Category: News Feeds

The right-wing argument against Section 230 of the 1996 Communications Decency Act remains as dumb as ever. With Trump and some of his acolytes receiving permabans from social media platforms and Parler losing its host based upon repeated term of service breaches, talking heads are lining up to decry “Section 230” for legalizing the suppression of political speech.

Except it doesn’t say any of that.

Here is the entirety of Section 230(c)(1), which is the crux of what Section 230 does (47 U.S.C. § 230):

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In a system known for drafting reams of awkward, contradictory regulations for every simple proposition, Section 230 stands out in its simplicity. If you host a website and a commenter shows up and says something defamatory or criminal, that’s the commenter’s problem, not the website’s.

That’s it. That’s all it says.

And it exists because, as attorneys, we’re professionally obligated to go after the biggest pocket available in any lawsuit and if we could get Mark Zuckerberg to pay for Hotstuff69 posting that you massacre puppies for sport then we’d do it. Instead, we all agree that tech billionaires aren’t on the hook for what 58-year-old incels type in their parents’ basement. And it’s a protection the internet needed because unlike newspapers or TV, the instantaneous nature of the internet would render mass real-time moderation impossible.

Not that it’s good business to become known as a platform for bad behavior. That’s why these companies still maintain terms of service and employ moderation algorithms. But that’s a matter of brand protection, not a legal issue. And that’s where Section 230(c)(2) comes in, which just protects platforms for doing what newspapers and TV do every single day without facing legal liability: deploy basic standards.

(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Internet companies aren’t liable for what commenters put up… but they have the right to enforce terms of service and develop “parental control” filters for what’s put on their private platforms.

Unfortunately, the nonsense going around about Section 230 gets the occasional injection of “credibility” when it’s repeated by disgraced law professors trying to reclaim relevance. Take, for example, a recent op-ed from Yale Law’s Jed Rubenfeld. Rubenfeld partnered with Roivant Sciences CEO Vikram Ramaswamy (who appears to be writing a book called Woke, Inc. to cash in on the snowflakes who blame “wokeness” when their feelings get hurt) to write a Wall Street Journal op-ed that is, frankly, comically bad. I’d say dragging Yale’s gravitas into this atrocious 0L level argument would warrant Rubenfeld’s suspension from Yale’s faculty but he’s already in the midst of a two-year suspension following a sexual harassment investigation.

It is “axiomatic,” the Supreme Court held in Norwood v. Harrison (1973), that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” That’s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so.

Tech companies are permitted to “censor” people who post on their platform in the exact same way newspaper editors can — and in this case probably should have — when they refuse to publish every crackpot letter to the editor. Imagine being so dense as to think Twitter not allowing someone to post 280 characters is a greater roadblock to getting a message out than Fox News refusing to give Rachel Maddow four hours of their primetime window. And, yes, I get that all of the bad faith Section 230 arguments rely on that sort of editorial control being a perk of “publisher” status — it’s a bankrupt “with rights come responsibilities” claim that exercising any moderation at all requires taking on the full responsibility of being sued over every shitpost someone puts up — but it all rests on the emotional appeal that Twitter being able to moderate like every other media outlet is a unique threat to protected speech.

Far from vesting social media with powers that the government is “constitutionally forbidden to accomplish,” Section 230 reiterated that tech companies could do what any other publisher can already constitutionally accomplish.

If anything, in enacting Section 230, Congress reduced the amount of censorship online by relieving companies of the threat of lawsuits. A “publisher” would have banned some of these maniacs, including the then-president, years ago. But because social media platforms didn’t have to fear civil liability for, say, Trump defaming someone via Tweet, they bent their own terms of service into a pretzel.

Section 230 is the carrot, and there’s also a stick: Congressional Democrats have repeatedly made explicit threats to social-media giants if they failed to censor speech those lawmakers disfavored.

Yeah, government threats are not good, and yet that seems to be exactly what this editorial demands. We’ll remove your carrot if you don’t let OUR people use your company to amplify our false, libelous nonsense.

Liberals should worry too. If big tech can shut down the president, what stops them from doing the same to Joe Biden if he backs antitrust suits against social-media companies?

