C&C. Trump In E. Palestine. Defamation. HB991. CDA.
February 23 | Posted by mrossol | 1st Amendment, Childers, Law, TrumpSource: DECENCY AND DISAPPOINTMENT ☙ Thursday, February 23, 2023 ☙ C&C NEWS
🗞*US NEWS AND COMMENTARY* 🗞
🔥 In Coffee & Covid’s last post rounding up what was really going on in East Palestine, I reported that although fish kills were confirmed, I did NOT find any reliable reports of larger mammals evidencing chemical poisoning. That changed yesterday. Here is one video clip showing a raccoon that is either seriously ill, or was just forced to watch two hours of Kamala Harris speeches:
While Joe Biden was falling upwards on the Air Force One jetway in Poland yesterday, President Trump visited East Palestine, to deliver a large shipment of water and related aid, and to cheer up the locals, who were demonstrably excited to see him, not least because they feel largely ignored by top federal officials and aid agencies.
Beyond a rally and a photo opportunity, President Trump’s visit produced at least two tangible effects. The first, and more likely to be of benefit, was the announcement by FEMA that, even after Biden previously denied federal aid to the beleaguered town, FEMA had been authorized to commence relief efforts.
FEMA’s reversal occurred the day before Trump’s visit.
The second, less clearly beneficial effect of Trump’s visit was it provoked a curt announcement from Mayor Pete that he would, after all, visit East Palestine. He’s going there, just like President Trump, even though it was just one of many, many derailments the busy mayor, I mean secretary or whatever, has to deal with every year:
Anyway, earlier this week, Mayor Pete commented for the first time on the East Palestine disaster and told reporters he would visit the town “when appropriate.” Then — a couple days later — Eureka! Suddenly it was appropriate to visit. Right after Trump. My guess is Mayor Pete was waiting for someone to tell him what to do.
I wonder how the locals feel about Pete’s visit. I doubt it’s as exciting as Trump’s visit. Pete Buttigieg seems like an attractive and affable fellow, but lacking substance; we strain and strain to find something useful in the man, but only a puny spurt of value splashes out. In that sense, Pete Buttigieg is just like a difficult and unsatisfying bowel movement.
On the other hand, here are several encouraging moments from Trump’s visit to East Palestine yesterday:
🔥 Last week, largely unreported by corporate media, Governor DeSantis held a press conference on “defamation law reform.” Over the last week, this one was filed twice; first as HB951, which was very good but was quickly withdrawn and then replaced with HB991 — which is ten times better; it is fantastic.
This bill is an overlooked diamond, and I’m not surprised corporate media has been so quiet about it. Anyone who’s ever been trashed or cancelled on social media will instantly recognize how badly-needed is this new law. It would literally benefit everyone, by shrinking the poisonous effects of online cancel culture.
This new law would allow you to effectively and economically sue social media trolls who got you fired by falsely labeling you a “racist.” And it does a lot more than that too.
To set the table, part of my commercial litigation practice includes defamation cases. In my most recent case, for example, I sued a Facebook troll for falsely posting that my surgeon client “has paid lots of malpractice settlements.” The defendant, an unemployed paralegal who’d been sued before by a previous employer for embezzlement (although she doesn’t mention that in her bio), was actually upset because she didn’t like my client’s opinion about virus masks (he thinks they don’t work), and so she set out to destroy his excellent reputation.
I won that case, but it was much harder and more expensive for my client than it should have been, because the existing laws pre-date the Internet age. They are designed for people defamed on television or in the printed newspaper. Also, the current laws overly protect corporate media, mostly because, at the time the laws were passed, corporate media had just been opposed to the government during the Cold War.
The bill’s first major improvement is that it awards attorney’s fees to a successful plaintiff. Under the existing law, a plaintiff is NOT entitled to recover attorney’s fees. This makes most defamation cases economically unjustifiable. For example, I once represented a pediatrician defamed by the Gainesville Sun, which accurately reported that he’d written several mask excuse notes for local school kids, but then obscenely suggested that he’d been doing it without having a legitimate doctor-patient relationship — which would have been an ethical breach, if it had happened.
In fact, the Sun quoted the local school superintendent verbatim saying something like, “he doesn’t even know most of these kids or their parents.” Such an accusation could have made the other doctor’s patients leave the practice. Which I’m sure is what was intended; they wanted to punish him for writing mask excuse notes and make sure nobody else got the same idea.
Paradoxically, the story actually brought in tons of new patients. That was great, but for purposes of a lawsuit, my client couldn’t exactly show any economic damages. Since under the law he couldn’t recover attorney’s fees, he would’ve had to front thousands of dollars to sue the newspaper, just to get a verdict clearing his name. He only wanted $1 in nominal damages, but he would’ve paid tens of thousands to get that one dollar.
Why should my client have had to pay anything to clear his name? The Gainesville Sun should’ve had to pay for that. Under the existing, outdated law, corporate media sits smug and secure; they’ll never ever apologize for printing something false about you, because they know that average citizens simply can’t afford to sue them.
HB 991 goes a long way toward fixing these problems.
Attorney’s fees is a great start, but it gets better. The other trick corporate media always plays in these cases is that they whip out “journalistic privilege,” a law that protects reporters from having to disclose their sources. It’s important to protect legitimate whistleblowers. But HB 991 provides that when a reporter defames someone, they can’t defend themselves by relying only on anonymous sources.
