Category: law

An unconvincing attack on Robert Sapolsky’s argument for determinism

December 22, 2024 • 10:00 am

I’ve mentioned before Robert Sapolsky’s recent book Determined: A Science of Life Without Free Will, a 528-page behemoth that at times is a bit of a slog and at other times an inspiration. (See here, here, here, and here for previous posts about it.) I found his argument against libertarian free will convincing, but of course I already believed that there is no good argument for libertarian (“you-could-have-done-otherwise”) free will (LFW), so I was on his side from the outset. I’m a hard determinist, and that’s based on seeing that the laws of physics obtain everywhere. But people are still maintaining not just that we can confect some form of free will despite the truth of determinism (these people are called “compatibilists”), but that we have real libertarian free will. They are wrong.

The video below, arguing for LFW, came in an email from Quillette touting their most popular articles of 2024.  But this was a short (4.5-minute) video, not an article, and I don’t think the video was one of the top items. Perhaps the note referred to a Quillette article by Stuart Doyle (below) on which the video is based, but that article was published in 2023.

At any rate, listen to the video first, and then, if you want to see what I consider an unconvincing argument against free will (though it does make some fair criticisms of Determined), click on the headline below to read Doyle’s argument that we have “not disproven free will.”

The narrator of the video isn’t named, but she pretty much parrots what’s in Doyle’s essay, emphasizing an argument for free will that Doyle considers dispositive, but to me seems irrelevant.

You may notice some problems with the “rebuttal” described in the video. For example, it seems irrelevant to argue that “just because a neuron doesn’t have free will doesn’t mean that the bearer of a collection of neurons (a person) doesn’t have free will.”  This is an argument that the emergent property of LFW can still appear even if neurons themselves behave according to physical law (a large argument in Sapolsky’s book).  Also, if quantum physics is truly and fundamentally unpredictable (and we don’t know this for sure), that itself, says the narrator, poses a problem for free will, because it means that, at any given moment, a quantum event may change your behavior.

There are two problems with the quantum-indeterminacy argument. First, nobody ever maintained that quantum events like the movement of an electron can result from one’s volition (“will”), so unpredictability at a given moment does not prove volition. Further, we don’t even know (and many of us doubt) that a quantum event can change human behavior or decisions on a macro level. Some people have calculated that it can’t.  So the whole issue of quantum unpredictability is irrelevant to the main problem: whether, at a given moment, you can, through your own agency, have behaved or decided differently.

This brings up the problem of predictability. The narrator’s (and Doyle’s) argument is that if you cannot predict someone’s behavior or decision—even with perfect knowledge of everything—then we have free will. As I just said, quantum physics may cause such fundamental unpredictability, but doesn’t support the notion that we have LFW  Yet the video and Doyle suggest there is another form of fundamental unpredictability that can cause a lack of predictability despite perfect physical knowledge: computational undecidability. Both the narrator and Doyle accuse Sapolsky of complete ignorance of this concept, which, they say, constitutes “a major flaw in Sapolsky’s argument.”  The narrator says that if human behavior is fundamentally unpredictable, then it supports the idea that free will exists. The premise of this criticism is, of course, is that if you can’t predict human behavior and decisions, even with perfect physical knowledge, then you can’t say that we lack free will. But these arguments using predictability are flimsy arguments against determinism, and, in fact, we’ll never have the perfect knowledge we need to predict behavior.

The problem is that quantum mechanics can in principle wreck perfect predictability of behavior, but that possibility doesn’t support free will. So does “computational undecidability”, another thing that impedes prediction, leave room for free will? I don’t think so (see below).

 

The essay by Stuart Doyle on which this video is based can be accessed by clicking the link below, or you can find it (archived here). Doyle is a graduate student in psychology at the University of Kansas.

Let me start by saying that Doyle’s essay, while it makes its points clearly and strongly, seems almost mean, as if Doyle takes great joy in telling us how stupid Sapolsky is.  And this is coming from someone (me) who’s been accused of the same thing. (I plead not guilty, at least for my published work.). But for a scholar publishing a rebuttal on a major site, it seems to me uncharitable to say stuff like this:

Sapolsky’s conclusions about morality and politics stand on nothing beyond his personal tastes. His book was marketed with such authoritative headlines as “Stanford scientist, after decades of study, concludes: We don’t have free will.” In contrast to the hype, Determined is ultimately a collection of partial arguments, conjoined incoherently. And Robert Sapolsky is to blame.

Sapolsky is to blame? Well, yes, of course he is, he’s the author, but the concept of blaming someone for writing a book they don’t like, and and accusing them of incoherence (I disagree) is not civil discourse. But let’s move on.

The observation that every object in the universe obeys physical law does directly imply that there is no amorphous “will” that can affect the laws of physics, something that physicist Sean Carroll (a compatibilist) has emphasized. To me, this puts the onus on those who accept LFW to tell us what aspect of human volition is independent of the laws of physics.What form of nonphysical magic can change the output of our neurons? So far, nobody has done this.  Thus, to a large extent, I think, one can tentatively accept determinism simply from knowing that every physical object obeys well-known laws and, as Carroll has written, “The laws underlying the physics of everyday life are completely understood.”  Carroll:

All we need to account for everything we see in our everyday lives are a handful of particles — electrons, protons, and neutrons — interacting via a few forces — the nuclear forces, gravity, and electromagnetism — subject to the basic rules of quantum mechanics and general relativity. You can substitute up and down quarks for protons and neutrons if you like, but most of us don’t notice the substructure of nucleons on a daily basis. That’s a remarkably short list of ingredients, to account for all the marvelous diversity of things we see in the world.

