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.


The Globalization of Elections Will be a Great Thing — Provided We Survive This Awful First Phase

The digital international interference in our election — ghastly and disastrous though it is — is just the first phase on a process of the globalization of the democratic and political processes.

If we start with the obvious assumption that people in all countries now have enormous interests in the results of elections in other countries, add to it the nearly as obvious assumption that the more they realize that, the more they will expect to have a way of communicating that, you very quickly get to the idea that the international system needs to build ways that those views can be communicated to voters in each country.

Without it any way condoning Putin’s behavior, or certainly Trump’s two-faced encouragement of it, nonetheless, seeing it as an expression of that desire to be heard by a highly powerless and frightened country, may help us think of long-term ways of ensuring that cross national voices are heard.

Of course, any such approaches have to be transparent, truthful, multi-lateral, and respectful — all qualities in much shorter display than they should be.

But imagine for a moment that a mechanism had existed for Russian voters to communicate to their US equivalents their of course overblown and hopelessly manipulated fears for Russians in the Stalin-Diaspora.  Maybe those fears would then have been less subject to manipulation and hysteria.  Of course, it would have been necessary for Russian voters to have known that the fears had been communicated, and at least to some extent, heard.  I wonder also how well the working class voters in the UK who carried Brexit knew what those similarly situated in the EU, many of whom they must have met in their now cheap European holidays, felt about the issue.

There is an interesting, but failed, precedent for this.  Back in 2004, the Guardian organized a project which encouraged Brits to write to Clarke County Ohio voters (cold communication), expressing their concerns.  The experiment backfired, with the Republicans making hay with the supposed interference.  Most Republicans appear to have been more sensitive about such things in those days!  (Maybe they are less concerned about covert involvement than transparent efforts.)  Looked at from the non-US point of view, of course, that over-reaction would have shown the rest of the world that the US was contemptuous of the views of outsiders.  Again, without justifying the conclusion, such a feeling would reinforce the sense that the only way to influence  US elections is covertly.

So getting Americans used to the idea will have to be a critical component of any strategy.

Some first thoughts on ways of moving forward in the short term might be:

Having Americans living abroad reaching out to people in their host countries and systematically sharing what they hear of what people want from the US with their networks and even in a new special public forum.

Similarly, encouraging those with family abroad to solicit the views of family and share them in such a forum.

Much better cross-national polling, with explanations of countries strongly held views and explanations for those views.

General encouragement of e-mail and other communication across borders — not in one direction, but reciprocally and multi-laterally, with a particular emphasis on linking people with similar backgrounds who would tend to trust each other.  (Much easier now with translation software.)

Having a televised Presidential debate before an international audience, and with the questions submitted by that audience.  It would be a great opportunity for grandstanding, but also a wonderful test of how candidates dealt with all the challenges of that environment.  Imagine to the message to the world about our understanding of our international responsibilities.

Having the various processes by which governments consult the public be expanded to welcome international views.  It is hard to imagine the incoming administration adopting such processes, but not so hard to imagine some state governments, such as those of California, dong so.  Indeed, to think of a concrete example, the California Courts adjudicate cases all the time involving those outside the US, particularly family cases.  Would it not make sense for the California Courts, in the process of soliciting opinions from their user, to listen to to out of country users?

That is all about communication.  In the long term, we need globalized institutions that provide reassurance to voters in all countries that their interests will be protected.






First Thoughts on the CIA Finding — We Need A Roberts Commission and Beyond

While there is a long history of countries (including ours) finding ways to mess with their opponent’s political system, this is sui generis, and leads to a thousand thoughts on where this takes us and leaves us.

The Threat of Illegitimacy and a Response

This is, actually,most parallel to the Kennedy assassination, in which fears of external influence were deeply believed, and deeply destabilizing.  President Johnson prevailed upon Chief Justice Earl Warren to take leadership of the Commission he established because he believed that Warren’s institutional and personal credibility would resolve doubts.  While the effort was far from fully successful, at least it was sufficiently so as to maintain the stability o our political system.

