On the 6th of January, I will be deleting my Patreon account. I am not doing this immediately because I want my patrons to have a certain amount of notice.
Given the revelations produced by Matt Christiansen regarding his conversation with the head of Patreon's "trust and safety" team Jacqueline Hart, I no longer trust Patreon, nor do I feel safe here.
Despite Subscribestar being crippled by Paypal (who dominate more than 70% of the US payment processing market and who, incidentally, Ms. Hart used to work for), I cannot continue lining the pockets of a company whose rules are not universal and which somehow prides themselves on having an "individual" manner of applying them.
In Matt's conversation with Ms. Hart, it was revealed that had Carl Benjamin only grovelled enough, had he only given a "full-throated" apology for his statements, rather than focussing on defending the context and genuine meaning of his words--which even she admitted was calling out racists on their racism--she would have reinstated him.
I'm sorry, but that's not good enough. Particularly since they never actually directly contacted Carl to either put him on notice before his account was deleted, nor afterward to let him know what particular action would get him out of the gulag.
More than this, she implied that Patreon is only complying with the requirements of payment processors and credit card companies.
Speaking as someone with unpopular opinions and a salty tongue, who sometimes describes herself as "Chief Executive Misogynist for Patriarchy Inc", I'm not safe here.
I'm also not safe at Subscribestar, since both Paypal and Stripe have indicated they're not going to do business with them.
I hold Subscribestar blameless in this, and I would encourage any American citizen reading this who cares about these issues to contact the Federal Trade Commission regarding a potential violation of anti-trust laws.
It's entirely possible that Ms. Hart, in trying to staunch the hemorrhaging of creators and patrons from this platform (some estimate Patreon has suffered a 20% loss of revenue since this unpopular decision) reached out to her old bosses at Paypal to help take down the only viable competitor to the platform she so spectacularly damaged through her actions.
It's also possible that Visa and Mastercard are engaging in an illegal "refusal to deal" with companies who give a platform to people whose political opinions or choice of words don't comply with their own.
*If* either of these is the case--Paypal and Patreon conspiring to eliminate Patreon's competition, or credit card companies that enjoy a comfortable monopoly refusing to do business with certain entities for no good reason--there is a valid anti-trust concern that merits investigation. I have written to Senator Ted Cruz, who used to be director of policy planning at the FTC, to explain the details of the case and ask him to consider applying pressure on his former colleagues to look into the situation.
Section 230 of the CDA gives these platforms blanket immunity regarding what and who they publish and what and who they remove. There is no existing law that can hold Patreon accountable for what it's done to Carl Benjamin. But there MAY BE laws that will hold Patreon, payment processors and/or credit card companies accountable for what they've done to Subscribestar, and what they will surely continue to do with any viable alternative to Patreon that offers a platform to people with unpopular opinions.
For now, my Paypal account is functional and people can support me through that either through a monthly payment or a one-time donation. The link is on my YouTube channel, and I will let everyone know immediately should that change. Anyone in Canada can support me via Interac email money transfer to the address girlwriteswhat@gmail.com. And I have a personalized tip jar at https://www.feedthebadger.com/product/tip-karen/
And as soon as a viable alternative platform is available I'll be on there like a monkey on a cupcake and will shout it from the rooftops.
For now, I hope everyone is able to have a wonderful holiday season despite all the upheaval and uncertainty. Take joy in the little things, like the sound of two dogs gnawing meaty prime rib bones instead of each other. And I'll see you all when and where I see you.
It's not very often that I disagree with JBP, and when I do I feel a need to articulate why. Today, he said something in response to Eric and Bret Weinstein, that I vehemently disagree with, so I'm going to say so, and I'm going to try to explain why.
This position is held in varying forms by nearly everyone thoughtful with whom I’m speaking. What divides these folks is which way to break the symmetry. But honest people see deep reasons that both outcomes are not healthy or workable. We need a genius healer we just don’t have. https://t.co/0rxpRrdM6W
First off, please understand that I am not criticizing the intentions of anyone in this conversation (Peterson or the Weinsteins). Particularly given JBP's clarification:
That might decrease residual alienation from the left, and make things less polarized moving forward. Of course, that has to be balanced against handing any victory to the "believe all accusers" crowd. https://t.co/xcVBcoaWWv
I was thinking all this whole trying to plot out a strategy that would be least damaging, on the whole. And I'm not jumping up and down claiming to be correct. Thought is experiment, not reality. https://t.co/1A6roINK5o
I don't know how closely any of them have been watching Kavanaugh's confirmation process, or whether they're getting their information from primary (the hearings and his judicial opinions) or secondary (the media) sources. I'm guessing that none of these gentlemen have the kind of time on their hands to have watched the hours and hours of live testimony after Dr. Ford's allegation was leaked, or to go back and watch a bunch of the earlier testimony, or to investigate some of the more egregious things that have been brought out in the open that have occurred since the nominee was chosen.
And this is not to say that I have done an exhaustive investigation of Kavanaugh’s judicial record, despite the fact that I actually enjoy reading judicial opinions. (Call me crazy, but I find the nuances of the law to be very interesting.)
I had a lot of time to sit and watch and be engrossed and amazed and appalled and intrigued. I even, a week ago or so, went and looked at the votes-by-party summaries for Supreme Court Justices from Scalia (1986) onward. What is revealed there is a clear trend away from bipartisan unity and toward partisan antagonism.
