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06.15.19

Code of Conduct Explained: Partial Transcript – August 10th, 2018 – Episode 80, The Truth About Southeast Linuxfest

Posted in Free/Libre Software, GNU/Linux, Law at 2:05 am by Dr. Roy Schestowitz

Ask-NoahSummary: “Ask Noah” and the debate on how a ‘Code of Conduct’ is forcibly imposed on events

This a partial transcript from the August 10th, 2018 interview on Ask Noah (Episode 80), with Jeremy Sands entitled, The Truth About Southeast Linuxfest. Below is a partial transcript, lightly edited.

This transcript was prepared by a longtime contributor to the site, who deemed it relevant.

[01:16:10]
JS [Jeremy Sands]: Let’s get to all the things you don’t want to hear about … politics.

The Code of Conduct, it’s been a thing for the last couple of years it’s been pushed pretty aggressively in the open source sphere and other areas totally unrelated to open source as well but the Code of Conduct is kind of a series of guidelines as to what is and isn’t acceptable behavior at an event and what the repercussions are for transgressing those rules et cetera.

Part of the way SELF reorganized after it hit that bankruptcy wall from the party debacle was it’s actually and I’ll get to this in a little bit later it’s not as easy as it might sound to be a 501(c)(3)

“The people pushing Codes of Conduct that have several examples and depending on who it is and their own personal view and there are several out there floating around I want to say one of the bigger ones that’s pushed is the contributor covenant I think I have that right.”[01:17:00]

as a Free Software organization. In fact the IRS is deeply, deeply distrustful of 501(c)(3)s that are Free Software filings. Not my words, the words of Cat Almon [sp?] and I’ll get to that in detail later. But essentially as part of reorganizing, it became abundantly clear that since I was already self-employed, it was dramatically, radically cheaper. like orders of magnitude cheaper, for SELF to simply be a quote-unquote for-profit tucked under my existing LLC that I already knew and already operate and already have to do books for. But deliberately operated in such a way where profit is not part of the equation. I like to say, for profit but deliberately bad at making profit. Because as it turns out because of the way the IRS deals with 501(c)(3)s from Free Software filings, it’s way cheaper to be for profit and deliberately bad at making profit than it is to be non-profit and really, really good at not making profit. Government. So my first reaction, so that was basically my way of saying I have some skin in in the game here. Like if something goes horribly wrong that lands on me. So my first reaction wasn’t well let me read this over my first reaction was I’m going to hand this to a lawyer, and so I did. The people pushing Codes of Conduct that have several examples and depending on who it is and their own personal view and there are several out there floating around I want to say one of the bigger ones that’s pushed is the contributor covenant I think I have that right. I think that was the one I took and had a lawyer review. His words to me were if I were a judge I would ask you just who the hell you thought you were trying to rewrite the law for your little fiefdom and just where you obtained the wisdom of how things should be run around here greater than the collective wisdom of the electorate and the officials that represent them. I didn’t really have a good answer for that. His advice was to be an arbitrator and to resist the temptation to be a judge, and a jury and executioner because when you do that you have essentially entered yourself into the legal fray. He said what you really want to be is a peace broker. You want to resolve the conflict without a determination of guilt either way. Even if it seems painfully obvious who is guilty. You just want to achieve peace. If you can’t do that his recommendation for the safest legal course was simply to eject all parties involved from the event. He said I know as I say that that’s a terrible thing because statistically speaking at least half the people you just ejected were totally innocent. That’s a terrible thing to have to do. But it’s also, legally speaking, from my point of view as a lawyer advising you as counsel, the wise thing to do. He also said you’re running around running an event, how much of your mental capacity can you really bring to bear to slow things down and seriously consider everything unfolding. Not a bad point you’ve got there. My response to the Code of Conduct and it being pushed upon me was to simply ignore it. I ignored it, didn’t put anything up there but eventually the shouts become loud enough that you have to do something. Because it becomes something if you do not have one you will be asked repeatedly about it. And eventually, the act of answering those questions becomes so tedious that you might as well have a policy even if your policy is we don’t have a policy. Because in the absence people are just going to ask questions and insert their own fears into that vacuum. For not having, I think our first official code of conduct policy was kind of a pithy one liner it was kind of a, I won’t, I’ll get it wrong, you can go, I’m sure it’s on archive.org somewhere , but it was more or less don’t be a butthead. If I want to paraphrase it that was more or less our code of conduct.

“My response to the Code of Conduct and it being pushed upon me was to simply ignore it. I ignored it, didn’t put anything up there but eventually the shouts become loud enough that you have to do something.”NC: Then if you need help learning what a butthead is then if you think something might be in question of concern just don’t do that thing and you’re probably pretty safe.

