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April 16, 2011

The distinctive whiteness of federal child porn offenders

As noted in this post, part of my plans for this weekend (besides watching lots of NBA playoff games) is trying to mine some interesting stories from the just-release FY2010 federal sentencing data now available here on the US Sentencing Commission's website.  And the first datum that jumped out at me from the tables I started perusing concerns the race of offenders in each primary offense category as set forth in this table

Specifically, if one looks closely at only those offenses in which 1000 or more cases were sentenced in FY 2010, one sees that in all but one notable instance, the percentage of offenders who were white is below 50%.  For drug trafficking offenses, for example, only 26% of sentenced offenders were white; for firearm offenses, only 29% of sentenced offenders were white; for fraud offenses, only 47% of sentenced offenders were white.  But for child pornography offenses, a full 89% of sentenced offenders in FY 2010 were white.   (I have sometimes joked that, for federal sentencing purposes, kiddie porn is kind of like the white guys' crack, and this data highlights this (useful?) analogy is true in at least on notable way.)

One could (and perhaps should) put lots of spin on these racial demographic realities of federal offense sentencing.  For this post, however,  I just want to note the outlier reality of child porn offenses and see what others (particularly federal sentencing practitioners) might want to say about it.

April 16, 2011 at 10:37 AM | Permalink

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Comments

For years we heard the screeching accusation that severe crack penalties were a product of anti-black bigotry and racism.

I'll be eager to hear now how the at least equally severe CP penalties -- the ones that now turn out to be enforced against whites to exactly the same "disproportionate" extent as crack penalties are enforced against blacks -- are also racist.

Hint: Neither is racist.

When blacks do a lot of crack, and whites do a lot of CP, the problem is BEHAVIOR NOT SKIN COLOR.

And not to be too gruff about it, I have a suggestion for the behavior: Stop.

Posted by: Bill Otis | Apr 16, 2011 11:41:48 AM

Bill, we all freaking get it. Please, stop. We understand that the left or democrats or liberals or whatever are awful, horrible, hypocritical human beings. We understand defense attorneys and their clients are the pits of humanity. We understand that they think they shouldn't be held responsible for their conduct. We get that all drugs are bad. We accept that entitlements are ruining the budget. We agree that people who post comments under anonymous names aren't nearly as respectable as you. So, instead of writing comment after comment after comment after comment that makes some variant on these points, if we all promise to just silently say them to ourselves after every post Doug writes, will you promise to stop repeating them? Between you and Supremacy Claus (and to an extent, Rod Smith as well), these comment sections -- which used to actually have interesting discussions -- have been rendered useless.

And Doug: Please, consider banning Bill, SC, and rodsmith. At some point, enough is enough. They aren't trying to further discussion here, and they discourage people from spending time to comment. I can't imagine this is lost on you. So, what's the point?

Posted by: anon | Apr 16, 2011 1:19:47 PM


anon --

"We understand defense attorneys and their clients...think they shouldn't be held responsible for their conduct."

The evidence is that you understand no such thing, although -- as to the clients and occasionally the attorneys -- it's true.

"We get that all drugs are bad."

No you don't, even though that also is largely true. Not all drugs are bad; legal drugs prescribed by doctors acting in good faith are good and sometimes life-saving. Meth is bad, yes, not that I ever expect you to admit it. So is marijuana smoked long-term, along with heroin, crack and a bunch of others.

"We accept that entitlements are ruining the budget."

Nope. Supervised release is ruining the budget. Aren't you up with the latest?

"We agree that people who post comments under anonymous names aren't nearly as respectable as you."

I have no way of knowing how respectable they are, since I don't know their identity, that being intentionally hidden. Some quite thoughtful people (federalist, mjs, alpino, guest, etc.) don't use their names and some quite thoughtful people do (Marc Shepherd, bruce cunningham, Mark R. Levine, etc.). But just taking ad hominem shots from behind the curtain of anonymity is pretty sleazy -- as you now illustrate, apparently without even a small sense of irony.

"And Doug: Please, consider banning Bill, SC, and rodsmith. At some point, enough is enough. They aren't trying to further discussion here, and they discourage people from spending time to comment."

