From the Sunderland Echo, via Angry People in Local Newspapers, comes this quote from a (UK) government bureaucrat, in response to criticism of a “mini­malist” playpark populated exclu­sively by concrete plinths of varying height after a child is injured by whacking his head on one:

The design provided in the park is very different and probably not what many people are used to in a public play space, but the provision of features, such as natural materials, mounds, logs and blocks, encourages children to play more imag­i­na­tively and creatively.

This broader and more natu­ral­istic approach to play provision is one that is being encouraged by all the key play and safety agencies as well as being endorsed by central and local government.

It is not intended to replace tradi­tional play space, but rather to add to the mix of play provi­sions and to enrich children’s oppor­tu­nities to expe­rience a wide variety of stim­u­lating play experiences.

Paraphrased, I think it means “kids need to get used to bland, useless, painful government-​​provided concrete struc­tures early so they will passively accept the disap­pointment with life we’ll be forcing them to endure for the rest of their lives.”

I don’t think I mentioned it, but last August, right after I took the bar exam, I moved out of my law school apartment in Lesser Northeast Key Midwestern Swing State City and (shudder) moved back in with my mother in Greater Key Midwestern Swing State City, because I didn’t have a job. I still don’t have a job, but I do have an interview this week, so that might change.

When I was in Lesser Northeast Key Midwestern Swing State City Just 20 Minutes South of Greater Northeast Key Midwestern Swing State City, I had AT&T’s U-​​Verse product, which delivered internet and tele­vision over a copper pair. It’s almost exactly like DSL, except instead of running copper to the CO (and limiting bandwidth by distance), it runs copper to a very nearby junction box (called a Video Ready Access Device or VRAD) and fiber from the VRAD to the CO. This lets them offer much more bandwidth so they can send TV signals along with it. It was a wonderful service with compet­itive pricing. I never had problems with it. (I had switched to them after my earlier travails with Roadrunner through Time Warner Cable.)

I had to give up the U-​​Verse when I moved out. Now I’m in an older neighborhood–the house was built in the 20s–that doesn’t have U-​​Verse service yet, so we’re stuck with cable. And guess who the local fran­chisee is? Time Warner Cable. I’ve been fighting with them to improve our service ever since. Last night was partic­u­larly bad, and in frus­tration I tweeted:

This morning, I got this response:

I then sent this email, which describes all the diffi­culties I’ve been having with the service here:

Dear Time Warner Cable Peopleguys,

BH, via @TWCableHelp on Twitter, asked me to send you tracerts concerning the packet loss problem I have been having since August 2009 and haven’t been able to resolve.

My tweet last night
@TWCableHelp’s response this morning

I have attached three files. The first, [omitted] is a PingPlotter Pro dataset containing full tracert data from me to Google since 4/​21/​10 (excluding some small gaps when the software wasn’t running). It contains ping times for each hop, packet loss, and jitter. You can display it and explore it using PingPlotter Pro. If you don’t have PingPlotter Pro, you can download a free 30 day trial at www​.ping​plotter​.com. I recommend this, as it will give you the best picture of what is going on here on our end of things.

The other two are screen captures from PingPlotter showing the data.

The first, [omitted], shows the current* state of the route above and the last seven days on the graph (the red humps indicate packet loss over the route). (Here, “current” means “average of the route data from 10:37:57am to 10:40:12am EDT this morning,” which is when I took the screenshot.)

The second, [omitted] is another screenshot, this time showing data from last night (10:12:57pm EDT). As you can see, utterly unac­ceptable levels of packet loss.

Here are the symptoms:

In the evenings, we expe­rience problems with our internet service AND our tele­vision service. On the TV side of things, HD channels will block up, audio will drop out, and the screen will go blank. (Since the guide upgrade a few months ago these have happened more frequently, and the blank screens have been replaced with a “please wait” message.) This happens unpre­dictably and usually on higher-​​numbered HD channels only. Usually there are no problems with non-​​HD channels or local HD channels. The guide is extremely sluggish in the evening, and changing channels can take up to 45 seconds in some cases. On the internet side of things, the internet is useless between about 9pm and midnight for anything other than loading simple web pages (very, very slowly). We cannot do anything more intensive than that. Downloading email is a chore. Videos on YouTube, Hulu, &c, will not load. Most distressing, I get discon­nected from World of Warcraft, which I am usually only able to play in the evenings due to work, and then cannot play for long due to the high packet loss. (World of Warcraft is not a high-​​bandwidth appli­cation. It relies on data being reliably and quickly delivered between server and client, not on cramming large amounts of data down the pipe at once. Latency, as you can see from the dataset, is rela­tively low, though it does spike during peak hours along with the packet loss. The unre­li­a­bility of packet delivery to the game server is what causes discon­nects resulting in nonplaya­bility. We require better reli­a­bility of packet delivery, not more bandwidth or lower latency.) Speed tests (run at Speedtest​.net) typically indicate much slower speeds during the late evening hours.

