again?” would open it. In all seriousness this little subplot is my second favorite part of her appearances (the first of course being her refreshingly sane legal analysis)
Does anyone remember the sound guy from the early episodes? He was super lefty and they had a running joke where they made him out to be a MAGA Trump guy.
Bernstein's family have defended Bradley Coopers portrayal - I wonder how the perpetually offended will react.
But Bernstein's family said they were "perfectly fine" with Cooper using make-up to "amplify" his appearance.
"It breaks our hearts to see any misrepresentations or misunderstandings of [Cooper's] efforts," wrote Jamie, Alexander and Nina Bernstein in a statement posted online.
"It happens to be true that Leonard Bernstein had a nice, big nose. Bradley chose to use make-up to amplify his resemblance, and we're perfectly fine with that. We're also certain that our dad would have been fine with it as well."
Really enjoyed this with Laura Bazelon and Greg Lukianoff. As a culture we don't value free speech and due process enough.
PS - @michael /@kmele I'm ready to buy tha “Be Brave, Call Bullshit” Fifth Column t-shirt whenever it hits. Ill work it into rotation with my Megan Daum “nuanced AF” t…
I laughed a lot when you could hear Moynihan's mental gears cranking about "should I make a Jews in Hollywood joke?" and ultimately deciding against it.
I have had a lot of experience with the phenomenon on campus that Lara works on, and it was cathartic to hear that her work exists. Young people are being accused with but also without real evidence, and consequences are occurring which have been in no way guided by a fair and reasonable process. Some of the worst cases are international students, who have the additional visa consequences hanging over their head and even less recourse to family and legal assistance.
I’m also an expert in this area, and it’s been crushing to me how the issue has been totally abandoned by left-leaning defense attorneys for whom it should be a core issue.
Lara Bazelon shouldn’t be the exception. But because she is, one can’t help but admire her for doing this work.
Kmele was dead right when he said that freedom of speech has never been a popular position and is always opposed by the majority everywhere. When the movies are made about Skokie the hero is never the Jewish ACLU lawyer who defended the Nazi's right to march, it always the local high school teacher fighting to shut them down. As Michael pointed out the one thing people can't seem to get past is forming their opinion based on whether it is their friend or their enemy whose ox is getting gored.
I’m torn about whether a state school board and/or local school board should be able to dictate what is being taught to children in k-12. Firstly, how can you tell local parents, who come to a consensus about banning some woke shit being taught in schools in Florida and electing officials to make that a reality, that they shouldn’t be allowed to make that consensus decision? (Whether the state may have gone too far is another issue). Secondly, you can’t tell me that Kmele, Greg, and Lara would full-throatedly defend a neo-nazi teacher preaching their own nonsense to a class full of children, or getting kids to read Der Stormer in class in a positive light. There’s got to be a line somewhere, right?
Well and “what the curriculum is” is a different question from “what are teachers allowed to say”.
Like a lot of problems with schools the solution here is just vouchers and private schools. Let parents decide where they want to send their kids and the market will adjust.
Of the 65 minutes, I am going to guess ~40 is Moynihan flirting with Lara Bazelon.
They would create terrible children.
The children America needs
Ok, thank you for this - I made a similar comment but I don’t have any IRL Fif friends so I have no one to keep me honest…but I’ve been convinced there’s some pretty overt flirting.
I know she has a husband and family that she is *supposedly* committed to, but I'm not gonna lie, I ship Moynihan/Bazelon hard.
She’s divorced
What’s that? The sound of hope??
Could be!
If only Tumblr was still here, we'd have some just tremendous slash fanfic.
Third Sunday penciled in for 8 pm ET tonight, via Zoom. Expect an email. All columnistas actually in the country, if not quite the mainland United States. Weekend post coming up soonish.
This was the push I needed to join the FIRE Faculty network. Great work lads!
Wait, there’s a FIRE faculty network? Im part of HxA, but didnt know FIRE had something
https://www.thefire.org/get-involved/be-an-advocate/faculty-network
Not sure how I'll active I'll be, but id rather be a member for when i get cancelled (I'm being tongue in check, stem is mostly ok except for annoying performative colleagues
So I'm going to push back on the part about using lyrics as part of evidence.
First, what Willis said IS chilling and bad. But "Prosecutor says dumb, overzealous shit" seems about as newsworthy as "local man mows lawn on Saturday".
As far the actual legality goes, evidence of a crime doesn't have to be illegal.
Like if someone say "I really wish someone would take care of Johnny" and then goes and buys some carving knives and tarps and is then caught by traffic camera driving toward Johnny's house the night before he is killed by carving knives.
Well none of those things is a crime. It's not illegal to say you wish someone was dead. Buying knives and tarps aren't crimes. Driving somewhere isn't a crime. But they are all EVIDENCE of the crime.
