Three Overbroad Texas Penal Statutes

(Despite the “hey, look at me, I’m a list” title, this is a post for law geeks).

The Texas online-solicitation-of-a-minor statute, Texas Penal Code Section 33.021 violates the First Amendment to the United States Constitution because it bars adults making sexually-related communications that are neither solicitative nor obscene to minors.

The Texas online-impersonation statute, Texas Penal Code Section 33.07, violates the First Amendment to the United States Constitution because it bars posting webpages using the name of another person, even if not impersonative, to post harmful content, even if truthful.

The Texas improper-photography statute, Texas Penal Code Section 21.15, violates the First Amendment to the United States Constitution because it bars publishing without consent an image of another made with that person’s consent.

One thing that all of these cases have in common is that they are misnamed. 33.021 is about more than solicitation. 33.07 is about more than impersonation. 21.15 is about more than photography.

Each of these statutes outlaws some communication based on its content. What Texas would outlaw with each of these three statutes is not defamatory, is not inciteful, is not obscene (not even as to children) and is not integral to criminal conduct.

In order to uphold these three statutes, the U.S. Supreme Court would have to add at least two entirely new categories of unprotected speech to the four it has recognized in the past.

Fired Judge Suddenly Realizes …

Former Judge Mark Davidson, who often ranked at or near the top in local judicial polls, lost his bench in the Barack Obama tidal wave of 2008. He does not like what he sees now, with a polarized electorate voting along party lines, and he has no intention of running again soon.

"To run and know it doesn't matter anything about my or my opponent's qualifications – that the outcome may be determined by who is on the top of the ticket and people will vote on criteria other than my service as a trial judge – is not something I choose to do," Davidson said.

Read more: http://www.houstonchronicle.com/news/houston-texas/houston/article/Divided-electorate-flusters-Harris-County-judges-4068369.php#ixzz2DTkc9c4v

 

Former Judge Mark Davidson, who often ranked at or near the top in local judicial polls, lost his bench in the Barack Obama tidal wave of 2008. He does not like what he sees now, with a polarized electorate voting along party lines, and he has no intention of running again soon.

"To run and know it doesn't matter anything about my or my opponent's qualifications – that the outcome may be determined by who is on the top of the ticket and people will vote on criteria other than my service as a trial judge – is not something I choose to do," Davidson said.

(Houston Chronicle, perhaps behind a paywall. If so, complain to the Chronicle.)

Davidson's unspoken premise is that he was reelected four times because of his service as trial judge, rather than because a polarized electorate voted along party lines. That is ridiculous.

Let us stipulate that Mike Miller, who defeated Davidson in 2008, was a poor choice, and that keeping Davidson would have been the voters' better course of action. 2008 was not the first time that judges were elected by ignorant voters pulling straight-party tickets; Davidson benefited from the system for twenty years, apparently without complaint. Only now that his ox has been gored does he realize that "a polarized electorate voting along party lines" is a lousy way to choose judges? Please.

Welcome to the party, Judge. It hasn't "mattered anything about your or your opponent's qualifications" for a long, long time.

Texas's founders wanted judges to be accountable to the voters. I'm not convinced this was a good idea—there should be a branch of government that is not always running for reelection—but doing away with the system would require a constitutional amendment. Texas's founders wanted the voters choosing judges:

Each district judge shall be elected by the qualified voters at a General Election….

(Texas Constitution Article 5, Section 7.)

What could be done without a constitutional amendment is to get the political parties out of the judicial election business—Texas's founders gave no indication that they wanted the political parties choosing judges.

What we have at the moment in Harris County is a de facto nonpartisan system: straight-ticket Democratic voters cancel out straight-ticket Republican voters, and judicial races are decided by people voting on some other basis than straight party lines.

That leaves district judges, as well as their counterparts lower on the food chain in county courts and sometimes those above them in the courts of appeals, looking very much like politicians, forced to run hard and constantly raise money. Come Election Day, there are no more sure things, even for those with the finest pedigree and reputation.

