More From Eric Dixon at http://www.NYBusinessCounsel.com

Support Independent Investigations With Bitcoin:
Send Bitcoin Here: 171GMeYRD7CaY6tkXs8dSTjLbAtFazxhVL

Top 50 Twitter Rank of Worldwide Startup Advisors For Much of 2014
. Go to my professional site for solutions to your legal, business and strategic problems. The only lawyer who is a co-inventor of multiple, allowed-for-grant patents on blockchain technology!!! Blockchain and Digital Currency Protocol Development --
Top Strategic Judgment -- When You Need A Fixer -- Explore Information Protection and Cryptographic Security -- MUST-WIN: JUST DON'T LOSE -- SURVIVE!: Under Investigation? Being Sued? Handling Extreme Stress -- Corporate Issues -- Startup Issues -- Investor Issues -- Contracts To Meet Your Needs -- Opposition Research -- Intellectual Property, Media and Reputation Issues -- Independent, top-notch legal, strategic and personal advice -- Extensive ghostwriting, speechwriting, book writing, issue research, press and crisis management services. Listed by American Bar Association's Law Bloggers (Blawgers). Contact EDixon@NYBusinessCounsel.com. European Union audiences: This site uses a third party site administrator which may use cookies but this site is intended for AMERICAN clients and prospective clients only!

Friday, January 30, 2015

Fame And The Bad Element

Sometimes the best lawyers are the ones who understand human nature. This trait is very useful in representing high-profile clients in business or politics, or those who "have money," and even known figures in the entertainment industries.  It is useful, and those clients need that skill, because they are constantly being surrounded and besieged by users, hangers-on and parasites who will often enable bad habits, facilitate exploitation and eventually leave some very successful people very broke.

That is the skill which allows you to see things through the eyes of your adversary. That's true whether you're negotiating, or fighting out something (which is a tactic that is part of negotiating). It's why the legal process and especially litigation is described as adversarial. It also explains why mature lawyers must be able to assert themselves. Shrinking violets put their clients, and themselves, in harm's way, and there are many lawyers who simply are ill-suited to be advocates and representatives for anyone else.

If you are someone who is developing a profile, who is becoming "known," who is starting to have a problem walking in midtown Manhattan without being recognized and stopped, here are some of the things you need:

1.    Get independent advisers who answer only to you, not to your inner circle. The inner circle you think is protecting you might actually be the source of your problems.

2.    The confidential advice given to you by your advisers should always stay between you and your advisers. See point 1.

3.    Have an audit done. Never be afraid to check and test those around you. You might be afraid of what you'll discover, but if you're that afraid now, there is probably a reason. Trust your gut. 

4.    Never confuse employees with friends. There are plenty of people who will pretend, for months and for years, that they are your friends. Some may even keep up this ruse through the first few years of marriage. But the common denominator that almost never fails is the test of adversity. When the candy train stops, see how quickly these hangers-on bolt for the door. The true test of friendship is who sticks with you when you have nothing, or simply if you shut the spigot. Again, see point 1.

Eric Dixon is a New York lawyer, advisor and strategist who runs the website http://www.NYBusinessCounsel.com and can be reached at EDixon@NYBusinessCounsel.com.


Monday, January 26, 2015

Stranded By The Storm

As a blizzard descends upon much of the urban Northeast, many state and local governments and transportation agencies are shutting down roads and vital transportation crossings. For example, the Port Authority of New York and New Jersey is shutting down the PATH interstate train and all six bridges and tunnels between New York and New Jersey at 11 pm tonight. The scope of the shutdown will literally strand travellers, and it will strand workers.

The offered reason is that this is being done for the public good, for the protection of the public.

The real reason may be different. Call me a cynic, but there are few better ways for government leaders to assert their power than to shut down transportation systems. I mean, what did you think the Bridgegate scandal involving the use of Port Authority personnel to close entry lanes to the George Washington Bridge in September 2013 was all about?

But what about the effect on the public? Well, it seems pretty clear. The main effect is to essentially scare the dickens out of the public, to raise the specter of being stranded in order to deter anyone from travelling in the hours before the peak of the storm (when only a few inches had fallen).  

However, the consequential effects are predictable and they are severe. Businesses were forced to close early on Monday, not because of the weather per se but because their workforce was rightfully concerned that they would lose the ability to get home. 