JS: Yeah, so, unbelievably I was actually threatened in private at other events for this for not having a code of conduct that some people deemed acceptable. And not from random people the very first person to threaten me has been a speaker at SELF I think every year and because I accept talks blindly they keep getting talks because I’m not holding that against them because I don’t know who they are when I select the talks. So if nothing else you can’t accuse me of bias in selecting speakers given that I keep selecting a speaker who threatened me. There’s the downside by the way of selecting blind. But because of this when I go to other events to promote SELF or to speak I simply do not have private conversations with strangers any more even people who I somewhat know I will keep other people around me to be witnesses now and it’s terribly tragic that I even have to say that and it’s even more tragic that if you go looking around online I am not the only one who does that any more and that’s even more sad. Given that I got a nasty backlash simply for not having a Code of Conduct that a lawyer told me you would be a fool to have, I started asking why are people pushing this what’s the real message here? And if you start looking around online Googling for Codes of Conduct and insert your own pejorative here, cons, downsides, alternative views, it’s hard not to eventually stumble into a guy named Paul M Jones. He is apparently somewhat infamous as someone who is a vociferous advocate against some Codes of Conduct. If you want to read up about him he is in the PHP-FIG framework interoperability group I think I got that right

“Yeah, so, unbelievably I was actually threatened in private at other events for this for not having a code of conduct that some people deemed acceptable.”NC: We’ve actually had Paul on the show and interviewed him about his views on the Code of Conduct and part of his presentation and all that and we’ll have that linked in the show notes as well.

[01:24:00]

JS: So if you want to read up on some of that nasty past that made him infamous just go read the PHP-FIG it’s all there it’s a mailing list. But my personal take after having skimmed through it was infantile, petty, and a poo-flinging fest that is how I would describe a lot of the just childish battles that occurred over that. So I got put into contact with him and to get his take and given how he has this reputation you might be expecting the worst but not only was he not Hitler and I say that only somewhat tongue in cheek given the nastiness of our political discourse these days but I actually found him to be reasonable and measured and well spoken and that the next year when I was selecting talks there was one on the darker side of the Code of Conduct and blindly I selected it and it was Paul who submitted it. So he gave a talk at SELF on Codes of Conduct and some of the downsides of some of those Codes of Conduct. Boy if you thought it was political before simply by not having an acceptable Code of Conduct the act of having someone speak out against the concept of a Code of Conduct in some cases caused enormous backlash. The fact that it was Paul M Jones giving that talk ramped it up a couple notches. So just for having him speak his personal opinion at SELF there was a targeted smear campaign on social media directly going after SELF’s biggest sponsors telling them to no longer support our event. And it worked. They successfully chased off multiple sponsors. I know of at least two for sure because they they contacted me disagreeing with the decision of their own superiors to no longer support SELF. One of which came back to me with a demand, not their own, but of their superiors, that for them to sponsor the next year, one third of all speakers would have to be female. How can I possibly guarantee you one third of anything, gender, color, nationality, religion, whatever shallow collectivist thing you’re fixated on when I select the talks blindly based upon merit. I can’t even tell you whether or not I can qualify for your demand until after I’ve selected talks because I don’t even know who I’m selecting. In the words of the person who made those demands to me

[01:27:00]

“Given that I got a nasty backlash simply for not having a Code of Conduct that a lawyer told me you would be a fool to have, I started asking why are people pushing this what’s the real message here?”this doesn’t seem to do anything more than merely check a box. That was their own words to me, when delivering these demands. And everyone immediately asked me in private after they hear this talk who is it what’s the company could you tell me? I don’t want to tell you because I don’t want to attract the poo-flinging the other direction at the company. Because it isn’t necessarily the views of the company. It might just be one person in a position of power or as I like to say a cat bird in HR or in marketing who has purchase authority power and they’re using those levers of power to achieve their own means. And to kind of prove this point of how counter-productive it would be to attack the company that made the demand more than a dozen employees from that company that very year decided to come to SELF on their own dime as supporting attendees on their own dime and enjoy the event freely as much as they could without their own company’s backing. So the company formally wasn’t there. All the employees were still there. For me what was insightful was the one time when the rubber really met the road. when it comes to Codes of Conduct. And there are no winners in this story. There are only losers. I had an employee of a sponsor who was at the event it was at the Sheraton so it is in the more recent history of the event but I can’t name off the top of my head which year. This person had diversity in their official job title and they approached me, at SELF, face to face. to say that if our even did not have

[01:29:00]