The politicization of Supreme court nominations has been 30 years in the works. Scalia—perhaps the most conservative Justice in recent memory, and the most hated by the left due to his strict adherence to the text of the law and the original intent of the Constitution—was confirmed with 98 votes in favor and 2 abstentions. Kennedy (1988) got 97 votes and 3 abstentions, and the vote was 50 Democrats and 47 Republicans in favor despite the fact that Reagan nominated him.
Clarence Thomas was the first anomaly, but even he got 11 Democrat votes, allowing him to squeak in despite the Democrats holding a majority in the Senate at that time. And while there was a return to unity afterwards, with Ginsburg and Breyer, both appointed by Bill Clinton, things started to become more distinctly partisan from that point on.
And now here we are. Gorsuch’s confirmation saw three Democrat senators voting for Trump’s first SCOTUS nominee, primarily because their electorates were pro-Trump and they have a normal sense of self preservation.
This time around, however, only one of these three dissidents was prepared to break ranks with the party.
Having watched hours of testimony and read thousands upon thousands of words, and listened to Senator Susan Collins (a staunch pro-choice Republican) speak for 43 minutes, I’m going to have to say, Democrat opposition to Kavanaugh is much ado about nothing.
There is nothing in this man's judicial record that should scare anyone.
And yet I sat on a stage in September with “Faithless Feminist” Karen Garst and heard her express her fear about Roe v Wade being overturned now that Kavanaugh was shaping up to be the next Supreme Court Justice.
According to Senator Collins, nothing could be further from the truth. Kavanaugh appears to be a true conservative, in that he will prioritize adherence to the law, the constitution and precedent over using his position to push for sweeping changes in the absence of extraordinary circumstances, whether in a forward-looking direction or a backward-looking one, and regardless of his personal or political opinions. This includes Roe v Wade, which has been reaffirmed by SCOTUS more than once since it set precedent, decisions which add weight to the initial precedent and on which Kavanaugh has commented positively.
When Collins spoke to him about the right to choose, his response was that it is a case of precedent on precedent on precedent, each affirmation bolstering the original, and the passage of time cementing it in place such that one would need extraordinary justification to overturn its underpinning principles.
That's what a genuine conservative is. A keeper of things as they are, based on tradition, precedent, and durability over time.
For a Republican appointee who is also Catholic, the Democrats couldn't ask for much better than Kavanaugh, particularly when it comes to women's reproductive rights. His entire record speaks of a man who thinks, "it's best to keep things as they are, unless there's a VERY compelling reason to change that." That includes Roe.
As Senator Collins mentioned in her speech, special interest groups scrambled to be the first to publicly register their objection to Kavanaugh. One organization put out a press release saying as much, a document we know was written in advance of the announcement, because some PR staffer had embarrassingly forgotten to replace "XX" with Kavanaugh's name (I actually read that press release when it came out, and had a good chuckle. I'm not chuckling so much now).
One Democrat senator, she added, vehemently stated his objection to the nominee after the announcement that a decision had been reached, but before the actual name of the nominee was known.
This was never about Kavanaugh. It was always about “whoever Trump picks”.
It’s not a genuine objection to Kavanaugh’s qualifications, his judicial record or his politics. It's not even a shining #MeToo moment of solidarity with a survivor.
It’s Trump Derangement Syndrome by Proxy.
I’m sure there are some people who believe Dr. Ford was sexually assaulted by Kavanaugh, just as I know there are people who believe Kavanaugh is innocent of the charges. To them, I say, you are making a claim to know what you cannot know.
But one thing we DO know--Dr. Ford asked that her allegation be kept confidential. We know that the allegation could have been investigated by the FBI and Dr. Ford’s testimony given in private during the initial confirmation hearing, without revealing her name.
We know that the allegation was in the hands of Senator Feinstein (the ranking Democrat on the committee) for more than forty days before it leaked, and that Feinstein could have taken advantage of the above measures during the initial hearing and thereby protected Dr. Ford’s privacy and dignity, and concealed her name from the press and the public.
None of this was done. Instead, the hearing was closed after 32 hours of testimony from Kavanaugh, and more questions put to him, and more handing over of documents by him, than the last five Supreme Court Justices combined.
Everything about his career was scrutinized with a scanning electron microscope, and he came out looking like a boring boy scout.
And then the allegation leaked. To the best of anyone’s knowledge, only three parties had knowledge and possession of the letter. Democrat Senator Feinstein and Democrat Representative Eshoo (and their staff), Dr. Ford, and Dr. Ford’s lawyers (one of whom was apparently improperly recommended to her by a Feinstein staffer).
The leaking of the letter to the public meant that the Democrats could take another run at Kavanaugh during the run-up to the midterms, where they hope they’ll be able to secure a majority in the Senate. As Lindsey Graham (hereafter to be referred to as “Grahambo”) said during that hearing, the Democrats on the committee had their minds made up from the start, and the allegation, the testimony and the demands for an investigation amount to little more than creative filibustering until after the midterms.
So who leaked it? I don’t know, but I’d really like to. Because the leak of that letter took the process of confirmation from the cynically partisan joke it had already become, all the way to a three ring, #MeToo, virtue signalling circus.
Bret Weinstein said both possible outcomes of the vote would be "completely unacceptable". I disagree. There's nothing objectionable about Kavanaugh's judicial record.
Eric Weinstein said that “everyone thoughtful” he’s spoken to about Kavanaugh agrees that both potential outcomes are unhealthy and unworkable. I disagree. The "thoughtful" people he's spoken to don't understand what's really at stake here.