Judge Davidson seems to believe that the old system of the Republican Party choosing the judge and Harris County's Republican majority rubberstamping it somehow magically produced better judges.

But the Harris County Republican Party is corrupt—at least as corrupt as the Harris County Democratic Party. Both have picked as many losers (in the sense of "wrong person for the job") as winners. (See, for example, Janice Law and Ruben Guerrero.)

Money will affect the outcome: this is a fair criticism of a nonpartisan system of electing judges. But the criticism is just as fairly applied to any system of electing judges: money has affected the outcome of partisan judicial elections in Harris County for years, but in the primaries rather than the general election. Republican judicial candidates, for example, have paid for critical endorsements in primary races.

"The fact that good judges or bad judges all got the same number of votes would discourage anyone who thinks they would be a good judge from running against someone who they think is bad," [Davidson] said. "It could be perceived that it doesn't matter whether you are good or bad. Judges have little incentive other than pride to work hard once they get to the bench."

Again, Davidson seems to be acting under the delusive belief that his reelections were because he was a good judge. When Harris County's judges were chosen in the Republican primary, Judges had no incentive other than pride to work hard once they got to the bench. In fact, they had an incentive to do worse than work hard; to do the wrong thing: Republican bosses got caught putting pressure on appellate judges to change their ruling (in Lawrence v. Texas) on rehearing. It worked in that case—on rehearing the court upheld the statute (only to have the U.S. Supreme Court ultimately shoot it down); in how many other cases did the outcome depend on judges' desire to please the party kleptocracy?

For as long as I've been practicing law, it hasn't mattered whether judges were good or bad; they kept or lost their jobs regardless. If Davidson is to be believed, that "couldn't be perceived" before now by those on the bench. This would be credible only if you assumed that running for judge requires a certain amount of narcissism in the first place. It's not a fair assumption. For example, you'll never hear Judge Caprice Cosper whining about losing her bench to the Democratic tide in 2008 because she knew all along that her reelection hadn't been based on merit (which she had in spades). Anyone who thinks that Harris County chooses judges based on merit isn't fit to be a judge.

Nonpartisan election of judges will make it easier for the voters to get rid of good judges, it is true, but also of bad judges. I'm a believer in the power of truth and the ultimate triumph of content over marketing. If we can maintain a nonpartisan system, good judging will matter. The people of Texas want to elect their judges; let them. And let judges campaign on their records. 

As much as I hate the idea of outcomes dependent on judges' desire to please the voters ("vote for me, my opponent once granted a motion to suppress"), it beats the hell out of what we used to have: outcomes dependent on judges' desire to please a party that selects for religious fundamentalism.

(See also That Sharolyn Wood is Such a Joker.)

Ladies: Is Compliance Sexy?

(H/T up front to Scott Greenfield and his ostreoid Simple Justice, in the ABA's Blawg 100 once again.)

“I … watch him working at the stove.  His easy concentration, economical movements, setting up in me a procession of sparks and chills.”

– Alice Munro, Dear Life, according to this post by Stewart Baker.

I am not a woman, but I am a cook. And I can imagine why a cook's easy concentration and economical movements might set up in a woman a procession of sparks and chills: it's genetic.

Cooking invokes core male competencies that men are genetically programmed to exercise and women are genetically programmed to admire: control of fire, control of knives (dangerous things), creative thinking, providing for others.

We are programmed thus because the man who could control fire and dangerous things, think creatively, and provide for others was, in paleolithic times when our programming was set, more likely to keep a mate and offspring alive long enough for the offspring themselves to reproduce. These competencies arose not by government fiat but by natural selection—the guys who didn't have them didn't have as many offspring who reproduced as those who did.

Compliance, by contrast, is not a core male competency.

