Frivolous:
My co-blogger David Kopel links to the lawsuit filed by Michael Savage and others over the "Right-Wing Extremism Report" issued by DHS. Isn't the lawsuit frivolous? As I read it, the lawsuit is claiming that the issuance of a government report criticizing certain groups violates the plaintiffs' constitutional rights. But the Constitution doesn't provide a constitutional right to have the government not say things that might be considered criticism. Perhaps the plaintiffs want the Constitution to be radically reinterpreted by activist judges to invent some brand-new constitutional rights?
Related Posts (on one page):
That said, both this report and its predecessor focusing on left wing extremists make the same mistake of focusing upon speech rather than action; both reports make the government look foolish.
G987: If that's what the plaintiffs want, then I think your yet-to-be-found word would be apt.
That's certainly one way to characterize the government's actions. Indeed, that's probably what the government's lawyers will argue. I don't think that view is the true one, though.
The government didn't criticize these groups. The government said, "If you believe certain things, we will investigate you as possible terrorists." That's quite different from "criticism."
You might say my characterization is spin. Yet when the Director of the Department of Homeland Security says something, it's more than just "criticism." I think militia people are nut jobs. My saying so would have quite a different effect from a government official publishing a report saying, "We're watching you."
There's a body of case law under Section 1983 allowing lawsuits to be brought against government conduct that chills protected speech. If the allegation is that the government intended to chill protected activity through its report, then the lawsuit would not be facially frivolous.
That doesn't mean the lawsuit would be meritorious. Yet there is a lot of play in the joints between a frivolous lawsuit and a non-meritorious one.
Exposing two of the plaintiffs to the third may be sanction enough. As for how to punish Michael Savage, where do I start?
Center v. Mendocino County, 192 F.3d 1283, 1300 (9th
Cir. 1999):
Depending on how the lawsuit is framed, it could most certainly not be frivolous. A strong case? I don't think so. But non-frivolous.
Obama's team only picked soldiers who voted for him for the photo op. That's lame but probably within the law.
However, his team gave the soldiers they picked digital cameras to wave around for the photo op, to make it look like all of the soldiers not only loved Obama but were dying to get a picture of him.
A digital camera is a valuable electronic device, worth at least a hundred bucks. Obama is giving special presents to soldiers who say they voted for him, and not to other soldiers. Isn't that illegal? Shouldn't it be?
.
I bet his show is even more vitriolic against Democrats (if that's possible) as a result of the report. How can that be construed as "chill?" It can't.
.
I'd have a hard time arguing Weiner's side of this with a straight face. But I think the DHS deserves all the ridicule and heat it gets for this asinine report.
.
Anybody setting odds for the judge imposing Rule 11 sanctions? I think the plaintiff is going to be stuck with costs, at least. 30% chance of Rule 11 sanctions in my book.
Do you have any case citation or other authority for this belief? Does anyone else?
I've studied this issue in depth for several years. I don't think the case is frivolous. Rather than merely state my opinion, however, I cited some actual authority.
Do you have any legal authority for the proposition that the lawsuit is frivolous? Or even a legal argument?
For purposes of a 12(b)(6) motion, the allegations in the lawsuit must be assumed as true. The Complaint alleges that the United States government is attempting to chill protected speech through its "extremist report."
The lawsuit does not allege that the defendants merely criticized the defendants. It has alleged a formal government policy designed to target people with right-wing viewpoints for disparate treatment; in an effort to chill right-wing thinking and activity.
Those allegations might not be true as a matter of fact. Yet that is not relevant for the current discussion - which asks whether the lawsuit is frivolous.
The Complaint, in my view (and in light of the cases cited, above) is non-frivolous.
If we're using frivolous in the colloquial sense, then I agree that it's frivolous. If we're using frivolous in the legal sense, I disagree.
If others disagree, that would be great. I'd be nice to see some legal authority, though - assuming, of course, we are discussing the legal usage of the word frivolous.
I think it's great that white people (the majority of right-wing extremists) are feeling the effect of racial profiling.
It's all well-and-good to profile based on skin color and belief when the government is keeping an eye on brown [sic] Muslims.
If the right wingers had any consciousness, they'd think, "Hey, this is unfair! Now I understand how members of other races and religions feel! I have empathy!"
Incidentally, in light of Waco and McVeigh, I do think that right-wing extremists should me monitored. It's only fair, right? If white guys with right-wing beliefs blow stuff up, we should profile them. That's what people on the Right have been saying about Muslims for years. So why shouldn't the same standards apply?
Cognitive dissonance is something to behold!
Yes, and Obama even went to all the trouble of making sure that all the cameras would be different, just to fool people.
Indeed,it is incomprehenisble that servicemen and women in uniform fighting a war might actually be happy to see their Commander-in-Chief in person. We know for a fact that not a single one of them voted for Obama, right?
The suit alleges no such discrete acts to speak of.
.
Beyond my conclusory contention that the plaintiff knows there is no "chill" in fact (i.e., he'll be more vocal than ever, and his ratings will improve), no. I haven't analyzed the caselaw seriously, because I'm too busy laughing at the freak show.