That of course is an outright lie, appropriately enough made from your cover of -- guess what -- anonymity! In just the past few days, there were insightful and mostly civil discussions at, for example, http://sentencing.typepad.com/sentencing_law_and_policy/2011/04/canadian-commits-murder-in-illinois-after-researching-is-abolition-of-death-penalty.html; http://sentencing.typepad.com/sentencing_law_and_policy/2011/04/us-sex-offender-claiming-refugee-status-in-saskatchewan.html; and http://sentencing.typepad.com/sentencing_law_and_policy/2011/04/right-winger-hard-time-compassion.html#comments.

In each of those threads, there were 20 or 30 or more comments. That is much higher than average reader participation. I cannot and do not speak for SC or rodsmith, but your statement that my participation "discourage[s] people from spendinging time to comment" is complete tripe.

I am a conservative on a mostly liberal site. It's hardly a wonder that liberal facsism wants to ban differing viewpoints from the discussion; that, after all, is largely what fascism is about. So your suggestion is not that surprising.

Hey, here's a thought: If you don't like my comments, skip them. If you want to dispute them, make a substantive argument. If you want to ban them, move in with like-minded people in Iran.


Posted by: Bill Otis | Apr 16, 2011 2:56:00 PM

Ouch anon.....that hurts! of course like that old saying "the truth hurts!"

guess i'm getting a little too close for comfort there!

a lot of my comments are backed up with links to the relevant law or legal opinion! can you say the same?

as for running off people...maybe the ones who are running know they can't build a rational legal argument to what we are saying and retreat in discrace!

Posted by: rodsmith | Apr 16, 2011 3:46:47 PM

as for bill and SC last time i looked i've called them both out if i thought they were wrong and they have done the same to me!

funny i though that's what this blog was HERE FOR IN THE FIRST PLACE!

silly me!

Posted by: rodsmith | Apr 16, 2011 3:47:50 PM

As a general policy, anon, I like the (Framers') notion of urging more speech, not prohibitions on speech, to combat speech we do not like. Especially if/when commentors are genuinely trying to keep the discussion civil and respectful --- which can be hard and a judgment call sometimes --- I am generally going to be content to urge commentors police themselves.

What is lost on me, anon, is the eagerness of some folks to ban speech. I fully understand that some (perhaps many or even most) readers of this blog do not enjoy certain comments and commentors. Fortunately, there is a simple self-help solution: do not click through to the comments. And if somebody else would like to run a comment forum which bans certain commentors, they have my open blessing to provide links to any/all my posts in a separate forum in which they can then permit and/or prohibit the speech of whomever they see fit.

As perhaps you can tell, I tend to be a First Amendment libertarian in this setting, especially because it is so easy to here avoid speech you do not like and also because I am grateful to any and everyone who has enough interest and energy in these topics to take the time/energy to read and respond to my posts. Hope this general comment policy makes sense to you, anon, even if you do not agree with it. And, joyfully, you and/or others can and should feel free to create your own blog --- even using much of my content (with attribution, ideally) --- if you'd like to adopt a different policy.

Posted by: Doug B. | Apr 16, 2011 3:48:53 PM

as for the ACTUAL topic of this thread!

this data is very interesting!

Of course it brings to mind another old wives tale!

maybe what they used to say about blacks has a lot of truth in it!

i.e. they got bigger packages! and are taking all the women...leaving the poor whites to jsut dream about women and now have to get their looks where they can!

LOL

Posted by: rodsmith | Apr 16, 2011 3:51:21 PM

At first, I thought that this might have something to do with the technological nature of child pornography, which would suggest that economic factors play into who actually has the ability to commit the crime. In other words, a computer offense, one that typically involves high-speed Internet access, would be more likely among people with economic resources.

But then again, the percentage of defendants committed of these offenses who are white is a lot closer to the percentage of the general population that is white than you see with other crimes, like drug offenses.

I'm willing to bet it has a lot to do with how these crimes are detected. The typical child pornography offense involves a law enforcement officer viewing images on a computer operated by a person the officer never sees; the use of Limewire has opened up for viewing the contents of users' computers for all to see. So when an officer detects child pornography on a computer, he's not going to be making any discretionary decision about whether to investigate, in which one's biases are going to play. Nor are the officers targeting particular neighborhoods or demographic groups. So the spectrum of people who are detected, investigated, and prosecuted is going to mimic more closely the spectrum of people in general.

