Category Archives: Law

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.

No Charges In Tosa Case

This was the correct decision.

Black Wisconsin police officer who fatally shot a Black teenager outside a suburban Milwaukee mall in February won’t be charged because he had reasonable belief that deadly force was necessary, a prosecutor said Wednesday.

Wauwatosa Officer Joseph Mensah shot 17-year-old Alvin Cole outside Mayfair Mall on Feb. 2 after police responded to a reported disturbance at the shopping center.

Milwaukee County District Attorney John Chisholm, in a 14-page letter laying out his rationale, said evidence showed Cole fled from police carrying a stolen 9 mm handgun. He cited squad car audio evidence, along with testimony from Mensah and two fellow officers, that he said showed Cole had fired a shot while fleeing and refused commands to drop the gun.

“He did not surrender the weapon and was fired upon by Officer Mensah causing his death,” Chisholm wrote. He concluded: “(T)here is sufficient evidence that Officer Mensah had an actual subjective belief that deadly force was necessary and that belief was objectively reasonable.”

Stairway to Heaven Lawsuit Ends

Whew.

The final possible legal challenge to Led Zeppelin’s ownership of Stairway To Heaven has been defeated.

The band were sued for copyright in 2014 over claims they had stolen the song’s opening riff from Taurus, by a US band called Spirit.

Led Zeppelin won the case in 2016, but it was revived on appeal in 2018.

A court of appeals upheld the original verdict earlier this year. Now, the US Supreme Court has declined to hear the case, definitively ending it.

Barrett Opposes Abortion

Well, duh.

Amy Coney Barrett, the supreme court nominee, signed off on an advertisement in 2006 that called for the overturning of Roe v Wade, and called the landmark abortion rights decision “barbaric” and a “raw exercise of judicial power”.

[…]

In a statement to the Guardian, the White House said: “As Judge Barrett said on the day she was nominated, ‘A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.’”

The statement appears to reflect an acknowledgment that Barrett’s personal views on abortion could hurt her chances at confirmation.

I reject the judicial standard that is only held against conservatives. Namely, that any expression of an opinion on anything renders one unfit for the court. What an idiotic standard that is only selectively applied.

In this case, it is well known that Barrett opposes killing babies and thinks Roe was a bad ruling. Every Senator knows it. The fact that she said it in public 16 years ago is not disqualifying. Frankly, I’d be more concerned if she hid her views.

Court Rules that Subway’s Bread Isn’t Actually Bread

Never get between a government and their tax.

The rolls used in Subway’s hot sandwiches contain too much sugar to be considered bread, according to Ireland’s Supreme Court.

Ireland’s highest court made the ruling in a case about how the bread is taxed.

An Irish franchisee of the US company had claimed it should not pay VAT on the rolls it uses in heated sandwiches.

But the court ruled that because of the level of sugar in the rolls they cannot be taxed as bread, which is classed as a “staple product” with zero VAT.

Under Ireland’s VAT Act of 1972, ingredients in bread such as sugar and fat should not exceed 2% of the weight of flour in the dough.

Appeals Court Stays Partisan Judge’s Order

Good.

A federal appeals court on Sunday temporarily halted a six-day extension for counting absentee ballots in Wisconsin’s presidential election.

[…]

Sunday’s action puts Conley’s order on hold until the 7th Circuit U.S. Court of Appeals or U.S. Supreme Court issues any further action.

No further details were immediately posted by the appeals court.

Trump Nominates Barrett for SCOTUS

Sorry for going dark yesterday. I was in final consideration for the SCOTUS pick. As you can see, the President went another way.

US President Donald Trump has nominated Amy Coney Barrett, a favourite of social conservatives, to be the new Supreme Court justice.

Speaking by her side at the White House Rose Garden, Mr Trump described her as a “woman of unparalleled achievement”.

[…]

After graduating from Notre Dame University Law School in Indiana, she clerked for the late Justice Antonin Scalia. In 2017, she was nominated by Mr Trump to the Chicago-based 7th Circuit Court of Appeals.

