Donald Trump can’t change the libel laws

February 27, 2016

Donald Trump can’t change the libel laws because they are based on the First Amendment rights to freedom of speech and freedom of the press.

Background

Every person has a duty to refrain from uttering false statements about others. Libel is a defamatory written statement while slander is a defamatory oral statement. Under common law a person could sue another person for defamation of character if the oral or written statement was false, negligently made and it caused financial injury.

Public officials and Public Figures

In New York Times v. Sullivan, 376 U.S. 254 (1964), the SCOTUS modified the common law rule to require public officials to prove that a false statement about them was uttered or published with ‘actual malice.’ That is, that the person or news organization knowingly or recklessly uttered or published the false statement and the statement caused financial injury. Actual malice is more difficult to prove. The SCOTUS decided to make it more difficult for public officials to prove up a case for defamation in order to protect the media’s right to free speech and free press in service to the public’s right to know what their public officials are doing. The Court reasoned that the easier to prove negligence standard unnecessarily restricted the flow of information in a competitive environment to be the first to break a story.

Congress cannot pass a law that restores the negligence standard because the actual malice standard is based on the First Amendment of the U.S. Constitution. Only the SCOTUS can change the law and it has shown no inclination to do so since it decided New York Times in 1964.

In fact, in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the SCOTUS extended the actual malice test to public figures.

Conclusion

Donald Trump is a public figure who hopes to become a public official. He can attempt to intimidate journalists from reporting about him by threatening to sue them for statements he dislikes, but he will be wasting his time and making a fool out of himself. Heightened media scrutiny comes with the territory when you are running for president. The reporters and the organizations they work for know the rules.

He needs to stop whining and deal with it.


Hillary Clinton should release the transcripts of her speeches to the Wall Street banks

February 26, 2016

According to the New York Times, Hillary Clinton made $11 million in 2014 and the first quarter of 2015 from 51 speeches she gave to banks, corporations and other interests. Goldman Sachs alone paid her $675,000. She has refused to release transcripts of those speeches.

As Secretary of State, she was the main architect of a U.S. foreign policy focused on making the world safe for investment and exploitation by U.S. banks and corporations. She was and remains a neocon war hawk committed to supporting the neocon goal to gain control of petroleum resources in the Middle East by destabilizing and replacing governments hostile to that goal. See The Project for the New American Century. “We came, we saw, he died,” she said of Muammar Gaddafi, after he was deposed and murdered in Libya. Libya, like Iraq, and soon to be in Syria, is a failed state overrun by Islamic jihadists.

No one knows better than Hillary Clinton that our foreign policy is to use the military to make the world ‘safe’ for U.S. capitalism. That would be the Wall Street investment banks and U.S. corporations.

We have wasted hundreds of billions of dollars pursuing an aggressive and failed policy in the Middle East. Instead of a robust discussion about slashing our military budget in light of our failed foreign policy, our failed wars and our war crimes, Hillary Clinton talks about how we cannot afford single-payer health care and free education, even though citizens in other countries in Europe enjoy those benefits. Of course, they don’t spend billions on their military forces.

Touting her ‘foreign policy experience,’ such as it is, she assures us that ‘incremental change’ is the only way to go.

Nonsense.

Hillary Clinton needs to release those Wall Street transcripts. I want to know what she said to investment bankers eager to know her priorities, her vision of future foreign policy, and the ‘lay of the land,’ so to speak. Goldman Sachs did not pay her $675,000 to hear war stories.

The New York Times said,

Voters have every right to know what Mrs. Clinton told these groups. In July, her spokesman Nick Merrill said that though most speeches were private, the Clinton operation “always opened speeches when asked to.” Transcripts of speeches that have been leaked have been pretty innocuous. By refusing to release them all, especially the bank speeches, Mrs. Clinton fuels speculation about why she’s stonewalling.

I do not trust her and you should not either.


Can Uber be held liable for the injuries and deaths caused by its driver Jason Brian Dalton

February 24, 2016

Can Uber be held liable for the injuries and deaths caused by its driver Jason Brian Dalton?

(For the sake of argument, I am going to assume that he shot and killed six people while working for Uber)

The quick answer is probably not, unless the company was aware or should have been aware that he was a danger to others.

First, the shootings were intentional, rather than negligent, acts. The liability of a business for acts committed by an employee is generally limited to negligent acts committed by its employee while acting within the scope of his employment. Intentional acts are excluded, unless the employer knew or had reason to know that the employee was a danger to others.