So yes, Carroll is a determinist in a way that refutes libertarian free will, but in the link saying he’s a compatibilist, you’ll see that he says that we have a sort of free will instantiated in the emergent properties of humans acting as agents and expressing preferences. (Of course our tastes and preferences are also formed in our brain by the laws of physics.) Well, there is no real emergence that defies the laws of physics: emergence may not be predictable from lower-level phenomena, but it is consistent and derives from  lower-level phenomena. Saying, as Doyle does, that “The ‘mechanism’ that produces deliberative choices is the whole person” is to say nothing that refutes determinism.

As I reread Doyle’s paper, I realized that although he does point out some contradictions in Sapolsky’s arguments, Doyle does nothing to dispel determinism.  What appears to be the central contention of his essay is that there is another way that physical objects can behave unpredictably beyond quantum mechanics, and that way is computational decidability. But that supports LFW no more than does any unpredictability of quantum mechanics.

Here’s what Doyle says:

So what could give us the ability to surprise Laplace’s demon? Computational undecidability. This is a term describing a system that cannot be predicted, given complete knowledge of its present state. This fundamental unpredictability shows up in algorithmic computation, formal mathematical systems, and dynamical systems. Though an unpredictable dynamical system may evoke the concept of chaos, undecidability is a different sort of unpredictability. As described by one of the greatest living information theorists, C.H. Bennett:

For a dynamical system to be chaotic means that it exponentially amplifies ignorance of its initial condition; for it to be undecidable means that essential aspects of its long-term behavior—such as whether a trajectory ever enters a certain region—though determined, are unpredictable even from total knowledge of the initial condition.

If a system exhibits undecidability, then it is unpredictable even to Laplace’s demon, while a system that is merely chaotic is perfectly predictable to the demon. Chaos is only unpredictable because the initial conditions are not perfectly known. So it would be fair to dismiss that kind of unpredictability as mere ignorance—an epistemological issue, not an ontological reality. But the delineation between the epistemic and the ontic falls apart when we talk about what Laplace’s demon can’t know. An issue is “merely” epistemological when there is a fact of the matter, but the fact is unknowable. There actually is no fact about how an undecidable system will behave until it behaves. For a fact to exist, it must be in reference to some aspect of reality. But nothing about present reality could ground a fact about the future behavior of an undecidable system. In contrast, the exact actual state of present reality grounds facts about the future of chaotic systems. We just can’t know the exact actual state of present reality, thus unpredictability is “merely” epistemological in the case of chaos, but not in the case of undecidability.

Arguably, human behavior is undecidable, not just chaotic. And that would mean that human choice is free in exactly the way we’d want it to be; determined—by our own whole selves, with no fact of the matter of what we’ll choose before we choose it. But Sapolsky seems unaware of undecidability as a concept. He mislabels cellular automata as chaotic, rather than recognizing the truth that they exhibit undecidability. This is a major factual error on Sapololsky’s part.

First of all, from what I’ve read of computational undecidability, it is a phenomenon not of physical objects, but of  philosophy combined with mathematical concepts and models. As Wikipedia says (and yes, I’ve read more than that article):

There are two distinct senses of the word “undecidable” in contemporary use. The first of these is the sense used in relation to Gödel’s theorems, that of a statement being neither provable nor refutable in a specified deductive system. The second sense is used in relation to computability theory and applies not to statements but to decision problems, which are countably infinite sets of questions each requiring a yes or no answer. Such a problem is said to be undecidable if there is no computable function that correctly answers every question in the problem set. The connection between these two is that if a decision problem is undecidable (in the recursion theoretical sense) then there is no consistent, effective formal system which proves for every question A in the problem either “the answer to A is yes” or “the answer to A is no”.

Two points here. First, Doyle gives not one example of a biological system in which “computational undecidability” would obtain.  If there was one, why didn’t he mention it? It seems to me solely a mathematical/logical concept, and my (admittedly cursory) readings have turned up nothing in biology or physics that seems “computationally undecidable”, much less in a way that would give us free will.

Second, even if there is a fundamental and non-quantum form of unpredictability in physics and biology, that doesn’t open up the possibility of free will. That would depend on whether our “will” could, in some non-physical way, affect the behavior of molecules. If it cannot happen with quantum mechanics, then how can it happen with computational undecidability? Unless Doyle tells us how this mathematical/logical idea can somehow affect our behavior according to our “will”, he has no argument against determinism and thus has no argument for free will.

