Category: News Feeds

One of the big points we keep making about Section 230 of the Communications Decency Act is that we totally get it when grandstanding politicians or online trolls misrepresent the law. But the media should not be complicit in pumping blatantly false statements. While I may disagree with them personally, there are intellectually honest arguments for why Section 230 should be amended or changed. I’m happy to debate those arguments. What’s ridiculous, however, is when the arguments are based on a completely false reading of the law. And no upstanding news organization should allow blatant misinformation like that. However, with all the misguided screaming about “liberal bias” in the media, newspapers like the Washington Post and the NY Times seem to feel like they need to publish blatant disinformation, to avoid having trolls and idiots accuse them of bias.

Even so, the Washington Post’s decision to publish this op-ed by Charlie Kirk attacking Section 230 may be the worst we’ve seen. It is so full of factually false information, misleading spin, and just downright disinformation that no respectable publication should have allowed it to be published. And yet, there it is in the Washington Post — one of the major news organizations that Donald Trump likes to declare “fake news.” If you’re unaware of Kirk, he’s a vocal Trump supporter, who runs an organization called Turning Point USA that appears to specialize in playing the victim in all sorts of ridiculous conspiracies… all while (hypocritically) arguing that his political opponents (“the libs”) are always acting as victims and are “training a generation of victims who are being trained to be offended by something.” And yet, it seems that it’s really Kirk who is always offended.

This Washington Post op-ed is just one example. Here, Kirk is playing the victim of (as of yet, still unproven) anti-conservative bias on social media.

By now, most conservatives are convinced that our voices are being shadow-banned, throttled, muted and outright censored online. In fact, amid protestations by groups including the Internet Association, which claims Facebook, Google and Twitter are bias free, it’s an open fact that Big Tech is run predominantly by those on the ideological left. Facebook’s founder Mark Zuckerberg and Twitter’s chief executive Jack Dorseyeven admitted this before Congress, and footage of Google’s leadership consoling one another after President Trump’s victory in 2016 indicates the same is true for them.

Many on the right have complained loudly and often of anti-conservative bias online. Unfortunately, all too often this is where our efforts stop. Once we’re ignored or dismissed long enough, conservatives seem to just shrug our collective shoulders and accept defeat. It’s this type of passivity that has allowed progressives to dominate film and television, universities and large swaths of the mainstream news media. How did they accomplish that? By fighting tooth and nail for what they believe in every vertical.

While it is true that many people who work in the big internet companies probably lean towards the Democratic side of the aisle (though not nearly as far as some make it out to be), that’s different than proving that they have put in place policies that are biased against “conservatives” (and I use that term loosely). Again, nearly every example that people trot out actually involves trolling, harassment, actual Nazis or other violations of terms of service. And while these companies sometimes make mistakes, they seem to do so pretty much across the board — which is the very nature of moderating so much content.

Separately, many of the links in Kirk’s opening above don’t actually say what he pretends they say. Professor Matthew Boedy went through the above links and put together a great Twitter thread unpacking how he misrespresents nearly everything:

The thread is a lot longer and covers many more examples. Either way, Charlie needs to play the victim, and he’s decided that the culprit is Section 230. Because he either doesn’t understand Section 230, or is deliberately misrepresenting it.

The second obstacle to the free market is Big Tech’s exploitation of preexisting laws, namely Section 230 of the Communications Decency Act that was passed by Congress in the ’90s. Social media companies have leveraged Section 230 to great effect, and astounding profits, by claiming they are platforms — not publishers — thereby avoiding under the law billions of dollars in potential copyright infringement and libel lawsuits. YouTube, for example, advertises itself as an open platform “committed to fostering a community where everyone’s voice can be heard.” Facebook and Twitter make similar claims. Let’s be clear, when these companies censor or suppress conservative content, they are behaving as publishers, and they should be held legally responsible for the all the content they publish. If they want to continue hiding behind Section 230 and avoid legal and financial calamity, they must reform.

