Other Mistakes Were Made (some by me)

Contrary to well-established popular opinion, I’m not actually right about everything. I’m human and, sometimes, I make mistakes or otherwise fundamentally change my opinion on a topic. When I first sat down to write this list, one of the items was substantive enough to inflate into its own stand-alone post (Defunding My Mistake). Although unintentional, this does carry the misleading implication that the mistakes I make are exclusively of the rare and soul-searching variety. My original intent was to analyze errors in order to showcase how banal or even reasonable they can be. Part of my goal here is to nudge the act of acknowledging one’s errors into the realm of the common & boring, and away from the tearful confession elicited only through torture. I hope to encourage others that it’s OK and maybe even admirable to admit errors.

What follows is an incomplete listing, and my primary goal here isn’t just to delineate what but to provide a detailed account for why. When picking examples to highlight, I wanted to cover a diverse palette of failure scenarios and so they’re not intended to be a representative sample. Also, please note that if I offer an explanation for why I made a mistake, it shouldn’t be interpreted as an excuse to shirk responsibility.

Paper Rips 4 Allah

I’ll spare you the novel I could write about how and why I abandoned Islam and instead I’ll focus on one particular incident. I must have been around 14 years old or so, wandering the stacks at the local library, when I encountered a Chick tract about Islam called Allah Had No Son. Chick tracts were widely distributed pocket-sized short comic book strips intended to impart evangelical Christian messages, typically through combative and antagonistic messaging.

The tract basically argues that Islam is a false religion because it was based on repurposed tribal moon deities. I have no idea how much of this is true and don’t care, but my reaction at the time was livid anger. Here I was encountering some new information about a topic I was (fanatically) enthusiastic about but instead of “hmm that’s interesting” I responded by making it my mission to scour the rest of the library and rip up any other Chick tracts I could find. I remember my heart racing and this distasteful feeling that I had somehow been mind-poisoned by a comic strip, and I did all I could to wipe my thoughts clean as if it was a radioactive waste clean-up mission.

That cleanliness desire is what I remember most, the notion that I couldn’t even entertain the “noxious” ideas even just to mount a rebuttal because the risk of an incurable infection was too great. And so my only recourse was to suppress and bury. I see this burial reflex in full-grown adults today and all it reminds me of is a shaken 14 year-old thinking he’s saving the world from damnation by ripping up paper.

Wrong About Wrong About

I was a big fan of Sarah Marshall & Michael Hobbes’s You’re Wrong About podcast, listened to dozens of their episodes, and heartily recommended it to others. My impression of the two is that they were unusually diligent reporters who devoted an incalculable amount of research behind each episode. I recall at one point they claimed each individual 1 hour-ish episode took 8 to 10 hours to record and was preceded by several weeks of research. This claim seemed and remains totally credible to me, because I can’t imagine how else they would have been able to release sixteen hour-long episodes on the OJ Simpson case full of obscure minutiae without first having read several books on the topic.

The problem here is Hobbes specifically, his selective devotion to the truth, and why I didn’t notice it before. Freddie deBoer’s list reserved a scathing paragraph for Hobbes:

The quintessential 2022 liberal is someone who does not want to achieve anything, but rather to be something - an ally, a friend to the movement, one of the good ones. Achieving is beyond the point; the point is to occupy a space of existential goodness. For people like Hobbes, politics is not a thing you do but a thing you are. And what Hobbes is, naturally, is a guy who already knows the answer to every question.

As an illustrative example, see how credulous Hobbes is towards spurious claims which just happen to flatter his preconceived conclusion that Jesse Singal Bad. By far Hobbes’s most telling confession comes from the 2018 You’re Wrong About episode on the murder of Matthew Shepard. Amazingly, the transcript remains up (emphasis added):