Call me a cynic, but one wonders if this isn't just the government shifting the burden of inconvenience on the public, in order to make its "job" easier and avoid having its inefficiencies in snow removal and road maintenance exposed. 

And as the vast majority of those inconvenienced or disrupted by these government actions happen to be business owners who are the last ones out shutting their stores or offices, or honest employees, then all the better. You see, the storm is useful in deterring -- no, punishing -- people from working, all the better. Never let a crisis go to waste. 

Now it is without doubt that a blizzard is a serious weather event and those stranded outdoors can have their lives imperiled in a worst-case scenario. But these government exercises in authority have a real and subtle message: They remove your choice in the matter, and allow government to dictate your freedom of movement. 

The trend in recent years to have governments just "shut down" all manner of transportation arteries seems to be more about flexing muscles in the name of protecting the public, than in actually doing good. We'll bet that more people will be stranded by the feckless efforts of public servants trying to look like do-gooders, than by reckless individuals out for a joyride in the middle of a blizzard.

And again, let's point to the Bridgegate scandal still being investigated by various federal and state authorities. If Bridgegate was an abuse of power in September 2013 -- as it apparently was, with its criminality still in much dispute -- then how exactly is preventing people from getting home not an abuse?

Some will object to the cynicism, but if the government does not trust the general public to exercise minimal due care and common sense with its own safety, why exactly is the general public obligated to accept as an article of faith that the government is acting in the true public interest?



Thursday, January 22, 2015

Sheldon Silver's Warning To The Free Market?:

Behind the dismaying arrest of New York State Assembly Speaker Sheldon Silver on a series of mail fraud, extortion "under color of official right" and honest services fraud criminal charges (here's the
federal indictment against Silver), there could be some subtle and worrisome themes best expressed in three questions:

First: Does the federal government have the right to approve business contracts? This leads to the question of whether the federal (or state) government be able to criminalize any contract of which it does not approve?

And second: Are prosecutors also regulators, that is, able to impose regulations outside the ambit of legislative authority (because prosecutors are part of the executive branch) through their creative use of criminal statutes?

And finally, third: Will business be subject to arbitrary, shifting and perhaps ill-informed standards of care, perhaps set and then measured for compliance by people not necessarily qualified to do either, and of which standards an alleged violation becomes a crime?

These concerns 

(Before I continue: This article explores some troubling nuances in the thought process behind the case, and in no respect is meant to excuse or defend any of the alleged conduct. I have no love lost for Mr. Silver, none at all, but nor do I bear him any animus. Full disclosure: I've beaten his political machine -- that's different from him and I impute nothing to him -- on some election law cases in the past, going up against someone from the big law firm Stroock, Stroock & Lavan. They even sought sanctions against me in a frivolous argument thankfully rejected out of hand.  But I am not sold on the big picture here, which carries the subtle message that the government will use its prosecutorial power to regulate economic activity and businesses with which it simply disapproves or dislikes of an activity, industry or a particular person. None of that should be meant as a defense of Mr. Silver, particularly in some of the other criminal charges that involve none of the issues I discuss below, and which charges are both much more formidable and bolstered apparently with cooperating witnesses.)

Somewhat buried in the Silver criminal complaint are nuggets that very much indicate (and United States Attorney Preet Bharara said as much in his press conference) that the Department of Justice was questioning what Silver did to earn his referral fees from two law firms.

Here's the problem. The evaluation of what he did, whether he was qualified, etc. is an inherently subjective-value driven evaluation.

