Vacation, Baby stuff, Moving, Birthday Shoes, Busy

Life has gotten downright busy lately.

If you recall, we were trying to buy a house in Atlanta. Unfortunately, after a good five months of searching and one deal (that was under contract) falling through, we realized that with a baby only three months away, we were going to have to abandon buying and rent another year. So began a frantic search for a place to rent, which was surprisingly frustrating in that every good listing was already leased by the time we found it. Regardless, one tool that helped the hunt was, which has officially wowed me with being much easier and more powerful than Zillow.

After ten possibles, nine of which were already leased, we found a house in Lake Claire, Atlanta. Lake Claire is slightly east of Little Five Points and Candler Park. Our new pad is within a five minute walk to the Flying Biscuit there! It’s a sweet, walkable location, and will make a great house to tide us over through the birth of our first baby girl.

Speaking of babies, we have finally had the chance to dedicate time to finishing our registry and deciding important things like: nursery furniture and color schemes. This is hard. Way harder than it sounds. Sonal is now seven months pregnant. Our first is due in 80 days.

And regarding birthdays, my side project Vibram five fingers website,, continues to grow. Here are the last six posts:

Note the Jamaica post. Sonal and I took a week vacation to an all-inclusive resort in Jamaica (Couples San Souci). We had a blast. If you’re a Duke basketball fan, you might be interested to know that Brian Zoubek was vacationing there, as well. At an inch over seven feet tall, the guy is a giant. The world was not built for individuals that tall. From what I observed from afar, every table is a kiddie table.

And my day-job, the Implode-O-Meter, just rolled out a subdomain on MLI dedicated to FHA education (replete with an FHA blog).

All of this has been happening over the last three weeks.

Life has been busy.

Our system of human development is broken


When I read this latest from David Friedman, I couldn’t help but think of one word, “broken.” There are so many people, myself frequently included, who are wasting their lives doing things they loathe. Meanwhile, they engage in hobbies, “other worlds” where their talents and energies are spent doing things they enjoy.

What we have is a system that tries to make widgets out of human beings. When the human beings inevitably fail to enjoy their particular widget design, they resort to other activities to distract or make their corporate lives bearable. Everyone loses in this system because people are not deployed to their highest and best (and most fulfilling) use.

The system is broken.

I was reminded of this recently when someone I know in WoW as an unusually competent and charismatic leader, organizer, and player, mentioned the problem of “parental agro.” He is apparently a college student, possibly a graduate student, living with his parents. Older examples are friends in the SCA of whose abilities and energy I think highly, who made their living as school teachers or secretaries or the like—respectable jobs, but not particularly high status or high paying ones.

The pattern is not entirely surprising. It makes sense that an energetic individual who doesn’t find much outlet for his energies in his current career will direct them towards his hobbies. Adam Smith long ago observed that, in the British universities of the time, a professor got no benefit by doing a good job of teaching, since the professors were on salary rather than, as in at least some of the Scottish universities, paid by the students. He concluded that if the professor were naturally energetic, he would spend his energies doing something that might be of some benefit to him rather than doing his job, which would not. Nowadays we call it “consulting.”

The New Dad’s Survival Guide by Scott Mactavish

The New Dad’s Survival Guide by Scott Mactavish

Prompted by impending fatherhood, I picked up Scott Mactavish’s The New Dad’s Survival Guide from Amazon. At only around 130 pages, Survival Guide is a tiny book relative to the growing library of pregnancy and baby books that we are rapidly accumulating these days (What to Expect When You’re Expecting, anyone?). Survival Guide is a brief overview of what to expect out of pregnancy and early child-rearing, all laced with humor and presented in a readily digestible format for us idiot fathers-to-be. The self-deprecation is only slightly tongue-in-cheek, as I feel clueless on a daily basis.

The Guide is helpful in some regards as it is such a smattering of content, even though told in brief, that it will certainly teach you something you hadn’t already heard. This is a plus.

It’s also a fun book in that it’s light-hearted, and us new dad’s need that kind of joviality given the seriousness of pregnancy (Que the thunderclap).

One thing I didn’t care for so much about the book is that it’s so basic, with large print and plenty of clip-art pictures (Not kidding), that sometimes it just seems like “what am I reading here.” But I shouldn’t have expected too much: the subtext of the cover is “Man-to-man advice for the first-time fathers / Secrets Revealed / Codes Broken / Babies Tamed.” However, given that I bought this book online, I wasn’t able to see these bits beforehand nor did I take the time to virtually flip through the pages. Had I done either, I’m not sure I would have picked it up.

