the texas defense

In criminal law, the claim that the deceased victim “needed killing” is known as “the Texas defense”, also designated as “misdemeanor homicide”. On Wednesday, 27 August 2014, a jury acquitted David Barajas of murder at the Brazoria County Courthouse in Angleton, Texas. Barajas had been accused of fatally shooting one Jose Banda in December 2012 near Alvin, minutes after a car driven by Banda hit a truck that Barajas and his two sons were pushing after it ran out of gas, killing twelve-year-old David Jr. and eleven-year-old Caleb. Although Banda was found slumped in his seat at the crash site, with a blood alcohol level twice the legal limit and a bullet wound to the head, no witnesses saw a shooting, and no weapon was ever recovered. As the case was about to go to trial, Texas media picked up an analysis by kibitzing Houston defense attorney Joel Androphy: “It’s not the right way to do it, but jurors a lot of times make judgments based on moral responsibility, not legal responsibility.” Amplifying this point, the commentariat cited a case two years earlier, when the grand jury in Lavaca County, Texas, declined to indict the man who admittedly pummeled to death the alleged molester of his 5-year-old daughter.

The Texas defense is arguably a misnomer, given that its definitive statement is found in a 1870 appellate court ruling in Kentucky:

Speaking of assured and continual danger to life, this court, in the case in 2 Duvall, defined the principle of self-defense as follows: “Like the sword of Damocles, the threatened danger is continually impending every moment and everywhere. The threatened man may be waylaid or otherwise attacked unawares without the possibility of defense or of escape, and may never, day or night, feel safe, or actually be so, while his enemy lives, who whenever he may see him or wherever he may find him may be anxious and able to kill him. And does either human or divine law require such prolonged agony and peril; or can the best and most prudent men suicidably forbear to strike for riddance, if they have the courage to defend themselves, in the only way of secure and lasting escape?”
    Now if a man feels sure that his life is in continual danger, and that to take the life of his menacing enemy is his only safe security, does not the rationale of the principle as thus defined allow him to kill that enemy whenever and wherever he gives him a chance and there is no sign of relenting? But before a jury should acquit they should be well satisfied that the killing was not the offspring of bad passion, but solely of a thorough and well-founded belief that it was necessary for security. And here lies the danger of misapplication. It is difficult to be assured that the act was thus necessary and done in good faith. Of that, however, the jury and not the court must judge; and in that judgment they can not be too self-poised and careful before they conclude that the peril of the accused was imminent and incessant, and that he, well assured of it, honestly believed that his only safe remedy was to destroy the power to execute the threats. And if he was authorized to believe and did considerately apprehend that his own exile or the death of his persevering enemy, watching to kill him, was, like the tabula in naufragio, the only safe mode of rescue, might he not lawfully choose his remedy and throw his enemy overboard? Why should he be required still to wait an assault and to endure longer haunting and hazard when he might at any moment become the victim of his own forbearance, and when self-defense might be impossible or unavailing? Why let the sword still hang over him? Why not remove it out of sight when he may, and not passively linger until it unexpectedly falls and strikes his heart unresisted? The recognition of the perfect right to do so in such a crisis appears to us consistent with both principle and policy. It seems to us conservative. It might afford more security and prevent more assassinations than the lame law of punishment ever could, and the manly and opportune assertion of this universal birthright may teach the reckless who thus maliciously beset the pathway of the peaceable that they will be likely to bring destruction on their own heads. This preventive principle will go hand in hand with civilization and philosophical jurisprudence as a palladium of personal security and social order and peace. Properly guarded, it may do more good than harm.

Carico v. Commonwealth, 70 Ky. (7 Bush) 124 (1870)

A more casual application of the same principle took place in the same year, well above the Mason-Dixon line in Anderson, Indiana:

