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Is it time to get over it yet?

Thursday, January 7, 2021

Way back in the year 2000, when the Supreme Court probably stole an election from the Democrats, an outcome that surely accelerated the tendency toward fascism in this country (George Bush and Dick Cheney are masquerading as good guys now, but they helped lay the groundwork for the very stable genius), we Democrats were advised to “get over it”, and some of us did. Even Al Gore accepted his fate with grace.

Fast forward to 2020 when there could be no reasonable doubt but that Joe Biden won the election, both in the popular vote and the Electoral College. Mysteriously, the same folks who told us to “get over it” in 2000 couldn’t bring themselves to get over it in 2020, even though, strictly speaking, there really wasn’t anything to get over.

Yesterday, the person who holds the office of President of the United States incited a physical attack on the United States Capitol and the United States Congress. That attack had been implicitly supported by a number of members of that Congress, who were prepared to contest the unquestionable result of a presidential election on the specious grounds that because their party had managed to delude a great number of people into believing that the election had been stolen, in large part because those very politicians refused to acknowledge that the election had been honestly won, it was necessary to set aside the results of that election in order to determine whether the delusions they themselves had encouraged had any substance.

It is not at all clear that the deluded Trumpers would have listened had every Republican but Trump strongly asserted the obvious: that Joe Biden won the election fair and square. They might still have believed Trump, but had the electoral vote count been treated as the formality it is, rather than as an opportunity to overthrow an election (and a Republic in the process) it is unlikely that yesterday’s events would have played out the way they did.

But as we’ve seen for Oh these many years, indeed since long before the year 2000, Republicans have no respect for the democratic process. They care only about securing power and using it to serve the interests of the autocrats.

So, if history is our guide, it is now time for the Republicans to tell us that we must get over it once again; that Trump is gone, or will be gone, and there is simply no reason to remember the past, the “past” including even yesterday’s events. Trump should now, we will be told, be considered an anomaly, despite the fact that he was a natural outgrowth of the Republican Party that supported and enabled him. That being the case, we should not hold the Republican Party responsible for the seditious acts of its followers, and perish the thought that we should attempt to hold people like Hawley and Cruz responsible for their actions. The time has come, we will be told in the next few days, to get over it. Much of the media will come around. Keep your eye on David Brooks, as he attempts to both sides it.

We will also be told that by no means should we hurt their feelings by using the “F” word against them, though fascists they are, or pointing out that they are handing their party over to some of the folks who were involved in the rioting, or that the number of arrests so far is suspiciously low, considering what happened and the ease with which so many could have been apprehended, had the planning been proper, all of which that nasty Paul Krugman is talking about, but who listens to him. No, we should keep in mind, as Lou Dobbs tells us, that in these times when the “country is dealing with trying to constrain lethal force”, something that never bothered him before, that this would be a “poor time to suggest that Capitol Hill police should draw their weapons on American citizens” since, we can infer, these Americans are mostly white and “most of whom are patriots”.

We lefties should remember that the memory hole is there for a reason, and these events should be rapidly consigned to that hole. After all, we have Hunter Biden to think about and that’s something we should never forget!

AFTERWORD: I stated above that the Supreme Court “probably” stole the election in 2000. I used the term as I wanted to be strictly accurate. They stopped a recount, which may well have tipped the scales to Gore, but may also have resulted in a Bush win. We will never know. What we do know is that the court had the mens rea, as we lawyers say, necessary to secure a conviction for attempted theft.

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More libel suits, please

Tuesday, January 5, 2021

Dominion has had some success in getting Fox to back down by threatening libel actions, and is threatening to sue Trump and his attorneys.

This may be one way in which the spread of disinformation can be halted.

Last night a group of people staged a candlelight vigil at Josh Hawley’s home, protesting his pre-announced attempt to destroy our democracy. He, in turn, accused the peaceful demonstrators of being “Antifa scumbags” who committed acts of terror and vandalism at his home. Naturally he was lying, as the videos of the entire event demonstrate.