Also, child pornography is one of those offenses where prosecutors are not going to have any sympathy or empathy for the defendant, so the defendant's socio-economic background is not going to have any effect on the decision to prosecute or what offense to charge.

Just my thoughts.

Posted by: Anonymous | Apr 16, 2011 4:00:16 PM

"I fully understand that some (perhaps many or even most) readers of this blog do not enjoy certain comments and commentors. Fortunately, there is a simple self-help solution: do not click through to the comments."

Or, if you do click through to them, scroll the ones you don't like.

"And, joyfully, you and/or others can and should feel free to create your own blog --- even using much of my content (with attribution, ideally)..."

E.g.: http://www.crimeandconsequences.com/crimblog/2011/04/researching-a-good-place-for-m.html.

The most depressing thing about anon's ban-them theme is that none of the many more open-minded people who comment here have thus far renounced it.

Posted by: Bill Otis | Apr 16, 2011 5:43:19 PM

rodsmith --

One thing I have always enjoyed about you is that you let it all hang out, as it were.

Posted by: Bill Otis | Apr 16, 2011 5:48:22 PM

Anonymous --

"I'm willing to bet it has a lot to do with how these crimes are detected."

Nailed it.

As mjs put it, commenting last Wednesday on Crime and Consequences, "Who is more likely to be arrested and convicted: a drug dealer who sells his wares indiscriminately in public, on street corners, often in plain view of pedestrians, often 24 hours a day, and is arrogant enough to self-identify his product with a unique stamp.... or

a dealer who clandestinely sells product indoors, often to customers he knows or who have been "vouched for".

Regardless of the crime rate among racial groups, an offenders' method of criminal operation goes a long way to determine who gets arrested and who does not."

It is not a product of racism but of human nature that the police most readily go after the low-hanging fruit. In crack cases, that turns out to be disproportionately black, and in CP cases, it turns out to be disproportionately white.

Racism should be, and is, made of sterner stuff.

Posted by: Bill Otis | Apr 16, 2011 6:00:13 PM

I am actually somewhat more surprised by the 47% fraud figure. I would have thought that would have been a majority white convicts category as well.

Posted by: Soronel Haetir | Apr 16, 2011 9:03:22 PM

Anon: Prof. Berman may have a left wing bias, as do all owners in the law prof network. However, this is why he excels as a prof and as a blog poster. He provokes by the situations he describes. The student/commenter then comes up with replies never thought of by the person, nor by anyone else on earth. When the student surprises self, that is good teaching.

If you try to rebut me, I promise 10 levels of argumentation before you will exhaust me. Both will profit from debate, rather than shunning. Shunning is cult methodology, to end questioning of core doctrine. It happens too often in law education.

Posted by: Supremacy Claus | Apr 17, 2011 2:55:44 AM

Bill's the villain. He provokes and inspires. The forum needs him.

SC, with his 10 levels of argumentation (and 20 layers of obfuscation), provides comic relief...even if unintentionally.

Rod's the bomb thrower.

I'm a bleeding heart.

Sure, the best stuff (insights, profundity) comes from the more self-restrained, highly experienced, scary-smart folks who (happily) engage here somewhat routinely. However, it could get pretty dull if that's all there was, and who's to say they'd engage to the same extent if it weren't for the provocateurs who post here, too?

I see no racism in the system's overwrought approach to some CP offenses. The problem is its failure to distinguish the dangerous (those who produce or financially support CP) from the merely weird (guys caught looking at pictures they didn't buy or exchange with others).

It's an archetypal witch hunt, lots of inciting rhetoric and vengeful bluster...with only skimpy (at best) or totally imaginary evidence of tangible victimization to justify its excesses.

Posted by: John K | Apr 17, 2011 9:45:06 AM

John: If you are amused, my purpose for being is fulfilled. My criticism is loving criticism. If the lawyer will listen to this owner of the law, I promise his income, esteem, and achievement will be far higher.

The insiders want to talk their technical sentencing talk here, in peace, without external criticism. Little problem. They are in failure. They do not answer 90% of major crimes. We have a high crime rate, herded into crime toxic black areas. When they have the person, there is an unconscionably high chance, they have the wrong guy. Such encompassing failure is expected in any practice that does what they did 700 years ago.

