Boots & Sabers

The blogging will continue until morale improves...

Category: Law

Indiana County Repeals Anti-Hippie Law

Heh.

LaGrange County, Indiana, has repealed a 1971 law that was intended to block huge gatherings like the 1969 Woodstock music festival in New York state.

“I called it our anti-hippie ordinance,” county commissioner Dennis Kratz said with a smile.

 

The ordinance regulated large gatherings that lasted more than 12 hours and involved more than 500 people, The News Sun reported.

 

The law was recently dropped as part of an effort to repeal ordinances that have no practical use but have been on the books for as long as 100 years, especially certain traffic restrictions. County attorney Kurt Bachman’s research lasted three years.

Small Businessman Sues Twitter for Labeling Him a “Hacker”

This will be an interesting case.

A computer repair shop owner who Hunter Biden handed his laptops over to in April 2019 is suing Twitter for defamation, claiming moderators labeled him a hacker.

John Paul Mac Isaac is seeking $500 million in damages from Twitter after The New York Post’s story about Biden, obtained from the 50-year-old’s laptop, was labeled as potentially coming from hacked material.

Facebook and Twitter both restricted viewing of the Post’s story, and Twitter pointed to its ban on posting ‘hacked materials’ as an explanation.

Mac Isaac claims, according to The Verge, that Twitter specifically made this decision to ‘communicate to the world that [Mac Isaac] is a hacker.’

He says that his business began to receive threats and negative reviews after Twitter’s moderation decision, and that he is ‘now widely considered a hacker’ because of Twitter.

Ignore the Hunter Biden connection and the ridiculous dollar amount. This is a case where Twitter employees – not Twitter users – specifically labeled this guy a hacker and damaged his reputation and livelihood. The facts of the case are self-evident. So the court will have to decide if a company like Twitter can be held liable for the defamatory actions of its employees. In a normal world, this seems like it would be a slam dunk. After all, if a company like Microsoft or General Mills had their employees defame someone in public, they could be held accountable. But in today’s hyper-charged environment, who knows?

Judge Reverses Demotion of Milwaukee Police Chief

Good.

MILWAUKEE — MILWAUKEE — A judge has reversed the Fire and Police Commission’s decision to demote former Milwaukee Police Chief Alfonso Morales.

Milwaukee County Circuit Court Judge Christopher Foley said the decision of the Milwaukee Fire and Police Commission to demote Morales from police chief to captain was not proper.

In a seven page ruling, Milwaukee County Judge Christopher Foley condemns the Milwaukee Fire and Police Commission. Foley writes the Commission failed to follow basic requirements for ousting the city’s top cop, writing in part, “It is clear this entire process was flawed.”

Barr Resigns

Harrumph

Donald Trump ousted Bill Barr as attorney general Monday after a face-to-face White House meeting – having raged at the chief law enforcement officer keeping the Hunter Biden probe secret.

Trump announced the departure in a tweet which presented Barr’s decision to go as his own.

‘Our relationship has been a very good one, he has done an outstanding job!’ Trump said, then said Barr would ‘spend the holidays with his family.’

[…]

The departure came the afternoon after it emerged Barr used the force of his office to instruct prosecutors investigating Hunter Biden not to take any steps that might cause the probe to be publicly revealed in the run-up to the election.

Trump publicly complained about Barr over the weekend. He told Fox News Barr ‘should have stepped up.’

‘All he had to do is say an investigation’s going on,” Trump said. ‘When you affect an election, Bill Barr, frankly, did the wrong thing.’

Barr did a disservice for the American people in keeping the investigation of Hunter Biden a secret. I don’t know if Hunter is guilty, but the fact that someone so close to a presidential candidate is being seriously investigated for illegal dealings with foreigners and corruption is something that the American people should have been able to weigh in the balance when making their choice.

By and large, Barr did a decent job as AG, but in the end, he is, has been, and always will be, a creature of Washington.

States and Fed Sue to Break Up Facebook

Excellent.

The US government and a coalition of 48 states and districts have filed parallel lawsuits against Facebook in a major antitrust offensive that accused the social media behemoth of anticompetitive behavior and could ultimately force its breakup.

