BC LAW

Akiva Cohen
@AkivaMCohen 5 years, 8 months ago 941 views

So Dominion sued Rudy for defamation. How are they ever going to allege actual malice?

More from Akiva Cohen

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).

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

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"?

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

Five minutes of scrolling a search for #hangmikepence, a gallery: pic.twitter.com/40hsyJNK50
— Jawafawa (@jawafawa) January 11, 2021

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

Akiva Cohen
@AkivaMCohen

So, quick rundown of the latest #Squidigation decision: It's very thorough; 36 pages of Judge Parker explaining that Powell and her merry band of fuckups lose for every conceivable reason

Hi, #Squidigation fans. New developments in the Michigan tentacle. Driving little man to school this morning, but we can talk about it when I get back https://t.co/m6GxK7g5T1
— Akiva Cohen (@AkivaMCohen) December 7, 2020

First: 11th Amendment Immunity. Basically, states (and their officials) have sovereign immunity; you can't sue them in Federal Court except to the extent that they agree to be sued there. Quick thumbnail of the doctrine here

There are only 3 exceptions to this: 1) Congress says "you can sue your state for this"; 2) the state agrees to be sued; 3) Younger, a case that said "you can sue your state if you are just seeking an order saying 'stop violating my rights'"

In other words, if the state passes a law that says "no talking politics in public" you can sue for an order saying "that's unconstitutional and can't be enforced" but not for damages from having your 1A rights violated in the past

I'm sure you can see where this is going: Exceptions 1 and 2 don't apply; Congress didn't say "no sovereign immunity" when it passed 42 USC 1983 (the civil rights statute the plaintiffs sued under) and Michigan hasn't waived it. That leave Younger as the only remaining option

More from Law

Alexandra Erin the Mea...
@AlexandraErin

I'm slightly obsessed with this "#PenceCard" nonsense which is like the Platonic ideal of the current level of Trump election stealing conspiracy theory nonsense.

Here's a thing about the United States: the vice president famously *does nothing*. By design. The job is not like the vice president of marketing or whatever where the guy has a job. Mike Pence is the spare president. He's there in case anything happens to the first one.

In the original formulation under the constitution, the vice president was the runner-up of the presidential race. Nobody ran for it. There was no assumption that it would be an ally of the president; more likely they would be rivals.

They're officially "president of the senate" just to give them something to do to keep them around the capital but they're not a senator and only get to vote if there's a tie, so most of the time that ceremonial role is fobbed off an actual senator.

But this senate presidency that we give the vice president currently has attached to it some purely ceremonial duties in the very perfunctory part of the election process where votes are counted and reported to Congress.

$TD Cole Esq. \u2696\U0001f1f3\U0001f1ec$

TD Cole Esq. ⚖🇳🇬...
@BolanleCole

Tunde Thomas (alias Tunde Gentle), 45, died about two weeks ago from heartbreak. The two kids from his marriage were indeed fathered by a man without scruples or conscience, the current MD of FCMB, Adam Nuru who was his wife’s boss (MD) in FCMB. Tunde’s wife, Moyo Thomas
#thread

(Nee Ojo), a useless an unconscionable adulterer was engaged in an office romance with her MD, a relationship that was well known throughout the organization as the lack of shame and decorum in both lovebirds made them to get carried away and to throw caution to the wind.

FCMB, an organization without proper rules or governance looked the other way while the open and unprofessional romance was going on between the MD and a subordinate staff of the same organization, a married woman.

The MD, Adam Nuru, who was supposed to be the chief

Governance Officer and Chief Image Maker of FCMB spared no thought for the husband of this lady who was bringing up his (Nuru’s) two children while thinking they were his. He also did not think of the organization he was leading while engaging in this foul conduct, the

scandal with which no ethical organization would want to be associated.
Tunde was so in love with & attached to his wife & children that he spent most of his resources on them. He took them to London & Dubai on holidays. He also spared no penny in putting them in the best schools

Derek T. Muller
@derektmuller

1/ I want to briefly tease out Cruz's statement, which will help set expectations about what might happen January 6:

2/ At its heart, the presser states, "we intend to vote on January 6 to reject the electors from disputed states as not ‘regularly given' and ‘lawfully certified' (the statutory requisite), unless & until that emergency 10-day audit is completed."