    A TRAGEDY THAT SHOCKED ANDERSON.
    Louis Titherington was a cab driver who lived in the house now occupied by Dr. J.W. Fairfield as a sanitarium at the corner of Meridian and Thirteenth streets.
    Titherington went to his home on the 19th of October, 1870, in an intoxicated condition and became engaged in an altercation with his wife and sister-in-law, a Miss Jenkins, who lived in the family. He was in the act of severely chastising Miss Jenkins, and, it is said, had whipped his wife, when Daniel Jenkins, her brother, came into the house and ordered him to desist in his abuse, when he turned upon Jenkins and made threats of violence, whereupon Jenkins drew a revolver and opened fire upon Titherington, filling his body with leaden missiles, causing almost instant death. Jenkins was placed under arrest and indicted by the Grand Jury, and on a trial in the Circuit Court was acquitted on the ground that the killing was justifiable.
    On the trial was exhibited a large lock of hair which Titherington had pulled out of the head of one of the women. Titherington was a familiar personage on the streets of Anderson for a quarter of a century, having been at one time a half owner of the bus and transfer line, which was a good paying property.
    “Lew,” as he was known by the people, was not a bad man when not drinking, but disposed to be unruly when imbibing to excess. He was mixed up in a great many street fights and other troubles, the result of too much liquor. His headquarters for many years before his marriage was at the old United States Hotel. He was known by every traveling man from New York to San Francisco who stopped in Anderson.
    John Alderman was for many years his partner and they made money fast and spent it with lavish hands. One of the jurors who tried Jenkins said after the trial was over that “the jury thought that he was not exactly justified, but that Titherington needed killing anyway, and that they just voted to let him off.”
    Neal Daugherty was City Marshal at the time of the killing and arrested Jenkins. Andrew J. Griffith was Sheriff and Randle Biddle his deputy.
    Titherington left a widow, but no children. He was a brother to Robert Titherington, who yet lives in Anderson.

—John La Rue Forkner and Byron H. Dyson, Historical Sketches and Reminiscences of Madison County, Indiana, 1897, pp. 511-512

    Unsurprisingly, the Texas defense was popular with the Texas Rangers. In his memoirs, James B. Gillett describes its application to a fellow Ranger:

After our return from our month’s scout in Mexico, Captain [George W.] Baylor received a new fugitive list from the Adjutant-General, and in looking over its pages my eyes fell on the list of fugitives from Hamilton County, Texas. Almost the first name thereon was that of James Stallings with his age and description. I notified Captain Baylor that Stallings was a fugitive from justice. Baylor asked me what Stallings had been indicted for and I replied for assault to kill.
    “Well, maybe the darned fellow needed killing,” replied the captain. “Stallings looks like a good ranger and I need him.”
Not many days after this I heard loud cursing in our quarters and went to investigate. I found Stallings with a cocked pistol in his hand standing over the bed of a ranger named Tom Landers, cursing him out. I could see Stallings had been drinking and finally persuaded him to put up his pistol and go to bed. The next morning I informed Captain Baylor of the incident, and suggested that if we did not do something with Stallings he would probably kill someone. The captain did not seem inclined to take that view. In fact, I rather believed Captain Baylor liked a man that was somewhat “on the prod,” as the cowboys are wont to say of a fellow or a cow that wants to fight.

—James B. Gillett, Six Years with the Texas Rangers, 1875-1881, New Haven: Yale University Press, 1925, pp. 264-265

Melville Davisson Post, a prolific chronicler of crime in Harrison County, West Virginia, provided a popular account of the Texas defense in 1897:

If a Mexican was so short-sighted as to slip his knife into a tenderfoot, some one shot the Mexican, and the crowd “lickered up.” If the faro dealer killed his man, it was usually because the man needed killing, and certainly the faro dealer was the best judge of this. On the contrary, if one shot the dealer, this was considered a public calamity, demanding an explanation, since the dealer was a quasi public functionary, and the convenience of the citizen required that the game should continue. One’s life was perhaps the cheapest thing below the Central Pacific Railroad, and it was entirely the duty of the individual to see that it was maintained. If one was unsteady on the trigger, or caught napping on the draw, one was held to have died by virtue of contributory negligence.
    To be sure there was law, and machinery for its execution; but the machinery was liberal, and had ideas of its own, and the law adhered with supreme unconcern to its maxim—De minimis non curat lex.