So even they conceded "Well unless he was rapping about something horribly specific". So it basically comes down to them saying "only good evidence should be allowed" but the eternal question of these things of good/bad is who determines what's good and bad?
Well, thankfully in the legal system there's a very clear answer, that's exactly what juries are for for deciding issues of fact and what is and is not compelling. It's not a legal procedural question and frankly what people write about can obviously be evidence. I agree that in this case it's BAD evidence, but it IS evidence. We don't want a system where there's someone determining what's good and bad evidence before it goes to the jury whose job it is to decide questions of fact.
You see the same shit on the Trump defenders now from her indictment of him. (and PS, don't listen to anyone who isn't familiar with Georgia law, specifically about the RICO stuff as it's quite different there) basically the stuff laid out as evidence of the crime isn't a crime. Like....no shit. Evidence doesn't have to be illegal.
100% this is my position. If the guy who wrote true detective gets implicated in some weird sexual cult where where there are girls raped and posed with antlers on, well then his fiction should absolutely be admissible.
Let the jury sort it out. And if the worry is that juries are stupid and vulnerable to persuasion, well that is just an argument against using juries at all. If you think they are too dumb to judge this evidence with the appropriate weight why should they be trusted with all the other evidence?
If the guy who wrote true detective is implicated in a cult like that then there should be other evidence to go on. There is a chilling effect when someone's fiction or art can be used against them.
That's what makes a case though. The sum of all the evidence. It's extremely common for any particular piece of evidence to not be problematic in and of itself. It's in the context of everything else that it becomes a problem.
Like they have a record of me buying two gallons of bleach. Then they find some blood stains in my house and that it's been cleaned with a lot of bleach and the two gallons I bought are nowhere to be found.
Buying bleach isn't problematic. Not having bleach at home isn't problematic. The two facts together in context of the situation are evidence. A piece of evidence isn't proof of something, it's part of a whole story.
Yes, artistic expression is very different than buying bleach. One is an act where people explore ideas, perform alter egos, create fictions, etc. If we allow the careless inclusion of these things as another thumb on the scale it will have a reliable chilling effect on the culture.
So as Lara said, if you have the evidence of the crime, that should stand on its own. You don't need to stack on the character assassination of "this person writes violent lyrics as a part of their art"
I'm not going to say there will *never* be an instance where it should be permissible but it should be a very high bar. I think the California law that sets that high bar got it right so I agree with Lara here
I am not really at all worried about a chilling effect of people writing about crimes that then get accused of those crimes, that is a very very tiny slice of creators and in pretty much all the famous examples the people did in fact commit those crimes so there is no actual hazard demonstrated.
If this was just “they are rappers and rappers are violent”, or “they are rappers who rap about guns”. But that isn’t the case there are details that are relevant and connected. It might not be knock down evidence, but it absolutely IS evidence.
And there is no reason to disallow it. There simply is no demonstrated chilling effect nor a deep public interest in more art about crimes by criminals.
No, the chilling effect is not just about people who get accused of crimes, it's about people self-censoring because they're afraid their art could be used against them. FIRE has put a lot of their focus on this issue https://www.thefire.org/news/music-our-ears-california-law-restricts-use-artistic-expression-evidence-criminal-trials
Free speech is not always a "deep public interest" but it should be!
You don't need to worry about self censoring if you aren't going to be committing crimes. And I don't really care about the impacts on the creative free expression of criminals.
Sure, because no one has ever been falsely accused or convicted of a crime 🙄. We should care about everyone’s rights equally.
"I agree that in this case it's BAD evidence, but it IS evidence. We don't want a system where there's someone determining what's good and bad evidence before it goes to the jury whose job it is to decide questions of fact."
Don't judges often decide the permissibility of evidence? I'm with Lara on this one. Artistic expression should be protected. If there's material evidence that links them, great, but even if they wrote something very specific, the free expressions component trumps the interest in using it as evidence imo
My issue is the limiting principle.
Let's take someone has a lyric "I'm gonna kill my wife on May 12th with a 9mm" and then they find his wife on May 13th dead with a 9mm wound.
Clearly that's worth considering. At what point of abstraction does it stop becoming legitimate evidence? And the legal system is full of subjective tests but they at least try to have some criteria to evaluate and I just don't see how it's possible.
To me that's a question of credibility and not something for the judge to decide. I think this discussion would be helped by someone much more knowledgeable about evidentiary procedure than either of us, though.
yes, I understand that's the argument and of course did not think that anyone was saying that the lyrics themselves were the crime. Did you think that's what I was saying?
That may be the case in some cases but not in most, I don't think. I believe the California law being discussed on the pod is aimed at art being used as evidence, not art that is a crime itself.