At the heart of both antitrust actions, announced on Wednesday, is Facebook’s dominance of the social media landscape, and whether the company gobbled up potential competitors and blocked market access to others that could have eaten into its staggering market share.

One lawsuit brings together nearly every state in the US, a coalition led by New York’s attorney general, Letitia James. The suit accuses Facebook abusing its market power to quash smaller competitors.

SCOTUS Rules in Favor of 1st Amendment

This should not have been a 5-4 ruling. But thank goodness Barrett is on the court.

(CNN)In a 5-4 ruling, the US Supreme Court sided with religious organizations in a dispute over Covid-19 restrictions put in place by New York Gov. Andrew Cuomo limiting the number of people attending religious services.

The case is the latest pitting religious groups against city and state officials seeking to stop the spread of Covid-19, and it highlights the impact of Justice Amy Coney Barrett on the court. The decision comes as coronavirus cases surge across the country.
In the late-night decision, Barrett sided with her conservative colleagues in the dispute, while Chief Justice John Roberts joined the three liberal justices in dissent.

Evers Administration Sues

The liberals won the Supreme Court election and the election is over. Time for them to launch a barrage of lawsuits in the hope that the Wisconsin Supreme Court has shifted Left.

MADISON – Gov. Tony Evers and Attorney General Josh Kaul sued state lawmakers Monday, bringing a new challenge to a set of lame-duck laws Republicans passed two years ago to curb their powers.

The latest case focuses on a requirement that the Legislature’s budget committee sign off on some court settlements negotiated by Kaul.

Evers and Kaul argue that the policy violates the state constitution’s separation-of-powers doctrine, which spells out what authorities belong to the executive and legislative branches of government.

With the lawsuit, the state’s top two Democrats are trying to resolve an issue that has remained elusive during the first half of their terms in office.

In a ruling this summer, the state Supreme Court found the settlement provision does not violate the state constitution in all situations but left open the possibility that it might some of the time. The new, narrower lawsuit asks the high court to rule that two classes of cases should be exempt from the requirement to get approval from lawmakers.

On the merits, the law does not appear to violate the separation of powers. In fact, the law is a long-overdue legislative oversight that I hope remains in place for future Republican Attorneys General too. Some state AGs have used their power to shake down companies for settlements that can then be doled out to political favorites by the administration in power. A little oversight and discussion with the legislature is not an undue burden. It is, however, a prudent exercise of the legislative branch to oversee the collection and disbursement of settlement that often total millions of dollars.

In Madison, You Can Get High… Just Not in Groups

Heh

Under the new ordinances passed Tuesday night, people 18 and older will be allowed to use or possess up to 28 grams, or about an ounce, of marijuana on public and private property, as long as they have the permission of the property owner, landlord or tenant. Possessing paraphernalia also will not be punished.

Citation fines are being reduced from $50 plus court costs to $1 plus court costs. Heavier penalties still apply for those charged with intent to deliver cannabis.

“It’s been decriminalized even further,” Assistant City Attorney Marci Paulsen said. “You’re permitted to possess and consume marijuana in public places, which before you were not allowed to do that. You have to comply with the smoking ordinance, so it’s not like you can smoke marijuana in a restaurant or a bar, but you could walking down the street now.”

In practice, Paulsen said that could lead to some pretty significant changes.

“Before, the Madison Police Department would write citations for individuals possessing marijuana if they arrested individuals with marijuana on them or if they came across a vehicle with people smoking marijuana,” she said. “Now, they won’t be unless it rises to the level of a state statute violation where it’s a significant possession amount or significant crimes are involved in it.”

Court Orders Evers to Surrender Emails

Governor Evers has been flagrantly violating the Open Records Laws. This is not the first example. It won’t be the last. He shuns oversight by the people.

After a year-long battle over Governor Tony Evers’ emails, a Dane County Circuit Court judge ruled this week in FOX6’s favor.

In September 2019, FOX6 requested just over four weeks of emails to and from Governor Tony Evers and his chief of staff, Maggie Gau. FOX6 regularly conducts open records spot checks on public employees’ emails. A recent spot check on two weeks of state lawmakers’ emails uncovered the practice of using personal email addresses to communicate about sensitive government information.

