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Memorial Day

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“Slavenas is dead, Mike, Brian is dead.”

I was in the law school career services center when I got the call from a friend of mine from OCS. Brian Slavenas, this friend who called, and I were buddies during OCS. We didn’t really fit in as we found the military disciple and f*ck-f*ck games stupid. Every month we’d meet up and deal with the stupidity. (We were in the National Guard at the time, and OCS was divided over 18 months rather than the all-at-once 12 week program at Ft. Benning.)

In military units you have squares, criminals, and non-conformists. The squares act as little drill instructors and yell at their fellow soldiers for not following The Book. Criminals are the scum bags in the military you’re not allowed to ever talk about, because it would be unpatriotic to stop pretending that everyone who enlists is a regular GI Joe. Non-conformists, which Brian and I were, are people who break the rules but not in an overtly morally wrong way.

My friend would listen to self-hypnosis CDs using a smuggled player and I got into it with the TAC officers after telling them I wanted to be a criminal defense lawyer. (Most of them were law enforcement.)

Brian would pack his Captains of Crush grippers. The three of us were all into strength training and strong man style training, so we’d bond over reps and sets.

To become a Captain of Crush, you had to send in a picture of yourself closing the #3 gripper, which required nearly inhuman levels of strength.

Brian could close the #2 10 times, and was so close to closing the #3.

Whenever I think about Brian, I wonder if he ever managed to close the #3.

Brian was an unusual person in every positive sense of the word. Some reports of his death listed him at 6’5″, but he seemed taller, as he’d walk up every other step in a normal stride as I picked up the pace to keep up. Muscular like a bodybuilder, he was an Engineering major and bright. And also incredibly insecure.

Imposter Syndrome hadn’t caught on in the TED talk set yet, but Brian was no better example of someone who had it all but felt inadequate for no rational reason.

His shyness, especially when it came to girls, led to my friend and I teasing him often. “Brian, if I looked like you, imagine what I’d do!”

(Brian Slavenas, pictured at far left.)

After OCS, I left for law school in California.

Brian was shot down flying troops home on a rest and relaxation leave.

Brian’s mother took the loss hard, as one would expect, and she didn’t want any of his friends from the military to attend his funeral.

  • Brian’s father had taken it for granted that there would be a formal military funeral, but Brian’s designated next of kin—and thus the person entitled to make such a decision—was his mother. Rosemarie Slavenas said that it was her responsibility to give her son the funeral that was appropriate for his life. The service she arranged, at the Faith United Methodist Church, in Genoa, was a civilian service, with flowers rather than an American flag on the casket, and no weapons in sight. Afterward, addressing some reporters and cameramen gathered outside the church grounds, Rosemarie Slavenas said, “George Bush killed my son. I believe my son Brian died not for his country but because of our country’s lack of a coherent and civilized foreign policy.”
  • Eric Slavenas, a strong supporter of the war, had said that not having “Taps” and a flag-draped casket at Brian’s service amounted to “spikes in my dad’s and my heart.”

The Slavenas family fracture captures the sentiment of many of those who served or lost those who served.

“When they needed blood, they called it Patriotism. However, let those same yokels and suckers try to express those feelings in ways that didn’t involve killing strangers….then The Powers That Be had The Talking Heads resurrect the specter of the long-dead Third Reich and trot out cliched shaming language with words like Nationalism.” – Samuel Finlay, Breakfast with the Dirt Cult.

The reporters who lied about WMDs in Iraq kept their jobs. The chickenhawks who cried for war received promotions and became leaders of the conservative and neoliberal establishments.

On Memorial Day you’re supposed to Honor the Fallen. And on Veteran’s Day you’re supposed to Thank You for Your Service. What day do we get to tell the war mongers to fuck off?

When will we have a national holiday where we line up Bill Kristol, the editorial staff of the New York Times, Bill O’Reilly, Dick Cheney, and the the rest of these war criminals and chickenhawks and make them hold their heads in shame?

Parallel worlds.

In cognitive psychology there’s a concept known as survivorship bias. When one person survives (usually this means they succeeded or had a major investment gain), we reason backwards to explain why they lived.

