Cancel Culture vs the Chicago Way

Chicago may not be what it once was, but it appears there are still some representatives of old school Chicago surviving today:

My July 22 column was titled “Something grows in the big cities run by Democrats: An overwhelming sense of lawlessness.”

It explored the connections between soft-on-crime prosecutors and increases in violence along with the political donations of left-wing billionaire George Soros, who in several states has funded liberal candidates for prosecutor, including Cook County State’s Attorney Kim Foxx.

Soros’ influence on these races is undeniable and has been widely reported. But in that column, I did not mention Soros’ ethnicity or religion.

You’d think that before wildly accusing someone of fomenting bigoted conspiracy theories, journalists on the union’s executive board would at least take the time to Google the words “Soros,” “funding” and “local prosecutors.”

As recently as February, the Sun Times pointed out roughly $2 million in Soros money flowing to Foxx in her primary election effort against more law-and-order candidates.

In August 2016, Politico outlined Soros’ money supporting local DA races and included the view from opponents and skeptics that if successful, these candidates would make communities “less safe.”

From the Wall Street Journal in November 2016: “Mr. Soros, a major backer of liberal causes, has contributed at least $3.8 million to political action committees supporting candidates for district attorney in Arizona, Colorado, Florida, Georgia, Illinois, Missouri, New Mexico, Texas and Wisconsin, according to campaign filings.”

The Huffington Post in May 2018 wrote about contributions from Soros and Super PACs to local prosecutor candidates who were less law-and-order than their opponents.

So, it seems that the general attitude in journalism is that super PACs and dark money are bad, unless of course, they’re operated by wealthy billionaires of the left. Then they’re praised and courted.

All of this is against the backdrop of an America divided into camps, between those who think they can freely speak their minds and those who know they can’t.

Most people subjected to cancel culture don’t have a voice. They’re afraid. They have no platform. When they’re shouted down, they’re expected to grovel. After the groveling, comes social isolation. Then they are swept away.

But I have a newspaper column.

Never submit to cancel culture, in any form. You might think you’re alone, but you’re not. Everyone else is just waiting for someone, anyone, to stand up to their malicious attempts to bully everyone.

Patreon denied preliminary injunction

From the Superior Court of San Francisco:

2020-07-29 LAW AND MOTION, 302, PREVIOUSLY SUBMITTED ON JUL-13-2020, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION IS TAKEN OFF CALENDAR PURSUANT TO THE ORDER DENYING PRELIMINARY INJUNCTION, FILED ON JUL-29-2020. (D302)

2020-07-29 ORDER DENYING PRELIMINARY INJUNCTION

There was also a hearing in Owen’s arbitration concerning Patreon’s motion for summary judgment today. That ruling won’t be given until next week, but based on what the lawyers have said, I think it is very, very unlikely that the arbitrator isn’t going to permit the arbitration to proceed to the final hearing.

So far, so good. Especially in light of the Commerce Department filing a petition to prevent the social media platforms from performing their little publisher/platform dance to avoid responsibility for their own actions.

The text of the judge’s order denying the injunction and declining to interfere in the 72 arbitrations has been posted publicly and can be read below. It is essentially the tentative ruling plus the judge addressing Patreon’s additional citations; read the whole thing for a good understanding of where the situation stands at this point in the process.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

ORDER DENYING PRELIMINARY INJUNCTION

Patreon seeks a preliminary injunction to enjoin defendants “from continuing to pursue improper claims against Patreon in JAMS arbitration,” pending this Court’s consideration and final adjudication of Patreon’s complaint for declaratory judgment. Defendants are individual claimants in 72 pending JAMS arbitration proceedings against Patreon. Patreon claims that those claims are barred by its Terms of Use because they involve nonarbitrable claims. Patreon’s request for a preliminary injunction is denied, for several reasons.

First, Patreon fails to show that it will suffer any irreparable injury or interim harm if an injunction does not issue. JAMS has agreed to determine the threshold jurisdictional issues Patreon raises and will afford Patreon an opportunity to object to its jurisdiction in the course of the arbitration proceedings. If Patreon is correct that Defendants’ claims are not arbitrable or are outside the scope of the parties’ agreements, the arbitrators presumably will rule in its favor on those issues. Merely having to incur expense in order to participate in arbitration proceedings is not irreparable harm.