I can imagine no reason that seeing a male cooperating with the orders of a bureaucrat would make a female dewy for the complying male. For the bureaucrat, perhaps—command is another core male competency—but not for the complier.

So when Stewart Baker writes of the reason he tries (along with the mouse in his pocket?) to comply with TSA bureaucrats' orders with a minimum of wasted movements:

In part we do it to keep our place in the hierarchy of guys.  But in the end, what we’re really hoping for is an Alice Munro moment — that our easy concentration and economical movements will set up in someone “a procession of sparks and chills,” followed a few pages later by, well, what we deserve for all that demonstrated competence.

I think, "the poor schlub must not know how to cook." Comparing cooking to going through security is like… well, it's a metaphor that defies syllogism.

Baker also compares going through security to shooting trashcan baskets with discarded papers—another inapt metaphor—"throwing things" is a core male competency; "being a bottom" isn't.

Baker writes,

There’s no doubt that it’s virulent. As a privacy skeptic and national security conservative, I’m used to hostile comments. But it’s only when I defend TSA that the comments go beyond hostile to visceral and occasionally even spittle-flecked.

Why is that?

Well, Stewart: I think it's probably because you're a freak who thinks he's going to impress the ladies with your excellence at submission. Granted, there is someone for everyone, and there are undoubtedly ladies who are looking for competent fecklessness in a mate, but my hunch is that they are in a tiny minority.

Ladies, what say you? Is there something about seeing a guy go through TSA security with no wasted movement that gets your juices flowing?

looking to lose on appeal – s4ll

Is this illegal?

A Splendora woman is facing charges for allegedly posting a personal ad on a classified website for her husband’s ex-girlfriend as a joke.

Christy Dawn Rash, 35, is facing an online solicitation charge. According to court documents, she’s accused of posting the classified on Craigslist earlier this month with the victim’s photo and cell phone number.

The victim contacted Pasadena police after she says she received several calls from men requesting to have sex with her. Through an investigation, police were able to link the ad to Rash, who is married to the victim’s ex-boyfriend.

(More on KTRK.)

Here’s the criminal complaint (PDF). The defendant is accused of using the complainant’s “name and persona” with the intent to “harm, defraud, intimidate, and threaten” to “post one or more messages on and through an Internet website, namely, Craigslist” without the complainant’s consent.

(In Texas, a prosecutor is allowed to plead in the conjunctive—”and”—and prove in the disjunctive—”or.” Because Texas appellate courts think prosecutors aren’t smart enough to write “or” when they mean “or.”)

Here’s the relevant portion of the Texas Online Impersonation statute, Texas Penal Code Section 33.07:

A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to…post…one or more messages on or through a[n]…Internet website, other than on or through an electronic mail program or message board program.”

Here’s the text of the ad:

looking to get laid – w4mm

[ Reply To ]
Date: 2012-11-05 09:35:15 EDT

I’m a single woman in need of sex. Size or race don’t matter looking to do this asap an yes I am real it got up in the 70s today please call or text me either is fine but please hurry. Eight three two seven two five [etc.]

State, you have a bunch of problems here.

Did the defendant use the complainant’s “name or persona”? The ad does not include the complainant’s name, but includes her gender and telephone number; it can’t fairly be said that this is her “persona.”

Can you prove that the defendant intended to harm, defraud, intimidate, or threaten the complainant? The defendant said it was “a joke.” (I discount KTRK legal analyst Joel Androphy’s shallow analysis of this issue. Joel is a really smart lawyer, but he doesn’t bring his A game to his media job.)

Is “calls from men requesting to have sex with her” harm? Doesn’t that depend on the complainant’s character? The defendant says that it shouldn’t be a problem because “the victim had given sex away in the past.” I am not sure what that signifies, but State, do you really want to go there? 

If “calls from men requesting to have sex with her” is harm, is that the sort of harm the statute contemplates?

And if that is the sort of harm the statute contemplates, State, we have the First Amendment problem.