Jordan Peterson responded that he thought, if confirmed Kavanaugh should step down. That is, make the big public sacrifice for the sake of fostering unity in an increasingly polarized nation.
I disagree.
We know from Gorsuch that anyone nominated by Trump would garner default “no” votes from the Democrats. I’m actually kind of shocked that there were three Democrat dissenters in the case of Grosuch, and a whole ONE dissenter in the case of Kavanaugh.
I understand why a progressive like Bret Weinstein would think Kavanaugh is a poor choice for the Supreme Court. He's not. In fact, I don’t know why Bret Weinstein thinks the Dems' opposition and their collective hysteria has anything at all to do with Kavanaugh.
It doesn’t.
According to the Democrats, Trump has the reverse Midas touch—everything he puts his hands on turns to shit, triggering moral disgust and the urge to purge. If Trump likes something, the Democrats are morally obligated to hate it. If Trump does something positive (like, I don't know, getting North Korea to chill out a bit), the Democrats are obligated to predict the end of the world.
I have no idea whether Eric Weinstein's belief that the reason Kavanaugh is “divisive”—that Kavanaugh would "break the political symmetry" of the Supreme Court—is correct.
The only way it CAN be correct is if we are to accept that SCOTUS is not a legal body but a partisan political one. That it is not beholden to the law (in all its forms, from the Constitution to statute to precedent), but rather that it is a forum for partisan activism on the part of the Justices at the political whim of the president, or the majority in congress, or both.
Brett Kavanaugh strikes me as a judge who eschews activism. Who eschews "big" decisions that take us forward (or backward) by leaps rather than increments.
But again, this isn't about Kavanaugh. It's about sticking it to Trump.
And I have no idea whether JBP realizes that it wouldn't matter who Trump named as a nominee--the reaction from the Democrats, their media lapdogs and the pussy hat-wearing, mass-produced placard-waving, Ashley Judd-worshipping, #MeTooing leisure class of well-heeled feminist do-gooders and progressive Hollywood moral busybodies would have been the same no matter who the nominee was. Trump could have nominated a clone of Ruth Bader Ginsburg in the body of a black lesbian in a wheelchair, and they’d have found some reason to vote against her (I exaggerate, but not by much).
Just look at the media over the last few days. When it looked like Dr. Ford's spaghetti wasn't sticking to the wall, what was the next “big controversy”. OMG, one time in college at a bar, Brett Kavanaugh threw ice cubes at a guy during a heated disagreement. Surely THIS is sufficient to demonstrate Kavanaugh lacks a proper judicial temperament.
Never mind that the ONLY aspect of his judicial record—you know, the record that matters—that the Democrats don't like is his distinct lack of impulsivity.
Surely this conclusion—that nothing whatsoever was going to convince the Democrats to accept ANY nominee put forward by Trump—is supported by the two examples given by Senator Collins. Surely it's further demonstrated by declarations on the part of the Democrat members of the committee that they would vote no on Kavanaugh long before they had even held the first hearing.
And now, with the ink on his confirmation papers still wet, Democrats and left wing political action groups are petitioning for Kavanaugh’s impeachment, if and when they gain a majority after the midterms.
As Jordan tweeted, legal scholars warn it’s a terrible idea that if successful would set a dangerous precedent and completely undermine public perception of the stability and reliability of the highest court in the US. It would essentially turn SCOTUS from an independent and apolitical body that provides a necessary check against the potential excesses of the other two branches, into an exercise in partisan rubber stamping, with the bench politically subordinate and subservient to whatever party holds the majority.
A petition to impeach Kavanaugh has already garnered over 125,000 signatures, all from people who have not one clue what would be destroyed in the process.
And here we come around to Jordan’s suggestion that Kavanaugh should step down, for the sake of bringing the highly polarized American left and right back together. In a perfect world full of perfect people, sure. He should know better.
The truth is, this isn’t a world of perfect people. When my fiance gets upset over how so many people behave, how they act on base instinct and then back-rationalize what they did (in whatever context, but particularly in those that can be characterized as “us vs them”), I tell him to imagine two troupes of chimpanzees, screeching, whooping, thumping their chests and throwing smartphones at each other. Because that’s exactly what they're doing.
And that’s exactly why we have these institutions and their processes, regulations and procedures designed to take the chimpanzee in all of us out of the equation. It’s why we have the system of checks and balances in the first place. It’s why the law is written down, and why bad decisions can be taken to higher courts. It’s why a successful impeachment and removal of someone from public office requires a supermajority of 67 votes.
All of these things are there to put obstacles and barriers in front of the chimpanzee that exists in every single one of us.
If Kavanaugh steps down, it won’t bring the two sides back together.
The right will see it as either a noble sacrifice or a betrayal. The left will call it evidence that Kavanaugh probably IS a sexual predator merely looking to avoid more and deeper investigations, and, more importantly, they’ll see it as evidence that they can get what they want by corrupting the confirmation process and making a mockery of what was once a sober, nonpartisan deterrent to mob rule.
That those interested in corrupting that process to their own ends are on the left is immaterial. Whether you believe Dr. Ford is a victim of sexual assault, or Justice Kavanaugh the victim of a wrongful accusation, is immaterial. The real victim if he steps down will be the integrity of both the process and of the highest court in America.
Worse still, if he’s impeached and the impeachment is successful, the entire system will be destroyed by this abuse of process. A system designed to depoliticize at least one branch of the federal government, keep it beholden only to the law, and protect it from the vagaries of the partisan mob.
