This Week In Censorship

Censorship does weird things to your mind. I’m not talking about the person being censored – of course that’s bound to mess you up. I’m talking about the censors themselves, or those with the censorial impulse. It just makes people go wacky. A couple of stories from (thankfully) overseas illustrate that wackiness.

William Burroughs is not what you would call an “easy” read. And I say that based on my only interaction with his work being the David Cronenberg film of Naked Lunch. After that he really went wild, writing a series of novels with a “cut and paste” technique that appears to me to work like music concrete: hack up a work (or several) and then reassemble it in, essentially, random order. I’ve heard music concrete. I can only imagine what damage the written equivalent would do to my brain.

But that’s an aesthetic observation and one everybody else is free to disagree with. But not in Turkey, where authorities are taking aim at the first of those novels, The Soft Machine* (via):

The court referred to a report written by the Prime Ministry’s Council for Protecting Minors from Explicit Publications that accused the novel, ‘The Soft Machine,’ of ‘incompliance with moral norms’ and ‘hurting people’s moral feelings.’

But wait, they don’t stop there:

The council also accused the novel of ‘lacking unity in its subject matter,’ ‘incompliance with narrative unity,’ for ‘using slang and colloquial terms’ and ‘the application of a fragmented narrative style,’ while claiming that Burroughs’s book contained unrealistic interpretations that were neither personal nor objective by giving examples from the lifestyles of historical and mythological figures. None of the above, argued the publishing house, constitutes a criminal act.

The council went further and said, ‘The book does not constitute a literary piece of work in its current condition,’ adding it would add nothing new to the reader’s reservoir of knowledge, and argued the book developed ‘attitudes that were permissive to crime by concentrating on the banal, vulgar and weak attributes of humanity.’

I’ve read a lot about book banning and the like. I’ve seen books banned for having too much sex or too much drug use. For teaching kids about witchcraft and for saying naughty things about God. But I’ve never seen a government censorial organ support an argument for a ban because the book just sucks. I think that’s what their literary criticism is getting at. As amusing as that might be, it’s still chilling that in the 21st century a member of NATO will tell you what you can and can’t read (and don’t even mention the Armenian genocide).

Back in the mother country, let’s hope William and Kate don’t want to boogie down to some 1970s kitsch pop. They might have to arrest the band (via):

A musician was arrested after a performance of the 1970s song [“]Kung Fu Fighting[”] at an Isle of Wight bar sparked an alleged racism row with a passer-by.

Simon Ledger, 34, of Shanklin, said he was playing the Carl Douglas hit at the Driftwood bar, Sandown, on Sunday when the man of Chinese origin took offence.

Get that straight – a keyboard player was arrested (aka taken to the station in cuffs) for singing a song, allegedly causing “harassment, alarm or distress.” Sure, he was released on bail, but the cops assure they will talk to him later. Hopefully to apologize and book the band for the next fraternal order function.

It's more about amusement and head scratching from our perspective over here when things like this happen.  But it's really pretty chilling that they happen at all.

* Yes, that is where the foundational Canterbury prog band got its name.

Where "That Word"* Comes From

One of the occupational hazards of my line of work is digging through old(ish) court cases and running into antiquated language. Stuff that makes me scratch me head and run for a dictionary. Sometimes, it’s a word or phrase that I’ve never seen before. Other times, it’s a word that’s so out of step with its modern usage that I stumble over it and then go looking for the dictionary. Had the later happen to me today.

For research on an issue that’s new to me, I wound my way to a 1955 Supreme Court case called Bell v. United States. Written by Justice Frankfurter, it’s a swift three pages (in Westlaw format, at any rate), displaying a brevity rarely seen in modern Court opinions (the dissent, likewise, is only four paragraphs long). At any rate, near the end of the opinion, Frankfurter writes (emphasis mine):

When Congress has the will it has no difficulty in expressing it-when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.

Of course, “faggot” has an etymology aside from its modern use as a homophobic slur. Still, it’s a bit of a “whuh?” moment when you see it in a Supreme Court opinion. So, I did what I always do: I went to a dictionary.