And here’s where an editor totally should have stepped in, because almost all of this is wrong or gibberish. First off, even a cursory glance at the text of CDA 230 shows that it excludes intellectual property, such as copyright. Section (e)(2) literally says: “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” So what the fuck is Kirk talking about when he says that they used this law to avoid “billions of dollars in potential copyright infringement… lawsuits.” The answer is that Kirk has no idea what he’s talking about, and now seems to be repeating propaganda pushed out by “liberal” Hollywood.

As for it allowing them to avoid “libel lawsuits,” well, yes. But that’s because Section 230 is about properly applying liability to those who make the statements. We don’t blame AT&T when someone uses a phone to make a bomb threat. We don’t blame Ford when someone gets into a car accident. And we don’t blame Facebook when someone posts defamatory content. It’s kind of straightforward.

Still, where it’s really egregious is that Kirk continues to push the total myth that Section 230 allows companies to hide if they just claim they’re a “platform” rather than “a publisher.” That’s not how the law works at all. It doesn’t make any such distinction.

And here’s the really crazy thing: if Kirk got his “wish” and actually got rid of CDA 230 and made internet companies liable, his own content would likely be at the top of the chopping block. Remember, one of Kirk’s claims to fame was when he published a “Professor Watchlist” calling out allegedly “left-leaning academics” who he feels discriminate against conservatives. He can do that because that’s 1st Amendment protected speech (opinion). But if 230 is amended to require “neutrality,” well, such a list is anything but neutral. Furthermore, the risk of liability of hosting such a list would be high. Even though I’d argue that it’s protected speech, you can bet that someone might find some of the claims on the list defamatory — and thus there would be strong pressure for sites to pull it down to avoid liability.

As radio host Dennis Prager often says, if an airline permitted only those passengers holding the New York Times to board but then denied Wall Street Journal readers, we would all rightly call this discrimination and demand the airline change its policy.

This is dumb for a huge number of reasons. First of all, I don’t think we’d all rightly call it discrimination. We’d call it a business decision. Probably a bad one. Which is why no airline would ever do such a thing. Second, where exactly is the social media platform that is banning people for subscribing to the WSJ, but not the NYT? It doesn’t exist. This is such a hyperbolic, misleading example. People are being banned for harassment and trolling. Not for holding conservative viewpoints. No one’s being kicked off of platforms for calling for lower taxes, less government, or other traditionally “conservative” ideas.

In the same way, conservatives cannot win the battle of ideas if we’re marginalized or removed from mainstream culture and mainstream platforms.

This, also, is laughable. Remember, “right wing” media dominates both radio and cable television. I don’t see Kirk demanding that Fox News host more liberal viewpoints to balance out Hannity. And, once again, even in the supposedly “liberal” Washington Post, he’s allowed to post this blatantly false nonsense.

Again, the Washington Post should absolutely be willing to post different points of view, including those of Kirk and his allies. But they shouldn’t allow him to blatantly spread disinformation about what the law says and what it does. That’s just… as Kirk would say, “fake news.”

Why Is The Washington Post Publishing Blatantly False Propaganda About Section 230?

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For the purposes of tax status, the Federalist Society presents itself as a nonpartisan educational group. This claim is roughly as plausible as the NCAA’s claim to be a nonprofit organization while simultaneously running March Madness, but it’s the sort of fiction everyone agrees to accept with a wink and nod when it comes to the tax status of lobbying interests.

In reality, the Federalist Society is a well-funded political operation designed to advance contemporary right-wing policy goals through the judicial system. And to buy Chick-Fil-A for law students to own the libs.

For years, the organization has spearheaded a form of mostly white, mostly male affirmative action by offering access to the upper echelons of legal industry power to any law student willing to troll women, minorities, the poor, the LGBTQ community, or immigrants by granting them fast-tracked status to judicial clerkships with like-minded jurists and, with any luck, an opportunity to convert those clerkships into another generation of judges.