Posted by: Supremacy Claus | Apr 17, 2011 10:35:52 AM

I find it funny that no one made the first conclusion that I did when I saw those numbers: One of the reasons for high downward departure rate for CP offenses is that the offenders look just like the people who are sentencing them...older, white males. The departure rate was not nearly this high for crack offenses...but let white men get high sentences, and white male judges are in an uproar.

rodsmith's on 4/16 was very offensive

Posted by: anon | Apr 18, 2011 9:05:01 AM

anon: I agree with you re Bill O's redundancy. I now skip right over his comments - b/c I know what they will say without even having to read them. And I also agree that his tedious commentary, along with that of the blog's resident mentally ill person, have driven away more thoughtful commenters. I wish Doug's idea that bad speech encourages good speech were true, but at least on this blog, sadly, it is not. All the relentlessly repetitive commenters have done is drive more substantive commenters away.

Posted by: reader | Apr 18, 2011 11:36:36 AM

As far as crack prosecutions go (or went), I think the racism argument doesn't stem from the fact that the majority of crack arrestees were and are black so much as the fact that the majority of powder cocaine users are white, and the sentences for crack were wildly disproportionate to the sentences for powder. When the same drug in two different forms is used by two different racial groups, and one is punished 100 times more severely, that may give rise to an inference of racism.

The reason people aren't claiming racism with regard to CP prosecutions is that there's no evidence of disparate treatement; i.e., there's no sign that black CP defendants are being given 1-2 year sentences while white defendants are getting 20-30 sentences.

And because I know Bill reads a lot into what people don't say, I better speak up here and say that banning someone for their viewpoint is, of course, ridiculous.

Posted by: SRS | Apr 18, 2011 11:38:04 AM

SRS --

It is sometimes revealing, and sometimes not, what commenters choose to address. For example, the question of what penalty KSM should receive is, one would think, pretty important on a blog about sentencing law and policy. But when Doug brought it up, not a single liberal commenter had a thing to say.

It's hard to think that's merely a coincidence, particularly since those same commenters go on at length about such things as sex offender registries and, indeed, the utterly inconsequential issue whether Lawrence Taylor should be a level 2 or level 3 sex offender.

That's more comment-worthy than whether the 9-11 mastermind should get the death penalty???

There's such a thing as ducking a hard issue, as I'm sure you know. For death penalty abolitionists, KSM is the hardest issue around. It is scarcely unreasonable to suspect that ducking is what's going on, just as it was going on in the far less egregious McVeigh mass murder.

I would make three points on the question about crack/CP penalties and race. First, while crack and powder are chemically identical, they differ in their physiological, social and street effects, as even the liberal Washington Post noted in its editorial opposing equal sentencing treatment. The Clinton administration steadfastly took the same no-equal-treatment view.

Second, it is not the case that crack was punished 100 times more severly than powder. That is a gross overstatement based on a misinterpretation of the real effect of the ratio. Actual crack sentences were 3 to 4 times longer than powder sentences. Just look it up in the Sentencing Commisssion's tables, which should be available here, http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2010/SBTOC10.htm.

Third, one might plausibly, sort of, claim racism whenever one racial group gets prosecuted in disproportionately high numbers for an offense carrying exceptionally stiff penalties. It is in that sense that some might claim racism in the prosecutions of blacks for crack and whites for CP.

As I have previously noted on this thread (Apr 16, 2011 6:00:13 PM), however, the actual reason is that police organizations, like virtually all other organizations, go after the low-hanging fruit. The way blacks engage in crack transactions, and whites in obtaining CP, both turn out to be low-hanging fruit. And that's about the story with it.

"[B]anning someone for their viewpoint is, of course, ridiculous."

Thank you.

I would add only one thing, to wit, that it's worse than merely ridiculous. It's a sign of a dangerous way of thinking.

Just now, I see that on the April 14 thread titled, "U.S. sex offender claiming refugee status in Saskatchewan," there is, as the 58th (and I guess last) comment, a particularly personal and disgusting attack on me. But I am not going to ask that the commenter be banned. Putting up with such things is, for better or worse, the price of free speech, which I am glad, overall, that Doug, and you, stongly endorse.