—Melville Davisson Post, The Man of Last Resort, G.P. Putnam’s Sons, 1897, pp. 62-63

In 1906, Ambrose Bierce pointed out the deficiency of the underlying principle: “HOMICIDE, n. The slaying of one human being by another. There are four kinds of homicide: felonious, excusable, justifiable, and praiseworthy, but it makes no great difference to the person slain whether he fell by one kind or another—the classification is for advantage of the lawyers.” And yet no advantage of the lawyers is to be lost on the blameless slayer. As a red-blooded American, I wish and hope for naught but praiseworthy homicides to take place in our fair land. Short of that, may all our righteous homicides be found praiseworthy by the juries of our peers.

the rectification of names


子路曰:「衛君待子而為政,子將奚先?」
子曰:「必也正名乎!」
子路曰:「有是哉?子之迂也!奚其正?」
子曰:「野哉,由也!君子於其所不知,蓋闕如也。
名不正,則言不順;言不順,則事不成;
事不成,則禮樂不興;禮樂不興,則刑罰不中;刑罰不中,則民無所措手足故。
君子名之必可言也,言之必可行也。君子於其言,無所苟而已矣。」
Tsze-lu said, “The ruler of Wei has been waiting for you, in order with you to administer the government. What will you consider the first thing to be done?”
The Master replied, “What is necessary is to rectify names.”
“So! indeed!” said Tsze-lu. “You are wide of the mark! Why must there be such rectification?”
The Master said, “How uncultivated you are, Yu! A superior man, in regard to what he does not know, shows a cautious reserve.”
“If names be not correct, language is not in accordance with the truth of things. If language be not in accordance with the truth of things, affairs cannot be carried on to success.”
“When affairs cannot be carried on to success, proprieties and music do not flourish. When proprieties and music do not flourish, punishments will not be properly awarded. When punishments are not properly awarded, the people do not know how to move hand or foot.”
“Therefore a superior man considers it necessary that the names he uses may be spoken appropriately, and also that what he speaks may be carried out appropriately. What the superior man requires is just that in his words there may be nothing incorrect.”

— Confucius, Analects, Book XIII, Chapter 3, verses 1-7, translated by James Legge

…ὦ ἄριστε Κρίτων, τὸ μὴ καλῶς λέγειν οὐ μόνον εἰς αὐτὸ τοῦτο πλημμελές, ἀλλὰ καὶ κακόν τι ἐμποιεῖ ταῖς ψυχαῖς.
…for, noble Crito, rest assured that wrong words are not only undesirable in themselves, but they infect the soul with evil.

— Plato, Phaedo 115e

people v. michael zeleny

Former business partner of Subrah Iyar and Min Zhu, Michael Zeleny, is to be tried tomorrow in People v. Michael Zeleny, San Mateo County Superior Court Case No. SM382036, for lawful armed protests at headquarters of New Enterprise Associates (NEA), which bills itself as “the largest VC firm in the country”.

Between 2001 and 2011, Zeleny has litigated various matters against NEA and WebEx, including Zeleny v. Zhu and WebEx, Santa Clara Superior Court case number CV809286; WebEx v. Zeleny, Los Angeles County Superior Court case No. BC 324927; Zeleny v. WebEx, Santa Clara County Superior Court case no. 1-06-CV062767; and NEA v. Zeleny, San Mateo Superior Court Case No. CIV499465. According to the filings in these cases, Subrah Iyar and Min Zhu, co-founders of WebEx and its former CEO and CTO, and Scott Sandell, General Partner of NEA, were the subjects of long-running protests organized by Michael Zeleny, their former business partner. Citing postings by Zhu’s daughter Erin on the Usenet newsgroup alt.sexual.abuse.recovery in 1991 and 1992, her claim for childhood sexual abuse settled in 2000 and documented in Affeld v. Zhus, Santa Clara Superior Court case number CV817300, and her testimony given in a 2003 sworn deposition, that she was raped by her father at the age of fourteen, Zeleny stated that executives accused of rape by family members and their knowing enablers have no place in positions of public trust.


Zeleny has posted Erin Zhu’s deposition transcript online. Her testimony concerning childhood sexual abuse by her father is posted on YouTube.


According to Breaking News, posted on ConferencingNews.com on 3 May 2005, WebEx shut down its user conference in response to Zeleny protesting against it outside the Westin St. Francis in San Francisco the day before. A week later this report was corroborated by another conference attendee. On 13 May 2005, WebEx issued a press release announcing Min Zhu’s sudden “retirement” and his relocation to China. And on 23 September 2005, Private Equity Week announced the formation of Northern Light, a venture capital fund co-founded in China by Min Zhu, in partnership with Scott Sandell of NEA. In commenting this announcement on the same day, China Venture News reported:

What’s missing in the PrivateEquityOnline article or any NEA release is any mention of the previous controversy surrounding NEA’s venture partner, Min Zhu, who joined NEA in 2004, after his forced resignation as WebEx President and Director.