.
-- It has alleged a formal government policy designed to target people with right-wing viewpoints for disparate treatment --
.
And that allegation has as much force as Hillary Clinton's claim there is a VRWC. The report does not describe a government policy designed to target people with right-wing viewpoints for disparate treatment. The report is vacuous paranoid pabulum, that misstates the specific cases it cites as example of rightwing violence.
Last I checked there was a split of authority regarding the actual chill requirement for First Amendment speech cases. Was that split resolved? If so, how was it resolved?
I haven't worked on the issue in a couple of years, so I don't know. Last I knew, the view in the Ninth Circuit, at least, was as follows:
I was always surprised by the number of progressive bloggers that were outraged by the Bush administration's treatment of detainees, and seemed to implicitly self-identify as America-hating jihad supporters. And yet they refused to explicitly self-identify that way, and even claimed that describing their behavior with that label was entirely false, even the opposite of the truth, and that using such a label to describe what was in fact laudable conduct was despicable.
That's what they said, anyway.
-Thomas Jefferson
Mike&,
Mcveigh's the obvious token guy. But the lesson of Waco is not that "right-wing extremists" should be monitored, but rather "never offend a large, mannish woman who has access to grenades."
Careful, there. If we were keeping tabs on every white guy who blows stuff up, imagine the file the FBI would have accumulated on Bill Ayers' best friend. That would be awkward.
But you're right, we should have the same standards. The Oklahoma City massacre was comparable in scale to the Marine barracks bombing in Beirut in 1983. I'd say if right-wingers have followed up OKC with an escalating series of attacks like the WTC bombing, the embassy bombings in Africa, the millennium plot, and 9/11, then the President should repeatedly announce that libertarianism is a political philosophy of peace, start regular consultations with the right-wing analog of CAIR (is there an umbrella group for militias?), and start an annual White House celebration on the right-wing analog of Eid (Super Bowl Sunday?)
Of course, if right-wingers haven't followed up with other attacks, your comparison is pretty inapt.
.
Hell, it's a badge of honor to be labeled by Janet Napolitano's DHS. The more people that can credibly claim to be swept in, the more clear it becomes that the report is vacuous crap.
.
I'm surprised at the leftists who think this report represents a good run for their money. Oops, I forgot. Leftists are the "little guys" and don't make enough income to have to pay taxes. So sorry.
It should, and I believe it did. My understanding was that the FBI spent considerable effort surveilling and infiltrating right-wing militia groups post-McVeigh.
The existence of the report shows we're on Napolitano's bad side already.
Which, if you've seen photos, was inevitable.
It's interesting if none of the leftwing groups sued over all those years, but now the right is.
Beyond that, even if there is support for your view that a claim of chilling is sufficient at this stage in some contexts, I don't think a claim of "chilling" is always sufficient. If a person says that they think the government is being run by space aliens, and the space aliens are sending out gamma rays that are having a chilling effect in violation of the 1st Amendment, I gather that the claim can't go forward. Or do you think that is wrong?
I agree. Unlike the dreadful report out of Missouri, which seemed to imply that a Ron Paul sticker was a sign of dangerous tendencies, the DHS report seems to strive for fairness, listing concerns with which rightwing extremists identify without implying that all those who share those concerns are therefore "rightwing extremists". E.g., with respect to what they could have described as "firearms caches" if they had been so inclined:
In other words, to watch for signs of discontent, such as supporting the NRA, opposing centralizing power. Thus, any individual or group expressing these or other listed concerns are, by virtue of the hard work and brain sweat of the federal government's best and brightest, worthy of additional scrutiny.
So the cop pulls a tail light stop (Sir, your taillight bulb is getting pretty dim), because he saw an NRA sticker on the car and then discovers something "interesting". Why? Janet Napolitano told him it was a good idea. Now, most cops wouldn't do that, but if one did, is his defense that Janet told him to going to carry much water?
Naw.
Not until it actually happens.
However, after reading some of the stuff more closely, I have to admit that I am not pleased with some of the language in the DHS docs. At first blush, it certainly does seem clearly capable of chilling protected speech/activities of a reasonable person. This is not my area, so I don't know if an intent to chill is necessary, or merely a reasonableness requirement is in play. But as someone who doesn't wear a Red or Blue had, and never has (and never will) this case is not facially frivolous to me.
That said, I haven't read the actual complaint, and they may have drafted it in a way that it will (and should) be quickly dismissed. But I'm not so sure that the same basic claims couldn't be properly framed.
The DHS docs quoted, cause me some serious concern worth looking a lot harder at them and the people behind them.
Rhodes v. Robinson, 408 F.3d 559 (9th Cir, 2005).
It is quoting Mendocino.
I'd suggest that the evocation of 'fairness' here, together with the initial claim that First Amendment rights are involved, point towards the one-sided way American legal discourse handles an old issue.
Fairness is utterly irrelevant in this context: what's at stake is prudence.