Someone with superior audio editing skills needs to make a super-cut called Great Moments in Moynihan Negging Lara Bazalon. “Lara, do you want to make America great again?” would open it. In all seriousness this little subplot is my second favorite part of her appearances (the first of course being her refreshingly sane legal analysis)
Does anyone remember the sound guy from the early episodes? He was super lefty and they had a running joke where they made him out to be a MAGA Trump guy.
Anthony Fischer (sp?)
Not Anthony, but they coincided time wise. I think his name began with "C". Carlos? I'll give a listen to an early episode tomorrow.
I think he worked with/for Kmele at FreeThink. But I don’t think his name started with C. Maybe Jake?
He worked at the place we rented studio space at. He shall not be named.
His name was Voldemort?
I know his name!
Bernstein's family have defended Bradley Coopers portrayal - I wonder how the perpetually offended will react.
But Bernstein's family said they were "perfectly fine" with Cooper using make-up to "amplify" his appearance.
"It breaks our hearts to see any misrepresentations or misunderstandings of [Cooper's] efforts," wrote Jamie, Alexander and Nina Bernstein in a statement posted online.
"It happens to be true that Leonard Bernstein had a nice, big nose. Bradley chose to use make-up to amplify his resemblance, and we're perfectly fine with that. We're also certain that our dad would have been fine with it as well."
https://www.bbc.co.uk/news/entertainment-arts-66526446
Really enjoyed this with Laura Bazelon and Greg Lukianoff. As a culture we don't value free speech and due process enough.
PS - @michael /@kmele I'm ready to buy tha “Be Brave, Call Bullshit” Fifth Column t-shirt whenever it hits. Ill work it into rotation with my Megan Daum “nuanced AF” t…
Ah, Bazelon said “impactful”! I expected better.
long live impactful as a widely used word!
I’d like to know more about this cabal of Jewish film critics Moynihan is hanging out with
I laughed a lot when you could hear Moynihan's mental gears cranking about "should I make a Jews in Hollywood joke?" and ultimately deciding against it.
La Cosa Nose-tra.
(I’m a Jew and can say this... )
I'm Sicilian, I can laugh at it.
💀
I have had a lot of experience with the phenomenon on campus that Lara works on, and it was cathartic to hear that her work exists. Young people are being accused with but also without real evidence, and consequences are occurring which have been in no way guided by a fair and reasonable process. Some of the worst cases are international students, who have the additional visa consequences hanging over their head and even less recourse to family and legal assistance.
I’m also an expert in this area, and it’s been crushing to me how the issue has been totally abandoned by left-leaning defense attorneys for whom it should be a core issue.
Lara Bazelon shouldn’t be the exception. But because she is, one can’t help but admire her for doing this work.
What is this 65 minute nickel and dime bullshit…oh, wait…it’s a Bazelianoffapalooza!
Yeah, I’m on drugs. 🤖
I am not and yet understood. Well played Gordo. Well played.
I give you Rosie Langley (of The Langley Sisters) and ELO. I have a terminal crush on her for the record.
https://youtu.be/_4ikwriOSqw
I love this song and it will be stuck in my head all day
Gimme that part 2!
Kmele was dead right when he said that freedom of speech has never been a popular position and is always opposed by the majority everywhere. When the movies are made about Skokie the hero is never the Jewish ACLU lawyer who defended the Nazi's right to march, it always the local high school teacher fighting to shut them down. As Michael pointed out the one thing people can't seem to get past is forming their opinion based on whether it is their friend or their enemy whose ox is getting gored.
I agree with you, so I will defend to the death your right to say it.
I loved this so much. You don’t want to overload us, MM?!?!? STOP THAT NONSENSE!!! RELEASE PART 2 IMMEDIATELY!!!
I’m torn about whether a state school board and/or local school board should be able to dictate what is being taught to children in k-12. Firstly, how can you tell local parents, who come to a consensus about banning some woke shit being taught in schools in Florida and electing officials to make that a reality, that they shouldn’t be allowed to make that consensus decision? (Whether the state may have gone too far is another issue). Secondly, you can’t tell me that Kmele, Greg, and Lara would full-throatedly defend a neo-nazi teacher preaching their own nonsense to a class full of children, or getting kids to read Der Stormer in class in a positive light. There’s got to be a line somewhere, right?
Well and “what the curriculum is” is a different question from “what are teachers allowed to say”.
Like a lot of problems with schools the solution here is just vouchers and private schools. Let parents decide where they want to send their kids and the market will adjust.
They also pay the taxes. The reflexive pearl clutching by the free speech absolutists is getting old.
Bob Oedenkirk had this lyrics stuff figured out 30 years ago.
https://youtu.be/sCfQy0ZCHHw?si=lQDwdE4USCOOv3f5