The President's Latest Attack on the Press and Free Speech

On February 26, 2020, the president filed a defamation lawsuit against the New York Times in New York state court. The complaint asks for various forms of compensation including "compensatory damages in the millions of dollars, according to proof; presumed damages according to proof; and punitive damages according to proof." The eight page complaint is here.

This is how the complaint describes the defamatory content the NYT alleged in an opinion piece that the NYT published on March 27, 2019:

On or about March 27, 2019, The Times published an article by Max Frankel entitled “The Real Trump-Russia Quid Pro Quo” (the “Defamatory Article”), which claims, among other things, that “There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions. The Trumpites knew about the quid and held out the prospect of the quo.” On information and belief, The Times published the Defamatory Article in The Times’ print and online editions. 

The legal standard was established by the Supreme Court in the 1964 case, New York Times Co. v. Sullivan. The Sullivan decision held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, he or she must (1) prove normal defamation, i.e., publication of a false defamatory statement to a third party, and (2) prove that the statement was made with actual malice. Actual malice requires a proof that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.

Legal experts dismiss the president's lawsuit as nonsense and not close to the legal standard needed for defamation of a public person such as the president. One expert writing for the Washington Post commented:

"On Wednesday, Donald Trump became the first sitting president ever to file a defamation lawsuit against a news organization. The lawsuit against the New York Times is almost certainly dead on arrival in the courts, but it exemplifies the threat the Trump presidency poses to First Amendment values and freedom of the press. 

Frankel cited published news reports about the Trump campaign’s interactions with Russians, including the June 2016 Trump Tower meeting and former national security adviser Michael Flynn’s guilty plea for lying about whether he discussed sanctions relief with the Russian ambassador during the transition. Based on these and other “known facts,” Frankel expressed his view on what he called the “real” deal between the Trump campaign and Russia.  

As the Supreme Court declared in its landmark 1964 decision in New York Times Company v. Sullivan, the First Amendment embodies our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'"

It isn't clear at all to me that this lawsuit is frivolous. The Supreme Court created the Sullivan standard and the Supreme Court can reverse itself in any later case. The reversal can be a 5-4 decision even thought the original Sullivan decision was a unanimous 9-0 vote. All the president needs is five supreme court votes to make Sullivan go away.

If that happens, the president will still need to prove that the NYT was negligent in making a defamatory statement. A defense against such a proof is truth. Thus, if the NYT could try to prove there was an unspoken quid pro quo using the circumstantial evidence available to the public and whatever they could dredge up in discovery if the case goes that far. On his side, the president has plausible deniability, which is a powerful and usually effective shield for liars, white collar criminals and politicians in hot water.

To win here, even if he loses, all the president needs to do is get rid of the Sullivan standard. If that happens, it will go a long way toward muzzling the press. When Trump calls the press the enemy of the people, he means it literally. The president very much wants to shut the press up and have radical right sources like Fox News, Sinclair Broadcasting, Breitbart, Rush Limbaugh and InfoWars established as the new standard bearers of news for the American people.

With any luck, the courts, including the Supreme Court will view this lawsuit as frivolous and toss it out. But given the radical right extremism of the people that GOP presidents, Trump, the old GOP and the current Trump Party senators have put on the Supreme Court, all bets are off. It will take a couple of years for this lawsuit to get to the Supreme Court. Only then will we know if this is frivolous or not.

And, if Ginsberg has to retire or the president is re-elected in 2020, the odds of this being not frivolous goes up significantly.

Coronavirus Update: Looking More Concerning

In an OP I posted last week, I cited statistics from a New York Times article indicating that the death rate from coronavirus infections was about 0.4%, making it about four times more lethal than the flu virus. The same article mentioned earlier estimates that put the death rate at about 2.3% for all of China and about 2.9% for Hubei Province in China. I cited the 0.4% rate because the higher rates were due to Chinese medical facilities being overwhelmed and many mild cases being left uncounted.

With additional data coming in from other countries, it is starting to look like the lethality of the coronavirus maybe be closer to the 2.9% rate for China's Hubei Province. An article today in the NYT indicates that about 87,000 people in 60 countries have been infected and almost 3,000 people have died. If that death rate holds up over time, the virus would have a lethality rate of about 3.4%, making it 34 times more lethal than the flu virus.

The caveat with that possibility is the same as it was for the early infection rates calculated for China: Maybe a lot of mild cases are going undetected and are therefore not counted. If 10 mild infections go undetected for every diagnosed infection, that would reduce the lethality rate to about 0.34%, which is fairly close to the 0.4% rate cited in my OP last week. The US has not had the ability to test many people, so most infections here maybe be going undetected.

