Category: Media

The Facts, Although Interesting, Are Irrelevant

When I wrote about the American Academy of Pediatrics’ revised policy statement on ritual genital cutting of female minors, I sensed some misunderstanding of what the policy says. Then the story hit the New York Times, among many outlets covering it, confirming what I suspected.

In a controversial change to a longstanding policy concerning the practice of female circumcision in some African and Asian cultures, the American Academy of Pediatrics is suggesting that American doctors be given permission to perform a ceremonial pinprick or “nick” on girls from these cultures if it would keep their families from sending them overseas for the full circumcision.

Saying that the AAP now supports female genital cutting grabs attention, but it’s not an accurate summary of the policy statement. The AAP’s conclusion:

The American Academy of Pediatrics:

  1. Opposes all forms of FGC that pose risks of physical or psychological harm.
  2. Encourages its members to become informed about FGC and its complications and to be able to recognize physical signs of FGC.
  3. Recommends that its members actively seek to dissuade families from carrying out harmful forms of FGC.
  4. Recommends that its members provide patients and their parents with compassionate education about the physical harms and psychological risks of FGC while remaining sensitive to the cultural and religious reasons that motivate parents to seek this procedure for their daughters.

I stand by my original interpretation that the AAP left itself room to appeal to both sides of the argument. It brought up a ritual ‘nick’ for ceremonial blood, but avoided anything more declarative than hinting that it should be discussed. But it did not endorse female genital mutilation, unless one defines genital mutilation as any blade-to-genitals. (If that’s your definition, I agree from my rights-based perspective, but the same applies to male genital cutting.) If the goal is to reduce and eliminate harm to children, it’s stupid to suggest that we factor anything other than harm from non-therapeutic genital cutting and sexist to suggest the victim’s gender matters, somehow.

So, to be clear, I don’t have much respect for the AAP, for multiple reasons. It’s revised statement is cowardly. And I’m angry that the story has careened in a manner that requires me to defend an organization unable to reject non-therapeutic male circumcision, a practice it admits¹ is harmful. But here, with this statement, the AAP did not recommend that doctors perform female genital mutilation, nor did it initiate discussion of anything other than the least harmful forms of Type IV as a substitute for Types I, II, and III in a context where some form of genital cutting is likely.

To its credit the New York Times called the AAP:

A member of the academy’s bioethics committee, Dr. Lainie Friedman Ross, associate director of the MacLean Center for Clinical Medical Ethics at the University of Chicago, said the panel’s intent was to issue a “statement on safety in a culturally sensitive context.”

Dr. Friedman Ross said that the committee members “oppose all types of female genital cutting that impose risks or physical or psychological harm,” and consider the ritual nick “a last resort,” but that the nick is “supposed to be as benign as getting a girl’s ears pierced. It’s taking a pin and creating a drop of blood.”

I don’t accept that ear piercing is benign, but for the purposes here, Dr. Friedman Ross shows that the AAP did not say what many now hysterically claim it said. The now-accepted misunderstanding of its revision is unfortunate because there’s a relevant, necessary path for the discussion to take now that it’s opened:

Dr. Friedman Ross said, “If you medicalize it and say it’s permissible, is there a possibility that some people will misunderstand it and go beyond a nick? Yes.”

But she said the risk that people denied the ceremonial procedure, usually on the clitoris, would opt for the more harmful one was much more dangerous.

I’d like to see research to back that claim, but for some (probably significant) percentage, I have no doubt she’s correct. Unfortunately, the hysteria now present in the debate involves people who either have not read the revised policy statement or have poor reading comprehension skills, so we can’t approach that topic. (Remember, too, that I wrote that I favor of zero tolerance on this if you wish to accuse me of anything for pursuing the discussion.)

Instead, we’re left with people preening about an existing, incomplete (or inaccurate) narrative. The sentiment seems to be a determination to show that one cares about the issue in the correct way rather than figuring out how to minimize harm to children. I’m not saying that people who exhibit the former are uninterested in the latter, but they’re inadvertently working against the legitimate goal.

Post Script: I’d planned to include examples from other sources. Since they generally raise issues that are tangential to my objective in this post, I will address them separately.

¹ The AAP exhibits its cowardice by admitting this indirectly. It engaged in obvious moral relativism as it acknowledged that male circumcision is more harmful than what it proposed we discuss and that causing harm violates the physician’s “principle of nonmaleficence.” But the proper conclusion that non-therapeutic male circumcision is harmful and should therefore be prohibited on male minors is unavoidable from the bioethics committee’s statement on female genital cutting.