Now it’s true that belief in “physical determinism—folding into that term quantum and other unpredictable effects not affected by our volition)—is largely a conclusion from observing nature. But just because we cannot absolutely prove determinism of behavior from science, we can still increase determinism’s priors by various experiments. These include recent studies showing that you can predict, using brain scanning, binary decisions that people make before they are conscious of having made them. For example, if people are given a choice of adding or subtracting two numbers, scanning their brains shows that you can, with substantial probability (60-70%), predict whether they’ll add or subtract up to ten seconds before they are conscious of having made a choice. And this is from crude methods of measuring brain activity (e.g., fMRI). Perhaps by measuring individual neurons or groups of neurons we could predict even better. But the experiments so far imply that decisions are made before people are conscious of them, and that raises the Bayesian priors that people’s behaviors are determined by physics, not by their “will”.

And there are various other experiments showing that you can both increase or decrease people’s sense of volition.  Electrical stimulation of the brain can make people think that they made a decision when in fact it’s purely the result of stimulating certain neurons. This causes people to make up stories of why they did things like raise their hand when a part of their brain is stimulated (“I decided to wave at that nurse”). But that sense of volition is bogus. This kind of post facto confabulation, which occurs very soon after you decide something or do something, is what makes us think what we have LFW. Further, there may be evolutionary reasons why we think we have libertarian free will, but I won’t get into those. Suffice it to say that I think that our feeling of having LFW is merely a very powerful illusion—an illusion that may have been installed in our brains by natural selection.

On the other hand, you can make people think that they didn’t have volition when in fact they did. A Ouija board is one example: people unconsciously move the “cursor” around to make words when they think that it’s moving independently of their will.  There are other experiments like these, all showing that you can either strengthen or weaken people’s sense of volition and will using various psychological tricks.  And they all go to refute the idea of libertarian free will

So yes, I think Sapolsky is right. His determinism agrees with nearly all the scientists (including compatibilists) who think that the notion of libertarian free will is bogus. To think otherwise is to believe that there is some kind of non-physical mental magic that can change the laws of physics.

One final point. Arguments about free will are not just philosophical wheel-spinning, for they play directly into an important part of society: reward and punishment—especially punishment. If the legal system truly embraced determinism of behavior, we could still have punishment, but it would be very different. We would punish to keep bad people off the streets, to give people a chance for rehabilitation (if they can be rehabilitated), and to deter others.  But what we would not have is retributive punishment: punishment for having made the wrong choice.

Legal systems are grounded on the notion that we are morally responsible, but under determinism we’re not. Yes, we can be responsible for an act, but “moral” responsibility is intimately connected with libertarian free will; it’s the idea that we have the ability, at any given time, to act either morally or immorally (or make any any other alternative decision, even if it doesn’t involve morality). Yes, I know there are some who think that the justice system already implicitly accepts determinism, but they are wrong. For if it did, we wouldn’t have any form of retributive punishment, including capital punishment.

As for rewarding good behavior, well, yes, you couldn’t have done otherwise than, say, saved a drowning person. But rewarding people who do good is a spur for other people to do good.  Even if the rewarded people don’t “deserve” plaudits in the sense that their accomplishments didn’t come from LFW, handing out rewards for things that society approves of is simply a good thing to do—for society.

Oh, a p.s.  Because people feel so strongly that they do have libertarian free will, I have faced more opposition when touting determinism than when touting the truth of evolution. As I always say, “It’s much harder to convince a free-willer of the truth of determinism than to convince a creationist of the truth of evolution.”  People feel so strongly that they have LFW that I have suffered two unpleasant consequences for touting determinism. I’ve told these stories before, but a big jazz musician nearly attacked me for implying that his solos were not truly extemporaneous, and that he could not have played a different solo, and on another occasion an old friend kicked me out of his house because he couldn’t abide the notion of determinism. No creationist has ever treated me in those ways!

Washington Post calls for research on puberty blockers and other affirmative treatment; notes lack of improvement in some studies

December 16, 2024 • 11:45 am

This WaPo article below (click headline to read, or find the piece archived here), discusses the new case about gender transitioning being adjudicated by the Supreme Court. It’s judging the constitutionality of a Tennessee law that, according to the paper, “bans the use of puberty blockers and hormones for gender-transition treatments in minors on the grounds that it unlawfully discriminates based on sex.” (23 other states have similar laws). I’m not sure how a ban on blockers can discriminate on the basis of sex if the hormones are banned in both males and females, but I’ll leave that up to the lawyers.

What’s important here is that the dispute about the blockers is now being discussed openly, in an Editorial Board op-ed in the Washington Post, while previously such discussion was taboo. Even questioning the use of such “affirmative treatments” was seen as “transphobic,” though there wasn’t good clinical evidence that they had good outcomes. They could even have been harmful, and in light of a lack of efficacy, they’re now banned in the UK and regarded as experimental treatments in much of Europe.

What we need, as the paper says, are “gold standard” studies: large controlled studies (double blind ones would be impractical given that the drugs have easily discernible effects) over a fairly long period of time.

Read below, and I’ll give some quotes (indented):

This unresolved dispute is why Tennessee has a colorable claim before the court; it would be ludicrous to suggest that patients have a civil right to be harmed by ineffective medical interventions — and, likewise, unconscionable for Tennessee to deny a treatment that improves patient lives, even if the state did so with majestic impartiality. The issue is subject to legal dispute in part because the medical questions have not been properly resolved.

Multiple European health authorities have reviewed the available evidence and concluded that it was “very low certainty,” “lacking” and “limited by methodological weaknesses.” Last week, Britain banned the use of puberty blockers indefinitely due to safety concerns.