Brian died and I lived. There’s no good reason for this. I moved onto law school as planned, with no knowledge that 9/11 would happen. Brian continued his studies and served as an aviator.

There’s no reason one man lives and other dies.

And by any objective measure, Brian deserved to live more than I did, and certainly more than most others. He was one of the men who are legitimately good people.

Adding to the sense of tragedy is that Brian and I pulled off what seems an unlikely feat. Both of were profiled in the New Yorker.

Me for living, and him for dying.

Like Brian’s mom I share a special contempt for the war mongers, as I told a reporter:

“Some people say they hate Beltway insiders and establishment media types, but it’s actually sour grapes,” Cernovich said. “Deep down, they want the cool kids to love them. I actually fucking detest those people.” He grew up in Kewanee, a farming town in Illinois. Not long ago, he said, “I started looking into who these neocon policy wonks are. Every backstory was the same—East Coast, Harvard, trust fund, nepotism. Look, if the experts decide tomorrow that we’re going to war with Russia, who’s gonna fight that war? Jonah Goldberg and Ross Douthat? Fuck no. It’ll be guys I know from Kewanee.”

On Memorial Day I don’t want to hear a thing about service or freedom from those who stayed home while sending others off to die.

For those who have lost, may God bless you and let their memories be a blessing.

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The Patreon Lawsuit Involving Owen Benjamin Explained by a Lawyer

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Patreon, a platform popular with podcasts, journalists, and comedian faces significant legal peril due a fascinating quirk of California law that no one seemed to have noticed.

  • Summary: Patreon banned Owen Benjamin. Owen Benjamin’s backers moved for arbitration, alleging various causes of action. Under the arbitration procedures spelled out in Patreon’s Terms of Service, Patreon must pay the filing fees, which could total millions of dollars. Patreon cannot collect those fees back, even if Patreon wins the arbitrations.

Tech companies face almost total protection from lawsuits due to a law created by Congress to encourage freedom of speech on the web. Because of this, companies have gotten sloppy with the Terms of Service.

Patreon’s Terms of Service, like nearly every other tech companies, provide that anyone who wants to use Patreon must do so in arbitration. Patreon’s TOS also ban class actions or any joint actions.

Patreon’s TOS mandate arbitration and ban class actions because individual consumers who suffer small harms aren’t able to find a lawyer to take their case. Again, all tech companies do this. Let’s not single out Patreon. Here is Amazon:

  • Any dispute or claim relating in any way to your use of any Amazon Service, or to any products or services sold or distributed by Amazon or through Amazon.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify.

Here is PayPal:

  • By opening and using a PayPal account, you agree to comply with all of the terms and conditions in this user agreement. The terms include an agreement to resolve disputes by arbitration on an individual basis.

Owen Benjamin Gets Banned. Dozens of his backers individual claims for arbitration.

Patreon, by banning a Creator, disrupts the economic relationship between Creator and Backer. In legal terms this is called tortious interference with a business relationship.

Patreon, under California law, must pay the arbitration fees in advance. These fees can be upward of $10,000 per case.

If dozens of backers move for individual arbitration against Patreon, you can start doing the math.

Benjamins’ Backers Put Patreon on Notice; Patreon Unilaterally Amends its TOS to Bar the Claims the Parties were Going to Bring.

In early December, numerous defendants told Patreon that they intended to move for individual arbitration.

Patreon’s TOS suggest that contacting them before seeking arbitration is required, although this provision could be read as a request rather than a demand.

  • We encourage you to contact us if you have an issue. If a dispute does arise out of these terms or related to your use of Patreon, and it cannot be resolved after you talk with us, then it must be resolved by arbitration.

Because Patreon wrote the TOS, the terms will be resolved against Patreon. In law this is known as contra proferentem. Any ambiguous language will be read in favor of the party who did not draft it.

The TOS, to me and many others, looks like a pre-filing demand. Others may claim the terms read otherwise. Contra proferentem applies.

Two or three weeks later, Patreon unilaterally altered the Terms of Service by adding this clause:

  • You may not bring a claim against us for suspending or terminating another person’s account, and you agree you will not bring such a claim. If you try to bring such a claim, you are responsible for the damages caused, including attorneys fees and costs. These terms remain in effect even if you no longer have an account.