NOTHING! That’s the whole point. It’s just that Biden wouldn’t throw a pity party about it and would just slap on a pair of aviators and stroll to the White House Press Briefing Room to talk to the entire assembled global media.

It’s telling that the only time the editorial comes asymptotically close to a point is in the glib aside about antitrust. I’ve said before that it’s perfectly acceptable to think big tech enjoys outsized influence and simultaneously recognize that they can permaban whomever they want. Facebook has bought up rival social media platforms and absorbed them into their umbrella while slowly building a stranglehold over online advertising — that’s something that antitrust enforcement should look into! And maybe if there were a bunch of “Baby Facebooks” one of them would decide that letting Lin Wood call for the execution of Mike Pence is an acceptable post.

But that would still be that company’s choice.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

“A million dollars isn’t cool. You know what’s cool? A billion dollars.”

If Justin Timberlake is to be believed, contract management software behemoth Ironclad just got very cool, indeed. Ironclad recently closed $100 million in Series D funding off a valuation just shy of $1 billion, making it the tech world’s latest unicorn.

“Cool” isn’t part of the conversation Ironclad co-founder and CEO Jason Boehmig usually hears around his company. “We’ve been described in the press as boring, unsexy, all those words,” he told me during an interview last week. “But I think the people who really understand what we’re doing [see] there’s also kind of a revolutionary implication for what we’re doing.” Beyond that, Ironclad’s success also contains lessons that everyone in law — from law firm management to newly minted associates — can draw from.

Setting The Standard

Boehmig makes it all sound so simple: Ironclad wants to do for contracts what the shipping container did for cargo. As Boehmig retells it, the history of shipping cargo by boat is primarily marked by one innovation: containerization. For millennia, products were put on ships in containers of all sizes, with little to nothing in the way of agreed-upon standards for shipping sizes, package tracking, or other aspects of the industry we now consider essential. Packages spent months at sea without word of whether they were actually making their way to shore, cargo was routinely lost, and the loading and unloading of boats took more time than the actual hauling of the cargo across the ocean.

Then World War II hit, and lost containers of ammunition and supplies were no longer acceptable. The shipping industry settled on standards for shipping containers and package tracking, which we today call containerization. With that, the shipping industry seemingly grew up overnight. While your grandparents might have ordered a package, crossed their fingers, and hoped it would arrive sometime in the next six months, today we can order nearly anything we can think of online and trust it will generally arrive safely, securely, and quickly.

Boehmig sees the same opportunity in the world of contracting. The contract is the basic unit of much of the business world. Our companies can move only as fast as we can enter into agreements with new vendors and customers. Yet most companies’ contract processes remain drastically slow, with each contract going through endless tailoring processes and requiring the signoff from more stakeholders than is practicable. Ironclad aims to fix this problem.

The Disciplined Pursuit Of Less

What’s maybe the most revolutionary thing about Boehmig’s strategy is that he wants to fix only that problem. Part of Ironclad’s success comes down to Boehmig’s laser-focus on contract management and resistance to feature creep and vision bloat. When I first spoke with Boehmig at the end of 2019, Ironclad was exclusively a contract management solution. When I asked him last week about the areas Ironclad will expand into with its latest $100 million round of financing, he said simply, “We’ll stick with contracts.” Boehmig sees contracts as an unfathomably huge and largely untapped market segment, one with more than enough room to grow in for the time being. “We really want to be the place that people make business contracts,” and despite being an industry leader, Boehmig characterizes Ironclad as only “1% of the way there.”

Rather than build out ancillary structures from scratch, Ironclad has leaned heavily into partnerships with other top-of-the-market providers. “I always approached the company in favor of only doing the things that we think we can do at a first-class level,” he said, using DocuSign as an example: “DocuSign is fantastic at e-signature, they’ve built an incredible e-signature product. We said, ‘that’s a first-class product. We are gonna integrate around that.’” By focusing on building a strong core product that integrates well elsewhere, Ironclad has avoided reinventing the wheel and dedicated its resources to higher-return areas of development.

