Let’s say you’re a federal judge, and you need to write an opinion about a securities case. You could do it the time-tested old-fashioned way: read the briefings, read the relevant caselaw, check your quotes, make sure you’ve got the holdings right. Or you could try one of these new AI tools that everyone’s talking about. Just feed it a prompt like “write me a securities opinion with lots of citations about scienter” and see what happens.
What could go wrong?
Well, you might end up like Judge Julien Xavier Neals of the District of New Jersey, who just had to withdraw his entire opinion after a lawyer politely pointed out that it was riddled with fabricated quotes, nonexistent case citations, and completely backwards case outcomes. The kind of errors that have a very specific signature—the same signature that’s gotten lawyers sanctioned for over a year now.
Now, there are a few possible explanations here. Maybe Judge Neals was having the worst research day in judicial history and just happened to make multiple errors that perfectly mimic AI hallucinations through pure coincidence. Maybe there’s some other explanation for why a federal judge would confidently cite cases for propositions they directly contradict.
Or maybe—and this is just a thought—Judge Neals used the same AI tools that have been getting lawyers in trouble for over a year, and somehow expected a different result.
The particularly puzzling part is that courts have been sanctioning lawyers for exactly these AI hallucination mistakes since 2023. If you’re a federal judge, you’ve probably seen some of these cases come across your desk. You know what AI hallucinations look like. You know they’re a problem. So what’s the excuse here?
Let’s catalog the damage, shall we? According to the complaint letter from lawyer Andrew Lichtman, Neals’ opinion included:
Multiple quotes attributed to cases that don’t actually contain those quotes
Three cases where he got the outcomes completely backwards (motions that were granted described as denied, and vice versa)
A case supposedly from the Southern District of New York that doesn’t exist there (probably confused with a similar case from New Jersey)
Quotes attributed to defendants that they never actually made
The fake quotes are particularly telling. They sound perfectly legal-ish: “classic evidence of scienter,” “false statements in their own right,” “the importance of the product to the company’s financial success supports the inference of scienter.” These are exactly the kind of plausible-sounding but ultimately fabricated language that large language models love to generate.
Now, if you’re thinking “this sounds familiar,” you’re right. We’ve been covering lawyers getting hammered for AI-generated fake cases since 2023. Just recently, three lawyers got kicked off a case for citing five hallucinated cases. The pattern is always the same: cases that sound real, citations that kind of make sense, but turn out to be complete fiction when you actually check.
And you’re supposed to check.
The legal profession has been learning this lesson the hard way. Courts have been clear: if you use AI tools, you’d better verify everything. But apparently that memo didn’t make it to the federal bench in New Jersey.
You might recall that Judge Kevin Newsom on the Eleventh Circuit actually wrote a thoughtful opinion about how AI tools could be useful in legal practice. He went into detail on all the ways that using a tool like this only makes sense in a very narrow set of circumstances: not for drafting an opinion, but for trying to query the common understanding of a word or phrase.
It’s almost like Neals read that opinion and thought, “You know what? I bet I can do better.”
But here’s the really concerning part: this stuff doesn’t stay contained. Other lawyers in a separate case had already cited Neals’ now-withdrawn opinion as persuasive authority. Those made-up quotes and backwards case outcomes were starting to burrow their way into the legal record, creating fake precedent that could influence future cases.
Neals’ June 30 opinion has already influenced a parallel case also playing out in the US District Court for the District of New Jersey. That case also centers on allegations by shareholders that a biopharma company—in this instance, Outlook Therapeutics Inc.—lied to them about a product.
Citing Neals’ decision as a “supplemental authority,” lawyers for Outlook shareholders argued against the company’s motion for dismissing the class action.
This is the nightmare scenario that legal tech experts have been warning about. When a private lawyer cites fake cases, it gets caught pretty quickly by opposing counsel or judges. But when a federal judge publishes fake legal standards in an official opinion? Other lawyers assume it’s reliable. They cite it. Courts rely on it. The hallucinations metastasize through the system.
In that other case, lawyers for Outlook had to also alert the judge that the CoreMedix decision “contains pervasive and material inaccuracies,” which is a nice term for “judicial AI slop.” But, still, what a world in which you need lawyers to waste time telling judges that the cases opposing counsel are citing may be real cases… but are based on a ruling by a judge who appears to have used AI.
Bloomberg notes that there’s “no mention of AI in the complaints the attorneys have directed at Judge Neals.” Which, sure, maybe the judge was just having a really, really bad day and happened to make multiple errors that perfectly mimic AI hallucinations through pure coincidence.
But come on. Everyone in this story—the judge, the lawyers, the reporters—knows exactly what this looks like. They’re just too polite to say it.
Look, we get it. AI tools are tempting. They can draft reasonable-sounding legal language faster than you can type. But as we’ve seen over and over again, they’re also perfectly happy to make stuff up with complete confidence. That’s why verification isn’t optional—it’s literally the bare minimum of professional competence.
This isn’t really a story about one judge making some mistakes. It’s about the broader pattern of people in positions of authority not understanding the tools they’re using.
The technology isn’t going away. AI tools will probably become more sophisticated, and they’ll certainly become more ubiquitous. But that doesn’t change the fundamental responsibility to verify what they produce. Lawyers learned this lesson the expensive way—through sanctions, being kicked-off cases, and professional embarrassment. Apparently, some judges are going to have to learn it too.
The fact that he had to withdraw the entire opinion suggests these weren’t minor errors that could be fixed with a quick correction. According to the lawyers who complained, the opinion contained “pervasive and material inaccuracies.” That’s not a typo—that’s a fundamental breakdown in the basic duty to get the facts right.
So what happens next? Maybe Judge Neals will issue a corrected opinion—one where he actually reads the cases he cites and verifies that the quotes are real. Maybe he’ll quietly implement some verification procedures in his chambers. Or maybe he’ll just hope everyone forgets this happened.
But the broader lesson is pretty clear: if you’re going to use AI tools to help with legal work, you’d better understand their limitations. They’re great at generating plausible-sounding text. They’re terrible at accuracy. And if you’re a federal judge whose opinions carry the weight of law, that’s probably something you should have figured out before hitting “publish.”
After Donald Trump won the election, he was still so full of hatred, bile, and spite, that he sued the pollster Ann Selzer as well as the Des Moines Register. Selzer, who has been one of the most trusted names in polling, released a poll slightly before the election that predicted a somewhat shocking victory of Kamala Harris in Iowa. It (obviously) turned out to be very wrong, but making a wrong prediction does not violate the law.
What’s happened since reveals something more concerning: a systematic approach to gaming the legal system that goes beyond typical SLAPP suit tactics. Trump’s lawyers aren’t just trying to win—they’re trying to exploit procedural gaps to avoid accountability mechanisms specifically designed to stop this kind of litigation abuse.
The entire intent of the lawsuit was to chill speech and punish those who don’t tell Trump what he wants to hear at every moment.
Not surprisingly, the lawsuit is not going well. It was initially filed in a local state court in Polk County, Iowa, but the defendants had it removed to federal court, where the standards are even higher, and where Trump would have a much more difficult time. Generally speaking, defendants in cases like this want them in federal courts where the judges are more likely to understand the underlying issues (especially around gamesmanship by plaintiffs). In this case, it was removed to federal court on diversity grounds, which is typical when the plaintiff is from out of state.
Selzer and the Register sought to dismiss the complaint, while Trump sought to have the case sent back to the state court. He did so by (1) adding two more plaintiffs (random other politicians who live in Iowa so there was no longer diversity), and (2) making some weird procedural argument that the method of removal went against Congress’s intent. On May 23rd, the court denied Trump’s attempt to move the case back to state court, noting that the procedural argument was nonsense. And it found that Trump’s attempt to add Iowa plaintiffs to the case was a pretty transparent attempt to try to get around diversity rules to force the case back to the state court.
Trump appealed that ruling to the Eighth Circuit, but something important had happened earlier in May which it appears Trump’s lawyers only realized belatedly. On May 20th, Iowa’s governor signed the state’s first anti-SLAPP bill into law. Now, it doesn’t apply to cases filed before the law goes into effect (July 1st), but it does mean that if Trump were to, say, file a brand new lawsuit now, it would be subject to anti-SLAPP rules. This would (1) make it even easier for the case to be dismissed, while (2) likely make it so Trump would have to pay Selzer and the Register’s legal bills.
So, his lawyers are trying some more gamesmanship. Even though they’ve already appealed the district court’s ruling, and that appeal is moving forward, they have tried to voluntarily dismiss the district court case, while filing a brand new state court case with the same random extra Iowa politician plaintiffs… the day before the new anti-SLAPP law goes into effect.
Basically, they’re trying to get a do over. The district court said they couldn’t add those extra plaintiffs to avoid diversity, and even though they appealed that ruling, they still want to refile the case (with the added plaintiffs) in state court. But they had to do it before July 1st. But they had already appealed the district court’s denial of the request to remand the case back to state court, so this all appears to be pure gamesmanship.
In response, Selzer and the Des Moines Register are asking the district court to deny Trump’s attempted dismissal, noting that it’s obviously playing games to try to get around the earlier ruling rejecting the attempt to send the case back to state court, and even calling out how it’s doing this to avoid the new anti-SLAPP law.
The defendants note that once Trump filed his appeal, the district court no longer controls the case:
However, the case cannot be dismissed at the district court while appellate proceedings are ongoing. This is because “the district court is divested of jurisdiction over matters on appeal” upon the initiation of that appeal. State ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102, 1106 (8th Cir. 1999); Ahlberg v. Chrysler Corp., 481 F.3d 630, 638 (8th Cir. 2007) (finding that orders pertaining to matters pending on appeal have “no effect”).
And then, they describe how Trump is playing games to avoid the new anti-SLAPP law:
Lastly, President Trump’s Notice must be evaluated in the light of long-standing Eighth Circuit law holding that “[a] party may not dismiss simply to avoid an adverse decision or seek a more favorable forum.” Cahalan v. Rohan, 423 F.3d 815, 818 (8th Cir. 2005) (citing Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 950 (8th Cir. 1999))
Before this Court, President Trump has lost his motion for remand, (ECF No. 65), lost his motion to stay the case, (ECF No. 70), and has a pending deadline to file a revised Amended Complaint. (Id.) And fulsome Motions to Dismiss warranting dismissal of the case in full and with prejudice are currently pending before this Court with substantial briefing. (ECF Nos. 24, 28, 33, 35, 51, 52, 57, 61.)