On Ross Douthat Joining the New York Times

The Atlantic’s Ross Douthat is the new conservative columnist for The New York Times. I haven’t read enough of his work to suggest that this is unwarranted. And he is, in fact, a talented writer. It’s just that I’ve been unimpressed with his thinking whenever I’ve encountered it. He shows very little interest in liberty or constructing a government that respects the interests of those with whom he disagrees.

In this entry from early last year, I criticized Mr. Douthat’s thinking on two topics, prostitution and infant circumcision. His position in both cases was objectively weak, at best. I’ll leave you to follow the link for my challenge to his views on prostitution. Here, I’d like to repost what I wrote in response to his tongue-in-cheek-yet-mind-numbingly-stupid view on infant circumcision.

**********

Of course, since it’s apparently okay to ask questions unrelated to the topic, let me ask a question: Why is it automatically self-harm worthy of prohibition for an individual to sell sex, even when it’s voluntarily sold, yet it’s reasonable to permit parents to surgically alter the genitals of their healthy sons – who may or may not approve of such permanent, physical alteration – as Mr. Douthat suggested last year in defense of infant circumcision?

The answer to how one person can hold two incongruent opinions rather obviously rests in a willingness to use personal, subjective tastes and preferences to inform the legal code of a diverse, secular, civil society. It’s the same central planner impulse that resides in every individual who seeks to dictate which freedoms are abhorrent.

Since I’m off on the tangent, in that entry, Mr. Douthat states:

Proponents, like myself, point out that even saying the word smegma is really disgusting. Again, I think we pretty much win the debate right there, without even getting into the whole HIV question.

I get the tongue-in-cheek nature of the comment, whether he meant it or not. I think he did because I think he views circumcision as inconsequential. (Remember subjective tastes and preferences?) But any understanding of human biology demonstrates the stupidity of such an argument. Female genitals produce smegma, as well. We do not cut female minors for that reason. Or, more to the point, we do not permit parents to cut their daughters just because they, the parents, are disgusted by the mere mention of the word. We manage to find the correct reasoning to prohibit that. But for males, parents can use only the mere mention of smegma as an excuse to cut. Or they can reject even that reason and order it because it’s fun to check “yes” on the consent form. The law is based on our conditioned beliefs rather than facts.

**********

This wasn’t in my original response, but it warrants a comment in light of the weight Mr. Douthat’s opinions will now receive because he is a columnist for The New York Times. From his entry on circumcision (emphasis in original):

… I believe I have the weight of the American experience on my side when I say that any such dampening [of sexual pleasure] would have to be extremely negligible.

He proves that he can’t possibly know this from experience with his next sentence:

All of which is to say that I’m gratified that my parents took it upon themselves to have a procedure performed on my infant self …

Without any sexual experience with his foreskin, he knows it’s “extremely negligible”. How? “I have experience with one side of the debate, so I am an expert on both sides of the debate” is not a sign of a great thinker. It is a sign of a mind interested in selecting the necessary facts to reach a desired, self-centered conclusion. I’m unimpressed.

At least the stock is up today.

The latest news in the proposed Sirius-XM merger is too similar to recent demands to be anything other than caving to someone’s rent-seeking, so only a quick summary is necessary:

FCC commissioner Jonathan Adelstein, a Democrat, wants the companies to cap prices for six years and make one-quarter of their satellite capacity available for public interest and minority programming, among other conditions.

If the companies agree, Adelstein told the AP that he will support the deal.

Let’s ignore the death reality the merged company would face if it agrees to cap prices for six years and the government continues to contribute mightily to inflation. Why bother with concerns that expenses for the company could increase substantially in six years? Forget¹ that. And let’s also ignore how the influence is being peddled here to benefit Adelstein. It’s offensive, but I do not care more now than my already high libertarian frustration with our unnecessary, unwise regulatory scheme. Hopefully his vote won’t be necessary because two commissioners have already announced support, with a third, Deborah Taylor Tate, expected to support the merger. (She, like the commissioners who’ve decided to vote “Yes”, is a Republican.) Instead, I’m more cynically amused by Adelstein’s concern:

“It’s critical that if we’re going to allow a monopoly, that we put in adequate consumer protections and make sure they’re enforced,” Adelstein said.