Second, Patreon fails to show a reasonable likelihood of prevailing on its claims. Even if Patreon were correct that Defendants’ claims are not arbitrable, those issues are for the arbitrator, not the court, to decide. “An arbitration provision’s reference to, or incorporation of, arbitration rules that give the arbitrator the power or responsibility to decide issues of arbitrability may constitute clear and unmistakable evidence the parties intended the arbitrator to decide those issues.” {Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 892 [arbitration provision’s reference to JAMS rules that assign issues of arbitrability to the arbitrator “evidences the parties’ clear and unmistakable intent to submit issues of arbitrability to the arbitrator”].) Rule 8(b) of the JAMS Streamlined Arbitration Rules provides, “Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.” Indeed, Patreon asserts that a JAMS arbitrator has already ruled in its favor in a similar case. (Reply at 4 n.3.)

Third, California courts rarely grant the extraordinary relief Patreon seeks here: an injunction interfering with an ongoing contractual arbitration proceeding. “Once a dispute is submitted to arbitration, the [California Arbitration Act] contemplates limited, if any, judicial involvement. ‘Typically, those who enter into arbitration agreements expect that their dispute will be resolved without necessity for any contact with the courts. [Citation.] ‘It is the job of the arbitrator, not the court, to resolve all questions needed to determine the controversy.’” {Briggs v. Resolution Remedies (2008) 168 Cal.App.4th 1395, 1400.) That conclusion is “especially true” where, as here, “the arbitration began without the need to seek a court order compelling arbitration.” {Id. at 1401.) As another court has explained, “An arbitration has a life of its own outside the judicial system. The trial court may not step into a case submitted to arbitration and tell the arbitrator what to do and when to do it.” (Titan/Value Equities Group, Inc, v. Superior Court (1994) 29 Cal.App.4th 482, 487-489 [trial court exceeded its jurisdiction when it attempted to remedy arbitration delay by ordering arbitration to proceed under stated conditions subject to reinstatement on trial calendar].)

To be sure, Patreon is correct that this principle is not an inflexible one. However, the cases Patreon cited for the first time at the hearing do not support its position, either because no issue was actually raised or decided on appeal as to the propriety of such injunctive relief, or because they are readily distinguishable on their facts. (See, e.g., Brooks v. AmeriHome Mortgage Company, LLC (2020) 47 Cal.App.5th 624, 629, pet. fo r review filed, No. S261879 (June 9, 2020) [court issued preliminary injunction to enjoin arbitration of PAGA claim, which employer conceded was “nonarbitrable” under controlling authority]; Stasz v. Schwab (2004) 121 Cal.App.4th 420, 426-427, 442 [affirming judgment confirming arbitrator’s award; opinion notes that trial court denied repeated requests to stay arbitration proceedings, but suggests in dicta, citing federal authority, that “[i]f an arbitrator or sponsoring organization mistakenly accepts jurisdiction, a party may either seek judicial relief to enjoin the arbitration or object to jurisdiction in the arbitration proceedings and raise the lack of jurisdiction as a ground for vacating the award”]; Delta Dental Plan v. Banasky (1994) 27 Cal.App.4th 1598, 1602 [affirming summary judgment for dental plan; opinion notes that the AAA advised the parties it would resume the arbitration unless there were a court order staying arbitration]; International Film Investors v. Arbitration Tribunal of Directors Guild (1984) 152 Cal.App.3d 699,704 [dismissing appeal from judgment following trial court’s denial of petition for writ of prohibition seeking to prevent commencement of arbitration proceedings]; N.A.M.E.S. v. Singer (1979) 90 Cal.App.3d 653 [reversing order dismissing petition to confirm arbitration award]; Windsor Mills, Inc. v. Collins & Aikman Corp. (1972) 25 Cal.App.3d 987 [affirming judgment denying petition to compel arbitration and preliminary injunction against arbitration proceedings initiated by seller during pendency of buyer’s action for damages on ground that there was no agreement to arbitrate because buyer was unaware of arbitration provision].)

Briggs is closely analogous. There, the arbitrator stayed an uninsured motorist arbitration pending a determination of the insured’s entitlement to workers’ compensation benefits. The insured sought a petition for writ of mandate, which the trial court denied on its merits. The Court of Appeal affirmed on other grounds, holding that “the trial court lacked the authority to review a discretionary, prehearing order of an arbitrator.” (168 Cal.App.4th at 1397.) As it explained, “the trial court conducted what amounted to a de novo review of an arbitrator’s interlocutory order, something it had no statutory authority to review for any reason.” (Id. at 1401.) Here, Patreon is effectively seeking similar relief: immediate review of JAMS’ interlocutory orders submitting the contested issues to the arbitrators for decision, rather than immediately granting Patreon’s objections to arbitration or its alternative request to issue a blanket stay of the arbitration proceedings pending a ruling on Patreon’s request for coordination of those arbitrations. Under Briggs, the Court lacks authority to review those administrative decisions.

