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New Libel rules for thee but not for me

Friday, April 23, 2021

There are rumblings on the right that the landmark case of Sullivan vs. New York Times should be overruled. The Sullivan case requires proof of actual malice on a libel defendant’s part when the plaintiff is a public figure. The case does have it’s problems. For instance, it’s not unknown for a plaintiff to become a public figure by virtue of having brought the libel suit in the first place. Still, properly interpreted, on balance, the rule makes sense.

Clarence Thomas has suggested overruling the case, and recently, a right wing court of appeals judge called for completely overturning the case:

Last month, a judge on the U.S. Court of Appeals for the District of Columbia joined Justice Thomas’s plea. In a complicated case involving the sale of oil plots, two Liberian officials sued a watchdog group for implying they had received bribes in order to facilitate the sale. The D.C. Circuit panel found that the officials did not make out a plausible case of actual malice on the part of the watchdog. Judge Laurence Silberman, one of the judiciary’s most prominent conservatives, disagreed with much of the majority opinion, including the interpretation of the evidence. What was newsworthy about his dissenting opinion was the virulence of his attack on the actual malice rule. Sullivan has become “a threat to American democracy,” Silberman wrote. “It must go.”

Silberman’s disdain for the actual malice rule was directly tied to its protection of what he dubbed liberal media who, he wrote, “manufacture[] scandals involving political conservatives.” Finding their bias against the Republican Party shocking, he wrote, “The ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.” He specifically identified as culprits The Washington Post, The New York Times, and the news sections of The Wall Street Journal. (Silberman approves of the Journal’s editorial stance.) He declared that “a biased press can distort the marketplace. And when the media has proven its [sic] willingness – if not eagerness – to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”

One can draw one of two conclusions from Silberman’s diatribe and, for that matter, from the push on the right to overrule the case:

Silberman and his ilk actually think that the likes of the New York Times and the Washington Post would be more endangered by overturning the Sullivan case than right wing outlets such as Fox, Newsmax and their brethren, all of which are currently potentially on the hook for billions in damages sought by Dominion and Smartmatic, the voting machine manufacturers. If Sullivan free libel law were fairly applied, no reasonable person could agree with such a conclusion.

The other possibility is that Silberman expects that in a Sullivan free environment, he and his brethren and sisthren (I know that’s not a word, but I’m trying not to be chauvinistic here) would find a way to protect right wing media while slamming the mainstream types. Judges can be endlessly creative and can manufacture distinctions out of thin air, and Silberman must believe that he and his ilk could take care of Fox and Friends. We’ve already seen one judge deny a libel claim against Tucker Carlson, so maybe Silberman thinks they can simply go the same route by declaring that no reasonable person could believe anything they hear on Fox or that anything on said network is just “opinion” and therefore sanction free, while reasonable people do expect to get the truth from the New York Times and nothing therein is merely opinion. Of course, they may come up with something a little less obviously absurd, but in a pinch these rationales would do.

My guess is that Silberman would go with door number two and so would the present court. We’ll know a lot more when we see how the voting machine cases go. It makes no sense to find those companies to be “public figures” for purposes of those cases, nor does it make sense to find that there was no actual malice involved in the various allegations of fraud, nor does it make sense to find that those allegations were merely “opinions”, but my money is on the defendants escaping for one or more of those reasons.

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A very stupid idea

Wednesday, April 21, 2021

This may be the stupidest thing the left side of our political spectrum has come up with since some genius coined the slogan “defund the police”.

Home to some of the nation’s strictest gun laws and some of its largest gun manufacturers, Massachusetts has its fair share of firearm contradictions. Democratic state lawmakers are now taking aim at one of them, proposing a bill to ban the manufacture of certain kinds of firearms unless they are intended for sale to the military or law enforcement. That would keep Massachusetts-made assault weapons out of the hands of private citizens.

It would appear to be a crystal clear violation of the commerce clause, and if it’s not, the net effect would be to drive a major employer out of Massachusetts to another state that would be more than happy to let it export its guns to anyone who wants to buy one.