The government dictated the existing market when it determined exactly two companies would offer satellite radio services. It is irrational to now complain about unacceptable market conditions. If we humor Adelstein’s fears, a duopoly is hardly better than a monopoly, yet years of experience have shown that satellite radio is not able to price itself as it pleases, or offer limited entertainment choices as a cost-saving measure. Customers began flocking to Sirius when Howard Stern joined the company. I suspect they will flee when he retires. The range of entertainment choices is too large. The executives of Sirius and XM know this, so they seek to stay competitive with a merger. The members of Congress and the FCC are the only people under the delusion that the merged company will gain monopoly power.

Adelstein has an interesting, if unsurprising, solution:

Adelstein also wants to set up an enforcement regime to make sure the companies adhere to the conditions, something that was not outlined in the previous voluntary offer.

So it’s not okay for a merged Sirius-XM to have (the perception of) monopoly power, but it’s necessary for a new regime to have monopoly power to enforce the FCC’s limitations. A government enforcement regime would be benevolent in ways that Sirius-XM would be inherently incapable of acting. Obviously. Would a central planner mislead you?

When the companies announced their proposed merger in February 2007, I’d hoped they could complete the merger in time for me to receive part of the 2008 baseball season on Sirius. I’m now doubting I’ll experience any of the 2009 season on Sirius. I will not thank the FCC for its awful effort at looking after my interests as a consumer.

¹ <cynicism>Obama won’t let that happen!</cynicism>

There is no do-over in surgery.

I’m still catching up on some of the circumcision-related news items form the last few weeks. Sometimes, I step away from the topic for short periods to recharge my tolerance for the inevitable frustration that arises when considering the various ways the rights of the circumcised are ignored, and the manner in which every breathless proclamation seems to instill even more determination that every male will just love being surgically altered shortly after birth. Stepping away eliminates reduces the number of verbal tirades I feel compelled to unleash. I always come back, though.

This story, forwarded to me by a loyal reader who forwards me useful material that I too often fail to translate into entries, is worth mentioning. Now that I’m looking, I can find a few references to it, but most media seems to have ignored it. Probably because it directly challenges the cheerleading for infant circumcision in the recent past. Anyway, the gist:

A quarter of a century after the outbreak of Aids, the World Health Organisation (WHO) has accepted that the threat of a global heterosexual pandemic has disappeared.

In the first official admission that the universal prevention strategy promoted by the major Aids organisations may have been misdirected, Kevin de Cock, the head of the WHO’s department of HIV/Aids said there will be no generalised epidemic of Aids in the heterosexual population outside Africa.

This is the appropriate point to remind everyone – the unethical scientists at WHO specifically – that the recent research we’ve been bombarded with repeatedly for the last two years suggests that voluntary, adult male circumcision reduces the risk of HIV transmission from female-to-male through heterosexual intercourse. Those infants who’ve been circumcised in the mad rush to embrace fear unsupported by at least the anecdotal evidence any mildly observant individual in a Western society could pick up? Ooops. But, hey, women will dig it, so there’s that.

In case you think this might cause the media to apply any critical thinking to the way they’ve reported on circumcision, fret not, they’re fully prepared to let you down if you get optimistic. In the same article, this:

Critics of the global Aids strategy complain that vast sums are being spent educating people about the disease who are not at risk, when a far bigger impact could be achieved by targeting high-risk groups and focusing on interventions known to work, such as circumcision, which cuts the risk of infection by 60 per cent, and reducing the number of sexual partners.

Interventions known to work. Process that for a moment. It’s known to work¹ at reducing the risk of HIV transmission from female-to-male through heterosexual intercourse! Isn’t the point of this story to report on the possible exaggeration of an epidemic among heterosexuals? I can imagine the editorial review of this article. “Everyone, shake your pom poms with me. Give me a “C”! Give me an “I”! Give me an “R”! Give me a “C”!

I won’t put it in print, but I’m swearing right now.

¹ There is room to debate this, primarily on methodology. Another time, perhaps.

Ignore the government mandate that created a duopoly. Scream MONOPOLY!

I haven’t posted on Monday’s long-anticipated decision from the Justice Department on the proposed Sirius-XM merger because I didn’t have much to add to the announcement. (It’s also not the final hurdle, so over-analysis, to say nothing of celebration, would be premature.) But Steven Pearlstein’s column is worth dissecting.

The latest example of a government bailout of a troubled industry has nothing to do with Bear Stearns. It is, instead, the Justice Department’s decision to give the green light to the merger of the satellite radio companies XM and Sirius.

