A Contrarian View on Libel Law — Dealing with The Situation in Which The Courts Should Be Available to Establish The Truth, and Cheaply, While Making Sure that Libel Law Remains a Tool That Can Be Used By Truth Seekers To Counter Merchants of Hate

So the great and the good (and me, this time) get all upset when Trump talks about loosening libel law.  It not only fits with his ignorant aggrieved victim persona, but can be very effective at intimidating critics.

But maybe we should be thinking about it the other way.  Surely, if libel laws were easier to use, Trump would be the one in most trouble.  He is the one who shows the most contempt for the truth. the least consideration of the impact on others for his words, or tweets, the most propensity to state the impossible, the least willingness to back down, even when proven wrong, and the greatest tendency to make utterly inconsistent and destructive statements.

More importantly, while the increasing and consequence-free use of “false facts” is not caused by our current libel law, the difficulty of bringing libel cases against has made it much harder to stand up against such “facts” and to get social clarification and consensus for their falsity.

While public figure libel law has become more than a little technical over the years, the core reason remains the same, to prevent the victim of a good faith factual error from being held up to ransom and effectively silenced by litigation.  Its far more the cost of the litigation that acts as the deterrent (something Trump uses all the time) and so the effort is to cut this cases off quickly.

With 50 years of experience under our belts, and with the risks of lies in the political arena being far greater then they were then, maybe it is time for a nuanced look at the law, trying to make sense of a mix of goal, rather than see it as a matter of “loosening” or “tightening” them.

To be specific, I think most people would agree on the following:

Neither people or the media should be chilled from saying what they really believe to be true.

There IS a difference between a false fact and a misguided or wrong, or even maliious opinion.

The media should not bear huge litigation costs whenever someone does not like what they say.

Institutions to help in establishing truth are necessary function in a democracy.

When an assertion is beyond the bounds of reason, and the person responsible refuses to retract in any way, society needs mechanisms for establishing truth, and for doing so in a way perceived as legitimate by most.

Notwithstanding all the problems with the adversary system, the fact remains that the combination of a neutral fact finder, following formal rules, with presentation of evidence and confrontation of that evidence by all sides, and appropriate finality, is an amazing (if often expensive) engine for finding truth.

All of which leads me to the conclusion that the legal system needs some mechanisms for these situations, and that current mechanisms are failing.  Here is one thought:

A system of declaratory actions in which one who claims harm in a false statement about them can obtain a declaration of falsity, after a due process hearing.  State of mind is not in issue, and neither is damages, thus making this a far cheaper process for all sides.  A judgment would be subject to appeal, but not be res judicata in any subsequent damage action (Note to non legal jargon experts: this means that the truth or falsity finding can not be relied upon to obtain damages, even in a new case.)  As a practical matter, one found to have uttered a falsity is going to appeal to the court of public opinion to explain why they made the statement, but it is not at that point a legal matter.  Circumstances will be debated, but not at huge cost.  (Of course, truth can indeed change with new evidence over time.)

With such a new tool, no one would be precluded from attempting to obtain damages in a separate procedure, but current substantive legal standards for public figure libel would apply in that procedure.  Damages would depend on the level of culpability — i.e. contempt for the truth — as well as actual damage.  Thus a tool would continue to exist to use against that hate speech that was also libelous.  Such cases would be much rarer, much more expensive, and not used against the media, but against Nazi and hate groups that went beyond opinion.

I think that this would pass constitutional muster under New York Times v. Sullivan, given that nothing is being changed about speech suppressing substantive standards.

 

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The US Has Three Paties, Not Two, and Coalition Government, Not Single Party Government

Brilliant and transformative reporting by Politico on the collapse of  the Trumpcare/Ryancare agenda shows that we have passed a critical step in moving from having two parties to three.  A consequence is that we no longer have single party government, but coalition government — and a dysfunctional coalition at that.

The key paragraph describes the crucial March 6 meeting of the Freedom Caucus, just after the release of the plan.  The members of the Caucus were deeply aware of the intense pressure about to be put on them, and fearful of one on one appeals:

In a conference room in the Rayburn House Office Building, the group met that evening and made a secret pact. No member would commit his vote before consulting with the entire group — not even if Trump himself called to ask for an on-the-spot commitment. The idea, hatched by Freedom Caucus vice chairman Rep. Jim Jordan (R-Ohio), was to bind them together in negotiations and ensure the White House or House leaders could not peel them off one by one.

With about 36 members, and although only about two thirds formally took the pledge, given the numbers, that was really the end of the game.  The Caucus were so protective of each other that at one meeting, when Ryan tried to get each of them to state where they stood, the gorp in effect refused.

So, going forward, once the Caucus takes this position, nothing can get passed without Democratic help, and that’s even before counting the most moderate members of the House.  Perhaps even more importantly, the group has demonstrated that they are willing to take and hold by such a position, regardless of cost to President, Speaker, and their nominal party and its agenda.  Add the requirement of a coherent intellectual structure (which they have, using a technical definition of coherent) and you pretty much have at least a congressional party in the Freedom Caucus.