The people involved in that demonstration were not public figures, which means that if they were to sue Hawley for libel, they would not need to prove actual malice, only that he was lying. Nowadays, it would seem the burden of proof should be on a Republican politician to prove he or she was not lying with regard to any particular statement they might make, but even sticking with the previous standard, it wouldn’t be hard to prove Hawley was lying. My dim recollection of libel law is that it is a libel per se if one is accused of a criminal act, and vandalism is a criminal act.

If these people keep getting sued, with the attendant humiliation of having to eat their words, they might just think twice before engaging in this sort of rhetoric.

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Guilty with an explanation

Tuesday, January 5, 2021

CTBlue has come into possession of the draft of a brief written by somewhat reputable lawyers retained by the very stable genius to represent him in his upcoming criminal cases, including that arising from his attempt to threaten the Georgia Secretary of State into changing the election results. This is a draft related to the Georgia case, and is clearly not the final product, as our sources tell us that it is anticipated that the number of examples of actions proving Trump’s mental illness will be greatly expanded. Our sources tell us that they have every confidence that the anticipated defense will be successful.The complete draft follows:

MEMORANDUM IN SUPPORT OF PLEA OF INSANITY

FACTS: Defendant Trump submits that he should be allowed to plead “Guilty, with an explanation” to the crimes of which he has been charged, the elements of which offenses are conclusively established by 1) an unfortunate tape recording of a conversation among the defendant, the Georgia Secretary of State, and the Secretary’s counsel, and 2) almost every word that has come out of his mouth since November 3, 2020.

The “explanation” consists of the fact that the defendant was legally insane at the time he committed the acts of which he is charged. For that matter he was insane for years and years before he committed said acts and remains insane today.

I. ARGUMENT

The court hardly needs reminding that a person is not responsible for criminal conduct if, at the time of the offense, as a result of a severe mental disease or defect, he or she was unable to appreciate the nature and quality or the wrongfulness of his or her acts.

Defendant submits that it is obvious to even the casual observer that, given this definition, he is insane. In fact, using almost any definition, it’s obvious he is insane. In support of his position, the defendant submits the following.

II. IT HAS LONG BEEN OBVIOUS THAT THE DEFENDANT IS MENTALLY ILL

The defendant’s mental illness has long been obvious, such that even obscure bloggers in Connecticut were commenting on it shortly after he was elected to the presidency by a deluded minority of American voters, and mental health professionals soon weighed in with their considered opinion that the defendant is bat-shit crazy..

In further support of this assertion, let facts be submitted to a candid world:

  • Only a mentally ill person would suggest that one should inject Lysol.
  • Only a mentally ill person would publicly brag -over and over- about winning an award that doesn’t exist.
  • Only a mentally ill person would call a news conference, answer questions for 6 minutes, and then free associate for 56 minutes.
  • Only a mentally ill person would take an unproven and dangerous drug against the advice of all experts, to which experts said person had immediate access.
  • Only a mentally ill person, charged with the responsibilities of being President of the United States, would demand that Americans waste water because he is unable to get his toilet to flush properly.
  • Only a mentally ill person would claim to see things that he never saw, unless he was lying, but that probability will be discussed in the next section of this brief.
  • Only a mentally ill person would gushingly praise a foreign leader after said foreign leader humiliated him.
  • Only a mentally ill person would expose himself to needless ridicule by altering a weather forecast with a sharpie instead of simply admitting that he is not a weather forecaster.
  • Only a mentally ill person would make the phone call at issue in this case.
  • Even in America, only a mentally ill person who was holding elective office would consider his own petty personal interests to be more important than the lives of thousands of people lost to plague due to his indifference to their plight, and only a mentally ill person, charged with such responsibility, would actively encourage people to ignore medical guidelines designed to minimize the illness and death caused by such a plague.

The foregoing is simply a sampling of links tagged by the aforementioned obscure Connecticut blogger with the tag “Trump Mental Illness”, with other examples so well known that links are not required. The undersigned attorney for the defendant has queried multiple individuals and all agree that the defendant has done so many crazy things during the course of the last four years that it has all become a blur, and that the foregoing is not even a representative sampling of the hundreds of things that defendant has done and said that establish beyond doubt that he is mentally ill. While diagnoses differ with respect to his secondary issues, most professionals agree that his primary problem is extreme narcissism.combined with a sociopathic personality, pathological lying and paranoia.