Furthermore, in conjunction with his improper Notice of Voluntary Dismissal, President Trump newly filed a lawsuit in the Iowa District Court for Polk County today; however, the new Petition is substantively unchanged from the President Trump’s First Amended Complaint in the present case. (See Ex. C: Petition (June 30, 2025).) The timing of this filing is significant: it is one day before Iowa’s Uniform Public Expression Protection Act (commonly known as an “antiSLAPP law”) goes into effect. See House File 472, available athttps://www.legis.iowa.gov/legislation/BillBook?ga=91&ba=HF472(Governor’s approval of House File 472, Uniform Public Expression Protection Act on May 19, 2025), codified at Iowa Code § 652.1, et seq.; see also Iowa Code § 3.7(1) (stating that all acts “passed at regular sessions of the general assembly shall take effect on the first day of July following their passage). This new legislation would apply to President Trump’s lawsuit; therefore, President Trump’s present Notice of Voluntary Removal would effectively escape the jurisdiction of the federal courts in time to restate his claims in Iowa’s state court without being subject to Iowa’s anti-SLAPP law.
In these circumstances, this Court should rightly find that President Trump’s Notice of Voluntary Dismissal improperly seeks “to avoid [the] adverse decision[s]” of this Court—both past and future—and “a more favorable forum” in Iowa’s pre-anti-SLAPP courts. Cahalan, 423 F.3d at 818.
The timing here is almost comically transparent. Trump’s lawyers clearly realized they had a problem if they planned to file a new lawsuit once Iowa’s anti-SLAPP law was about to take effect. Their solution was to try to dismiss the federal case they’d been fighting to get back to state court, refile the exact same claims in state court, all on the last day before the new protections kicked in.
It’s a perfect illustration of how Trump approaches litigation: not as a search for justice, but as a game to be manipulated. When the rules change in ways that might hold him accountable, he doesn’t accept the new reality—he tries to find procedural workarounds to avoid them entirely.
The federal judge has already seen through one round of Trump’s transparent gamesmanship. Whether she’ll allow this latest attempt to dodge accountability will likely determine whether Ann Selzer and the Des Moines Register can finally put this vindictive lawsuit behind them, or whether they’ll be dragged through state court proceedings that should never have been allowed in the first place.
Earlier this year, we wrote about outspoken financier Bill Ackman’s threat to sue Business Insider over articles regarding accusations by the publication that Ackman’s wife, Neri Oxman, had plagiarized parts of her dissertation years ago. The timeline and context of what happened here is important because Ackman continues to ignore it.
Ackman got upset about activity by students at his alma mater, Harvard, in response to the Hamas attacks on Israel on October 7th. He then helped orchestrate a campaign to oust Harvard’s new President, Claudine Gay, because of what he viewed as her insufficient response to antisemitism on campus. While those initial efforts went nowhere, the situation gained more attention when some nonsense peddlers of the grifter class found examples of what they called plagiarism, but which many academics felt were inadvertent errors in weak paraphrasing, or inadvertent failure to properly cite sources.
For example, one of the people Gay was accused of plagiarizing came to her defense, noting that while it may have been technically improper, it was over minor bits and not the heart of what she was writing:
The plagiarism in question here did not take an idea of any significance from my work. It didn’t steal my thunder. It didn’t stop me from publishing. And the bit she used from us was not in any way a major component of what made her research important or valuable.
So how serious a violation of academic integrity was this?
From my perspective, what she did was trivial—wholly inconsequential. That’s the reason I’ve so actively tried to defend her.
This effort continued for some time, with Ackman again being a leading voice, perhaps recognizing that what he failed to accomplish by complaining about her handling of antisemitism, he could eventually accomplish through piling on and promoting the claims of plagiarism. And it worked. Soon after, Gay lost her job as President of Harvard.
Around that time, Business Insider published its first piece about Neri Oxman, Ackman’s wife, noting that her dissertation at MIT was also found to contain some plagiarized passages. The article was pretty explicit that it was not accusing Oxman of some inherent unethical behavior, but rather noting the similarities between what she had done and what Gay had done:
Like Oxman, Gay was found to have lifted passages from other academics’ work without using quotation marks while citing the authors.
Gay’s plagiarism was seen by some academics, including many of those she plagiarized, as relatively inconsequential.
George Reid Andrews, a history professor at the University of Pittsburgh and one of the people Gay plagiarized, told the New York Post that what Gay did “happens fairly often in academic writing and for me does not rise to the level of plagiarism.”
That is, the entire point of the article was to highlight the parallel situations between Gay and Oxman. It was to emphasize that inconsequential copying or inadvertent failure to properly cite something minor in an academic paper happens all the time.
The point was not that Oxman was terrible. The point was to highlight Ackman’s double standard. Indeed, Business Insider wrote an entire article comparing the accusations against both Gay and Oxman while highlighting Ackman’s noticeably different approach to each.
“Part of what makes her human is that she makes mistakes, owns them, and apologizes when appropriate,” he wrote in a post on X following Business Insider’s report on Oxman’s plagiarism.
That’s a starkly different approach from the one he took toward Gay after she stepped down as president earlier this week. At the time, Ackman said she should be fired from Harvard’s faculty entirely because of what he called “serious plagiarism issues.”
“Students are forced to withdraw for much less,” he posted on X. “Rewarding her with a highly paid faculty position sets a very bad precedent for academic integrity at Harvard.”
However, the instances of Oxman’s and Gay’s plagiarism have more similarities than differences, according to experts and an internal analysis.
At no point that I’ve seen in this ongoing ordeal has Ackman acknowledged that. Rather, he has gone on rant after rant after rant, combined with threats to sue people for their free speech (while pretending to be a free speech absolutist), pretending that the point of the Business Insider articles was to smear Oxman to punish Ackman for his support of Israel.
A few weeks ago, Ackman promised to sue and has hired Libby Locke of the firm Clare Locke to issue a massive (and massively ridiculous) threat letter to Axel Springer/Business Insider, demanding corrections and retractions of various articles. It’s a Gish gallop of a threat letter. Responding to every single bit of nonsense in the threat letter is beyond the scope of my time, and even so this article is going to be ridiculously long.
Just as an aside, no one who hires Clare Locke is a “free speech absolutist.” Clare Locke (and especially partner Libby Locke) are immensely proud of their ability to threaten media outlets to kill stories (and they’re not as effective as their media portrayal would have you believe). That’s the opposite of free speech absolutists. They are speech suppressors. Their website kinda brags about this:
Sending a 77-page “demand letter” is ridiculous and suggests that you don’t have a clear ask or a clear explanation. Ackman, over on ExTwitter, admits that the letter was written on purpose to be turned into a complaint:
It will not go unnoticed that the demand letter reads remarkably similarly to the pleadings of a lawsuit. If needed, we can convert the demand letter into a complaint and file a lawsuit, which I hope is unnecessary
The letter is long, repetitive, and silly. It does not engage with the actual purpose of the Business Insider articles, to compare Gay’s inadvertent failures to cite with Oxman’s similar mistakes in a manner that highlights how Ackman’s freakout over Gay suggests a huge double standard. Instead, it opens by arguing that Business Insider and the reporters and editors who worked on these articles are antisemitic and targeted Ackman because of his pro-Israel views.
Ackman’s criticism, particularly of Claudine Gay, the former president of his alma mater, Harvard, did not sit well with Katherine Long (an Investigative Reporter at Business Insider), John Cook (Business Insider’s Executive Editor), and Henry Blodget (Business Insider’s Founder and Chairman), who have publicly expressed anti-Zionist and purportedly antisemitic views.
It then goes on at great length (and great repetitiveness) to claim that it’s not plagiarism if it wasn’t done on purpose. Really.
As confirmed by Business Insider and the common definition of plagiarism, plagiarism requires an intent to steal or defraud. Unintentional citation mistakes and honest errors are not considered plagiarism as the word is commonly understood
Now, there are two major problems with this. First of all, as noted here (but not in anything from Ackman), if that’s the case, then it appears Gay did not plagiarize either. And, again, that was the whole point of the Business Insider articles.
But, secondly, yes, you can absolutely plagiarize without intent to do so. The letter plays a very sloppy game of “use the definition we want at different times throughout our argument.” Note that even in the quote above, Locke’s letter says “as the word is commonly understood.” But… that’s not true. As commonly understood, inadvertent plagiarism… is still plagiarism. It might not be as serious. But it’s still plagiarism.
And the most incredible bit is that the letter admits that itself. Much later in the letter, it argues that Oxman couldn’t have done anything terrible because of MIT’s guidelines on plagiarism at the time. The letter, early on, states the following:
As MIT itself plainly explains in advising students of its academic standards, plagiarism “does not include honest error.” MIT also recognizes that “unintentional” plagiarism is not considered academic misconduct. In other words, honest mistakes happen, but those simple errors do not count as academic misconduct.
But, again, the whole point was that Gay appeared to have committed similar unintentional acts of plagiarism, yet Ackman demanded her head over them.
Either way, later on in the complaint letter, they show snippets from MIT’s guidebook which… read quite differently in context. They do not at all seem to be suggesting that unintentional plagiarism is not plagiarism. Rather, they seem to be stating that unintentional plagiarism is still very much plagiarism, and that’s why one should be very careful to not even engage in unintentional plagiarism. Here’s page 12 of the letter, in which it seems pretty clear that MIT is saying “don’t plagiarize, even if it’s unintentional,” but where Oxman/Ackman/Locke seem to be pretending it’s saying “meh, as long as you didn’t mean it, you’re fine.”
Notice, clearly in there, that MIT is not saying that “accidental” and “unintentional” plagiarism is fine. Both of the clips above are trying to help students understand why accidental plagiarism is still wrong and how they need to learn how to properly do academic writing by citing sources and writing up things by yourself.
Page 13 of the letter provides even more examples of this, where they seem to think it is absolving Oxman and revealing Business Insider’s ill-intent, when it really just seems to show that Oxman/Ackman/Locke don’t understand what they’re looking at:
Those are all clearly explanations for how to avoid that kind of “botched paraphrasing” which it appears both Gay and Oxman may have engaged in.
Notably, this demand letter leaves out the line right after those two screenshotted selections above, which proves that Libby Locke is omitting important context. Here, see it for yourself:
“In any event, even if the plagiarism is unintentional, the consequences can still be very painful.”
And then it explains why it might be painful:
Plagiarism in the academic world can lead to everything from failure for the course to expulsion from the college or university.
Plagiarism in the professional world can lead, at the very least, to profound embarrassment and loss of reputation and, often, to loss of employment. Famous cases of plagiarism include the historian Stephen Ambrose (accusations about six of his books have been made, most famously about The Wild Blue) and historian Doris Kearns Goodwin (who ended up asking the publisher to destroy all unsold copies of The Fitzgeralds and the Kennedys). Such plagiarism may be accidental, but its consequences are the same as for intentional plagiarism.