Not any dictionary, of course, but Black’s Law Dictionary. I am a lawyer, after all. Oddly, the definition in my version (Sixth Edition), doesn’t seem to have much relevance to its use in Bell:

A badge worn in early times by persons who had recanted and abjured what was then adjudged to be heresy, as an emblem of what they had merited.

I can’t quite tell whether that definition applies to the heretic or the heretic who get better. Either way, it doesn’t have fuck all to do with the issue in Bell. Let’s try a “real” dictionary then, the Oxford English Dictionary. And speaking of heretics:

2.

a. With special reference to the practice of burning heretics alive, esp. in phrase fire and faggot; to fry a faggot , to be burnt alive; also, to bear a faggot , to carry a faggot , as those did who renounced heresy. Hence fig. the punishment itself.

b. The embroidered figure of a faggot, which heretics who had recanted were obliged to wear on their sleeve, as an emblem of what they had merited.

All right, that clears up the confusion from Black’s, but it still doesn’t really make sense in the context of the case. Of course, that’s the second definition in OED. As for the first:

1. A bundle of sticks, twigs, or small branches of trees bound together.

Ah, that makes more sense. But how did we get from heretics and bundles of sticks to a homophobic slur? Nobody is really sure (South Park has its version), although this theory seems plausible to me (more at Wikipedia). What is clear is that “fag” as a slur is an American phenomenon, although one that’s spreading to other English-speaking countries.  Lovely.

See what kinds of interesting tidbits you learn reading old court cases?

* One of them, anyway.

I Am Not My Clients

I have a pair of older brothers, Scott and Todd. Scott, for a long time, has been a drug rep. That is, he works for pharmaceutical companies, selling their goodies to doctors. Of course, I’ve been a public defender for even longer. That lead Todd, one time, to jokingly tell my niece (Scott’s daughter) that her dad sold drugs for a living and her uncle worked for drug dealers.

Of course, I don’t really “work” for drug dealers. Meaning, they don’t pay my salary (that comes from an even more dubious source – the American taxpayers!). But, the fact is, I do what I do on behalf of people accused of serious, and sometimes heinous, crimes that the general public look upon with scorn. Drug dealers? Of course. Murderers? A few. Child molesters and rapists? You bet. Proud to do it, too. Proud to stand, with my colleagues, between my clients and the awesome power of the state and say, “prove it!”

That doesn’t make me a drug dealer, though. Or a murderer. Or a rapist or a molester. A lawyer is not his clients.

That principle has blown up this week with the latest twist in the saga of the Defense of Marriage Act. DOMA was enacted in 1996 (another gift of the Clinton years) in order to keep the federal government out of the gay marriage business. It’s a hateful piece of legislation that should be condemned to the dustbin of history. Unfortunately, it wasn’t quickly dispatched during the halcyon days of a Democratic majority in Congress, and you can sure as hell bet the GOP isn’t about to let go of that wedge issue.

DOMA is under attack in the courts, of course. Recently, the Department of Justice announced it would no longer defend DOMA, although the administration continues to enforce it. Pursuant to well established federal law, the administration provided the House of Representatives with the materials needed to continue the defense of DOMA if they desired. Well, of course they did. To head up its legal team, the House retained Paul Clement, a former Solicitor General, admired appellate advocate, and (until recently) a partner at King & Spalding. Then all hell broke loose:

The LGBT community in Atlanta has significant political influence, and [upon agreeing to defend DOMA,] the firm quickly became a target for major gay rights organizations including the Human Rights Campaign and the group Georgia Equality — the largest gay rights advocate in the state. The groups planned an aggressive ad campaign, direct communication with the firm’s clients, and a diminution of its Corporate Equality Index ranking — the metric HRC uses to track corporate support for gay rights.

* * *

According to [Fred] Sainz [vice president of communications for HRC], HRC 'had already started contacting their clients. ... [King & Spalding was] starting to hear from companies that this was causing those companies a great deal of consternation, and they might have to rethink their relationships [with the firm].'

