Choose the Form of Your Destructor

“Choose the form of your destructor.” That’s a line from Ghostbusters, where Gozer the Gozarian baited our lovable spectre-battling quartet into a manifestation of the Stay-Puft Marshmallow Man.  Right now, America is in a position to choose the form of its destructor, and hopefully seeing that we’re in that moment will stop people from choosing anger and choose peace instead.

Sometimes life can imitate art.  I just didn’t think that art would be Ghostbusters.

Scott Greenfield does a great job of expressing my stance on this issue, but I’ve got to take a different tack than him when I approach this.  I’m going “conflict free,” because that’s what Mediation is Dead means, but in order to get to “conflict free,” you have to put yourself in the other party’s shoes.

Prologue: Any writing about political candidates engenders a reaction in the intellectually challenged that if you don’t condemn the candidate they hate, you support him or her. I don’t support any of the candidates running for president. I’m appalled that in this nation, these are the best we can manage.

Whew.  Now that’s out of the way, we can talk about the Destructor, and what form that will take.  Either side has its Destructor, and it’s time to discuss the root cause of both Destructors in modern America.  Anger, deep, seething white-hot intense anger.

There is deep anger in America directed toward politicians, political parties and the dysfunction of government. And the fact that the other Republican candidates, despite their rhetoric now, have sworn to support [REDACTED] if he wins the nomination is as cynical as it gets, and demonstrates exactly what people hate about politicians and parties. (ed. note: I redacted the Destructor’s name.  SHG did not.)

That anger, and the sneers from the other side of the fence, have us picking our destructors.

To your Left, you have a white-haired demon who used to keep pictures of Marx and Lenin on his walls.  To the Right, you have the epitome of He Who Must Not Be Named, because he’s a sociopath and enjoys all of the attention.  This is where it’s gotten.  That anger has everyone ready to burn it all down in an attempt to get something close to resembling what America once was back in the picture.

This is the anger that has us choosing the Destructor.  For at least twenty years there’s been a sense we, the people have been lied to by those that seek and attain power in the highest branches of our government.  No matter what, we were told to remain loyal.  No matter what, the people were told to OBEY, LISTEN, and BELIEVE, and magical concepts like HOPE and CHANGE would magically occur.

Because when you see a lie, and you believe a lie, and you continue to have it reinforced in your head, when the lie hits a breaking point, there’s only one thing left to do.  Burn it all down and start over.  Where does that anger come from, though?  Most of the populace has been complicit for over two decades.  Why do we get angry now?

We are angry as a public because we know we’ve been told who to hate, how to hate them, and that we’re an “ist” if you don’t hate properly.  

The first moment we began forming our destructors came with the rise of that wonderful person once known as a “social justice warrior,” and now called “crybully.” These “noble” activists, armed with keyboards and Twitter accounts, made it their purpose in life to run around like a toddler in the middle of a tantrum at every single perceived slight.  If someone caught wind of an offense, then you had to apologize, because usually “you” were a person who had a position of power the crybully wanted.  The apology didn’t matter once they got started.  The crybullys would attack further, until you were gone.

This leads to people not speaking.  When you don’t speak because you know there’s the potential of having your life ruined the moment you say the Wrong Thing, then anger sets in.  Someone else controls you, and you really “can’t say that.”

You don’t speak because you’re afraid of being labeled an “ist.”  It doesn’t matter what.  “Racist,” “Sexist,” “Ableist” or otherwise.  You actually care.  You aren’t those things, and you know it.  None of the “ists” mean anything to the crybully.  They just use those words as leverage to control you.

We are angry as a public because we’ve been told who to believe and what to do when it comes to keeping people in office.

This year was to be the year dynasties were established in the United States.  One political dynasty versus another political dynasty.  Either way, the two would work together to keep things “business as usual.”

This was the second manifestation of the Destructor.  It gave the Destructor legs.  When the Destructor, be it on the Left or Right, began their respective ascents to power, the Destructor was jeered.  They’d never get anywhere.  One was a TV star!  The other one’s a Socialist!  You can’t put either Destructor in a position of political power like that, can you?

Turns out you most certainly can, and that’s why the Destructors have so much attention.

We are mad as hell and you don’t get that we’re not going to take it anymore.  The Destructor feeds off this.