American 'rights talk' seems to assume that issues are either resolved on principle (rights, e.g. from the First Amendment) or are purely political and interpersonal (fair, or not). But as some here and at the original thread point out, DHS, as an agency charged with protecting security, is by its nature empowered to act prudently. Not all right-wing blowhards are potential criminals, not to mention terrorists, but some are. Not all hairy-eyed leftist agitators are potential traitors, but some are. The prudent thing, then, is to look into potential threats and to reflect on their nature, extent, urgency, etc. The report in question may do this well or badly, but writing such a report is clearly a prudent thing to do. OKC did happen, and the fact that no other federal court buildings have been bombed is not relevant to prudently looking into what people like Tim McVeigh are up to -- any more than it would be prudent to stop looking into jihadist terror groups because no more skyscrapers have been destroyed and thousands killed.
But prudence can be defined neither purely on principle -- sometimes it's prudent to ditch your principles -- nor purely politically -- sometimes, it's prudent to do a politically unpopular or unfair thing. That makes prudence slippery to grasp, because it can slide easily into paranoia, as well as towards either of the poles it is suspended between. But that prudence is hard to define does not mean we should abandon the principle.
By the way, nothing I'm saying should be viewed as even remotely insightful; a few hours with Machiavelli, Botero and Lipsius will lay out the contours of the issue with in abundant depth.
A 12(b)(6) motion may well be granted purely on legal grounds; that the legal pleadings make no claim that can be granted under law. Which basically describes this case to a "T" (see claim 3 for the pretty much the sum of the relief sought, none of which can legitimately be granted).
Cheers,
Cheers,
Not a chance. This case won't get past the demurrer stage.
I predict two demurrers sustained with leave to amend followed by a third demurrer sustained without leave to amend.
Savage et al. probably won't even file an appeal. Heck, they probably won't even bother to amend. This is just a stupid publicity stunt.
Center v. Mendocino County, 192 F.3d 1283, 1300 (9th
Cir. 1999)
How I would dearly love to see these fruitcake plaintiffs citing a Ninth Circuit case as their 'authority'-- or defense against a charge of frivolity!
.
I don't see it. The report paints with a wide brush (although it doesn't even name the category "talk radio") so that it can't reasonably be taken as identifying any particular threat.
.
Rather than having the effect of chilling the speech of people who are pro-life, pro-2nd-amendment, pro-immigration-law-enforcement, pro-states-rights, etc., people who hold those political views are going to be more likely to reject the premise of the report. The VA has demanded an apology, because veterans are one group named as contributing to the rightwing extremist cause.
.
Contrast with the case of Judi Bari, Darryl Cherney, and Earth First! in Mendocino, where the FBI provided the press with accusations that these individuals (who made their living giving speeches to environmentalists) were bombers. In the Mendocino case, the government actors sought personal immunity for publicizing the accusation; but there were many facts in issue as to the basis for asserting the named individuals were bombers.
.
I haven't read the Rhodes case, but have a strong belief that it too involves a situation where the government singled somebody out.
.
I've read the DHS report. I fit the profile. I don't think the report "targets" me, because I know that there are probably 150 million similarly-mined people in the US.
.
I think the report is offensive, but as vacuous crap, not as a personal accusation, insult or threat.
Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005)
.
Both have specifically identifiable actors on both sides of the "v." The Savage case has neither. I.e., the report has not targeted Savage, or even talk radio; and the report has not taken any action (in fact, its author is too embarrassed to come forward)
.
Said another way, if Savage has a case, then so do I. And so do millions of others.
So Weiner is laughing all the way to the bank and the liberals can say, "Look at what the crazies on talk radio are doing today."
(And yes, I am disturbed that much of his audience actually thinks Weiner is serious)
If you listen to the ads for his program the target audience is clear: the disgruntled working and lower middle class who are down on their luck. Note the ads for help fighting the IRS, and going into bankruptcy. In a word-- losers. Nevertheless his programs can be entertaining in small doses. He doesn't hesitate to call a spade a spade and his audience likes that. For example he refers to the swarms of illegal aliens coming into the US as "parasites," an apt description we won't hear from most other talk show hosts. But his shameless self promotion in the style of Cassius Clay's "I am the greatest" is hard to take.
Start by ignoring him. He'd rather be waterboarded than ignored.
I see. Somehow I got the idea that some progressives thought the sweeping detention and rendition powers claimed by the Bush administration might pose a threat to them personally. But you're saying that was completely cynical posturing to win elections, and you realized all along there was no such danger? Swell.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007):
Both have specifically identifiable actors on both sides of the "v." The Savage case has neither. I.e., the report has not targeted Savage, or even talk radio; and the report has not taken any action (in fact, its author is too embarrassed to come forward)
Sounds like a good argument for dismissal. That doesn't make the lawsuit itself frivolous.
Again, the case is weak. I would not want the case. I do not think the plaintiffs will win. I doubt they will even get discovery. Is the lawsuit frivolous as a matter of law? That's the issue. It doesn't seem to me that it is.