Second, Dalton was an independent contractor, not an employee, and a business normally is not liable for acts committed by an independent contractor.

Nevertheless, with the advent of businesses like Uber, Lyft and Sidecar, many states have enacted laws that require companies to provide at least secondary insurance coverage to compensate victims. Secondary coverage means coverage that kicks in when the driver’s primary coverage is insufficient, which it often is because most auto insurance policies exclude coverage for accidents that happen while the vehicle is being used for a commercial purpose. The states required secondary coverage since most people who drive for Uber, Lyft and Sidecar lack sufficient financial resources to cover financial losses out of their own pockets for their passengers and themselves.

Here is an example from 2014.

The New Yorker reported in November 2014,

Last New Year’s Eve, an Uber driver named Syed Muzaffar was driving his car in San Francisco while logged into Uber’s app for drivers when he struck and killed a six-year-old girl who was in a crosswalk with her mother and brother. The next day, Uber distanced itself from the accident, posting a somewhat terse message on its Web site that offered condolences but also noted that “this tragedy did not involve a vehicle or provider doing a trip on the Uber system.” The statement was later updated to read, “The driver in question was not providing services on the Uber system during the time of the accident.” The subtext, though, was that the accident wasn’t strictly Uber’s responsibility. While the company could have provided up to a million dollars in liability coverage if an accident occurred, this applied only to drivers who had a passenger in the car or were on their way to pick one up; the company later argued that it wasn’t liable for the girl’s death.

/snip/

After the Uber accident, scrutiny of car-sharing companies in particular intensified. The family of the six-year-old victim sued Uber, and California state lawmakers started pursuing a bill to strengthen insurance requirements for companies like Uber and its rivals Lyft and Sidecar. Amid all this, the companies began expanding their insurance coverage for drivers. In September, California Governor Jerry Brown signed into law new requirements requiring that ride-sharing companies provide at least secondary insurance (which would supplement drivers’ primary coverage) from the moment the app is turned on, rather than only when the drivers have accepted or are transporting passengers. It also mandates certain levels of insurance coverage.

In conclusion, although the Uber business model is causing legislatures to pass new laws to provide insurance coverage for its independent contractor drivers and their passengers, little likelihood exists that Dalton’s victims and their families will be financially compensated for their deaths or injuries unless Michigan has a crime victim’s compensation fund.


We Shall See

February 21, 2016

The Farmer’s Son: a Taoist meditation for today

There was an old man with a small farm in China many years ago. He had one son, who did most of the work on the farm and a a neighbor, himself old with a son.

One day the old man’s horse ran off, and the neighbor, seeing this, said, “how terrible, your horse has run off, now work on your farm will be so difficult.” To this the old man replied, “maybe good, maybe bad, we’ll see.”

The next day the old man’s horse returned leading a group of wild horses, and the neighbor, seeing this, said, “how wonderful! You have many horses, now you have great wealth and may live easily.” To this the old man replied, “maybe good, maybe bad, we’ll see.”

The next day the old man’s son was thrown from one of the wild horses and broke his leg, and the neighbor, seeing this, said, “how terrible, your son has broken his leg, now your work will be doubled as nurse and farmer.” To this the old man replied, “maybe good, maybe bad, we’ll see.”

The next day the king’s men came to the farms seeking all able men to fight a distant battle, and the neighbor, sobbing as his son marched off, said “how fortunate you are for having an injured son, mine will surely perish.” To this the old man replied, “maybe good, maybe bad, we’ll see.”

We are living in crazy times, apocalyptic times for some.

We don’t know what tomorrow will bring.

Will it be joy or will it be pain?

In the end, does it matter?


Should elections be held on the Sabbath

February 20, 2016

Democrats are voting in the Nevada caucus and Republicans are voting in the South Carolina primary today.

I’ve been watching Morning Joe and they had a short piece regarding Jews who are conflicted by their desire to vote and their religious obligation not to work on the Sabbath.

I don’t see a problem because I always look to the spirit or purpose of a rule rather than the black letter expression of it when an ambiguity pops up.

I don’t think God or Moses was thinking about voting when they developed the 10 Commandments. I also don’t consider voting to qualify as work.

I am also not Jewish or particularly religious and I always question authority.

I do believe that accommodations should be made for those who want to vote but believe they cannot on the Sabbath. For example, voting by mail might work. That would not work with caucuses because they require attending and participating in a meeting.

Changing the day could work except that any other day would disadvantage someone. For example, people who work and cannot get off work to vote.