The threat letter leaves out all of this context and seems to pretend that MIT is suggesting that such unintentional plagiarism is fine. When the very document they’re quoting from says the exact opposite.
And what’s funny is that throughout the 77-page letter, Locke keeps insisting that omissions by Business Insider that distort the meaning of things are clearly defamatory and/or evidence of actual malice. Yet Locke engages in identical behavior.
The next page of the letter actually drives this point home (though again, the letter’s author does not appear to recognize this) by including a screenshot of the MIT Academic Integrity handbook that explains how to avoid “inadvertent plagiarism.”
All of that undermines Oxman’s argument, but the letter seems to think it boosts it. That’s because it confuses what counts as “research misconduct” with what counts as plagiarism. Looking at the MIT documents in context suggests that they are talking about two different things: what counts as plagiarism (which could include accidental or inadvertent copying and missed citations) and what counts as misconduct for which sanctions make sense, which requires intent.
But none of that really matters for the point that the Business Insider piece was trying to make: comparing Gay’s conduct (which Ackman insisted was a horrible, fireable offense) to Oxman’s (which Ackman continues to insist was no big deal).
On the very next page of the letter, it (falsely) suggests all this proves that Oxman’s “inadvertent” failure to properly cite somehow was not problematic. Even as the very documents they screenshot say the literal opposite. It also claims that “quoting one part of an article without quoting another part which might tend to qualify or contradict the quoted part is evidence of actual malice” even though that’s the same thing this letter does in this very section.
Business Insider’s purpose in excluding references to these portions of MIT’s Academic Integrity Handbook and academic misconduct policies in its articles on Dr. Oxman is clear: Including them would have debunked the notion that Dr. Oxman had committed intentional plagiarism and academic fraud, and Business Insider wanted to create the false impression that Dr. Oxman committed intellectual theft.
Business Insider’s wholesale omission of MIT’s policies and procedures contradicting its preconceived narrative was deliberate, and it is further evidence of Business Insider’s actual malice towards Dr. Oxman and Ackman. Indeed, the law holds that “quot[ing] one part of an article without quoting another part which might tend to qualify or contradict the part quoted” is evidence of actual malice. Goldwater, 414 F.2d at 336; see also Eramo, 209 F. Supp. 3d at 872 (“[D]isregard[ing] contradictory evidence” is supportive of actual malice.); Murray, 613 F. Supp. at 1285 (“It would be unjust and nonsensical to allow the defendant to rely on the report for certain purposes and to ignore it for others.”).
Once again, it’s unlikely that anyone with half a brain reading the BI pieces would think they were accusing Oxman of anything particularly nefarious. They were simply comparing what she had done to what Gay had done and noting the similarities.
There’s so much more that’s silly about this threat letter that there’s no way to go through it all, so I’m going to skip some of it and give highlights of other parts.
There’s an entire section whining about the use of the word “marred” in one of BI’s headlines, claiming that because it was only inadvertent, it couldn’t have been “marred.” I shit you not:
Given that the only instances of alleged plagiarism Business Insider identified in this article were only four paragraphs with eight missing quotation marks and one instance in which Dr. Oxman failed to cite an author she cited extensively elsewhere in her 330-page dissertation, it is wildly inaccurate to characterize her dissertation as “marred” (i.e., ruined or spoiled) “by plagiarism.”
Except they’re using a… weird definition of marred. It’s most commonly “damaged or spoiled to a certain extent; made less perfect.” As such, even small defects (such as those described) sure would seem to count as marred. My articles are often marred by typos, but that doesn’t mean that every word is a typo. And, either way, the use of the word “marred” is, in no world, anywhere close to the standards of defamation.
Then we get to the whole “citing Wikipedia” nonsense. Ackman had argued on ExTwitter back when this first came about that at the time of Oxman’s dissertation Wikipedia was still new and there weren’t general agreements on citing it, but that’s… nonsense. On multiple levels. First off, it wasn’t that new. Wikipedia was widely known and widely used at that point. Second, even if there wasn’t agreement on how to cite Wikipedia, that did not change the simple fact that it was still very much widely considered plagiarism to copy directly from it without citation/quotation. The lack of understanding of how to cite Wikipedia is a separate issue from the question of copying without attribution.
I had thought that once a lawyer got their hands on this fight, this argument would die a sudden death, but apparently the law firm of Clare Locke has no problem pushing totally specious arguments, because that makes it in here too:
Business Insider, however, intentionally omitted that MIT’s Academic Integrity Handbook at the time Dr. Oxman wrote her dissertation in 2009 and 2010 did not address—much less require— citation to Wikipedia, which itself is a collaborative resource with no single author to whom ideas could be attributed, and which at the time of her dissertation was of relatively nascent origin. In fact, Wikipedia was so inchoate that MIT had not yet developed or published any guidance on how researchers should use Wikipedia. Only later—several years after Dr. Oxman’s dissertation was published—did MIT revise its Academic Integrity Handbook to include a prohibition on citing Wikipedia for academic work. In 2009 and 2010, when Dr. Oxman wrote her dissertation, no such prohibition existed.
Note the shift here between citing and copying without attribution. Those are two separate things that this letter seeks to conflate. Even if MIT hadn’t published policies on how to cite Wikipedia, it has zero impact on whether or not copying directly from Wikipedia might be considered plagiarism. It still was. And it’s ridiculous to suggest that people didn’t think that to be the case in 2010.
There’s a whole section complaining that BI could not possibly call out Oxman for plagiarism unless it did an “inquiry or investigation into Dr. Oxman’s mental state to support such a finding.” To which I will just say… did Bill Ackman conduct such an “inquiry or investigation into Dr. Gay’s mental state” to support the many statements he made about her alleged plagiarism?
Or do we just admit that the billionaire gets to live by different standards than he seeks to impose on others?
After BI published its initial article, Oxman posted some tweets admitting that she had failed to properly put quote marks in certain sections:
Any reasonable read of this is that Oxman is admitting to not quoting things she should have quoted, which… is plagiarism, even by the definitions that were quoted earlier in the threat letter. Thus, BI published a new article saying that she admitted to plagiarism. The threat letter is apoplectic in insisting that she didn’t admit to plagiarism, and only to omitting quotation marks, which is fucking crazy.
Shortly after the first article was published at 2:28 PM on January 4, Dr. Oxman acknowledged in a post on X that, in “four paragraphs” of her 330-page dissertation, she did not “place the subject language in quotation marks, which would be the proper approach for crediting work,” and in one sentence she paraphrased an author but inadvertently did not cite him. She apologized for these errors. She did not, however, admit to plagiarism, intentional or otherwise. Three hours and 30 minutes later, Business Insider published a follow up article falsely claiming in its inflammatory headline that “Neri Oxman admits to plagiarizing in her doctoral dissertation after BI report.”91
Business Insider knew that when it published this article that its statement was false— Dr. Oxman had not admitted to plagiarism. Business Insider read and included a link to Dr. Oxman’s post in the article, but it purposefully mischaracterized Dr. Oxman’s post in the headline creating the false impression that Dr. Oxman had admitted to intellectual theft.
I’m still amazed at the chutzpah here. I’ve read Oxman’s tweet multiple times, and it’s pretty clear that she is admitting to plagiarism, though saying it was inadvertent. But, again, (1) inadvertent plagiarism is still considered plagiarism (including by MIT) and (2) it’s the same sort of thing that Dr. Gay was accused of, which was the whole point of BI’s efforts.
There’s another whole section on all of the Jeffrey Epstein stuff which I won’t get into (Oxman had a very, very distant connection to Epstein via the MIT Media Lab where she worked, and which Epstein infamously had donated money to, though apparently unrelated to her work). But the letter (which I’ll note claims to be on behalf of Oxman and not Ackman) whines quite a bit about BI stating that Ackman had sought to “pressure” then Media Lab director Joi Ito not to name Oxman in response to a media inquiry. It also whines about BI’s claiming that the Boston Globe had “uncovered” emails between Ackman and Ito, when (according to this letter) Ackman had sent them willingly to the Boston Globe.
But, the emails he forwarded sure do look like “pressuring” Ito. I guess it depends on your definition of “pressure” but the entire point of the email was asking Joi not to name Oxman and giving a bunch of reasons why he shouldn’t. That sure sounds like it meets one of the common definitions of pressure: “the act of trying to persuade or force someone to do something.” The threat letter, instead, seems to think “pressure” must involve threats of some kind, which… is not what the word means. And, remember, the threat letter itself talks about the use of “common definitions” (quoted above).
The letter says that Business Insider “falsely” claimed that Oxman and Ackman (who again, the letter does not purport to represent) “did not dispute the facts” in the BI articles, and then points out that this is false, because… of Ackman’s silly rant about citing Wikipedia:
In just one example, at 9:57 PM on January 5, just a few hours after Business Insider published its article falsely accusing Dr. Oxman of plagiarizing from Wikipedia and other sources, Ackman posted on X disputing that using Wikipedia for definitions is plagiarism. He asked rhetorically, “How can one defend oneself against an accusation of plagiarizing Wikipedia … Isn’t the whole point of Wikipedia that it is a dynamic source of info that changes minute by minute based on edits and contributions from around the globe? Has anyone (other than my wife) ever been accused of plagiarism based on using Wikipedia for a definition?” 110 Among other challenges to Business Insider’s reporting, Ackman directly disputed the notion that Dr. Oxman’s inclusion of definitions from Wikipedia in her dissertation was plagiarism.
But… that’s not disputing the facts. That’s disputing the interpretation of the facts (it’s also silly).
Much of that section is just a hilarious list of Bill Ackman not refuting any of the facts to the actual reporters or editors of the piece, but reaching out to various super rich executives somewhat associated with Business Insider, who assured him they were looking into things. That is not the same thing as “disputing the facts” to the actual journalists. That’s whining to the rich in hopes they’ll smack down the poor reporters who dared to make you look silly.
There are five (five!) pages that are just screenshots of Ackman’s (again, not officially represented in the letter) WhatsApp messages to Axel Springer boss Mathias Dopfner “disputing” the stories, but basically none of what is disputed is actual provably false statements of fact. They pretty much all appear to be differences of opinion on how things were portrayed in the BI stories. That’s not defamation. And it’s not even disputing the underlying facts — which is all BI claimed.
Hilariously, the only response from Dopfner to Ackman is a short email, which does not agree to anything that Ackman claimed. It just says “Thanks for your e-mails. Very helpful input to clarify things during the investigation” and then notes that because Ackman had announced plans to sue BI, his general counsel had (correctly) told him not to communicate with Ackman anymore:
Then we get to “actual malice.” On its website, Clare Locke declares itself “the leading defamation law firm in the United States.” I guarantee you that Libby Locke knows what “actual malice” means in the context of a defamation lawsuit. And it is not “they didn’t like the plaintiff” or “they were biased against the plaintiff.” Yet, Libby Locke seems to not care what the legal definition of actual malice is in their laughably wrong section on actual malice.