Currently Min Zhu also operates Cybernaut China Venture Capital, whose press releases bills it as “one of China’s pioneering investment fund [sic]”. Zeleny’s protests are aimed at drawing attention to NEA’s continued association with Min Zhu.


Zeleny also claims that for many years, WebEx funneled its customers’ confidential data to China, serving as a front for Chinese intelligence in the U.S. He has issued subpoenas in People v. Zeleny to former WebEx security personnel, who collaborated with Federal law enforcement agencies in their ongoing investigation of industrial espionage by WebEx.


Zeleny has also issued subpoenas to NEA’s founder Dick Kramlich and Scott Sandell, as well as Subrah Iyar and David Farrington, in their capacities of business associates of Min Zhu and principals in Moxtra, an online collaboration service founded by Iyar with his daughters, and liable to the same customer privacy violations as WebEx.


According to an article by Ron Leuty, published in San Francisco Business Timeson 29 June 2008, Kramlich moved to China,in part to collaborate with “NEA senior venture adviser Min Zhu, who cofounded software firm WebEx Communications Inc. of Santa Clara (an NEA investment) and now is a leading angel investor in China”. Commenting on Chinese business policies, Kramlich was quoted as saying: “If that’s communism, it’s about the most enlightened form of communism I’ve ever seen.” Zeleny repeatedly forwarded evidence of Min Zhu’s history as an incestuous child rapist to NEA since 2005. NEA has acknowledged its timely receipt during litigation with Zeleny.


According to the filings in NEA v. Zeleny, Zeleny has repeatedly appeared at the corporate headquarters of New Enterprise Associates in Menlo Park and Cisco WebEx in Santa Clara between 2009 and 2011, accompanied by live musicians, along with a number of other protesters bearing large portraits of Min Zhu, Subrah Iyar, and Scott Sandell. At each appearance Zeleny has carried unloaded firearms and ammunition. Local police have been present at each protest. Zeleny seeks to expose the involvement of New Enterprise Associates and their current and former partners Scott Sandell and Dick Kramlich, who are responsible for NEA’s activities in China, with Min Zhu and his enterprises. His public performances have been recorded by a professional videographer and posted on the Internet. In the course of his protests, Zeleny deploys and operates a number of video and still cameras, vowing to complete his documentary case study of Silicon Valley business ethics. Zeleny views his protests as open-ended, and says that he will continue his campaign as long as needed.


People v. Michael Zeleny, San Mateo County Superior Court Case No. SM382036, set to be tried on 2 June 2014, accuses the defendant of violating California Penal Code Section 25400 (a) (2): “A person is guilty of carrying a concealed firearm when the person does any of the following: […] Carries concealed upon the person any pistol, revolver, or other firearm capable of being concealed upon the person.” Zeleny points out that his handgun rested in a conspicuously exposed locked belt holster whilst he conducted his public protests. California Penal Code § 25400 (b) provides: “A firearm carried openly in a belt holster is not concealed within the meaning of this section.” Additionally, Section 25510 (a) provides that Section 25400 does not apply to, or affect “[t]he possession of a firearm by an authorized participant in a motion picture, television, or video production, or an entertainment event, when the participant lawfully uses the firearm as part of that production or event, or while going directly to, or coming directly from, that production or event.” In view of these statutory exemptions, redress is available to Zeleny under 42 U.S.C. § 1983 for, and limited to, a “violation of a federal right, not merely a violation of federal law,” and courts must determine whether a federal statute confers a redressable federal “right.” The individual right to keep and bear arms was affirmed by the Supreme Court of the United States in District of Columbia v. Heller and McDonald v. Chicago, and the United States Court of Appeals for the Ninth Circuit in Peruta v. San Diego. Accordingly, a 1983 claim is being prepared on Zeleny’s behalf.


Zeleny maintains a website dedicated to Min Zhu, Subrah Iyar and Scott Sandell at http://www.subrah.com/. Contact Zeleny by phone at 323-363-1860 or email at zeleny(at)post(dot)harvard(dot)edu, or his counsel David Affeld of Affeld Grivakes Zucker LLP, by phone at 310-979-8700 or email at dwa(at)agzlaw(dot)com.

all in the family

“A man is known by the company he keeps, and also by the company from which he is kept out.”