This is not about the presumption of innocence. As important as that presumption is in the strict legal sense, and as a cultural value, presumption of innocence is a difficult case to make in a situation where someone has been subjected to half a dozen thorough FBI background checks just to get the job they’re applying for. Kavanaugh willingly subjected himself to an invasive process that sets aside that presumption. Seven times now. Because of the enormity of the authority he will wield and has wielded in the past.
That is a necessary part of the vetting process if you want to do the type of work that involves the complete trust of the public. The process found NOTHING on his record as a judge suggesting he would abuse that authority or violate that trust and through the commission of his service bring the Supreme Court of the United States into disrepute.
The process found nothing, despite the fact that even before Dr. Ford’s allegations were made public, Kavanaugh had jumped through more hoops than any SCOTUS nominee has ever been forced to, and he did so with humility and without complaint.
“Why aren’t you calling for an investigation into Dr. Ford’s allegations, Judge Kavanaugh?” he was asked over and over again, by people who should know (at least I would hope they know) that it’s not his call. The nominee has no jurisdiction to call for an investigation—that’s the goddamn committee’s call. He could demand one until the cows come home, but it’s not his decision to make. All he can do is cooperate with the committee’s decisions to the best of his ability. And he has.
The Democrats have abused this process for political ends, cynically sacrificing Dr. Ford’s privacy and violating her trust, subjecting Kavanaugh and his family to the same, for no good reason, and all of it is justified to them as necessary collateral damage in their quest to stick it to Trump by any means necessary.
That Kavanaugh’s justifiable anger at this shit show, that his emotionality over the more ludicrous accusations made against him in the liberal press, utterly unvetted accusations presented with a drooling, fapping, titillated, eager credulity so ravenous and gross it could only be self-serving...
That this is now being used against him to criticize his judicial temperament and deem him unfit for the bench… Well, that’s like kicking a man in the balls and then saying he retroactively deserved it because while he was writhing in agony on the floor, cradling his battered testicles, he raised his voice and used harsh language.
And this petition to impeach? Just this moment, my son (all of 16 years old) said, "why not just impeach everyone then?" Why not, indeed? Because that would be stupid and dangerous and would throw everything we value away. He added, "Meh, no more Supreme Court. Might as well not exist. Just impeach everyone. The mob knows best."
This entire process has been turned into a joke. And if the Democrats are able to get what they want out of it, whether because Kavanaugh nobly but futilely falls on his own sword, or because the Democrat mob opts to impeach—the equivalent of pulling a fire alarm to shut down a speaker they don’t like—it will open a door we do NOT want opened.
It will invalidate the integrity of the entire process and turn the highest court in the United States into the political majority’s partisan prostitute.
Okay, so, here’s the detailed analysis I was promising. For those of you who were impatient for this to happen, I can only say we were waiting on the written decision.
As you can see from this screenshot, which I took at around 10:30AM on August 15, the decision itself hasn’t been uploaded to the publicly accessible database. So 15 days after the decision was read in court, it still wasn’t up. Alison finally ordered a transcript be produced at HBB’s expense.
Why wait for the transcript? Because going by memory and notes regarding a complicated oral decision isn’t the best way to go. No one but the court itself is allowed to video or audio record anything that goes on inside the courtroom. They create transcripts based on their recording, and do not make the recordings themselves available.
I balked at going from memory. I don’t want to get things wrong. There were a few things I have commented on publicly, but they’re things I was VERY certain of, things that stuck out in particular, and there’s just no way a lengthy oral decision can be memorized (unless you’re some kind of savant, which I’m not).
So. At long last, here we go.
I’m going to go point by point, reading the judge’s reasons individually, and then commenting on them immediately thereafter. The first bit is just a general description of the basic details of the case—who’s suing whom and why. No need to get into that.
So. Let’s get right into the reasons. (Quotes from the decision are in bold, my commentary follows in normal font.)
Judge notes that:
In brief, the defendant Calgary Comic alleges the plaintiff breached the defendant’s policies and were removed as an exhibitor. The contract is comprised of an application form being submitted with appropriate fee and acknowledgement that, among other things, the plaintiff would adhere to Calgary Comic’s policies.
The plaintiff’s expenses in preparing for, travelling to, and setting up at the expo may be recoverable damages in whole or in part in the breach of contract action if a breach is established. The removal of the plaintiff’s booth partway through the exposition was at the defendant’s discretion subject to contractual obligations. The plaintiff had full knowledge of what she was signing and what she was signing up for. The defendant, Calgary Comic, is a private commercial operation, and perspective applicants are free to apply or not, as they wish.
The plaintiff asserts the notion of unequal bargaining power ought to be a consideration. The unequal bargaining power submission is not applicable in these circumstances. She applied to be an exhibitor with eyes wide open, fully knowledgeable with respect to the terms and conditions under which the defendant operated and to which she was subject.
Yet the documents attached to the contract stipulate that all complaints will be investigated and describes its investigative process (which includes getting both sides of the story); and that a step by step process of remedy will be used to remedy sustained complaints—namely that the first step will be to ask the offending party to cease the offending conduct or remove the offending materials.
Further, the policy documents describe “unwarranted accusations” as a form of harassment.
What this means is that Alison had an obligation to abide by the terms and conditions spelled out not only in the application form, but in the policy documents attached to the application.
So basically, what Alison was “signing up for” was spelled out in those documents, including the policies and processes Calgary Expo had outlined regarding their complaints and investigation procedures, as well as their procedures for remedy.