“Children’s healthcare must always be evidence-led,” British Health and Social Care Secretary Wes Streeting said in a press release. “The independent expert Commission on Human Medicines found that the current prescribing and care pathway for gender dysphoria and incongruence presents an unacceptable safety risk for children and young people.”

An early Dutch study of blockers showed “promising results”, but the sample was too small to give definitive results, and wasn’t replicable:

Yet as other doctors began copying the Dutch, clinical practice outraced the research, especially as treatment protocols rapidly evolved. A British study attempting to replicate the Dutch researchers’ success with puberty blockers “identified no changes in psychological function” among those treated.

Some clinicians appear reluctant to publish findings that don’t show strong benefits. The British lackluster results were published nine years after the study began, after Britain’s High Court ruled that children younger than 16 were unlikely to be able to form informed consent to such treatments.

And here is the unconscionable censorship on the part of both the American government and the WPATH organization that I haven’t yet written about:

Internal communications from the World Professional Association for Transgender Health [WPATH] suggest that the group tried to interfere with a review commissioned from a team of researchers at Johns Hopkins University

Johanna Olson-Kennedy, medical director of the Center for Transyouth Health and Development at Children’s Hospital of Los Angeles, told the New York Times that a government-funded study of puberty blockers she helped conduct, which started in 2015, had not found mental health improvements, and those results hadn’t been published because more time was needed to ensure the research wouldn’t be “weaponized.” Medical progress is impossible unless null or negative results are published as promptly as positive ones.

Weaponized?  WEAPONIZED? The study is done, but the results aren’t ideologically pleasing to gender activists, and so the study languishes, unpublished. That is unethical, for whether or not one uses blockers can have permanent effects on the well being and future fertility of adolescents.

And so we have one more example of science being suppressed because it didn’t give the results activists wanted. But this story isn’t over. As the Post recommends, Congress should fund larger and wlll-conducted trials of blockers with followups on adults who have gone on to estrogen or testosterone therapy. Given the increasing number of people who want to transition, such studies are imperative. But now we lack evidence, and without that the use of blockers should, I think, be stopped. Anecdotal evidence is not enough.

Should we ostracize those who voted for Trump?

November 10, 2024 • 9:30 am

Despite the calls of both Presidential candidates to “unite America”, the calls of many to “reach across the aisle” and confect bipartisan legislation, and the advice of some that it’s time to discuss America’s differences instead of hating one’s opponents, we are now hearing calls from Democrats and liberals to boot those who voted for Trump out of our lives.

I disagree. I know some of those people, and although I don’t like the way they voted, I don’t think that’s sufficient to avoid them forever, or to give them sharp lectures that they are fascists and tried to ruin America and our livelihood. There are, as I’ve pointed out in the nooz over the last few days, a diversity of reasons why people voted for Trump: wokeism of the Left, their own economic problems due to inflation, immigration, and so on—reasons that can be debated but not dismissed.

Sadly, we have some on the Left becoming haters like this. One such person is discussed in a column on by Jonathan Turley written on his website.  Turley is a professor at George Washington University Law School, an attorney, a legal scholar. and, I believe, a libertarian.  As noted below, Turley wrote a recent column in The Hill about the “liberal rage” that is spreading now that Democrats have started to internalize the election debacle. In that piece Turley made a reasonable point:

It is important to note at the outset that there is no reason Democratic activists should abandon their values just because they lost this election. Our system is strengthened by passionate and active advocacy.

Rather, it is the collective fury and delirium of the post-election protests that was so disconcerting. Pundits lashed out at the majority of voters, insisting that the election established that half of the nation is composed of racists, misogynists or domination addicts who long to submit to tyranny.

No, not everyone who voted for Trump is a fascist racist, or misogynist. (For crying out loud, a huge number of women voted against Harris.( In fact, more than half of all Americans voted for the Orange Man, since Harris apparently lost the popular vote. I am embarrassed before the world that we chose Trump to hold the most important job in the country, but there it is.

Ergo the rage. In his new column, Turley note a particularly striking and offensive (to me) example of that rage: a resident in psychiatry at Yale. Turley’s words:

With women pledging to break up with their boyfriends and divorce their husbands over the Trump victory, Yale University chief psychiatry resident Dr. Amanda Calhoun is advising that it may also be necessary for your mental health to cut off your family and friends who supported Trump. In that way, you can avoid being “triggered” by opposing political views — much like Yale itself.

As academics, we are dealing with the election on campuses across America. After the election, I had some valuable discussions with students who supported Harris and some who supported Trump. I wish there would be more interaction between the two groups. That is why this story stood out for me. I do not believe that further separation or isolation will help this country or these individuals.

Dr. Calhoun went on MSNBC’s Joy Reid to offer the curious take on good mental health. Reid has spent the week condemning the majority of voters (particularly minority voters) in the nation as racists and misogynists for the Trump victory.

Reid joined a rising tide of rage, which I discussed in my column this weekend. Dr. Calhoun added her voice to the madness.

“So, if you are going into a situation where you have family members, where you have close friends who you know have voted in ways that are against you… it’s completely fine to not be around those people and to tell them why…

…You know, to say, ‘I have a problem with the way that you voted because it went against my very livelihood, and I’m not going to be around you this holiday. I need to take some space for me.’ I think you should very much be entitled to do so, and I think it may be essential for your mental health.”