If I had this case, if the State didn’t fold, and if the client were willing to spend the time and money to fight it, I would file a pretrial writ of habeas corpus alleging that the statute is unconstitutional. The denial of a pretrial writ of habeas corpus alleging that the statute is unconstitutional as written is one of the things that can be appealed pre-trial. We’d take it up to the First or Fourteenth Court of Appeals, then to the Court of Criminal Appeals and take a shot at getting the Supreme Court to grant cert on Texas’s novel limitation on free speech on the Internet.

I am on a tear about this online-impersonation law because a) it looks like a great opportunity for some First Amendment litigation like my online-solicitation litigation, and I want a piece of it, so if you’re hired on this case, please bring me in as your law man; and b) it seeks to outlaw political comment like JudgeRubenGuerrero.com. 

Incidentally, this case is in Judge Guerrero’s court.

Criminalizing Dissent

Prosecutors can find it challenging to prove the intent to harm was present in online interactions. “It’s a hard burden for us to prove with any activity on the Internet,” Wakefield noted.

It is common for users to mimic celebrities or politicians by creating fake social media accounts, but Wakefield said it would be difficult to prove the intent to harm with satire or joke accounts of a public figure.

In a case in which someone creates an account of a well-known figure and tries to damage his or her character, then that action would fall under the law, he said.

(Houston Chronicle.)

John, John, John. I know that you’ve grown a bit fuzzy on this First Amendment stuff, prosecuting those online-solicitation-of-a-minor cases, but could you at least make sense? One person can’t “damage” another person’s “character.” One’s character isn’t affected by what other people say about her.

I presume that you mean either “tries to impugn his or her character,” or “tries to damage his or her reputation.” If that’s what you consider sufficient “intended harm” for purposes of Texas’s online impersonation statute, Texas Penal Code Section 33.07, then you’ve just unwittingly demonstrated the unconstitutionality of the statute. 

Why? Because, this being America, we are allowed to impugn the character of other people. We are allowed to try to damage other people’s reputations. All without fear of criminal prosecution. Short of libel, the First Amendment protects our right to badmouth people.

Attempts to impugn others’ characters and damage their reputations are not necessarily libelous—many people have poor character and deserve bad reputations—and falsity is not an element of the offense.

With the Online Solicitation of a Minor statute (which purports to outlaw non-solicitative sexually related messages to minors and adults who represent themselves to be minors) Texas is trying to create a previously unrecognized exception to the First Amendment. Prosecution of cases under Section 33.07 marks the opening of a second front in Texas’s war on the First Amendment.

This assault is of more immediate concern because, rather than merely our right to talk dirty (to each other and, yes, to children), it directly implicates our right publicly to criticize government officials.

(See also Fake Pat Lykos and Fake Todd Dupont.)

The Ethical Masochist’s Dilemma

Suppose that you have a client. The client, after thorough consultation with you, wants you to take some action. That action is in the best interest of the client, is legal, and is ethical.

You do it, right?

Now suppose that the action is not in the client’s best interest, but is legal and ethical.

Again, you do it. It’s not your call.

Now suppose that the action is in the client’s best interest and is ethical but is illegal.

You don’t do it.

Okay. Now it’s in the client’s best interest and legal, but is unethical.

Do you do it? No, of course not. Your ethics trump even the client’s interests.

But wait. Suppose that the only person who might be harmed by the ethical violation is the client, and that you’ve advised the client of this possible harm, and the client still insists that you take the action.

What do you do?

A ridiculous hypothetical? Unimaginable? Highly speculative? Nope. An everyday situation in federal criminal defense.

There are a few possible answers: advise the client to waive the 2255 (ethics be damned); advise the client to refuse the plea (client be damned); refer the client to conflict counsel (to advise the client independently on whether to waive the 2255); or move to withdraw (because there’s an irreconcilable conflict between your interest in maintaining your ethics and your client’s interest in the action).