As a result of the backlash, King & Spalding backed out of the case, citing insufficient “vetting.” Clement, in a letter released publicly, left the firm (moving to another) and said he would stay on the case:

I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism....

Like I said above, DOMA should go the way of the Dodo. But Clement is exactly right – lawyers shouldn’t be vilified for the clients they represent. Our justice system is adversarial. It only works with both sides show up with the best hired guns, loaded for bear. Mismatched advocates taint the process, whether it’s the state prosecutor versus an underfunded and over worked public defender, a pro se tenant versus a represented landlord, or a group of incompetent clowns versus two of the best advocates in the business.

That last one isn’t a hypothetical. It’s the situation that played out when California’s anti-gay marriage Prop 8 was challenged in federal court. The plaintiffs were represented by a pair of legal giants, Ted Olson and David Boies. The state, on the other hand, chose not to appear in the case (even to say Prop 8 was indefensible) and the court allowed a third party, the proponents of Prop 8, to defend the law. They were laughably bad, undermined by their own witnesses and bogged down in culture war dogma that really doesn’t hold water in court. Of course, they lost. A just result, in my mind, but it’s not hard to wonder about the legitimacy of a victory like that (it’s also screwed up the appellate process but good).

I would never suggest that an attorney be forced to represent any particular client. There are lots of factors that go into a decision to represent a client (or not) and whether you want to represent “that kind” of client is one of them. However, once you sign on the dotted line, it’s unseemly to dump a client because of the negative publicity you get. If you’re in it, you’re in it all the way (barring conflict of interest, etc.).

The best argument I’ve seen otherwise, that it was fine for King & Spalding to dump the DOMA case in the face of pressure, is in this diary over at Daily Kos. It basically bails down to the idea that lawyers defending unpopular clients are only to be praised when those clients are underdogs, with real skin in the game, as opposed to established interests.

Ultimately, I can’t agree, because I think that kind of analysis (a) overlooks the systemic issues laid out above and (b) results in a kind of confirmation bias. In essence, lawyers who represent my causes are to be praised, those that represent the other side are to be condemned. The system can’t really work that way, taking the long view.

As Orin Kerr sums up:

Of course, both sides play this game. The most recent example on the right — or at least the example that comes to mind — has been the effort by some conservatives to punish lawyers and firms who have represented detainees at Guantanamo. This has gone through a few iterations, ranging from the remarks of a government official in 2007 suggesting that corporate clients of their firms might want to rethink being clients there to the efforts in 2010 to suggest that Gitmo lawyers were disloyal to the United States. If I had my druthers, we would have the same response to all of these disputes: It’s a lawyer’s job to represent unpopular clients, and we shouldn’t punish them for taking on that representation. Cue the John Adams tape.

Although Orin’s link is a bit odd, but Adams knew something about unpopular clients. He represented British soldiers charged after the Boston Massacre. He later said:

The part I took in defense of captain Preston and the soldiers, procured me anxiety, and obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.

Yes, he’s talking about a criminal case. But the system, criminal or civil, only functions at its best when all the players are firing on all cylinders. It’s better, in the end, if every client and every cause, even the offensive ones, get quality counsel. That requires lawyers to suck it up, bear the brickbats of public opinion, and make sure that happens.

What’s Spanish for “Oops”?

The Copa del Rey is the Spanish equivalent to the FA Cup or US Open Cup, the national knock-out soccer tournament. As with most things futbol in Spain, it often comes down to a showdown between the country’s two most celebrated clubs, Real Madrid and FC Barcelona. This season, Barca has the better of Real in the league (they’re both in the semifinals of the Champions League), but when the two met in the Copa final yesterday, Real came out with a 1-0 victory.  It was their first victory in the competition since 1993 and firs trophy of any kind for three years.

And, of course, a spiffy trophy  A heavy, spiffy trophy. Of the kind that features prominently in the victory parade through the city. This is probably not what they had in mind:



I wonder if The Special One had a talk with the team afterwards that ended with, “this is why we can’t have nice things!”

Two Thoughts

I’ve had a couple of things rattling round my brain the past few days, in the wake of the premiere of Game of Thrones Sunday night. HBO’s already in for a second season, by the way.  With that said . . .