The only clause in the contract relieving Calgary Expo from its own duty to abide by the terms it had laid out reads as:
“The CCEE shall have the full power in the interpretation and enforcement of all contract regulations contained herein, and the power to make such amendments thereto, and such further rules and regulations as shall be considered necessary and proper.”
Not only is this clause arguably in violation of the Alberta Consumer Protection Act and something that should never stand up in court (and usually does not), in that it grants Calgary Expo the authority to ignore its own contractual obligations as stated by it in its own documents, it does indeed raise the issue of unequal bargaining power.
If Party 1 to a contract is signing a contract filled with terms and conditions written entirely by Party 2, while a single clause in that contract indicates that Party 2 is effectively signing a blank piece of paper upon which it can choose to write anything it wishes, then the contract is not actually a contract.
Many contracts used as boilerplate by corporations like the Expo include such clauses, despite their dubious ability to succeed in court, because rubes and noobs who read that clause will believe they have no legal recourse and won’t file a lawsuit or a complaint with consumer protection agencies.
What the judge seems to have done is uphold a clause that is in direct violation of consumer interests and consumer protection laws in Alberta, because that’s the only way I can see him claiming that Alison had an obligation to live up to the terms and conditions in the policy documents and the Expo did not.
There was no misrepresentation by the defendant of any sort, and no evidence of bad faith. In fact, evidence shows the plaintiff’s application and the plaintiff were dealt with fairly and in a courteous manner, at least up to the point of expulsion.
Yeah, things were going great, until they weren’t. Calgary Expo treated Alison fairly, right up until they decided not to. My tenant paid the rent on time every month, until she stopped. My spouse was faithful to me, right up until he cheated. I paid my credit card balance, until that period of 6 months when I didn’t.
This assertion is irrelevant and nonsensical. It has zero bearing on whether a contract was violated. That guy had no cause to complain about my behavior, at least until the point where I punched him in the face for no reason. Good grief.
The defendant, Calgary Comic, received complaints about the plaintiff’s participation at a panel discussion and also about a banner at her booth. The defendant investigated. The investigation was not thorough in that the plaintiff had little, if any, opportunity to provide her version of events.
First thing, Alison didn’t have little if any opportunity to give her version of events. She had NO opportunity to do so. She even informed Calgary Expo’s chief of operations, Shayne Henkelman, that she had an exculpatory recording of the panel discussion, and he refused to even consider listening to it.
I suppose, “little, if any,” might be applicable to, “but I’m innocent, and can prove it.” But at the same time, Henkelman testified that the decision was made before he even spoke to Alison that morning, with no opportunity for her to give her version.
Secondly, how is this “not thorough” investigation sufficient to come to a decision to evict, if the contract Alison signed indicated that all complaints would be investigated by getting both sides of the story, and remedied in a gradual manner as outlined earlier?
The defendant said it received complaints from guests, news organizations, and from TheMarySue. It went online to learn more about the prominent Gamergate banner at the plaintiff’s booth.
To my knowledge, Expo received no complaints from the Mary Sue (or even employees or agents of the Mary Sue), nor did Shayne Henkelman testify that they did.
Also, complaints were received from the personal accounts of media personalities, but not from official news media accounts, as far as I know. It’s kind of like the difference between saying “Tucker Carlson tweeted X,” and “Fox News tweeted X.”
This is a really strange mistake for the judge to make, since HAD the Mary Sue officially complained about us to Calgary Expo, this would have helped to implicate them in any inducing breach of contract claim, particularly if the complaint had no merit.
The online information about Gamergate was unsavory, to say the least, and, in the view of the FBI, Gamergate is a vehicle used to disseminate hate messages among others.
Like the coverage of Alison and HBB following our expulsion? Unsavory like that?
Anyway, his assertion about the FBI is directly contradicted by the only evidence regarding them that was presented at trial. This position attributed to the FBI could not have even been found by improper, out of court research. The FBI investigated Gamergate over accusations that it was a hate movement, and it found no actionable leads. Law enforcement identified four individuals who’d sent potentially illegal messages, one of them a minor, and chose not to prosecute any of them. One was clearly a joke (at least to anyone who’s ever spent any time online), claiming to have “over 9000 bombs” and another prescribing tea, hugs a gentle back massage and face-melting high ordinance explosives for feminists.
With respect to the breach of policy application, in order to succeed, the plaintiff must show on a balance that the defendant Calgary Comic’s reliance on its policies was sufficiently unfounded to constitute a breach of its contractual obligations.
Regardless of the quality of the investigation and regardless of the fact that the defendant’s reasons for its decision may well have been debatable, it had the contractual right to remove the plaintiff’s booth subject, of course, to its contractual obligations to the plaintiff.
Wait, aren’t those obligations spelled out in the exhibitor agreement and other policy documents attached to the contract? Again, we’re back to this idea that vendors have an obligation to abide by the terms and conditions laid out by the Expo, while the Expo has no such obligation.
And again, we’re back to that sticky “we reserve the right to do whatever we want for any reason or no reason whatsoever” clause that, if legal, would certainly make unequal bargaining power a consideration.
The plaintiff denied being disruptive at the panel discussion and provided a transcript and audio recording to support her assertion. Both the tape and transcript are somewhat supportive of the plaintiff’s position. However, the quality of the recording makes it difficult to discern what is said and by whom. I recognize the difficulty in marshalling this kind of evidence. However, I don’t know if the portions provided are the complete exchange in issue, much less whether they are the portions complained of.
First off, the judge spent much of the trial reminding counsel and witnesses to speak up because he's hard of hearing. I would suggest that it being “difficult to discern what is said and by whom” might be owing to a disability on the part of the judge rather than on the quality of the recording.