The argument for constitutionality, such as it is, would apparently be that Massachusetts is not interfering in interstate commerce because it is not forbidding the sale of a commodity across interstate lines, it is, rather, forbidding the manufacture of a commodity intended to be sold across state lines.

I really doubt if you could have sold that argument to a judge even before the courts were packed with right wing stooges, but it would go nowhere now.

Charlie Baker will probably veto the bill if it’s passed, and for once he’d be right. Why waste taxpayer money defending a losing cause in court? Then again, he might sign it, so the Republicans could make an issue out of the Democrats trying to drive a major employer out of the state. These sort of gestures make no sense. Like the “defund the police” slogan, they almost seem designed to turn off persuadable voters while doing nothing to advance the cause they claim to want to further. The only concrete thing this would accomplish is putting the employees of Smith and Wesson at risk of losing their jobs.

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Friday Night Music

Friday, April 16, 2021

Just had to pass this along, something I saw on Crooks & Liars. Mick Jagger and Dave Grohl of the Foo Fighters celebrating the upcoming (we hope) end of the pandemic.

Not bad for a couple of geezers.

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Hearing what I want to hear

Tuesday, April 13, 2021

I have often criticized the New London Day on this blog, but fair’s fair, and when they may have done a good thing it is only right and just that I acknowledge the same.

Today’s letter section contained a letter from a Trumper that began like this:

Lie, lie, lie; lie, lie, lie, lie, lie, lie, lie.

That’s the refrain I like to sing from Simon and Garfunkel’s, “The Boxer” every time I hear a Democrat open their ignorant mouth.

The letter, none of which I will further reproduce here, then goes on to brand a number of true assertions as lies. Okay, I’ll reproduce one more section:

”Trump’s baseless claims of election fraud”. Lie lie lie.”

You get the drift. You can read the rest here if you have nothing better to do.

Someone at the Day had what I consider to be a brilliant idea. The caption for the letter is taken straight from the same Simon and Garfunkel song:

A Man hears what he wants to hear and disregards the rest.

This raises the interesting question of whether I am hearing what I want to hear, as the caption is just ambiguous enough that the Trumper, being a Trumper and therefore not very bright or attuned to irony, will never get that the man to whom the caption refers is the letter writer himself. Well, that’s my take, anyway, and I’m disregarding any other interpretation, so I extend a CTBlue thumbs up to whoever wrote that caption, who I choose to believe is someone other than whoever writes the titles for the news articles, which titles always have a right wing bent.

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A little ridicule could go a long way, a modest suggestion

Sunday, April 11, 2021

I’ve been reading Kurt Andersen’s Fantasyland, which argues that the United States, for a number of historical reasons which he explores, is particularly vulnerable to irrational behavior including, without limitation, extreme religiosity, susceptibility to grifters, and belief in conspiracy theories. It’s an entertaining read, and though sometimes I think he may be engaging in just a bit of exaggeration to support his arguments, he makes a reasonably compelling case for his thesis. After reading his book one would have to conclude that the QAnon folks and the religious fundamentalists of our era are solidly within an American tradition that has beeen around since the pilgrims landed.

But not everyone in America has embraced irrationality, as Anderson notes in the book. The forces of reason have battled the forces of ignorance for centuries, sometimes winning and sometimes losing. Anderson argues that they were winning in the twenties and the thirties, citing as an example the tendency of the press of that day to mock folks like Billy Sunday and Aimee McPherson, and the derision heaped upon the state of Tennessee, William Jennings Bryant, and other anti-evolutionists during the Scopes trial. H.L. Mencken called them what they were: morons.

Which leads me to my modest proposal for the day. It’s time for the Democrats and their fellow travelers to stop trying to reason with the forces of irrationality, be they Republican politicians, their evangelical enablers, or conspiracists of any other sort. You are not going to persuade them of anything. As Andersen argues, there is a certain strain of American that insists it is their god-given right to believe what they want to believe, evidence, lack of evidence, or rationality be damned. The cult of Trump is not a new thing.