Ironclad’s strategy brought to mind Stanford MBA grad Greg McKeown’s 2014 book “Essentialism: The Disciplined Pursuit of Less.” McKeown argues that less often turns out to be more. By identifying what is actually important in our lives and our businesses and giving those our absolute priority and attention, we both maximize the impact of our achievements and positively reframe our internal metrics for success.

For law firm leaders, the lesson of Ironclad is to identify our strengths, and then lean into them. Rather than diluting a firm’s resources by trying to be all things to all potential customers, firm managers can focus on developing the practices that make their firm unique and show the firm off in its best light. By focusing on what we do best, we shed distractions and set ourselves up for the strongest success we’re able to muster.

The Long Haul

I asked Boehmig if he had any advice for aspiring entrepreneurs, and his response seemed to work equally well for young attorneys setting out to build their practices: “Pick an area that you want to work on for a decade-plus and that you’re going to get excited about. You’re going to talk so much about what you work on since it’s such a big part of your life. One mistake I see budding entrepreneurs make is they feel like they found a clever hack in a process, and they get caught up in considering the incremental improvement that could make. They don’t necessarily consider ‘Do I actually want to spend a decade working on this problem?’”

Instead, Boehmig argues, pick a problem you can commit a decade to, commit, and see what happens. “By any means necessary, keep moving, putting one foot in front of the other. Big companies don’t care as much as you, and that’s really your only advantage as an entrepreneur — that you care more. As long as we keep caring more and asking the right questions, and wanting to spend more time with our customers, we’ll win.”

I couldn’t agree with this advice more, especially to young attorneys trying to find their professional feet. Many attorneys I’ve known stumbled into a practice through happenstance, or inertia, or sometimes just dumb luck. I’ve known attorneys that’s worked well for, but what are the odds that what we stumbled into is what we actually enjoy? The attorneys I know who have both the most financial success and the most personal satisfaction are the ones who walk into the office every day knowing they’re doing what they want to do. Clients know when you actually care about your work, and that passion will show up in both your work product and your bottom line. Do what you love, and you’ll never work a day for the rest of your life.

Now that’s cool.

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James Goodnow is the CEO and managing partner of NLJ 250 firm Fennemore Craig. At age 36, he became the youngest known chief executive of a large law firm in the U.S. He holds his JD from Harvard Law School and dual business management certificates from MIT. He’s currently attending the Cambridge University Judge Business School (U.K.), where he’s working toward a master’s degree in entrepreneurship. James is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created and run a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

As was totally expected, US district court judge, Barbara Jacobs Rothstein, has handily rejected Parler’s motion to force Amazon to turn Parler’s digital lights back on. The order is pretty short and sweet, basically saying that Parler hasn’t even remotely shown a likelihood of success in the case that would lead to having the court order Amazon to take the social media site back.

On the antitrust claims, the judge points out that these appear to be a figment of Parler’s imagination:

At this stage in the proceedings, Parler has failed to demonstrate that it is likely to succeed on the merits of its Sherman Act claim. While Parler has not yet had an opportunity to conduct discovery, the evidence it has submitted in support of the claim is both dwindlingly slight, and disputed by AWS. Importantly, Parler has submitted no evidence that AWS and Twitter acted together intentionally—or even at all—in restraint of trade….

Indeed, Parler has failed to do more than raise the specter of preferential treatment of Twitter by AWS. The sum of its allegation is that “by pulling the plug on Parler but leaving Twitter alone despite identical conduct by users on both sites, AWS reveals that its expressed reasons for suspending Parler’s account are but pretext.”… But Parler and Twitter are not similarly situated, because AWS does not provide online hosting services to Twitter. Parler’s unsupported allegation that “AWS provides online hosting services to both Parler and Twitter” is explicitly denied in a sworn declaration by an AWS executive…. (“Twitter’s principal social-media service (the “Twitter Feed”) does not run on AWS. . . . On December 15, 2020, AWS announced that it signed an agreement with Twitter for AWS to begin servicing the Twitter Feed for the first time. . . . We do not yet service the Twitter Feed, and I am not aware of any particular timeline for doing so.”). Thus, as AWS asserts, “it could not have suspended access to Twitter’s content” because “it does not host Twitter.”