It’s already clear that his position will be staked on rhetoric rather than principles. While it’s good to know that from the beginning, it’s bad economics. The goal of Pearlstein’s idea of competition is not to discover winners and losers other winners, but to pick the correct winners and losers. As he makes clear, that means consumers must win and businesses must lose.

For the past several years, these two companies have been competing so hard for talent, distribution channels and customers that neither has been able to turn a profit, and probably wouldn’t have for years. Consumers have been the big winners, with great programming at affordable prices.

Any cursory look at financial results demonstrates that consumers aren’t winning in a vacuum. At least with respect to Sirius, its cash flow is improving. This matters to a growing company more than bottom-line profitability. But why should we expect such an acknowledgment from a business columnist?

All that is about to change now that the Bush administration has concluded that we’ll all be better off if these heretofore fierce rivals are allowed to stop competing and concentrate instead on reducing costs, paring down their combined offerings and finally delivering profit to their shareholders.

This reveals the problem in Pearlstein’s analysis. In setting up the satellite auction that led to the creation of Sirius and XM, the government decided that exactly two competitors was the best approach. It depended on an assumption that two could compete effectively. It ruled out the possibility for a third (or fourth or fifth or …) to compete, possibly encouraging a different development of the market. It ignored the idea that human involvement might take it in a different direction than the ideal world envisioned by the sages at the FCC. And now that reality has messed with the centralized planning, the only response is to knew what it was doing, facts be damned. That’s not convincing.

More importantly, what new innovations in the business will arrive if the combined companies don’t need to waste resources on two ’80s channels, two popular country channels, or two channels carrying C-Span? I trust competition with other competing forms of entertainment to drive the outcome because I don’t pretend to know what is best.

Pearlstein disagrees, going so far as to analogize a combined Sirius-XM to a combined Coke-Pepsi. Yet, I don’t drink either, so I’m fairly certain humans don’t need them to live. Perhaps the availability of alternatives to non-necessities puts pressure on those evil, profit-maximizing corporations. Instead, Pearlstein deems it reasonable to argue that consumers should have ideal conditions for any and all requests. Anything that helps the corporation must, by definition, harm the consumer. It must be regulated, if not stopped.

He uses interesting logic to get there:

… You would particularly want … vigilance in the case of a government-sanctioned duopoly, which is how the Federal Communications Commission viewed XM and Sirius when it granted only two licenses for satellite radio.

This irrational faith in the wisdom of government planning is matched only by his absurdity in arguing that Sirius and XM might develop substitutes for each other if forced to compete.

It makes no allowance for the possibility that, if you force the two companies to compete, XM might come up with a morning host who is funnier and more outrageous than Howard Stern. Or Sirius, lacking a Major League Baseball offering, might take a chance on World Cup soccer or college lacrosse and tap into a whole new audience that nobody knew existed. The prospects for that kind of innovation will be greatly reduced after XM and Sirius merge and the combined company focuses on protecting its existing hit channels rather than creating new ones to displace them.

As if college lacrosse will compete with Major League Baseball. Pearlstein looks at the possibilities (allegedly) eliminated from a merger while ignoring the tangible benefits customers already receive. He also dismisses the notion that the possibility that customers will leave if the channel lineup bores them won’t be an incentive to innovate. He ignores that “free” radio is already following the exact path he fears satellite radio will take and ignores the innovations that satellite radio has given and can continue to give as a combined company. (Uncensored Howard Stern counts as an improvement, as does national access to sports broadcasts.) But why worry about details when this story can just be twisted into another screed concluding that the Bush Administration wants to screw the proletariat at every opportunity?

The FCC should immediately match the Department of Justice’s decision and let the merger proceed.

(Disclosure: I’m a Sirius shareholder and customer. I’ve been an XM shareholder and customer in the past. I also desperately want XM’s Major League Baseball with Sirius’ Howard Stern. Economics and free market competition are still the reasons I support the merger.)

Poorly¹ chosen words assist big government.

Congress is always looking out for us:

The Senate yesterday approved the most far-reaching changes to the nation’s product safety system in a generation, responding to recalls of millions of lead-laced toys that rattled consumers last year.

Lawmakers still have to resolve key differences between the Senate bill and a similar measure that passed the House in December. While the Senate version is considered by consumer advocates to be tougher, both contain provisions that would require retailers and manufacturers to be more vigilant about product safety.

The biggest change is likely to be a better-staffed Consumer Product Safety Commission, with more enforcement power. Both bills would boost funding for the agency, which had a budget of $63 million in fiscal 2007 and just less than 400 employees, fewer than half the number it had in 1980. The Senate bill, which passed by a vote of 79 to 13, would increase the budget to $106 million by 2011. The House’s version would increase it to $100 million.