She is an outstanding pick. If there is one thing that Trump has proven to be very capable of, it’s choosing Supreme Court Justices. His previous two picks have been outstanding and this one is too.

Given that the Senate confirmed her just three years ago, there shouldn’t be a need for much of a confirmation hearing. There will be, of course, but it’s just theater with Republicans trying to goad Democrats into bashing a Catholic Midwestern woman and the Democrats taking the bait.

Justice Department Builds Antitrust Case Against Google

This could have far-reaching implications.

WASHINGTON (AP) — The Justice Department is expected to bring an antitrust action against Google in coming weeks, focusing on its dominance in online search and whether it was used to stifle competition and hurt consumers, a person familiar with the matter told The Associated Press Thursday.

The department also is examining Google’s online advertising practices, said the person, who could not discuss an ongoing investigation publicly and spoke on condition of anonymity. Antitrust officials at the department briefed state attorneys general Thursday on the planned action against Google, seeking support from states across the country that share concerns about Google’s conduct.

The anticipated lawsuit against Google could be the government’s biggest legal offensive to protect competition since the groundbreaking case against Microsoft almost 20 years ago.

Lawmakers and consumer advocates accuse Google of abusing its dominance in online search and advertising to stifle competition and boost its profits.

Charges Announced in Breonna Taylor Killing

Make no mistake… Louisville was going to burn irrespective of what the charges were or were not. On the merits, the charges appear to be appropriate.

One of three Louisville police officers involved in the fatal shooting of Breonna Taylor was indicted by Kentucky  grand jury on Wednesday, following a six-month investigation into the case that sparked mass protests nationwide.

Jefferson County Circuit Judge Annie O’Connell read the grand jury’s decision in open court on Wednesday afternoon, charging fired detective Brett Hankison with three counts of wanton endangerment in connection to the police raid on the night of March 13.

Sgt Jonathan Mattingly, Detective Myles Cosgrove, who were also present at the time of Taylor’s death, were not charged.

Activist Judge Extends Wisconsin Election

This has no basis in law. It’s just what the judge thought was “fair.” Do we really want judges just setting whatever rules they want and changing it on the fly? Our election laws have been in place for many years and have served Wisconsin well. Why change less than 6 weeks before the election?

U.S. District Judge William Conley granted a large portion of their requests, issuing a preliminary injunction that was expected to be appealed all the way to the U.S. Supreme Court. He put the ruling on hold for seven days to give the other side a chance to seek an emergency appeal.

BlackRock Requires Full Disclosure of Relationships

Yikes.

The world’s largest money manager has introduced a new policy forcing its 16,000 employees to disclose ‘personal relationships’ with all the company’s clients, in what is being described as the toughest policy yet on office romances.

BlackRock, the New York-based firm which manages $7.4 trillion in assets, introduced the new rules last week.

They are in addition to existing policies which forced the disclosure of relationships with other staff members.

Given that BlackRock, on behalf of the funds it runs, is one of the five largest shareholders in nearly every corporation in the S&P 500, the impact of the new policy is expected to be significant.

[…]
‘It takes the assessment of what is or is not a conflict out of the employees’ hands and puts it into the hands of HR and lawyers — which makes it eminently enforceable,’ the executive said.
That’s comforting…

Democrats Will Overreach

I wrote this in February of 2017.

The Democrats have already reflexively announced their opposition to Gorsuch, even though their criticisms have failed to rise to any cogent standard. Wisconsin’s own Senator Tammy Baldwin has even refused to meet with Gorsuch, thus abdicating her role in the process and retreating behind nasty press releases and daft commentary.

Far be it from me to advise the Democrats, but their overreach on Gorsuch may neuter them further on future picks. Remember that former Senate Majority Leader Harry Reid killed the filibuster rule for all but Supreme Court picks in his effort to ram through President Obama’s lower court appointments, but left it in place for Supreme Court appointments. In doing so, Reid laid the ideological groundwork and precedent for killing the filibuster rule for Supreme Court picks too.

