December 2nd, 2022

My “Hate Speech” Policy

Prof. Eugene Volokh, challenging the new law. Photo courtesy of Tritton Productions.

Back in June, I wrote about New York’s attempt to force blogs and other social media websites to have a reporting mechanism for “hate speech.”

Since the new law goes into effect December 3rd, and there is a lawsuit challenging its constitutionality, I write again.

First off, I used quotes around “hate speech” because there is no legal definition that comports with the First Amendment. (“I know it when I see it” is not a definition.)

There’s no real definition because it’s impossible to define words that “vilify” or “humiliate” others. But that does’t stop New York from trying:

"HATEFUL CONDUCT" MEANS THE USE OF A SOCIAL MEDIA NETWORK TO VILIFY, HUMILIATE, OR INCITE VIOLENCE AGAINST A GROUP OR A CLASS OF  PERSONS
ON THE BASIS OF RACE, COLOR, RELIGION, ETHNICITY, NATIONAL ORIGIN, DISABILITY, SEX, SEXUAL ORIENTATION, GENDER IDENTITY OR GENDER EXPRESSION.

Most standup comics would have trouble under this law if they presented their material on a blog without a complaint mechanism — or if you wrote about their material on a blog. Basically, you couldn’t write much of anything about the social commentary from Lenny Bruce, George Carlin or Dave Chappelle.

When I previously discussed this, I wrote:

“Vilify? Humiliate? According to who? Such vague language is the hallmark of legislation struck down on First Amendment grounds.

Most anyone can claim they are humiliated by most anything someone writes about them, unless I guess, the words came off their own keyboard.

Did someone use the wrong pronoun? “How humiliating! Where to do I report this hateful ‘conduct’?”

Interestingly the bill does not say that if a “hate speech” comment is made by someone that it must be reported to any government authority. It simply requires that a website have a reporting mechanism to it, and that it must have a policy in place.

In other words, it’s a fundamentally toothless piece of performative legislation, except for the fact that it compels speech — it compels websites to come up with a reporting mechanism and policy.

Scott Greenfield thinks it doesn’t apply to him, and he may be right. His rationale is that Simple Justice doesn’t exist for “profit-making” purposes. He writes, as I do, whenever he wants, and about whatever he wants, and if you don’t like it you don’t have to read it. There is no fee to read. Go suck an egg. End of story, etc.

But what is the definition of a profit-making blog? The text of the bill doesn’t actually say:

(B)  "SOCIAL  MEDIA  NETWORK"  MEANS  SERVICE  PROVIDERS,  WHICH,  FOR PROFIT-MAKING PURPOSES, OPERATE INTERNET PLATFORMS THAT ARE DESIGNED TO ENABLE  USERS TO SHARE ANY CONTENT WITH OTHER USERS OR TO MAKE SUCH CONTENT AVAILABLE TO THE PUBLIC.

If I ran crappy Google ads on this site, the Attorney General could claim it qualifies as a direct revenue source as soon as one person clicked an ad and I made a dime. Would a tip jar on the side bar qualify?

Could a creative Attorney General claim that a law blog is used for indirect profit-making purposes? “Look, Mr. Blogger, every time you write you elevate your profile, and that leads to more business!”

In other words, pretty much the same argument if a lawyer wrote an op-ed, a law review article, gave CLE lectures or made television appearances. It doesn’t take a genius to argue that this is done as an indirect means of making profit, regardless of the attorney’s actual motivation in writing.

Yes, it’s a crappy argument, but would an Attorney General that already championed a bill that violates the First Amendment care?

This is what the law demands of a “profit-making” social media network. Rather than fight over whether I qualify, I prefer to come up with a policy.

First the language:

A SOCIAL MEDIA NETWORK THAT CONDUCTS BUSINESS IN THE  STATE, SHALL PROVIDE  AND  MAINTAIN A CLEAR AND EASILY ACCESSIBLE MECHANISM FOR INDIVIDUAL USERS TO REPORT INCIDENTS  OF  HATEFUL  CONDUCT.  SUCH  MECHANISM SHALL BE CLEARLY ACCESSIBLE TO USERS OF SUCH NETWORK AND EASILY ACCESSED FROM  BOTH  A SOCIAL MEDIA NETWORKS' APPLICATION AND WEBSITE, AND SHALL ALLOW THE SOCIAL MEDIA NETWORK TO PROVIDE A DIRECT RESPONSE TO ANY INDIVIDUAL REPORTING HATEFUL CONDUCT INFORMING THEM OF  HOW  THE  MATTER  IS BEING HANDLED.