Accordingly, the court DENIES Patreon’s request for a preliminary injunction.

IT IS SO ORDERED.

Mailvox: the importance of family privacy

A reader belatedly decides that I was right to keep my family out of the public eye:

Just wanted to share with you what I’ve learned about keeping things private and especially keeping your children out of the social media world and all of that. One of the first times I saw you was on Jesse Lee Peterson, and when Jesse asked you about your kids I soured on you. He merely asked how many you had or how old they were, absolutely casual and normal questioning, but you went a bit quiet and hesitant and replied that you didn’t like to talk about your kids. I thought it was a bit rude and it sliced through the fun and camaraderie you two (and us in the audience) were enjoying.

I didn’t think anything ill of you for something that simple, but it seemed a strange quirk or issue, I wasn’t sure. But I read more of your blog, and have watched nearly every Darkstream since, and thought your rule about banning or ignoring the questions about yourself or your family were a bit overboard. Not because I didn’t know how much you’re hated by the SJW demons and how badly they would love to get any info on you they could to hurt you, that is obvious and I respect that justification for privacy. But the cloak around your family was extreme, again just insofar as even relaying an anecdote or being able to share memories about them as part of the dialogue, since a decent chunk of the community talks about the family and marriage cornerstones.

Well, here I am realizing how right you were, because my brother posted a picture on his FB of him holding a can of Goya from his truck’s cargo. He was smiling and posted it saying thank you to the President for appreciating the company and about how simple things like what Goya produces are taken for granted. A message of decency and gratitude, and the insanity that follows I still can’t believe. This vile woman went trawling through his FB, found pics of his kids with their school either captioned or mentioned, and contacted the fucking school to tell them their dad was dangerous, that he was a racist, blah blah. This nonsense took a few days to sort out as my brother had to return from his job, and he let the school have it for even entertaining this bullshit, and got them to apologize to him. It’s not a typical cancel culture ending, thank God, but the fact that he had to go through this shit in the first place!

Now I think about this, about my brother who is barely even political but just said thanks to the President for supporting a large company. That’s freaking it, nothing else on his FB, only pics of their family, dogs, etc.! So I thought back to you, about how you had reacted to Jesse, and how I misjudged you and didn’t FULLY appreciate what these monsters would like to do to you. I not only respect you shutting all inquiries about your family down, I admire it.

Fair enough. Now, I will readily admit that there is only so much you can do, what with public records and curious fans and naive friends and family members who don’t understand how there could possibly be any harm in posting innocent pictures where no one is doing anything even remotely objectionable. And eventually, your children are going to grow up and live their own lives.

But there is no reason to make it easy for the stalkers and trolls and would-be harassers to chronicle your life, and the harder you make it for them, the more likely it is that they will cross a criminal line that will give the police, or at least the social media police, a reason to crack down hard on them. And, more importantly, living a public life online should be the child’s choice, not the parent’s.

It’s too bad, because what parent isn’t proud of their children and eager to share their achievements and accomplishments. But the world has changed, we now live in a no-quarter culture that refuses to distinguish between combatants and non-combatants, and it is vital to understand that even as we embrace the conflict.

The Forge of Tolkien

How many of you read Tolkien’s stories and wish you could find yourself in the tale? Professor Rachel Fulton Brown, Associate Professor of History at the University of Chicago, introduces her new Unauthorized series, The Forge of Tolkien, with a meditation on Tolkien’s wordsmithing as an invitation to enter into the Greatest Fairy Story Ever Told.

For Unauthorized subscribers only. This will be a weekly series and we will introduce a subscription to it next month.

We can only hope

Left-wing politicians are anticipating martial law:

CNN: Let me ask you, mayor, because some of these images, they’re ugly. I mean, a Starbucks destroyed in the protests, a construction site for a juvenile detention facility set on fire, Seattle police say officers were burned when protesters threw explosive devices at them, and look, a lot of what’s happening here, this is not peaceful. This is just violent and destructive, and the president says he thinks mayors like you are refusing his help and those standby forces because he’s the one offering it. Does he have a point?”

Seattle Mayor: No. Again, the president’s actions clearly have escalated things in Seattle, and across the country. I was just talking to a number of mayors throughout the country who saw a similar thing that — people wanting to act out against the president and his administration coming to the streets. I believe, if you look at what happened yesterday and Sunday, again, it was peaceful. We had a number of peaceful protests. And what we’ve seen is, every time this president promises to sow division, he’s successful at it. And he’s clearly targeted cities run by Democratic mayors. He’s said so himself. He’s using law enforcement as a political tool. I hate to say it, Erin, but I really believe that we are seeing the dry run for martial law. This is a president that is using law enforcement and federal forces for political purposes, and that should be chilling to every American.