None of them is a great answer. “Refer the client to conflict counsel” is least bad, but most criminal defendants in federal court don’t have resources to hire another lawyer to advise them on whether to waive the 2255. (Though asking the court for resources for such counsel, either under the CJA or in an Ake motion, might bring the point—that the government should not be asking for such a waiver in the first place—home to a federal judge better than anything else.)

Outsource Your Marketing: Jared Pomranky / Net Profit Marketing Edition (Updated)

Detroit lawyer DD should not be representing criminal defendants.

DD left this comment on this post:

Screen Shot 2012 11 21 at 8 11 17 PM

“I agree with these guest posts you really don’t get anything expect for me content you don’t agree with or matches up with your site.”

One of a criminal-defense lawyer’s core competencies is the ability to string together a series of letters into what we in the business call “words,” and then to string those words together into “sentences” with what is known as “meaning.” (It is helpful also to be able to string those sentences together into paragraphs, but that’s the advanced course.)

Writing a meaningful sentence is a matter of a) having an idea; and b) converting that idea to written words in a way that the reader gets a close approximation of the idea. Converting ideas to written words is much the same as translating them to spoken words, except it’s easier because the writer has more opportunities than the speaker to edit.

You can see why getting ideas and converting them to words might be important to professionals whose job is advocating for clients’ freedom. If the criminal-defense lawyer has no idea, she’s a gelatinous cube. If she has an idea but can’t translate it to words, she might as well have no idea. In the criminal courthouse, pantomime alone seldom carries the day.

“[Y]ou really don’t get anything expect for me content you don’t agree with of matches up with your site”? Other than “except” for “expect,” which could be mere dyslexia, and excusable, I don’t know where to begin translating this.

Most of us start converting ideas to words at about age one, and practice every day from then on. There are lots of lawyers who don’t write well, but anyone who can’t form an intelligible sentence has no business representing human beings whose freedom is on the line.

So, judging from his comment, DD should find other work.

DD probably paid someone to leave that comment for him under his name; he’s still responsible for it. And the lack of judgment he has displayed by allowing someone to post unintelligible comment spam under his name renders him equally unfit to have human beings’ freedom in his hands.

(How’s the outsourcing working out for you, David? I’ll offer you The Popehat Deal: apologize for the comment spam and provide emails or other documentation identifying the marketeer he hired who produced the comment spam and proving their responsibility for this, and I’ll change your name in this post. “Because lawyers who hire bad marketeers have bad judgment, but bad marketeers are vermin, and ought to be stomped.”)

[Update: DD took advantage of The Popehat Deal. He apologized, and forwarded me this email from Jared Pomranky at Net Profit Marketing, who was handling his marketing at the time:

From: Jared Pomranky <jared@netprofitmarketing.com>
Date: Fri, Feb 7, 2014 at 11:33 AM
Subject: Re: link
To: DD

Hi DD,

It was in November of 2012 so it very well could have been us. The sentence doesn’t seem inline with our work, however, as we don’t outsource our work to other countries and we don’t support comment spam. Any marketers that work for me are native English speakers in the U.S. and if they are going to comment on any blogs, they’re instructed to read the blog and add to the conversation. That clearly didn’t happen here and it’s going to be addressed. I can kind of see where they were going with the comment but it looks like it was rushed and not reviewed before posting.

The comment was never approved so it didn’t get posted. The only thing that is posted is the blog post and there’s not much we can do about that besides having other pages rank higher than that page for your name. I did several searches and couldn’t find that page within the first 3 pages.

I think the blog post was a little over the top but if you’re going to take him up on the Popehat Deal of throwing the marketer under the bus, you can probably just forward him this email. I stand by our work and will own up to our mistakes.

Jared Pomranky
Net Profit Marketing
(313) 799-2218
Internet Marketing for Your Bottom Line

For a guy who “stands up to his work and will own up to his mistakes,” Pomranky is a weaselly bullshitter.