A key component of this revolving door was the organization’s ready access to a plethora of friendly judges willing to lend star power to the group’s events. It was always a little unsavory and smacked of a potential ethical violation. Now a new opinion released to little fanfare may actually put some teeth to the problem.

Judge James Donohue, a former federal magistrate, highlighted this new ethical opinion in the Washington Post this week:

For many years, the Code of Conduct committee ducked the issue of judicial participation in the Federalist Society, in part, it seemed, because many powerful judges… either have been or are associated with the organization.

The committee now appears to have drawn a line with its issuance of advisory opinion No. 116 expanding the scope of prohibited political activity. The Federalist Society is not mentioned by name, but the opinion is directed to the propriety of participation by judges in programs or membership in groups engaged in public-policy debates.

Opinion 116 actually came out in February, and while few have focused on it, the committee appears to have taken direct aim at the Federalist Society’s whole business model, banning judges from appearing at certain events:

The prohibited political activities include those involving “hot-button issues in current political campaigns” or that are “politically-oriented” or have “political overtones.” Public perception also plays a vital role, as the opinion bars judges from participation that would “give rise to an appearance of engaging in political activity” or “would otherwise give the appearance of impropriety.”

Does that sound like any originalist summer camp you know? That’s a pretty spot-on description of the Federalist Society right there, but the committee didn’t stop there, adding another layer to their indictment of judges cavorting with the group:

The committee also warned judges that they should stay away from groups “where the funding sources are unknown or likely to be from sources engaged in litigation or political advocacy.” The New York Times noted of the Federalist Society’s 2015 annual report, the organization “discloses who contributes most of its money. But it also takes anonymous contributions, from players including the Mercer family, which was a major backer of Donald Trump.” The annual report listed 14 anonymous donors on the “platinum” level — those giving $100,000 or more.

Hopefully, that FedSoc annual meeting airfare was refundable for all you judges out there.

And what of the most prominent FedSoc stooges in the American court system: Roberts, Alito, Gorsuch, and Creepy McBeermeister? The Code of Conduct for United States Judges still doesn’t apply to the Supreme Court.

The Federalist Society just became a no-go zone for federal judges [Washington Post]

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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.

Earlier this week, Donald Trump expressed his confidence in Labor Secretary Alex Acosta. This declaration mirrored his expressions of confidence in FBI Director James Comey or attorney Marc Kasowitz and ended the same way: with Acosta tossed to the curb. The embattled cabinet official resigned today after the world finally caught up with the Miami Herald in reporting on Acosta’s handling of billionaire admitted sex offender Jeffrey Epstein’s case.

The dreaded “vote of confidence” doesn’t necessarily exile someone from Trump’s good graces. In Acosta’s case, he was given an opportunity to appear before the press and put on the sort of combative, no apologies performance that salvaged Slimy McBrewsky’s Supreme Court nomination. But (unlike Alan Dershowitz, another other public figure locked into Epstein’s downfall), Acosta royally bombed his opportunity to impress Trump. Minutes after his press conference, we predicted, “If this was his pitch, expect to see him gone within the week.”

And now he is.

With this, the administration’s brutal labor policy isn’t going to change. Some unconfirmed “acting Secretary” will take over and continue the assault on workers. At this point, it’s not likely that Trump would even try to nominate someone and invite a Senate hearing that might cast some light on administration policy. Opacity is part of the strategy at this point.

And with a mounting scandal that toppled a federal cabinet job, Acosta isn’t likely to feel much of a pinch either. While the SDNY U.S. Attorney’s Office is pursuing the Epstein case through the Public Corruption Unit — a move that could signal pending charges against Acosta — let’s embrace the cynicism and assume that assignment was more an effort to shield the case from being quietly killed and will ultimately pass on trying to charge a former federal prosecutor.