The key moment in the ascendance of the Destructor came when people tried to say “We get that you’re angry.”
Do you really?  Now, after all the name calling, and jeering, and mishmash thrown our way, you “get” we’re angry?  That’s the most disingenuous horse shit you could expect us to eat.  If you “got” how angry we were the Destructor wouldn’t even manifest.  It wouldn’t have power.  If you “got” how angry we were then we wouldn’t even get here.

The Destructor doesn’t care about our anger.  We know that in our heart of hearts.  The Destructor feeds off that anger to gain power.  We’re so damn mad right now that it’s time to burn it all down.

You tell us our guns don’t matter, because we have a government that can bomb and kill us at any moment.  Okay, that’s fine.  We’ll do something royally stupid to make sure you understand WE hold the power through the ballot box.  Not you.

It’s escalated to the point where even the crybullies can’t tell the divisive rhetoric on either side is cannibalizing their own.

Marc Randazza’s latest CNN column about giving one Destructor free speech came out recently.  I agree with Marc, but it’s because I know what’s at stake if violence controls the narrative.  I shared in on Facebook, which is something I rarely do.  Three people immediately attacked Marc and labeled him a Destructor supporter.  Then I got attacked for being a Destructor supporter.  Marc is about as hardcore anti-Destructor as you can get.  He’s also done more for the First Amendment than most will do in their lives.

Two of these three people were stand-up comedians.  Professions where speech is their trade.  The third is a professional troll, so he COULD benefit from Marc’s ideas.  Marc said it best. “They’re too stupid to read my material.”

Hate has made us choose the Form of the Destructor.  The question is whether we opt-in to that choice. 

You’ll notice now that I’ve never mentioned once either Destructor by name.  That’s because both feed like leeches off the attention they receive, and I will give no power to either.  The Destructor wants me to make a choice.

I choose “fuck it.” I choose peace. 

I did some work for a client this weekend.  The client gave me a pen.  It had the word “PEACE” written in big block letters above my client’s name.

“What’s the deal with this?” I asked.  This is a guy I’ve known for more years than I care to admit.

“Well at one point I worked for a bomb plant.  I was having pens made, and I wanted to have my business name and my name on the pens.  The plant told me that I couldn’t have a business name of any kind on the pens, so I said “hell, I’m going to have fun with this.”  Now, after leaving that place, every time I think about it, I know there’s at least a thousand pens with the word “PEACE” in circulation in a bomb plant.  “Peace pens” are being used in a place that makes weapons of war.  If that’s not funny to you then you have no sense of humor.”

This is the very epitome of the “Wrongless Approach” to life.

Some will choose war.  Some will choose the Destructor.  I choose peace.

Make that decision today.  Will you choose the form of your Destructor, or will you choose peace?

Choosing peace is the MiD life in action. 

If you want to support a documentary about free speech that’s going to be no-bullshit, you can go here.

Fault Lines on Monday has my newest piece, where I managed to get in references about Phillip K. Dick, The Terminator, and Avengers: Age of Ultron while discussing something very stupid done by college kids.  While you’re there, subscribe to our newsletter.  We took the hard work out of coming to us.  You just have to subscribe.  No bullshit, no gimmicks, just 100% the best legal analysis from anywhere you’ll find.


Randazza’s Morality Law Review: Mandatory MiD

What if I told you the United States Patent and Trademark Office has never  registered a trademark containing the word “fuck?”

Step back for a second and just look at the word “fuck.”  Say it.  Does it create a “shock or jolt of dismay” when you hear it or read it?  Why?

What emotions does “The Slants” evoke in your mind when you read it or see it?  Do you take offense to that?  What if I told you that was the name an Asian-American party band chose and summarily had their trademark ejected on the grounds “others might find it offensive?”

These questions are all prime for Mediation is Dead, and that’s why I’m declaring Marc Randazza’s latest law review article, “Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights” Mandatory MiD Reading Material.

Randazza’s take on the need to jettison the “moral utility” doctrine with regards to trademarks and copyrights is a discussion worthy of merit, because intellectual property is a form of communication, and Mediation is Dead is about a discussion of effective communication. I wouldn’t normally review a law review article, nor would I say that the layperson should read one, but when you have a discussion about topics like “Screw You” “Nut Sack Double Brown Ale,” and whether pornography should get copyright protection, the public will find Randazza’s take both entertaining and educational.

Here are the big takeaways I got from Randazza’s view on injecting morality into trademarks and copyrights.