The governor’s assistant legal counsel Erin Deeley denied the request and FOX6’s subsequent attempt to narrow the request to emails from one week.

Finally, FOX6 asked for just Governor Evers’ emails from just one day – June 14, 2019. The request was denied. Governor Evers’ attorney said all email requests will be denied if they do not contain search terms or wording she can turn into search terms. That is, requests for emails about the budget or containing the word “agriculture,” for example, may be processed; requests for all emails over a specific time frame, no matter how short, will be denied. In other words, the requesters need to know what’s in the public records before they can see the public records.

Obama Says Social Media Companies are Acting Like Publishers and Not Platforms

I agree!

Former U.S. President Barack Obama said that the extent to which social media companies claim they “are more like a phone company than they are like The Atlantic” is not “tenable,” he told the publication in an interview published Monday.

“They are making editorial choices, whether they’ve buried them in algorithms or not,” the former president said in the interview. “The First Amendment doesn’t require private companies to provide a platform for any view that is out there. At the end of the day, we’re going to have to find a combination of government regulations and corporate practices that address this, because it’s going to get worse. If you can perpetrate crazy lies and conspiracy theories just with texts, imagine what you can do when you can make it look like you or me saying anything on video. We’re pretty close to that now.”

Obama’s statement that social media platforms should be considered more like publishers than public utilities would have significant implications on how the companies are regulated.

[…]

President-elect Joe Biden has harshly criticized Section 230 and Facebook itself in an interview with The New York Times editorial board published earlier this year.

“Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” Biden said at the time, referring to Facebook CEO Mark Zuckerberg, taking a more extreme position than many of the Democrats and Republicans currently seeking to tweak the laws’ protections.

In October, I said:

In purposefully, actively, and personally deciding to stomp on a negative story about Joe Biden that was published by a reputable newspaper in the midst of a political campaign, Facebook and Twitter have definitively and unmistakably crossed the line from being internet platforms to publishers. As such, the legal protections granted to them under Section 230 must be withdrawn so that they can be regulated like The New York Times, Fox News, MSNBC, and all of the other publishers that filter, edit, and curate the information they provide to their subscribers.

Facebook and Twitter can’t have it both ways. If they want the legal protections provided under Section 230, then they must allow all information to flow freely. If they want to be information gatekeepers, then those protections must be withdrawn so that people have legal remedies against abuse.

Should Insurance Cover COVID Business Losses?

Interesting case in the UK.

A hotly-contested case about insurance payouts for small businesses who were unable to trade owing to lockdown heads to the Supreme Court on Monday.

A host of businesses closed or faced significant losses, so made claims on their business interruption insurance.

But many insurers disputed the claims, arguing policies were never meant to cover such unprecedented restrictions.

Supreme Court judges will make a final judgement after the hearing, which is expected to last four days.

The issue will have had implications for 370,000 – mostly small – businesses, and involves potential payouts of £1.2bn.

High Court judges earlier found mostly in favour of insurers having to pay out to policyholders regarding a selection of policy types. Some of these decisions are now being appealed against at the Supreme Court.

This should be a relatively simple case. The contract is the contract and it says what it says. If there is language in the contract that excludes something like a government shutdown due to pandemic, or if there is language that says that “everything not covered is considered NOT covered” then the insurers are off the hook. It would be inappropriate to hold insurers to cover losses for a circumstance that they didn’t agree to cover and for an action that they didn’t cause.

The only question should be, “what is the language of the contract?” If the language is ambiguous and the business owners had a reasonable expectation of the insurers covering their losses, then perhaps the court will rule in the business owner’s favor.

It’s an important case because some judges in the U.S. have shown that they will look to foreign rulings to inform their decisions. Our judges shouldn’t do that, but they do. Watch this case in the U.K. If the High Court forces insurers to pay, there will be a slew of additional lawsuits in the U.S.

Mailed Ballots Must Be in Officials’ Hands by 8 PM on Election Day

Court upholds clear language of the law.

The United States Supreme Court on Monday upheld Wisconsin’s voting laws requiring absentee ballots be in election officials’ hands by the time polls close at 8 p.m. on Election Day, Nov. 3, the Milwaukee Journal Sentinel reported. The Supreme Court’s decision was decided 5 to 3.