There is another possibility. You can try to resolve those feelings with people who you previously liked or loved. It may actually help to discuss these issues outside of the echo chamber of your political associations.

If you want to hear Calhoun, who is African-American, actually say what she said above, click on the screenshot below, which will take you to the Fox News column showing a video of Calhoun speaking to Joy Reid on MSNBC. Yes, the words she said are indeed the ones above:

Turley adds this and touts his book, which I haven’t read:

Across the country, women have been cutting their hair and joining the Korean 4B movement—bihon (no marriage), bichulsan (no childbirth), biyeonae (no dating), and bisekseu (no sex). One is quoted as saying, “I fear The Handmaid’s Tale will become our reality.”

It is a curious response since figures like Reid blame white women for the loss. Trump won white women voters by eight points at 53 percent. Harris actually fell slightly in the support of women overall. Conversely, roughly 43 percent of men voted for Harris. Yet I watched one deranged voter say that she is thinking of buying a “Glock” and shooting the first man who comes near her. If so, she would have an over 4 out of 10 likelihood of shooting a fellow Harris supporter.

None of this is good for our nation’s mental health and suggesting that people retreat further into their silos does not make for particularly healthy advice.

As discussed in my book, The Indispensable Right, we have become a nation of rage addicts. Taking another hit of rage will do little to break that addiction.

Now I didn’t vote for Trump, of course, but I am not prepared to either lecture people who did, telling them that they were attacking my livelihood, or telling them that I don’t want to associate with them. I suppose it’s okay to say that “I want to take some time for myself right now,” without giving the reason, and then trying to have a discussion later.

Of course people can sever any relationship they want over the election, but that sort of attitude doesn’t seem to me conducive to mental health—even though Calhoun is a shrink—and it’s certainly not good for the Democrats. After all, a common element in post-election analyses is the idea that the elitism of Democrats, combined with their characterizing their enemies as yokels or fascists, are factors that turned off centrists and leftish Republicans.

There will be some lively discussion around the Thanksgiving and Christmas groaning boards, but Calhoun’s table will be emptier than usual.

h/t: Bill

Trump wins another round: Supreme Court rules that he’s partly shielded from prosecution

July 1, 2024 • 11:00 am

This I didn’t expect, and it’s a decision by a 6-3 vote, with Jackson, Kagan, and Sotomayor dissenting. Trump is now apparently shielded from prosecution for official acts, but not private ones. That’s going to cause great confusion, but it’s also going to delay his trials, making it easier for him to win November’s election.

From the NYT; click the headlines to read (archived here, but the feed changes):

An excerpt as things unroll in real time:

The Supreme Court ruled on Monday that former President Donald J. Trump is entitled to some level of immunity from prosecution, a decision that will almost surely delay the trial of the case against him on charges of plotting to subvert the 2020 election past the coming election in November. The vote was 6 to 3, dividing along partisan lines.

Mr. Trump contended that he was entitled to absolute immunity from the charges, relying on a broad understanding of the separation of powers and a 1982 Supreme Court precedent that recognized such immunity in civil cases for actions taken by presidents within the “outer perimeter” of their official responsibilities. Lower courts rejected Mr. Trump’s claim, but the Supreme Court’s ruling may delay the case enough that Mr. Trump would be able to make it go away entirely if he prevails in November.

Here’s what to know:

  • The ruling: The justices said that Mr. Trump is immune from prosecution for official acts taken during his presidency but that there was a crucial distinction between official and private conduct. The case returns to the lower court, which will decide whether the actions Mr. Trump took were in an official or private capacity.

  • The charges: The former president faces three charges of conspiracy and one count of obstructing an official proceeding, all related to his efforts to cling to the presidency after his 2020 loss. He was indicted last August by the special counsel, Jack Smith, in one of two federal criminal cases against him; the other relates to the F.B.I. raid on his private club, Mar-a-Lago, in August 2022 that recovered missing government documents.

  • The trial timing: The prospects for a trial in the 2020 election interference case before the election seem increasingly remote. If Mr. Trump prevails at the polls, he could order the Justice Department to drop the charges. The bottom-line effect of the court’s ruling appears to be that the trial judge in Washington, Tanya S. Chutkan, is going to have to hold an evidentiary hearing on many, if not most, of the allegations in the special counsel’s indictment of Mr. Trump. The fact-finding process the court has ordered could take a while not only to conduct, but also to prepare for.

  • Lower courts ruled against Trump: Judge Chutkan of the Federal District Court in Washington denied Mr. Trump’s immunity request in December. “Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote. A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed in February.

Apparently the January 6 case will go back to an appellate court for further consideration, and that means that a lot of time will pass (way past the election) before this case is decided.

Click to read the ruling as a pdf that you can download:

We are well and truly screwed: the President can commit as many crimes as he wants so long as they are “official acts”, and he has nothing to lose by doing that. And if he gets elected in November, a prospect that seems increasingly likely, he could simply order the Justice Department to drop the whole case against him.

If you’re a lawyer or legal eagle, weigh in below.

