Happy New Year

I’ve been recording commentary on WAMC for approximately 15 years. Christmas and New Year’s are always different. It doesn’t feel like a time for argument, for praising some and condemning others. So I and many in similar positions usually talk about the joys of the holiday season and individual plans for the New Year. I tend to do it a bit multi-culturally but it really doesn’t matter; we all share the same dreams.

In reality, though, I realize that those who govern us have an enormous impact on our health and happiness – whether we’ll die on a war front, as refugees from battle or other disaster, or for lack of roads, doctors or access to health care. So I want to address my hopes for the New Year to those who have those powers.

It’s hard to read or hear the news without finding more evidence that power corrupts. George Mason, a Virginia delegate to the Constitutional Convention, and a slave-owner himself, told his colleagues, on August 22, 1787, that “Every master of slaves is born a petty tyrant.”[1] Talking about lessons from slavery seems extreme to some except that we see frequent examples of masters taking cruel, often deadly, advantage of those who are called employees or are otherwise vulnerable. Let us not sire petty tyrants.

The promise of America goes well beyond class, race or religion. Thaddeus Stevens, a Pennsylvania congressman and a Republican leader in the fight for the 14^th Amendment, expressed the American dream when he told the House that he dreamed of the day when “no distinction would be tolerated in this purified republic but what arose from merit and conduct.”[2]  Our Constitution makes no other distinction. If you’re here you are protected. It protects not only citizens but residents, travelers, visitors, everyone. It does that by using broad terms, “people,” “persons,” without limitation. That’s one of the great features of our Constitution. Our country pioneered the concept of human rights, guaranteed for everyone.

Paul Finkelman, an old friend and former colleague, now a college president, showed me a draft he’s been writing on the point. He goes through each Amendment which make up what we call the Bill of Rights and the language of who gets those rights. The 1^st, 2^nd, 4^th, 9^th and 10^th Amendments are directed to “the people.” The 5^th protects “any person.” The 6^th protects “the accused.” Otherwise the Bill of Rights simply prohibits government from infringing rights and the language is again universal. Attacks on people and their rights which depend on where they come from conflict with the great principle which this country pioneered – universal human rights.

The late, great, vice-president, Hubert Humphrey, broadened the point at the dedication of the Hubert H. Humphrey Building, on November 1, 1977, saying “The moral test of government is how it treats those who are in the dawn of life, the children; those who are in the twilight of life, the aged; and those in the shadows of life, the sick, the needy and the handicapped.”[3] That we may treat each other well are my wishes for the coming year. And, as Pete Seeger sang, “Pacem in Teris, Mir, Shanti, Salaam, Heiwa!” which spells peace in many languages, and in some it also means good health. Happy New Year.

[1] 2 Max Farrand, Records of the Federal Convention of 1787, 370.

[2] Cong. Globe,  39^th Cong., 1^st sess. 3148  (1866) (June 13, 1866).

[3] Congressional Record, November 4, 1977, vol 123, p. 37287, available at https://en.m.wikiquote.org/wiki/Hubert_Humphrey.

On the Warmth and Humanity of the Holiday Season

Woops, I forgot to post last week’s commentary. But it’s still appropriate.

This is the holiday season. For the Gottlieb family, half the days in December are occasions for giving – birthdays, anniversaries, the 12 days of Christmas and the 8 days of Hanukah, plus remembering my dad who died on the first night of Hanukah. When my in-laws were alive, Christmas did indeed take quite a while as waves of relatives came to town or we stopped to see them. Now that we have two granddaughters, every day we get to see them seems like a holiday whether it has an official name or not. Officially, the family comes to us in Albany for some holidays, while they go to our daughter-in-law’s mother for others. It’s a wonderful time, caring in ever widening circles.

I attended a dinner recently, put together by a woman who organizes a staff of swimming teachers, many of whom used to work for the Red Cross before it reorganized how it would deliver local services, and listened as several of them brought up ways that they could help the shut-ins they encountered in their work and others they’d hear about – to cheers from all around the table.

A few evenings earlier I attended a dinner with members of our and another congregation and some of the people that they are helping under the auspices of Family Promise. A few years ago I had written a court brief about why it was perfectly appropriate and legal for our temple and a nearby church to use our houses of worship to help the homeless. But this night they were introducing me to the program I had supported, and a family we were supporting. It was an absolutely lovely evening. I think I spoke a couple of years ago about former students of mine who were helping soup kitchens and similar organizations on both coasts, and in different religious contexts. I have no doubt that it is as rewarding to the souls of the providers as it is to those who come in search of help.

It’s also a special privilege to learn about the success of some of the people we’ve helped. Unfortunately, unlike the LGBTQ community, there hasn’t been a big push to come out and announce having been brought up on welfare. But I’ve known, and you’d recognize, some very deserving and successful people who spent time on public assistance while they were growing up. And I’ve spent enough time in the law to know that the things that happen to people aren’t always their own fault – even what we think of as mistakes aren’t necessarily anyone’s fault.