—Grover Cleveland


Following in the footsteps of his daughterfucking partner Min Zhu, Subrah Iyar credits his daughters Leena and Nikhita with inspiring his current business venture. Five years ago, Iyar vowed not to waste any time getting to know his daughters better now that his workflow has leveled off. Which brings us to the question: How much “better” did Subrah get to know his daughters before pumping up his workflow? We shall surely find out the next time I pay him a visit.


Dig the now avatar of Ganesha. Because daughterfuckers are known by the company they keep, and also by the company from which they are kept out.

On 2 May 2005 I banished Min Zhu from his company and my country. Start packing, Iyar.

long after heraclitus

Das Ziel des Rechts ist der Friede, das Mittel dazu der Kampf. So lange das Recht sich auf den Angriff von Seiten des Unrechts gefasst halten muss–und dies wird dauern, so lange die Welt steht–wird ihm der Kampf nicht erspart bleiben. Das Leben des Rechts ist Kampf, ein Kampf der Völker–der Staatsgewalt–der Stände–der Individuen.
    Alles Recht in der Welt ist erstritten worden, jeder wichtige Rechtssatz hat erst denen, die sich ihm widersetzten, abgerungen werden müssen, und jedes Recht, sowohl das Recht eines Volkes wie das eines Einzelnen, setzt die stetige Bereitschaft zu seiner Behauptung voraus. Das Recht ist nicht blosser Gedanke, sondern lebendige Kraft. Darum führt die Gerechtigkeit, die in der einen Hand die Wagschale hält, mit der sie das Recht abwägt, in der andern das Schwert, mit dem sie es behauptet. Das Schwert ohne die Wage ist die nackte Gewalt, die Wage ohne das Schwert die Ohnmacht des Rechts. Beide gehören zusammen, und ein vollkommener Rechtszustand herrscht nur da, wo die Kraft, mit der die Gerechtigkeit das Schwert führt, der Geschicklichkeit gleichkommt, mit der sie die Wage handhabt.
    Recht ist unausgesetzte Arbeit und zwar nicht etwa bloss der Staatsgewalt, sondern des ganzen Volkes. Das gesammte Leben des Rechts, mit einem Blicke überschaut, vergegenwärtigt uns dasselbe Schauspiel rastlosen Ringens und Arbeitens einer ganzen Nation, das ihre Thätigkeit auf dem Gebiete der ökonomischen und geistigen Produktion gewährt. Jeder Einzelne, der in die Lage kommt, sein Recht behaupten zu müssen, übernimmt an dieser nationalen Arbeit seinen Antheil, trägt sein Scherflein bei zur Verwirklichung der Rechtsidee auf Erden.
    Freilich nicht an Alle tritt diese Anforderung gleichmässig heran. Unangefochten und ohne Anstoss verläuft das Leben von Tausenden von Individuen in den geregelten Bahnen des Rechts, und würden wir ihnen sagen: Das Recht ist Kampf – sie würden uns nicht verstehen, denn sie kennen dasselbe nur als Zustand des Friedens und der Ordnung. Und vom Standpunkt ihrer eigenen Erfahrung haben sie vollkommen Recht, ganz so wie der reiche Erbe, dem mühelos die Frucht fremder Arbeit in den Schoos gefallen ist, wenn er den Satz: Eigenthum ist Arbeit, in Abrede stellt. Die Täuschung Beider hat ihren Grund darin, dass die zwei Seiten, welche sowohl das Eigenthum wie das Recht in sich schliessen, subjectiv in der Weise auseinanderfallen können, dass dem Einen der Genuss und der Friede, dem Andern die Arbeit und der Kampf zu Theil wird.
    Das Eigenthum wie das Recht ist eben ein Januskopf mit einem Doppelantlitz; Einigen kehrt er bloss die eine Seite, Andern bloss die andere Seite zu, daher die völlige Verschiedenheit des Bildes, das beide von ihm empfangen. In Bezug auf das Recht gilt dies wie von einzelnen Individuen, so auch von ganzen Zeitaltern. Das Leben des einen ist Krieg, das Leben des andern Friede, und die Völker sind durch diese Verschiedenheit der subjectiven Vertheilung beider ganz derselben Täuschung ausgesetzt, wie die Individuen. Eine lange Periode des Friedens – und der Glaube an den ewigen Frieden steht in üppigster Blüthe, bis der erste Kanonenschuss den schönen Traum verscheucht, und an die Stelle eines Geschlechts, das mühelos den Frieden genossen hat, ein anderes tritt, welches sich ihn durch die harte Arbeit des Krieges erst wieder verdienen muss. So vertheilt sich beim Eigenthum wie beim Recht Arbeit und Genuss, aber für den Einen, der geniesst und im Frieden dahinlebt, hat ein Anderer arbeiten und kämpfen müssen. Der Frieden ohne Kampf, der Genuss ohne Arbeit gehören der Zeit des Paradieses an, die Geschichte kennt beide nur als Resultate unablässiger, mühseliger Anstrengung.
    Diesen Gedanken, dass der Kampf die Arbeit des Rechts ist und in Bezug auf seine praktische Nothwendigkeit sowohl wie seine ethische Würdigung auf dieselbe Linie mit der Arbeit beim Eigenthum zu stellen ist, gedenke ich im Folgenden weiter auszuführen. Ich glaube damit kein überflüssiges Werk zu thun, im Gegentheil eine Unterlassungssünde gut zu machen, die sich unsere Theorie (ich meine nicht bloss die Rechtsphilosophie, sondern auch die positive Jurisprudenz) hat zu Schulden kommen lassen. Man merkt es unserer Theorie nur zu deutlich an, dass sie sich mehr mit der Wage als mit dem Schwert der Gerechtigkeit zu beschäftigen hat; die Einseitigkeit des rein wissenschaftlichen Standpunktes, von dem aus sie das Recht betrachtet, und der sich kurz dahin zusammenfassen lässt, dass er ihr das Recht weniger von seiner realistischen Seite als Machtbegriff, als vielmehr von seiner logischen Seite als System abstracter Rechtssätze vor Augen führt, hat meines Erachtens ihre ganze Auffassung vom Recht in einer Weise beeinflusst, wie sie zu der rauhen Wirklichkeit des Rechts gar wenig stimmt – ein Vorwurf, für den der Verlauf meiner Darstellung es an Belegen nicht fehlen lassen wird.