But if I hadn’t, I wouldn’t have received such “Critical Survival Tips” as:


Attend childbirth education classes with the FPP. Doing so will prevent a major freak-out when a human pops out of your FPP’s private parts, as well as preparing you for your role as a birthing coach.



Get accustomed to the breast pump prior to the birth. Examine it, even take it apart, because when it’s hooked up to your FPP and milk is shooting out like a dairy, you may lapse into shock or laugh so hard that a little pee comes out.

So all in all, it was a fun read and somewhat informative; indeed, some of the specific advice could be quite useful (like preparing for the trip to the hospital).

Afterward: If anyone has any must-read books for men on new-fatherhood, please let me know!

“Their minds close and they turn around and go back to their lives.”…art-14-the-end/

I did a site search on Seth’s blog for “fructose” (On how to do these and improve your use of Google Search) as I was curious if Roberts had seen any negative impact to using fructose in his Shangri-La Diet. I wondered this because fructose is apparently sweeter than glucose, which per the SLD theory that flavor/calorie associations spur weight gain, might imply that ingesting fructose would actually cause weight gain (I was trying to tie this all together into Stephen at WHS’s recent post about sugar). Alas, apparently sugar-water using nothing but fructose works fine on SLD. I forgot that plain sugar water is tasteless regardless of the sugar used (I don’t understand how sugar is sweet, but sugar water is not, but it’s true)

Anyway, in a roundabout way I got to reading Roberts’ interview with Taubes (Only read the last two parts out of fourteen: need to find the time to read the rest!). It was at the end of this interview that Taubes made a fascinating comment about how people in the scientific community react to his research on insulin and carbohydrates. Specifically, these otherwise intelligent and reasoning folk tend to close their minds as soon as Taubes drops the “C word:” carbohydrates. One word shuts them down as they write off Taubes’ immense research by way of invoking the “Atkins diet” or any number of other “low-carb diets” that were all the rage a few years ago.

And I couldn’t help but think how this mental shutdown is what I’ve seen countless times with any person of religion — people who otherwise may agree with any number of points you make will completely shutdown on the invocation of certain words.

This is a fantastic example of rational people utterly failing to apply reason, and it is exemplified by scientists and people of faith, alike. Indeed, the common thread here is simply dogma. Interesting.

TAUBES I think that’s true, but there’s this contrary effect that happens. I said this in my lecture. The science I’m trying to get across can be accepted up until the point at which I say the the word carbohydrate, and then people shut down, and they think “Oh, it’s that Atkins stuff again.” Their minds close and they turn around and go back to their lives. Anyway, I look forward to seeing the interview and getting your book and reading it. I enjoyed this. Again, I like nothing better than talking about this stuff.

Seth Roberts and the Shangri-La Diet

I cite Seth Roberts’ blog a great deal over at Linked Down. Seth is a Psychology Professor at Berkeley and an avid self-experimenter. I’ve learned a great deal from subscribing to his blog.

For those who don’t know, Seth Roberts created the Shangri-La Diet, which is a diet centered around reducing the association between flavor and caloric load. I haven’t read the book, so this is an approximation of how it works, but the gist is that the more correlated taste is to caloric load, the greater hunger can be, the harder it will be to cut calories, and the higher your body’s set point for weight will be. “SLD” hacks this relationship via ingesting flavorless calories within certain windows of time. These flavorless calories reduce the brain’s association of high energy density and high flavor. Interestingly enough, the macronutrient source of the calories may be unimportant: you can do SLD with oil, sugar water (so long as it is flavorless), or nose-clipping while eating protein. If you’re skeptical about this diet, I suggest taking a trip over to the SLD Forums and be prepared to see plenty of evidence that SLD works.

Even as I have not tried SLD, it is a fascinating idea and it seems that anyone who is serious about better understanding why we gain weight and what regulates hunger and adiposity must take it seriously enough to figure out how it fits into the big picture of human health. Barring that gargantuan task, it’s at a minimum another way to try and hack weight loss if your current regiment isn’t cutting it for you.