“So somebody is insulted and this person who was previously so concerned about the safety and well-being of these attendees and your lack of concern for their safety is more concerned about the PR ramifications than the actual event or the actual safety?”an acceptable Code of Conduct to their standards and at the time we had already put in our pithy don’t be a butthead equivalent Code of Conduct. He said that is not acceptable to our standards. And if you do not have one that is acceptable to our standards and he offered again the contributor covenant, the one the lawyer said don’t do that that, they would not be back as a sponsor. And that would be a permanent decision until we acquiesced to that demand. The very next day one of their employees put a business card down the shirt of a female attendee on his way out of the venue. I had an eye witness report from another sponsor and not just any random person but a really smart one a person who is a rising FOSS celebrity who goes on major national shows to talk about FOSS. And I had an actual physical business card in my hand. So with the smoking gun of the business card and an eye witness report I went to be the ax man that the job required of me at the time. I went and pulled in the gentleman with diversity in his official title. I informed him of what happened and I informed him that that person was banned from the event until further notice and specifically by that I mean indefinitely and what was the first thing to spout out of his mouth in response? It wasn’t how is she, how can we help, how can we resolve this. The first response was quote and I quote, “why did it have to be us?”

NC: So somebody is insulted and this person who was previously so concerned about the safety and well-being of these attendees and your lack of concern for their safety is more concerned about the PR ramifications than the actual event or the actual safety?

JS: Shocking. Somebody who claims to care about others really only cares about themselves. Sounds like they would make a great politician. Saddening. Yeah. That response says more than I probably ever could. Now I ended with a bit of a wry, “that didn’t take a Code of Conduct, did it?”

NC: So you said this to the employee?

JS: That was my last word as he left the building. I had him turn around and said that didn’t take a Code of Conduct, did it?

NC: Fantastic. Absolutely fantastic.

JS. He had no response to that. And I was absolutely thrilled to spike the football in his face like that. Because I felt he was duplicitous in the nature of his actions versus his proclaimed beliefs. I enjoyed spiking the football there immensely.

[01:32:00]

Until not even an hour later when I realized I just banned the wrong employee. The business card that was put down the female attendee’s shirt was not the person who did it. It was a co-worker of that person.

NC: It still does not excuse his response though.

JS: Accurate. Very accurate. On top of that this means that the eye witness report from that very intelligent very amazing person was wrong. And they had no explanation for that. And as it turns out this is something any judge or cop could tell you eye witness reports are notoriously unreliable and inaccurate. This is why by the way it is a good idea to put cameras on cops because even trained police officers have a hard time getting eye witness reports correct.

NC: Sure.

[01:33:00]

JS: Insert delete expletive with many, many exclamation points here. fsck let’s to a file system check

NC: Ok. I think everybody gets that joke.

JS: So that is one of the greatest mistakes I’ve ever made. Because I nearly destroyed an innocent person’s career and the lawyer was as right as ever. I was too busy managing an event. I wanted the problem to go away. I didn’t slow down and think skeptically every step of the way and try to be an arbitrator, not a judge. I got swept away in the moment and I nearly ruined that man’s career. If it wasn’t the woman who had the card put down her shirt coming back and saying, “I don’t think that’s him. Could you show me photos?” And then by this time corporate HR is involved from the company in question. When corporate HR is involved you know you’ve entered a new level of Hades and thankfully we eventually got it right but I can’t imagine the horror that that person must have lived in for a day or so while they were in limbo being summarily lynched while being innocent. So yeah. Points to the lawyer and no points to me for following his advice I won’t make the same mistake twice though. So another thing that comes along with this weird politicalized Code of Conduct thing and again I despise labels because people remove nuance and insert group think when you apply a label but speaking as a generalization because I think as a generalization it does apply. The kind of person who would push these contributor covenant style code of conduct would also be a person who would tend to be more likely to self describe themselves as say a social justice warrior or a progressive. So I’m not saying that agenda is right or wrong but I am saying it is an agenda. The bizarreness is the dichotomy of response you get along these lines. So, for example, the Geek Feminism Wiki started an article tracking females speakers in FOSS events and praising the SouthEast LinuxFest for having so many.

[01:36:00]

“So, for example, the Geek Feminism Wiki started an article tracking females speakers in FOSS events and praising the SouthEast LinuxFest for having so many.”One of the members who was a speaker at SELF that year asked us what we did to have so many female speakers. They were quite shocked when we replied “nothing”. We, ok, almost nothing. Technically we did invite / voluntold Wendy Seltzer to come back and talk. She’s an amazing person. She works with the EFF She may still be on the board of directors for Tor at the time she was and because she’s not as thoroughly embedded in the Linux community as others because for her it is a legal thing, she’s a legal mind not a Linux mind. And that’s where she’s coming into Linux space from, from the law side. And so she’s not normally tapped into this community so we reached out because she might not normally keep herself in this sort of community but we want to hear what she has to say. So that was the only thing we did. We solicited her specific talk. That was it. Now this may have contributed in some part

