January 22nd, 2021

Freedom’s Just Another Word to …?

Down in D.C. at the inaguration, poet Amanda Gorman rocketed to fame with her poem at the close. And deservedly so.

There is poetry, someplace, within all of us. Some just let it out better than others. Much, much better.

Even lawyers. At least those who don’t get stuck in the dreadful legalese that so many are taught.

Back today is our Master of Prose, appellate lawyer Jay Breakstone, with some words on a really important concept after an election, insurrection and inauguration: Freedom.


There is a primal truth to human nature.  We do not see danger until we walk to the edge of the cliff.  Then, we build a fence, erect a sign, or cordon off that which can harm us.  America is that kind of place and, perhaps by design, Americans are those kind of people. We do not have hundreds of years of governments, potentates or tribal chiefs to do our thinking for us.  We’re the ones who have to walk to the edge of the cliff and see the danger for ourselves.  It’s only then that the lightbulb goes off in the American mind:  “Hey, someone can get hurt here.” 

The relief we felt on Inauguration Day was that we stepped back from the cliff, identified the danger, and now we’re going to do something about it.  Why?  Because we got scared.  Boy, did we get scared.  Constitution burning, Nuremburg Rally, crap-in-your-pants scared; It was dark, going down the cellar stairs with rats scurrying about scared; it was can this be the end of the dream scared.

So we, the wretched refuse, said that we wouldn’t.  We wouldn’t fall off the cliff or let anyone else fall off either.  We had done that before in our collective, immigrant histories and it wasn’t going to happen again.  We wouldn’t let it.  Not now.  Not here.  Not on streets still paved with gold.  We didn’t have much choice; we couldn’t go back where we came from.  So, as thick-headed, stubborn, clever Americans, we stood our ground at the edge of the cliff.  It ends, we said, here.  Not one more step.

And the skies cleared; and the sun shined.  The miasma which had cloaked our very souls for four years lifted.  Like a miracle, we saw the path away from edge of the cliff appear; and we Americans began the long journey together; a journey where we’ll bitch, and moan, and yell at each other, and laugh both at and with our neighbors, and in that wandering that is America, find our way once again.  It seems inevitable that this experiment never end, for the result, in heaven’s great plan, is always the same:  freedom.


January 20th, 2021

The Constitutional Crisis That Wasn’t

Over the four years of the chaotic Trump presidency we have seen the words “constitutional crises” bandied about quite often. But never here.

Though personal injury law is the primary focus of this blog — hence the blog name — you have seen me delve into politics every so often, though I try hard to make it relevant to my overall theme.

Nevertheless, I do deviate, and certainly a constitutional crises, if I thought it existed, would make me put up the rare “me to” posting. I resisted.

I’ve always had faith in our electoral system. Regardless of whether Trump was trying to get the Russians, or Chinese, or Ukrainians, or anyone else to do his dirty work for him by involving them in our affairs, I always thought that those that stood by his side would pay a price.

I even thought this during Impeachment 1.0. The almost unanimous support of the GOP to block the investigation into abuse of power, and turn a blind eye to obstruction, and to block witnesses, and to block legislative oversite of the executive branch would one day come at a cost.

I continued to hold that thought when Trump launched dozens of frivolous lawsuits trying to contest the election. Contrary to others, I thought it was good to see. Let the lawsuits get smacked down. Again and again. Hard. That the lawsuits were so awful, and would be rejected universally by judges regardless of who appointed them, was a good thing.

I held that thought even through this year’s January 6th insurrection. A few thousand seditionists trying to block democracy wasn’t going to happen. Even if they blew up the Capitol. This was not, after all, millions of people marching in the streets as we saw during the early days of the Trump administration.

And now, finally, those chickens have come home to roost. In four years the GOP lost the White House, the House of Representatives and the Senate. That is an impressive feat. There may have been a number of different crises, but they weren’t constitutional in nature.

What’s more, the carnage to the GOP due to Trumpism is not complete. We will see investigations, records of Trumpets misconduct will finally be disgorged from the executive branch, people will speak now without fear of the mean tweet, or fear of being fired, books will be written, and supporters of Trumpism will again have their feet held to the fire in two years.

Perhaps it is an undeserving faith in the constitution that I have, but I have it. I still do. The rule of law must hold, for the alternative is anarchy.