I mention all of this because I stumbled on a 2008 interview between Roberts and Gary Taubes, author of Good Calories, Bad Calories, which I’ve blogged about exhaustively. What a great thing to find that two people I admire had a thoughtful discussion and, even better, said discussion has been made available to me?

Blogging, science and the internet FTW.

Back to trying to understand how SLD fits into the grand scheme of human physiology. An interesting comment was made at the bottom of Part 13 of Roberts’ Interview of Gary Taubes:

I’ve thought a lot about how consuming tasteless food could supress hunger. My favorite theory is that it is similar to what happens when an animal is hibernating. The “magical” appearance of calories fools your body into thinking it is living off its fat and then it actually does so.

This comment reminded me of how the metabolic pathways while fasted are the same as when we consume a diet of only fat and protein. One effect of low-carb diets is appetite suppression. Could the common theme here simply be that both SLD and low-carbohydrate diets and/or fasting act to “trick” our bodies into switching to a non-hungry state?

Obviously that can’t be the entire picture because insulin is the storage hormone that is unleashed by carbohydrate consumption (though less so with fructose).

This issue is worthy of further thought.

Birthday Shoes dot com

As regular readers know, I have a pair of Vibram FiveFingers Classics (Reviewed last summer). I’ve gotten a lot of use out of my VFFs, having worn them for CrossFit, short runs, sprints, frisbee, world traveling, weight lifting, and for everyday uses like going to the grocery store or any number of other activities. Suffice to say that I think FiveFingers are a fantastic product and allow me the freedom of barefootedness.

So it was with great joy that I recently procured a pair of Five Finger KSOs via John at Kayak Shed, which I just reviewed yesterday. What’s that? You didn’t see my review? That’s because it’s not on Rather, it is on my latest project, Birthday Shoes dot com, a site dedicated to being barefoot by way of consolidating information about the closest-thing-to-barefooted-footwear-available, Vibram FiveFingers:

Let me guess your thoughts. You think I’m out of my gourd to create a site about barefootedness, specifically one to support a product that is difficult to describe, a sock/shoe/foot-glove/ninja-shoe.

You might be right.

Five Fingers are just footwear: how great could this product be? Pretty extraordinary, actually. Why? Because they empower us modern hunter-gatherers to move about the earth and do things in accordance with our evolutionary design, which is to say, locomote a concrete, polluted and often trashy world wearing virtually nothing on our “birthday shoes” (Yeah, like “birthday suit!”) but a thin piece of rubber sole.

And though it might not be obvious at first glance, this is a very big deal. FiveFingers are important because they are designed to work harmoniously with our human nature. Sure, we all could entirely ditch any form of footwear, build up callouses on our feet, and roam the earth completely barefoot (Indeed, many do), but such a pure solution is also out of reach for most of us. By comparison, just as many pursue a “primal” or “paleo” diet by cutting out grains, sugar, heavily processed foods, and other modern food inventions, we still live in a modern world and aren’t hunting and gathering in a true sense, nor should we. There are fantastic benefits of modern technology; the trick is finding ways to marry our genetic hardwiring with our modern inventions.

FiveFingers go a long way towards that goal.

Birthday Shoes is an attempt to centralize information about Five Fingers, be a hub for different VFF experiences, display humans being human, barefooted or in their birthday shoes, and ultimately act as a sort of gateway-idea*, that can open the eyes of otherwise domesticated, corporate-dwelling, debt-servicing, and generally depressed people to a freer world, one more harmonious with our human nature.

In short, maybe I’m not that crazy after all, or at least, there is a method behind my madness. Check it out:

birthday shoes dot com

Recent posts at

* I’ve also called it a “trojan horse idea.” I can’t decide which way to describe VFFs is catchier. “Trojan horse” is kinda fun because the VFF is literally not unlike a mask or cover-up for our feet, hiding the reality of what is really going on. “Gateway idea” is nice because it uses the “gateway drug” definition — VFFs serve as a gateway or catalyst towards higher understanding about other things. Ah maybe I should just use both.

Acheiving the HGH Flush in a Workout


Rusty over at Fitness Black Book talks about how to know when you’ve reached a point where your workout intensity will have the lingering metabolism-boosting effect. The test is what he calls the “HGH Flush,” which is basically that point where you lose your breath and your skin is warm to the touch.