Business Insider never had any interest in journalistic integrity or the truth when reporting on Dr. Oxman. From the outset, its reporting was tainted by its progressive political bias and the desire of its anti-Zionist reporters and editors to smear a prominent, Jewish advocate and his family for speaking up against former Harvard President Gay. The Business Insider employees primarily responsible for this attack have a history of unethical conduct and have publicly expressed their anti Zionist and/or purported antisemitic views.
Beyond being fucking ridiculous, it’s also got nothing to do with actual malice. Actual malice means that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false.” Also, “reckless disregard” doesn’t mean that you were just sloppy or lazy. It means that the speaker had serious doubts about the truth of the statements but published them anyway. The Supreme Court has been quite clear that it doesn’t mean biased reporting. And it doesn’t even mean mere negligence in reporting.
For there to be actual malice, BI’s reporters would have to fundamentally know (or have very strong beliefs) that what they were publishing was false, and then publish it anyway. But, they’ve (rightly) stood by their reporting. And Ackman, repeatedly, is only complaining about their interpretation of the facts, not the underlying facts themselves.
The letter then goes on to trash the reputation of Henry Blodget, BI’s founder, who had talked to Ackman early on when Ackman was first freaking out about the stories (hilariously, Blodget suggested Ackman could write for BI at one point, and in return he gets trashed). Blodget is, of course, easy to trash. He somewhat infamously settled with the SEC for publicly pumping up dot-com era stocks, while privately trashing those stocks. Some of us still remember all that.
The letter also tries (pathetically) to trash the reputations of the reporters and editors who worked on the BI stories, including digging editor John Cook’s self-admitted story about how as a teenager in the 1980s he was suspended from high school for publishing an obnoxious underground newspaper (I too published an underground newspaper in high school, and it was also obnoxious, but also I didn’t get suspended, in part because I wrote the back page of the first issue that was an entire article about how the First Amendment works, citing numerous Supreme Court cases on why the school couldn’t take action against those of us who wrote the paper… which was, perhaps, a preview of what my life was to become).
But what does that have to do with actual malice? Fuck all! It’s just Ackman burning bridges for show — and potentially as a threat to try to convince others not to report on his wife, or he’ll trash your reputation too (come at me, Bill).
The letter then moves on to misleadingly claim that Business Insider was trying to get Oxman fired. Again, this misunderstands what seemed pretty obviously to be the point of the articles: to compare Ackman’s response to the accusations around Gay as compared to his wife. The letter makes a big deal of Insider’s reporter, Katherine Long, asking in her initial email to Ackman if he expects Oxman to lose her job (Long, at the time, mistakenly believed that Oxman was still at MIT, when she had left a few years earlier):
In context, it’s obvious why Long asked this question. Since Ackman had pushed so strongly for Gay to lose her job at Harvard, it’s a kind of obvious question for a reporter to ask about Ackman’s wife (who they thought was still at MIT) given the whole point of the exercise was to showcase Ackman’s selective outrage and differential treatment of Gay compared to his wife.
But the letter treats this as an attempt to make Oxman lose her job and seems outraged. Which is fucking hilarious given Ackman’s tirades trying to get Gay fired from her job.
Business Insider’s Coverage Of Dr. Oxman Was Motivated by Its Desire To Get Dr. Oxman Fired by MIT.
Almost no one could possibly think this is what Long was trying to do. It seems blatantly obvious that she was simply seeing if Ackman felt his wife should face the same treatment that he helped engineer for Gay.
There’s also some just incredible hubris in the letter, in that it reveals Ackman petulantly demanding in text messages to Blodget that the articles be taken down while the promised investigation on the reporting occurred (which would be an extraordinary step that would have brought Streisand Effect levels of extra attention to the claims) and Ackman seems to think that BI’s refusal to accede to his demands when Blodget promised he was “working” on the issue is somehow more proof of malice (when the more sensible, and likely accurate, reason is that BI investigated, found that the story still held, and there was no reason to take it down).
There are also about eight whole pages of the letter going on (at ridiculous length) about what an amazing, brilliant, and famous person Neri Oxman is, which is hilarious since when all this started and people pointed out to Ackman that defamation against public figures involves a high bar (that high bar being the real actual malice, not the pretend one in this letter) Ackman tried to argue she wasn’t a public figure:
So, according to Bill Ackman, she’s not a celebrity academic or a public figure, but the threat letter on her behalf has eight pages lauding all of her accomplishments, awards, public exhibitions including at top museums around the world, the description in the NY Times of how she’s “a Modern-day da Vinci” and more. So, I guess they’re not even going to try to argue that she’s not a public figure.
There’s also a ridiculous number of words describing the alleged “harm” all of this has had, failing to recognize that if Ackman hadn’t made such a big deal of all of this, the story likely would have died out after a day or two as people got a good laugh at Ackman’s hypocrisy and moved on. Instead, his continued talking about it, and now sending this letter have only guaranteed that many more people are aware of all of this. If there’s any harm (and that seems unlikely) much of it should be pinned on Ackman’s inability to let this go.
On the final page of this opus, we get the “demands.”
Axel Springer and Business Insider must mitigate the damage they have caused by correcting their libelous reporting, issuing statements setting the record straight, making a sincere and meaningful public apology to Dr. Oxman and Ackman, and creating a fund to compensate other victims of Business Insider’s libelous reporting and to discourage their inappropriate conduct in the future. (Dr. Oxman is seeking no compensation for herself to make available additional resources for other victims.) Failure to take these steps will expose Axel Springer and Business Insider to substantial legal liability and will be further evidence of actual malice directed toward my client.
This is nonsense. I’m quite sure BI’s general counsel is not worried about this. Nothing in the letter indicates anything close to the level that would be defamation. The only real question — and the likely real intent of the letter — is whether or not all the rich folks that Ackman called up and texted during this whole mess, including Dopfner, Henry Kravis, and Axel Spring board member Martin Varsavsky, decide to just go along with this to hush up the mouthy rich guy so they won’t have to deal with more of this nonsense.
At this point, it’s pretty clear that Oxman (and Ackman) have no actual defamation case here. They have a lot of noise and bluster. And sometimes that’s enough to get a publication to back down (which Clare Locke seems to want you to believe they can produce in every case). But it would be a fucking shame and an embarrassment if Axel Springer/BI caved here, and would put all of its future reporting in question by showing that they could be bullied by specious, vexatious legal threats.
In Ackman’s tweet revealing this letter, he claims that he hasn’t sued first because “people we highly respect” had told him that Axel Springer was “perhaps the strongest long-term supporter of the state of Israel of any media organization, and also an important advocate against antisemitism.” What that has to do with anything in the letter, I do not know.
In the end, this is just more censorial bullshit. It’s hilarious that Ackman presents himself as a “free speech absolutist” when he’s doing this shit to seek to pressure (as it’s commonly defined!) BI into removing these stories. It misses the entirety of the point of these articles and pretends they’re about attacking Oxman, when it’s obvious to anyone outside of Ackman’s immediate sphere that the intent was to highlight the very, very different treatment Ackman gives to the accusations against Gay and Oxman.
Indeed, this very letter demonstrates that point to a much greater level. All this letter does is call that much more attention to Ackman’s disgusting double standard. When it’s someone he doesn’t like for other reasons, he’s willing to play up the plagiarism claims and push for them to lose their job. When it’s his wife, he tries to burn down an entire media outlet.
All this letter shows is that Bill Ackman is a censorial hypocrite.
Last week, KGW8 had an incredible story about how a couple in Vancouver, Washington were sued after leaving a 1-star review for Executive Roof Services (ERS). The defendants in the lawsuit, Autumn Knepper and Adam Marsh, were (reasonably!) annoyed about the treatment they received from the firm after their landlord had asked ERS to check out the roof to the house, after the couple found it leaking. The experience they had with ERS was not great:
Knepper said she called the office and talked with the receptionist, who she said was rude from the time she answered the phone.
?She refused to give me any information. She said I would have to get it from the landlord. I asked to speak with the manager and she laughed at me. She told me I was verbally abusing her and that she was the office manager. She hung up on me,? said Knepper.
Marsh said he called ERS and had a similar bad experience with the woman who answered the phone.
?She was just super rude, told me that she was office manager and there was no one else I could talk to and hung up on me,? said Marsh.
So they each wrote a 1-star review on Google explaining what happened. Apparently, the owner of ERS, Michael Mecham, didn’t take kindly to all of this. Again, according to KGW8:
?He told me that he knew where I lived. He said he had forensics guy and that he would gladly spend a hundred thousand dollars suing me,? said Knepper.
Knepper said the owner texted her and said the review needed to be taken down before ?more damages are done.?
Knepper said she called the police, which led to an officer asking Mecham to no longer contact the couple.
?We thought that was the end of it,? said Knepper.
But, instead, they were sued for defamation (the lawsuit was filed in Clark County, and it appears that the documents for the lawsuit are not readily available online or we’d include them here). The lawyer for ERS, David Bowser… um… doesn’t seem to know what he’s talking about. He first told a reporter from KGW that it wasn’t about the review… and then seemed to immediately admit it was about the review:
Bowser said the couple did not hire ERS, the landlord did. Because of that he said they weren?t entitled to the information they requested — a project report and timeline — because they were not customers or clients of ERS. This is part of our exchange when we asked Bowser about the suit:
Cristin Severance, KGW: “Whether they’re paying customers or not, shouldn’t they be entitled to write about their experience? They said the receptionist was rude.”
David Bowser, attorney: “It depends why they did that. If they were doing it merely to express their opinion, that’s what other customers have done in the past. I don’t have an issue with that. ERS doesn’t have an issue with that. But when you cross the line and you use this forum to cause intentional harm to a family-owned business and hurt them and their employees and their business, you’ve crossed the line.”
Severance: “How did they intentionally harm ERS by writing about a rude receptionist?”
Bowser: “They intentionally harmed ERS by posting one-star reviews for the purpose of getting a report they weren’t entitled to.”
That’s… not how any of this works. At all. They have every right to write a review about their experience. Bowser seems particularly clueless about SLAPP suits. Washington just passed a new anti-SLAPP law, though technically it didn’t go into effect until this weekend. But Bowser should maybe learn what that means:
Bowser argues this is not a SLAPP filing.