In other words, right now a reporter can just say “I reported that she was a murderous KKK grand wizard because of what my anonymous source told me, and I don’t have to disclose that source.” But under the new law, the reporter-defendant must choose: either don’t use anonymous sources as their defense to defaming someone, OR disclose who the source was.
That seems more than fair.
Next, the law codifies something I’ve believed for a long time, but courts have been confused about: whether calling someone “racist, homophobic, or transphobic” is defamatory per se. Defamation “per se” is a heightened category of defamation that allows for recovery of “name clearing” or “nominal” damages, like that $1 award my pediatrician client wanted. (Technically, in a case involving defamation per se, the plaintiff doesn’t have to prove damages to survive a motion to dismiss.)
Current examples of defamation “per se” include calling a woman “unchaste” (e.g. “she slept her way to the top”), or claiming that someone is unfit to work in their current profession, like what happened to my surgeon client.
The new bill would make calling someone “racist, homophobic, or transphobic” into the same category with those other harmful types of defamation. This is driving the woke contingent insane right now. They think EVERYBODY is racist, homophobic, and transphobic, so if the law passes they won’t be able to say ANYTHING.
HB 991 also updates the law to current technology, by adding provisions recognizing current internet and social media realities. This gets a little technical, but one example is the new law would let the plaintiff (the injured person) pick the county in which to sue the defendant (the person who lied). The old law made the poor plaintiff file suit wherever the defendant lives, on the rationale that the injury happened where the defamation happened. That made sense for newspapers and radio and such, but the internet is everywhere.
Finally — and this is the most controversial part — the law would make it slightly easier for public figures to sue people for defamation — a long overdue reform. Currently, under a 1970’s Supreme Court case called “New York Times v. Sullivan,” celebrities and politicians face an almost unsurmountable burden suing for a defamation, which means people can basically say whatever they want about such “public figures,” no matter how unfounded or disgusting.
There SHOULD be a lot of latitude to talk about public figures. It’s less clear in the case of Hollywood celebrities, but seems very clear in the case of elected officials. But the ball swung too far, and needs to swing back a little.
First of all, this part of the bill is not just for celebrities and politicians. It helps everybody, because some courts will promptly dismiss a defamation case by finding that the poor plaintiff is a “public figure,” just because of the one time ten years ago they tweeted a picture of a Scottish terrier in a hot dog costume and got a million views. HB 991 fixes that, and provides a clear and reasonable definition of what a “public figure” is — something the Supreme Court overlooked in the Sullivan case.
The new provision for public figures only says that they get the same rules as everybody else when people defame them about things unrelated to their jobs. In other words, people could still criticize public figures all day long about anything that is remotely connected to their office. The example that is being used to make HB 991 seem like it’s just a personal gift for Governor DeSantis is this stupid picture, which has been circulating this year as a prop that unhinged liberals are using for an excuse to smear Governor DeSantis as a pedophile:
The new law wouldn’t stop these unhinged liberals from talking about the picture, they can have at it. Defamation is saying a FACT — not an opinion — that isn’t true. You can say opinions. You can say true facts. You just can’t lie or guess while pretending you know. So someone could probably safely say, “I think Mayor Skippy is a criminal, because I saw a picture of him next to a private plane in Mexico,” and while that’s stupid, it’s not defamatory.
But if they said “Mayor Skippy IS a sex trafficker” and didn’t have any evidence except one time they saw a picture of Mayor Skippy in Mexico, they might want to get ready for a visit from a process server under the new law.
People could also still say any dumb stuff as long as it’s true, like, “here’s a picture of Mayor Skippy in Mexico. My opinion is that lots of drug dealers go to Mexico — the same way Mayor Skippy did.” It’s dumb, but if it’s true, they’re probably good to go.
Finally, nothing people say in court or in a document filed in a lawsuit can be defamatory, regardless of its truth or falsity (although you might have other problems if you lie in court). So you can still sue government officials over guesses and hunches (although you shouldn’t).
You don’t have to take my word for it. Read HB991 for yourself: https://www.flsenate.gov/Session/Bill/2023/991. If you write your legislator, make sure to tell them not to let the bill get watered down.
HB991 would make excellent progress pushing back against cancel culture. See? I told you we’d have a great legislative session in Florida this year. Things are starting to happen.
🔥 That’s not all! There’s hope for everybody else, too. The U.S. Supreme Court is scheduled to hear arguments in two cases related to Section 230 of the 1996 Communications Decency Act, which is the law allowing social media companies to freely censor conservatives without liability. The 1996 CDA is another law that was created in the Internet’s infancy, and is long overdue for reform. It seems likely the Supreme Court is going to weigh in on just how much latitude the CDA actually meant to give social media companies.
Here’s the important bit. Remember that thanks to the Twitter files, many members of the Supreme Court will be well aware of how the CDA’s censorship shield created a moral hazard for government officials, inducing them to direct the infiltration and occupation of the social media companies for their own illicit political purposes. Fixing the CDA would also fix the problem of the government censoring people THROUGH social media companies.
I’m quite hopeful the Court will make a significant change to this outdated, ambiguous law. At one time during the pandemic, when covid censorship was at its peak, I remember thinking a change to the CDA might be the single most important change we needed and the only thing that could save our democratic form of government.
So this could be huge, and I think it will be.
Have a terrific Thursday! Meet me back here tomorrow for all the war news, I’m sure I’ll get to it then.*
(*Results may vary.)
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