This is interesting to me for a couple of reasons. One, I think I’ve unwittingly been measuring my personal workout success by whether or not I reached this HGH flush state. I just hadn’t quite articulated it. Two, a part of this that Rusty mentions is not to do too much. It’s here that I think back to my CrossFit experience last summer, in which I put on muscle and lost some fat, as well. Any CrossFitter knows that the workouts typically result in an HGH Flush by design and also are completed in less then 30 minutes. In other words, they are very intense but also brief.

Comparatively, when I was making a concerted effort at additional fat loss earlier this year, I’d occassionally reach the HGH Flush, but overall, I just did more workout volume. Perhaps this is why I didn’t see noticeable results despite an ample amount of effort (in both IF, diet, and exercise).

How to Tell If Your Fat Loss Workout is the Correct Intensity?

I look for a thing called the “HGH Flush”. I forget who coined this term, but this is just an indicator of a good fat loss workout. If your skin is slightly red and hot to the touch and you are out of breath after your workout, then you have achieved the HGH flush. Remember your PE teacher in Junior High making you “run lines” or pushing you until you were out of breath and your skin felt like it was on fire? This is the HGH flush which is an indicator that your metabolism will be increased after your workout and that your body will release a bit more HGH than normal (your body’s fat burning hormone).

Learn by Doing, Then by Thinking

Danger: Hubris
Creative Commons License photo credit: toolmantim

Seth Roberts talks about his graduate school days and how he got into self-experimentation by way of the axiom that, “The best way to learn is to do:”

And then I was in the library and I came across an article about teaching mathematics and the article began, “The best way to learn is to do.” And I thought “Huh well that makes a lot of sense.” And I realized you know that it was a funny thing that that’s what I wasn’t doing: I was thinking. And I also thought to myself well I want to learn how to do experiments. And if the best way to learn is to do then I should just do as many experiments as possible as opposed to trying to think of which ones to do. And that was really a vast breakthrough in my graduate training and everything changed after that.

Quoted from a 10 minute presentation by Seth Roberts

Roberts’ goes on to apply these ideas to graduate students and professors, when he notes, “Grad students … worry too much about what to do. Professors often … do something more complex than necessary.”

This is a simple, but enormously important idea: we learn more by doing first than by thinking first. The idea lies at the foundation of empiricism. Despite its simple power, it seems that across all aspects of life, we show a clear preference for thinking over doing. Why?

One reason may be that we overestimate our ability to “figure things out” by thought alone—generally, this is hubris. Another reason for this preference for thinking is poor assumptions. For the novice, the presumption is that less experience, or fewer trials under your belt, must be supplanted with more reasoning and thought. Alternatively for the expert, the problem is reliance on accumulated experience to create a basis for reliable reasoning and thought.

Regardless of the “Why?,” thinking before doing causes problems. Specifically:

  • Thinking results in unnecessary complexity, which obfuscates our ability to interpret results,
  • Thinking sets expectations, biasing analysis towards certain results, and
  • Thinking is time-intensive, reducing resources that could be used doing.

These problems hinder our ability to learn—not just in scientific experiments, but in virtually every aspect of our lives. Here are just a few examples where I’ve seen the problem manifested:

  • Our education system is founded on thinking over doing. School boards think through what subjects students should learn. Even when choice is introduced such as in college, there are enormous costs to trying a lot of disparate subjects. Not surprisingly, students get locked into fields of study only to learn when it’s too expensive to do anything about it that they don’t particularly enjoy their chosen major. Conversely, look at blogging, which seems to result in a great deal of knowledge gathering, but is driven heavily by random curiosity.
  • More on blogging. Perhaps the triumph of blogging lies in the thoughtlessness of it. Sure, you put plenty of thought into a blog post as you are writing it, but unlike writing a book, the blog post is so much cheaper that you end up having many more iterations and much less “thinking” behind each individual post. Contrast blogging to the editorial thinking that is put into mainstream journalism. This thinking results in a lot of censorship — not in the classic “You can’t use that word” sense, but in the “I think your idea should be altered in X, Y, Z ways.” The result? More complex ideas. Fewer ideas. Bad ideas. (Added 4/17/09)
  • The same problem is seen with career choices. We think our way into a certain career versus learning what works and what doesn’t work by simply trying out different types of work. We try to think our way into figuring out our passions. It just doesn’t work.
  • Or apply the idea to William Glasser’s Control Theory. Glasser argues that it is difficult to impossible to change what we think or feel about something that happens to us. Thus, our best course of action is to simply do something.
  • Or consider another book: Daniel Gilbert’s Stumbling on Happiness. Gilbert makes the point that, “We insist on steering our [lives] because we think we have a pretty good idea of where we should go, but the truth is that much of tour steering is in vain … because the future is fundamentally different than it appears through the prospectiscope.” Thinking through what we want is something we all do, yet it rarely is effective at leading to happiness. How often do we finally get what we want only to realize that the experience is not what we expected? This is a failure of thought.
  • Nassim Taleb harps on overreliance on thinking all the time. The Black Swan is essentially a book about hubris and the misguided belief that we can think through everything. As another example, Taleb doesn’t read the news because it formalizes thought, effectively handicapping our cognitive function by creating bias. In Nassim Taleb’s recent interview on EconTalk, he talks about “tinkering,” which is more or less just trying different stuff out and seeing what works, as a means to learn.
  • Or look at thinking over doing as it pertains to governments and political debate. Was there ever such an embodiment of preference for thinking over doing? Every government generally and every government program specifically is a thought-out experiment tested on a massive scale. Should it come as a surprise that governments and government programs are so dysfunctional? Observe how political philosophers consistently prefer thought to action, a la Folk Activism, dismissing attempts at trial and error or ignoring the importance of seeking new frontiers for experimentation, while arguing, “We’ve yet to see pure [ socialism | capitalism ]; therefore, you can’t say it wouldn’t work!”
  • I haven’t read Arnold Kling’s Selfish Reasons to Have More Kids (Preface), but that’s at least partially because it hasn’t been published yet! In thinking about the question of children, two thoughts come to mind in relation to the doing/thinking problem (And both relate to Kling’s review of a study about how “Almost no one regrets having kids“:
    • Couples who choose not to have kids have overthought the problem and will almost certainly regret their decision not to have kids.
    • Parents who think they should only have two kids (for example) will likely end up wishing they had had more—it seems parents tend to think they should have more kids than they end up having!

    Having kids isn’t like waking up and making an omelette, so I realize that this one fits into the doing-vs-thinking paradigm a bit loosely, but nonetheless, it’s just another example of how thinking fails. (Added 4/17/09)

  • Life is the result of trial and error performed on a massive scale and is ongoing. As complex as a DNA molecule may be, the individual building blocks are simple. So here’s an example of doing (DNA replication) and simplicity leading to unfathomable complexity—life. Evolution is the triumph of doing and is clearly a thoughtless process. (Added 4/17/09)

As Seth Roberts realized in his graduate days, “I should just do as many experiments as possible as opposed to trying to think of which ones to do.” But why does doing first work better than thinking first? Perhaps it is because doing is fundamentally an iterative process: doing is trial. The idea of trial and error as a method of learning means making mistakes and learning from them. Making mistakes and figuring out what doesn’t work can also be desirable as evidence of absence. I further wonder if it is the sheer number of trials that spur the creation of knowledge. Could it be that the more experiments/trials/iterations, the greater the chance of winning the lottery and learning something truly worthwhile? Maybe so.

I can’t help but conclude that, regardless of the reasons, thinking should almost always be put on hold in favor of action. Stop thinking and start doing. Follow whims, opportunities, gut instincts, and curiosities. Observe as much as possible. Expect failure and realize that it is through innumerable failed attempts that one can stumble on success.

Nassim Taleb is no friend of academics

Nassim Nicholas Taleb’s latest from Opacity, no 114 titled “Where is the evidence?” launches into Nassim’s current interest in how we know things given the lack of evidence (That is probably summed up poorly, but it is a focus on the absence of evidence/evidence of absence problem and humanity’s gross ignorance. Taleb mentions the concept in the hour long podcast at EconTalk if you’ve got the time to listen to it).

Taleb’s admonition of academia is brutal — he basically says Ben Bernanke and Larry Summers are “arrogant, formal-thinking civil servants, and Ivy-league semi-retards.” Don’t pull any punches there Nassim!

I’m still not convinced the admonition about negative advice is exactly right, but why quibble? (See prior discussion on Nassim Taleb and Expert Advice)

Finally, I’ve ordered two books by John Gray, who Taleb cites as the “greatest living thinker.” And to think I hadn’t even heard of the guy.

Note: If you are like me, and wants to be updated on Taleb’s latest posts to his non-feed-friendly blog, feel free to use this change detection RSS feed I created: Taleb’s Opacity Change Detector Feed.