If the Democrats in the U.S. Senate choose to filibuster and obstruct what is clearly a brilliantly qualified choice for the Supreme Court, the Republicans can rescind the filibuster rule for Supreme Court picks too and confirm the appointment without needing to make a single concession to the minority party. The Democrats’ intransigence and unwillingness to even participate in the process, and the precedent already established by Harry Reid, will provide ample political cover for the change in rules.

Then, if and when Trump gets another opportunity to appoint a Supreme Court justice, the rules will already be set to allow an easy confirmation. If the Democrats participate and allow a vote – even if all of them vote against the nominee – they will likely preserve the filibuster for future Supreme Court nominations while undercutting the political justification to rescind it next time.

If the political battles of the past few years in Wisconsin have taught me anything, it is that Democrats will overreach. Their base of radicals demands unbending fealty to ideology – even at the expense of victory.

As it turned out, McConnell did end the filibuster for SCOTUS confirmations over the Gorsuch fight and here we are. Then the Democrats hardened once “play nice” Senators like Graham during their atrocious behavior in the Kavanaugh hearing. Again, I expect the Democrats to overreach again here.

Through all of this I continue to lament that we attach so much importance to a single judge; on a 9-judge panel; in one branch of our federal government. It shows how much power we have ceded to the federal government and, specifically, the Supreme Court. Do you know why judge appointments were mostly a non-event outside of Washington for well over a century of our nation’s history? Because it didn’t impact the lives of most Americans. That’s not the case anymore and our Republic is worse for it.

Democrats Threaten to Pack the Supreme Court

This is very simple. There is no practical purpose to expand the court for the good of the American People. The only reason to do it is to change the philosophical center of the court one way or the other. It is about raw power.

Democrats have threatened to pack the Supreme Court if Donald Trump‘s nomination gets confirmed following the death of Ruth Bader Ginsburg.

The president on Saturday urged the GOP-run Senate to consider ‘without delay’ his upcoming nomination to fill the seat vacated by Justice Ginsburg, who died Friday after a battle with cancer.

[…]

Several Democrats have vowed the party will expand the size of the court if they capture the Senate in November and Republicans have already pushed through a conservative successor to Ginsburg.

Joe Kennedy III, who represents Massachusetts’ 4th Congressional District and is the grandson of Robert F. Kennedy, tweeted Sunday: ‘If he holds a vote in 2020, we pack the court in 2021. It’s that simple.’

Let’s think this through a few steps. Let’s say the Democrats win the presidency and majorities in the Congress, so they expand the court to 11 members, appoint two liberals, and shift the balance. What’s to stop the Republicans from doing the same thing the next time they are in control? Does the Republic then just keep expanding the Supreme Court every time a party gets in power? We still experience the sway of courts as elected officials from one party or the other gain power, only now it happens faster because they don’t have to wait for sitting justices to die or retire.

Is that better? Is our Republic better for it?

Nope. Do the Democrats care? Nope.

Let’s hope this is a passing tantrum and more thoughtful people step to the front of the Democratic Party.

RIP RBG

Condolences.

US Supreme Court Justice Ruth Bader Ginsburg, an iconic champion of women’s rights, has died of cancer at the age of 87, the court has said.

Ginsburg died on Friday of metastatic pancreatic cancer at her home in Washington, DC, surrounded by her family, the statement said.

SCOTUS Strikes Blow for Religious Liberty

Excellent.

The Supreme Court ruled on Tuesday that a Montana program that excluded religious schools from a student aid initiative violates religious freedoms protected under the U.S. Constitution.

The 5-4 majority decision, which fell along ideological lines, said that by making state-backed private school scholarships off-limits to parochial schools, the program ran afoul of First Amendment protections for the free exercise of religion, which prohibits the government from treating religious and secular groups differently.

“A state need not subsidize private education,” Chief Justice John Roberts wrote for the majority. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

[…]

In a concurring opinion, Thomas argued that the court’s current treatment of the First Amendment’s Establishment Clause, which functions as a sort of counterweight to the free exercise clause, unduly interferes with states’ ability to support religious activities.

“So long as this hostility remains, fostered by our distorted understanding of the Establishment Clause, free exercise rights will continue to suffer,” Thomas, joined by Gorsuch, wrote.