And now my policy:

Reporting mechanism: My contact information is on my website, and the comments on the blog are currently open.

Policy: It’s my blog and I will accept or reject such comments as I so choose. I do not seek your approval, or that of any governmental official, to make my decisions. I might take action from a complaint, or I might not. I might tell you I took action, or I might not. I answer to no one. That is my policy.

Do you think my policy looks like a great, big middle finger to the New York government? Well, you might not be wrong. But the state doesn’t tell me what my policy must be, only that I must have one. And now I have one.

Currently, Eugene Volokh is refusing to put a policy in place and challenging this idiotic law on First Amendment grounds with the assistance of the Foundation for Individual Rights and Expression (FIRE): LAWSUIT: New York can’t target protected online speech by calling it ‘hateful conduct’

FIRE/Volokh point out that merely calling the words on a digital page conduct doesn’t make it so. It is speech:

The law is titled “Social media networks; hateful conduct prohibited,” but it actually targets speech the state doesn’t like — even if that speech is fully protected by the First Amendment.

Performative legislating sucks, be it from the right or the left.

Update: On February 14, 2023, this law was blocked by a Judge Andrew L. Carter, Jr. (S.D.N.Y.), as violative of the First Amendment. Eugene Volokh has the decision at the Volokh Conspiracy at Reason.

February 25th, 2019

Words You Should Never Use

Over the weekend, W. Virginia Chief Justice Beth Walker tweeted out a list of words that are banned from her opinions. It’s a good list, and one that all lawyers should note, as these words don’t belong in briefs either.

I’ve written before about crappy legal writing, from both the bar and the bench. It’s not that concise writing will necessarily win your client’s case but that at least your arguments can be appreciated. Far worse than writing a losing argument is writing an argument that isn’t even read because it makes the eyes glaze over.

Lawyers are (in)famous for cluttering our letters and briefs with pretentious, and wholly unnecessary, language, thereby distracting from the point.

A good quote to keep in mind is this gem that legal guru Bryan Garner tweeted out many years ago:

“Some of the worst things ever written have been due to an avoidance of the ordinary word.” — Henry Bett

A simple and favorite example from Garner of cluttering language is the humble transmittal letter that says, “Enclosed please find…” as if the recipient must go hunting for something.

My personal favorite are the openings to attorney affirmations that declare the writer is “duly admitted” to practice law. Is there any other kind of admission to practice other than duly?

Without further ado, these are the words that CJ Walker has banned, and with a follow-up of a few additional suggestions that came in response via Twitter. Rather than seeing that list buried in the billions of other Twitter messages, I preserve them here for easy access.

And now some others from her commentariat:

duly
utilize
at bar
impacted
heretofore
the undersigned

Since the function of an advocate it to tell a story to engage the reader and persuade, and the use of the stilted legalese distracts from that goal, the conclusion should be obvious. But, for some reason, it continues on.

February 14th, 2019

Cuomo Signs Child Victims Act for New York

Today New York joined the growing list of states that allows victims of child sexual assault to come forward and bring suit for that assault, even if the attack is decades old. The law will also extend the statute of limitations on criminal actions.

On the civil side, the Child Victims Act will allow people to proceed up to the age of 55, where they claim that they were sexually assaulted as kids.

On the criminal side, the statute of limitations won’t start to run until the child has turned 23.

But the time to bring civil suits comes with a narrow window of 12 months.

The twin problems, as widely discussed in the press, is on the one hand the human desire to suppress traumatic memories because they are so painful. Such suppression may occur when the alleged assailant is an otherwise trusted individual such as clergy, family, friends or educators. This allows the statute of limitations to slip by.

The other problem, of course, is trying to prove that the assault actually happened long after witnesses and physical evidence may have vanished, and memories may have dimmed. Or that if it happened, it happened as described by the complainant.

Anybody who watched the Senate hearings to confirm Justice Kavanaugh (or Justice Thomas before that) knows how tough it is to sort through old evidence.

The legislative details of the bill are here.

The law had long been sought by Assembly Democrats in Albany, but was blocked by Republicans that controlled the Senate. With the blue wave that swept the nation this past election, the Democrats took possession of the Senate and the bill has sailed through.

The law will become effective six months from signing (today, February 14) and then run for one year. This time lag will give the judiciary time to examine the law and prepare for new cases and, one might expect, for a variety of continuing legal education classes to pop up for lawyers about how to handle them.

One should expect that, in mid-August, a flurry of new lawsuits will be brought under the new legislation.