J. K. Rowling scuppers Scotland’s new “Hate Crime and Public Order Act”

April 12, 2024 • 10:30 am

There’s a good article in Quillette showing how one person, the notorious but (to me) highly admirable J. K. Rowling singlehandedly undercut Scotland’s new Hate Crime and Public Order Act that came into effect on April 1. I explained this law on March 27, also showing how the Scottish Police published as an example a woman named “Jo” (Rowling’s nickname) who said that people who didn’t identify as one of the two genders “should be put in the gas chambers.”  That is, of course, an oblique swipe at Rowling by the government, and I suspect she could have sued for defamation. But she got her revenge in another way.

Rowling has been attacked by gender activists for two of her stands: that trans women remain (biological) men (and vice versa), and that certain positions should be reserved for natal women, including participation in women’s sports, incarceration in women’s prisons, and rape and sexual-violence counseling.  I agree with both of these positions, and also with Rowling’s insistence that with these exceptions trans people should be treated with respect and dignity, and afforded all other rights.

That, of course, is not enough for gender activists, who have demonized Rowling as a transphobe. But she refuses to be demonized, and has fought back against her detractors as well as against the new law, which basically equates trans women with biological women in all respects, and also penalizes those who oppose this view.

Click below to read, and I’ll show how Rowling took down the law. She did it with tweets.

You can see the new law, which I’ll call the HCPOA, at the first link above. It’s basically a blasphemy law that wouldn’t stand in America since it violates the First Amendment guaranteeing free speech. Here’s how I described it before:

Note that it is a crime to make statements about age, disability, religious affiliation, sexual orientation, transgender identity, or “variation in sex characteristics”, stuff that a “reasonable person” would find “threatening”, “abusive”, and even “insulting”.  You don’t even have to have the intent of stirring up hatred.

Further, look at (2)aii above. You are committing a crime even if you “communicate to another person material that a reasonable person would consider to be threatening or abusive”.  So, for example, if you email a friend that a guy you don’t like “must have a small dick” (a common insult for males, but also abusive because it makes fun of “variation in a sex characteristic”), or say to someone “Jack is a dotty old codger”, which insults someone on the grounds of age, then those might be offenses.

Also, as one reader said, “Part of the reason why people are so worried is that the guidance that Police Scotland have issued seems to be somewhat different from what the law itself says. It’s a download document 29 pages long.”  Looking at it briefly, I find two things extra worrying.

First, even if what you do doesn’t amount to a “crime,” it’s supposed to be reported and the coppers will investigate it, probably putting your name on the record,

Indeed, they DO put your name on the record, even if you haven’t violated the law. And employers and others can get access to your record. Note too that women are not included in the protected class, so you can spew all the misogyny you want. Here’s one example from the article:

Most of us wouldn’t regard mocking someone’s “non-binary” identity as deserving of a “hate incident” marker, but that’s what happened to a Conservative MSP, Murdo Fraser, after he shared a post on X ridiculing the Scottish government’s “non-binary action plan.” Every “community” has to have its own action plan these days, leading to a proliferation of oppressed groups with confusingly similar titles. “Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat,” Fraser wrote. “I’m not sure Governments should be spending time on action plans for either.”

He was aghast when he discovered that Police Scotland had logged an NCHI on his record for this joke, but hadn’t done the same in relation to the complaints against Rowling and Yousaf. He accused the force of “double standards” while SNP MP Joanna Cherry, a rare sensible voice within the party, suggested that senior officers were revising policy “on the hoof” to avoid the embarrassment of recording an NCHI against an internationally famous author. (This sequence of events became even more absurd when the force suddenly changed its tune, telling Fraser his personal details hadn’t been logged in relation to an NCHI after all.)

Further, application of this law is subjective, particularly because the determination of “hate” depends not at all on the violator’s intention, but on the subject’s interpretation of the violator’s motivation. It is, in other words, an “I’m offended” law.

That’s insane. As you might expect, the Scottish coppers are being flooded with complaints, many of them probably designed to undercut the law. They’re coming in at the rate of one per minute, and the cops are complaining that investigating every report (which they must do) distracts them from investigating more serious crimes. Finally, if you don’t want to deal directly with the cops when reporting an offense, the government has designated some weird “third party reporting centres” where you can register your offense. These include a sex shop (!) and a salmon and trout farm, presumably where you can buy some lox without being doxed.

Enter Rowling, my hero. She simply issued a series of tweets, the last one of which completely undermined the law by demanding that if anybody is arrested for misgendering (e.g., “going after a woman for calling a man a man”) she would simply repeat what got the person arrested so Rowling could be charged, too. And of course the Scottish police are not going to charge J. K. Rowling!

To show her devastating attack, delivered with with and humor, I’ll show all of Rowling’s tweets, as some will make sane people laugh.

First, her pinned tweet laying out her views. It’s long and you can click on it to read the whole thing, but note that she starts with the biological definition of the (two) sexes:

I believe a woman is a human being who belongs to the sex class that produces large gametes. It’s irrelevant whether or not her gametes have ever been fertilised, whether or not she’s carried a baby to term, irrelevant if she was born with a rare difference of sexual development that makes neither of the above possible, or if she’s aged beyond being able to produce viable eggs. She is a woman and just as much a woman as the others.