The Republic failed. Democracy has failed. Liberalism, in both the proto-SJW and the classical senses, has failed. Conservatism has failed. Socialism has failed. This means that a return to some form of authoritarian government is inevitable, and the only question is precisely what form it will take.

Better the likes of Franco, Duterte, Putin, and Xi than Merkel, Macron, Trudeau, May, and the rest of the Promethean mediocrities. The historical trends are inevitable, but that doesn’t mean one has to suffer Neros and Caligulas when there are Augustuses and Aureliuses available.

Republican antitrust sellout

Just in case it wasn’t already obvious that the House and Senate Republicans are not going to do anything about the social media monopolies and their abuse of people whose opinions they don’t like:

I obtained the GOP’s confidential antitrust memo for tomorrow’s hearing. It’s a direct betrayal of conservatives.
– Mike Cernovich

I know I’m shocked….

The medical vector

If you don’t want to catch Covid-19, stay out of the hospitals and doctor’s offices:

This virus is not being spread the way we’re told.

Social distancing is close to worthless.

NY’s data makes this quite clear.  So does Florida’s.

Both slammed the door; SE Florida and NYC.

The bend should be evident in one viral generation time.  The new case rate should collapse in two viral generation times.  If Community Transmission via bars, restaurants and “social interaction” was more than 2/3rds of the total the effective R0 would go under 1.0 and community transmission would collapse.  If it was half then R0 would be 1.5 and we’d have transmission approximately equal to a bad seasonal flu.

IF you actually bent the curve.

These measures did not bend it to any material degree.  Enough time has passed to know this is true; at most they have lengthened a “turn time” by one day (in other words, R3.0 to R2.5.)  That’s effectively nothing!

Why not?

It’s being spread in the medical environment — specifically, in the hospitals — not, in the main, on the beach or in the bar.

When Singapore and South Korea figured out that if as a medical provider you wash your damn hands before and after, without exception, every potential contact with an infected person or surface even if you didn’t have a mask on for 30 minutes during casual conversations with others (e.g. neither of you is hacking) transmission to and between their medical providers stopped.

Note — even if you didn’t have a mask on and were not social distancing in the work environment, which of course is impossible if you’re working with others in a hospital, you didn’t get infected.

And guess what immediately happened after that?  Their national case rate stabilized and fell.

The hypothesis that fits the facts is that a material part of transmission is actually happening in the hospital with the medical providers spreading it through the community both directly and indirectly.

Keep in mind that this was posted by Denninger back in March. And now, the death rate in Singapore is one in 1,896 cases, compared to one in 29 cases in the USA and one in 25 worldwide.

The myth of a free nation

The Land of the Free and the Home of the Brave has become the Land of the Fearful and the Home of the Censored:

A new Cato national survey finds that self‐​censorship is on the rise in the United States. Nearly two-thirds—62{4e01b0bc4ab012654d0c5016d8cbf558644ab2e53259aa2c40b66b3b20e8967d}—of Americans say the political climate these days prevents them from saying things they believe because others might find them offensive. The share of Americans who self‐​censor has risen several points since 2017 when 58{4e01b0bc4ab012654d0c5016d8cbf558644ab2e53259aa2c40b66b3b20e8967d} of Americans agreed with this statement.

These fears cross partisan lines. Majorities of Democrats (52{4e01b0bc4ab012654d0c5016d8cbf558644ab2e53259aa2c40b66b3b20e8967d}), independents (59{4e01b0bc4ab012654d0c5016d8cbf558644ab2e53259aa2c40b66b3b20e8967d}) and Republicans (77{4e01b0bc4ab012654d0c5016d8cbf558644ab2e53259aa2c40b66b3b20e8967d}) all agree they have political opinions they are afraid to share.

That’s what happens when your rulers criminalize excessive noticing. Or, as is increasingly the case, any noticing of anything. Remember, those who are inverted always fear that which is true, so they demand your assent to their lies for their own protection.

Americans are no longer free and they cannot reasonably be described as a free nation. Not when you can lose your job, be banned from education, fined, and jailed for doing nothing more than simply questioning the Promethean narrative.

At least we have a good idea

How the USA is going to come to an end by 2033:

Secretary of State Mike Pompeo, from the podium at the Richard Nixon Presidential Library and Museum in Yorba Linda, California, laid out in no uncertain terms what the administration wanted to do and how it planned to go about accomplishing its ambitious aims.