There are many problems with having coalition government, but right now perhaps the worst is that there is no institutional experience in managing such a situation.  Indeed, the only ones who seem to have thought it through are the Democrats, including particularly Nancy Pelosi, who had in the last Congress brilliantly kept her caucus in line and used that unity, with the very skilled help of the President, to extract maximum advantage.

Going forward, this means huge leverage for the Democrats, provided they maintain the message discipline of keeping sufficiently quiet that they do not force the two Republic sub-parties back together.

It also means that there has to be a serious question as to whether through public splits and primaries the sub-become really separate parties, and perceived as such by the public.  It helps that there are already strong links to at least two Senators.

Trump is already attacking Ryan, even if only indirectly so far.  Given the Caucus veto on any successor, and given the total lack of appeal of the job of speaker, its hard to imagine any path forward that way.   It is all a recipe for disaster for the group formerly known as the Republican Party.

 

Is There Any Analogy to What Just Happened?

Maybe if George McGovern had won the White House in 1972, and then kept fighting the Vietnam War.

Or if Bill Clinton had urged health care and the Democrats had passed it 50 times in the prior 8 years.

Or if Reagan had won and shrunk the military budget.

Or if Carter had not passed amnesty.

In, other words, it is hard to imagine a more central promise made by a party then given the tools to fulfill it, that got “moved on” from.

Thats not how you win coming elections.  Midterms or Presidential.

A Wholly Different Legal Way of Removing President Trump

There has finally started to be some attention to the 25th Amendment mechanism for removal of the President (Larry Tribe on MSNBC, transcript here).

The main problem is that surely welcome such a development, can not be seen to doing so.

However, there is another legal mechanism.  Surely any document is subject to forms of legal challenge when the signatory lacks sufficient mental capacity to sign it.  And, remember, the level of capacity required depends on the complexity of the document and issues, and to a certain extent its importance and significance.

So,  what about all those Executive Orders?  What about any bill that might get passed?  How do we know if Trump had or will have the mental capacity to sign them.

Think about it this way.  As a lawyer, given Trump’s constant changes of direction, denial of reality, and inability to engage with, remember the accuracy of , and act on, facts as presented to him, would you be willing to submit his will to probate? Surely yes.  Would you tell relatives who wanted to challenge the will that there can be no case at all if lack of capacity?  Well maybe yes, maybe no.  But, more importantly, is it the case that under no theory could the case be made?  Not so sure at all.  Moreover, it is far from clear that the capacity standard for the signing of an Executive Order or a Bill is as low as that for a will.  (Think of it as a will that gives away the whole country!)

While it is hard to imagine a court ultimately voiding Trump’s presidency based on this, it is not hard to imagine this as a way of legitimately and legally drawing attention to, and promoting discussion of, the 25th Amendment approach.  Indeed, the only reason it is hard is because if the evidence started to stick together, the 25th Amendment process would kick in.

Any thoughts, folks?

 

The Latest Acheivement in the Distortion of Language

Ever since George Orwell’ writings, we have known that some of the most effective demagoguery is related to the distortion of language.  The latest example demonstrated with no sense of irony, in this from Politico:

“Pretty much anything with the pejorative suffix on it — ‘care’ — is going to be viewed unfavorably by conservatives, said former longtime Mitt Romney spokesman Ryan Williams, who was with the Massachusetts governor when he signed Romneycare. Romney had hoped to tout it in his 2008 presidential campaign, and he campaigned on a promise to repeal Obamacare in 2012.

Turning “care” into a bad word surely ranks as one of the great linguistic triumphs of the 21st century.

It would be equally sadd, but only in a long term sense, if the word “republican” completes its already begun journey to equivalent negativity.

 

Why Did Sessions Not Report His Russian Contact to the FBI?

According to the Washington Post:

One of the meetings was a private conversation between Sessions and Russian Ambassador Sergey Kislyak that took place in September in the senator’s office, at the height of what U.S. intelligence officials say was a Russian cyber campaign to upend the U.S. presidential race.

Given the context, I find it hard to believe that Sessions would not have told State, FBI, CIA or NSA about that contact.  Moreover, surely any sane politician would have written a “memo to file” as a future potential defensive tool.  I would have assumed that they one or more of the above would have known anyway.

I regard the apparent absence of both (or even just a failure to report them by now), as something close of consciousness of guilt — although I have no personal knowledge of such general procedures, or what he did.

This story is just not going to go away.

 

Why “Americans by Birth” Are Threatened by “Americans by Choice” and How to Fix That

Its clear that many “Americans by Birth” are deeply threatened by “Americans by Choice,” also known as “immigrants.”   But, why?

Traditional explanations cite job fears, cultural threat, fear of the unknown, not to mention simple racism.  All surely play their role.

But let me suggest that some of the reaction is explained by the fear insight buried inside “Americans by Birth,” that they have actually shown less committement to this country that “Americans by Choice,” most of whom have displayed determination, ambition, risk-taking, and sometimes extraordinary courage to get here.  (I certainly exclude my own privileged path here from this description.)

I wonder if “Americans by Choice,” particularly those already public about their status, should explicitly make the point that: “We Americans by Choice thank you, Americans by Birth, for building this into the country we want so much to stay in and help continue to build.”

That is a hard message to reject, and while perhaps implicit in the desire to stay, not necessarily yet heard by those in fear.