Today's NYT article comments on the uncertainty: "The first death from the infection was reported on Saturday: a man who lived near Seattle. A model produced by infectious disease experts hints that the coronavirus may already have infected up to 1,500 people in the area. .... Much remains unknown about the virus, including how many people may have very mild or asymptomatic infections, and whether they can transmit the virus. The precise dimensions of the outbreak are hard to know. .... Scientists don’t know how long the new coronavirus can live on surfaces, and preliminary research suggests that hot and humid environments may not slow down the pathogen’s spread. Warm weather does tend to inhibit influenza and milder coronaviruses. Infected people may be able to pass on the new coronavirus even if they have few obvious symptoms, a study in Germany has found. .... Symptoms of this infection include fever, cough and difficulty breathing or shortness of breath. The illness causes lung lesions and pneumonia. But milder cases may resemble the flu or a bad cold, making detection difficult. .... The best thing you can do to avoid getting infected is to follow the same general guidelines that experts recommend during flu season, because the coronavirus spreads in much the same way. Wash your hands frequently throughout the day. Avoid touching your face, and maintain a distance from anyone who is coughing or sneezing. .... At the moment, the risk of infection with the new coronavirus in the United States “is way too low for the general public to start wearing a face mask,” said Dr. Peter Rabinowitz, co-director of the University of Washington MetaCenter for Pandemic Preparedness and Global Health Security."

Some genetic testing of the virus in Washington State indicates that the virus has been spreading for several weeks without being detected. The point of all that is to point out that there still is uncertainty about infections and the rate of lethality. Over time more data will come in and more testing will be done.

It is not time to panic. All regular people can do is watch this carefully and take advice from real experts, but not Trump or Pence. They are ignorant.

Tyranny of the Minority: Voting in the Primary, or Maybe Not

My candidate Mayor Pete dropped out yesterday, as we all know. I voted for him a week or so ago, but reluctantly predicted I would probably wind up voting for an old white guy. At least that prediction seems to still be on track. Looks like my Mayor Pete vote went down in flames.

A disgruntled primary voter who hasn't voted yet (actual photo of real person)

Once again, the fine people of the states of IA, NH, NV and SC got to eliminate everyone else's choice before their state officially votes. California votes tomorrow, on Dipstick Tuesday, so I almost got to vote for someone still in the race. In essence, those folks led me to vote for a ghost and thus exert zero influence. Guess that teaches me a lesson for voting early.

Anyway, I think I recall an analysis that said each primary vote in IA and NH is worth about 8-10 primary votes in other states. It's a form of tyranny of the minority. Other folks have made the same observation on the minority tyranny phenomenon in recent years. Between (1) various constitutional rots, e.g., in the form of the self-described Grim Reaper, Moscow Mitch McConnell,[1] (2) a recent sharp electoral college tilt in favor of the minority Trump Party, and (3) the IA, NH, NV and SC primaries, there are plenty of reasons to feel like one is being abused by a minority if one doesn't like the way things are going.

Of course, if one likes all of this, it is good times in MAGA!! land. LOCK HER UP!, LOCK HER UP!, LOCK HER UP!

I suppose it is out of bounds to ask for a different order of voting in the primaries, maybe a regional one that lets one of 5 or 6 regions or clusters of states go first on a rotating basis. Or, maybe there could a rotating batch of 3-4 states that go first, e.g., one large population state a middle pop state and 1-2 pipsqueaks. Yeah, I know. The pipsqueaks would howl in protest. Well what the heck. People in all other states are ignored now, so why not a few pipsqueak states after all the decades of IA, NH, NV and SC telling all of us what they want. I do not care what IA, NH, NV and SC want. I care what I want.

One thing for sure, I'll be writing a position paper for my little wannabe third party recommending that the party break completely free from official democratic and republican voting dates and set its primary vote date a few days or maybe a week before the nutty Iowa caucuses.


Footnote:
1. As of a couple of weeks ago, Moscow Mitch had 365 bills the House passed sitting in his in-box waiting to be shredded. Grim Reaper Mitch blithely comments, "We're not going to pass those." Ah, the wonder of politics. Trump and the Trump Party like to refer to the democrats as do nothings. I guess that shredding bills from the House constitutes doing something in the eyes of Trumplandia. We live in strange, constitutionally rotted, hypocrisy- and corruption-tinged times. If things keep going like this, these fine times are likely to morph into a constitutionally crisis-riddled time of the liar-kleptocrat-tyrant. That will make these tyranny of the minority times look like a golden age of freedom and semi-honest governance.

A disgruntled dog, upset at the tyranny of the minority

The Jobs Impact of a $25/Metric Ton Carbon Tax

Researchers at the Georgia Institute of Technology analyzed effects of the Green New Deal’s the US Green Party proposed about 3 years ago. Details of the plan were fed into the U.S. Energy Information Administration’s National Energy Modeling System. They analyzed effects of a $25 and a $60 tax on each metric ton (2204 lbs) of CO2 released into the environment. Among other things, the model projected that CO2 emissions would decrease, and the $25 tax would create more jobs than the $60 tax. This is reported in the March 2020 issue of Scientific American.

Most climate science deniers, the carbon energy sector and anti-government ideologues will probably reject the data as flawed, biased, fabricated or whatever else serves to either make it go away completely or to trivialize it into insignificance.