For what it’s worth the judge doesn’t even note the other huge weakness in Parler’s “antitrust claims.” I had intended to write a post about this, but now that this order is out, that post may be moot: Parler’s CEO in his own declaration undermined the entirety of the antitrust claim by admitting that there were at least half a dozen other “large” cloud providers beyond Amazon. It’s true that none of them wanted to do business with Parler, but it sort of highlights that there’s competition in the market:

Parler reached out to at least six extremely large potential providers— all of which refused to host Parler for one of two reasons.

The “strongest” (and I use that term in the sense of the “tallest of the ants” meaning) of the claims was probably the breach of contract claim, in which Parler said AWS’s terms require 30 days notice for termination. As we wrote, however, the terms also allow for a suspension of service in much less time, and Amazon insists that Parler’s service was suspended rather than terminated. The judge, not surprisingly, did read the whole of the terms of service, rather than just the convenient bit Parler’s lawyer wanted her to read:

Parler has not denied that content posted on its platform violated the terms of the CSA and the AUP; it claims only that AWS failed to provide notice to Parler that Parler was in breach, and to give Parler 30 days to cure, as Parler claims is required per Section 7.2(b)(i). However, Parler fails to acknowledge, let alone dispute, that Section 7.2(b)(ii)—the provision immediately following—authorizes AWS to terminate the Agreement “immediately upon notice” and without providing any opportunity to cure “if [AWS has] the right to suspend under Section 6.” And Section 6 provides, in turn, that AWS may “suspend [Parler’s or its] End User’s right to access or use any portion or all of the Service Offerings immediately upon notice” for a number of reasons, including if AWS determines that Parler is “in breach of this Agreement.” In short, the CSA gives AWS the right either to suspend or to terminate, immediately upon notice, in the event Parler is in breach.

Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP. It has therefore failed, at this stage in the proceedings, to demonstrate a likelihood of success on its breach of contract claim.

Then there’s the intentional interference claim, which almost never flies, because it’s almost always just an attempt to repeat earlier claims with a “and this is serious.” Here, it’s just pathetic. And the judge knows that.

Parler has failed to allege basic facts that would support several elements of this claim. Most fatally, as discussed above, it has failed to raise more than the scantest speculation that AWS’s actions were taken for an improper purpose or by improper means. Conversely, AWS has denied it acted improperly, justifying its actions as a lawful exercise of rights it had pursuant to either the suspension or the termination provisions of the CSA. Further, for the reasons outlined supra, §§ III.B.(1) & (2), Parler has failed to demonstrate the likelihood that AWS breached the CSA. To the contrary, the evidence at this point suggests that AWS’s termination of the CSA was in response to Parler’s material breach. Parler has therefore not demonstrated a likelihood of success on this claim.

The judge does admit that Parler may be right that there are irreparable harms here, but its failure to plead a winnable case means that doesn’t much matter. Finally, there’s an interesting paragraph on the public interest arguments in the case:

The Court explicitly rejects any suggestion that the balance of equities or the public interest favors obligating AWS to host the kind of abusive, violent content at issue in this case, particularly in light of the recent riots at the U.S. Capitol. That event was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection. The Court rejects any suggestion that the public interest favors requiring AWS to host the incendiary speech that the record shows some of Parler’s users have engaged in. At this stage, on the showing made thus far, neither the public interest nor the balance of equities favors granting an injunction in this case.

Separately, it’s worth noting that the judge called out the fact that this is not a case about free speech or the 1st Amendment, as some have tried to frame it:

It is important to note what this case is not about. Parler is not asserting a violation of any First Amendment rights, which exist only against a governmental entity, and not against a private company like AWS. And indeed, Parler has not disputed that at least some of the abusive and violent posts that gave rise to the issues in this case violate AWS’s Acceptable Use Policy.

Overall, the ruling was basically exactly what most people were expecting. The case still moves on, for now, as this was just rejecting the request for a temporary restraining order (effectively forcing Amazon to rehost Parler). But I would imagine this does not bode well for the next step, which is likely a motion to dismiss the entire lawsuit from Amazon, which the judge seems likely to grant on similar grounds as was used for this ruling.