It’s the folks that are not engaged with the irrationality one way or the other that you need to win over, and one way to do that is by adopting a strategy of mocking the irrational. It wouldn’t be hard to come up with some good lines to parrot over and over. After all, we already have our own H.L. Menckens. They are, for the most part, late night comedians, who have had a sort of monopoly of straight on truth telling, while the punditry desperately clings to both siderism.

At this moment in our history, most of the mockery is coming from the folks who are, in truth, most susceptible to mockery. Remember, it was just a few months ago that Matt Gaetz was mocking the rational for wearing face masks. It’s best to be on the attack in this political age, and treating conspiracists, dupes and religious nutcases with the derision they deserve would be a winning political strategy for the Democrats. The fact is, making fun of people works, especially if they are, in fact, ridiculous. I realize that national Democrats have lived in a defensive crouch so long they are having a hard time coming out of it, but there are signs that it’s happening. For instance, who would have thought, a mere year ago, that Joe Biden would essentially be telling the Republicans to shove it when they start whining about his failure to reach out to them for bipartisan solutions. The only bone I have to pick with him on that is that he’s doing it, for the most part, implicitly when we have reached a time when it is to our advantage that he do it explicitly.

C’mon Democrats. We can do this. You can start with Matt Gaetz since he’s so easy, but you can quickly move on to Mitch and the rest of them.

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Matt Gaetz, Man of Principle

Friday, April 9, 2021

Matt Gaetz has been in the news a lot lately, in case you hadn’t noticed. Even if you have, you may not have noticed that no one (until now) has given him credit for being a Republican who has principles. You may think that’s a contradiction in terms, but in Gaetz’s case, it isn’t!

Think about it.

Let’s step back a bit. What is the one word that describes almost every Republican act and utterance? I’ll give you a hint: it beings with an “H” and ends with “ypocrisy” Who keeps moaning about deficits while running them up for no reason? Republicans! Who warns against voter fraud while engaging in voter fraud? Republicans! Who warns against the threat of non-existent left wing terrorists while coddling actual home grown right wing terrorists? Republicans! The list could go on and on, but I am too lazy to elaborate further.

The point is that we must recognize the courage and principled conviction that must be at work when a Republican breaks the mold, and Matt Gaetz has done just that and gotten no credit for it. For, can’t we expect that a Republican would condemn sex trafficking while engaging in sex trafficking? Of course! But…Not Matt Gaetz! He had the courage of his convictions. When it came time to vote on a bill to combat sex trafficking, he was the sole member of Congress to vote against it. No hypocrite he, at least not on this issue. He stuck by his fellow sex traffickers. The other Republican sex traffickers, and please don’t try to tell me there are no others, took the hypocritical way out and voted in favor.

The sad part is that up to now, no one in the media has given Matt credit for his amazing lack of hypocrisy. Even Fox has simply preferred to ignore it, possibly because if they acknowledged such an unusual trait in a Republican they would be, as we lawyers say, sub silentio acknowledging that he is a Republican outlier. Well, I give him credit, and I really think that when he’s sentenced, the judge should take his moral courage into account, and take a day or two off his sentence.

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A book report of sorts

Wednesday, April 7, 2021

A while back I attended a Zoom seminar hosted by my Alma Mater. The guest presenter was David A. Bell, a professor from Princeton, who was there to talk about his new book Men on Horseback, The Power of Charisma in the Age of Revolution. It is a study of the role charismatic leaders played in the Revolutionary age that accompanied the Enlightenment. I bought the book, and have just finished it. The introductory chapter explores the nature of charisma, and among other things considers the way in which the manner in which a charismatic leader presents him or herself to the public fluctuates as the nature of media changes. Printing, newspapers, and writing techniques that flowed from the invention of the novel had a profound impact on the way in which leaders were able to form a relationship with the public.

People of my generation immediately think of John Kennedy when we hear the word charisma. Quite likely he could have been considered a charismatic leader today, but the fact is that he lived in an almost entirely different media world. The news media, particularly television news, played things pretty straight. There were no propaganda outlets, as there are today. For the most part, the networks did not chase ratings so far as the news was concerned. That came much later. Also, of course, there was no internet, no Facebook, and no twitter. The connection Kennedy made may have been partly the result of a sort of star quality, but the media’s relation to him was not much different than its relation to other politicians of notoriety. Kennedy, charismatic or not, would have been unable to stray outside the norms that Bell’s charismatic leaders had a habit of successfully disregarding. Bell’s book deals with charismatic leaders in the Age of Revolution. He writes primarily about Washington, Bonaparte, Simon Bolivar, and Touissaint Louverture.