Posted by: Bill Otis | Apr 18, 2011 12:34:44 PM

Reader: If you mean technical sentencing discussions as substantive comments, rather than questioning of fundamentals, see here:

http://sentencing.typepad.com/sentencing_law_and_policy/2011/04/off-to-dc-to-get-a-front-row-view-of-tapia-argument-as-second-chair.html

and here:

http://sentencing.typepad.com/sentencing_law_and_policy/2011/04/important-new-book-urges-more-prudent-use-of-habeas-in-state-criminal-cases.html

These are from the articles just above.


These are lawyers. The idea they can be deterred by jurisprudence or policy discussions is not true. Bill is a seasoned appellate lawyer, and should not be included in any list of undesirables.

When you say mentally ill, who is the one that believes minds can be read, the future foreseen, which even the Church believes only God can do? Who is the one that believes our standard of conduct should be based on a fictional character? Why? To make the standards objective, of course. Whose high school education has been erased, or they would remember the meaning of the central word of the law, reason? That word has an unlawful definition in our secular nation. It is the ability to perceive God, and it guidelines are in the New Testament, the story of Jesus, that fictional character, just mentioned. Your profession's hierarchy runs a criminal enterprise based on supernatural powers, and delusional thinking. If it weren't in total control of the three branches of government, the lawyer hierarchy would be committable as nuts, and threats to the safety of the public.

As to the fancy sentencing technical talk, one little problem. I understand it makes everyone here worth $750 an hour. One little problem. You lawyers suck in not fulfilling Job One and Job Last of government that you control, public safety.

Posted by: Supremacy Claus | Apr 18, 2011 1:54:10 PM

While I support Professor Berman's intent not to ban commenters as a matter of course, I also think anon (above) and reader make some good, and timely points.

I would also add that repeated, extreme and offensive posts regarding women/women lawyers stifle discussion. Specifically, drone-like comments about "vile feminist lawyers", by one poster, supremacy claus, seemingly whenever a woman lawyer is mentioned in a story. Such posts rarely make any intelligible points about feminism per se, (assuming arguendo that was their intent) and in in reality read as gratuitous, sexist rants. I believe these posts do have an exclusionary effect, and no doubt curtail free speech in their intolerance. I also think that the host of the blog, Professor Berman, should be concerned about these comments in light of the fact that are very few commenters who self-identify as women on this blog. It should be a concern as perhaps one red flag of who, and what points of view, consistently dominate and what others are perhaps de facto alienated/eliminated from these discussions. Again, I do believe many of SC's frequent comments here and his descriptors, especially of women, have an intolerant effect that alienates many. What, or whether to do anything about it is of course Professor Berman's choice, and yes everyone is free to start their own blog. But the reality is that allowing such frequent - and sometimes dominant - intolerant comments about women to prevail, most definitely has an effect that undermines a free-flowing discussion and discourages a more open, more valuable and more enriching debate.

Posted by: Sojourner | Apr 18, 2011 2:04:41 PM

Sojourner --

A few points:

1. SC is a very unusual fellow. He often seems to see a world different from the one I'm seeing. His manner of expression is edgy, to say the least. At times, he has recommended some bizarre "remedies," such as shooting lawyers (particularly prosecutors) and judges.

He would be better served, in my view, if he just walked away from the "vile feminist lawyer" and such. This would allow people to read his stuff without cringing. And more often than you'd think, it's worth reading. He knows a lot of stuff. And there is one thing I particularly notice about him, to wit, he does not take personal cracks at individual commenters. Indeed, his manners (if not his expressions) are above reproach.

This is not my blog, and I have no say whatever in who is allowed to post here. But I concur fully in Doug's decision.

2. As for women lawyers: I wish they WOULD self-identify. Indeed, I wish the whole board would self-identify. But as to an appreciation of women in particular, I have some experience with that. My wife graduated very high in her class at Yale, and went on to the University of Chicago Law School. She was the star student of a professor there, and became his first clerk when Antonin Scalia was appointed to the Supreme Court. She has also been general counsel of a large cabinet agency, a law professor and Associate White House Counsel. She could make literally a fortune if she chose to. Instead, she works for a non-profit.

And yes, I am bragging. But the point of the bragging is to emphasize that I fully agree with your point about respecting women lawyers.