Judge Easily Rejects Parler’s Demands To Have Amazon Reinstate Parler

More Law-Related Stories From Techdirt:

Oversight Board Agrees To Review Facebook’s Trump Suspension
Outgoing FCC’s Last Act Is A Delusional Report That Pretends US Broadband Is Wonderful
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In the end, Elon Musk chose not to defy the authorities: There would be no Teslaquila. In its place would sit, much delayed, outrageously priced and wildly oversold all the same, the much-less mellifluously monikered Tesla Tequila. This titular flexibility means that no one’s premium electric car-branded liquor would be seized and dumped by Mexican appellation authorities or, I dunno, some other consequence of violating international product naming laws.

* Google is asking that an antitrust lawsuit filed against it be moved from Texas to California. Interesting, seems like Silicon Valley types keep moving from California to Texas… [Reuters]

* A group called Lawyers Defending American Democracy are calling for Rudy Giuliani to face professional displace over his work for President Trump. [Hill]

* A judge has ruled that a lawsuit seeking to dissolve the National Rifle Association can move forward. [ABC News]

* Numerous lawsuits have been filed over the helicopter crash last year that killed NBA star Kobe Bryant, his daughter, and several other passengers. [USA Today]

*Alan Dershowitz claims that the Senate does not have jurisdiction to hold President Trump’s impeachment trial. Sounds a little like a “sovereign citizen” argument… [Law & Crime]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

What Yale Law School professor is taking a leave from academia to serve the Biden administration in the Office of White House Counsel?

Hint: The health law expert (and former RBG clerk) takes on the role of special counsel primarily focused on the COVID-19 response but will also be responsible for Affordable Care Act issues.

See the answer on the next page.

After spinning yarns about Hugo Chavez running Canadian-based Dominion Voting from beyond the grave to flip votes — a claim that even OAN is now running from — Team Kraken is now facing Rule 11 sanctions in Michigan for adopting a litigation strategy based on theories that the toaster has been yelling at them every morning. Earlier this month, the City of Detroit filed a motion for sanctions and requesting the court refer the seven attorneys involved — including Sidney Powell and Lin Wood — to their local bars for disciplinary action after growing tired of serving as the punching bag in the lawsuit against Michigan officials based on wild innuendo.

In response, local counsel Stefanie Lambert Junttila forcefully opposed Detroit’s motion based on… well, stuff.

The City’s Motion for both Rule 11 sanctions and for disbarment of attorneys and their referral to state bar associations for disciplinary action is procedurally improper because it violates the requirement that a Rule 11 sanctions motion “must be made separately from any other motion,” Fed. R. Civ. P. Rule 11(c)(2) (emphasis added).

This is point 1. This is what they feel is the best argument they have against this motion. They’re going with “because you asked for sanctions and a referral to disciplinary authorities the motion is invalid.” As opposed to reading that text as “you can’t just dump sanctions requests at the bottom of the motion to dismiss” like EVERYONE ELSE WOULD READ IT.

This sets the tone for the whole response.

It filed its specious motion in its own improper effort to promote its own agenda with the media and to distract from explosive evidence of voter fraud.

If “explosive” is defined as something that disintegrates into nothing amid a loud spectacle, then, yes, it’s safe to characterize the evidence of voter fraud as explosive.

There is no legal or factual basis for this Court to grant the City’s requested relief. Accordingly, because the City has submitted one motion for Rule 11 sanctions and other types of punitive non-Rule 11 relief, the entire motion must be denied.

As support for this, they cite a case where sanctions were requested in a motion to dismiss without noting this key distinguishing characteristic… because of course they didn’t.

Secondly, the City’s motion must be denied as to all attorneys who did not actually appear or sign any pleadings in this matter. Rule 11 is concerned with the signing of frivolous pleadings and other papers. Oliveri v. Thompson, 803 F.2d 1265, 1274 (2nd Cir. 1986). It may not be invoked against attorneys whose names appear on a pleading but who have not signed the pleading or otherwise formally appeared in the action. In re Ruben, 825 F.2d 977, 984, (6th Cir. 1987).