Either you do spam comments or you don’t—and commenting on blogs to market lawyers, which he admits, is spamming comments.

Either the comment was posted at his behest or it wasn’t—”it very well could have been” is not owning up.

And when DD’s (very common) name was in this post it popped up on the first page of a search for “[DD] lawyer,” and in the fifth position of a search for “[DD] Detroit lawyer”—typical searches that a potential client would conduct. So when Pomranky writes, “I did several searches and couldn’t find that page within the first 3 pages,” he’s either lying or doesn’t know enough about his business to conduct the sort of search that matters to a lawyer marketing himself online.

Beware. Be very ware.]

TSA: All That is Wrong With America

Curtis Robert Burns, also known as “Blogger Bob,” the Tokyo Rose of the TSA, responded publicly—and petulantly—to Amy Alkon’s post questioning TSA thugs concealing their identities from the traveling public (which I wrote about here and Greenfield riffed on here).

As usual, TSA’s response to criticism is that they did everything “by the book.” What Burns and his fellow authoritarians are unable to comprehend is that this is not a defense of the conduct, but an indictment of the book. 

Alkon and Greenfield have both replied to Burns’s response.

Some might be concerned about TSA’s flack’s reaction to criticism, but in my view it’s encouraging to see TSA (in a post vetted by Public Affairs) going on tilt.

And, my friends, in this story you have a history of this entire movement. First they ignore you. Then they ridicule you. And then they attack you and want to burn you. And then they build monuments to you.

-Nicholas Klein

(Because Mr. Burns so often crows about TSA marijuana seizures, it’s a shame that the web-published investigation of his marijuana-smoking past has disappeared into the fog. How did he accomplish that?)

In comments on Burns’s post, anonymous people, purportedly TSA employees, shared their views. A few samples (errors as in originals):

Ms. Alkon,
You may not realize it but we are in fact looking for one or more terrorists. If you happen to know that they all decided to stay home today…then by all means please continue disrupting our checkpoint. If you have no idea who they are or what thier plans are for today , then please stop making thier possible plans that much easier by causing disruptions and distractions which may keep us from saving people’s lives today. You are not boarding your own aircraft, you are sharing it with hundreds of others and I am sure the hundreds of others want our attention focused where it belongs, not on you. – Name withheld because Ms. Alkon doesn’t undestand how to be respectful. 

Trope 1: “We are saving people’s lives. You’re aiding terrorists. So shut up.”

First, if the premise—”we are saving people’s lives”—were true, the conclusion—”so be a good little citizen, lie back, and enjoy it”—would not follow. Saving people’s lives does not justify mistreating them. There has to be some sort of cost-benefit analysis. This country was founded on that cost-benefit analysis: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” The founders so strongly believed that freedom was worth great danger that they signed the suicide pact of the Declaration of Independence: And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.”

Second, even if the majority of passengers disagreed with Alkon and me, even if disruptions and distractions might keep TSA “from saving people’s lives today” (I reject that premise, but even if), that’s not a good reason for Alkon not to engage in civil disobedience. The mob is seldom right—in this case the mob is both wrong and arithmetically challenged—and Alkon is entitled to take every lawful measure, including civil disobedience, to bring about change.

If something is worth saying, it’s worth signing your name to. There are few exceptions to this rule, and none of them apply to government employees defending their employer. Alkon’s opinion counts; if her critics would come out from the shadows, their opinions might count too. They would not, if they’re based on the Popular Math that has us shoveling money at TSA, count for much, but they might count for something.

(Incidentally, why are we paying to provide anonymous TSA employees a forum to defend their agency?)

Third, TSA isn’t saving lives. It’s killing us—more than a hundred of us so far, and that’s nothing compared to the toll that could be inflicted if bad guys started attacking security lines—soft targets created by TSA.

