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.

 

December 2nd, 2020

Section 230 and Me

The late Speaker Tip O’Neill once famously observed that “all politics is local.” I’m not going to argue with that, especially when so many people scream “It’s all about me.”

But I’m not too keen when the press does it. And so the headline in this Washington Post article about Section 230 immunity rankles me:

Section 230 refers to a small portion of the Communications Decency Act that gives immunity to information providers for the things that other people might comment on. The nuts and bolts of it are these 26 words:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

These 26 words are very broadly interpreted. It means, for example, that if I blog a piece about Joe Shlabotnick inventing a new baseball, and the reader comments devolve into a virtual screaming match about Nazis and accusing each other of crimes, that I am not responsible for what you write. I can’t be sued for defamation over them. Or at least not successfully sued.

I can even take a comment, add headings and illustrations, and elevate it to a guest post and still be immune from being sued for defamation as the publisher. So sayeth New York’s highest court back in 2011 in Shiamili v. The Real Estate Group of New York when a blog did just that.

Without that protection, what is a blogger supposed to do if there are complaints that comments are defamatory? Do an investigation? Conduct discovery? Take depositions? And I supposed to take down a comment merely because someone else says it’s defamatory? How should I know who is telling the truth? Or if the truth is a hybrid of both positions?

This is the stuff that trials are made of after a couple years litigious digging about. Without the protection, the comments are neutered.

All politics is local. The law affects me. And it affects you, should you wish to make comments or simply read them.

Now take my concerns about comments on this humble little blog and magnify them by a bazillion. Because that is what Facebook, Google, Twitter, etc. all have to worry about. Demanding perfect moderation of comments is to demand the impossible.

Section 230 is a huge part of the engine that makes the web truly interactive, where you can not only read and write product reviews on Amazon, but also visit a small restaurant or hotel in Ottumwa, Iowa while visiting your old friend Radar. And then leave comments for future visitors on Yelp or Trip Advisor, and those web sites don’t have to fact-check your comment about the rude conduct of the waiter or desk clerk for accuracy. Because such moderation would be impossible.

Now Trump is threatening to veto a defense bill because he doesn’t like section 230. I won’t pretend that he actually understands the significance of it, but you should. And “tech giants” is only a part.

Perhaps he merely knows that when he incessantly spins fictitious conspiracy tales of election fraud that Twitter labels them as disputed. Trump, as everyone knows, is a Twitter addict. He thrives on being able to spew on it. And he clearly isn’t happy that Twitter itself is fact-checking him, so perhaps he just wants to get back at Twitter.

Twitter, of course, is only responsible for what it writes, not what others write. Thanks to 230.

(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.)

You may think that with Trump leaving office (even if the Secret Service needs to haul him out for trespassing) that this doesn’t matter. It does, because Joe Biden likewise thinks section 230 should be revoked.

The media may wish to focus on how this affects the tech giants — hey they got money, why don’t they just do a better job of content moderation? — but it affects me. And you.

It’s true that the comments on many sites are little more than a puddle of spittle that are unworthy of notice, except perhaps, noticing them for the purpose of avoidance. Some sites may allow people to do and say horrible things.

But it’s easy to identify problems. The hard part is finding solutions. There is no magic bullet for comment moderation. There is no artificial intelligence program that can figure out if the waiter or desk clerk in Ottumwa really was rude to you and if your comment about the incident was fair and accurate. Artificial intelligence can’t know if the product you ordered and reviewed online really was crappola.

If Section 230 is destroyed then many sites will simply stop allowing comments. Or, upon any complaint simply take down the comments of others, thereby giving a heckler’s veto to the complainant over the commenter without regard to accuracy.

The issue of Section 230 is not some esoteric lawyer thing. It’s fundamental to the way we now interact with others and how the internet functions.

I haven’t written about this before because I never took attempts to remove 230 immunity seriously. But when voice is given to it by both an outgoing and incoming POTUS, and the press pretends it’s only about “tech giants” then it is time to make sure you know what is at stake. What is at stake are both the comments you read and the comments you make.

If you are interested in more:

Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act (Masnick @ Tehdirt)

Everything you Need to Know about Section 230 (The Verge)

Can Section 230 Be Reformed? (Greenfield @ Simple Justice, 12/23/20)

I wrote this law to protect free speech. Now Trump wants to revoke it (Sen Ron Wyden @ CNN)

Section 230 is Good, Actually (Kelley at Electronic Frontier Foundation)

 

November 12th, 2020

Cuomo Signs Anti-SLAPP Bill (And it’s Trouble for Trump)

On Tuesday, New York Gov. Andrew Cuomo finally signed anti-SLAPP legislation that had passed the Legislature over the summer; a bill I’ve been advocating for several years. Being hit with two frivolous defamation suits over my blog posts can have that effect.

The legislation commands an award of costs and legal fees (“shall”) for frivolous defamation suits that are brought in order to stifle the free speech rights of others.

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 Hoylman joined 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.

Currently pending is a defamation suit he brought against than the New York Times earlier this year where the paper published an opinion column about a quid pro quo between Russian officials and Trump’s 2016 campaign:

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.

I ripped this suit when it was first brought. And reminded folks of his moronic defamation suit against Univision, and of the time he lost a defamation suit to biographer Timothy O’Brien.

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.

NYT Memo in SupportDownload
Trump-OppositionDownload
NYT-ReplyDownload
Trump Supplemental OppositionDownload

 

November 11th, 2020

Blaming the Lawyers – Election Edition

It comes as news to no objective person that Joe Biden won a sweeping victory in the election — both in the popular vote and most likely in the electoral college when the counting is done — and that Donald Trump has lost.

But Trump, being Trump. won’t accept that people have done the rare thing of voting an incumbent out of office. They usually win.

So he’s going to court screaming fraud, or something, and trying to do this in multiple states. Some places he wanted them to keep counting votes and others to stop counting. None of this is in the least bit surprising, because Trump.

But a deeply troubling thing has happened. The Lincoln Project, a group of #NeverTrump conservatives who knew that Trump was neither Republican nor conservative but only out for himself, has decided to attack the lawyers bringing the suits:

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.

This is a very bad move.

If lawyers come into court with frivolous suits, then courts can do two things: The first is to dump the suits.

The second is, potentially, to sanction the lawyers if the suits were without basis in law and fact. Courts, after all, have an inherent power to control the conduct of those that come before them and sanction those who use it for an improper purpose. (Chambers. v. Nasco)

So let the lawyers make their arguments. If they go too far in representing their client and overstep their legal and ethical bounds, the courts can take care of that issue

And these would be good things. Let the Trumpers see that the claims of fraud were meritless, and to the extent they existed, they were isolated circumstances where the votes could be counted on fingers and toes. And from both sides.

Sunlight, Justice Brandeis once wrote, is the best disinfectant. Let the world see a lack of merit. Let the world see Trump lose. Over and over and over again.

The one thing we should not want is for anyone to say that he was denied his fair access to the courts and a fair count. Trying to intimidate lawyers away from representation could do that.

Let the courts prove the election and count were fair. Let the courts shove the fairness down Trump’s throat.

Attacking the lawyers for having a reprehensible client is the wrong move. For even sociopaths have a right to due process, and have a right to have their claims heard. And rejected.

Indeed, having the courts reject bad claims is the best possible outcome at this point.