January 21st, 2019

The Death of the Stick Shift (Blame Safety) – updated

My first car looked a bit like this. Loved it.

My first car was a 1982 Honda Accord hatchback. Five-speed stick. Roll down windows. Manual locks. No A/C.

I learned to drive stick when my older brother needed me to drive his manual transmission car back from Philadelphia to Long Island. I got a lesson on Saturday. And drove it solo out of Center City Philly to New York on Sunday. Only stalled once.

My theory in buying that no-frills Honda was simple: The fewer automated things, the fewer things would break. And nothing ever broke. It was a great car and I used it for many a trip back and forth to Buffalo during law school.

But cars and Manhattan are not a good match and when I moved there in 1986 it was time to kiss it good bye. When I needed a car I would rent one and those rentals were far cheaper than the cost of garaging it.

(Hang with me a bit here and I’ll get to the safety and personal injury stuff.)

When I moved to the suburbs after 13 years of city living it was time to motor up again. But I had a problem, and part of that problem was a pipestem driveway. And Mrs. NYPILB (she loves that acronym!) didn’t drive stick, didn’t know from clutches, and didn’t want to learn the three-pedal two-step. In twenty years of marriage that’s the worst I can say about her so I figure I’m pretty far ahead of the game.

Having a two-car family and a pipestem driveway would mean constant car shuffling. I let the fun of driving stick slip away since my car was mostly going to the train station anyway. And that’s just the way it was.

When Dear Daughter was old enough to drive, she followed in her mother’s footsteps.

But Dear Son thinks differently. He’s a car guy. Want to know what that car in front of you is? He’ll tell you in two seconds based on the tail lights. At night. Ask him what he wants to be when he gets older and he’ll tell you a McLaren owner. But he’ll settle for a Lambo if he has to.

Until he started talking car stuff, I had no idea that tail lights could be an art. Or that there really was much difference. I was simply oblivious since I’m not a car guy.

So with the lease being up on my Subaru Impreza hatchback, I needed to go car shopping. But I confess that I love this vehicle because of its all wheel drive and the car’s many safety features, which you can’t dismiss when you’re looking at teenagers. Dollar-for-dollar you get a lot of bang for the buck.

I took Dear Son with me to look at a couple of cars, including the next gen Impreza. Guess who wants to drive stick? Yeah.

But the salesman let me know the deal: If I want the stick and clutch, I can’t get the Eye Sight Driver Assist. What’s Eye Sight? That’s the computer that not only beeps when you change lanes without signaling, but more importantly will automatically brake when a car or pedestrian is too close in front.

So if a car coming at you in the opposing lane suddenly makes the dreaded left turn in front of you, or a drunk pedestrian steps off the curb in front, the computer might well react before you. Split seconds can make a difference. Literally.

As you might assume from the bare bones ’82 Honda I started with, I’ve never been one for tech features in a car — I’m the type that never uses the cruise control. Digital doodads don’t light my fire. I want to drive a car, not be driven. And I think self driving features are dangerous because they promote inattention.

That’s one of the things about driving stick — you can’t be inattentive. Unless you are cruising on the highway you are constantly engaged. You’ll never see someone driving stick and texting, or eating a hamburger, or even drinking coffee. Not in local traffic, anyway.

Most collisions (not accidents) happen due to driver inattention, and driving stick is the opposite of inattention.

But there’s no getting around the fact that the Eye Sight Driver Assist is not only good tech, but tech that remains invisible until called into play. It’s part of the wave of advanced safety features that are coming as car companies automate their vehicles.

It’s part that same tech wave that will decrease traffic into emergency rooms, and the offices of personal injury lawyers. If you’re in law school thinking this is what you want to do, I strongly suggest you make a sharp turn sooner rather than later.

That tech, however, is incompatible with a manual transmission. You can choose between a valuable safety feature — one that will become far more ubiquitous as the years roll by — or the fun and engagement of driving stick. But you can’t have both.

Last year Motor Trend wrote that Subaru might kill the stick altogether in the name of safety. And Motor Trend wasn’t the only one reporting the news of the likely demise of the company’s stick.

(Another tech development that will help drive a stake through the stick is an app on your phone that allows you to remotely start your car minutes before you get there. When it’s 100 degrees outside, or 10 degrees, that’s going to be a valuable and desired feature. But manual transmissions get parked in gear, not neutral, and you can’t remotely start a car that’s in gear.)

Driving a manual transmission is not only fun, but a valuable skill. It allows you to feel how the car works, and be more engaged with your surroundings, even if you’re clueless under the hood.