Here is what we have tried to do about it:

The problems started up last August (August 2009). We had a tech­nician out who replaced the drop from the pole to the house. That mitigated, but did not resolve, the problems. They were manageable until the beginning of 2010, when they became much worse. In the past few months we have had tech­ni­cians out on at least 5 separate occasions. They have verified that there is no problem inside our house, or with the drop from the house to the pole. (I have stopped dealing with the national support desk because they are completely unhelpful. I have been dealing directly with the local main­te­nance office for the past month. I will not call national support desk ever again unless it is to close the account. I can only tolerate being told to power-​​cycle my modem so many times.) On the last tech visit (which came with two tech­ni­cians, instead of the usual one), we were told that the problem is area-​​wide and caused by satu­ration of our node’s bandwidth, probably caused by all the college kids halfway across town, who are, inex­plicably, on the same node. They looked at the graphs and could see the node bandwidth capping out at night. They said they would look into moving us to another node, or making a hardware upgrade somewhere, but I haven’t heard anything from them since, and my calls are now going unreturned.

Here is what we want, thought we were paying for, and have discovered we are not getting:

Reliable delivery of packets at all hours. Watchable prime time HD programming.

I expect you will need our account infor­mation to look up our service history and see what can be done. I won’t give that out in an email, so you will need to phone me. My cell phone number is [omitted] (the account is not asso­ciated with that number). You can call me any time. If by chance I do not pick up, leave a message and I will call you back within an hour. I will expect your call within 24 hours. Before you call, please make sure you have actually read this email and looked at the attach­ments — I do not enjoy retelling the story to every single person I speak with about this issue. And I do not enjoy being asked to power-​​cycle my modem or router or restart my computer. The problem is coming from outside the house.

Yours,

Qwertz
Greater Northeast Key Midwestern Swing State City

I got a call back in just a few hours. Let’s see what happens.

One who would defend the [Constitution] must share his foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safe­guards of liberty have often been forged in contro­versies involving not very nice people.

Kopf v. Skyrm, 993 F2d 374, 308 (4th Cir. 1996). Judge Hall was writing about the Fourth Amendment, but the sentiment applies most admirably to the First Amendment as well, as another 4th Circuit panel noted recently in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In that appeal, the 4th Circuit panel reversed a $5M judgment against the deplorable Fred Phelps (of Westboro Baptist Church fame) and two other members of his family-​​stroke-​​church for extremely disgusting and offensive state­ments made at and concerning their protest of the funeral of Marine Lance Corporal Matthew A. Snyder on March 10, 2006. The panel ruled that Phelps et al. should have prevailed at the trial court as a matter of law because their state­ments were protected by the First Amendment’s Free Speech Clause and the Supreme Court’s New York Times v. Sullivan, 376 U.S. 254 (1964), and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) lines of cases applying the Free Speech Clause’s protec­tions to the pros­e­cution of civil suits.

According to the panel, the state­ments made by the church members (which I will not repeat here, but which can be found in the panel’s opinion here [PDF]) were either general state­ments of public concern that a reasonable person would not presume to refer specif­i­cally to any member of the Snyder family, or were state­ments so hyper­bolic and contex­tually related to the church’s broader protests that a reasonable person could not conclude that they made any state­ments of objec­tively veri­fiable fact.

The panel’s reasoning based on existing case law is sound, and I think that this is legally and morally the correct outcome, given the unfor­tunate context (discussed below). Mr. Snyder has appealed to the Supreme Court, and the Court granted certiorari earlier this month.