So what happens to Acosta? A double Harvard grad who clerked for Sam Alito, worked for Kirkland & Ellis, taught classes at ostensible law school George Mason, led a law school, and served on the NLRB, as a U.S. Attorney, and, obviously, a cabinet secretary isn’t going to stay unemployed for long. Someone is going to wait 10 minutes for this hubbub to die down and then hand Acosta a few million to hop on the letterhead and bolster their “star” partnership ranks. Whether it’s a return trip to Kirkland & Ellis or a jump to unapologetic Trump firm Jones Day, it doesn’t really matter.

Alex Acosta is, pending prosecution, is going to get a raise out of all this deal. There’s just a point where failure, even the sort of gross failure that spurs a federal judge to call out your serious “material omissions,” don’t lead to any consequences. Some people just get to fail upward. That’s where we are.

Let’s check in on Acosta next year… he’s probably going to be doing just fine.

Earlier: Alex Acosta Just Delivered A Dumpster Fire Of A Press Conference
Alan Dershowitz Says He Thinks He Should’ve Gotten Epstein A BETTER Deal In Wild Doubling-Down Interview

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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.

Last year, Alex van der Zwaan, a former associate at the London office of Skadden Arps, pleaded guilty to charges brought by special counsel Robert Mueller. He’d worked on the controversial report written by the firm justifying the prosecution of former Russian-aligned Ukrainian President Viktor Yanukovych’s political rivals, and was indicted for lying to investigators in the Russia probe about his communications with former Trump campaign aide Rick Gates. He served 30 days in jail and was fined $20,000. Though that wasn’t the end of his punishment.

His lawyers already acknowledged that van der Zwaan’s career as a lawyer was functionally over when he pleaded guilty to a felony saying his “professional life has been destroyed” as part of their sentencing memo in the case. And now comes the final nail in his career as an attorney.

As reported by Law.com, van der Zwaan’s law license was taken away by the U.K.’s Solicitors Disciplinary Tribunal (SDT), and he was ordered to pay costs totaling $3,878. The outcome was part of an agreed upon deal, and van der Zwaan has accepted responsibility for his actions:

An SDT document published Thursday said: “The respondent accepts full responsibility, admits that he is solely responsible for his conduct, and is remorseful and has demonstrated a high degree of insight.”

Van der Zwaan had been an associate at Skadden for 10 years before he got caught up in the Mueller probe and was fired from the Biglaw giant in 2017.

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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).

The Kariba Dam. Picture: GETTY IMAGES/DEAGOSTINI

Armed prison guards patrol outside the court where Job Sikhala, opposition Movement for Democratic Change (MDC) deputy chairman and lawmaker was expected to appear, in Harare, Zimbabwe, July 10, 2019. REUTERS/Philimon Bulawayo

Job Sikhala is accused of advocating the overthrow of President Emmerson Mnangagwa and was not asked to plead when he appeared before a magistrate in rural Bikita, hundreds of km (miles) south of the capital.

Lawyer Alec Muchadehama said Sikhala complained to the court that he had been taken to Bikita despite undertakings by prosecutors that his trial would be held in Harare.

The lawmaker and opposition Movement for Democratic Change (MDC) deputy chairman was, however, told to come back to court on July 24 and will remain in prison custody unless he is granted bail. The bail hearing is on Monday.

“We have applied for bail at the High Court today. He (Sikhala) had many complains against the conduct of the police, who put a hood on his head so he could not see where they were taking him. They also denied him his medication,” Muchadehama said.

The charges against Sikhala emanate from a video circulating on social media, in which the politicians appears to be seen and heard telling supporters at a weekend rally: “We are going to take the fight to the doorsteps of Emmerson Mnangagwa, we are going to overthrow him before 2023, that is not a joke.”

Reuters could not verify the authenticity of the video. Sikhala, through his lawyer, has denied the charge.

More than a dozen government opponents have this year faced similar charges, with critics saying this shows that under Mnangagwa, the government is reverting to harsh Robert Mugabe-era security laws to muzzle the opposition.

Mugabe, who ruled the country for 37 years, was removed after an army coup in November 2017. But Mnangagwa’s promise to break with his predecessor’s past policies and tactics and usher in economic prosperity is yet to be realized.