Should the federal government be able to charge you with a crime because it claims -- for good cause, bad cause or no cause -- you are not qualified to handle certain work and therefore made money by splitting legal fees on work you were not qualified to do and thus were not entitled to receive?  And what standard of qualification is used? Even more importantly, who gets to exercise that standard, and what standards are going to be used to judge whether they are qualified?
We are moving in that direction. We are lurching dangerously in a direction where personal or political animus can be the unstated basis for the prosecution and financial, reputational and personal destruction of people who have merely had the misfortune to achieve, and then to draw the envy and thus the ire of those in power who are envious, ambitious or flatly malicious.
The factual foundation of one charge is a fee-sharing agreement among lawyers, that is, Silver and another law firm, regarding work that Silver is considered unsuited to have performed, and Silver's failure to disclose that source of income.  But lawyers are allowed to refer clients to others who may practice in different fields (or even the same field) and get referral fees.  New York's Disciplinary Rule 2-107(A) -- a rule which is not even a criminal statute -- provides that lawyers can split fees if "each lawyer assumes joint responsibility for the representation" and the client is informed in writing. That rule follows a nearly 50-year old New York appellate case that holds that
“It has long been understood that in disputes among attorneys over the enforcement of fee-sharing agreements the courts will not inquire into the precise worth of the services performed by the parties as long as each party actually contributed to the legal work and there is no claim that either ‘refused to contribute more substantially.’
Sterling v Miller, 2 A.D.2d 900, aff’d 3 N.Y.2d 778 [1956]). (Emphasis added.)
So do we have a criminal charge against Silver that is based, dangerously subjectively, on the premise that in a prosecutor's mind, Silver simply didn't do enough to deserve his fee? (There is an echo here of the federal prosecution of New Jersey State Senator Wayne Bryant for having a "low-show" and also low-paying part time job, by then U.S. Attorney Chris Christie.)
And regarding the alleged crimes comprising several counts, one needs to ask what is "legitimate outside income" for a lawyer? And does this type of case put any part-time legislator at risk of having his or her outside income considered "bogus"? What is the standard? Is it arbitrary?  
Is that really a federal crime -- a crime at all?
In other words, do we have real crimes, or just ambitious second-guessing and smug judgments against a public elected official whom, regardless of whether you like him or his policies, is allowed to have part-time outside income. (Or perhaps, just not too much income.) I wonder if what we have here is a subjective standard that puts certain professionals -- lawyers are a suspect class -- and particularly public officials and elected officials most especially at risk on account of their high profile and thus their ability to "make the career" or "make the name" of an ambitious government prosecutor.
Arguably, the appropriate sanction for such acts, particularly if they are intentional, is not prison. It is disqualification from holding public office and/or public employment. That would be a stiffer, more meaningful and, to be frank, more painful punishment that would also be more effective in achieving deterrence. The goal of deterrence is historically a key element of the Anglo-American tradition of criminal law. (Others include the need to protect the public, and yes, the goal of retribution.
But envy, jealousy and clearing the field to create openings for the ambitious are not proper motives for the criminal law.
And as for elected officials, perhaps they are irretrievably under suspicion, and it is very hard to prove one's innocence in a world of the subjective standard. A solution would seem to lie in the eradication of the part-time legislator, so as to protect elected officials from this subjective standard.


Wednesday, January 14, 2015

Tea Party Played For Third-Rate Fools Under Election Law

As I predicted six months ago in this article -- which was met with derision among most of the "tea party" movement -- the establishment insiders running the Republican Party in New York used a "Stop Common Core" ballot line as a ruse to create a new third party to attract and ultimately neuter independent, reform-oriented sentiment on various issues.

The new third party will be called the "Reform Party." As that report indicates, the party will expand its "issues" beyond purported opposition to the Common Core school curriculum which has become a hot button around the nation and also raised issues about federalism and states' rights. 

It should now be apparent that the ballot line's title was merely a ploy to attract the necessary ground troops to gain 15,000 petition signatures and then the 50,000 votes (Stop Common Core got a shade over 51,000 for Rob Astorino) needed under New York election law for a ballot line to convert into a legally recognized political party for any election in the state for the next four years. "Stop Common Core" was never about protesting the federal curriculum mandate. It was about making sure protest movements were kept under watch, under control and chopped down at the first sign of strength.

But as I predicted, the petition drive and third statewide ballot line for November's gubernatorial election used grassroots and "tea party" elbow grease to capture independent-minded protest votes, first for the near-term objective of keeping them away from any bonafide independent (read: not controlled by the establishment), and later (and this is unfolding now) to keep them captive so no serious challenge to Republican establishment orthodoxy can ever be mounted. 

The pseudo-reform brilliantly capitalizes on the amateurishness and mediocrity -- the third-rateness -- of so many self-styled "reform" or citizens' groups which lack not only money and expertise but also the basic discipline to agree on and implement a winning strategy.

I am critical now of these self-styled citizens' groups, both because of their emotionally immature stubbornness to even consider what they thought last year was the unthinkable -- that political insiders would dare lie to them -- and their arrogant dismissal of my very public, overt and strident warnings of what was about to happen.

The end result is that now, voters in New York State will have the illusion of even more choice, when in reality they will have much less. In New York, the political parties' ability under state election law to cross-endorse one another's candidates has led to a practice where most elections are either not seriously contested or, when they are, they are two-candidate races in which each candidate is "endorsed" and runs on at least two or three ballot lines. 