Bowser: ?That is not what a SLAPP lawsuit is, a SLAPP is a motion. This is a lawsuit. The lawsuit asserts claims for defamation and for intentional interference with business expectancies,? said Bowser.
Wut? The “L” in SLAPP stands for lawsuit, guy. And this is a classic SLAPP. It’s a lawsuit over obviously protected speech, and was clearly filed to try to silence Knepper and Marsh. When the reporter asked Bowser how is this not trying to silence someone, Bowser responded that this was “not something that they legitimately had a basis to give an opinion on.” And, again, this is not how anything works. You get to give your opinion on anything you want. I get to give my opinion on this lawsuit — which is one of the SLAPPiest SLAPP suits I’ve seen in a long time. You don’t get to unilaterally declare that they can’t give their opinion.
But, of course, even more incredible is that, here, the lawyer for ERS has now admitted that it was their opinion. And, I mean, you don’t need to be even a terrible lawyer to know that opinions are not defamatory.
Either way, it’s not difficult to see what happened next. KGW8 is reporting that the owner of ERS says he had to take down his website after receiving a ton of 1-star reviews. Not that anyone should condone leaving made up 1-star reviews, but how the hell did neither he nor his foolish lawyer realize how this was going to end up?
Buckle up, because this one is going to be quite the long road trip, and I hope you won’t rush to the comments without joining me on the entire journey first. But if you want a sense of where we’re heading, here’s the route map: the New York Times published an insane warmongering Senator’s push to turn our own soldiers on protesting Americans, people (including many Times journalists) complained, the Times tried to defend the decision, and then admitted “mistakes were made,” and a bunch of very silly people who pretend to be “serious thinkers” whined nonsensically about free speech and the “unwillingness to listen to opposing ideas,” all while refusing to listen to opposing ideas. And all of it’s nonsense: because editorial discretion is not a free speech issue and calling out a terrible paean to fascism is not an unwillingness to listen to “opposing ideas.”
Off we go.
If you’ve been paying attention to the world of media in the past few days, you’ve probably already seen some of the loud and raucous debate. On Wednesday, the Times made the incredibly bad decision to publish the truly awful op-ed from Arkansas Senator Tom Cotton, suggesting that President Trump should send the US military to invade US cities, because, while the vast majority of protests around the nation have been peaceful (other than all those disrupted by police violence), there have been a few cases of some people breaking windows, setting fires, and stealing goods. There seems to be little evidence that this is as widespread a problem as the President and his supporters make it out to be, but in an effort to control the narrative, they’re claiming that there’s widespread violence and attacks overshadowing protests.
Cotton’s op-ed is bad. Just to take one bit of it, this paragraph is utter hogwash:
One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers. But local law enforcement in some cities desperately needs backup, while delusional politicians in other cities refuse to do what?s necessary to uphold the rule of law.
This is a “the beatings will continue until morale improves” approach. It doesn’t work. It’s never worked. It will only make things much, much worse, and put many more lives in danger. It is based on a combination of false statements (regarding the extent of “riots”), a misunderstanding of why people are expressing their anger in this way, and huge confusion about how people are likely to react to even scarier militarized soldiers and weaponry arriving on city streets. The people are protesting the very concept that they are an enemy, and sending in our own military is not only scary and authoritarian, it simply reinforces the message that they are protesting against.
An overwhelming show of force is the problem. Doubling down on that doubles the problem.
Leaving that aside for the moment, what’s been much more fascinating is the response to the publication. Many people pointed out that it was simply ridiculous for the New York Times to run this op-ed. After many people on Twitter raised questions about why the Times would publish such dreck on its opinion pages, a bunch of Times journalists themselves decided to speak up and call out their bosses for allowing the op-ed to run. Many pointed out that the op-ed itself put Times staffers in danger.
It’s worth noting that the Times is one of the newspapers that has a set of very stupid social media policies that forbid journalists and staff from making any comment “that undercuts The Times’ journalistic reputation.” That means speaking out in this manner may actually threaten their jobs as well. As the complaints grew louder, James Bennet, who runs the frequently awful opinion section of the paper, first defended the decision to publish the op-ed on Twitter with a painfully weak and predictable argument along the lines of “we want to show both sides of the debate.” He then posted a somewhat better and more thoughtful explanation in the Times itself (seriously, I’d recommend reading that over his terrible Twitter thread). He’s still wrong, but his argument is much better articulated.
Of course, later in the day after an apparently vocal discussion inside the newspaper (more on that in a moment), the Times admitted that the Cotton op-ed did not meet its editorial standards, and should have received a more thorough review. Incredibly, that piece says James Bennet claims he never read the op-ed before it was published:
James Bennet, the editor in charge of the opinion section, said in a meeting with staff members late in the day that he had not read the essay before it was published. Shortly afterward, The Times issued a statement saying the essay fell short of the newspaper?s standards.
?We?ve examined the piece and the process leading up to its publication,? Eileen Murphy, a Times spokeswoman, said in a statement. ?This review made clear that a rushed editorial process led to the publication of an Op-Ed that did not meet our standards. As a result, we?re planning to examine both short-term and long-term changes, to include expanding our fact-checking operation and reducing the number of Op-Eds we publish.?
This is insane on so many levels. I find it unbelievable (in the most literal sense) that no one within the editorial process thought to flag a piece as obviously as incendiary as this one for the top opinion editor to review. It suggests either that Bennet is really, really bad at his job, or the entire NY Times opinion section is a complete joke. Or both. There’s enough evidence to suggest both of those may be the case. Meanwhile, a new report notes that the Cotton op-ed went through three rounds of revisions, which is quite odd for an op-ed piece, and makes the NY Times look so much worse. It means they really spent time thinking about it and still felt it was worth running, and yet Bennet never even bothered to read it? How is that possible.
In the midst of all this, there were a bunch of tweets and accusations thrown around about the internal debate at the NY Times, with one of its many terrible opinion writers, Bari Weiss, writing a huge thread pushing a narrative that there was a “civil war” between the young “woke” journalists and the older traditional “liberal” journalists. The only problem with this is that almost everyone else who was actually involved in the discussion pointed out that Weiss was completely full of shit.
Bari Weiss wrote a thread about conflict in the NY Times.
Other NY staff are pulling it apart.
Whats the lesson?
It's easier to do stories based on simplistic free speech stereotypes when there are not a bunch of reporters in the room to immediately fact-check you pic.twitter.com/zLIlXt2QMR
Click through, because that thread goes on and on and on with examples of Times journalists saying that Weiss’ statements appear to be more gaslighting than reality.
But then, of course, you had other “serious people” complaining about the complainers. You had long-time mainstream media “political analyst” Jeff Greenfield pushing a truly ridiculous strawman that complaining about one particular op-ed means you don’t think the Times should have an op-ed page at all.
If that’s the case, I’ll refer to the title of this post. The Times must publish my op-ed on why James Bennet is an incompetent dweeb, or it proves that it’s afraid to take on the difficult-to-hear opinions of the day. Prove me wrong, Jeff Greenfield. Prove me wrong.
And there was ever sanctimonious Andrew Sullivan, who called Times reporters speaking up about their own fears for their own safety “an attempted coup.”
If you’re playing along at home, apparently the rules are that if you’re a white, war-mongering Senator with opinions about turning the US military on our own citizens, everyone must listen because that’s free speech. But if you’re a black reporter who is afraid for the risks you now face, and speaks up about it, that’s an “attempted coup.”
I sense a double standard.
There was also a truly disingenuous focus on the idea that this represented “safetyism” as a way to silence opposition. This was brought up by both Weiss and Randy Barnett, claiming that by playing the “victim” you are somehow “silencing opposition.”
Of course, I have trouble seeing how they’re doing anything differently than the people they’re complaining about. Those complaining about the op-ed are stating their opinions and suggesting that it was silly of the NY Times to publish a garbage op-ed, which might lead to more death and destruction. Barnett and Weiss are now complaining that it was silly of those complaining to publish those complaints. Would it be okay if I accused both of them of resorting to “safetyism” and trying to hide from the opposing viewpoint that “promoting outright fascism is bad”? Or does this only work in one direction?
Unfortunately, this framing is picking up in certain circles, including among people I respect. The folks at Reason, who I tend to agree with much more frequently than not, ran a silly “mock the woke snowflakes” piece, arguing that this is the end result of political correctness run amok.
The woke left’s march through the institutions, from experimental liberal arts campuses to the most hallowed journalistic outlets, has been breathtaking in its speed and scope. It’s a generational war, and the GenXers for whom this stuff doesn’t come natural are learning that they have to become fluent in the new language or end up as pariahs in their own newsrooms. The country’s top editors?Jeffrey Goldberg at The Atlantic, David Remnick at The New Yorker?discover during moments of staff revolt that their old-timey notions about broad public squares and multi-viewpoint conversations are no longer tolerable.
And, of course, Senator Cotton is loving every moment of this nonsense, and gleefully playing up the controversy and using it to attack the Times (which, who knows, may have been his goal all along, or perhaps was just a bonus):
But there’s a huge problem with this nonsense. It has nothing to do with “woke mobs,” “political correctness,” “safetyism,” or an “unwillingness to listen to opposing viewpoints.” Speaking up about your concerns is not “an attempted coup” and opposing the decision to publish a stupidly bad op-ed is not an unwillingness to have op-eds.
This is all free speech, and no one has even remotely attempted to stop anyone’s right to speak their mind. They’ve just been highlighting the difference between discretion and censorship that we’ve been talking about here lately. The New York Times is the New York Times because it has a reputation (for some, good, and for others, bad). But part of that reputation is its editorial discretion. Declining to publish a bad op-ed is not about ignoring “the opposition” or wanting to play the victim and squelch “non-woke” speech, nor is criticizing the Times for its decision to publish it.
It’s calling out bad editorial discretion. Every choice the Times Opinion section makes involves editorial discretion. Not agreeing to publish my op-ed on James Bennet being an incompetent dweeb is editorial discretion. Continuing to publish whatever utter bedbug nonsense its columnists come up with is editorial discretion. People can and should criticize bad editorial discretion, because that encourages better editorial discretion.
But it is simply ridiculous to say that complaining about a single editorial decision suggests an unwillingness to engage, or an unwillingness to hear ideas someone disagrees with. As far as I can tell, no one in this debate has suggested that Tom Cotton not be allowed to speak his militaristic, ahistorical nonsense. He can say what he wants. The question is whether or not it’s appropriate for the New York Times to publish it at all.
This whole silliness hits home deeply for me for a variety of reasons, not the least of which is that just last week we launched a new project, the BestNetTech Greenhouse, in which we will be hosting many opinions I disagree with strongly (oh, and for what it’s worth, unlike James Bennet, I do read every piece before it goes out). And, over the past two years, as we worked on this effort, I’ve had to explain to many people that part of the idea was to publish smart, thoughtful, nuanced commentary that will involve fundamental differences of opinion and disagreement — but without the crazy takes.