Democrats challenged the law, saying the Election Day deadline should be extended because of the Wuhan coronavirus pandemic. They unsuccessfully argued that ballots should be counted as long as they are postmarked on or before Election Day.

Republicans made the argument that election rules shouldn’t change in the face of the pandemic.

The contentious decision comes after a federal court of appeals upheld a six-day extension for ballot counting.

Chief Justice John Roberts was the deciding factor in this vote, although he joined with the liberal justices to extend ballot counting in Pennsylvania. According to the chief justice, the two states are vastly different.

 

Justice Barrett

Huzzah, huzzah.

Amy Coney Barrett was confirmed to the Supreme Court Monday evening by the Senate in a 52-48 vote – with Republican Susan Collins crossing the aisle to vote against her.

Donald Trump’s third nominee was not in the chamber to watch the roll call vote, which allows her to join the eight justices on Tuesday morning, and potentially to decide on cases about voting before the November 3 election.

Senate president pro tempore Chuck Grassley declared her confirmation at 8.06pm; outside the Supreme Court conservatives chanted Coney Barrett’s name as soon as she was confirmed.

Time to regulate Facebook, Twitter like the publishers they are

Here is my column that ran in the Washington County Daily News this week.

The New York Post, the newspaper founded by Alexander Hamilton, broke a story last week about Joe Biden’s family. The story was supported by credible evidence and implicated Joe Biden and his son, Hunter, in a long-term scheme to shake down foreign entities for money in exchange for favorable American government action. It is the kind of story that, if true, is the most serious kind of government corruption imaginable — the selling of American foreign policy for cash.

The bombshell story was instantly quashed and hidden by Twitter and Facebook. Both companies actively censored the story, blocked accounts that attempted to share the story, and disabled links under the faux-truistic cover that they were upholding journalistic standards by insisting on stronger sourcing. This is despite a lengthy history of allowing every conspiracy theory and liberal fake news story to propagate unmolested. In choosing to put their digital thumbs on the Biden story, both companies crossed the line from internet platforms to publishers and require a different regulatory treatment.

Twitter and Facebook both benefit from Section 230 of the Communications Decency Act of 1996, which is credited with providing the legal umbrella that allowed the internet to flourish into what it is today. Section 230 simply states, in its entirety, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

While simple, the distinction has massive implications in law. By not being deemed a publisher, internet companies are protected against liability for libel or defamation for what appears on their platforms. Section 230 is an evolution of an ancient English common law practice of “common carriage” or common carrier. The crux of common carriage is that private enterprises who are engaged in something imperative to the common good are granted some special protections by the government in exchange for certain obligations. In the case of internet companies, the free exchange of ideas these platforms facilitate is considered the lifeblood of a free, self-governing society and a common good worthy of such protections.

In the 20th century the common carrier that dominated technology for the better part of 70 years was AT&T. In exchange for a monopoly on long-distance lines and the ability to use eminent domain, AT&T agreed to let the government regulate their rates and, what was critical, to not discriminate against what was said on those lines. This was a stark contrast to the great monopoly of the telegraph, Western Union, which might have helped sway the presidential election of 1876 to Rutherford B. Hayes by secretly providing the Hayes campaign the Democrats’ telegrams and suppressing others. AT&T’s great bargain was to agree to be regulated in exchange for a monopoly.

Section 230 took the grand bargain a step further by providing all of the benefits of legal absolution in exchange for nothing. Under this law, companies like Twitter and Facebook grew up into dominant natural monopolies because their users provided petabytes of content for other users to consume without having to police the content for accuracy or even sanity.

Make no mistake, if you are not paying for it, you are what is being sold. In the case of Twitter and Facebook, their business model is to collect incredible amounts of personal data about their users and sell that data for the purpose of target marketing, research, and whatever other moneymaking purpose they can divine. Their algorithms target people for specialized content and might have already broken the common carrier trust that the public bestowed on them.

In purposefully, actively, and personally deciding to stomp on a negative story about Joe Biden that was published by a reputable newspaper in the midst of a political campaign, Facebook and Twitter have definitively and unmistakably crossed the line from being internet platforms to publishers. As such, the legal protections granted to them under Section 230 must be withdrawn so that they can be regulated like The New York Times, Fox News, MSNBC, and all of the other publishers that filter, edit, and curate the information they provide to their subscribers.