Too often, third parties are and remain third parties, because their personnel and decisions are third-rate. I am not even sure the tea party groups' decisions with Stop Common Core even rise to the level of third rate. New York deserves better. 

Monday, January 12, 2015

Explaining Christie's Run

No suspense here. Chris Christie is running for the 2016 Republican presidential nomination.

The cherry on top of the cake, so to speak, may have been the impending hire of Texas power broker Ray Washburne as his campaign finance chair, hinted at strongly in this report

Some will stop and say, "Wait! Weren't federal prosecutors closing in on Christie?" based on last week's report that Christie had a sit-down with prosecutors in December. 

True.

And note the language in that ABC News report. Specifically, this:
He agreed to sit down with investigators voluntarily after they offered him a chance to provide his side of the story.
Assuming that the wording was borrowing the description, from an unnamed source, with both knowledge of the facts and knowledge of the legal background behind the events, the choice of words supports a few inferences.

First, "he agreed" means the meeting was sought by prosecutors. Not Christie.

That means prosecutors wanted something. It could be verification of information given by another (i.e. corroboration), it could be looking for something to dispel a theory, or it could be a direct inquiry at a high-profile potential "target," that is, Christie himself. But the feds were the ones starting this process, not the Governor.

Second, he met "voluntarily." View this through the prism: There's an easy way, and a hard way. This means the feds requested and he agreed to meet. There was, perhaps, no subpoena, but rest assured, failure to meet voluntarily is not so voluntary when refusal means you might be compelled to meet, either via subpoena or via arrest. 

Consider the guidelines from the United States Attorneys' Manual, which provides in relevant part:
A grand jury may properly subpoena a subject or a target of the investigation and question the target about his or her involvement in the crime under investigation. See United States v. Wong, 431 U.S. 174, 179 n. 8 (1977);United States v. Washington, 431 U.S. 181, 190 n. 6 (1977); United States v. Mandujano, 425 U.S. 564, 573-75 and 584 n. 9 (1976); United States v. Dionisio, 410 U.S. 1, 10 n. 8 (1973). However, in the context of particular cases such a subpoena may carry the appearance of unfairness. Because the potential for misunderstanding is great, before a known "target" (as defined in USAM 9-11.151) is subpoenaed to testify before the grand jury about his or her involvement in the crime under investigation, an effort should be made to secure the target's voluntary appearance. If a voluntary appearance cannot be obtained, the target should be subpoenaed only after the grand jury and the United States Attorney or the responsible Assistant Attorney General have approved the subpoena. In determining whether to approve a subpoena for a "target," careful attention will be paid to the following considerations:
  • The importance to the successful conduct of the grand jury's investigation of the testimony or other information sought;
  • Whether the substance of the testimony or other information sought could be provided by other witnesses; and
  • Whether the questions the prosecutor and the grand jurors intend to ask or the other information sought would be protected by a valid claim of privilege. (United States Attorneys' Manual Chapter 9-11.150) (Emphasis added)



Third, they "offered him a chance to provide his side of the story." This is really important. This means that the prosecutors have come up with a theory, a likely version of events plus a legal underpinning of a potential charge, and they believe this theory is likely at odds with what they believed Christie would say. (The basis for that expectation comes from the ample public comments Christie himself made, surprising comments based on his own prosecutorial experience and perhaps evidencing an unfathomable hubris.) 

But most of all, the last phrase means that prosecutors have decided on a course of action -- if not directly involving Christie, then involving others near him -- and that course of action will be taken, whether Christie cooperates in the effort or not.

So how do prosecutors view Christie? The United States Attorney, Paul Fishman, is not saying. (Nor should he. That's the professional course to take.) Here are how some key terms are defined in the United States Attorneys' Manual, Chapter 9-11.151.
A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. 
But here are some pointers.