Defendant, through, and at the insistence of, his attorney, readily admits that this diagnosis is accurate, so far as it goes, though it really just describes the tip of the iceberg.

Thus, the first element of the defense, mental illness, is clearly established.

III. DUE TO HIS MENTAL ILLNESS THE DEFENDANT WAS UNABLE TO APPRECIATE THE NATURE AND QUALITY OF THE WRONGFULNESS OF HIS ACTS

This court can take judicial notice of the defendant’s conduct both before and during his term of office.

It can take notice, for instance, of the fact that fact checking organizations have established beyond doubt that you can tell when he is emitting an untruth when his mouth is open. However, defendant, through counsel, urges the court to consider that while the defendant never tells the truth, he also never lies, because he always believes his lies while they are coming out of his mouth, though he may not believe them, or believe that he said them, a minute later. The court should also take judicial notice of the undeniable fact that while the defendant, given his position, has access to the actual facts pertaining to any given situation, through intelligence briefings and other reliable sources, his mental illness has led him to prefer to believe any conspiracy theory that suits his purposes.

The court can also take judicial notice of the fact that the defendant’s entire life story establishes beyond doubt that he cannot tell right from wrong. The undersigned attorney has had prior experience with clients who cannot tell right from wrong, but those individuals would refrain from doing the wrong thing if it was explained to them that it was wrong. This defendant is incapable of even that level of behavior, because his narcissism convinces him that he is entitled to do whatever he feels is in his own self interest, even though he is often (usually?…almost always?) incapable of seeing what is actually in his best interests.The court can take judicial notice, for instance, of the undoubted fact that had he done the right thing with regard to COVID, as he was advised to do by the few experts he allowed to approach him, he might have actually won the recent election, which does make one wonder whether God sent COVID in order to save our democracy. But that question may be left to the theologians to debate.

Thus, the second element of the defense is satisfied in that the mental illness from which the defendant suffers prevents him from appreciating the difference between truth and falsehood, and to differentiate right from wrong. It remains to determine if the defendant’s mental illness was a factor in the specific crimes alleged.

IV. THE DEFENDANT IS NOT GUILTY (BY REASON OF INSANITY) OF CRIMINAL ACTS IN WHICH HE ENGAGED

In the instant case the defendant is charged with 1) threatening a state official in order to get said official to perform an illegal act; 2) attempting to overturn the results of an election; and 3) solicitation of election fraud, as well as a number of other criminal violations the undersigned is too lazy to list. As stated above, the defendant admits, again at the adamant insistence of his attorney, that his acts, had they been committed by a sane person, would be sufficient to warrant a finding of guilty on all counts.

However, as has been set forth above, the defendant suffers from a mental illness that deprives him of the ability to know right from wrong or truth from falsehood. At the moment the defendant emitted the falsehoods to the state officers in question in this case, he believed them with all his heart and soul, though as a matter of law he now stipulates that he had no rational foundation for doing so. But isn’t a lack of rationality a further proof of insanity?

When he threatened the state officials he was just doing what he has done all his life, a life in which he was never even told that such behavior was wrong, not that he would have cared. The court should also consider the further extenuating factor that his political party, rather than telling him this sort of thing was wrong, actively encouraged this behavior when only a single Republican in Congress voted to impeach or convict him of precisely the kind of behavior of which he is now accused.

So far as attempting to overturn a fairly run election, the court should bear in mind that the defendant has always lived his life believing that he should do whatever it takes to benefit himself, no matter the harm it does to others. Given his mental state, it would never occur to him that it was more important to have a functioning democracy than four more years of his incompetence.

V. CONCLUSION

It is respectfully submitted that the court should find the defendant not guilty by reason of insanity. While the defendant would prefer that he not be committed to an insane asylum for the rest of his life, he recognizes that probability, given that he is somewhat of a danger to himself, and a definite danger to others. All things considered, however, he prefers an asylum to spending the rest of his life in prison.

RESPECTFULLY SUBMITTED

Dewey, Cheatham and Howe
(Not affiliated with Rudy
Giuliani, Sidney Powell, or Lin Wood)

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Senatorial Follies

Saturday, January 2, 2021

The New York Times and others have reported that ten Senators have joined Hawley in pledging to vote to steal the election for Trump. The eleven are a mix of Senators with presidential ambitions and newly elected freshmen Senators.