Certainly state-issued criticism is a means not prohibited by the constitution, and it may be employed toward any legitimate aim to which it is suited, such as providing for the nation's security; but no means are legitimate when employed for illegitimate ends, such as the suppression of specific viewpoints, if, as alleged, speech suppression is actually the true goal of the government criticism and the stated rationale is merely pretense.
That said, is seems far more credible that this government criticism of right-wing view-points is simply the result of incompetence in pursuing a legitimate government end, rather than a concerted effort to illegitimately suppress speech while invoking a fig leaf justification. But that is a factual matter, not a legal matter that implicates the creation of new rights.
To quote the former Chief Justice Rehnquist, "What's your best case for your position?"
Actually, many "progressives" were checking with their lawyers as to whether such rules could be used to their advantage through incarceration of their political foes. See, e.g., The Very "Savage Nation" v. Red-Doper-Diaper-Babies and Mean, Hatchet-Faced Dykes Who Won't Give "Savage" Weiner The Time Of Day.
As for moi, distant cousin of cheese-eating surrender monkeys (likely Norman) that I am, I simply have this quaint idea that locking anyone up without trial or any showing of wrongdoing is simply wrong. But that's just me; YMMV. I can understand why you would attribute your own motivations and fears to me, though. It kind of goes with the territory; a thing called "projection". And selfishness.
Cheers,
It is true that a bare minimum of factual assertion needs to be made in the original complaint. But this factual assertion need not be factual, only asserted. Maybe that's what you're getting at.
Cheers,
So now we are using our governmental departments and agencies as political tools.
Great job there democrats!
This suit may not pass muster but probably for not having standing, (that will be the politically safe way to end it), but it will become more of a political issue for congress as the internet cranks the volume up.
Self-defense is an affront to social order.
Liberty is extremism.
A plaintiff "may not recover merely on the basis of a speculative 'chill' due to generalized and legitimate law enforcement initiatives."
It would be nice to know who authorized going ahead before the civil rights question was resolved and what was the hurry.
Lefties are all about civil rights and afraid of the government.
Not so much, not since Jan 20. Now dissent is destabilizing and demonstrative of potential violence and the government isn't questioned on civil rights.
Surprise.
Cheers,
Cheers,
That doesn't mean I like the lawsuit, and I am still firmly of the opinion that it is a publicity-seeking stunt and a scheme to stir up political action.
Too funny. The political hacks don't change, only outraged lefties.
I imagine a lot more paranoid now that it's come out that the obvious problems with the report were identified by the DHS' internal civil rights division, but it was released anyway.
Cheers,
Suing for your rights.
Soon every extremist in the land
Will be joining with his band
He sues the DHS
For issuing a repor(t)
Mr More, Mr More, Mr More...."
Sorry. Couldn't help myself.
Most of the population of the US is white people. Almost any sort of profiling that isn't explicitly race-based is going to affect a group that's majority white people.
This makes about as much sense as seeing prejudice against welfare mothers and saying "I think it's great that white people (the majority of welfare mothers) are feeling the effect of racial profiling". Or looking at a video of protestors being targeted by police and saying "I think it's great that white people (the majority of protestors) are being harassed by police".
What's your reaction to prejudice which targets Jews, for that matter? Most Jews are white people, you know.
I am a big fan of both Boise and Idaho, but isnt this a little like using the turnout of a gay pride parade in San Francisco or Key West to demonstrate nation-wide support?
Cheers,
Those who assume the right of giving away the reins of government in any case, must be sure that the herd, whom they hand on to the rods and hatchet of the dictator, will lay their necks on the block when they shall nod to them.
-Thomas Jefferson
By the time I got to the end I couldn't figure out who was executing whom. Too many pronouns, Tom!
There were approximately 4000 in Lansing, MI.
I wasn't there, but I did see one (and hear about several others) between 100-500 attendees in the Detroit Metro area.
Mind you, there were two such events within a 15-minute drive of my job, and several others within an hour's drive. Lansing was just outside of the hours-drive distance for me.
Good idea. There were about 262,025, nationally. Given the heavy promotion by Fox, that number is unimpressive. Let us know when you can put that many people in one place. Which is what lots of other causes have done.
And remember, this is a protest that made it really easy to attend, by having one in every major metropolitan area and then some. The attendance is what you'd expect for something that really had no clear goals or issues behind it.
More thoughts here.
(sorry about the premature post above)
Cheers,
.
I find it humorous, but I enjoy ridicule as an art form. This has it in spades, because the "ridiculous" charge can flow well in both directions.
.
As for claiming "victimhood," those who claim it have to act serious and outraged, even if they don't really feel "dissed." The effect on opposition is lost otherwise.
Media coverage then nods their approval or disapproval of the content.
It's slightly suspicious that the "right-wing" version was released around Tax Day when Tea Party protests were being held and covered by the Media. Some, like CNN/Paul Begalaclaimed that TAX Day (April 15) was Patriots Day (April 20). Up is down and right is wrong will soon follow.
btw, PJTV estimated 551,000 attendees (with more reports to come adding to that number) - not a huge number by any means ...
and the largest one that I know of was in Atlanta @ ~ 10 - 15 thousand.