Must we politicize everything?

For a long time, I’ve been more interested in what “regular” folks think about things than professionals. I always read the letters to the editors in the newspaper. Ditto for the letters sections of magazines, be it Keyboard or Four Four Two. So, as you’d expect, I love sifting through blog comments, if only for the entertainment value.

One of the things that depresses me about blog comments, though, is how any discussion can turn political. I’ve seen sports stories on USA Today followed by a lengthy set of comments that winds up as a shouting match between those who think Obama is a Muslim atheist Kenyan from outer space and those who think the Koch Brothers run the world from Dr. Evil’s old mountain hideout. What the fuck does any of that do with who won the NCAA tournament?!?

So it disappoints me to see folks try to dragoon Game of Thrones into the political realm, as Adam Serwer did at The American Prospect (via). He argues that Game of Thrones and the books on which it is based is a “liberal” version of fantasy because it deal in shades of grey and the heavy consequences of one’s actions. By comparison, the “conservative” Lord of the Rings films (which National Review put on an equally stupid list of best “conservative movies”) is all about the struggle between good and evil, it’s easy to tell which side is which, and the good guys prevail in the end.

I don’t know if that’s an accurate description of Lord of the Rings – I’ve never been a huge Tolkien fan and only recall bits of the films – but even if it is, so what? Does everything have to be read through a lens of politics? Outside of something like Atlas Shrugged or Animal Farm I’m loathe to try and line up works of fiction on a political map. It seems like a pointless exercise in trying to claim what you like best for your “team.”

I’m all for discussing subtext and analyzing the political or philosophical underpinnings of fiction, but can we all agree that few authors or filmmakers spend that much time figuring out whether Gandalf would have voted for Ronald Reagan or Jimmy Carter? Please.

The “Read the Book” Defense

Speaking of Atlas Shrugged . . . Game of Thrones wasn’t the only grim fantasy to hit screens this weekend. The first of a threatened three-part adaptation of Rand’s prized doorstop hit screens last Friday with a dreadful thud. As of right now, only 8% of critics gave the movie a positive review, with most top critics completely savaging it (see, e.g.).

But, according to the same source, 85% of viewers like it. A huge disconnect caused by the bias of them liberal elite media critic folk? Not really. More likely that the film opened wide enough to attract critical attention, but without sufficient advertising to attract any but devoted Rand fans to see it. I only knew about it because I skim the libertarian blogosphere on a regular basis. A comment on the Volokh Conspiracy post about the movie illustrated things perfectly:

I just saw the movie at the Kendall Square Cinema in Cambridge, Mass. I thought the movie was better than was suggested by any of the reviews I’ve yet seen, with the caveat that it will seem incoherent and overwrought to anyone unfamiliar with the general plot of Atlas Shrugged.

In other words, if you’ve read the book, the movie will work. Talk about damning with faint praise.

Oddly enough, I’ve seen similar statements about Game of Thrones, particularly in response to one recurring criticism of the opening episode, that the women involve are little more than pawns and objects of sex or abuse (sometimes both). Those critics aren’t wrong. But fans of the books also correctly point out that lots of the women in the Thrones world grown into rich, interesting, and (at times) maddening characters in spite of the misogynistic world around them. In other words, it gets better on that score.

But that’s not much of a defense. Just as Atlas Shrugged, Part 1 has to stand on its own, without support from Rand’s novel, so too must Game of Thrones work its own way into the world (although, to be fair, one episode does not a season make). If the your best defense of something on screen starts off “well, if you’ve read the book . . .,” that’s pretty telling.

Winter Is Coming

Growing up I read a little bit of fantasy. Lloyd Alexander’s The Chronicles of Prydain were a favorite. But I was more drawn towards science fiction. I completely skipped out on Tolkien (the most important Tolkien-related think in my life is Marillion, for crying out loud), for example. Even Dune, which reads more as fantasy than sci-fi to me, didn’t make much of an impact. I don’t know if it was that I perceived sci-fi as being more “realistic” or if I just had an aversion to magic and tales of great quests.