In addition, the judge had ruled against listening to the entire recording at trial. When asked why she wanted to play the entire thing, Alison responded that she wanted her participation to be viewed in the context of the entire discussion. Defence didn’t want to listen to the whole thing, and neither did the judge, and BOTH indicated they would take her word for it that the excerpts were satisfactory in that regard. For the judge to now complain about the incompleteness of evidence he himself ruled against hearing in full is… well. Moving on.
While debatable, I cannot conclude on balance that there is sufficient credible evidence to conclude Calgary Comic’s assessment of the information it received and gathered and its application of that information to its policies was a sufficiently inadequate misinterpretation or a misapplication so as to constitute an improper application of its policies and thus a breach of its contractual obligations with the plaintiff. Thus, there is insufficient evidence to support the breach of contract claim against Calgary Comic, and accordingly, that claim is dismissed.
Policies which state clearly that an investigation involves getting both sides of the story, that unwarranted accusations are a form of harassment, and which also state that remedy begins with asking the offending party to cease the offending conduct—that is, putting people on notice. The Expo acted precipitously and summarily on information it received and gathered from everyone BUT the plaintiff, and bypassed all of the steps it outlined for remedy to level the most extreme punishment available to it—not just expulsion, but a blanket ban on attendance of future conventions.
Further, Henkelman testified on the stand that even had he known that all of the allegations in the various complaints against Alison made to Calgary Expo were false, he’d have ejected her anyway.
What we are left with is Alison’s alleged “association” with a hashtag called Gamergate, standing as the sole reason for her being evicted.
However, there was NOTHING in the contract or the surrounding policies or exhibitor agreement putting her on notice that presenting a Gamergate logo on a banner promoting anti-censorship and pro-ethics values would be in violation of ANY of the Expo’s policies. There was nothing in the contract or policies prohibiting expressing affiliation with ANY movement, hashtag, political opinion, cause or philosophy.
Inducing breach of contract:
Judge notes:
With respect to the inducing breach of contract claim regarding TheMarySue, the defendant, Calgary Comic’s representative testified he had no contact with TheMarySue apart from receiving the complaint about the events in question prior to the decision to expel the plaintiff from the exposition. There is suspicion by the plaintiff that TheMarySue and Calgary Comic may have collaborated or colluded and that TheMarySue may have slagged the plaintiff, thereby inducing Calgary Comic to act as it did, but there is insufficient credible supporting evidence in that regard, and thus the inducing breach of contract claim against TheMarySue is dismissed.
This is not accurate. Again, Calgary Expo received no complaints from the Mary Sue, or from any agent of the Mary Sue. He may be referring to the complaint from Brittany LeBlanc, but neither Alison nor Shayne ever said there were complaints from the Mary Sue.
As for the suspicion of collusion, yes, this was our suggestion in our initial filing. However, the scenario we presented at trial and during final submissions, after more digging and the evidence exchange, was very different. The scenario we presented was that Sam Maggs sent a photo of our booth to her friend and collaborator in Toronto, Soha Kareem, who tweeted it out. This single tweet was what led to ALL of the complaints on social media from guests and news media personalities that Henkelman cited as the ultimate reason he kicked us out (that is, the complaints led him to take other actions which led to that decision).
In addition, our contention was that Sam Maggs spoke privately to Brittany LeBlanc and convinced her to complain to Calgary Expo about Alison’s participation at the panel (which was another reason Henkelman cited in his testimony as contributing to his decision to kick us out).
So our contention at trial was that Sam Maggs, editor for the Mary Sue, intentionally set out to generate a social media controversy with us as the target, in order to create news for her website to then report on.
And wouldn’t you know it? The Mary Sue scooped the story.
We certainly had more evidence supporting our conjecture that Sam Maggs, in her position as editor of the Mary Sue, orchestrated a social media controversy through a known associate, a social media controversy that was the ultimate cause of our expulsion (according to Henkelman). Yet the judge didn’t touch on this at all, not even to say it was far fetched, or a conspiracy theory, or even that our evidence of it was insufficient.
He just ignored it.
Injurious falsehood, Calgary Expo:
Judge notes:
There is insufficient credible evidence that the defendant Calgary Comic published anything, much less any false statements disparaging the plaintiff’s goods or property or business. Having her booth removed from the exposition for breach of the defendant’s policies, without more, does not constitute a false statement. Publication of the fact of removal of the booth for breach of policy, without more, is also not a false statement.
Really? I mean, I’ll grant that it is not necessarily a false statement. That is, if the breach of policy had occurred, or if a fair investigation adhering to Calgary Expo’s contractual obligations had occurred, even if the finding was wrong. A false statement doesn’t require someone to know the statement is false. Malice, in the context of false statements, can include not taking the proper care to check.
The Expo had contractual obligations to take proper care to check, as it itself laid out in its policy documents and attached to the contract. It did not do so prior to its decision that we had violated policy, nor before its publication of that information. Henkelman’s testimony describes a rush to judgment and summary execution completely devoid of taking proper care to check.
In fact, in his final submissions, he described this as the first and only case in which he himself ever kicked anyone out of one of the events run by Calgary Expo. Are we to believe that no one else has ever been ejected from a fan expo in western Canada? Or are we to believe Mr. Henkelman’s testimony, that he, as Expo’s chief of operations took it upon himself to unilaterally bypass all of the Expo’s dedicated personnel and procedures, and its obligations as spelled out in the policy documents to make what amounted to an executive order in violation of its contractual obligations?