Patreon claimed that its unilateral change to the TOS “remain in effect even if you no longer have an account.”

Yes, Patreon literally changed its TOS after it was contacted by arbitration claimants, who were required to contact Patreon before moving for arbitration.

Patreon filed a Mass Action against the Arbitration Claimants.

Patreon lost several procedural motions before arbitrations. After losing these motions, they sued the arbitration claimants in California State Court.

Realizing that the arbitration fees would be in the millions of dollars range, Patreon filed a group action against all 72 arbitration claimants. Patreon sought an injunction, that is, they want the Court to order the arbitrations to be stopped.

Here is what Patreon’s TOS says about group actions:

  • Arbitrations may only take place on an individual basis. No class arbitrations or other grouping of parties is allowed. By agreeing to these terms you are waiving your right to trial by jury or to participate in a class action or representative proceeding; we are also waiving these rights.

To drop my lawyer’s latin again, contra proferentem. Patreon can’t claim that when they said that “other groupings of parties is allowed,” applies only to arbitrations. That provision is subject to an ambiguous reading at best.

How can Patreon file a group action against 72 defendants when Patreon barred group actions? They can’t.

The Patreon Hearing.

The 72 defendants were represented by well-known First Amendment lawyer Marc Randazza.

The Court issued a tentative (not final) order denying the injunctions.

During the hearing, Patreon’s counsel brought up additional cases that it claimed applied to the lawsuit.

The Court suggested that Randazza file a supplemental motion addressing those new cases Patreon’s counsel cited.

Patreon will probably lose, and should lose, its State Court action.

Patreon’s TOS required parties to use arbitration. Group actions were banned. The parties complied with the TOS, first by putting Patreon on notice as to their claims.

Once the parties put Patreon on notice of their claim, Patreon was barred by well-established law from amending the TOS in a way that would foreclose those claims.

The Implications?

If a popular creator were banned from PayPal, could he or she have her backers move for arbitration as well?

That’s a specific question that many lawyers are looking at now.

Patreon, like Door Dash before it, banned class actions before decision that group actions are in fact an inefficient way of resolving cases.

Here is what a federal judge told one tech company who complained about a “loophole” being used by the parties:

DoorDash Ordered to Pay $9.5M to Arbitrate 5,000 Labor Disputes:

SAN FRANCISCO (CN) – Rejecting claims that the legal process it forced on workers is unfair, a federal judge Monday ordered food-delivery service DoorDash to pay $9.5 million in arbitration fees for 5,010 delivery drivers’ labor demands against the company.

“You’re going to pay that money,” U.S. District Judge William Alsup said in court. “You don’t want to pay millions of dollars, but that’s what you bargained to do and you’re going to do it.”

Of course anything can happen in a court of law, and the judge will be issuing a final ruling in a few weeks from now.

Read my prior coverage here:

Patreon Faces New Legal Peril Under California Law

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CNN’s Brian Stelter Apologizes for Mistake (Good Man)

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UPDATE:

CNN’s Brian Stelter falsely accused a woman of spreading disinformation tonight, in a Tweet Stelte deleted without apology after it was revealed that Stelter lying.

The lie concerned a fire started by rioters in Washington D.C. Katrina B. Haydon reported that St. John’s church near the White House was on fire.

 

 

 

Stelter attacked the woman, baselessly accusing her of lying.

 

Brian Stelter has yet to apologize to spreading disinformation.

Did Brian Stelter lie to protect violent protesters?

Why did Stelter lie?

Is he trying to provide propaganda for violent protesters and domestic terrorists?

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“Burn It Down,” ESPN Writer Encourages Arson of Low Income Housing

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ESPN sportswriter Chris Palmer Martin Tweeted, “Burn that shit down. Burn it all down.” The burning building was a low-income housing area in Minneapolis. (Minneapolis vandalism targets include 189-unit affordable housing development.)

When rioters neared Martin’s home, he called them “animals.”

 

The media has a history of supporting ANTIFA.

 

 

Hoaxed Movie Uncovers the Media’s Relationship with ANTIFA

Watch the Hoaxed Movie Trailer

Where to Watch Hoaxed Movie

iTunes here

Vimeo here

YouTube here

VuDu here

DVDs here

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