My longtime obsession with this case and the debunking is about our use of symbols and our use of cases to illustrate larger phenomena. You saw this a lot with Michael Brown actually, and with Trayvon Martin. That those cases come out. It's horrible. That's used as a tag to talk about police killing African Americans at wildly disproportionate rates. And then everybody pops out of a trashcan and is like, actually Michael Brown, it looks like he fought back against the officer. Or maybe Trayvon Martin was shoplifting that day. And they try to complicate the narrative of this anecdote on which we've hung this larger trend. And frankly, who fucking cares? Maybe everything that the racists say about the Michael Brown case is true, and maybe everything they say about the Trayvon Martin case is true. That does not negate the fact that statistically speaking African Americans are more likely to be killed by police than white people. So, it really doesn't matter whether they are correct about their “debunking” of these cases. But to make a trend interesting, to make a trend important, you have to tie it to these events. And then we get into these events being more complicated than they seem at first, which fucking every event is more complicated than it seems at first. […] And so then we start to complicate this narrative and then the entire edifice of the social problem falls apart. They say that cops are killing black people at disproportionate rates, but I read on Breitbart that like this Michael Brown kid was fighting with the officer, and the whole thing gets swept away. And I think it's just something human and a huge weakness of journalism that you have to tie bigger trends to these stories. And then once the story gets debunked, the trend gets debunked. […] The thing that I think is really hard for people to incorporate is that even if all of the debunking about Matthew Shepard was true, or even more true, let's say he was trying to sell them meth and he was this huge meth kingpin, and he's just this terrible human being, it still doesn't stop the fact that he's gay and he got murdered. And it still doesn't stop the fact that homophobia in 1998 in America was a huge problem. And that many gay people were killed or beaten up or harassed or whatever due to their sexuality. So even if the debunking of the Matthew Shepard case was true, it doesn't negate the larger point.

Hobbes, an alleged journalist, admits it is acceptable to circulate factually false narratives if they happen to be in service towards a broader morally true mission. I hadn’t listened to that episode but if that was admitted to in 2018, why didn’t I notice the problem earlier? Partly it’s because I assumed that diligence is completely incompatible with dishonesty. The other part is that Hobbes is not uniformly averse towards questioning sacred cows. In 2019 for example, during Pride month no less, he was willing to unambiguously reject the “A transwoman threw the first brick at Stonewall” canard, although admittedly not without some gratuitous and familiar excuse-making:

I think a lot of this putting Sylvia and Marsha back into the Stonewall narrative is completely understandable because they are much more representative of Stonewall, then the hot white 2% body fat people that have typically been celebrated for this kind of event.

So what now? By Hobbes’ own admission, I can’t trust his work on any subject since I can never know if he’s relaying something factually true or just morally true. But did I go back and scrutinize everything else I picked up from listening to YWA? No. That kind of forensics is just not practical and also, Hobbes isn’t just operating an opposite day machine where he reflexively relays the opposite of whatever his research says. I’m willing to wager that he’s factually accurate the overwhelming amount of the time, but all you need to fully pulp your credibility is admit you’re willing to bend the truth sometimes.

Legal Forecasting

I wrote about the bombshell revelation during the Proud Boys trial of an FBI agent caught lying in her testimony. I included a prediction of sorts: “My assumption is that the prosecutor will dismiss charges against Nordean in a feeble attempt to make this go away.” Gattsuru righteously pointed out that this did not happen; the trial continued and all defendants were found guilty.

Obviously I cannot see the future so why should this failed prediction be on me? Well it’s mostly a reminder that I should stay in my lane. One of the things I (hopefully) offer in my writing on legal topics as a criminal defense attorney is the background experience necessary to contextualize events, like how there’s nothing at all remarkable about a defendant pleading not guilty at arraignment (dramatic headlines notwithstanding). I frame conversations with my real clients with similar qualifications, something like “While I can’t predict the future, I have done hundreds of sentencings and I would be very surprised if X happened instead of Y.” Neither my readers nor my real clients should have any business listening to what I have to say if I continue to fuck up my crystal ball.

It’s possible for a prediction to be wrong but still be reasonable when offered at the time, and it remains possible that I would be vindicated by some future appeal decision. Even so, that would be an instance of being accidentally correct. I should not have made that prediction (no matter how weakly-worded it was) for a couple of reasons:

1. My criminal defense experience is overwhelmingly in state court, not federal court. I lack the necessary context to confidently interpret events in the latter. Let’s just say that it’s much easier to catch a state prosecutor tripping with their pants down.