That’s change over the past few years, as I’ve dug into the work of a couple of writers who made me rethink what fantasy was and what a writer could do with it. One of them is Neil Gaiman, a name I knew of (he wrote the best season five episode of Babylon 5, for instance), but whose stuff I hadn’t really read until the girlfriend gave me a volume of Sandman for my birthday. He’s brilliant, interesting, and usually funny (although often in dark ways). But that’s not who I want to focus on.

The other writer is George R.R. Martin, a prolific guy most well known for his expansive (and ongoing) series A Song of Ice and Fire. It’s epic fantasy, all right, but not the kind Disney makes cartoons out of. As Andrew Leonard put it at Salon:

Martin's fantasy saga demands a literary classification almost all its own -- call it, for better or worse, realist fantasy.

'A Song of Ice And Fire' is to normal fantasy what 'The Wire' was to typical cops-and-robbers drama, packed with grit, complexity and flawed human beings making their way through a corrupt and intimidating world. Heroes die, villains triumph, peasants and slaves suffer horribly and knights are as likely to be plate-metal-encased thugs and hoodlums as they are noble icons of chivalry. Loosely modeled on a medieval-era England ravaged by the Wars of the Roses, Martin's world does not gloss over the starvation, rape and murder that follow in the wake of war. The class stratification and brute injustice of feudal society screams out of nearly every page.

* * *

His characters -- male and female -- are among the most fully realized in all fantasy. Heroes may die -- major protagonists, even! -- but there's still plenty of heroism. There are also moments of great drama and magic -- as well as horror -- that require entire volumes to set up, and unload upon the reader with all the power of two tournament mail-clad lancers crashing into each other.

I love the comparison with The Wire. As odd as it sounds, “realist” and “fantasy” can work together. Martin’s example has encouraged me to try and work in a similar realm (so to speak), but we’ll have to see how those efforts pay off down the road.

The point of all this is not just to pimp Martin – although that’s OK – but to point out that the HBO series based upon Martin’s series, Game of Thrones, kicks off this Sunday (previews and much else here).

If you’ve ever thought that fantasy is just silly fairy tales fit mostly for kids and those stuck in permanent adolescence, I urge you to give it a shot. It’s only an hour (and five minutes, apparently) of your life. The only danger is you’ll get hooked!

You’ll Soon Receive My Bill

I’ve never had a whole lot of use for the Huffington Post. It’s a cesspool of celebrity worship, anti-vax bullshit, and every kind of non-Christian woo imaginable. But it’s made Arianna Huffington rich(er), so it must be doing something right. The big bump came late last year, when AOL bought into the site to the tune of several hundred million dollars.

It’s my understanding that a lot of HuffPo content comes from bloggers who agreed to write pieces for free in return for the “exposure” the HuffPo platform provided them. Now that Arianna is rolling in dough, they want a taste. Actually, they’re demanding one – by suing (complaint here). Given that HuffPo/AOL never agreed to pay them, it comes down to a common law equitable theory called unjust enrichment. It’s been a long time since I crossed paths with that in law school, but I share Jeralyn’s skepticism at the whole endeavor (Eugene Volokh is more blunt, calling the claim a “loser.")

When it comes to rhetoric, at least, the plaintiffs have come out guns blazing:

Jonathan Tasini, the labor activist and writer spearheading a class action against AOL and the Huffington Post, did not mince words when explaining his motives to the press this morning.

‘In my view, the Huffington Post’s bloggers have essentially been turned into modern-day slaves on Arianna Huffington’s plantation,’ he said.

Eh, no, not really. In fact, that’s an analogy that’s as historically unfounded as it is offensive. Here’s a hint, Tasini – if neither you nor your ancestors were brought in chains to the United States and forced to write for HuffPo at the barrel of a gun (and subject to arrest should you escape) it’s not anything like slavery.  Not even in the same league, much less the same ballpark.

I understand that somebody who works for free on a project that eventually becomes hugely profitable might feel fucked over a bit. But, then again, you asked for it, didn’t you? I grasp that, as Radley Balko explains, sometimes you write for free to get “a foot in the door.” But, again, you made the choice to do so. Unless you were coerced in some way, or lied to, you just don’t seem to have a leg to stand on.