Let’s put the freshmen aside for the moment,and concentrate on the presidential aspirants. The question that arises is: Why are they doing this and will it work for them?

Each of them are perfectly aware of the following:

  1. They will not prevail in the Senate.
  2. Joe Biden was lawfully elected president and there is not a smidgen of evidence to the contrary.

So, first question: Why are they doing this?

They have each placed a bet that the presidential nominating contest in 2024 will be decided by the most brain dead of the base, the Trump dead-enders. They want to get the support of that base for 2024. This part is obvious. We can certainly exclude that they are doing this for any sort of principled reason, because see item 2 above.

Second question: Will it work?

This is the harder one to answer. When Hawley appeared to be acting alone, one could make the argument that he was positioning himself to get a lock on the brain dead vote, but now that his potential rivals have gotten in on the act, it is unclear that any will benefit vis a vis the others to any great extent. Perhaps that was Cruz’s thinking when he recruited the others. After all better to split the field at the start than to leave it to one guy.

But it seems to me that everyone of them is assuming something not in evidence: That Trump himself will not be a factor in 2024, either as a candidate himself or, as we see him today, someone intent on wreaking vengeance on Republicans who he believes have betrayed him by not stealing the election for him. Mind you, in his book, it’s not sufficient that they try to steal the election, it is only sufficient if they succeed. It would not surprise me at all if Trump spent 2024 tweeting out denigrating comments about folks like Cruz. After all, it’s not like he hasn’t done so in the past. And remember what Robert Vaughan’s villain in Superman III had to say: “It is not enough that I succeed, everyone else must fail”. Trump, not having been successful, may very well want to be sure that everyone else fails.

It is at least marginally possible that there will be a sufficient number of whackjob candidates in 2024 such that they split up the whackjob vote so much that a lesser whackjob, like the supremely hypocritical Ben Sasse, would sneak through to the nomination. He would then also have to face a barrage of tweets from the Donald which would dampen Republican turnout for Sasse, who is the type of candidate the “Never-Trumpers” would hail as the Messiah returning the Republican Party to its pre-2016 roots. You know, the fantasy party that didn’t cater to racists, religous bigots, and brainwashed Foxaholics while serving the interests of billionaires. For what it’s worth, my opinion is that the Republican Establishment will not be able to get the monster it has created back under control. Trump was not an anomaly, he is the Republican Party, but it remains to be seen whether any of the Senators lusting after his followers have what it takes to dish up the red meat they crave.

Speaking of the vote on the 6th, here’s a question. My wife did a bit of research and confirmed that the new Senate is sworn in tomorrow. That means that the terms to which Perdue and Loeffler were elected or appointed will have expired on that date. The results of the runoff on the fifth will not be known by the time the House and Senate meet to count the electoral ballots. How, then, do they get to cast a vote? Do they cast a vote?

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Too early to look ahead

Wednesday, December 30, 2020

Normally, at this time of the year, I write a post with my predictions for the coming year. Here’s last year’s, which holds up reasonably well, considering I had no reason to predict a pandemic when I wrote it. I did have reason, given her age, to suspect that Ruth Bader Ginsburg might not make it another year, but not much I can do about that.

This year, the fact is that we have to wait until January 5th to make an educated guess about what the future holds in store. If the Democrats manage to win both Senate seats in Georgia, we will have one future, one in which we might possibly save the Republican for our children and grandchildren. Should they lose, well, that’s a different story, with a far different future. In that event, the chances of the Republic surviving are somewhat slim. I’ll expand on one of these alternatives once we know whether Mitch McConnell will retain the ability to continue to destroy the country.

One thing we can say with certainty, as Paul Krugman has been repeatedly predicting. Deficits will suddenly starts to matter again, both to the Republicans who have ignored them for the past four years, and the media which has also followed the time honored practice of ignoring deficits when Republicans control the government. The one thing we can hope, if the Dems manage to win the Senate, is that they will have finally learned to tell the Republicans to shove it up their asses about the deficit.

So, more to come after the fifth, unless I forget, which is entirely possibly, as I am getting to be a very old man.