This strikes me as more of the same in Washington. Government sets the rules. The rules fail. The government blames the failure on the market and insufficient government size. It’s self-fulfilling and people fall for it. Beyond that, I don’t have much to say on the specifics.

Rather, I want to focus on how we get to these situations. Consider the Washington Post’s headline of the article discussing this legislation:

Senate Votes For Safer Products

I know headlines need a hook in a small space. That doesn’t matter. This is pathetic. This is how government programs begin and perpetuate and grow. Who could possibly argue against this bill to those who will make up their mind on this superficial information? I might as well argue for the routine kicking of puppies.

When discussing policy solutions, we need to identify the narrow problem(s) we wish to address because the law of unintended consequences loves broad solutions. Instead of the title offered, the Post should’ve used something like this:

Senate Votes for Further Product Safety Regulation

That’s still unacceptably imperfect. I’m not a professional. But at least it’s closer to the truth than the simpleton’s solution the Post offered.

¹ I’m assuming the words are chosen poorly. That’s an assumption. I leave wide-open the possibility that such words are chosen deliberately for their propensity to encourage bigger government. Hence the propaganda tag on this entry.

Lazy Journalism: Or, words have meanings.

I had this article open in my browser from earlier this morning. I should’ve taken a snapshot before refreshing. One error is gone, but the same error still exists. The title of the article is “Economy Slows to Near Crawl”.

The economy skidded to a near halt in the final quarter of last year, clobbered by dual slumps in housing and credit that caused people and businesses to spend and invest more sparingly.

I don’t recall having trouble buying luxury items in the last quarter of 2007. I definitely don’t recall having trouble buying necessities in the same time period. Has the economy really skidded to a near “halt”, meaning that it has skidded to a near stop?

I don’t think the new headline, replacing halt with crawl, is much better. Surely there’s a better word for the apparent lack of expansion, given that we’re not quite at breadline status. Semantically, I’d choose stagnant, but that might have some Americans who weren’t six when the ’70s ended concerned. Not that it doesn’t concern me, but I recognize it from the intellectual, not the experiential.

Or the AP could’ve taken the easy way, reporting “Economic Growth Slows to Near Halt,” or some other such evaluation of the facts.

We can’t question because it’s for the children.

Speaking about the need for critical thinking in media, here’s another scare story [emphasis mine]:

At least 82 children have died in recent years as a result of playing the “choking” game, a bizarre but increasingly common practice, according to the Centers for Disease Control and Prevention.

The game, which involves intentionally trying to choke oneself to create a brief high, has been around for years, but it appears to be spreading. …

The deaths identified by the C.D.C. are based on media reports of the game over the past decade, but more than 60 of the deaths have occurred since 2005. The agency says the number of deaths is probably understated, and other experts agree, noting that choking game deaths, which involve accidental strangulation with a rope or belt, often look like suicides.

Anecdotes do not necessarily equal statistics. Did this data comes from a C.D.C. press release? And it’s also plausible that deaths ruled a choking game accident are actually suicides.

I’m not suggesting that kids engaging in this type of activity isn’t serious or that there isn’t a cause for concern. I never heard of this as a kid, but I know others who did. I’m also smart enough to realize that kids are incredibly short-sighted and possess under-developed skills at considering consequences. But going into speculative hysteria will not protect kids.

From the C.D.C. press release the journalist clearly used as the source, two teen deaths linked to the choking game:

Case 1. In February 2006, an adolescent boy aged 13 years came home from school in a good mood and had dinner with his family. He then went to his bedroom to do his homework. Approximately 1 hour later, his mother went to check on him and discovered him slumped in a corner with a belt around his neck. His face was blue. The mother began cardiopulmonary resuscitation while one of the other children called an ambulance. The boy died at a local hospital 1 hour later. No suicide note was found. The county medical examiner ruled that the death resulted from accidental asphyxiation by hanging. In the weeks following his death, multiple teens told the director of a local counseling agency that the choking game had been played at local parties.

Case 2. In April 2005, an adolescent girl aged 13 years was found dead, hanging from a belt and shoelace made into a noose on the door of her bedroom closet, after her brother went to her room to see why she had not come down for breakfast. No suicide note was found. The medical examiner determined that the teen had died at 9:30 p.m. the previous night. After the teen’s death, the family learned that the girl had confided in a cousin that she recently had played the choking game in the locker room at school and that a group of girls at her school had been suspended for playing the choking game.