And I’ll admit that there are times in this process that I questioned myself closely: when I say “no crazy takes,” does that mean that I am silencing a certain point of view? Or is it simply a recognition that there are intellectually honest ways to disagree, and intellectually dishonest ways, and I have no desire to be a part of the latter? That, too, is part of editorial discretion.
It is entirely possible to believe in free speech, to believe in hearing all kinds of viewpoints, including those we disagree with and that make us feel uncomfortable, without saying “yes, this publication should post fundamentally terrible, intellectually dishonest support for a truly crazy idea.” That’s not running from things that make people uncomfortable. It’s having the understanding of what’s being discussed in good faith, and what’s dangerous populist nonsense, designed to stir up emotions through dishonest means, rather than a debate of ideas.
So, of course, the Times should not publish my op-ed about how James Bennet is an incompetent dweeb (even though it’s quite good). That’s well within its editorial discretion and (mostly) an editorial position I’d agree with. That does not mean that anyone is uncomfortable with my ideas, or trying to silence me. It’s just that they understand that my (mythical, theoretical) piece is an attempt at absurdist, emotional nonsense — just like Senator Cotton’s piece — and deserves no space in a serious publication.
Just as the country starts dealing with what the hell it’s going to be doing about Covid19, the President and his campaign have decided that now is the time to file laughable SLAPP suits against every one of the media entities on his usual thin-skinned enemies list. First it was the NY Times, then it was the Washington Post, and on Friday, it was the third in his triumvirate of media he loves to hate: CNN. As with the first two, this is yet another Charles Harder joint, and, as with the first two, this is suing over an opinion piece. Also, as with the first two, this is a laughably vexatious lawsuit, in which he is assaulting the very 1st Amendment he has sworn an oath to protect and defend.
You can read the CNN opinion piece that the campaign is suing about. It’s by Larry Noble, the former general counsel for the Federal Election Commission, and is similar in many ways to the pieces he sued about in the Washington Post, arguing that an interpretation of the Mueller report in a manner displeasing to the President is somehow defamatory. That’s ridiculous and everyone involved in this lawsuit should be embarrassed.
On or about June 13,2019, CNN published an article on the www.CNN.com
website entitled “Soliciting dirt on your opponents from a foreign government is a
crime. Mueller should have charged Trump campaign officials with it” by Larry
Noble (the “Defamatory Article”). The Defamatory Article claims, among other
things, that the Campaign “assessed the potential risks and benefits of again
seeking Russia’s help in 2020 and has decided to leave that option on the table.”
The Defamatory Article does not cite to any facts or reasoning in support of this
claim.
The Defamatory Article is false. In fact, the Campaign has repeatedly and
openly disclaimed any intention to seek Russian involvement in the 2020 election.
The examples of this are too numerous to fully enumerate, but examples include:
(a) then-Press Secretary Sarah Sanders stated on August 2,2078 that “[s]ince the
beginning of his administration, President Trump has implemented a whole-of-government
approach to safeguard our nation’s elections. The President has made
it clear that his administration will not tolerate foreign interference in our elections
from any nation-state or other dangerous actor”; (b) on September 12, 2018, while
signing an executive order imposing sanctions on foreign countries who interfere
in United States elections, the White House issued a statement that “the United
States will not tolerate any form of foreign meddling in our elections”; and (c) on
May 13, 2019, the White House stated it would not use any information hacked or
stolen by foreign adversaries in the 2020 election.
Contrary to this summary in the complaint, if you read the actual article by Noble, he clearly cites the basis for his arguments, and clearly lays out the facts on which he bases his opinion. Indeed, he cites some very specific details and the specific law he is talking about. Here’s just a snippet, but it goes much further in details in the article.
During the meeting, held in Trump Tower, Trump Jr., Kushner and Manafort were told that two brothers who “had engaged in tax evasion and money laundering” had donated to the Democratic National Committee or the Clinton campaign. According to the report, “Trump Jr. asked follow-up questions about how the alleged payments could be tied specifically to the Clinton Campaign,” but was told that the Russians “could not trace the money once it entered the United States.” Apparently, not impressed with the information, Kushner “became aggravated and asked, “(W)hat are we doing here?'”
The Federal Election Campaign Act (FECA), 52 U.S.C. §30121(a)(1), prohibits foreign nationals from “directly or indirectly” contributing “money or other thing of value” in connection with any US election. Another part of the law prohibits a person from “knowingly soliciting, accepting or receiving contributions or donations from foreign nationals.” If a person acts knowingly and willfully, meaning with general knowledge that their actions were unlawful, and the value of the contribution is $2,000 or more, it is a criminal violation. If the value is $25,000 or more, it is a felony.
When Trump Jr. replied he loved it to the offer of free Russian opposition research intended to help his father win the election, and then attended a meeting that included Kushner and Manafort to receive that information, he solicited an illegal contribution from a foreign government.
This is not some random tossed off argument — nor does it come anywhere even remotely close to meeting the necessary bar for defamation.
Once again, the intent is likely performative — rallying Trump’s base against the media as we head into election season — rather than with any legitimate basis in law.
This case has been filed in federal court in Georgia, home of CNN. Some may note that Georgia actually has a semi-decent anti-SLAPP law, but unfortunately (and, I believe, incorrectly as a matter of law), the 11th Circuit is one of those that has said that state anti-SLAPP laws do not apply in federal court (in fact, it did so in a case involving CNN — Carbone v. CNN, if you’re keeping track). That means, CNN won’t be able to make use of the anti-SLAPP law to get the case kicked out quickly, and to have the Trump campaign pay attorneys’ fees.
As with the other two cases, this one is being brought on behalf of the campaign, rather than Donald Trump himself as a party. Whether or not this limits Trump’s own liability — or his exposure to potential discovery requests — will be an interesting element to watch as these (and any other) cases move forward.
Either way, between these Harder/Trump campaign suits and the various Steven Biss/Devin Nunes suits, it appears that the Republican party is quickly positioning itself as the party of chilling effects and silencing a free press. This is shameful behavior and should be called out as such.
Buckle up folks, because this story takes a few twists and turns, and some of them may make you angry — though I hope people will hold back their kneejerk reactions, because that kind of thing is what created this mess in the first place.
As you probably recall, a year ago, there was a whole viral media shitstorm regarding an encounter in Washington DC between some kids from Covington Catholic High School in Kentucky, Native American activist Nathan Phillips, and a bunch of other people, including members of a group known as the Black Israelites, who appeared to be egging everyone on. A first video that made the viral rounds on Twitter just showed the encounter between CCH student Nick Sandmann, clad in a red MAGA hat, and staring down Phillips who was banging a drum. Later videos added in more context, including the Black Israelites and their role in the whole thing. One of the points a few people raised is that your interpretation of the whole thing is very much a Rorschach test for what you already believe. You can reasonably argue that people completely misrepresented the encounter and you can reasonably argue that they did not.
It is a subjective issue. You see it through your own context and experiences, and it comes down to each and everyone’s opinion. I’d personally argue that there was a little bit of truth in nearly all of the viewpoints, and not having the entire context is not akin to false statements, but rather simply not having the full picture. As more context was added, many people changed their views, and that’s cool too.
But given that these are subjective opinions, the idea that one might sue over them is simply batshit insane. And yet, people rushed to sue. In particular, we highlighted how the CCH student at the center of all of this sued the Washington Post, and later both NBC and CNN, for their coverage. Sandmann was represented by L. Lin Wood and Todd McMurtry. (For what it’s worth, Wood recently lost that high profile defamation case against Elon Musk on behalf of cave diver Vern Unsworth). We found little in the lawsuits to be compelling, and were not at all surprised when a judge tossed out the one against the Washington Post, noting that everything they published was protected by the 1st Amendment. However, that case has been reinstated on fairly narrow grounds, following an amended complaint that targets some very specific language used by the Post. I’d still be surprised if he won, but the more narrow claims do at least have slightly more validity to them, especially if the court agrees that Sandmann is not a public figure (which would lower the bar for a defamation claim).
Earlier this week, news broke that CNN and Sandmann had agreed to settle that complaint — and once again we had a bit of a Rorschach test. The terms of the settlement appear to be totally confidential, which is disappointing, but not at all uncommon. It is, in fact, possible that no money exchanged hands at all. However, many people who support Sandmann are insisting that this is vindication for him, even if that’s not at all clear. Some are even saying that CNN must have paid “in the millions.” Again, no information on the settlement is public, and to say that this was vindication or to speculate on any settlement amount seems ridiculous — especially given that the entire thrust of the lawsuit was about news media commenting on issues without knowing the full details or context of the story.
But the story then got even stranger. Because on Wednesday, PJ Media had a headline trumpeting that author Reza Aslan would “face the music” for tweeting that Sandmann had “a punchable face.” Already that should have raised alarm bells, because there is literally nothing at all defamatory in saying someone has “a punchable face.” PJ Media — who at times pretends to support free speech — acted as though this was a legitimate lawsuit. Of course, tellingly, even though they said they had a copy of the complaint, reporter Tyler O’Neil did not link to or publish the lawsuit. Perhaps because it’s utter and complete garbage. You can read it here.
It was actually filed last August. And here’s where we’ll go back a bit. Right after the original Sandmann incident, we had noted that infamously silly lawyer Robert Barnes, who has filed multipletrollish lawsuits that have flopped spectacularly, announced that he would represent any of the Covington kids pro bono in filing lawsuits.
Yet, you will note that Sandmann’s lawsuits were not filed with Barnes as his lawyer, but Lin Wood and Todd McMurtry. However, the lawsuit that PJ Media was trumpeting, about a comment on Sandmann, was filed by Barnes. So this lead to some head scratching. Had Sandmann retained both lawyers for different cases? The answer is no. Barnes simply filed lawsuits on behalf of the Covington kids as John Does.
It’s not even clear that any of the Covington kids are actual clients of his. They may be, but the filing doesn’t confirm that this is actually true. And the key Covington kid, Sandmann, has made it absolutely clear that he is not a Barnes’ client, and that this lawsuit is obviously bullshit — because with regards to Aslan’s statement, it only references Sandmann (and his allegedly “punchable face”) rather than any of the other Covington kids:
If you’re unable to see that image, it’s Sandmann asking Barnes on Twitter:
… would you like to explain why you?re suing for me without my permission? You?ve blocked my lawyers on twitter and now claim you?re suing over the Reza Aslan tweet? Retract and stop lying to the public.