"For every Boise, I'll raise you a Tampa/San Diego (500 people each), a Philadelphia (200 people), or a Baltimore/Buffalo (150 people each)."
San Diego County had 6 or 7 tea parties going on. The smallest, out in Ramona, had about 200 people. There were easily 1,000 people at the Lexington Post Office in El Cajon, and most of the others were substantially larger.
I'd bet more than 10,000 people showed up across the county that day. Of course, most of them came after they got off work, so early reports were not predictive of eventual turnout.
it's advice to LEO's to watch themselves.
most LEO's i know support the NRA and oppose centralizing power.
including yours truly.
Maybe we should start calling Ms. Napolitano "Tailgunner Jan."
You started this thread by stating that this complaint was so patently frivolous that it clearly demonstrated that Savage, et al., were hypocritically demanding that activist judges invent new Constitutional rights. When pushed by people quoting cases, you retreated to something like "a claim of 'chilling' is [not] always sufficient," which seems several degrees removed from "obviously frivolous." Now you're Justice Rehnquist asking people to demonstrate to you why it's not frivolous, while you haven't yet explained why it is.
Putting this in the light most favorable to the plaintiffs, the claim seems to be that (a) Administration political officials are deliberately enlisting law enforcement agencies to specially monitor political groups that oppose Administration policy (a la Richard Nixon), while (b) letting the groups and everyone else know that they are being targeted as potential dangers to the state (via public release of the document), and that (c) this is being done specifically to try to silence critics of the Administration. Is this kind of activity so patently lawful that a complaint about it is frivolous? Would courts really have to invent entirely new rights under the Constitution to restrain this sort of thing?
I'm not a Con Law type, so I realize you may well be correct. But I'd really be interested in having you explain why using law enforcement to target political opponents, while publicly announcing that they are being targeted as potential dangers to the State, done for the specific purpose of shutting them up, is so obviously lawful that only a publicity-seeking hypocrite could possibly bring a complaint.
to which Orin responded:
Okay, Orin, so maybe the time has passed where you are paying enough attention to this thread to notice this and respond, but since you've responded to my queries before, I shall ask:
What do you mean? Is this some joke that I am not getting?
I thought I made a pretty simple case for my position in my original post. Is there something terribly novel about my assertions either 1) that government actions can be unlawful either because they employ prohibited means or because they pursue illegitimate ends, or 2) that seeking to suppress specific viewpoints based only on their content, and not their consequences, is not a legitimate end? Or is my legal understanding fine, but it is somehow self-evident that the facts which must be alleged for these legal theories to be relevant cannot be true?
Or do you mean your Rehnquist quote to imply that by the inquisitive-phrasing of my post I am asking you to provide your best case for your position without having given real reason that it be necessary to do so? If that's the case, my response is that you are a law professor, with greater knowledge of and experience with the law than most of the people here, including me, and this case obviously caused you to form an opinion strong enough to cause you to post about it, but you didn't provide much in the way of your thought process to us, so as someone who doesn't immediately see things your way, I am obviously curious to know what your thought process is. It isn't a challenge calling you to defend yourself, it is genuine curiosity.
Is your issue here just that there is no clear precedent dictating the result the plaintiff desires, and you are suspicious of reasoning for first principles?
Jim47,
Your arguments were expressed at such a high level of generality that it was hard to know what you were saying. Legal cases are not decided at extremely high levels of generality: They are conclusions from facts based on cases and text. I want to know what cases you are relying on. It wasn't a joke: I just want you to back up your claims. If you have no cases, and are just hypothesizing that maybe there are some cases although you do not know of any, then just say so.
Thanks for responding, I think I now better understand what you were saying. I was unfamiliar with the context of Rehnquist's quote and seem to have misinterpreted it.
To be clear about my position:
I can cite no case. I am not familiar with the caselaw, so I do not know whether any exist. Were I to guess, I would guess there is none.
I am not sure how a lack of caselaw is dispositive, however. Neither first impression nor novel argument, even argument explicitly contrary to current caselaw, renders a suit frivolous so long as the arguments made are reasonable.
It seems to me that with no suspect class and no constitutional right directly imputed, the plaintiffs must ask for mere rational basis review, and in order to negate the myriad well-known rationales that the government could supply for its actions, plaintiffs are alleging rather specific facts about malice in the purpose and execution of the DHS report, attempting essentially to say they know DHS's actual rationale with such certainty that no other rationale could possibly explain its behavior. I suspect these allegations will not turn out to be true, but without actual inquiry neither you nor I have any way of fully evaluating them. Provided plaintiffs succeed in showing their factual claims and giving bite to rational basis, I suspect only very limited options for remedy remain, perhaps as little as DHS ceasing official distribution of the report to other agencies and municipalities in unaltered form.