When you are a witness or potential target, you are technically offered the chance to meet prosecutors. But this is not Hollywood. It's really more of a choice: easy way, or hard way. Consider the United States Attorneys' Manual, which provides:
It is not altogether uncommon for subjects or targets of the grand jury's investigation, particularly in white-collar cases, to request or demand the opportunity to tell the grand jury their side of the story. While the prosecutor has no legal obligation to permit such witnesses to testify, United States v. Leverage Funding System, Inc., 637 F.2d 645 (9th Cir. 1980), cert. denied, 452 U.S. 961 (1981); United States v. Gardner, 516 F.2d 334 (7th Cir. 1975), cert. denied, 423 U.S. 861 (1976)), a refusal to do so can create the appearance of unfairness. Accordingly, under normal circumstances, where no burden upon the grand jury or delay of its proceedings is involved, reasonable requests by a "subject" or "target" of an investigation, as defined above, to testify personally before the grand jury ordinarily should be given favorable consideration, provided that such witness explicitly waives his or her privilege against self-incrimination, on the record before the grand jury, and is represented by counsel or voluntarily and knowingly appears without counsel and consents to full examination under oath. 
(United States Attorneys' Manual Chapter 9-11.152)(Emphasis added.)
And furthermore:
When a target is not called to testify pursuant to USAM 9-11.150, and does not request to testify on his or her own motion (see USAM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury, subject to the conditions set forth in USAM 9-11.152. (Emphasis added.)(U.S. Attorneys' Manual Chapter 9-11.153).
Now consider the ABC News report referenced above, which, if accurate, reported that prosecutors were considering subpoenaing Christie if he did not respond to their request to meet.

And no matter how you are viewed -- fact witness, character witness, impeachment witness, or potential defendant (i.e., a target) -- any question and answer session puts you at risk of a false statements charge if your statements to federal prosecutors or investigators are later considered false. 

That's not necessarily fatal. Others have taken the risk and survived; see former Governor Jon Corzine as an example of someone who played with fire and lived to tell about it -- although he is theoretically still at risk of federal prosecution until the statute of limitations expires on him probably in early 2017.

But it would still have been smart for Christie to have insisted on a videotaped question and answer session, especially since the FBI adopted new regulations in May 2014 requiring the videotaping of most suspects. That's quite a change from the FBI regulations in place when Chris Christie was the United States Attorney himself and his office backed away from questioning someone because he insisted on a videotape. 

From the Manual's guidance, it certainly seems like Governor Christie's conduct may be at least that of a "subject," a term defined as a "person whose conduct is within the scope of the grand jury's investigation." (United States Attorney's Manual Chapter 9-11.151.) It is possible he is a "target," as defined earlier.

But indictments are not fatal to political hopes.

One thing is certain. There can be no assurance that the investigation would end without action, or with an "all clear" for Christie prior to the point where he would have to lay the serious foundation (i.e. fundraise) for a presidential campaign. Hence, he has little choice, strategically, but to go full steam ahead. However, the foregoing discussion should explain why a campaign is not indicative of his ultimate legal exposure in the myriad of federal investigations still believed to be ongoing. 





Friday, January 9, 2015

Bitcoin's Dreaded Bitlicense Revision Promised Soon

The anticipated and feared revised New York "Bitlicense" proposal will be issued soon and "early in 2015" according to New York State Department of Financial Services chief Benjamin Lawsky in new comments made Friday.

Lawsky's comments included the ominous warning:
People wanting to "flout the law...will not be able to survive."
Bitcoin and digital currencies refer to an electronic payment system that does not use conventional, or "fiat" (i.e. government-issued) money. This emerging industry's role in the financial sector has come under scrutiny, because of an incorrect and irresponsibly shared view (promoted by conventional banking competitors) which Lawsky himself voiced that Bitcoin comes from 
"a very unregulated world...[that is] colliding with the closely regulated banking system."
However, a reasoned and knowledgeable approach recognizes that the Bitcoin and digital currency sector, like all other commercial activity, is as subject to the same myriad of state and federal laws on fraud, for example, and other criminal and civil laws that regular businesses are subject to -- so the common view that Bitcoin is in some lawless netherworld is pure bunk. 

Lawsky persists in promoting the myth of Bitcoin as some sort of refuge from the long arm of the law. This is the same type of nonsense often used to impose laws or regulations known by their proponents or enforcers to have disparate (and hence, legally challengeable) effects. Lawsky, for one, claims that his Department "wants to make bitcoin safer" without putting innovative companies "out of business." Be warned that such an objective can be achieved, of course, if many of those companies simply stay in business but move out of New York State, if not out of the country altogether.

Read Eric Dixon's Original Comments To The New York State Department of Financial Services on Its Original Bitlicense Proposal: From August 2014.

Bitcoin is not "unregulated." It merely is not regulated in the same way -- not yet -- as the large financial institutions. But make no mistake, regulator Lawsky said clearly:
 "there hasn't been enough regulation" about Bitcoin.
And Lawsky's job is to regulate. That means finding something to regulate. The need for regulation is not the need to protect people; it's the need for people, like regulators, to have and keep their jobs!