Yes. Barnes can claim all he wants that he?s filed it on behalf of the covington kids but we both know that isn?t true. Reza?s tweet references only one kid, and i take up a majority of the picture. The article he even linked (now deleted) stated this.
It clearly states it?s about me in the title!
And we’re not done with the strangeness yet. The lawsuit itself was filed last August. So why was it making news now? Because Aslan just deleted that tweet. Why did he just delete that tweet now, a year later? Because Barnes only just now served Aslan:
It’s unclear why Aslan even bothered to delete the tweet, other than perhaps a kneejerk reaction upon being served. There’s nothing defamatory at all in what he said. The lawsuit itself is ridiculous. Beyond Aslan, there are a bunch of other plaintiffs who merely stated various opinions about Sandmann (mostly, rather than the supposed “John Does”). Aslan’s co-defendants include Elizabeth Warren, who tweeted “Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better.” What’s defamatory about that? Barnes’ suit claims that she “omitted the true facts.” But that’s not how defamation works. Other defendants include NY Times reporter Maggie Haberman, ABC News commentator Matthew Dowd, Mother Jones Editor-in-Chief Clara Jeffery, historian Kevin Kruse and more. None of what any of them said was defamatory.
And, again, the entire lawsuit is completely laughable, and it’s not even clear who Barnes’ clients really are. Yet, when PJ Media (and Barnes) framed it in a way that suggested to people that the lawsuit against Aslan (who supposedly is going to “face the music”) was on behalf of Sandmann, the Rorschach test continued, with tons and tons of Sandmann’s supporters cheering on a nonsense lawsuit. Indeed, some of the commentators even appear to believe that the CNN settlement was done by Barnes:
It goes on like that for a lot longer, but you get the idea. Notice that basically all of them are doing exactly what Barnes and Sandmann/Wood/McMurtry are suing over: commenting enthusiastically about a story where they only know a small piece of the details, and possibly have the large crux of the situation wrong. Particularly silly is that many of those commenters egging on a completely bogus attack on free speech pretend to be “free speech supporters.”
And, of course, then Sandmann’s actual lawyer Lin Wood had to go on Twitter and demand that Barnes cease and “correct his prior false statements.” It includes what appears to be a threat to take legal action:
Again, here’s the text if you can’t view the screenshot:
Nicholas Sandmann has many legitimate defamation cases remaining for resolution through litigation.
@ToddMcMurtry & I prefer to focus on those matters & not be forced to take legal action against another lawyer but Robert E. Barnes crosses line with his claims about Nicholas.
Barnes has been previously warned to stop publicly suggesting or stating that he represents Nicholas. In response, Barnes ?blocked?
@ToddMcMurtry & me on Twitter. Barnes apparently cannot control his desire to garner publicity by falsely using Nicholas? name.
For those who can access
@Barnes_Law
& support his legal efforts for others, please remind him that he cannot ?block? a formal demand letter, a civil complaint, or an ethics complaint. I hope he finally gets the message.
If Barnes does not cease publishing & then correct his prior false statements, Nicholas? attorneys are fully prepared to take legal action against him. So Barnes can take the easy way out or he will get out the hard way – we will sue him. His choice.
But, once again, this is all a form of a Rorschach test, and everyone seems to view the story through their own particular prism — as did all of the initial commenters that Wood/Sandmann/Barnes/whoever are suing. And that’s why all of those lawsuits are such bullshit. People reacting to news is not defamation. People not having the full context is not defamation. People expressing their opinion, or explaining how they view things, is not defamation. And the people who have responded to all of the news this week are doing exactly the same thing they seem to think others should be sued over.
So, maybe, just maybe, the best thing here would be stop filing so many bullshit defamation lawsuits, and recognize that free speech sometimes includes speech we don’t like, and that includes people not fully understanding the context. But, of course, that’s not going to happen. Indeed, Sandmann’s other lawyer, Todd McMurtry has instead promised to get back to suing more people:
For the past few years, there’s been a really bizarre “fight” going on in the copyright world. I had considered writing about it nearly two years ago when it first seemed to flare up, but I had hoped that facts and cooler heads might prevail. Silly me.
This involves a few issues that are fairly deep in the weeds if you’re not a lawyer, so I’ll try to provide a quick overview of what’s happening for non-lawyers. The American Law Institute (ALI) is a non-profit organization which states its mission is to help to “clarify, modernize and otherwise improve the law.” Its most well known products are the so-called “Restatements” of various laws. Restatements are, generally speaking, attempts to provide significant additional annotations on the law, based on caselaw. That is, it’s a very useful tool for courts to understand how various aspects of the written law have been interpreted by judges before them. They are scholarly works, put together by bringing together large groups of legal experts in a field to work out a very balanced review of how courts have interpreted the law.
Seeing as these are merely effectively annotations on the law, they are, in no way, binding on a court. Instead, they are designed to be useful in helping judges understand the current state of the law. A few years back, ALI decided to put together a Restatement of Copyright Law. It’s been a long, slow process. To put it together, ALI has brought together a large and diverse group of copyright lawyers, practitioners, and scholars representing pretty much all sides of the various copyright debates. If you were planning to release a document that was one-sided and “biased” this is not the way you would do that.
Among the people working on the Restatement there are some of the most famous names in copyright scholarship — many of whom historically have supported a more maximalist interpretation, including David Nimmer, and Jane Ginsburg. Others working on this with a long history of copyright maximalism, include former Copyright Office General Counsels Jacqueline Charlesworth and Sy Damle. You have a bunch of current and former RIAA and MPAA folks, including former RIAA lobbyist and current federal judge Beryl Howell. There’s also Michael Fricklas, former General Counsel of Viacom, Michael Kane from Disney, former Warner Bros. and MPAA VP Dean Marks, former RIAA General Counsel Steven Marks, current Senior VP and Associate General Counsel at the MPAA Ben Sheffner, and also Shira Perlmutter, a well known maximalist currently at the USPTO, but previously at the Copyright Office, IFPI, and Time Warner.
In short, there are very few of the big names in copyright maximalism I can think of who aren’t among the team tasked with this process.
But it also includes plenty of people with more enlightened views on copyright — those who recognize that copyright was supposed to be designed to benefit the public first and foremost. Basically, it’s a pretty balanced list. In the years since the Restatement has been announced, it’s appeared that it’s this very balance of those working on the Restatement that has so upset the maximalists. As a whole, they’ve basically been getting their way with their interpretation and ever-growing expansion of copyright law. Over and over and over again. The idea that anyone who actually recognizes the original intent of copyright law might even weigh in on helping to explain to judges what courts have said is worrisome to them. This is silly. The point of the Restatement is to explain what courts have said. Restatements don’t say what the law should be or what anyone hopes it should be. It’s very much about highlighting what the caselaw says.
Two years ago, the Copyright Office put out a letter whining about the Restatement process, (despite so many people related to the Copyright Office being on the team putting together the Restatement). At the time, I spoke to someone else on the team who told me that the whole thing was purely a “turf battle,” in which the Copyright Office wants the courts to look to it for legal interpretations (generally not something the courts have done), so this is seen as a “competitive” effort. But the bigger issue, honestly, seems to be one factor and one factor only: Hollywood and its friends decided long ago that the public interest has no business in copyright. And this Restatement process even acknowledging those who have worked to remind people that copyright is supposed to be in the public interest is seen as a threat to their views.
But here’s where things get insane. The lobbyists for copyright maximalists have now convinced one senator and four members of Congress to pressure the ALI to drop the entire Restatement of Copyright Law project.
In case this is not clear: members of Congress are telling a private organization that it should not give its opinion or analysis on the state of the law. That’s fucked up no matter how you look at it. Senator Thom Tillis, and Representatives Ben Cline, Ted Deutch, Martha Roby, and Harley Rouda, have some explaining to do. Using the power of Congress to say that a private organization shouldn’t talk about the law is insane.
Even the specifics in the letter are crazy — and clearly were talking points from lobbyists.
ALI is a respected organization, whose Restatements are often cited as highly persuasive authority in court cases and scholarly works. Traditionally, Restatements have focused almost exclusively on areas of common law because judicial rulings across different jurisdictions may vary and ALI’s interpretation are predisposed to assembly, analysis, and summaries.
By contrast, laws created through federal statute, including federal copyright law, are ill-suited for treatment in a Restatement because the law is clearly articulated by Congress in both the statute and legislative history. In creating legislation, Congress develops legislative history through hearing testimony and Committee Reports. Legislation is then expertly interpreted by agencies charged with that authority by Congress — such as the U.S. Copyright Office and U.S. Patent and Trademark Office. The ALI has long recognized that federal statutes do not require a Restatement and are not an appropriate platform to effect changes in federal law.
This is misleading on nearly every level. First, while copyright law currently comes via federal statute, large chunks of that federal statute developed via common law rulings that determined the basic shape of the law, which was eventually codified by Congress. This includes, most notably, the entire concept of fair use, which was a common law idea. Other areas of copyright that were developed through common law include things like copyright on sound recordings, public performance copyrights, rights of first sale, the idea/expression dichotomy, scenes-a-faire, the idea of “de minimis” copying not being infringing, etc. In short, much of what we know of as statutory copyright came about because of common law interpretations of copyright.
Second, if you’ve paid any attention to the caselaw over the past forty or so years of copyright, basically from the Sony Betamax case forward, there have been all sorts of areas of copyright law that have required judicial interpretation of the law. And that’s exactly what a Restatement is useful in dealing with. Just to take one (of many!) examples, the Blurred Lines case has shaken up copyright law tremendously over the past couple of years, based entirely upon the court’s interpretation of the law. And, as we speak, the 9th Circuit is considering what framework to use when determining if a similar song is infringing. These are exactly the kind of things a Restatement is useful in dealing with.
Third, and most importantly, if Congress feels that a court — or the Restatement — has gotten something really wrong, it has the power to revise the law. So it’s unclear why these elected officials feel so threatened by someone highlighting how various courts have ruled — especially given the incredibly balanced nature of the group tasked with putting together the Restatement.
These elected officials seem bizarrely worried that courts will somehow rely on the Restatement too much, despite little evidence that this would ever be an issue (and separately, I find it amusing that they keep pointing to legislative history, when various Constitutionalists insist that legislative history is meaningless in interpreting the statute, but I digress).
Throughout its almost 100 years of existence, the ALI has never chosen to draft a Restatement of an area of law that is almost exclusively statutory law — until now. We are deeply concerned by the ALI’s current Copyright Restatement Project. In fact, any Restatement or other treatise relied on by the courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern. Courts should rely on that statutory text and legislative history, not Restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.
