We often discuss the deafening silence of professors and writers in the face of campaigns to cancel or censor conservative writers. Indeed, many have supported blacklisting and censorship. That disturbing silence is evident this week after Amazon appeared to deplatform Ryan Anderson and his best-selling book, “When Harry Became Sally: Responding to the Transgender Movement.” Now various conservative sites are objecting that a documentary on conservative Justice Clarence Thomas has been reportedly removed from Amazon’s streaming service — a glaring omission during Black History Month. Amazon has not responded to inquiries as to why the Thomas documentary is no longer available, so it is not clear if this was an intentional or negligent act. Given the controversy over the Anderson book, the sudden unavailability has triggered objections.
Below is my column in the Hill on yesterday’s hearing on possible private and public limitations on free speech and the free press, including a letter from Democratic members asking companies why they do not remove Fox News and networks from cable. I recently responded to comments made by Rep. Anna Eshoo in the hearing. However, the letter highlighted the continuing pressure from members on both Big Tech and cable suppliers to silence opposing viewpoints. What was most disappointing was that no Democratic members used the hearing to offer a simple and unifying statement: we oppose efforts to remove Fox News and these other networks from cable programming. Not a single Democratic member made that statement, which (in my view) should be easy for anyone who believes in free speech and the free press. Even though every witness (including one who lost her father to Covid-19) made that statement, no Democratic member was willing to state publicly that they would oppose efforts to remove Fox News from cable access. That silence was also chilling to the point of glacial.
Here is the column:
Seung Min Kim, a White House correspondent for The Washington Post, has found herself under vicious attack this week because she had the temerity to show Republican Sen. Lisa Murkowski (left) a critical tweet from President Joe Biden’s for budget director, Neera Tanden. Kim was seeking a comment from the key senator on whether the tweet criticizing her in personal terms would influence her vote. Kim was then attacked as a “dumb**s snitch” for undermining the nomination of a person of color. Continue reading ““Dumb**s Snitch”: Washington Post Reporter Attacked For Undermining The Nomination Of Neera Tanden”
I testified yesterday on possible private and public limitations on free speech and the free press, including a letter from Democratic members pressing companies to remove Fox News and networks from cable. Democratic members sent the letter to AT&T, Verizon, Roku, Amazon, Apple, Comcast, Charter, DISH, Cox, Altice, Hulu and Google’s parent company, Alphabet. During the hearing, House Democrat Anna Eshoo (D., Cal.) insisted that she was only “asking questions” and then reframed the objections to the letter as whether the letter itself was a violation of the First Amendment. It seemed like the line from “It all meant something. Until it didn’t.”
Given the limited opportunity to respond to Rep. Eshoo in the hearing, I wanted to respond. Continue reading ““It All Meant Something. Until It Didn’t”: A Response To Rep. Anna Eshoo”
I have the honor of testifying this afternoon before the Subcommittee on Communications and Technology of the House Committee on Energy and Commerce. The hearing will address calls for public and private regulation of speech, including the recent letter from Democratic members asking why Fox News and other networks should be allowed on cable news. The hearing entitled “Fanning The Flames: Disinformation and Extremism In The Media” will be held at 12:30. My testimony is below.
The $435 million defamation lawsuit brought against CNN by Devin Nunes (R., CA), has been dismissed but not on a determination of truth or the merits. The decision was based on a technical or procedural omission by Nunes, but the jurisdictional question was an impressive combination of standards in three different jurisdictions. United States District Judge Laura Taylor Swain issued a ruling in New York to apply Virginia’s choice of law standard that in turn applied California’s defamation laws. It was a cascading deconstruction of the lawsuit. Nunes ultimately lost due to a failure to demand a retraction with 20 days and then a failure to properly plead special damages in light of that jurisdictional finding.
The Lincoln Project is facing rising allegations of ignoring sexual harassment claims against co-founder John Weaver, profiteering on donations, and even violating federal law in posting private messages by another co-founder. Now, in an effort to show that it is addressing the Weaver allegations fully and openly, the Project announced that it has retained a law firm to do an independent assessment of the controversy. However, the Project selected Paul Hastings, which has leading members (including a managing partner) who supported the Project financially. The support of lawyers for the Project is particularly troubling given its campaign to harass other lawyers to get them to drop Donald Trump or the Republican party as clients in election challenges. Continue reading “Lincoln Project Scandals Highlight The Role Of Lawyers As Donors”
Below is my column in the Hill on second Trump trial and how core values quickly became the extraneous to the purpose of this constitutional process. The final chaos triggered by Rep. Jaime Raskin (D., Md) only highlighted the procedural and legal irregularities in a trial that seem increasingly detached from values like due process.
Here is the column:
Below is my column in USA Today on the lack of a strategy by the House to secure conviction in the trial of former President Donald Trump. As I have previously noted, the House managers did an excellent job in their presentations and many of the videotapes rekindled the anger that most of us felt over the riot. They also reinforced the view of many (including myself) that former president Donald Trump bears responsibility in the tragedy that unfolded due to his reckless rhetoric. Yet, there was a glaring omission in the substance of the House arguments. The managers did not lay out what the standard should be in convicting a former president for incitement of an insurrection and only briefly touched on proving any “state of mind” needed for such a conviction. That is why I have referred to their case as more emotive than probative. It lacked direct evidence to support the claim that Trump wanted to incite an actual insurrection or rebellion against the United States, as alleged in the article of impeachment. I do not believe that an acquittal was inevitable in this case, but it was all but assured by critical decisions made by the House in this impeachment. The unforced errors discussed below raise the question of whether the Democrats “tanked” the trial.