Replacing caucuses with pulling a lever in a voting booth shortens the time commitment but doesn’t necessarily solve the problem.

What do y’all think?


Maryland Court of Appeals delays the trials of defendant police officers in Freddie Gray murder case

February 19, 2016

Maryland’s highest court, which is called the Court of Appeals, has entered an order staying (delaying) the trials of the remaining Baltimore police officers charged with various crimes for the death of Freddie Gray, a young black man who died from spinal injuries that he sustained in a police van while being transported to jail. He was shackled and handcuffed, but not belted in as required by police regulation. The court stayed the trials in order to consider whether the prosecution can call Officer William Porter to testify against the officers in their separate trials. Under normal circumstances, no one would seriously contend that the prosecution could not call him as a witness. However, these are not normal circumstances for the simple reason that Porter is a defendant who has a Fifth Amendment right to remain silent. Porter has already been tried, but the jury was unable to reach a verdict. His case has been rescheduled for trial.

The prosecution had hoped to convict Porter and then use him to testify against the other defendants. He shackled Gray and placed him in the van, so he is an essential witness to establish some basic facts about who did what to Gray. The mistrial complicated that strategy. To get around his Fifth Amendment claim while preserving their option to retry him, the prosecution granted him use immunity for his testimony. That means they agreed not to use anything he said wile testifying at the trials of his codefendants.

Defense counsel predictably objected. The judge ruled that the prosecution could call Porter as a witness against some but not all of the defendants. The prosecution and defense are appealing that order. Some defendants are also arguing that their rights to a speedy trial are being violated by the detour through the appellate courts.

And there you have it.

That is all, except you can go here to read more details.


Note to right-wing patriots: Beware of televising your revolution because a federal indictment awaits

February 18, 2016

The Bundy Gang made it easy for the feds to destroy them. With the able assistance of videographer and radio-show host Pete Santilli, they created an unambiguous and unimpeachable record of their self-described sagebrush revolution, including (1) what they intended to do, (2) why they intended to do it, (3) what they did, and (4) what they hoped to accomplish.

Having thereby delivered their heads on a platter to the feds, who used the evidence to create a damning indictment, they now face the prospect of a lengthy humiliating public trial with no defense to be followed by many years in prison.

Yes, ladies and gentlemen: a federal grand jury in Nevada yesterday returned a 51-page, 16 count indictment against Cliven Bundy, Aamon Bundy, Ryan Bundy, Ryan Payne and Pete Santilli. Each defendant is charged with 16 felony counts, including extortion, obstruction of justice, conspiracy to commit an offense against the United States, conspiracy to impede or injure a federal officer, assault on a federal officer, threatening a federal law enforcement officer and using and carrying a firearm in a crime of violence. The government is also seeking forfeiture of assets worth $3 million from the five men if they are convicted of the crimes.

I encourage readers to read the indictment. It sets out the case, chapter and verse, against the defendants and serves as a good example of how devastatingly thorough the feds can be when they put their vast resources to work in stitching up a group of defendants.


Cliven Bundy may be looking at spending the rest of his life in prison

February 17, 2016

Cliven Bundy is charged in Nevada by a six-count federal complaint alleging;

Count 1: Conspiracy to assault a federal officer;

Count 2: Assault against a federal officer by use of a deadly and dangerous weapon’

Count 3: Use and carry of a firearm in relation to a crime of violence (the assault charged in count 2);

Count 4: Interference with commerce (by extortion);

Count 5: Use and carry of a firearm in relation to a crime of violence (the extortion charged in count 4);

Count 6: Obstruction of justice.

If he is convicted, Bundy could be sentenced up to five years in prison on the conspiracy charge, up to 10 years in prison on the obstruction of justice charge, up to 20 years in prison on the assault on a federal law enforcement and interference with commerce by extortion charges and a mandatory minimum consecutive seven years on the use and carry of a firearm in relation to a crime a violence charge. The charges could also bring up to $250,000 per count.

Since he is 69-years-old, there is a significant possibility that he may spend the rest of his life in prison, if he is convicted on all counts.

He has been detained without bail. Oregonlive is reporting,

A federal judge [in Portland] Tuesday ordered Nevada rancher Cliven Bundy to remain in custody pending trial on a complaint stemming from his 2014 standoff with federal agents trying to round up his cattle grazing on public land.

U.S. Magistrate Judge Janice M. Stewart found Bundy, 69, remains a danger to the community and a risk to flee, citing his “ongoing defiance of federal court orders.”