2. My own bias as a defense attorney (and really, virtually the only time I get to do something useful at work) is to make hay out of the government’s fuck-ups, only to thereafter be dispelled of the festivities once the prosecutor’s reply brief comes in. In the Proud Boys case I relied entirely on just the defense motion as the prosecutor’s response had not yet been filed.

Hopefully I can keep my limitations in mind…but who can predict the future?

Overestimated Immunity

In the same post above, I claimed that Qualified Immunity was “practically speaking, basically absolute immunity with a few extra steps”. QI is definitely one of my hobby horses that I’ve written extensively about and yet, curiously, I never looked into how prevalent it is. Had I been asked at the time to predict how often QI is granted as a shield against §1983 civil lawsuits, I probably would have said around 80%. The real answer (thanks to Gdanning) is somewhere between 57% and 3.7%.

Regardless of what the real answer is, the fact that I never bothered to look it up was a big mistake on my end. All it took to answer the question was the same cursory research that I regularly excoriate others for not doing. I think this error was paradoxically the result of my enthusiastic interest on the topic. Once you’re drowning within an issue it’s much easier for the availability heuristic to take over. Something similar happened to Matt Walsh when he erroneously claimed on Rogan’s show that “millions of kids” were on puberty blockers.

DoNotTrust

DoNotPay used to advertise itself as the World’s First Robot Lawyer, now it’s has rebranded into just Your AI Consumer Champion. The reason for the rebranding might have something to do with how DoNotPay’s CEO, Joshua Browder, was exhaustively exposed as a flagrant fabulist by Kathryn Tewson, and he’s the target of a lawsuit by the same.

When I first heard of DoNotPay, it was within the context of deploying a chatGPT-like agent on a company’s customer support chat system in order to dispute bills and the like. That idea was and remains perfectly plausible (customer service reps are trained to follow a script after all) and so when Browder made news with his ridiculous $1 million SCOTUS offer I said that the stunt risked hurting DoNotPay’s “promising product”.

It was a tweet that barely got 100 views but I didn’t have enough information to make that declaration. I also feel a bit sore about this one because I shelved my usual skepticism on a topic within my wheelhouse and got outscooped by Tewson on a major story. Darn.

“The Law That Created The Internet”

I already wrote about this a while ago. I used to be a §230 devotee but reading Gilad Edelman’s article changed my mind about whether the federal law is as necessary to the existence of the internet as I thought it was. There’s no shortage of arguments in favor of §230 but one errant thought I completely failed to follow up on is investigating how exactly the rest of the world handled the issue. Presumably not every country in the world copied §230 verbatim and yet the world-wide web still exists. I didn’t dwell too long on that question and shelved it away with some glossed-over “maybe that’s why all the tech companies are in the U.S.”.

The other question I failed to pursue was if we were to assume that a world without §230 would be as cataclysmic as its proponents argue, why would it stay that way? The whole point of the internet was allowing people across the globe to communicate. It seems patently implausible that if §230 did not exist everyone would just shrug and stoically accept a world where everyone is too spooked by the threat of defamation lawsuits to allow any user-generated content. Admittedly this is on dodgy aspirational ground in the vein of “we’ll figure something out” but it illustrates how helpful it can be to contemplate how exactly people (including legislators) will respond and not just assume they’ll sit and helplessly awwshucks while the fire burns. I still think §230 is a good solution but it was a failure of the imagination to assume it was the only solution.

The other mistake I made on this subject was to reflexively reject §230 criticism, even in areas where I lacked the subject-matter familiarity. I did this in response to a claim that §230 overruled anti-discrimination law; a claim I confidently rejected as patently ludicrous but one which ended up being correct.

---

See? That wasn’t that bad was it? I am still alive. Please call me out on any errors I haven’t acknowledged! I am so grateful towards the people that do this. There’s my entire Substack archive and here’s also a spreadsheet with all my Motte posts from Reddit if that’s easier to search. Never hesitate from flogging that whip, wah-pah!