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Both siding it at the Times

Sunday, December 27, 2020

The New York Times tells us that early doubters are now showing a willingness to take the vaccine. That’s nice. But check out their roll of early doubters:

The time frame was dangerously accelerated, many people warned. The vaccine was a scam from Big Pharma, others said. A political ploy by the Trump administration, many Democrats charged. The internet pulsed with apocalyptic predictions from longtime vaccine opponents, who decried the new shot as the epitome of every concern they’d ever put forth.

Funny, I couldn’t place any of those “many Democrats”, so I went to DuckDuckGo (Google is evil) and did a search for “Democrats charge that vaccine is a political ploy” and got no relevant results. It’s true that many Democrats criticized “Operation Warp Speed” inasmuch as it was a typical Trumpian exercise in spreading money to favorites, but I can’t recall any nationally prominent Democrat claiming that any of the vaccines announced by reputable drug manufacturers were a Trumpian political ploy or that the very idea of a vaccine was such a ploy. Also, I seem to recall that polls have consistently shown that rank and file Democrats were more likely to say they would take a vaccine once one was approved.

If this statement was not made up out of whole cloth, it was made from cloth that had only the tiniest piece cut out. But that’s the Times these days, constantly showing us how unbiased it is by pushing a false both sides narrative that, in fact, is biased against Democrats.

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Sad, but likely true

Wednesday, December 23, 2020

I fear that Driftglass has once again hit the nail on the head.

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A modest proposal, crushed!

Tuesday, December 22, 2020

I’m actually somewhat surprised at this. Even farther right “news” site Newsmax has joined Fox in walking back claims against Smartmatic and Dominion, both of which manufacture voting machines about which the whackjobs have spun no end of conspiracy theories.

When these “news” sites are forced to air there retractions it drives the whackjobs wild, since, among other things, it contradicts the stuff clogging their Facebook feeds.

I touched on libel law in another context in a recent post, but now’s a good time to suggest that it might make a lot of sense for other victims of these propaganda outlets to follow the lead of Smartmatic and Dominion.

Smartmatic and Dominion had a bit of an advantage over some potential plaintiffs, because they are arguably not “public figures” and would not have to prove “actual malice” to prevail in a libel action. But lets take a look at the definition of actual malice:

Actual malice is a statement made with a reckless disregard for truth. Actual malice can be established through circumstantial evidence. High degree of awareness of falsity is required to constitute actual malice. If the plaintiff is a public figure, the plaintiff should prove by convincing evidence that the defendant published a defamatory statement with actual malice, i.e. with “knowledge that it was false or with reckless disregard of whether it was false or not.” If the plaintiff is unable to prove actual malice, then the plaintiff cannot recover. Masson v. New Yorker Magazine, 501 U.S. 496 (U.S. 1991)

Back in the day, before the advent of Fox and the internet, it would ordinarily have been next to impossible to prove actual malice in a libel action against a mainstream news outlet, especially if the plaintiff was a public figure. A news story might contain a falsehood about that public figure, but the odds were high that it was the result of something that at least came close to an honest mistake.

Times have changed. The Dominion and Smartmatic situations are just isolated examples of the type of misinformation that Fox and its even slimier ilk embrace with the full knowledge that they lack a shred of evidence for their assertions. So far as I know, they don’t even dress it up by reporting that “some say (enter libelous statement here), they simply assert lies as fact.

The victims of this sort of thing should follow the Dominion/Smartmatic example. Fox and its ilk would face a dilemma. They would have to either 1) continue to run retractions, thus outraging their easily deluded base, or 2) defend the lawsuits with increasingly slim odds of winning. I have never handled one of these cases, but I would hazard a guess that one could buttress one’s case by showing that the defendant publishes material with “reckless disregard of whether it was false or not” on a regular basis.

It is unclear if the Supreme Court would come to the rescue. After all, if they rule that right wing outlets have an unfettered right to lie without consequences (something the sainted Founding Fathers never intended, but something that Fox has claimed in the past), they would have to extend the same rights to the left, or they’d have to do some really fancy legal gymnastics to make it a right wing only right.