Which brings us to the former guy, to whom Bell often alludes, but never expressly mentions. He never met a norm he didn’t disrupt.

It was lost on most of us, but one can’t deny that he was a charismatic leader as far as the brainwashed were concerned. I think an argument can be made that his charisma stemmed from the fact that he was primarily an entertainer. The media loved him, because he was good for ratings and provided plenty of pundit fodder. The non-Foxers couldn’t stop talking about him in 2016 at the same time they were insisting he was a joke. Even the Fox folks took their time about coming on board so far as taking him seriously. Meantime, every word he spoke and every speech he made was broadcast to an adoring multitude who he entertained more than he did anything else. They never cared, and still don’t care, whether he lied to them or delivered on any of his manifold and contradictory promises. The internet played a role as well, obviously, as every nonsensical tweet he emitted was devoured by his fans and the media. The good thing about twitter, from a grifter’s point of view, is that you don’t really have to be factual, you can just make it up and entertain.

His grift wouldn’t have worked in another media age. In the newspaper only ages, he would have sunk like a rock, assuming anyone took notice of him in the first place. His speeches, which really amounted to free form stream of consciousness rants, would not have translated well to the printed media. Even in the early television age, he would have gotten nowhere, as he would not have gotten the billion or so worth of free air time he got from the cable networks and the pundits desperate for ratings.

Now, you might say, rants worked for Hitler in an earlier media age. But Hitler was a much smarter politician than the former guy. In his case, the rants were necessary, but not sufficient. He knew how to appeal to people’s grievances and bigotry, just like the former guy, but he also knew how to organize a movement and how to maintain himself in power. A Hitler would have understood that he should deal effectively with a pandemic even as he blamed it on the Jews. The genius did nothing but blame it on the Chinese, or the Democrats, or the scientists, but, as we know, did nothing effective to stop it. He was too stupid to understand that it was his ticket to reelection, had he simply stepped up and done the right thing. The USA lucked out this time, as the dictator wannabe was just too stupid and incompetent to pull it off.

One of the only bright spots (we must always look on the bright side) in our political firmament is the fact that there are no Republicans out there, likely to pick up where the former guy left off. None of them are able to entertain the cretins like the genius could. Ted, Josh, Lindsey, none of them have it. This post at the Palmer Report says it well, discussing the troubles in which Matt Gaetz and Ron DeSantis now find themselves:

There’s a reason Gaetz and DeSantis can’t make the Trump playbook work for them: they’re complete idiots. Donald Trump was a one dimensional villain, but he had a sort of brute force cunning that allowed him to survive for decades, if never stay ahead. Gaetz and DeSantis don’t even have that. It would be like me thinking that reading the Dan Marino playbook will make me able to throw a touchdown. Even with the playbook in hand, you’ve got to have the skill to pull it off. And these clowns don’t.

If there’s a competent politician out there who can use the playbook and throw the touchdowns, we’re doomed.

Afterword: It is perhaps worth mentioning that while all of the Men on Horseback started out as committed republicans (emphasize the small “r”), they all, with the exception of Washington, became dictators, claiming that the acclamation of their followers was sufficient to legitimize their seizure of power. If that sounds familiar, then we can take solace from the fact that each one of them (again, other than Washington) ended his life in prison or in some form of exile. Mar-a-Lago is not exactly an uncomfortable place of exile, but there’s still a reasonable chance that the genius will share Louverture’s fate and die in prison.

Filed in Book reports, The Very Stable Genius | | Comments (0)

Looking on the bright side, a CT Blue tradition

Friday, April 2, 2021

Yet another Good Friday has arrived.