And then the devastating series of ten tweets followed by her admission that she was “just kidding”, and then her big challenge to the legal system..

“Love the leggings!” LOL.

The last tweet is her admission that she’s violated the HCPOA. Click screenshot to read the whole thing.

And, at the end:

It is impossible to accurately describe or tackle the reality of violence and sexual violence committed against women and girls, or address the current assault on women’s and girls’ rights, unless we are allowed to call a man a man. Freedom of speech and belief are at an end in Scotland if the accurate description of biological sex is deemed criminal. I’m currently out of the country, but if what I’ve written here qualifies as an offence under the terms of the new act, I look forward to being arrested when I return to the birthplace of the Scottish Enlightenment. If you agree with the views set out in this tweet, please retweet it.

Yes, ma’am:

The ten tweets above, with the eleventh as a finale, is one of the great takedowns of virtue-signaling activism of our era, featuring transwomen who, says Rowling, are “men, every last one of them.” Clearly an offense!

But the cherry atop this Cake of Snark is this:

As Quillette noted, “Feminists hailed the novelist as a heroine, understanding that she had thrown the protection provided by her wealth and status over thousands of other women.”  And don’t you doubt that if anybody is charged for a hate crime by calling a transgender woman a “man”, Rowling will simply repeat it. The cops would have to charge Rowling, too, and what are they chances they’d do that?

The new law, as an “I’m offended” blasphemy law, is unnecessary, unworkable, and impossible to apply.  It is not needed and should be repealed.  I have no idea what brought this dumb law onto the books, but Quillette hazards a guess, involving the Scottish drive for independence from Britain:

The ruling Scottish Nationalist Party (SNP) lost a crucial referendum in 2014, failing to persuade enough Scots to vote in favour of independence, and it has seemed rudderless ever since. Much of what has happened in Scotland in the last decade can be traced back to that crushing disappointment, as the SNP struggled to establish its purpose and identity. In an irony that’s hard to miss, a party built on the supposedly indelible differences between the English and Scottish has sought to solve its problem by embracing a faddish ideology, transgenderism, which proposes that anyone can be whatever they like. And that includes an apparently unshakable conviction that men can become women and vice versa.

Indeed identity politics has become as central to the SNP’s creed, if not more so, than taking Scotland out of the UK. In a reversal of Whisky Galore-type stereotypes, in fact, the Scots have now taken on the role of witch-finders, sniffing out heretical thoughts under the cover of a supposedly liberal ideology. A vast amount of parliamentary time has been wasted on bad and unnecessary legislation advocated by trans activists, including a bill to remove all safeguards from the process that allows people to change their legal gender. The UK government salvaged the day by blocking the reckless Gender Recognition Reform Act last year, but the SNP had another trick up its sleeve.

The Hate Crime and Public Order (Scotland) Act came into effect on April 1—April Fools’ day, as critics were quick to point out. It’s been on the statute books since 2021, but implementation was delayed because no one could say with any certainty what it actually criminalised.

Well, who knows? But I do know that J. K. Rowling, despite her fame and wealth, has risked something more valuable—her reputation—by standing up for her principles.

New hate speech legislation threatens free expression

March 10, 2024 • 9:40 am

As people continue to fight an uphill battle for free speech in the U.S.—at least on college campuses—various Anglophone countries are busy confecting new hate speech laws.  These include but are not limited to blasphemy laws, a subset of restrictions that prohibits dissing religion. Wikipedia gives useful worldwide surveys of blasphemy laws as well as hate speech laws, divided up by country. You’d be surprised at how many Western countries have both kinds of laws, though often they’re not enforced.  But the new ones might well be, and I’m especially concerned about Britain, which seems to be on a binge of arresting or threatening people for speech that would be legal in America.

In a new article at The Free Press (click below to read), Rupa Subramanya summarizes new hate speech legislation in Britain, Canada, and Ireland, and has a few words about the Biden administration’s attempt to cub certain forms of speech that adhere to the First Amendment.

I’ll summarize what Subramanya says by country. Her text is indented, and anything flush left is mine.

CANADA

Take Canada. Civil liberties groups north of the border are warning a new bill put forward by Justin Trudeau’s government will introduce “draconian penalties” that risk chilling free speech. How draconian? The law would allow authorities to place a Canadian citizen under house arrest if that person is suspected to commit a future hate crime—even if they have not already done so. The legislation also increases the maximum penalty for advocating genocide from five years to life.

These punishments depend on a hazy definition of hate that Noa Mendelsohn Aviv, executive director and general counsel of the Canadian Civil Liberties Association, has warned could blur the line between “political activism, passionate debate, and offensive speech.”

A life sentence for advocating genocide?!  (Note that the CBC below says that a life sentence in Canada is actually 25 years.) But advocating genocide is not even illegal in the U.S., so long as your speech is not inciting imminent and predictable violence. I could stand in downtown Chicago and cry “Gas the Jews” without violating any laws. Or give a speech on it, though of course nobody would invite me to do that save perhaps the SJP.  And that’s okay, because so long as you’re not intending to incite violence, your arguments could help opponents sharpen theirs, and at the least “out” you as a hateful bigot. Remember, free speech frees you from the legal consequences of your speech but not the social consequences. And of course you can be fired from some jobs for such expressions.