Manual transmissions have, of course, been declining in the United States for several decades, due to ease of use for the automatic. Manual transmission used to at least have the advantage of being cheaper engines and better on gas, but even that has changed. The computers on the automatic now get better mileage than you can with the clutch.

When you add up the long term decline of stick due to ease of use of the automatic, with the breakneck speed of technological safety improvement, you get a recipe for stick-the-fork-in-it-its-done.

In ten years the manual transmission, beloved by a decreasing percentage of car drivers, will be little more than a specialty item that needs to be custom ordered. It pains me to say it, but the stick is dead. Ultimately killed by safety.

Update, October 8, 2019: The stick, as per this story in Gear Patrol, moves one step closer to demise with this painful lede:

Subaru has announced its updated pricing and trim level changes for the 2020 Impreza. Tucked away in the press release, however, is a bit of bad news for enthusiasts: there’ll be one fewer Subaru manual transmission option available as we move into the 2020 model year.

Ouch. And the reason is, as noted above, incompatibility with the safety tech of their Eye Sight computer safety stuff:

Development costs to add a new manual transmission are high. The take rates for them now are low. They have no place in an “electric” or “electrified” future and prevent universal implementation of Subaru’s EyeSight safety technology.

And the Impreza is not, by any means, alone:

The Outback, Forester and Legacy have all lost their manual transmission options entirely. Even the base WRX could be CVT-only when the next generation materializes. (These developments should not surprise at a time where even the BMW M3, the ultimate driver’s car, barely kept its stick shift.)

If you want to drive a stick, or make sure your kid(s) learn, you’d better do it sooner rather than later.

January 8th, 2019

Judges to U.S. on Shutdown: ‘Pound Sand’

What, you may wonder, happens to suits against the federal government when the money spigot closes? And if you have a suit against the U.S. — say a Federal Tort Claims Act action — what should you do?

Good questions. Glad you asked.

Many courts have simply issued stays of all civil cases. Civil ones aren’t as urgent as criminal cases, as no one has their liberty in jeopardy.

But you know what? At least two judges in civil actions have now told the Department of Justice to go pound sand. One in West Virginia and one in Puerto Rico.

In the Puerto Rican case, a judge called the government request for a stay “laughable.” As per the Bloomberg article:

In a ruling denying the government request, U.S. District Judge William G. Young said lapses in federal appropriations, like the current one triggered by President Donald Trump’s demand for funding for a border wall with Mexico, aren’t a government “policy” that could theoretically justify staying such a lawsuit.
“Let us talk plain — they are simply an abdication by the president and the Congress (which could override a presidential veto) of the duty to govern responsibly to the end that all the laws may be faithfully executed,” Young said in the Jan. 2 ruling in San Juan. “Nor does such a lapse in any way excuse this court from exercising its own constitutional functions.”
Young…sarcastically compared the situation to a major corporation that “for whatever reason” decided not to pay its attorneys involved in pending litigation and instructed them not to interact with the court.

“Then the corporation says to the court, ‘We greatly regret any disruptions caused to the court and to other litigants, but please stay all proceedings until we get our act together.’ This does not constitute ‘good cause’ for any stay,” Young wrote. “In fact, it is laughable.”

Order-Stay Denied Download

Lawyers hate it when the judge calls your arguments “laughable.” There was no justification, in Judge Young’s view, for treating a plaintiff and defendant differently when it comes to moving a case forward. An excuse that doesn’t work for the plaintiff won’t work for a defendant.

In the West Virginia action, one judge issued an order granting a stay for all civil cases affected by the shutdown. But another judge said, nope, no way, not in my courtroom.

U.S. District Judge Joseph Goodwin issued a general order Jan. 2 exempting civil cases assigned to him from the federal shutdown.

So what happens if you have an action against the federal government? We’re not talking about immigration cases or police department consent orders or the census. We’re talking nuts and bolts basic cases of the type that don’t find their way into the news.

My suggestion? If a case is ready for suit, file that suit. Push the case forward. Take advantage of the fact that the defendant might not have a lawyer right now due to its own malfeasance.

Can you imagine starting a suit and the government failing to answer? A default. An automatic win for the plaintiff. Move straight forward to an assessment of damages.

Will a judge allow the default to go forward? It seems like it will depend on the judge. Some have clearly told the government to pound sand while others are cutting it slack.

But the argument by both Judges Goodwin and Young is compelling: The plaintiff in a civil suit against the U.S. would not get the benefit of a stay because the lawyers ran out of money, so the U.S. shouldn’t either.