But then they immediately undermine the point made in the above paragraph:
We also understand that the ALI has come under some scrutiny relating to other controversial projects. The late Justice Antonin Scalia, who was the most frequent author of opinions citing ALI publications in nine opinions, wrote that “modern” Restatements “are of questionable value, and must be used with caution.” He added that, “[o]ver time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations of what the law ought to be.” In his dissent in Kansas v. Nebraska, Justice Scalia stated that newer Restatements “should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar.”
Lately, many states have also begun to repudiate the more recent and controversial Restatement projects, such as the Insurance Liability Restatement. Arkansas, Michigan, North Dakota, Ohio, Tennessee, and Texas have all recently passed legislation that in some form seeks to curtail, or even condemn, the use of the Insurace Liability Restatement under their respective insurance laws. The Kentucky and Indiana legislatures have also passed resolutions stating their opposition to the Insurance Liability Restatement.
So… all of that completely undermines the entire argument here. It’s saying that judges clearly recognize that they are free to ignore or decline to endorse anything in a Restatement, and that legislative bodies (like Congress) are free to clarify if a Restatement gets something wrong. So… why are they so upset that a Restatement is taking place in the first place? If it’s no good, judges can and will ignore it. If it gets stuff wrong, Congress has the power to clarify the law.
One other thing that’s important here. I mentioned earlier that David Nimmer is one of the people involved in this Restatement. Nimmer is also a co-author (with his father) of Nimmer on Copyright, which is (like the Restatement) an interpretation of copyright law, that is frequently cited and relied upon by courts. Nimmer on Copyright has been cited by over 2,000 court cases. Here’s former Director of the US Copyright Office, Maria Pallante waxing poetically on the value of having Nimmer on Copyright around to rely on:
What would the Nimmer of 1963 do with red flag knowledge or orphan works? What protections would he assign to vidders and bloggers?
How would he analyze the application of copyright law to the software in
cell phones and car radios? What would he think of the development
agenda at WIPO? What would he do with section 115?
Thankfully, through Nimmer the younger, the treatise goes on, building upon the early days and reminding us that the practice of copyright law
isn’t only exciting but difficult. It isn’t about what we know, or how
quickly we can state it in this age of instant public discussion; rather it’s a
matter of respect. The more one learns about copyright law the more
there is to learn. What better symbol is there of this fact than the enduring
legacy of Nimmer on Copyright?
Notably, approximately 30 seconds after the elected officials sent the letter discussed above, the very same Maria Pallante, who now heads the Association of American Publishers, a lobbying trade group representing legacy publishers pushing for ever more maximalist copyright, put out a press release cheering on the Congressional letter. Suddenly, Pallante’s love and affection for an effort to interpret copyright law has gone away when it’s not managed entirely by the Nimmer clan.
?We strongly commend Senator Tillis and Representatives Cline, Deutch, Roby, and Rouda for their powerful letter raising serious concerns about ALI?s Copyright Restatement Project. For more than 200 years U.S. copyright law has served as a crucial incentive to publishers, authors, composers, and countless other artists, enabling the creation and dissemination of works that improve our lives, enhance our culture, and drive an economic engine that delivers $1.3 trillion in annual value to U.S. GDP. The ALI?s attempt to reinterpret this critically important federal statute should be seen for what it is: a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.”
When Nimmer does the exact same thing by himself, it’s “reminding us that the practice of copyright law isn’t only exciting but difficult” and to be celebrated. When a diverse group of scholars — including Nimmer — work on the very same thing, it’s “a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.” Yeah, sure, Maria. That’s convincing.
The Tillis et al. letter then issues a list of 9 questions it demands that ALI respond to. Hilariously, despite the wide variety of perspectives included among the panel working on this, (and the lack of any such balance in nearly all previous efforts on copyright), these elected officials claim they want to know what ALI has done to stop “bias” and “potential conflicts of interest.” Did these same elected officials worry about “conflicts of interest” in the past regarding copyright — which has almost exclusively been twisted and expanded due to the wishes of Hollywood and its friends? No? Why is it only now, on a non-binding, series of commentary from a private organization, commenting on copyright law, that Congress is “worried” about “bias” and “conflicts of interest?”
I never stop being surprised at how often the topic of comedy and comedians makes it on our pages. Between strange concepts like comedians claiming copyright on stand-up jokes and a more violent war sometimes waged on the technology audience members carry around in their pockets, it really does feel like those in comedy should have, you know, a better sense of humor about all of this.
But to really see the combination of entitlement and disdain for the public at work in the world of comedy, you have to turn to SNL’s Pete Davidson. Davidson apparently tries to smuggle in a non-disclosure agreement to anyone that buys tickets to his stand-up shows, with penalties of up to a million dollars for violations of that agreement.
Whatever you do, never tweet at a Pete Davidson comedy show. The “Saturday Night Live” cast member has recently been doling out non-disclosure agreements before each of his recent comedy shows.
Most recently, fans attending Davidson’s standup at the Sydney Goldstein Theater in San Francisco were asked to sign a lengthy contract that forbade them from tweeting or instagramming any opinions about the performance.
I find it hard to believe that such an NDA would stand up in court. Regardless, it takes a special kind of audacity to make your living in comedy, an industry completely reliant on free speech principles and social commentary, and then insist that paying customers sign away their ability to do likewise. It’s enough, seriously, that you have to wonder if this is some new kind of experimental comedy that Davidson is trying out.
Except that customers who have refused to sign the NDA have reported getting full refunds of their purchases without further explanation. If this is comedy, the public appears to be waiting for the punchline.
One attendee, Stacy Young, originally discovered by Consequence of Sound, posted the alleged NDA on her Facebook. It stated: “the individual shall not give any interviews, offer any opinions or critiques, or otherwise participate by any means or in any form whatsoever (including but not limited to blogs, Twitter, Facebook, YouTube, Instagram, or any other social networking or other websites whether now existing or hereafter created).”
The document posted on Facebook also states “Individual is or will be a guest of the Company at a performance event for the purpose of viewing ‘works in progress’ creative content …”.
The fine for breaking said NDA was a whopping $1 million. “In the event of breach of this agreement, individual shall pay company, upon demand, as liquidated damages, the sum of one million dollars, plus any out of pocket expense.”
As we’ve said, comedians have, for some time, been wary of technology within the walls of any given performance. Cell phone bans have become somewhat common. The stated concerns for that sort of thing have typically revolved around the fear that audiences will record and distribute contents of the show to the public, or that they will record jokes out of context to make comedians sound more offensive than they intend to be. Those fears, while ultimately lame, are at least understandable.
But forcing paying customers to not have a public opinion about a show? That’s purely crazy.
“I understand that comedians are protective of their material,” Young added. “But to not be allowed to express an opinion, whether I liked it or not, is off-putting in an Orwellian thought police way.”
Someone might want to sit Pete Davidson down and explain to him that 1984 wasn’t a comedy.
We’ve written about the “Reid Technique” — a highly controversial police interrogation technique — a few times in the past, mainly to criticize it. If you’ve ever seen a police procedural on TV, you’re probably familiar with the technique — it’s the one that verges on a “good cop / bad cop” approach in which a good cop tries to “justify” the crime, telling a suspect all the reasons why it’s “understandable” why a person would have committed the crime. Back in 2013, a very thorough New Yorker article covered how the technique was responsible for a ton of false confessions, while also highlighting how the UK and Canada had long moved away from the technique because of the false confessions problem. Last year, one of the leading firms that taught the Reid Technique announced that it would stop teaching the method specifically because of the problems of false confessions and a recognition that “confrontation is not an effective way of getting truthful information.”
However, the firm that still officially licenses the technique, John E. Reid & Associates, continues to stand by the technique, no matter how many reports of problems come out. And now it’s amped that up in the dumbest possible way: by suing Netflix and Ava Duvernay for defamation over her miniseries about the Central Park 5, When They See Us. At issue?
In the final episode of the series, a discussion ensues between Manhattan assistant D.A. Nancy Ryan and a New York City detective who was involved in eliciting the confessions of the Central Park Five. During this conversation, Ryan’s partner says, “You squeezed statements out of them after 42 hours of questioning and coercing, without food, bathroom breaks, withholding parental supervision. The Reid Technique has been universally rejected. That’s truth to you.”
The lawsuit also claims that the interrogation techniques discussed in When They See Us were not consistent with the actual Reid Technique.
There are many, many problems with this lawsuit — starting with the fact that what’s described there is not defamatory. Sure, it may not be true that the technique is not “universally” rejected. There are still straggler police departments that use it. But, at worst, that’s rhetorical hyperbole from one character in the series. Second, while this is based on a true story, it’s still a depiction of that, and no one is going to take a single statement by a single character in the film as some sort of factual statement. Third, if this case actually does move forward, I can’t imagine that John E. Reid & Associates actually want this case to get to discovery — in which Netflix and the other defendants might seek to establish just how debunked the Reid Technique has become.
The 41-page complaint is really quite something. And I don’t mean a good something. Much of it goes on and on about all the various things those practicing the Reid Technique are not supposed to do during an interrogation… but… that’s meaningless with regards to the question of whether or not the miniseries was defamatory.
Even more bizarre? The lawsuit calls out a different famous Netflix series, the popular documentary series Making a Murderer, which includes a bit in its second season, where attorneys point out that questionable interrogation techniques that were used during the (now somewhat infamous) interrogation of Brendan Dassey were not a part of the Reid Technique. So what’s that got to do with anything? The filing claims that this is evidence that Netflix “knew” that these kinds of interrogation techniques were not sanctioned as a part of the Reid Technique. Again, it’s not clear how that shows anything.
And it gets even worse. As the complaint itself admits, after the one character calls out the other for using the Reid Technique, that character retorts:
“I don’t even know what the fucking Reid Technique is. Okay? I know what I was taught. I know what I was asked to do and I did it.”
That actually undercuts the very claim of defamation in the case, as it makes it clear, at least, that the character accused of using the Reid Technique didn’t even know what the Reid Technique was. So it’s bizarre for the company to argue that the show is actually saying he used the Reid Technique. The company insists this doesn’t detract from their argument… but it totally does. It makes it pretty clear that this is just a statement made by one character in a portrayal of what happened, and that even the other characters don’t all agree with that one character. It is hardly defamatory towards the Reid Technique.
And, then, of course, there’s the fact that all this lawsuit is really going to accomplish is get that much more attention on the sketchy history of the Reid Technique, the fact that it has resulted in false confessions, and the fact that many, many police departments have abandoned it for that very reason. Of course, as lawyer Andrew Flesichman notes, there may be another approach:
The people who came up with this lawsuit need to be sat down in a room for 16 hours without a lawyer just so we can get their side of the story.@Popehathttps://t.co/QB9OTNxcQd