3/ How does a10-day emergency audit happen? Congress would need to enact a statute to amend the Electoral Count Act before January 6, when it's compelled by law to meet. That seems unlikely.

4/ Cruz et al. seem to hold a "thick" view of the Electoral Count Act, adhering to the "statutory requisite," which means that Congress would need to amend or adhere to the statute.

5/ A 10-day audit is impossible under the current statute. Objections to a state are limited to 2 hours' debate. Adjournments are fixed in the statute, too--no recess if you've hit five days:

David Greene
@davidgreene

I’ve been reading lots recently about the interaction between First Amendment law and free speech principles with respect to online services in light of the events of the last few weeks.

And I have thoughts (MY OWN). So, I’m sorry ... a thread 1/25

One of the main reasons I think users are best served by a recognition that social media services have 1st Amendment rights to curate the content on their sites is because many users want filtered content, either by topic, or by behavior, or other. 2/

So online services should have the right to do this filtering, and to give their users the tools to do so too. For more detail see our Prager U amicus brief https://t.co/73PswB9Q7Q 3/

So, I disagree with my friends (and others) who say that every online service should apply First Amendment rules, even though they cannot be required to do so. There are both practical and policy reasons why I don’t like this. 4/

Most obviously, the 1st Amendment reflects only one national legal system when this is inherently an international issue. So it’s politically messy, even if you think a 1st Amendment-based policy will be most speech-protective (though probably only non-sexual speakers). 5/

Eztainutlacatl
@cbkwgl

The debate over law and order comes to the forefront yet again. Law and order - both can be maintained with equal zeal. One needs to take precedence over the other. Will that be Order over Law or Law over Order?

We have watched and waited too long for the government to punish. It never happens and even in some cases it does it lakes too long,and many more crimes are done in the meantime. Quick justice like this is the best way out.
— Ratna murlidharan (@Ratnamurlidhar2) January 2, 2021

In other words, what do governments prefer - looking away the other side when law is broken with impunity in the fear that acting against the offender will lead to large scale rioting on the roads?

Or will the government gear up to uphold the sanctity of law and punish every single one trying to break it? There are many examples. Take the Tablighi Wuhan Wave. Or Bangalore Riots. Or the destruction of Temples in Andhra.

Now, if the perpetrators are punished, there is going to be large scale rioting. Pointing out Tablighi Wuhan Wave destroyed many a person in the Gulf when Pakistanis and their minions profiled every Indian and got them arrested for insulting Islam.

No one talks about the post to which the MLA's nephew responded to. Singhu Resort is another. What's stopping the government from clearing the protest site? Is it the same confusion between law and order?

Imagine for a moment the most obscurantist, jargon-filled, po-mo article the politically correct academy might produce. Pure SJW nonsense. Got it? Chances are you're imagining something like the infamous "Feminist Glaciology" article from a few years back.https://t.co/NRaWNREBvR pic.twitter.com/qtSFBYY80S
— Jeffrey Sachs (@JeffreyASachs) October 13, 2018

The article is, at heart, deeply weird, even essentialist. Here, for example, is the claim that proposing climate engineering is a "man" thing. Also a "man" thing: attempting to get distance from a topic, approaching it in a disinterested fashion.

Also a "man" thing—physical courage. (I guess, not quite: physical courage "co-constitutes" masculinist glaciology along with nationalism and colonialism.)

There's criticism of a New York Times article that talks about glaciology adventures, which makes a similar point.

At the heart of this chunk is the claim that glaciology excludes women because of a narrative of scientific objectivity and physical adventure. This is a strong claim! It's not enough to say, hey, sure, sounds good. Is it true?