So I appreciate the spirit of the season and admire the efforts of so many people to make it last. And I’ve been blessed with enough friends on or from several continents to know that good, lovely, admirable people, come in all kinds of packages. So I’d generalize: peace on earth, good will toward all men, women and children. Happy Holidays.

Me and Bruce

Some of you may think that my comments on the subpoenas and Bruce Ackerman’s comments on the rules for the trial of the impeachment charges are in conflict. If the Senate adopts the rules used for the trial of the charges against Andrew Johnson, Bruce accurately describes the Senate process. I’m not convinced the Senate will go that way, but Bruce is right that it is important to understand what that track means. My own comments were aimed at Republican complaints that Democrats should have investigated more. As I outlined,  the significance of whatever the Court does about the subpoenas, will be entirely political. The evidence is sufficiently out there already .

Impeachment rules in the Senate

Bruce Ackerman of Yale Law School has written a clear description of the rules that will apply in the Senate. He explains that McConnell will have much less control than most have been assuming and that Chief Justice Roberts will have much more control. That will matter in many ways that Bruce explains. See https://slate.com/news-and-politics/2019/12/senate-impeachment-trial-john-roberts-mitch-mcconnell.html

The Supreme Court on the Trump Subpoenas

The Supreme Court decided to hear the Trump Administration’s appeals from lower court orders that tax returns and other documents be provided. What does that mean?

The Court set the case for argument in March. The Court has a lot of control over timing. But generally, decisions are announced when the various opinions are finished.  That can take a long time in controversial cases. So sometime in June is likely.

Four members of the Court can set a case for hearing. Those who vote to take a case don’t have to vote for the side requesting it but, if they are favorably inclined, those four are only one vote short. Statistically, the Court decides in favor of the party requesting review between two-thirds and three-quarters of the time. That suggests Trump’s team probably wins.

But given the importance of the decision, the Court might just feel that it should make the final decision. Trump has belittled and attacked lower court judges. It would be harder for him to attack the Supreme Court.

A Supreme Court decision for the Administration could affect momentum. Deciding for Trump could anger Democrats and bring more to the polls, making Democratic victories more likely in 2020. It could also lead some Trump supporters to relax about the election, also making a Democratic victory more likely.

It will be difficult for the Court to justify deciding for Trump. The cases aren’t in his favor. Other presidents have had to comply with subpoenas. Deciding for Trump will make the Court seem totally political. Some members of the Court’s conservative majority would regret that. They think of themselves as judges, not partisans. Chief Justice Roberts explicitly said the Court is composed of judges, not partisans. Of course, we’ll see.

Legally, what’s already been disclosed makes a very strong case that Trump violated the Constitution, and broke the law, in ways that justify impeachment. As I’ve described, Trump put his personal interests above the national interest. He had previously decided to support and ship arms to Ukraine, stopping only to get a campaign message in his favor from the Ukrainian president. He changed back only when the story of the phone call came out. Everything was about his campaign and nothing about American interests.

Republicans talk about calling the whistle-blower. That would compound the violations of law, and the whistle-blower has nothing relevant to offer. Any decent judge would sustain objections to calling the whistle-blower to testify. All the evidence has now come from others. Not a single fact comes from the whistle-blower, who could only testify about what he or she heard or saw in the transcript. Other people heard the call, and saw the transcript. With the investigation done, the whistle-blower has nothing to offer. Most of what he or she said was hearsay and is inadmissible. Law enforcement uses hearsay as a tip – it checks on that tip by going back to people with direct knowledge and verifying or contradicting what the whistle-blower said. Here, the whistle-blower’s allegations were repeatedly corroborated. The whistle-blower’s relevance ends at that point.

Juries sometimes ignore the law and vote to dismiss what is clearly established. That’s the real relevance of the subpoenas. I doubt Senate Republicans will do their duty on the current record – most have made it clear they don’t care whether Trump is innocent or guilty. But additional disclosures could make it politically as well as legally impossible to ignore the evidence.

— This commentary was broadcast on WAMC Northeast Report, December 17, 2019.

Impeachable Offenses – Disloyalty and Denial

Arguments about what should be in articles of impeachment divert our attention from the main point. Donald’s phone call with the new president of Ukraine should have made clear to all of us that the president is disloyal to America, willing to sell our security for a foreign leader’s press conference to make Donald look like a wizard instead of a duck. If we can’t trust the patriotism of the president, we can’t trust him to get anything right – except by accident.