And even then, you might want to think twice. A couple of years ago, John Scalzi (who, in addition to being a writer and blogger, is president of the Science Fiction & Fantasy Writers of America), wrote a post lambasting a new publisher for soliciting works while paying next to nothing for them. It generated a lot of comments, including from aspiring writers complaining that sometimes low pay (or no pay) is the best you can do when breaking in. In a response post, he wrote:

I get that some aspiring folks think this is all about writers who have ‘made it’ being snobs and forgetting what it was like to be toiling away in the newbie writer salt mines. Well, leaving aside the fact that a ‘pro’ rate of five cents a word means that even long-standing pros aren’t out of the salt mines, they’re just standing nearer to the fresh air, the reason the pros yammer on about this is because we do remember what it’s like to be newbies and to believe that any publication is better than no publication. But it wasn’t true then, it isn’t true now, and it won’t be true in the future, either. It’s tough to hear, but it’s the truth. So make sure you’re getting something for the nothing (or next-to-nothing) you’re getting paid. If you’re not, hold on to your work until you can get something, or, alternately, recognize that if the only market you can get interested in your work is one that hardly exists, maybe the best thing you can do for the work in question is hit it with a shovel and bury it by the river.

That makes a lot of sense, if what you want to do is become a professional writer. If all you’re worried about is spewing words into the air (as I’m doing now!), it doesn’t really apply. But you’ve got to decide going in which way you want it. If you’re willing to forgo payment at the start, you don’t get to change your mind once it appears that the words you write might have some monetary value.

In other words, HuffPo bloggers – shut your traps and back to the keyboards with you!

Who Pays for the Robots

Next week marks the beginning of the end of a significant chapter of American history.  When the space shuttle Endeavor launches on Tuesday, it will mark the last planned manned mission into space by NASA.  The future, when it comes to space exploration, is in robotics and remotely controlled vehicles.  It’s kind of a bummer.

Over at Salon, Michael Lind lays out the case for why we should welcome, rather than mourn, this milestone.  He makes a familiar, and compelling, case for ditching manned space flight, but misses something along the way.  He writes:

[t]he truth is that the American space program is flourishing. In recent years Mars has been visited by the Phoenix lander and the Mars rovers, Spirit and Opportunity. At the moment the Messenger probe is orbiting Mercury and the New Horizons probe is scheduled to pass Pluto in 2015. With the help of the orbiting Kepler space telescope, more than 500 planets in other solar systems have been identified. We live in the greatest age of cosmic exploration in history, even if the public pays little attention because there are no astronauts to engage in white-knuckle landings or to clown around for the cameras.

In other words, nobody is paying attention to all the good work being done aside from those interested enough in the science to seek it out.  They’ve lost the public’s interest.  Which is all right, as long as said public doesn’t decide to gut NASA funding because such robotic pursuits aren’t really worth the money.

I actually used this idea as the basis for a short story I’m currently shopping around.  It’s about a manned mission to Mars (that goes horribly wrong, natch!) that’s undertaken entirely as a PR project.  Everybody involved realizes there’s no real point to sending people there, but it captures the public imagination and keeps the funding coming in for other projects.  In The Right Stuff, one of the Mercury astronauts says, in response to looming budget cuts, “no bucks, no Buck Rodgers.”  Now it’s exactly backwards: no Buck Rodgers, no bucks.

I think Lind overlooks the need to feed that public imagination.  Just look at the comments for evidence of that.  After all, for all the good and important science that artificial explorers can give us, nothing matches the visual impact of seeing a human being, wrapped in copious layers of technology to keep out the void of space, bounding along the surface of another planet.

As an aside, I agree with some of the critics in the comments that starting off a column arguing about promoting science of wishful thinking  with “[i]f God wanted us to live in outer space, we wouldn't have inner ears” is pretty stupid.