    –Rudolph von Jhering, Der Kampf um’s Recht, 1884
The end of the law is peace. The means to that end is war. So long as the law is compelled to hold itself in readiness to resist the attacks of wrong—and this it will be compelled to do until the end of time—it cannot dispense with war. The life of the law is a struggle,—a struggle of nations, of the state power, of classes, of individuals.
    All the law in the world has been obtained by strife. Every principle of law which obtains had first to be wrung by force from those who denied it; and every legal right—the legal rights of a whole nation as well as those of individuals—supposes a continual readiness to assert it and defend it. The law is not mere theory, but living force. And hence it is that Justice which, in one hand, holds the scales, in which she weighs the right, carries in the other the sword with which she executes it. The sword without the scales is brute force, the scales without the sword is the impotence of law. The scales and the sword belong together, and the state of the law is perfect only where the power with which Justice carries the sword is equalled by the skill with which she holds the scales.
    Law is an uninterrupted labor, and not of the state power only, but of the entire people. The entire life of the law, embraced in one glance, presents us with the same spectacle of restless striving and working of a whole nation, afforded by its activity in the domain of economic and intellectual production. Every individual placed in a position in which he is compelled to defend his legal rights, takes part in this work of the nation, and contributes his mite towards the realization of the idea of law on earth.
    Doubtless, this duty is not incumbent on all to the same extent. Undisturbed by strife and without offense, the life of thousands of individuals passes away, within the limits imposed by the law to human action; and if we were to tell them: The law is a warfare, they would not understand us, for they know it only as a condition of peace and of order. And from the point of view of their own experience they are entirely right, just as is the rich heir into whose lap the fruit of the labor of others has fallen, without any toil to him, when he questions the principle: property is labor. The cause of the illusion of both is that the two sides of the ideas of property and of law may be subjectively separated from each other in such a manner that enjoyment and peace become the part of one, and labor and strife of the other. If we were to address ourselves to the latter, he would give us an entirely opposite answer.
    And, indeed, property, like the law, is a Janus-head with a double face. To some it turns only one side, to others only the other; and hence the difference of the picture of it obtained by the two. This, in relation to the law, applies to whole generations as well as to single individuals. The life of one generation is war, of another peace; and nations, in consequence of this difference of subjective division, are subject to the same illusion precisely as individuals. A long period of peace, and, as a consequence thereof, faith in eternal peace, is richly enjoyed, until the first gun dispels the pleasant dream, and another generation takes the place of the one which had enjoyed peace without having had to toil for it, another generation which is forced to earn it again by the hard work of war. Thus in property and law do we find labor and enjoyment distributed. But the fact that they belong together does not suffer any prejudice in consequence. One person has been obliged to battle and to labor for another who enjoys and lives in peace. Peace without strife, and enjoyment without work, belong to the days of Paradise. History knows both only as the result of painful, uninterrupted effort.
    That, to struggle, is, in the domain of law, what to labor, is, in that of economy, and, that, in what concerns its practical necessity as well as its moral value, that struggle is to be placed on an equal footing with labor in the case of property, is the idea which I propose to develop further below. I think that in so doing I shall be performing no work of supererogation, but, on the contrary, that I shall be making amends for a sin of omission which may rightly be laid at the door of our theory of law; and not simply at the door of our philosophy of law, but of our positive jurisprudence also. Our theory of law, it is only too easy to perceive, is busied much more with the scales than with the sword of Justice. The one-sidedness of the purely scientific standpoint from which it considers the law, looking at it not so much as it really is, as an idea of force, but as it is logically, a system of abstract legal principles, has, in my opinion, impressed on its whole way of viewing the law, a character not in harmony with the bitter reality. This I intend to prove.
    –Rudolph von Jhering, The Struggle for Law, translated by John J. Lalor, 1915

