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.
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.
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 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.
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.
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.
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.
I’ll get to Trump in a minute — yeah, I know you saw him in the subject heading — but first I want to tip my hat to Assemblywoman Helene Weinstein who has championed this legislation for a decade. While she’d been able to get it passed in the Democratically controlled Assembly, the Republican held Senate refused to act.
For reasons completely unclear to me Republicans didn’t see fit back then to stop frivolous suits that impaired free speech rights. And yet, the First Amendment right to free speech is as non-partisan as it gets: What’s good for the goose is good for the gander.
That political dynamic changed with the Blue Wave that came two years ago when the New York Senate flipped Democratic, and Senator Brad Hoylmanjoined the party as Senate sponsor and advocate. This year it passed, and with Cuomo’s signature it is now part of Civil Rights Law ¶70-a.
So what does this have to do with Trump?
The legislation “shall take effect immediately.” Not prospectively, as most new laws set forth. Now. The law can be used today to seek dismissal and attorney fees in pending suits.
And who has a pending defamation suit in New York? Yeah, New York’s most vexatious former resident: Donald J. Trump.
In the essay, Mr. Frankel wrote about communications between Mr. Trump’s inner circle and Russian emissaries in the lead-up to the 2016 election. He concluded that, rather than any “detailed electoral collusion,” the Trump campaign and Russian officials “had an overarching deal”: “the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy.”
Since Trump was sworn in, he usually just blusters now about suing people for defamation — can you imagine him sitting today for a deposition? — but this time he actually brought one.
The Times has already moved to dismiss the case, but devoted just a single page to a sanctions request. The Times acknowledged that such sanctions in New York courts are “sparingly awarded.” This is something I know all too well from my own failed attempts to have vexatious litigants held accountable in the two suits against me.
The motion to dismiss has not yet been decided. So the Times can now supplement its submission to the court due to a change in the law. The Times can ask that legal fees be given. And that is exactly what the Times should do.
(The briefs by the NYT and Trump campaign are at the bottom)
Trump, of course, is not the only one who starts vexatious defamation suits in order to quell negative opinions. He simply makes for a great example.
The suits have become more common with run-of-the-mill negative comments on sites such as Yelp, Google, TripAdivsor, etc. I’ve received my fair share of inquiries about them.
What I expect to see, if the lawyers defending the cases are paying attention, is motions brought now under the new law to not only dismiss but for the legal fees.