Finally, I’m sure Alkon does “undestand how to be respectful,” but the respect of the public is not something TSA or its employees are entitled to demand, and it is not something TSA or its employees have earned. “Respectful” is seldom an appropriate attitude when dealing with evil. 

So if you knew a known terrorist was flying the same day you are, would you expect TSA to allow the terrorist to be secure in his/her papers, effects, against unreasonable searches and seizures?.

This is the problem with travelers’ like yourself; consumed with your rights, you do not see the bigger picture. You do not know if a terrorist or someone who wants to disrupt our transportation systems’ is flying the same day you are. By the way, if you pay attention to the signs posted before you enter a screening checkpoint, they state you will undergo screening before you enter it. When you enter the checkpoint, you are consenting to undergo screening. So if you do not want to be screened, do not enter the checkpoint.

If you feel so violated then don’t fly, take a train…oh by the way, security checks passengers’ on trains too so you might feel violated there also. Maybe you should complain to the private screening departments that check you on cruise ships, trains, entering federal buildings, entering court houses, shopping malls, sports games, I guess they all refer to Mein Kampf and Mao’s Little Red Book too correct? 

Trope 2: “You’re protecting bad people.” 

Yes. That’s the point of the Fourth Amendment: because we don’t trust the government to know who is bad and who isn’t, we give bad people a little privacy to preserve our own privacy. In fact, it’s arguably the entire point of America: we are willing to accept that bad people will have the same freedom as us, and that sometimes they will use that freedom to do bad things to us. There is no “bigger picture.”

Alkon is “consumed with her rights” because those rights are what make America America. Take away those rights, and America is no longer.

Trope 3: “If you don’t want to be screened, don’t fly.”

That’s not a choice the American people should have to make. See “by the book,” above.

The security at federal buildings is actually an argument against TSA. Federal buildings and courthouses take security precautions that are much less onerous—show ID, have your bag and laptop x-rayed, and pass through the magnetometer—than TSA’s scope-or-grope. 

You people do realize that screeners wear a nameplate with their last name, right? In what scenario would you need their full name? The badge people are talking about being backwards is the airport ID. This does have the screener’s full name on it but why would u need it???  

Trope 4: “Trust us.”

In what scenario would they need my full name? I’m clearly not going to hijack or down an airplane. I’m just a guy minding my own business. I’ll give you my last name, and you let me on the plane, okay? No? Why? Because they don’t know me, and don’t have any reason to trust me any more than anyone else.

The People have no reason to trust TSA employees, and we have no reason to trust TSA’s “by the book” discipline of its own employees. When we have been wronged, we should know who has wronged us. We should be able to tell the police who has assaulted our children. We should be able to do background checks to find out what sort of misfits are pawing our belongings. We should be able to tell the world.

I recognize that this won’t be a popular view in the TSA breakroom: you are doing everything you can to avoid accountability. Accountability is no fun. You wouldn’t have taken this stupid job if you knew that Alkon might be publishing your name.

Precisely.

Finally:

I would love to see all of you with such contempt for the TSA put on a plane with someone who announced the intention of blowing it up (not real but you wouldn’t know that).

I bet after you all peed your pants,and said your prayers, you would all have a better appreciation of the TSA 

This argument doesn’t make any sense: our reaction to someone announcing his intention to blow up our plane would (and should) be the same with or without TSA. Nobody is going to say to the purported bomber, “I know that you don’t have a bomb because you went through the TSA line.” I’m not going to feel any differently about that announcement after passing through TSA’s security theatre than I would have in 1987. The best that can be said for TSA is that it wasn’t responsible for 9/11. 

It may be that the commenter is just preaching to his little choir—people who already believe that TSA doesn’t suck, and don’t see the tautology.

But, since comments on the TSA Blog are moderated, I suspect that this nonsense resulted from an edit of a “I would love to see all of you with such contempt for the TSA put on a plane with someone who had the intention of blowing it up” comment.