Sigh! After writing all this, I came upon this, which shows that the courts are ready, willing and able to turn those somersaults:

A federal judge on Thursday dismissed a lawsuit against Fox News after lawyers for the network argued that no “reasonable viewer” takes the primetime host Tucker Carlson seriously, a new court filing said.

The case was brought by the former Playboy model Karen McDougal, who said Carlson defamed her on his show, “Tucker Carlson Tonight,” by saying she extorted President Donald Trump “out of approximately $150,000 in exchange for her silence about an alleged affair,” the filing said.

Fox News asked the judge to toss out McDougal’s case by arguing that “Carlson’s statements were not statements of fact and that she failed adequately to allege actual malice.”

McDougal said two of Carlson’s statements during the episode on December 10, 2018, were defamatory:

Carlson’s claim that McDougal “approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money.”

Carlson’s claim that McDougal’s actions amounted to “a classic case of extortion.” But Fox News argued that Carlson “cannot be understood to have been stating facts, but instead that he was delivering an opinion using hyperbole for effect,” the ruling said.

It added that Fox News “submits that the use of that word or an accusation of extortion, absent more, is simply ‘loose, figurative, or hyperbolic language’ that does not give rise to a defamation claim.”

US District Judge Mary Kay Vyskocil agreed with Fox’s premise, adding that the network “persuasively argues” that “given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statements he makes.”

“This ‘general tenor’ of the show should then inform a viewer that he is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary,’” the ruling said.

Wow. Well, I refuse, at least partly, to agree that this totally undercuts my premise, though it does seem that at least one judge feels the right has a license to lie that it is unlikely would be extended to a lefty. After all, the “general tenor” of Rachel’s show is such that it would not inform the viewer that it is total bullshit. And wherever did the judge get the idea that Carlson has “reasonable viewer[s]”? One would think that the court would at least require a disclaimer from Tucker to the extent that his viewers should remember that they should not take anything he says seriously.

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Some Good News

Monday, December 21, 2020

It is an odd thing that while some truly horrible things are going on in plain sight, though for reasons unknown our media tends to ignore or downplay the worst of them, like the President of the United States contemplating stealing an election by declaring martial law,other things are happening that should give us at least some measure of hope. This being the Christmas season, I shall cast off my usual fairly pessimistic take on things, and accentuate the positive.

One hopeful sign is the fact that we are, to a great extent, confronting our history, and acknowledging the sins of our past.

When I was a kid, I remember wondering why it was that we were naming submarines after Confederate generals, but for the most part, like everyone else, I accepted the normalization of treason committed in order to keep people enslaved. The events of the past few years, despite the efforts of stable geniuses to prevent it, have forced us to rethink who are the heroes and who are the villains.

Even 10 years ago I would never had bet on this happening:

The Commission on Historical Statues in the United States Capitol has recommended that civil rights icon Barbara Rose Johns represent Virginia in the National Statuary Hall Collection, replacing the existing statue of Confederate general Robert E. Lee.

Gov. Ralph Northam has also announced that his proposed budget includes dearly $500,000 to replace the statue.

“On April 23, 1951, sixteen-year-old Barbara Rose Johns led a student walkout at Robert Russa Moton High School in Farmville, protesting the overcrowded and inferior conditions of the all-Black school compared to those of White students at nearby Farmville High School,” a release said.

Her actions got the support of NAACP lawyers Spottswood Robinson and Oliver Hill, who took up her case and filed a lawsuit that would later be one fo five cases the United States Supreme Court reviewed in Brown v. Board of Education of Topeka when it declared segregation unconstitutional.

via Crooks and Liars

I confess, I never heard of Ms. Johns before, which speaks volumes about the way we have perverted our history. She deserves to be mentioned in the same breath as Rosa Parks.

Speaking of our historical memory, one other bright spot is the fact that there’s a lot of history being written these days taking another look at the contributions of black people in ending their own enslavement. Other than Frederick Douglass, back in the day you’d never know there were black people in the abolitionist movement.

Speaking of which, this is a good place to plug the upcoming book of a scholar from Princeton who shares my last name, but is a better writer.