chumps of the world, undefeated

Emily Bazelon’s impassioned assault on the First Amendment, made in the names, and on the behalves of, receptive parties in failed romantic relationships, publicly shamed by their former mates, characteristically misses its mark. If speech is actionable, its kind will always already have been chilled, e.g. by statutes that penalize libel or invasion of privacy. The problem with banning “revenge porn” is that in the typical instances its content is true and its subject’s rights to privacy will have been waived through her voluntary communication thereof, by word or by deed, to the alleged tortfeasors who subsequently disseminate it against, or regardless of, her will. Under these circumstances, anti-SLAPP statutes designed to penalize the filing of lawsuits that aim to curtail protected speech, will typically require the plaintiff to pay the defendant’s legal fees and costs upon the ensuing showing that her lawsuit is unlikely to succeed on its merits in view of its Constitutional protection. Put simply, a reasonable expectation of privacy is generally waived through its subject’s voluntary disclosure of the underlying facts to any other party not bound by the duty of confidentiality. And it gets worse: if the former recipient of your sexual ardor wronged you in a way whereby she may wrong others, e.g. by infecting you with an STD, or even by screwing around behind your back in a way that exposed you to the mere likelihood of contracting an STD, your public disclosure of these facts would not be subject to liability under the privacy statutes, in virtue of being of legitimate concern to the public. Arguably, you have a duty to disclose it the general public, in proportion with your good faith belief that your perfidious ex represents a danger to others.

A fine survey of the remains of privacy’s disclosure tort can be found here.

seul contre tous

—Tu sais ce que c’est que la morale ? Moi je vais te dire ce que c’est la morale. La morale, c’est fait pour ceux qui la tiennent, les riches. Et tu sais qui a raison à chaque fois ? C’est les riches. Et c’est les pauvres qui trinquent. Tu veux la voir ma morale à moi ?
—Euh… Ouais.
—Ouais ? Tu vas pas regretter après hein ?
—Je sais pas.
—Je crois que tu vas avoir un peu peur. La voilà ma morale. La morale c’est ça. Tu sais pourquoi je me balade avec ça ? Hein… ? Parce que celui qui m’amènera la morale avec son uniforme, OK ? Il aura plus de chance, OK ? D’avoir sa putain de justice derrière lui. Et moi, la voilà ma justice. Que tu te trompes ou que t’aies raison c’est la même chose mon grand.

—You know what morality is? I’ll tell you what it is. Morality is made for those who own it, the rich. And you know who is right every time? The rich. And it is the poor who pay the price. You want to see my morality?
—Uh… Yeah.
—Yeah? Sure you won’t regret it?
—I don’t know.
—I think it’s gonna scare you a little. Here is my morality. That’s morality for you. You know why I’m walking around with it? Huh…? Because the guy in blue shows off his morality, OK? He’s got the upper hand, OK? To have his fucking justice backing him up. But me, here is my justice. Right or wrong, same difference, my friend.

—Gaspar Noé, Seul contre tous, 1998