So do I think they'll win? No; and if that's all you meant by the word frivolous, then we agree. Do I think the case is crazy, stupid, unreasonable or in some other way completely lacking any merit whatsoever? Also, no; and if that is what you meant, then we are in a disagreement that I suspect I lack the specific knowledge to debate further.
I hope, however, that you can at least see my major point, which I began with: that it is possible to defend the suit in good faith without resorting to "a radical reinterpret[ation] ... invent[ing] some brand-new constitutional rights" which you and I both agree would not be meritorious.
1). Defendant advertised auto for sale.
2). Plaintiff sent a letter offering stated price.
3). Defendant accepted in writing.
4). Plaintiff sent check for contract amount.
5). Defendant sold auto to someone else, and refused to deliver either car or money.
6). etc.
...
21). Under contract law, a contract was entered into, and plaintiff is entitled to performance.
22). Plainitiff seeks return of payment and damages for loss of time and the additional cost to acquire a similar car.
23). These damages are justified under contract law [citing appropriate legal authority]...
You can't just say "I've been injured" and leave it up to the other party to figure out exactly how, in what way, and on what factual basis. Citing a law doesn't do that; you have to say what happened with at least some specificity (enough for the defendants to respond) and what law or legal theory affords you a basis for relief. This the plaintiffs didn't do.
A further problem is that 'relief' that is sought is not relief that the courts have the power to grant. It would be like someone filing suit and demanding that the court declare that Michael Weiner is an obnoxious azo. What is asked for (see claim 3) is simply not the court's job.
Cheers,
Cheers,
Bottom line- I am offended by the very existence of the report. I did read it - as well should everybody in the USA. I fit into many of the "categories" and hardly consider myself a risk - yet the American government has told me - in black and white - that I am.
Savage did sue CAIR and the end result was that CAIR had to pay court costs. Recent info has questioned CAIR's participation in dangerous activities. I do read their daily report since I RSS'd them.
If Savage did not sue them, then we might not have been having such an extended conversation about this report - a blot on our freedom. You can follow Alinsky's Rules for Radicals #5 Ridicule the messenger so as to neutralize the message but I think it important that the report was brought to our attention. I've asked friends about it and they haven't a clue since our main stream media works so hard to keep us all ignorant and uninformed.
You are implying that CAIR had to pay Savage's costs. But that's not true. Here's what happened: Savage sued CAIR. The judge dismissed it. Then CAIR claimed that Savage should pay CAIR's costs. The judge ruled that CAIR had to pay their own court costs. See here:
Savage's suit was dismissed, so you shouldn't pretend it amounted to some kind of victory.
You mean like the way Rush ridicules Barney Franks' lisp? Or Hillary's laugh ("cackle")? Or Waxman's nose?
I had no idea Rush was a student of Alinsky.
I think it ironic that you don't realize that "Rush and his boys are doing what Gene Debs and his comrades never really could. In tandem with Wall Street, they are building socialism in America." When people like you condemn socialism, you make it look good.
You first wrote,
Now you say,
Sorry I misunderstood you. Perhaps you're just arguing that they're opportunistic and intellectually dishonest, not hypocritical and publicity-seeking. Otherwise I have no idea why you'd put that "radically reinterpreted by activist judges" swipe in there.
Back when I practiced law, we couldn't get away on a 12(b)(6) motion by saying flatly, "It's frivolous." In those days the defendant had the burden of showing why there was no possible set of facts the plaintiff could prove, consistent with the complaint, that would entitle it to the relief sought. It's apparent that in your expert opinion, under current Constitutional law, such government actions, even if entered into with the sole purpose of trying to suppress speech of political opponents and veterans, cannot create liability. As a lawyer who doesn't specialize in Con Law and isn't privy to your mental processes, though, I'd want to have that assertion explained to me before I tossed the complaint. I'm not arguing that it's not frivolous. But in light of some of the comments here, I just don't understand why you think it is.
Thanks for the explanation. My Civ Pro is a little rusty, especially regarding how to plead a contract claim. Reading the complaint in the light most favorable to the plaintiffs, it alleges an Administration conspiracy (if I were drafting the complaint I would have specifically used that word, but I do think it's legitimate to read that into the complaint on the facts stated) to suppress speech of opponents targeted for their political (I would have added "religious") beliefs and their status as veterans. It alleges some specfic facts in support of that allegation. This isn't a fraud claim; notice of the acts complained of is enough. If Obama, Napolitano, and the report's authors all get on the stand and admit that this whole thing was a deliberate attempt to damage the reputation and interfere with the free speech rights of Administration opponents and veterans, would the court nevertheless have to dismiss? Unless the answer to that is "yes," I don't think a 12(b)(6) motion won't lie. Orin seems to think that the answer is "yes." That may be true.
You also refer to remedies and harm. As to the first, the plaintiffs are asking for a declaration that a specific practice, what it calls "The Right Wing Extremism Policy," is unlawful and they are seeking an injunction against it. I don't see how that's the equivalent of someone asking for a declaration that Savage is obnoxious. (Though the court might take judicial notice of that fact.) It seems to me much more like asking a court to declare that the U.S. Border Patrol has no right to target Hispanic-looking entrants for extra surveillance and asking for an injunction against that practice. (Yes, I understand that Hispanics may be a protected class and anti-abortion veterans may not, but that's not relevant to the remedy question, is it?)