Yes, this is going to turn into a claim that only the attorney who physically signs a filing can be on the hook for professional misconduct. Do you think it’s weird that they’re citing 34-year-old cases in an era of electronic filing? Go with that intuition! Rule 11 received an amendment to address this that makes it clear that its application does not turn on the magic of an ink signature but on the arguments the attorney represents to the court — which can take the form of a signed document or in a myriad other ways up to and including later adopting the arguments in a filing they didn’t sign.

Because a sanctions rule that only tags the local counsel would be insane and invite professional chaos.

This is literally the argument of a cartoon villain: “You can’t capture me, I was never really here! [drops smoke bomb and slinks into the night]”

The only signator or appearance made in the short life of this case has been by Plaintiffs’ local counsel. No other counsel signed any pleadings.

This case has enjoyed a short life. But apparently not short enough to fact check all the filings. Or in this case the first f**king filing! Let’s look at the Complaint:

In the immortal words of Homer Simpson, “D’oh!”

So now the argument has moved beyond “signature” to “ink signature.” Hoo boy. I guess it’s also worth mentioning that there is no magic wand that allows lawyers to commit sanctionable actions while pro hac admission is pending. Let’s lodge that now before there’s a supplemental filing.

Wood at least avoids making even an electronic signature, allowing him to take advantage of the argument that “[w]here plaintiff signed filed papers, but the attorney’s name appeared on papers only in typewritten form, sanctions cannot be imposed on attorney since Rule 11 focuses only on individual who signed document in question.” This quote is from another case decided before the amendment of Rule 11 and in any event focuses on plaintiffs going rogue and not a group of co-counsel filing a motion under one signature.

This is all by way of pinning hopes on the argument that the court cannot consider the public statements made by Powell and Wood that provide the weight of the evidence that this matter was ill-conceived at best and patently frivolous at worst and designed to only to harass because neither of them “signed” the documents. Except Powell did. And that’s not the standard anyway. And this is all absurdist theater.

The City’ Rule 11 motion claims regarding frivolous legal claims and unsupported factual allegations must be dismissed for failure to provide 21-days’ notice and opportunity for response under Rule 11(c)(2).

Except, as we were writing back in December, they actually had received a copy of the motion in advance. Detroit received no reply, though Lin Wood posted on his Twitter account — because he wasn’t banned for advocating the murder of Mike Pence yet — “When you get falsely accused by the likes of David Fink & Marc Elias of Perkins Coie (The Hillary Clinton Firm) in a propaganda rag like Law & Crime, you smile because you know you are over the target & the enemy is running scared!” That’s because Law & Crime reported that the safe harbor period was triggered some time before December 15. Which is, of course, more than 21 days before the sanctions motion was actually filed on January 5, about which we probably would have written on January 6 if the country weren’t in the midst of a coup inspired by lies told in these exact filings by then.

This argument is more of a timing technicality play than anything else.

Indeed, the Advisory Committee Notes to rule 11 state: “To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the ‘safe harbor’ period begins to run only upon service of the motion. In most cases however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion.”

The plaintiffs have now moved to voluntarily dismiss the case, but did so after the 21-day cure period. So they’re arguing that the 21 days actually begin on January 5 rendering them in the clear. Except the advisory note is trying to protect against sandbagging — where counsel vaguely threatens sanctions and then drops a detailed motion later. But in the case where the motion is available in full form at the time of first notice, which is what Detroit represents in its Rule 11 filing, then the safe harbor expired already.

After running through these arguments — ostensibly the good ones — the response tangles with the weightier question of whether or not the case was frivolous. Ironically, this is probably the “best” argument that plaintiffs’ counsel has because while probably jiggery-pokery, as Justice Scalia would put it, it does succeed in muddying the question enough that a judge might balk at the drastic measure of imposing sanctions. These are all issues of first impression, they argue and novel claims cannot be declared frivolous based on hindsight. And while it’s true that these were issues of first impression to the extent that no court had previously entertained the idea that Chinese officials trucked in fake ballots on the orders of dead South American dictators, it seems to make an ass of the law to suggest that every bonkers legal claim gets one freebie.