Both deaths involve speculation. I’m comfortable that the conclusion from case 2 is an educated guess with a high probability of accuracy. I’m not so sure about case 1. It has signals that may be reasonably interpreted as the choking game, but are those signals enough to merit inclusion as a statistic? Even the more solid case 2 raises that question.

Reporting with journalistic caution seems the most appropriate choice here. Reading through the press release and the article suggests only that the latter is a regurgitation of the former. The ability to organize an argument into a concise package is not journalism.

Around the Web: Vigorous Nodding Edition

John Cole assesses the Senate’s asinine behavior in passing the anti-liberty FISA bill with telecom immunity and pursuing the NFL over Spygate perfectly:

There is a very real and perverse possibility that the NFL will face tougher sanctions for spying on practice squads and covering it up than the telecoms and this President will face for spying on the citizenry and lying about it.

That the Democrats caved so easily on the former is another reason to ignore them as a party of leadership.

Next, Jacob Sullum dissects the problem with too many science journalists and editors:

Any journalist who doesn’t feel comfortable going beyond what appears in a medical journal to put a study’s findings in context and offer caveats where appropriate has no business writing about science. Reporters can’t be experts on everything, but they can ask smart questions and seek informed comments regarding a study’s potential weaknesses. If news organizations refuse to do so on the grounds that the study was peer reviewed and therefore must be faultless, they might as well just reprint researchers’ press releases. Which is pretty much what they do, all too often.

This is essentially every bit of “journalism” in America regarding circumcision over the last 125 2½ years. For example.

Finally, Colman McCarthy wrote in yesterday’s Washington Post on the current steroids brouhaha in Congress:

This is the second time members of Congress have posed as drug-busters cleaning up the great American pastime. Except that drug use — whether involving legal or illegal drugs — already is the American pastime, and it is far bigger than baseball.

I’m hoping that Roger Clemens polls the members of Waxman’s committee on their use of performance-enhancing drugs. Start with Viagra. Or Cialis, ready for action “when the moment is right” — say, a congressman stumbling home after a late-night floor vote on an earmark bill. Clemens might ask the members how many need shots of caffeine drugs to get themselves up and out every morning. He might ask the members how often they reach for another shot of Jack Daniels to enhance their performance while grubbing for bucks from lobbyists at fundraisers. And before leaving Capitol Hill, he should grill the allegedly clean-living baseball reporters on how many of them sit in the press box enhancing their bodies with alcohol, nicotine and caffeine drugs. And a blunt or two when night games go extra innings and deadline nerves need steadying.

My stance remains unchanged. McCarthy’s essay holds up a mirror to the hypocrisy of today’s moralizers, both inside and outside of government.

Mirrors create pornographic images. Ban mirrors!

Police in Virginia Beach, after pursuing obscenity charges against the manager of an Abercrombie & Fitch store for two in-store displays, have reacted to public ridicule come to their senses:

Deputy City Attorney Mark Stiles said that, while the images might be technically in breach of the nudity section of the city’s local code, they were in line with the other standards upheld by the law. For prosecution the images would have to appeal to “prurient interests”, lack any redeeming artistic merit and be offensive to “prevailing community standards”.

First, allow me to remind you that the First Amendment states that Congress shall make no law abridging the freedom of speech, or of the press. (There are limited exceptions that do not apply here, as Kip explains in his analysis of the case before today’s announcement.) But within Stiles’ convoluted excuse for the city’s nudity clause, consider the actual images:

And:

Like, OMG! The bottom of a female breast! The top of a male butt! My eyes, my eyes! And OMG! The Children!

Rather than admit that the officer(s) screwed up, Stiles crouched:

“So Abercrombie and Fitch, part of their marketing plans is to get as close to the line as they can get and then make it a judgement call for the officer on the street. I think that’s what’s happened here,” he said.

IF Abercrombie & Fitch planned this, it still requires an idiot with a badge and a gun to ignore the law. It’s probably safe to assume that one would arrive on the scene somewhere, but the officer’s central role as the deciding factor in the success of this (allegedly) orchestrated marketing campaign is key. Without that public servant’s lack of judgment, the whole idea is a waste of money. Thanks to the officer’s incompetence, this campaign is money well spent.

Abercrombie & Fitch doesn’t need any more discretion, because it’s nowhere close to the limited exceptions to the First Amendment that require conflicting rights. There is no conflicting right to press charges because you’re offended.