“After you all peed your pants and said your prayers” is the anonymous commenter’s projection. He thinks that’s how people respond to the threat of death, because that’s how he would respond. But not everyone has his unclear conscience. Many of us are at peace with the world and our place in it. I hope that someday, after he has left TSA and found honest work, the commenter will find that sort of peace as well.

TSA: Anonymity Breeds Contempt

I don’t, as a general principle, allow anonymous comments here. Chief among the reasons is that the more anonymous people are, the worse they behave. People do things behind tinted glass on the freeway that they would never do on the sidewalk. They say things from the cover of darkness that they would never say in the light of day.

Why do TSA goons steal? They steal because they can. They steal from your checked luggage because when you get to Chicago and your cufflinks are missing, there is no way for you to track down the guy in the Atlanta airport who stole them. If TSA wanted to stop its employees stealing from checked luggage, there’d be a simple solution: any TSA employee who opens a bag puts his name in it.

But that would create accountability, and the security state cannot operate if its functionaries are accountable. If screeners knew that their mothers were likely to read on the internet about what they were doing on the job, they would be on much better behavior, which would not aid in the government’s avowed program of unquestioning compliance.

If We the People don’t create accountability, they will never change their ways.

One of the weapons the People can lawfully use to create accountability is publication of the truth: “naming and shaming.” While a complaint through official channels goes nowhere (we have investigated and found that ze agent vas chust follovink orders), publication of an offending TSA employee’s name gets her attention. Some day she might want to get a real job, or rent an apartment, or date a decent human being; the fact that she once abused authority in the name of safety might get in the way of any of those projects. (As, I would argue, it should: any TSA employee or former employee who has not publicly denounced the agency should feel more ostracism than that with which our society treats sex offenders who don’t work for TSA.)

A blogger who has been vigorous in promoting TSA accountability by naming and shaming its criminals (see Thedala Magee and Tiffany Applewhite) is “Advice Goddess” Amy Alkon. Thanks to Alkon, when you google Thedala Magee’s name Simple Justice pops up—an unenviable position for a government bully. We know that the naming and shaming is working because Thedala Magee lawyered up and made a hollow threat to sue Alkon.

Alkon seems to be a frequent target for TSA abuse, whether because of her figure (“It is odd that I, like many large-breasted women am always chosen—always by men at the metal detectors—to go for further screening. Every time I fly.”) or because she is an outspoken critic of the agency’s security theatre (buxom revolutionaries, beware!).

Most recently at JFK Terminal 2:

The light-skinned black woman who screened me, last name “Moore,” was wearing her photo ID upside down so her first name could not be read. After she ran her hands, most disgustingly, all over my body, grazing my labia and touching my breasts and inside my turtleneck on my bare skin, I told her I needed her first name. She refused to give it to me.

Moore’s supervisor, Roger Grant, also refused to give Alkon Moore’s first name; he also refused to give her a complaint form.

Eventually the world will learn who Ms. Moore is. It may happen because TSA’s flack answers Alkon’s questions; more likely it will happen because one of Alkon’s readers passing through JFK gets Moore’s first name, snaps a photo, and sends it to Alkon. In any case, Alkon will do a follow-up post. And when she does, woe betide Ms. Moore if her name is as googleable as Thedala Magee’s.

I would like to make this little contribution to the revolution: Good on Alkin for demanding names (and for having the will to publish them and the readership to make a difference) but she’s doing so at the wrong time.

I don’t fly out of US airports anymore, but if I did I would ask to see ID—including first and last name—before allowing the gropedown to begin. If Alkon started demanding names before being touched, she would be much more likely to get them (it’s not an unreasonable request that she know who is touching her before the festivities begin); the person giving her name would be more likely to be circumspect (I assume that a less-offensive encounter is one of Alkon’s objectives); and in the likely event that she did behave in a way that Alkon thought inappropriate or excessive, Alkon would immediately have a name to share with the world.