As to harm suffered, do I really have no remedy against a government that deliberately uses otherwise legitimate government activities to deliberately silence me, unless I show that I was, in fact, silenced? How can I possibly show that I'm silenced if the only way I can get a remedy is to file a public complaint, which in itself shows I'm not silenced? Did the New York Times have to prove that libel laws had in fact silenced it? Wasn't the chill enough?
IOW, if, say, Obama's vaguely-described civil forces, funded as well as the military, become as intrusive and repressive and arbitrary as they have the potential to become, the resistance they might find would in fact come from the folks named in this report.
"Good idea. There were about 262,025, nationally. Given the heavy promotion by Fox, that number is unimpressive. Let us know when you can put that many people in one place. Which is what lots of other causes have done..."
Wow-- 262,025 and not 262,026. I should think you would be embarrassed to post a number with obvious spurious precision. Going to the link, we find that Nate Silver simply did a tally of the estimates from news sources. He was careful to state that when crowds get a above a few dozen, size estimates become very difficult. We have no idea of the accuracy of estimates or whether the sources were biased or even if the tally is comprehensive. Without a range it's hard to take the estimate seriously. I suspect the real turnout is somewhere between 100,000 and 1,000,000.
As to whether this is "impressive" is subject to judgment and context. White middle class people are not inclined to demonstrate as opposed to Hispanics who love to get out and wave the Mexican flag. The liberals are extremely practiced at the demonstration business having been at it in American for more than 40 years. So for a first attempt, the tea parties outcome might not be so bad-- it all depends on the follow up.
You're right. I despise courage. But how did you know I live for zuch's orgasms? (Andrew Sullivan's I could care less about.)
I should think you would be embarrassed to suggest that I was suggesting the number had great precision. Especially because I said "about." I was simply citing the number posted by Silver, and I was using his exact number to emphasize that I was getting the number from him.
I have a feeling that most of the people forming very large crowds at Obama events were "white middle class." Likewise for the crowds at various large anti-war protests since 2003.
Annual NASCAR attendance is roughly 6 million. Many events attract 100,000 people, and some events attract triple that amount. So non-liberals are perfectly capable of gathering in large groups, if they can think of a good reason to do so.
Hitler was a white man. Almost all Republicans are also white men. Therefore almost all Repubicans are little Hitlers.
Try again, and do try to make some sense this time around.I think it "ironic" ... or some such thing ... that RWers think the Constitution prohibits socialism ... and think that (alleged) socialists are more determined to "destroy" the Constitution than ... say, the Dubya maladministration that pissed all over to start wars of aggression and then ignored the laws of the land in spying on everyone and locking up people with out the least smidgen of due process.
Cheers,
No sense asking for an explanation, is there?
Especially because I said "about."
Generally when one says "about" the number following does not have a lot of significant digits, and in this case "about" does not do justice to the extreme inaccuracy of the number stated. It's really deceptive to state it as you did. The more appropriate term would be "order of magnitude."
I have a feeling that most of the people forming very large crowds at Obama events were "white middle class."
A feeling is not enough. Let's remember that the whites are now less than 2/3 of the American population. You're just guessing.
"Annual NASCAR attendance is roughly 6 million."
Not an appropriate comparison. Stock car races started in the 1920s and have been around a long time to accumulate an audience. NASCAR is heavily promoted. In contrast "tea parties" are just getting started, and except for Fox News faced a hostile press anxious to downplay the event. At this point we don't know what the future will bring. But I suspect as more and more people realize what is happening in economic crisis you will see more and bigger events with a similar theme.
Listen to this interview with Robert K. Black and the "Young Turks." Black worked to elect Obama. Black was major player in the Savings and Loan cleanup. He predicts the banking crisis will destroy the Obama presidency. He places just as much blame on Bush and Paulson, but makes it clear that the current guys are every bit as bad. If you want something longer and more detailed then read this transcript of a Moyers interview with Black. Blacks comments and analysis are devastating. The whole thing is the result of a big fraud for the benefit of very few people, and the fraud is continuing. BTW Stiglitz, also a liberal, and an adviser to Clinton, say the same thing only more diplomatically. Obama will be lucky not to get impeached and removed from office. Bush and Paulson will be lucky to stay out of jail. This transcends politics. Look for millions to turn out for tea parties when the public realizes what is happening to them.
Cheers,
Cheers,
Cheers,
Cheers,
In this case, the number had a lot of significant digits because Silver was adding individual tallies, and making a point of not altering those tallies. He was being faithful to those tallies, and I was being faithful to his sum of those tallies. A reader who has a hard time grasping this should be reading The Pet Goat, not VC threads.
Boise, Idaho is 92% white, with a population of about 186,000. Obama drew a crowd of 14,000 (that crowd is more than five times bigger than the tea party rally in Boise). Feel free to believe that this means all the colored people showed up for Obama and all the white people stayed home.