January 12th, 2021

Trump Dumped by Social Media – No Problem

Picture via CNET

It took a number of years, but Twitter finally dumped Donald Trump from its platform. So too for Facebook. Too much hate. Too much violence. The insurrection at the Capitol was the final straw.

There have been many commentators saying that this is a problem. My opinion, dumping Trump and any others that spew hatred and foment violence is most assuredly not a problem.

First, we will dispense with the First Amendment argument. There is none. These are private businesses and the First Amendment restricts what the government can do. The principles involved for me dumping a comment or commenter are no different than Big Tech. Big Tech and Small Tech have the same fundamental issue, albeit at different scale.

If you spew hate, or spam, or simply write crap I don’t like, then poof, you’re gone. My blog, my rules. If you don’t like it don’t come here. Same with Big Tech.

This deplatforming of a President, however, struck a nerve with folks, for no reason other than he is a President, at least for a few more days.

Over at Bloomberg, Joe Nocera claims that this is as problem, in that a few people in charge of Big Tech have too much power:

Do you really want Jack Dorsey, Mark Zuckerberg, Tim Cook and Sundar Pichai deciding which speech is acceptable and which is not on their platforms — platforms that are now indistinguishable from the public space. In addition to the problem of having so much power concentrated in so few hands, they are simply not very good at it. Their rules are vague, change constantly and are ignored often if the user is prominent enough.

He comes around to a solution — destroying Section 230 protections:

 I have come around to an idea that the right has been clamoring for — and which Trump tried unsuccessfully to get Congress to approve just weeks ago. Eliminate Section 230 of the Communications Decency Act of 1996. That is the provision that shields social media companies from legal liability for the content they publish — or, for that matter, block.

He then admits that this would merely result in the problematic posters such as Trump being neutered anyway. After all, without 230 protections, the platform could conceivably be liable for the misconduct of posters. Nocera just thinks the neutering is a good thing:

In fact, once the social media companies have to assume legal liability — not just for libel, but for inciting violence and so on — they will quickly change their algorithms to block anything remotely problematic. People would still be able to discuss politics, but they wouldn’t be able to hurl anti-Semitic slurs. Presidents and other officials could announce policies, but they wouldn’t be able to spin wild conspiracies.

This is a terrible idea for reasons that I discussed last month — Section 230 is the lifeblood of interactive communications. Without 230, you would never read a negative review of any restaurant, hotel or widget. Negative reviews would be met with threats of litigation and the platform is not in a position to determine the truth/falsity of the review. And with politics, there are a bazillion shades of gray all wrapped up in contextual statements.

Twitter and Facebook are hardly the only platforms Trump has to speak on. He has the presidential podium, after all, and can speak freely from it.

And even when he is gone from office — and he will be gone — Trump could call up any journalists in the world and have conversations with them. Who would say no? Whether you love him or despise him you’d certainly like to get answers to questions. Recorded, of course.

And those remarks would get rebroadcast by others. On Twitter. On Facebook. And in a million newspapers, magazines, news shows, blogs, bulletin boards, etc. And it would happen almost instantaneously.

The only difference is that Twitter/Facebook would not be primary sources, but secondary.

Prof. Eugene Volokh, raises concerns in a New York Times op-ed. He writes that while there are plenty of places to speak, Twitter and Facebook are matchless:

 there are hundreds of newspapers throughout the nation and several major TV networks. Facebook and Twitter have no major rivals in their media niches. The public relies on them as matchless mechanisms for unfiltered communication, including politicians’ communications with their constituents.

But this likewise misses that social media is, in very large part, about rebroadcasting the thoughts and opinions of others. If Trump (or any other dumped commenter) says anything worth repeating, it will be repeated on those platforms. By someone. Whether the ideas are rebroadcast widely would be determined merely by their level of interest. The same as me. And you.

A final thought: No one claims it is easy to moderate these platforms, or any forum with a lot of discussion.

It’s hard to do and virtually impossible to come up with any kind of objective criteria. The words themselves often obscure the context, as we will see in the upcoming impeachment debate over Trump directing people to march on the Capitol.

Want to know why it’s hard? Consider this easy example. In one context, Trump says “March on the Capitol!” to an angry group of armed insurrectionists. In another, Mahatma Gandhi says “March to the salt flats to make salt.” One is an implicit call for violence, implicit because Trump has a long history of advocating violence. The other comes from someone with a long history of advocating peace.