Facebook and Twitter can’t have it both ways. If they want the legal protections provided under Section 230, then they must allow all information to flow freely. If they want to be information gatekeepers, then those protections must be withdrawn so that people have legal remedies against abuse.

Time to regulate Facebook, Twitter like the publishers they are

My column for the Washington County Daily News is online and in print. I know what you’re thinking… what the heck did President Hayes do to make the news this week? You’ll have to read and see.

In the 20th century the common carrier that dominated technology for the better part of 70 years was AT& T. In exchange for a monopoly on long-distance lines and the ability to use eminent domain, AT&T agreed to let the government regulate their rates and, what was critical, to not discriminate against what was said on those lines. This was a stark contrast to the great monopoly of the telegraph, Western Union, which might have helped sway the presidential election of 1876 to Rutherford B. Hayes by secretly providing the Hayes campaign the Democrats’ telegrams and suppressing others. AT& T’s great bargain was to agree to be regulated in exchange for a monopoly.

Judge Reinstates Evers’ Illegal Order

Again, the legislature can act if they have the will to do so.

MADISON – A Barron County judge has revived Gov. Tony Evers’ order limiting public gatherings, including the number of customers who may visit bars and restaurants at one time.

Judge James Babler denied a motion from the Tavern League of Wisconsin and two bars to continue to block the Evers administration’s latest health emergency order after a ruling last week by a Sawyer County judge that prevented enforcement of the order temporarily.

Babler said the plaintiffs could not show they were complying with the order and therefore hadn’t proven they were harmed by it.

He also said the May state Supreme Court ruling that knocked down Evers’ stay-at-home order did not make clear what authority the administration has in placing such limits, despite the plaintiffs arguing the decision prevents Evers from issuing the latest order.

I thought this was an interesting take:

Babler said the plaintiffs could not show they were complying with the order and therefore hadn’t proven they were harmed by it.

So if the order is useless because nobody is complying with it, then why bother having it?

Biden Supports Court Packing

After all of the blather about the integrity of the court and a return to normal, Biden is open to one of the most radical power grabs from another branch of government in the modern era.

Democratic nominee Joe Biden opened the door to expanding the number of justices on the Supreme Court, depending on how the rest of Judge Amy Coney Barrett‘s confirmation process is handled.

‘I have not been a fan of court-packing because it generates, whoever wins it just keeps moving in a way that is inconsistent with what is going to be manageable,’ Biden said Thursday night at an ABC News townhall.

But with prodding from George Stephanopoulos, Biden said it would be something he’d consider though it ‘depends on how this turns out,’ telling the ABC News anchor he would announce a clear position by the November 3 presidential election.

Judge Temporarily Blocks Evers’ Illegal Order

Some good news. Let’s hope the ruling matches.

MADISON, Wis. (AP) — A Wisconsin judge on Wednesday temporarily blocked an order from Gov. Tony Evers’ administration limiting the number of people who can gather in bars, restaurants and other indoor places, a move that comes as the state breaks records for new coronavirus cases, deaths and hospitalizations.

[…]

A GOP-controlled legislative committee on Monday met to begin the process of creating the rule, which would then allow the Legislature to strike it down.

Sawyer County Circuit Judge John Yackel, who blocked the order a day after the Tavern League of Wisconsin sued, set a court date for Monday. He said the hearing will give attorneys for the Evers administration a chance to argue why the order should not be put on hold while the lawsuit plays out.

Judge Allows Executive Tyranny to Continue Because Legislature Fails to Act

While I think the ruling is wrong on the law, I understand the deference to the separation of powers issue.

MADISON – A Wisconsin judge has blocked an effort by Republicans to end Democratic Gov. Tony Evers’ statewide mask mandate at a time when coronavirus cases are surging.

St. Croix County judge R. Michael Waterman on Monday denied the request by plaintiffs represented by the conservative Wisconsin Institute for Law & Liberty legal firm — an effort that was backed up in court by Republican lawmakers — and ruled the governor has the power to issue multiple health emergency orders over the same pandemic.

Attorneys for the plaintiffs said they will appeal the decision.

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