1. Morality is a circular definition, it changes with the times, and has no place when determining “soft intellectual property’s” worthiness of protection. 

What is morality? That’s the framework with which we need to begin.  It is “principles concerning the distinction of right or wrong or good and bad behavior.” This is fluid and changes constantly, no matter how uncomfortable some people may find it.

It’s a little easier to justify denying a patent for a device on “moral utility” grounds if it’s affecting the human condition. For example, if a device or  procedure cuts away at human dignity then we may reject government protection of its creator because its “moral bankruptcy” doesn’t show usefulness or benefit to society.

With “Soft IP,” such as trademarks and copyrights, it’s a little harder to justify giving a government agency control over whether the creator gets the protection of intellectual property based on notions of what is “moral.”

Let’s take a few examples from the United States.  We have a provision in our intellectual property code that denies trademarks (where protection attaches on registration) or copyrights (where protection attaches on creation) based on whether they are “shocking to the sense of truth, decency or propriety, disgraceful, offensive, disreputable, giving offense to conscience…” You get the point.

We have tended to throw out any notions of whether the “marketplace” or a “substantial component of the general public” would find the trademark or copyrighted work offensive.  “CUMFIESTA” got the trademark because the people consuming their content were searching for pornography, and that’s not a situation where the government should deny protection.  The same with “Madonna” wine or “Nut Sack Double Brown Ale.”  Alcohol consumers won’t particularly take offense to it, so there’s no need to deny protection to the creators of said trademarks.

And then there’s In re Tam., the Federal Circuit Court of Appeals decision that may burn Section 2(a) of the Lanham Act to the ground.

Simon Tam wanted to call his band “The Slants.”  They’re an Asian-American party band. They chose that name.  The government rejected Tam’s application for a trademark, because “Slants” is an ethnic slur against Asian-Americans, and they might find that offensive.

Tam appealed his case all the way to the United States Federal Circuit Court of Appeals, and won.  The Court found that excluding “disparaging marks” from trademark registration violates the First Amendment.

2. There is a real danger the United States Supreme Court will have to decide “morality” and how it affects freedom of expression. 

Tam isn’t binding precedent on several levels.  It’s a good standard to follow, but it’s not close enough.  Right now, there’s a case in the Fourth Circuit that’s fully briefed involving the NFL’s Washington “Redskins” trademark.  If the Fourth Circuit, a historically conservative court, rules against the ‘Skins, then it’s going to cause a split in the law, and the United States Supreme Court will most likely have to decide what the law is.

Allowing the most dangerous branch of the Government to determine what morality is, and whether it should apply uniformly across this country, is absolutely frightening.

3. Morality based impediments on intellectual property violate human rights.

Did you know Budweiser’s trademark isn’t protected in Portugal?  Now you know.  Budweiser’s current owners took the case to the European Court of Human Rights over this matter, saying that denial of their trademark in Portugal interfered with the basic right of a human to freely enjoy his or her possessions.

4. The Morality Police have no place in stifling creativity. 

This is a trend we’re seeing in intellectual property laws as they’re decided across the world.  It still has the potential to shift at any given moment, and that’s a troublesome approach to take.  If we invite bureaucracy to determine what is right or wrong and good or bad for us, then we are good and truly screwed when it comes to free expression.

Imagine the most terrifying figure you can inhabiting the White House.  Now imagine that person having the ability to tell you at any given moment, with the blessing of the legislature, what is “right” or “wrong” for you.

Now ask yourself if that’s the world you want.  If the answer is “no,” your legislature is arguably a phone call away.

5. Stop placing value judgments on the message, and consider the message on the merits.  

“If we accept the theory that morality based restrictions are supportable then it threatens…free speech.”–Marc Randazza

That statement makes the entire article worth reading on the merits for those who frequent Mediation is Dead.

“Soft IP” is a form of communication.  It’s transmission of a message to an intended recipient. Don’t place a value judgment on the message transmitted before you start a fight.  It may be more appropriate to ask “What do you mean by that?” instead of jumping to “I find this offensive and must be silenced.”

You don’t need to place a value judgment on a person’s message to have an effective discussion with them on it.  In fact, your discussion will be better if you speak from a place where you put zero value judgements on your counterpart’s message.

That’s the Mediation is Dead approach.

If you want to download the entire law review article, it’s worth a read.
It’s mandatory MiD.