Mollyycolllinss Authors Akiva Cohen

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Akiva Cohen
Akiva Cohen
@AkivaMCohen
In the cold light of morning, I'm still completely amazed by the legal belly flop that @ThomasMoreSoc filed in the DC District Court. It's the legal equivalent of watching the butt fumble, live

EVERYTHING you could possibly get wrong in a complaint, they managed


Start with the plaintiffs. The ONLY claims in the lawsuit are that the Constitution gives state legislatures the right to set the manner of elections, which they have allegedly (we'll get to this insanity) failed to do.

There's oodles of caselaw saying "since that's a right of the state legislature, only state legislatures, as a body, can bring such a claim"

Are the plaintiffs state legislatures?

https://t.co/KJGEvm8Owp


OK, what about the Defendants? They've sued Defendants from, IIRC, five states (GA, PA, WI, MI, AZ) based on claims that the State Legislatures there didn't pass election rules that the plaintiffs insist the Constitution requires (I promise, we'll get there).
LAW
Akiva Cohen
Akiva Cohen
@AkivaMCohen
OK, let's start talking about the House's 80 page brief on impeachment. It really is an incredibly well-done piece of work. There are some things I'd do differently and some pieces I didn't love, but overall, it's very very good.

Again - this thread will happen in fits and starts. I'm swamped at work and this will come in 10-15 minute chunks as I take a break

Let's start by taking a look at the table of contents. After a 4-page intro (that's relatively long, don't love it), the brief spends a solid 30 pages walking through the facts underlying the impeachment - and, the subheadings tell us, tying in Trump's general refusal to accept


the election results with everything that followed. This is a strong rhetorical approach, but it comes with dangers: the President not only had a legal right to contest the election results, but the GOP Senators pretty much all backed that right, strongly.

It's going to be important to thread a needle of saying "this set the stage for what came after" without putting yourself in a place where you're trying to convince the Senate that the challenges themselves were impeachable. That won't fly
CULTURE
Akiva Cohen
Akiva Cohen
@AkivaMCohen
So Dominion sued Rudy for defamation. How are they ever going to allege actual malice?
LAW
Akiva Cohen
Akiva Cohen
@AkivaMCohen
Looks like we need to spend some time talking about the Parler lolsuit against Amazon and why it's deader than a Mitch McConnell comedy special. They've brought three claims - antitrust, breach of contract, and tortious interference. None will survive. Here's why

Here's the meat of their intro: Amazon isn't being fair to us. They're holding us to a higher standard than Twitter - they say we allow violent content, but look what Twitter does!


There are a few problems with this approach. First, there's a factual problem: Twitter and Parler take very different approaches to moderation. Hell, *that's Parler's entire pitch.* So "we're the same as Twitter, why are you treating us different" isn't going to fly

ALSO, the hashtag was mostly people saying "these folks are calling to hang Mike


And ALSO also, did anyone notice any prominent right wingers complaining about losing tens of thousands of followers yesterday? You know why they did? Because Twitter has been active in deleting accounts that violate its TOS
BUSINESS
Akiva Cohen
Akiva Cohen
@AkivaMCohen
Let's talk about this North Dakota attempt to legislate around Section 230 and create a civil right of action for users censored by social media sites. CC @mmasnick

Forget, for a moment, that this law, if it passed would immediately be deemed void as preempted by Section 230 (Federal law is supreme over state law where they conflict, and this would create an express conflict). This bill is a really good example of why this stuff is hard

Here's the key provision of the bill. The various highlighting on these versions shows areas we'll touch on


First of all, let's look at the last of those images. There's no question that this would target conduct immune under federal law - and, in fact, if 230 were repealed nobody could ever be liable under this law (since it only reaches immune conduct). So it's incredibly stupid.


But again, put that aside. Let's look at the substance.

First of all, who gets to decide whether content fits into these highlighted categories? Do they actually think that the government will get to decide what counts as "otherwise objectionable"?
GOVERNMENT
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