The MDC, which maintains that Mnangagwa rigged last year’s presidential vote, routinely says it will use all constitutional means to remove the president, without giving more specifics.

In Harare, MDC leader Nelson Chamisa repeated his party’s demand for political talks with the ruling party but only if there was international mediation with a view to guaranteed “free and fair” elections in future.

Post published in: Featured

Lawyers, especially more established ones, enjoy referring to the vocation of law not as a mere business, but as a profession. Anyone can own a business, but having a profession requires something special. “Profession” carries connotations of grandeur, learning, following a higher duty to society as a whole. In contrast, “business” is just the gauche act of making money. Businesses are run by Gordon Gekko; Atticus Finch was a member of a profession.

It’s fun to pretend to be a Philosopher-King or -Queen, dispensing wisdom and authority from on high while ignoring the petty economics. Philosophers don’t need to get their hands dirty with math. They have people for that. So long as the Philosopher carefully listens and gives wise counsel, the kingdom will prosper, the peasants will rejoice, and the offices will remain wood-paneled, because that is the way of things.

Ask Ozymandias how that worked out for him.

The world is changing, and the grand profession of law is changing with it. We’re in the early stages of a war for our life, and it’s not the lofty sages that will shape the future of our industry. It’s the scrappy businesspeople who are willing to get their hands dirty, crunch numbers, and make bold choices.

A War On All Fronts

The battle for market share is being fought by more combatants than you might realize. Alternative legal service providers are stealing commoditized market share, and in some instances even traditional bespoke legal work. The Big Four accounting firms are expanding the scope of their consultation services, and boxing law firms out in the process. Legal-oriented startups run by non-lawyers are trying to disrupt the basic fabric of the industry. In-house legal departments in search of efficiency (or internal budget allocations) are keeping more work in house than ever before. The monopoly we enjoyed for decades is being consistently eroded, and when you start with a monopoly, you have nowhere to go but down.

The way this erosion has played out in the Biglaw market has been fascinating, but troubling. The market as a whole for law firm services has been sluggish, seemingly missing out on the past ten years of economic recovery. But it hasn’t been sluggish all over. The top 1 percent of firms are growing massively, and solos and boutiques are chugging along fine. It’s the middle market that’s feeling the squeeze. Midsized firms are struggling to keep their market share. As the overall pie continues to shrink, that segment of the market will be fighting harder amongst itself for fewer dollars. And if and when the next recession hits, a bloodbath will likely ensue.

The scariest part about all of this is how few lawyers even realize this battle is going on. It’s been such a slow boil for the past decade that it’s been easy to miss. We all felt the crunch when the Great Recession set in, shifted hard into a low-expectation mindset while we rode out the downturn, and never really shifted back out. Ten years of moderate growth has been greeted, year over year, as good news. But compared to the overall economy, the legal market has barely bounced back at all. Slow growth has been the norm for so long, many have started to think their firm’s performance has been acceptable, maybe even healthy, when in fact it’s tenuous at best.

Markets change, and industries die. Magazines used to be big business. They set the cultural conversation. When was the last time you bought a magazine outside of an airport? Thanks to some intrepid Wikipedia editors, you can pull up a list of magazines that have died as their industry contracted. You can also find virtual graveyards for the big box department stores and retailers that have crumbled under the weight of competing with the internet.

Mismanagement and bad fortune surely took down their share of the victims listed above, but if you look at the dates these companies folded, an overwhelming number have come in the last 20 years. A tsunami was incoming for the industry as a whole, and only a lucky few made it to high ground in time.

Law firms that don’t recognize the fundamental problems facing our industry run the same risk. Too many firms are coasting on inertia and are unprepared for a shock to their system. Even outwardly thriving firms like Sedgwick can turn out to be brittle and vulnerable when a bad turn comes. Any firm that isn’t actively planning for the downturn may be just a few years from closing its doors.