On Diving

I was at the girlfriend’s over the weekend, so I missed DC United’s match with the Galaxy on Saturday night. But it was hard to avoid the apoplectic headlines about the game’s controversial conclusion. As the New York Times Goal blog bluntly put it:

Charlies Davies Takes a Dive

Here’s the video. See for yourself:


Now, I admit, even as a United fan, that my first impression of that video was, “wow, that’s a soft call.” I wasn’t prepared to argue that Davies didn’t dive. I’m still not willing to go that far. But all the uproar about the way he won that PK (see the comments here, for example) made me think a little harder about things.

Diving, or “simulation” as the Laws of the Game call it, is one of those things that soccer haters love to throw in the face of soccer fans. Does it happen in soccer? Of course. Does it happen in every other sport? Of course! Should something be done to crack down on the worst offenders? Certainly. Does this incident show that Davies is one of them? Before saying yes, consider two things.

First, for all the hullabaloo about Davies taking a dive, very few people will disagree with the obvious – that Galaxy defender Omar Cummings got beat for speed and put a hand on Davies to slow him down/knock him off balance. So there was contact, but was it enough to send Davies to the turf? Who knows. If anybody was in a position to know, aside from Davies, it was Cummings, who did not react in the typical, “who, me?!” way that so many defenders do in such situations. In fact, he looks like he’s more in the “oh, shit, I fucked up” frame of mind than anything else.

Fact is, while many people try to set up an either/or for every call – either it was a foul or it was a dive – the world simply doesn’t work that way. It’s actually a continuum. On one end are the really obvious fouls. Unearthing the corner flag and hitting the opposing strike upside the head with it, for example (clear red card, I’m sure). On the other end are clear dives, such as when a player with the ball 20 feet from anyone drops like he was shot by a sniper and tries to blame it on a particularly partisan groundhog, only to learn the game’s being played on artificial turf. No argument there, it’s a dive. But in the squishy middle between the two extremes there are lots of situations where two players come together and one goes down where neither a foul nor a dive occurs.

Second, it’s worth wondering whether, if the Davies incident occurred at midfield, anyone would have thought twice about calling a foul on Cummings. I’m guessing not (or at least the grousing would be limited to hard-headed Galaxians), which points to a problem that I think is very real in soccer – rules changing when the game moves into the penalty box. If a player with the ball is fouled in the box, there is only one punishment – a penalty kick, which means an easy goal most of the time.

Refs, and fans, appear lots of time to feel that a foul committed in the box isn’t really “worthy” of a penalty because the punishment is so severe. It’s the same dynamic at work in the courts when it comes to the Fourth Amendment, believe it or not. The penalty in a criminal case if the cops do a bad search is suppression of the evidence in question which, in most cases, means no more case at all. Whatever one thinks of the exclusionary rule as a general idea, the fact that it is a one size fits all penalty leads to situations where it seems like overkill compared to the violation. As a result, courts bend over backwards to not find a Fourth Amendment violation in order to avoid invoking the inevitable penalty.

The same things happens with PKs in soccer all the time. Minor trips and such in the box routinely go unpunished when they would otherwise be fouls elsewhere on the field. There’s a sense that one really has to “earn” a PK. Given that, it’s hard to fault Davies or any other player who goes down in the box on contact. No ref is going to call advantage and wait to see whether a stalwart striker still manages to put the ball in the back of the net. The answer, it seems to me, is to come up with some other option for “minor” fouls in the box, aside from a PK.

In the end, I’m not going to take issue with anyone who thinks Davies dived. It’s a fair reading of the evidence. But it’s not the only reading. And it says more about the sport, life, and the world in general than just whether them damn soccer players are all diving douchebags.

I'm Otherwise Occupied

My free time this week has evaporated in the face of musical pursuits, hence the lack of blogging.  To tide you over until I get through (or get frustrated) in the studio, here's some cute critter pix!

Uzume sometimes perches on the back of my couch, apparently thinking she's a pirate's parrot.  Either that or she's trying to read National Geographic over K's shoulder stealthily:

Maia stopped keeping the red man down just long enough to bask in the sun and stare at me adoringly.  So I had to take a picture:

And, bonus footage - a circle o' kitteh:

That's all I got.  Really.