I leave aside the confusion absence of evidence/evidence of absence–and the misunderstanding of the very notion of “empiricism”. It is a fact that in the real world of our daily decision-making 1) we do not have much evidence of most relevant things, yet we need to take action; 2) in most situations, “true/false” is never symmetric (one side is more harmful than the other), so the burden of evidence is one-sided. Which is why once these fakes “doing science” lose their tenures after the endowments (and charity) run out of funds, they will be barely fit to do anything in the real-life ecology. I wonder what you can do with an unemployed, say, academic orthodox economist. You could do better with non-post-academic cab drivers. Clearly those the most fit at dealing with “just evidence” will be idiot savants outside their evidence domain.

And I can expect that with the SP500 about 20% lower than here, you will see tenures unexpectedly evaporating. The silver-lining of the crisis, perhaps, with the de-academification of society.

So let me take this into more interesting territory, and express my anti-social-planner views. Even more that in Hayek’s days, the ecology of the real world is becoming too complex for Aristotelian logic: very, very little of what we do can be safely formalized, meaning asymmetries matter more than ever. Which puts the Western World today at the most dangerous point in its history: unless we get the Bernanke-Summers crowd out of there, it will eventually be destroyed by the machinery of arrogant, formal-thinking civil servants, and Ivy-league semi-retards.

Finally, beyond the current mess, I see no way out of this ecological problem, except through that tacit, unexplainable, seasoned, thoughtful, and aged thing crystalized by traditions & religions –we can’t live without charts and we need to rely on the ones we’ve used for millennia.

Citizen Media Law Project covers IEHI’s New Hampshire Case


Many of you may not be aware of this, but my company IEHI, Inc. (I.e. the Mortgage Lender Implode-O-Meter) is involved in two lawsuits. Both are absurd in their own right and work to stifle whistleblowing activities. Both have cost our company a great deal of time and money to defend (And the lawsuits are ongoing).

I won’t go into the details of these cases here, but if you want to know more:

Our primary website is a thorn in the side for many because it takes a sardonic view of the imploding mortgage industry. Ever since the site was founded, way back before most of us had even heard of “subprime,” ML-Implode has broken big news that has made CEOs cringe, often alerting employees to their own company’s impending demise before their managers had bellied up and let the cat out of the bag (a.k.a. “I’m sorry, but we’re all out of a job.”). As distasteful as this function may be to some, we side on getting quality information out as soon as possible so that people can make informed decisions. Sometimes that pisses people off. We do not do it lightly.

As it is, the financial implosion genie has long since escaped the bottle. It’s common knowledge that the world is in a recessioin/depression/stagflation/OMG!WTF!/YGTBFKM! situation, so the fact that a start-up financial news site is getting hammered on by lawsuits has been largely ignored. Fortunately, with the recent Goldman Sachs suing of blogger Mike Morgan and articles like the one from Citizen Media Law Project (excerpted below – read it in full!), there may be a glimmer of hope.

I’m posting all of these thoughts on my personal blog to spread the word that just as we are being sued for not shutting up, your free speech is being attacked. Financial considerations aside, simply being aware of these attacks is important to you. The Internet has made way for little guys to be heard; unfortunately, little guys are still squashed by the big companies who have thousands of dollars to throw at legal fees all in an effort to stifle criticism. First amendment rights are fantastic in theory, but if the rubber doesn’t meet the road in cases like ours, anyone who posts material on the internet (And with Facebook, Twitter, millions of forums and blogs, who doesn’t?) is susceptible to losing everything they’ve worked for to frivolous lawsuits funded by deep pockets (The very deep pockets used to lobby the government for bailout funds or new legal loopholes to exploit).