The key to any acceptable and legally-sustainable regulation, of course, is whether it achieves "fairness" among competitors in our economy. Regulatory favoritism will surely give way to cries of crony capitalism, and here, crony regulation. 

On related themes, Lawsky did appear to recognize the benefits of "encryption as a way to avoid the sharing of personal information."

The proof, of course, will be in the details of the eventual new draft regulation. 

Eric Dixon has been a corporate, business and regulatory lawyer in New York for 20 years. 

The Constitution And The Vicious Anti-Christian Cartoons of Charlie Hebdo

The content of this article is offensive, insofar as it republishes highly-vulgar cartoons sharply attacking and mocking the essence of Christianity, in one, and the Roman Catholic Pope in another.

While freedom of speech and expression -- and of the news media -- are under attack, let us also distinguish between defending the right to such speech, and defending the content of that speech.

What's the Terrorists' Strategy Here? Answer Below...

While we are at it, we should really also draw a distinction between: (a) the freedom to express oneself, and (b) the demand that others react the way we want them to react, and only as we want them to react, to our expression. The latter is really a demand for a nonsensical, nonexistent freedom from responsibility -- that is, the responsibility to acknowledge that all expression causes reactions, and that those reactions are unpredictable, ungovernable and often undesirable.

Legal arguments commonly hide the real agenda behind some artfully drawn phrase or argument. I sense that's the same thing here. I sense the Charlie Hebdo protests are really not about "freedom of speech," but rather about a "freedom from responsibility."

We should remember that, even in the United States, governments routinely attempt to enact laws and regulations which unconstitutionally (and thus unlawfully) target certain speech because of its content. Such "content-based restrictions" are commonly invalidated.  The courts are pretty good -- so are civil libertarian lawyers like myself -- in discerning the hidden, unconstitutional agendas behind otherwise benign-sounding laws and regulations.

The "right to free speech" is one thing. But the use of tyranny, whether through violence, boycotts or organized efforts to induce economic or reputational harm to those with whom one disagrees, is part of an illusory (and nonexistent) "right" to compel either the desired reaction to one's free speech, or absolute silence equating to submission. In short, any "right to free expression" as conceived by the United States Constitution does not -- clearly does not -- include a right to exclude, by any means, the speech of others.

With that in mind, here is my suspicion: When opinion leaders are demanding a defense of the right to free speech, what they really want -- and what they won't admit -- is a defense of the intentionally deeply offensive and, frankly, blasphemous speech. I believe this is a deliberate part of the terrorists' strategy. But look at the following cartoons and decide for yourself.



Wednesday, January 7, 2015

The Strategy of the Charlie Hebdo Attack

The murderous attack by Islamic terrorists on the French satirical publication Charlie Hebdo earlier today may be part of a nefarious strategy to use Western outrage against, well, the West.

In short: I think the West is being terribly played today.


This analysis offers a strategic theory. As such, I am avoiding repeating the condemnations and ancillary topics (i.e. immigration) which are readily found elsewhere on the World Wide Web.

If you start on the premise that Islamic terrorists are claiming (whether justified or not) that Western (read: Christian or Jewish) society's attacks on or oppression of Islam validates their actions (whatever, wherever and whenever they are), consider the following points.

First, Charlie Hebdo was satirizing the Prophet Muhammed. That is pretty clear, and it's also pretty clear that satire (or worse) of a religious figure is pretty serious. In the United States, it is constitutionally protected free speech, and it is actually a "core" constitutional right according to the Supreme Court.  But it is also undeniably offensive.

Now, I am not arguing or even suggesting that there is no right to offend others. And those of you offended 25 years ago with Andres Serrano's taxpayer-funded portrait, "Piss Christ," or all other manner of anti-Christian blasphemy, should know exactly how that feels and understand that point -- because that was what was thrown at you a quarter-century ago.

Second, it appears Charlie Hebdo was attempting to provoke. Again, this is part of American-style free speech. It is also the same intent, the same secular insult, which so many Western Christians have felt or perceived, and which has so incensed them over the past several decades. 

When you write something, knowing it offends some in the audience -- whether they deserve to be offended is a subjective value question, and it is not objective -- and when you intend to offend them, you are being very provocative. Some would call this very passive-aggressive behavior. Let's emphasis the aggressive part of this. And please consider all the ways this type of anti-social behavior already is in -- no, it dominates -- Western culture.