Publication by others of the expulsion and the purported reasons for the expulsion are not actionable against the defendant Calgary Comic. The defendant Calgary Comic did not publish the fact of the expulsion or the reasons for it. Tweets by others posted on the Calgary Comic website about the expulsion were quickly removed by it. Alternatively, if the tweets by others could be characterized as publication by Calgary Comic, there is insufficient credible evidence that the tweets contained false statements about the plaintiff’s property, goods, or business.
No no no. First, tweets were not published on Calgary Expo’s website. They were published on Twitter. Calgary Expo cannot remove tweets made by “others” from Twitter. It can only remove its own tweets. Further, it cannot make tweets made by “others” invisible to anyone but itself.
And secondly, in direct response to a tweeted query as to why we were kicked out, Calgary Expo’s official Twitter account tweeted the Mary Sue’s article. A tweet constitutes publication of everything contained therein, including links.
And finally, Henkelman testified ON THE STAND that he ordered the tweet deleted when he learned of its existence. His stated reason, under oath, for doing so was that the tweet was ACTIONABLE. In other words, Calgary Expo published actionable statements it knew might be false, and Henkelman ordered them deleted BECAUSE they were actionable.
His actions in deleting the tweet, and his stated reasons for doing so, were an admission that the tweet itself WAS INDEED actionable under the law. This tweet was not made by “others”, but by Calgary Expo’s official social media account, manned by employees and agents of Calgary Expo and working under Calgary Expo’s authorization.
If I am wrong that the defendant did not publish statements about the plaintiff’s goods, property, or business, there is insufficient credible evidence that any such purported statements were false.
This is… bizarre, since the tweet contained a link to the Mary Sue article, in direct answer to a query as to why we were kicked out. The article describes HBB as a business run by someone who lies on her business contracts in order to clandestinely gain opportunities to cause disruption and harass people. Alison did not lie on her contract. We did NOT sneak into the convention. And while there, we harassed no one.
Of course, there is credible evidence. It’s there in the booth application. In our badges and booth decal identifying who we were. And the judge is the person who ruled we wouldn’t hear the entirety of the panel discussion that would have provided credible evidence that Alison had harassed no one.
In the further alternative, if I am wrong about the publication and falsity of content, there 1 is no credible evidence that the defendant Calgary Comic was motivated by malice. The 2 evidence showed the defendant received complaints about the plaintiff’s conduct and about 3 a banner at her booth and after some investigation chose to have her booth closed and 4 removed from the exposition.
He really seems to be wanting to cover all his bases. However.
Malice: a conscious, intentional wrongdoing of a civil wrong like libel, with the intention of doing harm to the victim. This intention includes ill-will, hatred, or total disregard for the other's well-being.
Calgary Expo’s policies, attached to their contract, clearly state that unwarranted accusations are considered a form of harassment, and that its investigation of complaints will take into account both sides of the story.
Calgary Expo’s contravention of its own stated policies and procedures in this case certainly displayed no regard for the wellbeing of Alison when it summarily ejected her despite her telling them she had exonerating evidence.
When Calgary Expo promoted the Mary Sue article in response to questions as to the reason it had evicted Alison, it also did so with total disregard for her wellbeing. Calgary Expo's social media team did not take time to verify whether the allegations in the article were true or false, which it could have easily done at least in regard to the "misrepresentation" claim, prior to tweeting the article.
And further, when Calgary Expo deleted the tweet, it did not do so to ameliorate any unjust damage done to Alison, but merely to protect itself from what it knew were legally actionable statements on its part.
To this day, Calgary Expo has not so much as corrected the public allegation that Alison lied on her contract with them, despite having submitted evidence to that effect to the court. Which certainly displays continued disregard for her wellbeing.
There is no evidence of animus towards the plaintiff or bad faith in investigating the complaints, notwithstanding Calgary Comic did not obtain the plaintiff’s input prior to its decision to expel.
Except that it did not follow the investigatory protocols laid out in its own policies and agreements. It refused to listen to evidence Alison claimed was exculpatory. That's the definition of bad faith.
That Mr. Henkelman and the Expo were nice to us right up until the moment that they weren’t is immaterial.
Expo did not follow its prescribed step by step procedure for remedy even when someone is found to be engaging in offending conduct. It skipped over all of its normal procedures, and jumped directly from accusation to summary execution.
As to animus, Alison was informed that if her booth was not dismantled and all of us out within half an hour, Mr. Henkelman would call police and have us all arrested. He refused to provide us with tools when asked, so we could disassemble the booth without damaging it.
He testified that following our eviction he sent “spies” to infiltrate our social gatherings and report back to him. He put Stampede security on notice that we were a clear and present danger, such that Stampede security called police on our peaceful and completely innocent picnic at Reader Rock Garden.
No animus? I call bullshit.
Lastly, if I am wrong about publication, falsity, and malice, the plaintiff has not led sufficient credible evidence to establish special damages. Damages are not presumed, and general damages are not recoverable. The plaintiff incurred expenses to attend the exposition, but those expenses were not a result of this alleged actionable tort.
Good grief. Because being smeared in both mainstream and industry media can’t be reasonably expected to hurt your bottom line in your chosen industry?
Damages are not presumed, but a reasonable expectation of damages does not mean that the plaintiff must present an itemized list down to the penny of every loss suffered. It does not require a plaintiff to be clairvoyant and prove that, if not for the defendant’s actions, they’d have sold exactly 2113 units of merchandise.
The plaintiff’s husband testified that she had sold about 30 comics in her entire career.