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Worth thinking about

Sunday, December 20, 2020

Here’s an interesting op-ed piece in the Boston Globe, by a fellow named Josh Bernoff. The premise is that in this social media age, most people are exposed to what they want to hear, largely due to algorithms that feed “both sides” the facts and opinions they are predisposed to believe. This, in turn, has deepened our divisions and led to our highly divided polity, with the brain dead on one side and the rational folks on the other. (Bernoff doesn’t quite describe the divide that way, but we know the truth)

Bernoff, presents his proposal as a way of at least partially reinstating the Fairness Doctrine, the destruction of which by the Reagan Administration is responsible for right wing talk radio and Fox News, among other horrible things.

Let me step back and say that if you tried to reinstate the Fairness Doctrine today, even solely on broadcast media, the current Supreme Court would declare it unconstitutional. Bernoff’s proposal might just pass muster with this court, though I wouldn’t bet my life savings on it.

He basically proposes a trade off. Facebook, Twitter and their ilk get to keep their Section 230 protections, which basically prevent them from being sued for the content they publish, so long as they agree to something in return:

Last year, Facebook generated $70 billion in advertising revenue; YouTube, around $15 billion; and Twitter, $3 billion. Now the FCC should require them to set aside 10 percent of their total ad space to expose people to diverse sources of content. They would be required to show free ads for mainstream liberal news sources to conservatives, and ads for mainstream conservative news sites to liberals. (They already know who’s liberal and who’s conservative — how do you think they bias the news feed in the first place?) The result would be sort of a tax, paid in advertising, to compensate for the billions these companies make under the government’s generous Section 230 liability shield and counteract the toxicity of their algorithms.

Why do this with ads, rather than inserting posts directly into the social media news feed? Dropping an unexpected post into a news feed — not from a friend and not labeled an advertisement — would feel like an unwelcome intrusion to many users. Besides, media companies already know that ads work: A healthy chunk of the social media titans’ ad revenue already comes from ads that generate clicks into media sites.

These ads would also create a dynamic that would strengthen engagement across the political spectrum. MSNBC, offered free ad units targeted to conservatives, would not provide its new audience with the same old liberal content, because no conservative would ever click on that. Instead, it would have to figure out how to create and advertise content attractive and interesting to those outside its natural audience. Fox News would grapple with the same conundrum from the opposite side of the political spectrum. While I wouldn’t expect such content to appear in those networks’ marquee broadcasts, there could certainly be a place for it in a section of their websites. For example, a media site might post links to articles like “The three priorities liberals and conservatives agree on’’ and “A startling way to move beyond the health care impasse.’’ We’d see more media on shared values, rather than the red-meat issues that divide us.

It might work.

To step back a bit. Section 230 provides protections to the evil Zuckerberg et.al., that mainstream media (even Fox, witness its rush to fact check Lou Dobbs when voting machine manufacturer Smartmatic threatened to sue) does not have. Not only can a newspaper publisher be sued for libel if it libels someone, it can be sued for libel if it passes along someone else’s libel, in the form of an ad, for instance. That was the basis for the suit in New York Times Co. v. Sullivan, the landmark case in which the rational Supreme Court of long ago ruled that a public figure had to prove actual malice to prevail in a libel action. The plaintiff in that case took issue with an ad that the Times printed, not content the Times itself had written. The court did not question that the Times could be liable for the contents of an ad that it simply printed. It simply ruled that there is a higher standard when a public figure is doing the suing.

At the current time, due to Section 230, if I clearly libel someone on Facebook, I can be sued, but, unlike the New York Times, Facebook cannot. It saves them a lot of money in two ways: besides not paying libel judgments, they can basically spend little or no time moderating content.

So, unless the present Supreme Court were to impose the equivalent of Section 230 as a matter of constitutional law (and that’s entirely possible) it would have to step aside and let this trade off become law.

It would be far better if we could 1) get rid of Section 230 altogether, or substantially modify it, and 2) reimpose the Fairness Doctrine, but as I said earlier, it’s almost a certainty that the current court would, at the behest of Fox among others, rule the Fairness Doctrine unconstitutional.So, Bernoff’s suggestion might be worth a try. One caveat: how do you define “mainstream” news sources in a way that passes constitutional muster? If Fox gets to advertise to me for free, why shouldn’t OAN or Newsmax?

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