I compare this to going to a zoo and using the sharp end of a stick to poke the eyes of a ferocious animal. I'll bet my money and your money you would never do that, not without some pretty strong protection between you and the animal. My real end point is this: When you are acting in an unambiguously offensive and intentionally provocative manner, do you have the high moral ground?

When your opposition has been claiming -- with no basis whatsoever -- that the Judeo-Christian cultures of the West have been oppressing it, aren't you actually validating that claim by mimicking the intentionally offensive and intentionally provocative?

When some commentators in the United States use the Charlie Hebdo massacre as the pretext to issue all sorts of intentionally-offensive remarks, isn't that aggressive behavior?

(Let me stop readers here: I am not suggesting there should not be universal condemnation of the attack, only to point out that the common responses you are most likely having are the result of a carefully-designed chain of events. In other words, you're being played. Like a fiddle. Keep reading.)

If the claims of Western hostility were pure rubbish before the Charlie Hebdo massacre, the mass re-publication of cartoon depictions of the Prophet Muhammed and others can -- whether you want to admit it or not -- be used as physical evidence of that hostility.

This results in the atrocious result, that Western outrage, as justified as it may be, as understandable as it may be, is likely to take the ridiculous blood-libel Islamic-terrorist argument, and actually begin to give such evil rubbish the spectre of truth, legitimacy and moral equivalency.

In other words: Have Western cultural thought leaders just been suckered into giving the Islamic terrorists perhaps the first literal justification to claim a legitimate offense, by being baited and drawn into a rightful fury, so that their reactions and your reactions would give the attackers a basis for, finally, claiming some high moral ground?

And here's the crux of the theory: What if this attack was designed exactly to provoke the deliberately-offensive (blasphemous?) cartoons and other cultural attacks on Islam that the Islamists need to turn themselves into victims?  Furthermore, what if the terrorists deliberately chose a radical-Left publication to attack, in order to activate the Leftist side of the political activist spectrum to further demand, not free speech per se, but rather an untrammelled right to exclusivity in the public square, that is, to shout down, intimidate and otherwise squash opposition and dissent. As one United States Senator has remarked about this remarkable intolerance in the name of free speech, it is, "Free speech for me, not for thee." 

This should be unthinkable. But I think that's exactly what's happened here, and I think this -- not the twelve dead people in Paris -- was the real objective!

In other words, are all the "free press" and "free speech" expressions containing the deliberately and directly offensive cartoons just the desired result of a brilliant Islamic offensive strategy?

Maybe, just maybe, that's the real attack. 

Sayreville Football Reverses Error: Program To Return

The Sayreville, NJ high school football program will return in 2015 after a self-imposed, panicky Reign of Error which probably helped detour -- and hopefully not ruin -- the college and even professional football dreams of some otherwise perfectly innocent young men.

As I chroniced on this website months ago, the locker-room assaults resulted in several arrests but also in the township school board's decision to suspend the program for the remainder of the 2014 season. 

In short, the response revealed several flaws typical in high-profile, high-publicity investigations and crisis management approaches.

1) Accountability matters, but only when the right people are held to account. 

1A) Nothing destroys the respect for authority and the law more efficiently than punishing the innocent along with the guilty. Suspending the entire program was a CYA move -- cover your ass -- by administrators worried about their jobs and legal liability, and those concerns clearly trumped, and led to reputations of some very innocent young men getting trampled and sullied by the hysterical response. Concern is warranted about those people who act, point fingers and ruin reputations without having the facts right, often without caring whether there are any facts, and without concern for the permanent reputational damage they can cause. 

2) Trying to appear to do the right thing, is not the same thing as actually trying to do the right thing.

3) Calling something an investigation does not make it an investigation. It may be a cover-up, under the clever guise of a legitimate, official-sounding action -- which, naturally, is the best way to convince most people of average intelligence and below average emotional intelligence that there is "nothing to see here, just move along."

4) Ignore the loudmouths who demand "answers" when they really mean they want their desired result. That might be vengeance, an exoneration in public of a guilty party, or whatever. Investigations are like souffles. Pressure ruins them. 

5) Publicity and professionalism rarely go hand in hand, particularly when legal issues are involved. These crises often reveal people as the amateurs they really are. 

Eric Dixon is a New York lawyer.