Therefore, there were no damages? Plaintiff’s husband also testified that he had no real idea how many comics she’d sold. A subsequent witness testified that this estimate was way off.
Regardless, a subsequent witness who was manning the booth testified that 7 copies of Alison’s comic were sold in the first four hours of the convention alone. Projecting from this, Alison could have expected to sell a total of 50 to 60 comics over the full Expo, had she been allowed to stay. That’s double the lifetime estimate given, under pressure, from her husband, and it applies just to one event.
The plaintiff testified she experienced difficulty convincing store owners to carry her product after this event. There was insufficient evidence of the magnitude of her difficulties, much less a dollar amount to specify the amount of alleged special damages loss. Thus, the injurious falsehood claim is dismissed against Calgary Comic.
This is a mischaracterization. Alison testified that a store owner in Saskatoon had not only stocked her books, but had placed them on prominent display to promote a local artist. After the incident and the media fallout, that shop owner took down the display and cut her orders by 75%.
There is no down to the penny specificity requirement under injurious falsehood as to what determining there were special damages, nor a minimum amount necessary. If there is a reasonable expectation that Alison had lost out on the sale of just one book due to this fiasco, that would be enough to constitute special damages. The amount of the special damages only becomes relevant when deciding what, if anything, is owing to the plaintiff.
Injurious falsehood, The Mary Sue:
Judge notes:
TheMarySue did not participate in the whole trial. It did not lead evidence nor cross- examine nor make submissions. It published an article after the expulsion. Some of the content may be false, and it may have been written maliciously. Assuming, without deciding, that there was publication, maliciousness and falsehood, I would dismiss the claim on the basis there was no credible evidence that the plaintiff suffered special damages attributable to TheMarySue publication. Thus, the injurious falsehood claim is dismissed against TheMarySue.
And again, there is no requirement for specificity regarding an exact dollar amount to prove special damages, nor a lower bound as to what is considered a pecuniary loss. A reasonable expectation of loss is sufficient to prove injurious falsehood.
Anyway, there’s so much that’s haywire with this decision, it’s not even funny. I think I counted a minimum of 16 grounds on which to appeal. And that’s not even considering some of the errors of factfinding that occurred.
The judge disregarded Henkelman’s own testimony that the Calgary Expo’s tweet was actionable.
His finding of no animus is completely belied by the manner in which we were kicked out—Henkelman refusing to hear exculpatory evidence and even threatening to have us arrested if we weren’t gone by the time the doors opened to the public. Henkelman advising Stampede security that we were a threat to safety at the convention, and sending staff members to spy on our meet-ups. No evidence of animus there.
And perhaps the most ironic thing of all was all of that animus appears to have been based on the egregiously biased, misleading and demonizing media coverage of Gamergate that falsely painted a hashtag and a consumer revolt as something sinister and dangerous. And the result of his actions? Egregiously biased, misleading and demonizing media coverage of Honey Badger Brigade and the events of April 2015.
It's come to my attention that certain individuals have accused Jordan Owen 42 of sexually assaulting me at a conference on men's issues held in the fall of 2014 in Georgia.
Caveat: I'm subscribed to JO42's channel, but haven't watched any of his content in probably more than a year now because he stopped reliably talking about topics I'm interested in. My interactions with him (most notably his interview of me and my colleagues for his joint project with Davis Aurini, "The Sarkeesian Effect") have been friendly, but we're not friends.
I want people to know that at that event Jordan did make a pass at me that was unexpected but not alarming or upsetting, and he gracefully took my "no" for an answer. My "no" was based entirely on the fact that I was (and still am) in a long term committed relationship with someone. I'd have said no to ANYONE who'd made sexual or romantic advances at that time, including Clive Owen or Marton Csokas, my own personal "celebrity dream lays".
I can only view the third parties who are making these accusations, and who are making them without my authorization, are doing so for purposes other than defending my honor or championing my sexual autonomy. If those were the reasons they were levelling these public accusations, I would suggest they'd have reached out to me to ask if I was upset or offended by my interactions with Jordan before they mounted their white horses, tipped their helmets and dipped their spears on my behalf. That they didn't certainly suggests they suspected I would not have confirmed their narrative.
Jordan reached out to me with some concern to ask if I had felt upset, offended or violated by our interaction, out of a genuine worry that I might have been. I assured him, as I am assuring everyone now, that our one brief non-professional interaction at that conference was trivial and mundane, and didn't result in any negative feelings on either of our parts. He made a gentle pass. I told him I had a boyfriend. That was the end of it. Frankly, given that I was 45 at the time, the entire thing was a pleasant surprise.
That there are people who don't like Jordan who are trying to stir up bad feelings in public on my behalf without my consent is... disturbing. Do these men think a woman like me is made of spun glass, that an unexpected sexual overture is going to shatter me? All I see are men using me as a way to attack another man they don't like. They are turning me into Anita Sarkeesian's cynical characterization of women's position in society--"in the game of patriarchy, women are not the opposing team, we're the ball."
I'm not interested in being Davis Aurini's or Matt Forney's patriarchy damsel-ball. Anyone wanting to publicly accuse another person of sexually assaulting me had damn well better clear that with me first to ensure they know what the fuck they're talking about.
And finally, false allegations of sexual misconduct are a weapon custom-fitted to a woman's hand and are wielded the vast majority of the time by women with emotional problems. So I'd gently suggest to anyone forwarding these baseless accusations that they stop behaving like mentally unstable teenage girls and try acting like men.