So take note, and spread the word. Thanks. And here’s The Citizen Media Law Project’s take on our New Hampshire case (which we are appealing):

A reader recently tipped us off to a troubling ruling from a trial court in New Hampshire: The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 08-E-0572 (N.H. Super. Ct. Mar. 11, 2009). In the decision, Justice McHugh of the Superior Court for Rockingham County ordered the publishers of the popular mortgage industry watchdog site, The Mortgage Lender Implode-O-Meter (“ML-Implode”), to turn over the identity of an anonymous source who provided ML-Implode with a copy of a financial document prepared by The Mortgage Specialists, Inc. for submission to the New Hampshire Banking Department. The court also ordered ML-Implode to reveal the identity of an anonymous commenter who allegedly posted defamatory statements about the company and enjoined the website from re-posting the financial document or the allegedly defamatory comments. …

Justice McHugh’s March ruling granted all of the requested relief. He issued an order: (1) prohibiting ML-Implode and its agents from “displaying, posting, publishing, distributing, linking to, [or disseminating] copies and/or images of [the] 2007 Loan Chart and any information or data contained therein”; (2) requiring ML-Implode to “disclose the identity of the individual and/or entity that provided it with the 2007 Loan Chart”; (3) requiring ML-Implode to produce all other documents concerning MSI that ML-Implode received from the source of the 2007 Loan Chart; (4) prohibiting ML-Implode from re-posting the “Brianbattersby” statements; and (5) requiring ML-Implode to disclose the identity of “Brianbattersby.”

Justice McHugh’s decision is troubling on so many levels that it is hard to even list them all, but I will start with its blasé attitude towards the whole matter. The court issued no detailed findings of fact or conclusions of law before issuing the injunction, held no evidentiary hearing (apparently the parties agreed to this), and failed to even specify what cause of action supported its decision to enjoin publication of the 2007 Loan Chart. This latter point is by no means clear, because N.H. Rev. Stat. Ann. § 383:10-b looks like it creates no private right of action against non-government parties like ML-Implode. The court apparently regarded all this formality as unnecessary because MSI sought only injunctive relief not damages, but this is obviously incorrect.

But wait, it gets worse. In its filings with the court, ML-Implode argued extensively that the requested relief constituted an unconstitutional prior restraint on speech, sought information protected by New Hampshire’s qualified reporter’s privilege, and impinged on its users’ First Amendment rights to speak anonymously. The court brushed aside all of these arguments without anything I would characterize as legal analysis. Justice McHugh did not even address whether the New Hampshire reporter’s privilege, which was recognized by the New Hampshire Supreme Court in Opinion of the Justices, 373 A.2d 644 (N.H. 1977), applies to online journalism sites like ML-Implode, and, if so, whether MSI had made the showing needed to overcome the privilege. …

With respect to the allegedly defamatory forum comments, Justice McHugh failed to make any specific findings of fact regarding actual malice, falsity, or reputational harm, so it is hard to accept his ruling as a “final adjudication on the merits” that would justify injunctive relief. Moreover, the court failed to explain why MSI could circumvent the hoary principle that “equity will not enjoin a libel” simply by not asking for damages, and why section 230 of the Communications Decency Act did not block MSI’s claims for injunctive relief with respect to user-submitted content (not an uncontroversial proposition).

Justice McHugh’s opinion is also oblivious to the U.S. Supreme Court’s decision in Bartnicki v. Vopper, 532 U.S. 514 (2001), which casts serious doubt on the constitutionality of punishing the dissemination of truthful material relevant to a matter of public concern when the publisher (as opposed to the source) obtained the information in a lawful manner. True, Bartnicki addressed the constitutionality of imposing money damages for the publication of truthful speech, but enjoining truthful speech seems equally inconsistent with protecting our “‘profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.'” 532 U.S. at 534 (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964)).

Instead of tackling all these difficult legal issues, Justice McHugh’s decision focuses its attention elsewhere. Throughout, it appears motivated by a conviction that MSI is not asking for anything unreasonable and that ML-Implode is not being very nice:

Then when [ML-Implode] was asked to disclose the identity of persons or entities that had provided it with unauthorized information and potentially defamatory information [ML-Implode] refused outright. One would have hoped that when a legitimate publisher of information was notified of the fact that certain unauthorized information was given to it which was then published, presumably in good faith, the publisher would, in order to maintain the integrity of its publication, willingly provide the wronged party with the information requested. Instead, [ML-Implode] exhibited a knee-jerk reaction.

This is not a view shared by publishers (big, small, offline, online) or by the law. Counsel for ML-Implode intends to appeal the judgment to the New Hampshire Supreme Court, and there is good reason to believe that the state’s high court will reverse. For now, the decision stands as an excellent example of why we need strong procedural safeguards for courts to follow when deciding whether or not to compel the identification of anonymous speakers, why shield laws that constrain judicial discretion are important, and why constitutional doctrine should limit judicial power to grant prior restraints to such a vanishingly small category of cases.

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