To survive this war, firms need to be disciplined and realistic. They need to embrace financial planning, educate themselves in complex analytics, push partners for creativity and efficiency, and work hard on accurately understanding, allocating, and cutting their costs. They need to emphasize diversity in hiring and promotion to maximize the skill sets and communities at their disposal. They need to get scrappy, clever, and clear-eyed. They need to run themselves like a business, not a Victorian intellectual salon.

Gordon Gekko Need Not Apply

To be clear, I’m not advocating for the return of Gordon Gekko, nor am I advocating we abandon the higher goals we traditionally aspire to. The legal industry is under siege, but we should not jettison our better selves entirely in the name of staying alive and making money. We can and should run ourselves smarter, while at the same time remaining humane, caring, and reflective. For all the unearned bluster we sometimes ascribe it, it still means something to have a profession. We owe ourselves, and the society that has given us so much, to remember that.

The notion that we are a profession and not a business will do us no favors in the next decade. Neither will the idea that we must cut throats, pillage, and plunder to survive. To make it through the coming reckoning, we need to balance the scales between the professional and the business sides of our industry. We need to find the productive middle ground between Atticus Finch and Saul Goodman. Above all we have to survive, both body and soul.

The first step to surviving a war is knowing that you’re in one. Now it’s time to decide what kind of soldiers we choose to be. Choose wisely.

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James Goodnow is an attorney, commentator, and Above the Law columnist. He is a graduate of Harvard Law School and is the managing partner of NLJ 250 firm Fennemore Craig. He 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 a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

* Conviction sends Bitcoin boss from blockchain to chain gang. [Law360]

* Remember Popkin & Stern? Probably not since it collapsed in 1991. Its wild bankruptcy tale is finally coming to an end after art fights and marriage proposals. [Stltoday]

* Drug smugglers are now suing their lawyers for saying they knew Alex Acosta but failed to get an “Epstein deal.” This “Rule of Law” thing is not going well, folks. [Miami Herald]

* Effort to quash the House subpoena of Trump’s accountants heads to the DC Circuit today where new judge Neomi Rao will have an early opportunity to cook up some kooky ramblings to justify a purely political decision. [National Law Journal]

* Andrew Cuomo steps up to disenfranchise voters to shield his political stooges. [Sunnyside Post]

* Municipality hacks keep striking and it’s a real problem for everyone’s privacy. [Legaltech News]

* R. Kelly arrested on new charges. [Huffington Post]

INTERNATIONAL – Zimbabwe is seeking to revamp its investment markets after it held its first treasury bills auction on Tuesday to revamp capital markets.Unchained treasury bills issuance under former leader Robert Mugabe worsened the country’s economic plight as they were used to fund the government’s expenditures.

Permanent secretary for treasury George Guvamatanga said yesterday that the treasury bills and bond markets were now being re-shaped.

Guvamatanga said that the first auction in years was held on Tuesday.

The highest bid rate was 47percent against 13percent stacked against a weighted average of 16.5percent to 19percent.

“We will be coming to the market with an Infrastructure Bond soon to be supported by a ring-fenced structure utilising Zimbabwe National Roads Authority (Zinara) cashflows to support road construction,” added Guvamatanga.

Investment analyst Steve Charangwa said there would be no withholding tax or any taxes on payoffs on the infrastructure bond be levied.

He said that a government guarantee would appeal to foreign fund managers.

“Issue size matters for liquidity and please get Zinara to also make the market for its bonds,” he explained.

Brokerage and investment advisory firm IH Securities said that the “Zimbabwe government had successfully relaunched the bills auction, despite testing the market in a period where the treasury has no need for the money”.

Finance Minister Mthuli Ncube has been touting a budget surplus of nearly ZWL500million (R19.6m) as signalling the government’s success in effectively managing fiscal spaces.

“The government is no longer running huge fiscal deficits.

“Inflation or other challenges on the exchange rate are caused by the creation of money,” Guvamatanga said.