For more information regarding the evidence that the government relied on to draft the complaint, please read the affidavit attached to the complaint (pp. 6-32).

Also, here’s the government’s memorandum in support of order detaining Bundy without bail.

Finally, here’s a link to an article I wrote about conspirator liability. Note that the government need not prove that Bundy ever held a gun or threatened anyone with a gun, so long as it proves that he was a member of the conspiracy and at least one other member of the conspiracy committed such an act or acts in furtherance of the conspiracy.


Who will President Obama nominate to replace Justice Antonin Scalia

February 16, 2016

Despite a constitutional mandate to do so, senate majority leader Mitch McConnell has decreed that the Republicans will not conduct any hearings to consider whether to approve anyone whom President Obama might nominate to replace recently deceased Justice Antonin Scalia.

So much for the importance of his oath to uphold the Constitution and the laws of the United States.

President Obama has announced that he will nominate someone in “due time.” Speculation abounds.

The identity of the person he nominates is less clear than the strategy he uses to select his nominee. Not only must he select someone above reproach, he must select someone who has recently been approved by the senate to serve in a judicial or law enforcement position. The nominee must be so above reproach and non-controversial as to cast shame onto anyone who opposes him or her. That would be shame of the sort that would result in the senator’s loss in a November reelection bid. Given the right candidate, the democrats could regain control of the Senate.

One such candidate is Judge Sri Srinivasan, whom the senate unanimously confirmed by a vote of 97-0 in May 2013 to serve on the United States Court of Appeals for the D.C. Circuit. In addition to serving as a judge on the United States District Court for the District of Columbia, he served as a deputy solicitor general in DOJ’s Office of the Solicitor General. As a south asian minority (born in India) with a JD and an MBA from Stanford, his credentials are difficult to beat.

Another difficult to beat contender is Attorney General Loretta Lynch, whom the Senate recently confirmed. Tom Goldstein, who runs the influential SCOTUSblog, believes she will be the nominee. NBC News reports,

But tapping Lynch to fill the seat of Scalia, who died suddenly Saturday, poses a perception problem for Republicans because her “history as a career prosecutor makes it very difficult to paint her as excessively liberal,” Goldstein wrote.

Lynch would be the first black woman ever nominated to the nation’s highest court — and the GOP would have a political problem during an election year if the Republicans refused to even consider her nomination, Goldstein wrote.

“I think the administration would relish the prospect of Republicans either refusing to give Lynch a vote or seeming to treat her unfairly in the confirmation process,” Goldstein wrote. “Either eventuality would motivate both black and women voters.”

Stay tuned as President Obama’s choice may turn out to be the most important and consequential decision he makes during his presidency. It really is that important. In addition to losing control of the senate, a republican refusal to consider her could cost the republicans the fall election.


With Justice Scalia dead we have to elect a democrat in November

February 14, 2016

Ironically, United States Supreme Court Justice Antonin Scalia, 79, died yesterday of natural causes after spending the day hunting quail at a resort ranch in west Texas. Generally regarded as the most conservative member of the court, his death eliminates the one-vote conservative majority. This means the justices will likely tie 4-4 on many issues until Justice Scalia is replaced. From the New York Times,

The court faces a crowded docket of politically charged cases that are certain to resonate in the presidential campaign on issues such as immigration, abortion, affirmative action, climate change, labor unions and Obama’s health care law. Decisions were expected in late spring and early summer on whether the president could shield up to 5 million immigrants living in the United States illegally from deportation.

The immediate impact of Scalia death means that the justices will now be divided 4-4 in many of those cases. If there is a tie vote, then the lower court opinion remains in place.

A Senate looking at a limited legislative agenda in an election year now faces one of the most consequential decisions for the venerable body. Not only will voters choose the next president, majority control of the Senate is at stake in November, with Republicans clinging to control and concerned about the fate of some half dozen GOP senators running for re-election in states that Obama won.

What is supposed to happen: President Obama will nominate a successor. The Senate Judiciary Committee will hold a confirmation hearing. If it approves the nomination, the full senate will vote on the nomination. If approved by a majority, the nomination will be confirmed and the new justice will be sworn in. The appointment is for life, or until such time as the justice decides to retire.

What is going to happen: Senate Majority Leader Mitch McConnell has already announced that the Republican controlled Senate will not hold hearings to consider President Obama’s nominee. He hopes that a Republican will be elected in November.

What this means for the country: We damn well better elect a democrat as our next president.


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