This blog has a Good Friday tradition, and traditions must be respected, so once again, let the folks from Monty Python remind us that we should always look on the bright side. In fact, it’s easier to follow that advice this year than it has been for a while, as there are at least a few glimmers of hope. At least we haven’t been chewing on as much of life’s gristle as we have in the past, and we’re also getting the chance to watch as folks like Matt Gaetz are chewing on the gristle they deserve. Anyway, here’s Eric and the gang for the umpteenth straight year.

In truth and in fact, my wife and I are looking on the bright side at the moment. Once we had our vaccinations scheduled, we decided to book a getaway for a weekend after our post vaccine probation period. So, here we are in Plymouth, Massachusetts. I’ve always wanted to see Plymouth. If I was going to look on the dark side, I’d talk about the fact that the place is a bit like Mystic on steroids. I sort of expected it to drip history. You can find the history if you really look, but it’s mainly restaurants, shops and more shops.

But, looking on the bright side, being as I’m a chocoholic, I have my work cut out for me sampling the goodies at more chocolate shops than you can count. Tis the season for chocolate bunnies, so I might make a collection. Also, on the bright side, it’s nice to be able to go back to restaurants, even if there’s still a bit of residual anxiety left over from pre-vaccination days.

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An easy prediction

Wednesday, March 31, 2021

It seems that the guy who stole his own election, Brian Kemp, has just allowed as the recently passed Georgia Voter Suppression Act “has nothing to do with potential fraud”. The writer at Crooks and Liars makes what should be a reasonable observation that those words might come back to haunt Kemp as the lawsuits challenging the statute make their way through the courts.

The right got what it wanted from useful idiot former guy. The judiciary is now stacked top to bottom with right wing zealots who will be totally unimpressed with the fact that Kemp made such a statement and will, in fact, simply swallow whole the lies that Kemp and other Georgia legislators are telling about the bill.

When I was in law school the professors all disdained “results oriented” judicial thinking, but that’s what we have these days and it’s what we’ll have for quite a while. No reasonable person could deny that the intent of the Georgia law, and the laws proposed elsewhere, is to disenfranchise people, particularly people of color. However, the courts will choose to turn a blind eye to that reality and uphold these laws, always leaving themselves wiggle room to rule the other way should they get a case involving Democrats doing precisely what the Republicans are doing.

Am I too cynical? I don’t think so.

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The Pillow Man Speaks

Monday, March 29, 2021

Mike Lindell, the MyPillow guy, says the Supreme Court is going to put the genius back in office by July. He has inside information, he says, quite likely of the same quality as the information he claims to have about the voting machine companies. The Pillow Man, along with all the other things he doesn’t know, doesn’t know anything about the Supreme Court, as I’ll explain in due course.

Part of me, I must admit, misses the Trump years. It was so much easier to think of things to post on this blog. If you couldn’t come up with anything else, there was always the outrage of the day to fall back on. Those days are gone. Up to now, Joe Biden has been the Ned Lamont of presidents, quietly going about the job of doing his job. Even the right wing outrage machine has had a bit of a tough time ginning up controversies, though some in the media are doing their best to buttress the right wing talking point that Biden is somehow responsible for a border situation that commenced long before he took office and which, curiously enough, was worse under Trump but for which Trump was not responsible. Oh well.

Anyway, back to my main point, assuming I have one. If the court handed the genius his “job” back, it would make it far easier to come up with things to write about. On the other hand, were that to happen, we on the left could kiss free speech good-bye, as any such decision would spell the end of American democracy. That denouement is an ultimate objective of the current Supreme Court, but they prefer to do it, as the Wicked Witch said, “delicately”, and, as the Three Stooges often said, “step by step, inch by inch”. The objective is to create an autocracy gradually, so that the warnings from people like me and every other left wing blogger can go unheeded. So the genius will continue to ramble on at Mar-a-Lago for the time being, and should the state of New York manage to convict him of fraud, the Supreme Court will not stand between him and a prison cell. He has already served his purpose, so far as they are concerned. In the meantime, the court will slowly but surely go about its business of dismantling the Republic.

As for Lindell, he’s going to have to sell a lot of pillows to the rubes to pay that libel judgment.

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