Or in this case… roughly 60.

The only “specific conduct” identified in the Motion are “[t]he allegations about supposed fraud in the processing and tabulation of absentee ballots by the City at the TCF Center,” which according to the City, “have been rejected by every court that has considered them,” ECF No. 78 at 7, but does not cite to any case where this was “debunked.”

If that’s confusing, it’s because they’re trying to save face on the way out the door of professional credibility by claiming that judges rejecting their claims as legally nonsensical didn’t reach the merits so therefore — TECHNICALLY — they could still be true! The response issues the bold but dangerous gambit that any sanctions would therefore require an evidentiary hearing to evaluate all the flimsy affidavits and “expert” opinions out there. Does the court want to waste judicial resources wading through this garbage? No. Would Team Kraken be screwed if the court did? Yes.

They even go so far as to try and rehabilitate “Spyder” — the military intelligence expert whose identity they tried to shield because it turns out he was never a military intelligence expert — by saying yeah, but you never proved that he was wrong about the conjectures he had no expertise to make! Honestly, it’s shocking that they didn’t devote two pages to defending Melissa Carone in here.

But this is why sanctions are so hard to secure. There’s a lot of pressure on judges to avoid dropping the hammer, no matter how troubling the conduct.

By the way, in case you were wondering, local counsel Junttila is not only the only signature on this response, but the only lawyer identified on the last page. That’s commitment to the bit.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Today William McCall Calhoun, the Georgia attorney who allegedly said he was among the first who “kicked in Nancy Pelosi’s office door” and that Pelosi would’ve been “torn into little pieces” if the mob found her during the Capitol siege, had a bail hearing. He was arrested on January 15 and charged with entering a restricted building or grounds; violent entry or disorderly conduct; and tampering with a witness, victim, or an informant for his role in the January 6th insurrection. It looks as though Calhoun will be staying behind bars as U.S. Magistrate Judge Charles Weigle denied his request for bail.

Judge Weigle heard arguments from defense attorney Timothy Saviello that Calhoun was a “Georgia person through and through” with strong ties to the community that did “not have the funds to flee and finance a lifestyle on the run.” Saviello also argued that, as a lawyer, Calhoun “is the rare defendant who understands what it means to go to court when you have to go to court.”

Also presented to the judge was Calhoun’s social media presence across Twitter, Facebook and Parler, which reportedly reveals violent impulses:

Calhoun also repeatedly expressed his desire for “violent retribution against the media and the Democrats,” and told one Black Lives Matter supporter on Twitter that they “won’t be laughing when patriots go door to door executing you commies.”

One such post, apparently taking up white knight status for the honor of Tiffany Trump, Calhoun promised “headshots” for certain members of the media who were apparently poking fun at her.

“God is on Trump’s side,” the veteran lawyer wrote in a separate post. “God is not on the Democrats’ side. And if patriots have to kill 60 million of these communists, it is God’s will.”

“Think ethnic cleansing but it’s anti-communist cleansing,” he added.

“We’ve got to get serious about stopping them with the force of arms,” Calhoun said in yet another post cited by the government. “I’m a lawyer saying these things.”

But the judge ultimately decided Calhoun presented too much of a risk to the community, saying, “He has been corrupted by or seduced by dangerous and violent ideology that considers the United States to be in a state of civil war, that considers every Democrat to be worthy of execution, that considers every member of the government part of a Deep State.”

The judge continued (as documented by Law & Crime’s Colin Kalmbacher), making a clear case against release:

“When you and your friends went in there and tore the place to shreds, killed five people, including a police officer, you showed that there was nothing would hold you back except force…”

“And if you don’t respect the Capitol Police, if you don’t respect the Capitol Building of the United States, there’s no reason to believe you would respect anything I would tell you to do.” Judge says he would fear for the life of a probation officer sent to check up on Calhoun…

The judge concludes: “Again, because of the corrupting and dangerous ideology that has poisoned this man’s mind, I wouldn’t trust him to do anything I told him to do. He probably considers me scum who deserves a headshot. So, no, I’m not gonna release him.”

Calhoun faces over 20 years in prison for the charges.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).