Today, Drudge Report links an Associated Press article in the Wichita Eagle (here) reporting that the 4th Circuit has also ordered costs of the appeal to the 4th Circuit to be paid by appellee, Mr. Snyder. The article states that the brief opinion did not give reasons why Mr. Snyder is being required to pay the costs of an appeal initiated (and even­tually won) by Phelps. But this assessment of costs against appellee is not all that myste­rious. The Fourth Circuit’s Local Rule 39(a)(3) states that “if a judgment is reversed, costs are taxed against the appellee.” (Here.) Note that costs do not include attorney’s fees. This is not a fee-​​shifting rule, but a cost-​​assessing rule, and a typical one at that. The AP article reports on an ordinary and expected conse­quence of losing an appeal, not on something inex­plicable or even contro­versial. What the AP article (and other misin­ter­pre­ta­tions of this ruling) does reflect are the sympathy the public feels for Mr. Snyder and the vague sense that there is something unjust going on in this case.

It seems unfair that Phelps should be able to harangue the family members of dead soldiers at their loved ones’ funerals and be protected from suit by the First Amendment, so it seems addi­tionally unfair that the family members might have to pay money to Phelps as a result. But the law here is correct and moral within the context of the current public property situation. And Mr. Snyder is not required to pay Phelps’ lawyer. He must pay for his own, and for the court costs incurred in arguing the appeal.

This would have never happened if the government didn’t own the streets and sidewalks near St. John’s Catholic Church in Westminster, Maryland. If such property were privately owned, Phelps would be stuck spewing his nause­ating bile from his own property back in Kansas. Rational people would decline to permit him to use their property for his pontif­i­cating (a word I’m sure he’d never use himself, given its papal reference). But since the government owns the roads and sidewalks, it must make the rules necessary for their use, and those rules must comport as closely as possible with the protection of indi­vidual rights. In the context of speech from public property, this means that government can only place reasonable time, place, and manner restric­tions on speech. This has led many (40, according to the 4th Circuit panel) states to attempt to enact restric­tions on picketing near funerals (specif­i­cally to combat Phelps), and Phelps has been successful in having some of these statutes thrown out where they were not drafted properly and discrim­i­nated on the basis of content.

[Sidebar: In a recent podcast, Dr. Leonard Peikoff addressed the question of the propriety of permitting the government to regulate the display of porno­graphic material on private property in such a way that it is promi­nently visible from public property. After making it clear that this would not be a problem if all property were privately owned, Dr. Peikoff suggested that the government would have to make the rules, and that it could legit­i­mately prohibit conduct or displays that would “raise objective question” or would be “objec­tively taken to raise fear in people as to what’s coming next.” I’m not sure exactly what the standard Dr. Peikoff would use is, based on these state­ments. Perhaps I will ask him to clarify.]

Phelps’ behavior is disgusting and, in a civilized society, he would be shunned and denounced as an idiot. In a capi­talist society, he would have no platform from which to speak except that which he could earn for himself. But in our mixed society, where the government controls the roads, what is the proper limit placed on speech in and around public property?

I talk about gay marriage a lot because I believe that it has inter­esting features and conse­quences beyond those commonly subject to discussion. For example, in my Law Review article, “Same-​​Sex Marriage and the Federal Spousal Privileges,” I argue that vari­a­tions in state laws dealing with gay marriage create a situation where federal courts may be faced with a novel choice-​​of-​​law question: To which state’s laws should a federal criminal court look to determine the validity of a marriage for purposes of applying the spousal testi­monial and commu­ni­ca­tions priv­i­leges to same-​​sex marriages under Federal Rule of Evidence 501. (That article was finished in April, 2009, and has not been updated since. I may update it soon and share it here if I cannot find a print publi­cation inter­ested in carrying it.)

(I am not opposed to same-​​sex marriage on principle, but my position is much more compli­cated than can be expressed by a simple answer to a “are you for it or against it” question. I will fully describe my, so far as I can tell, unique position on same-​​sex marriage in another post.)

Recently, another issue has caught my attention. This one is not a legal issue, but a conceptual one. I have always found myself a bit nonplussed whenever I hear someone mention his husband, or her wife. Despite the fact that I know that the speaker is gay and may even actually have gone to the trouble of going somewhere to get legally married (same-​​sex marriage is not legal or recog­nized in Key Midwestern Swing State), it still strikes me as odd that a man should use the term “husband” to refer to his spouse, or a woman can be married to a “wife.” The reaction I have is one that, could it be summed up in a phrase would be “but he’s not really your husband, even though you two are married.” In other words, I feel like the speaker is or ought to be raising his hands above his shoulders to the level of his ears and repeatedly curling the middle and index fingers of both hands in a downward motion while saying the word “husband” or “wife”.