Context matters. And it defies artificial intelligence decisions that merely look at the words. Let Big Tech (and Small Tech) do as they please with respect to dumping/keeping posters. Keep government out of it.

(Full disclosure: I own stock in Twitter, having bought it after Trump was sworn in, figuring that four years of free advertising couldn’t hurt.)


January 7th, 2021

Trump’s Frivolous Lawsuits Were a Good Thing

January 6, 2020. U.S. Capitol Building. Reuters/Mike Theiler

Some thoughts on yesterday’s attempted insurrection at the Capitol, where people tried to stop the process of peacefully transferring power after a lawful election:

Over the course of the last two months, there have been dozens of lawsuits by Trump and Trump supporters trying, in one fashion or another, to reverse the course of the election.

From the outset, many people mocked and ridiculed those suits, principally for the reasons that they were barren of actual facts of widespread fraud, and also because of the people that were sued.

One of the suits was even against Vice President Mike Pence, claiming he had the power to disenfranchise tens of millions of voters and decide the election himself. As if.

Another suit was not against a person, but the Electoral College. Which of course, is not an entity that can be sued any more than you can sue the Fifth Amendment or any other part of the Constitution.

Now normally you might hear me screaming about frivolous suits (and frivolous defenses). Such things make it more difficult for legitimate litigants trying to find redress from wrongs that have caused harm.

When Trump’s frivolous suits started there was an effort by the Lincoln Project to attack the lawyers bringing the suits, in order to shut the lawsuits down:

The Lincoln Project is set to launch a multiplatform campaign hammering Jones Day and other firms for their role in facilitating Trump’s efforts, I’m told. It includes TV and digital ads and social media highlighting the damage that enabling Trump threatens to our democracy and to the success of the presidential transition.

I said back then, on November 11th, that this was a bad idea. Let the suits be brought. Let them be lost. Let Trumpers see every conspiracy theory shot down as meritless after evidence was looked at.

And state after state that was under siege from Trumpers did everything they could to make sure every legal ballot was counted. Just like Trumpers claimed they wanted. Until they decided that wasn’t what they wanted.

Yes, I can hear some of you say, but Trumpers aren’t thinking with their brains but simply screaming from their hearts in cultist fashion. They can never be persuaded. Facts don’t matter.

While that is true for some, it won’t be for all. Over the course of the last two months we’ve seen Trump’s own Department of Homeland Security debunk the idea of mass fraud, as well as his own Department of Justice. There are some people who previously supported him that are now running for the life boats, if they can find any left.

Those lawsuits were a good thing. That they were laughed out of court is a good thing when found to be meritless, and judge after judge said just that. Some lawyers may, perhaps, even be sanctioned. Again, that would be a good thing if they acted in bad faith in bringing the suits when they surely knew better.

The winner in this election was the evidence. It was run through the legal system and the evidence prevailed. And it wouldn’t have happened that way without the lawsuits.


December 13th, 2020

Trump Should Be Vaccinated First

According to a new New York Times piece, the Trump White House is claiming first dibs on the new COVID vaccine that is shipping as I type.

Folks are, predictably, outraged. The people who were dismissive of the virus should be last on line, right? The folks who mocked others for wearing masks should be waaaaay in the back. That folks who engaged in superspreader events, as if they were somehow immune, would get the vaccine first is an outrage.

Their antics, after all, have cost the nation dearly. Their followers believed them. They did everything they could do sow distrust of science. As if this was a blue state problem.

300,000 dead. And counting.

But. And you knew there had to be a “but” didn’t you? You saw the caption to this post. Trump should go first.

There are a lot of people distrusting the vaccine at the moment. Why? Well, partly because some wish to ignore science, some say the virus is a hoax and some because they think political pressure from Trump may have rushed a vaccine to the public before it was proven safe.

But widespread vaccination is critical to stop the virus. And you can’t have widespread vaccination without widespread acceptance.

So Trump and his cronies — who have done everything possible to make this situation worse — getting the vaccine sends a message to people: Science is important, the virus is not a hoax and the vaccine is safe.

So Trump should go first, followed by Presidents Obama, Clinton, Bush and Carter. As they have already stated they would.

The outrage about Trump is duly noted. The irony is obvious.

But the safety of the nation is more important. The sooner the virus is under control the sooner we put those masks in the drawer and start going to ballgames, restaurants and back into the homes of our family and friends. Without fear of illness.