We need an equivalent non-partisan, completely credible, and fully supported process.  If Chief Justice Roberts can not be trusted, then we need a new Chief Justice, although I suspect that he is sufficiently an institutionalist that he can be trusted.  Given the increasing fear developing in the “traditional” GOP about this whole issue, it may well be that they would go all in.  Trump of course, could not b part of it, nor his minions, rather however it is set up, it must be done so all the agencies cooperate, without intervention from the White House.  I suspect that this has to be set up and in place before the inauguration.  I suspect that this first Commission would focus only on getting the facts out.

Assuming that Election Impact is Found, There are Ways to Shape US-Internal Consequences

What the consequences for our government leadership are to be has to be depends on the facts.  The problem will be getting in place a system capable of responding to the findings of the Commission.  Assuming that the finding is that there was an effort to get Trump in, and that we can not be sure if this is a cause-in-fact of the result, we are in a terrible place, although one compromise might then be that the party result remains the same, but a new Republican has to be chosen, untainted by any whiff of involvement, encouragement, or lack of concern.  The problem in terms of getting rid of him may be that Trump will not have committed an impeachable offense.

If, on the other hand, the result is found to be caused by the intervention — not impossible given current statistical tools — then may we need an urgent constitutional one time re-write to permit a new election.  That would need a broad national consensus, but if all the prior presidents joined in support, maybe it it could happen.  (And, since we know that Reagan is immortal, his ghost could chime in.)

Of course, it is also not impossible that an “innocent” President Trump would none the less commit an impeachable offense in the attempt to cover up the illegitimacy of his presidency.  It is also possible, as discussed here, that the “unable” language of the 25th Amendment would apply, particularly if Trump’s tendency to be out of touch with reality were exacerbated by the investigation and deterioration of this political situation.

Really Weird Things Could be Found

Supposing, for example, that it turned out that the emails found on Weiner’s computer that led to the FBI intervention in the election had been placed there by the Russians.  Or that hacking had created conflicts between Republican Presidential candidates that had not been there before.  (To think of more ideas, just speculate about what Nixon’s gang would have done if they had had high level hacking capacity.)

The Long Term Threat Goes Far Beyond Elections

Anyone in the leadership elite should be terrified by this.  Think what it threatens to corporations, banks, universities, the media, etc.  They are subject to just the same kind of disruption and potential blackmail as the political players at issue.  They are already deeply fearful of Trump, and this might give them a bit more spine.

The US is Ultimately Less Vulnerable Than Authoritarian Countries

While the interrelated epidemic of false news has made it harder to know what to believe, countries are far more vulnerable to this kindof thing when people basically don’t believe anything they get from media — which is what happened when you have centrally controlled media.  While their elections are not so much subject to disruption than ours, simply because they do not have them in any real sense, the economy, the inner network of real decision makers, the academic and media worlds, are totally subject to interference.  Those countries are not controlled not by a publicly derived and legitimated consensus, but by complex signals in a highly uncertain world, which if properly penetrated, can be caused to collapse.

Protecting Ourselves in the Future

Largely ignored is the simple truth that the best defense again hacking is transparency.

P.S. I would particularly urge you to share this with your networks, particularly anyone you know in media.

“The Presidential Responsibility and Disclosure Act of 2017”

We all know how a certain party loves to trigger “blame the victim” mythology by invoking the words “personal responsibility.”

Well, with the most irresponsible president-elect imaginable, one who even often denies doing what he has done or said, maybe its time to think about a “Presidential Responsibility and Disclosure Act.”

Such an Act, unlikely to be passed in the first 100 days, would provide:

That presidents would be required to disclose any benefits they might receive as a result of actions taken by them or their appointees, or those under their appointees control, including White House staff.  The requirement would be waived when the President put their assets in a blind trust that met the standard that the President could not know or speculate about the impact of the decisions.  In other words that not only the trust would be blind, but its assets would have been randomized.