[01:37:00]

to other FOSS events in the immediacy. Like in the immediate year after that thing went up some other community based events went all out like all female keynotes, all female talk days, all female talk tracks. Like it started becoming a thing within some subsets of the FOSS community events. As though this, I like to call them genitalia based bragging rights. And yes I deliberately say that to be demeaning because I just don’t see the relevance of genitalia to content. Maybe that’s just me. Put more blatantly. At SELF, at least while I’m selecting speakers, genitalia is irrelevant, not part of the form to submit a talk, and if you do submit it, it’s probably in a field which I’ve truncated when I select the talks so I can select them blindly. More into the dichotomy stuff. I was asked by a prominent Google employee, at SELF, how we were able to have so many black people at SELF. Now they said African-American but there’s people in South Africa who apply that label but that label does not fit in the context you are expecting it to be. White’s not a bad term. Black shouldn’t be a bad term either. It’s a simple adjective. So they wanted to know how I quote-unquote did it having so many black people at self and to me this was a segfault. The perspective was so foreign, it was a thought I had literally never even entertained, not even anything tangentially related entertained. For me the thought was, promote the event as best I can, and as wide as I can and whoever shows up shows up. So I looked around and if anything I thought the number of black people there would be less than I would expect from a random sampling for the area. But whatever. I guess I’ll try to help you. So I asked him, well where are you holding the events that you’re holding that you’re not getting this many black people to attend. And the response was “Portland”.

NC: Well, sure, what was your response?

JS: Have you considered holding your event somewhere where black people actually live?

NC: That’s fantastic.

JS: So I went ahead and pulled up the most recent census data. Black people are approximately 35% of metropolitan Charlotte, North Carolina. They are 6% of metropolitan Portland, Oregon. Diversity indeed. I believe Chris Rock had a joke to this effect about Minnesota, Prince, and Kirby Puckett. And I’m going to have a

[01:40:00]

moment of silence here for my broken heart from Kirby Puckett beating the Braves in game seven of the world series. And if you’re looking at the slide deck, I’ve included a link to the direct current comparison between those two metropolitan area’s ethnicity breakdown. Here’s my real life code of conduct conclusions. The rules aren’t nearly as important as the people in charge of enforcing them. Bad behavior is already illegal. Serious transgressions should be met with legal responses. Do the people in charge have the wisdom to avoid being judge and or jury and or executioner. Will you keep your wits about you under intense pressure even when as an organizer you are on day two, day two and a half, maybe day three with little to no sleep. Will you pursue what is right and fair

[01:41:00]

“It’s weird, but you get a large sample size eventually weird things happen.”as event organizer and not what is merely expeditious to make the problem go away. That was a lot of negative that I just unloaded over the previous fifteen minutes or so. So I don’t want you to get the wrong conclusion. Let’s put this in its proper statistical context. Based upon my own data itself you’re approximately five to eight times more likely not to make it to SELF because of a serious car wreck or a serious plane issue, plane maintenance, a missed connection, whatever, than you are to be harassed. And the car one is kind of unreal. We have had at least one or two speakers or staff members either not make it or make it late because of an auto wreck every year. And this past year one of our core team actually had their car totaled on the way to SELF with a carload of SELF equipment and that by the way was part of what set everything organizationally back because that was a carload of equipment we needed. And that set us back almost half to two thirds of a day. You’d be surprised. If you’re worried about your safety at SELF for heaven’s sake drive slow and look around when you’re driving. Because that’s the thing that’s going to get you. Ok. And now for something completely different. And I would like to say that I hope this is the first, last, and only time that I have to be political in the context of this event and organizing it. But I do hope that other event organizers found that valuable. Because that is the kind of information I tried to pull out of other organizers to find out what had happened to them how they had dealt with it what policies worked

[01:43:00]

what policies didn’t and if you try to broach that subject with other event organizers they clam right up. It’s information that does not flow as freely as you might expect from a Free Software group and what I’d like to say is people say that’s terrible the particular woman who had the business card shoved down her shirt, any sufficiently large sample size eventually yields highly implausible results. It’s the whole sampling problem. It’s kind of how it only takes something like 15 to 20 people in a room before two people have the same birthday. It’s weird, but you get a large sample size eventually weird things happen.

Jeremy Sands and his experience may relate to what we published a couple of days ago and earlier this year.

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2 Comments

  1. Canta said,

    June 15, 2019 at 3:22 pm

    Gravatar

    Hi all.

    I wrote a response to this post in my blog, here: https://blog.canta.com.ar/2019/06/15/a-response-to-dr-roy-schestowitz-regarding-some-code-of-conduct-issues/

    Thanks.

    Dr. Roy Schestowitz Reply:

    Thanks for that lengthy reply.

    Our position on the matter is here. All other posts on this subject are guest opinions and aren’t site stance/position.

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