The first link above, from the CBC, verifies this, and says that “regular” hate crimes could carry a sentence of up to five years. It also shows how nebulous the proposed definition of “hate” and “hate speech” are these:

The bill proposes increasing the maximum punishment for advocating genocide to life imprisonment, and allowing sentences of up to five years in prison for other hate propaganda offences.

. . .[Hatred] will be newly defined as “the emotion that involves detestation or vilification” that is “stronger than disdain or dislike.”

The bill also says that a statement that “discredits, humiliates, hurts or offends” would not meet the bar to be considered promoting or inciting hatred.

The second bit—about what hate speech is not—is okay as it covers nearly all debatable issues, but basing true hate speech on interpreting an emotion is problematic.

Again from the CBC:

Jewish advocacy groups have welcomed the proposed changes, citing a sharp rise in antisemitism since the Israel-Hamas war began last fall.

In unveiling the potential life sentence for advocating genocide, [Justice Minister] Virani said he heard through consultation with stakeholders that the penalty should be increased.

Well, I’m a (secular) Jew, and I don’t welcome those changes. All they do is drive people who favor genocide underground, so though the proposed law may deter the expression of those sentiments, it won’t quash the sentiments themselves. Again, unless those calls actually lead to a genocide, or to immediate, intended, and predictable violence, both of which are unlikely, they should be legal.

IRELAND

In Ireland, the government is pressing ahead with controversial new restrictions of online speech that, if passed, would be among the most stringent in the Western world.

The proposed legislation would criminalize the act of  “inciting hatred” against individuals or groups based on specified “protected characteristics” like race, nationality, religion, and sexual orientation. The definition of incitement is so broad as to include “recklessly encouraging” other people to hate or cause harm “because of your views” or opinions. In other words, intent doesn’t matter. Nor would it matter if you actually posted the “reckless” content. Merely being in possession of that content—say, in a text message, or in a meme stored on your iPhone—could land you a fine of as much as €5,000 ($5,422) or up to 12 months in prison, or both.

As with Canada’s proposed law, the Irish legislation rests on a murky definition of hate. But Ireland’s Justice Minister Helen McEntee sees this lack of clarity as a strength. “On the strong advice of the Office of the Attorney General, we have not sought to limit the definition of the widely understood concept of ‘hatred’ beyond its ordinary and everyday meaning,” she explained. “I am advised that defining it further at this juncture could risk prosecutions collapsing and victims being denied justice.”

The law (see the link) also says you can go to jail for condoning, denying, or trivializing genocide, war crimes, or crimes against humanity. You don’t even have to promulgate this stuff: just denying it or trivializing it can send you to the slammer.

A murky definition of hate is a bug, not a feature, and is intolerable, for ite depends on “the everyday meaning of hate”, which varies among people. Further, “recklessly encouraging other people to hate” is ridiculous; an infringement on even talking to people without any clear consequences. What’s worse is that if you have “hate speech” stored somewhere but not shared, you can still go to jail.

BRITAIN

In Britain, existing online harm legislation means that tweeting “transwomen are men” can lead to a knock on the door from the cops. Now the governing Conservative Party is under pressure to adopt a broad definition of Islamophobia as a “type of racism that targets expressions of Muslimness or perceived Muslimness.”

Other parties have adopted this definition, and free-speech advocates in Britain worry that it is only a matter of time until a Labour-run government codifies the definition into legislation. To do so, they argue, would mean the introduction of a de facto blasphemy law in Britain.

There’s already a widely-used definition of “antisemitism” that can lead to punishment if it’s expressed in universities, and it’s this one:

“Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

While such expressions are legal in the U.S., and in schools that adhere to the First Amendment, note that it refers to hatred of Jews, not of Judaism. The British government’s definition of Islamophobia refers to criticism of “Muslimness or perceived Muslimness,” which could be construed as a blasphemy law criticizing Islam.  In other words, the Charlie Hebdo or Jyllands-Posten cartoons could violate the law. But neither the expression of antisemitism nor either construal of Islamophobia (hatred of Islam or of Muslims) should be illegal.  They are legal in America, and I don’t believe our speech laws are a whit more divisive than they are in Britain, which seems to be undergoing a paroxysm of division.

As for the statement “transwomen are men” being illegal, that’s palpably ridiculous. It is in fact biologically accurate, and you shouldn’t be penalized for saying something that’s scientifically correct. The regulation is meant to buttress a gender-activist ideology to force society to give full rights to trans people as members of their assumed rather than their natal and defined sex. While nearly all rights for trans people should certainly be the same as for non-trans people, there are some exceptions—exceptions involve rape counseling, sports participation, and incarceration.

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I won’t go into the details about America and the Biden Administration’s failed attempt to get speech restrictions about matters affecting homeland security, but this sentence distressed me:

A worrying number of Americans appear to be sympathetic to [MSNBC legal analyst Barbara] McQuade’s argument. A 2023 Pew survey found that just 42 percent of voters agreed that “freedom of information should be protected, even if it means false information can be published.”

Well of course publication of some false information is already prohibited under the First Amendment, including false advertising and stuff that’s defamatory, but a lot depends here on what the public perceives as “publishable false information”. I think the American courts have already settled this pretty well, so I’m curious how many people even know the already-existing rules.