3. Among the many other reasons commenters should not be banned is that, as Doug has noted, any reader can either skip the comments entirely or scroll those he/she doesn't like. SC (and rodsmith) have very distinctive styles, and you can tell within three seconds whether you're reading a comment of theirs. A reader doesn't need Doug to make comments go away because, for practical purposes, the reader can do it himself at essentially zero cost and trouble.

Posted by: Bill Otis | Apr 18, 2011 2:39:49 PM

reader --

1. "All the relentlessly repetitive commenters have done is drive more substantive commenters away."

How do you know that? It seems to me that the opposite is true -- that the threads on which I comment have much more participation than the ones on which I don't.

2. Some of my comments are repetitive, that's true. That is because they arguments they're addressing are repetitive.

When the attacks on the death penalty as barbarism stop, I will stop responding to them. Ditto with jury nullification, skipping out on sentencing and other forms of lawlessness. Ditto with willy-nilly drug legalization. Ditto with "prosecutors are Nazis." Etcetera.

As long as they continue, I will continue, here (as long as Doug permits), and on Crime and Consequences.

How odd it is of you to expect me to muzzle myself while the adversary is still talking. Or is it just that you want the adversary to have an even more lopsided majority here by banning the one consistently more conservative voice?


Posted by: Bill Otis | Apr 18, 2011 2:55:51 PM

I generally don't think Bill's one-off comments bring much to the discussion and would prefer not to read them.

SC makes me question my own ability to rationally interpret reality, which isn't the reason I come to SL&P, so I try not to read him anymore.

Rodsmith sometimes misses the point, so I don't usually want to skip him.

So who's to blame here? DOUG BERMAN. Why? Because he puts the commenter's name AFTER each post. If only I could see whose comment I was ABOUT to read, could I separate the wheat from the chaff.

As it is now, I start reading a comment, begin thinking to myself "Why do I feel a sense of deja vu?" and then scroll down to see I've wasted my time reading the same off-topic non-content I'm used to.

Posted by: EasilyEnthused | Apr 18, 2011 3:40:32 PM

Sojourner: And I always wonder whether Doug really would allow continuous rants that were racist or anti-Semitic rather than "just" misogynistic. I suppose he'd say that he would - that no ranter no matter how bigoted would ever get censored from his blog. But as it is, he makes one wonder whether black-hating and Jew-hating rants would really find as safe a harbor on his blog as do women-hating ones.

Posted by: reader | Apr 18, 2011 3:51:40 PM

EasilyEnthused --

"So who's to blame here? DOUG BERMAN. Why? Because he puts the commenter's name AFTER each post. If only I could see whose comment I was ABOUT to read, could I separate the wheat from the chaff."

It would take you all of three seconds, if that, to scroll to the end of a "supicious" comment to see its author.

And let's be clear. What the ban-them movement is about is attempting to run off the most frequent dissenting voice. It's not enough for some liberals to have a majority here; they want a monopoly.

So much for the market place of ideas.

Posted by: Bill Otis | Apr 18, 2011 4:40:59 PM

The assumption that female lawyers are feminists is not true. Most of the damage to the American economy, and family have been done by male feminists lawyers. I agree that adjectives add no value in legal discussions. I will not use the word, vile, anymore. That an adjective can keep big mouthed, tough female lawyers away from a discussion is highly offensive to non-feminist female lawyers, and requires an apology from anyone making that suggestion. It's ridiculous claim. It would not even keep 12 year old prep school girls away, if have known any recently.

The rate of bastardy, the destruction of the indestructible black family, the death warrants on a million viable babies without Fifth Amendment due process, the destruction of the quality of education, the endless witch hunts on the productive male, the total bias of the courts in favor of female accusers, the legal feminization of the American male, the end of the patriarchal American family. These are heinous achievements and merit the adjective.

As the KKK was assumed to be right in 1911, the presumption is the same for feminism in 2011. The judgment of history will be one of our making a huge mistake. We condemn the activities of the KKK 100 years ago. We will be less understood and more condemned in 100 years. They will be puzzled, how could they do that to themselves? The answer is simple, and one of bad faith. It generated the rent, and grew government.

Posted by: Supremacy Claus | Apr 18, 2011 7:03:32 PM

"What is lost on me, anon, is the eagerness of some folks to ban speech."

I can see both wisdom and convenience in not moderating comments. But I don't think that makes comment moderation on your own blog akin to "banning speech."

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