There’s a video on YouTube for every­thing:

This mental response of “there’s something not quite right about that usage” is subtle, but consistent, which makes me think it is not incon­se­quential and deserves inves­ti­gation. There are two possi­bil­ities: either I subcon­sciously do not accept a man in a same-​​sex marriage as a proper unit of the concept “husband”; or such a person is not properly a unit of the concept.

The simple defi­n­ition of “husband” is “a married man”. And if defi­n­i­tions were inter­changeable with concepts the matter would be closed. But the concept actually subsumes all the funda­mental prop­erties shared by its units. So the question is: is having a wife part of being a “husband”? Is being possessed by her husband part of being a “wife”? Other conceptual evidence suggests that it is. A gender neutral concept for a married person exists: “spouse”. It doesn’t carry all the fine points of the masculine-​​feminine rela­tionship and so is a broader concept than “husband” or “wife”.

Here’s where Rand’s Razor comes in. It directs to concep­tu­alize only to the point necessary, then stop. Further groupings should be iden­tified descrip­tively. Leonard Peikoff, “The Analytic-​​Synthetic Dichotomy” in Introduction to Objectivist Epistemology 94–96 (Plume 1990). Assuming “husband”, “wife” and “spouse” are all proper concepts, then there must be something essential and funda­mental to the concept “wife” other than the fact that wives are women. If not, then there would be no need for the concept “wife,” because this grouping of female spouses could be iden­tified more easily in the descriptive terms I just used.

Additionally, I am reminded of Hank Rearden’s walk home with the bracelet in Atlas Shrugged — the bracelet which he intended for his wife, but not the woman to whom he was married. These concepts “husband” and “wife” carry with them a great deal of other very signif­icant features that deal with the interplay of the masculine with the feminine. These features are, both in my expe­rience and, I believe, as a matter of principle, funda­men­tally different in and, in some instances absent from, same-​​sex rela­tion­ships. In short, these concepts do not apply merely because a unit to which they are applied meets the defi­n­ition. Men and women in same-​​sex marriages do not seem to belong in the concepts “husband” and “wife” because same-​​sex marriages have very different rela­tion­ships and inter­per­sonal dynamics than opposite-​​sex marriages. There is certainly a masculinity-​​femininity dynamic at work in same-​​sex rela­tion­ships, but it is very different from the masculinity-​​femininity dynamic that is part of the hetero­sexual marriage.

I see a few possible conclusions:

1. Expand the concepts “husband” and “wife” by dropping those concepts’ current refer­ences to the gender of the unit’s spouse and the hetero­sexual masculinity-​​femininity dynamic, effec­tively rendering them fully equiv­alent to the phrases “male spouse” and “female spouse”, even though Rand’s Razor would then dictate aban­doning the concepts “husband” and “wife” alto­gether in both gay or straight rela­tion­ships in favor of the descriptive iden­ti­fi­ca­tions within the master concept “spouse”;

2. Assume that “husband” and “wife” did not include the gender of the unit’s spouse and the hetero­sexual masculinity-​​femininity dynamic as an essential and funda­mental feature of all units in the concepts in the first place, and then adhere to Rand’s Razor and abandon “husband” and “wife” for gay and straight married people and use “spouse” as the concept and identify subsets descrip­tively, despite the fact that “husband” and “wife” have venerable conceptual pedigrees;

3. Describe gay married men as “gay husbands” (or some other descriptive variant on the concept “husband”), even though this would be like saying “this is a husband, except that it lacks several essential funda­mental features of husbands” and reads to me like a stolen concept;

4. Develop entirely new concepts for gay spouses, which would need to have a lot more distin­guishing features than a simple gender-​​specification, such as impli­ca­tions about the sexual dynamics involved, in order to justify treating them as concepts in their own rights;

5. Use the existing concept “spouse”, which does not include gender or sexual dynamics, and merely use the descriptive “gay spouse” if further speci­ficity is needed.

If there is in fact a conceptual problem with including men married to other men in the concept “husband”, then number 5 is my preferred solution. I would appre­ciate comments, but only if they deal with the concep­tu­al­ization issue I am discussing. I do not need comments telling me that I’m a homophobe because I refuse to treat gay marriages as concep­tually equal to straight ones. I’ve already told you that I agree that they should be polit­i­cally and legally equal, and that’s not the issue I’m discussing in this post.

Update: 12th April, 2010. There has been some misun­der­standing about the purpose of this post. The purpose of this post is to explore the cause of my persistent, nagging negative emotional response to same-​​sex couples using the words “husband” and “wife”, be it subcon­scious conceptual error or something else. Please review the comments.