America, the secretary of state said, has effectively ditched five decades of “engagement” policy and is now embracing a policy now out of favor across the American policy establishment: regime change.

Formally, the State Department still “engages” China, Pompeo said, but “simply to demand fairness and reciprocity.” Gone are the days when American diplomats engaged China to support the Communist Party. Too often in the past, U.S. presidents rescued Chinese communism, three times—Nixon in 1972, Bush in 1989, and Clinton in 1999—in particular.

More importantly, Pompeo said there would be a new form of engagement. “We must also engage and empower the Chinese people—a dynamic, freedom-loving people who are completely distinct from the Chinese Communist Party,” he said. “That begins with in-person diplomacy.”

This is a spectacularly disastrous policy and it is coming straight from the neocon imperialists. (I note that on the same page as the linked article, there is featured a cover of an issue of National Interest entitled “The Case for Kissinger”.) After all, “regime change” has worked so well in Southeast Asia for the last sixty years, right? It’s hard to know where to even start criticizing this policy because no part of it makes any sense at all. Pompeo may have produced the single most idiotic speech related to diplomacy and war of which I’ve ever heard.

First, the Chinese people are no more freedom-loving than the Afghans, the Iraqis, or the Vietnamese. Their dynamism is irrelevant, and as suspect as the purported “natural conservatism” of Hispanics. Second, the Chinese government is not the business of the American people. Third, this is an acknowledgement of a new cold war, not between the United States and China as it appears on the surface, but between the Jewish and Chinese nations. Pompeo is speaking for his neocon masters and the USA, its people, and its military, are being utilized as a weapon against China.

Fourth, there is no shortage of in-person diplomacy available with the four million Han who now reside in the United States. If I had to bet on regime change, I’d bet on the larger country successfully invading the smaller one being the party to impose it.

It will be interesting to see if the President stands by these assertions about his administration or if he begins moving to jettison Pompeo as he has previously ejected other neocon puppets working for him. Because while the USA can win a trade war with China, it is likely to lose any other kind of war with it, and given the neocons’ failure to force regime change on Syria and Venezuela, it is very hard to imagine they will be more successful with China.

And fifth, Pompeo said “It’s time for free nations to act.” But Americans are not a free nation.

So much for those “waivers”

Patreon’s new Terms of Use are completely dead on arrival.

Dispute resolution
To summarize: If you have a problem please talk to us, but you are limited in how you can resolve disputes. You waive your right to trial by jury and your right to participate in a class action proceeding.

Except you don’t, because you can’t. Not in Patreon’s legal jurisdiction of California, anyhow. First, you simply cannot waive your right to trial by jury except for a small number of specific reasons, which basically amount to “not showing up for the trial” and “not paying the court’s filing fee”, so any contractual agreement to preemptively waive your right to trial by jury is unenforceable according to both the California legislature and the California Supreme Court.

The California Supreme Court has ruled that a contractual agreement to waive the right to a jury trial, entered into prior to any dispute between the contracting parties, is unenforceable under the California Constitution and Section 631 of the California Code of Civil Procedure (the Code).
– citation summary of Grafton Partners v. Superior Court, 36 Cal.4th 944 (Cal. 2005)

“In Grafton Partners L.P. v. Sup.Ct., 36 Cal. 4th 944, 957-61 (2005), the California Supreme Court held that pre-dispute jury waivers are unenforceable as a matter of law under the California Constitution and state contract law.”
– Pallen Martial Arts, LLC v. Shir Martial Arts, LLC, No. 13-cv-05898-JST (N.D. Cal. May 23, 2014)

Nor can you waive your right to participate in a class action proceeding, so long as the class action takes place in court and not in arbitration.

In Discover Bank, the California Supreme Court applied this framework to class-action waivers in arbitration agreements and held as follows:

“[W]hen the waiver is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money, then … the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ Under these circumstances, such waivers are unconscionable under California law and should not be enforced.” Id., at 162, 30 Cal.Rptr.3d 76, 113 P.3d, at 1110 (quoting Cal. Civ.Code Ann. § 1668 ).

California courts have frequently applied this rule to find arbitration agreements unconscionable. See, e.g., Cohen v. DirecTV, Inc ., 142 Cal.App.4th 1442, 1451–1453, 48 Cal.Rptr.3d 813, 819–821 (2006) ; Klussman v. Cross Country

Despite Discover Bank, you can, however, waive your right to a class action arbitration, since the conflict between California law and the Federal Arbitration Act caused the California Supreme Court to distinguish between class action litigation and class action arbitration in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).

Can you spell “deceptive practices”? I knew you could….