His defense? Republican members of the Judiciary committee brought Professor Jonathan Turley to the stand to criticize Democrats for rushing when there are a lot of other witnesses with knowledge of Trump’s misbehavior. If there is anything favorable to Mr. Trump in what they would say, it has always been in his power to have them say it – it was Donald who told them to shut up, Donald who told them to stiff the subpoenas, Donald who threatened anyone who showed up to testify. It is perfectly appropriate for us to conclude that whatever they would say would make it even worse for Donald. Republicans are asking us to buy a completely irrational argument – that witnesses that Donald prevents from appearing would testify in his favor. Only if the Democrats were preventing witnesses favorable to Donald from testifying would their behavior be unfair. Instead, the Republicans are insisting that the Democrats are unfair because they refuse to fall into that trap. That’s Republican clap-trap and no American with their wits about them would fall for such nonsense.

Trump’s denial of science won’t make it into articles of impeachment, but is one of the most important reasons to get rid of him. Scientists test – will this work? What will happen if we do this or that? They can’t promise us a conclusion. Just the facts; sometimes good news and sometimes not. Trump just picks the conclusions he likes.

Mama didn’t get to choose her diagnosis. If she could have, she would certainly have preferred the family physician who told her that lump on her breast was arthritis. But I have lived with the belief that had he gotten the science right, had he told us the bad news, she might have lived to meet her daughter-in-law and her grandchildren and they her. And oh the joys they’d all have shared.

Remember Trump’s claim that he could get away with murder on 5^th Avenue. The environmental damage Trump is doing to favor the short term profits of his rich friends will drive millions of people out of their homes if they’re lucky, or kill, starve or suffocate them if they’re not, dwarfing the death toll in Hitler’s concentration camps, and we will all be his victims – the working men and women, laborers, middle class – all the people Trump has fraudulently claimed to help. Mass murder is the highest of crimes and the strongest of reasons to impeach a president.

People on other continents have been converted from poachers to defenders of our natural patrimony with well-targeted incentives. But it won’t be done by an Administration that stimulates violence, encourages global warming and seeks to rid the world of everyone but his storm troopers.

Doctors would properly be stripped of their licenses. Presidential malpractice in the face of impending calamity should cost him his office.

The president is disloyal. He is arranging the death of innocent men, women and children on 5^th Avenue and everywhere else. His congressional supporters have lost their minds and want us to throw ours into the trash heap with theirs.

We’ve got to clean up the White House and the environment with the method that Mary Martin made famous in South Pacific – we’ve got to wash those men right out of our hair – and every place else!

— This commentary was broadcast on WAMC Northeast Report, December 10. 2019.

 

 

Zuckerberg, Facebook and the Responsibility of Publishers

This post is about law and social media.

Zuckerberg has not been willing to take responsibility for the lies distributed on Facebook. And by now everybody but Donald is aware that social media are the major repositories of fake news. And that’s not an accident.

Broadcasting stations, newpapers and other publishers must carefully avoid publishing libel and defamation on their media. That requires them to make real effort to prevent publication of scurrilous material.

Until the 90s, those rules arguably applied to the internet. But then communications law removed publisher liability entirely for “interactive computer service[s]”:

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.

As Dan Solove comments, courts interpreted the statute:

to immunize any ISP [internet service provider] or website for comments made by their users – even when the ISP or website has knowledge the comments are defamatory or invasive of privacy and take no steps to do anything about it.

Some of the results have been outrageous. The statute removed liability even when internet providers knew stories were false. In one infamous case, an anonymous source posted messages falsely linking a small businessman to the Oklahoma City bombing. A crushing barrage of angry callers made it impossible for him to do business.  AOL removed the posts when notified, but variations were reposted immediately and the victim couldn’t get AOL to block them, post retractions or even act more quickly. The courts sided with AOL. And Congress moved in only to protect copyright owners.

In this wild west of unsubstantiated internet allegations, who’s responsible? It’s generally worth suing only corporate defendants who can pay for the damage, which usually means the ISP.  And immunizing fraud on social media makes it harder to hold other media responsible. Once a story is “out there,” other news organizations are stuck. Without a good way to hold companies responsible for checking facts, gossip, lying and fake news dominate the industry.

Recent hearings made clear that Americans find it outrageous that Zuckerberg and his company have no responsibility for the garbage they “share”. It’s time to change. There is no reason for giving huge internet companies, vastly wealthier than print media, advantages that print doesn’t share. But Facebook won’t accept responsibility for most of the lies it distributes.

Radio and television stations, newspapers and other publishers are legally responsible. The very famous case of New York Times v. Sullivan came to the Supreme Court because the Times published an ad taken out by leaders of the Civil Rights Movement that had some inaccuracies. Those who placed the ad in the Times and the Times itself shared liability to anyone injured. The law at the time violated the First Amendment in other ways, which the Supreme Court corrected in that and subsequent cases. But if constitutional requirements were satisfied, publishers were and are responsible.

The deeper meaning, however, is that this problem illustrates that there is no such thing as purely private action. Law always either allows, forbids, or empowers some people over others. One cannot get to the bottom of our economic or social problems without looking at the interplay between public and private decisions, no matter what free market ideologues try to tell you.

— This commentary was broadcast on WAMC Northeast Report on December 3, 2019.