Here is the column:
The Lincoln Project has had a rough couple of weeks. One of its co-founders, John Weaver, was accused of sexual harassment of young men and the Project attacked him as a sexual predator. As co-founders like George Conway denied any real familiarity or interaction with Weaver, others accused of the Project of turning a blind eye to his conduct. Then one of its other co-founders, Jennifer Horn, resigned in protest only to be attacked by other Project members as allegedly trying to get more money out of the organization. Now, the Lincoln Project is having serious questions raised over its compensation for co-founders and an accounting for tens of millions of dollars that may have gone to them or their own firms. Lincoln famously declared “with malice toward none, with charity for all,” but the Lincoln Project is accused of malice towards many but charity for a few.
It seems that Shakespeare is the rage in the second impeachment trial of President Donald Trump. When House managers were forced to take down the words of House manager Rep. David Cicilline (D., R.I.) after Sen. Mike Lee (R., Utah) denounced them as false, Rep. Jamie Raskin (D., Md) declared “this is much ado about nothing.” Then Sen. Ted Cruz (R., Texas) characterized the entire trial as “reminiscent of Shakespeare [in] that it is full of sound and fury, and yet signifying nothing.” MSNBC anchor Andrea Mitchell, however, missed the Bard memo and triumphantly declared that Cruz was wrong and mocked him with a tweet “@SenTedCruz says #ImpeachmentTrial is like Shakespeare full of sound and fury signifying nothing. No, that’s Faulkner.” She was joined in the effort by the Washington Post’s columnist Jennifer Rubin. In our age of rage, it appears that “Fair is foul, and foul is fair”… and Shakespeare is Faulkner and Faulkner is Shakespeare.
Below is my column in the Hill on how the second Trump impeachment could become a trial over reckless rhetoric in America. The House managers may be playing into that very danger by selecting some managers who have been criticized in the past for their own over-heated political rhetoric. As managers were replaying the comments of former President Donald Trump from prior years to show how his words fueled divisions, critics were pointing to similar statements from the managers themselves. Rep. Jamie Raskin, D-Md., the leading impeachment manager, was chided for using “fight like hell” in a 2019 interview with The Atlantic — the very words replayed repeatedly from Trump. He also used that phrase repeatedly in prior years to ramp up his supporters in fighting for Democratic control of Congress. Speaker Nancy Pelosi blundered by appointing managers like Eric Swalwell who is notorious for his inflammatory rhetoric, in a trial where such rhetoric would be the focus of the managers. Swalwell’s comments not only include disturbing legal claims, but highly personal and offensive remarks like mocking threats against Susan Collins, R-Maine. Swalwell declared “Boo hoo hoo. You’re a senator who police will protect. A sexual assault victim can’t sleep at home tonight because of threats. Where are you sleeping? She’s on her own while you and your @SenateGOP colleagues try to rush her through a hearing.” Pelosi picked not only a member who has viciously attacked Republicans but one of the Republicans most needed by the House in this trial. If this trial boils down to irresponsible political rhetoric, the public could find it difficult to distinguish between the accused, the “prosecutors” and the “jury.” That is the problem with a strategy that seems focused not on proving incitement of an insurrection but some ill-defined form of political negligence.
Here is the column:
We recently discussed how House managers are claiming the right to use Trump’s failure to testify at his trial as proof of guilt (despite the fact that presidents historically have not given such testimony at Senate trials). Now CNN has released (on the day before the start of arguments) an account from an unnamed former “senior aide” that Trump was watching the riot in the Capitol unfold and “loving watching the Capitol mob.” The same pattern emerged in the first Trump trial. It is being described as the “smoking gun” evidence needed to secure conviction. The story highlights the decision of the House not to call witnesses before or after its snap impeachment. The question is why the House would use implication, innuendo, and inference when it could have used direct evidence to seek the conviction of Donald Trump.
Below is my column in The Hill on the news that Donald Trump will not be charged with campaign finance violations linked to payments made to Stormy Daniels. The report (and the start of the Senate trial) raise another question as to why Trump has not been interviewed, let alone charged, with the crime of incitement. Various members and legal experts have claimed that the case for prosecution is clear on its face. The crime occurred in public over a month ago, but there is no indication of a move to prosecute. Why? It is presumably not because prosecutors feel it would be too easy.
Here is the column:
It appears that Marc E. Elias is back. The Perkins Coie lawyer was the focus of stories related to the Steele dossier and the long-denial of the Clinton campaign that it actually funded investigation. Despite such false statements by the campaign before the election, the money was found to have been paid out as a legal expense through Elias as counsel for the campaign. Elias also reportedly was present when this funding was denied to the media and to Congress. The Biden campaign enlisted Elias to lead efforts in election challenges despite that history. He is now making a curious argument in New York for a Democratic lawyer: he is alleging that thousands of votes may have been switched or changed by Dominion voting machines. Continue reading “The Return Of Marc Elias: The Lawyer Implicated In The Clinton Dossier Scandal Is Back In The News”