That the President would be required to acknowledge and correct misstatements made by him or her or the White House staff, unless given a confidential waiver by a national security staff, and subject to the disapproval of two or more of the chairs or minority leaders of the appropriate congressional committees.  The requirements would also apply to such statements made during the campaign, with the corrections required to be made before the voting by the formal electors in December.  With respect to campaign aides, the requirement would only apply to those who then take up government positions.

That presidential tweets would be required to followed within a few days, by a citation of authorities. (Given how badly Trump does with those with grad school experience, this could be sold as having potential to improve his rating with this rapidly expanding demographic.)

That, in order to facilitate first amendment exercise by voters, presidential candidates would be responsible for releasing their full Federal, state and local tax returns prior to the first steps in the convention delegate selection process.

Any other suggestions?

It Might Not Be Too Early to Start The Affordable Care Act Repeal Deathlist

This would simply be a documented list of all the people whose deaths appear to have been caused or accelerated by the repeal of the ACA.

It would start now with any suicides triggered by anxiety about the fear of lack of health care coverage.

Such a list would include some demographic data, but with the identifying data kept confidential, unless the family wished otherwise.

The demographic data would allow generalizations about what groups are being hurt.  It would be particularly interesting to discover what counties they came from, and the voting patterns in that county.  I would guess that the impact will be much higher in those counties and states that do not have the resources to “replace” on their own.

Maybe just the threat of this list would make some “Repeal and Replace” advocates think very carefully about accepting a “replace” that was one in name only.  Imagine the list being used by an opponent in future elections.  Imagine if, regardless of that, a PAC threatened in advance to run those ads all over.



The Day After?

With the fivethityeight “nowcast” prediction getting frighteningly close to a 50% chance for Trump, it may not yet be time to panic, but it is certainly time for some realistic planning.  Maybe such planning will help us realize the scope of what is at stake, and keep us calm enough to stop disaster.

First, lets recognize that if Trump wins the electoral college, we wake up in a fundamentally different America.  We all have to think differently about our lives.

Above all, we will have to focus on what really matters.  There are really only three things, and they are chosen because of their irreversibility of failure.

1.  Maintaining our democratic constitutional system of government.  We have to maintain a relatively accessible electoral process, a free press that can and does comment without fear of government retaliation, and a legal and court system that protects the Constitution.

2.  Avoiding nuclear war.

3.  Continuing to move forward on climate change.

With a focus on those goals, a few rough initial generalizations about who might do what.

  1.  Federal employees — Shelter in place.  Hard though it may be to stay in as a representative of, and part of a government that is going to do terrible things, it is very important that as many people as possible are in place who remember than their obligation is to follow the Constitution, not the Leader.  Without such people in place, everything will happen much faster and more irreversibly.
  2. Leaders of organizations — Assert and Defend your group’s values.  It is not partisan to assert the values of your organization even if the leader of the country is directly and overtly dong things that are inconsistent with them.  To view passivity as the only form of neutrality is to collaborate and enable the destruction and defeat of those values.  This generalization applies with equal force to organizations within the federal government, but will be far easier for outside groups like the ABA.
  3. Those with some money — Use it.  It will obviously be critical that organizations that protect rights through information advocacy and litigation have the resources to do so.  Do not just make political donations, but ones guided by the broader need.  Similarly support those media groups that retain their independence — not all will.

That’s enough for now.

Do others have non-rant ideas to contribute?


State Dept Official Comments on What Retired Foreign Service Officers Can and Might Tell People Around the World to Reassure About Our Stability

At the American Foreign Services Association day at the U.S State Department on Friday, I got to ask John Hefferenr, Principal Assistant Deputy Secretary, and a career officer, about what retired Foreign Services Officers could and might tell their friends around the world to make clear that America’s institutions are not crumbling. (See my prior general post on the need for this kind of outreach through international networks of professionals and friends)

I did the best I could to reconstruct his reply, so this is not an exact quote:

First, I would say that retired Foreign Service Officers can say, write, or do anything.

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