By the way, you said this:
Was that "a feeling," or "just guessing," or something else? Because "a feeling is not enough."
Fox ran 73 tea party promos in 8 days. I think that qualifies as "heavily promoted." By the way, NASCAR charges admission. The tea parties were free.
Look for Fox (and every other major backer) to drop the tea parties like a hot potato if they ever take the form of pointing a finger at anyone other than Obama (and Democrats). That is, if they truly take an approach that "transcends politics."
"In this case, the number had a lot of significant digits because Silver was adding individual tallies,..."
I know that. But your statement was which is not correct on its face. One must drill down into your link to see that it's only a very crude estimate. Normally when one says that "x is approximately y," this means |(x - y)/x| < 0.1. The proper way to write that sentence is "Nate Silver reports a tally of news sources at 262,052." The reader should not have to drill down to the reference to correct the statement. The statement should stand on it own. What you wrote is deceptive.
"Boise, Idaho is 92% white, with a population of about 186,000. Obama drew a crowd of 14,000 (that crowd is more than five times bigger than the tea party rally in Boise)."
That rally was held on February 2, 2008 which was a Saturday. The tea party was held on a Wednesday when most people are working or in school. Again the 14,000 is a news estimate, but a better one since the rally was held in a stadium. But this was a staged political event backed up by a well funded campaign. We don't know how many were recruited. Besides the rally was part of a presidential campaign where public interest is already high. The comparison is not valid.
"Fox ran 73 tea party promos in 8 days."
That number come from Media Matters, a highly biased source. MM is run by David Brock who has confessed to writing lies and slanders. MM is backed by various Democrat operatives like John Podesta. When asked if George Soros backed them a spokesman said: "Media Matters for America has never received funding directly from George Soros" The word directly is a dead giveaway.
In any case NASCAR events are not held on working days to my knowledge.
"Look for Fox (and every other major backer) to drop the tea parties like a hot potato if they ever take the form of pointing a finger at anyone other than Obama (and Democrats)."
I don't believe that. Did you listen to or read the links I provided? They will all go down so hard it will be a major news event that everyone will cover. Besides Bush is out of the picture. But the tea parties did point fingers at Republicans. How much I don't know, but neither do you.
It takes only minimal mental acuity to realize that virtually all reports of crowd size at rallies are "only a very crude estimate." And we're talking about 300 separate events here. It takes a similarly minimal level of mental acuity to realize that an aggregate assessment of the combined crowd size at 300 separate events is also inevitably "only a very crude estimate."
Anyone so dull that they need special assistance to grasp this has no business reading VC threads, or operating dangerous equipment like a computer. They should be playing with blocks.
Really? That's how the word "approximately" is defined? By what authority other than you?
The way you wrote that sentence is not the proper way to write that sentence, because there is no such thing as one proper way to write a sentence. And it's notably inferior to this way of writing the sentence:
There is obviously never just one "proper" way to write any sentence. By saying "the proper way," you are implying that there is. Why aren't you writing properly? Why are you being deceptive?
The tea party was held at lunchtime. People in Boise don't eat lunch?
The tea party was a staged political event backed by major promotion via Fox News and other channels.
Thanks for this nice example of hiding behind an ad hominem argument:
Can you show a single example of them publishing something false and failing to correct it? I didn't think so.
They provide detailed information documenting Fox's backing of the rallies, here, here and here. Are you in a position to disprove any of the data provided? I didn't think so.
So what? Is that your way of saying the tea parties would have drawn more people if they had been held on a weekend? Then why weren't they held on a weekend? And if they had been held on a weekend, you would have said the turnout was low because people don't want to sacrifice their leisure time for a rally.
Really? Do you have any proof? What's that based on? A feeling? "A feeling is not enough."
And speaking of feelings, I'm still waiting for you to explain why you said this:
Really? Do you have any proof? What's that based on? A feeling? "A feeling is not enough."
Actually, a feeling is perfectly sufficient.
If I were to notice something happening, or not happening, and speculate as to the reason, look around actively and see more of the same and fewer alternative reasons, repeat a bit more, I'd have a feeling about it which would be fine for me.
If I were trying to convince anybody else, my feeling would not be a datum.
But I'm not.
But my question to those on this thread who are serious about the non-frivolous nature of this action is this:
What is the remedy? How can the bruised egos of these righteous patriots that call for the extermination of large portions of our citizens ever be repaired after such a dastardly body blow delivered by the report.
Free counseling (how socialistic)?
And this is even a subject for debate? Socrates is rolling in his grave at the inability of those who are supposed to be searching for the truth to separate the important ideas from drivel.
Suppose that some of the folks in the named categories are getting hassled by the cops.
Would this report be a defense for the cops?
From West’s Business and Commercial Litigation in the Federal Courts § 6.7(a):
[Emphasis added.] We obviously disagree on whether it's specific enough, but it's sufficient for me.
As to the question, "How are the requirements for a fraud claim any different from any other civil claim?" The answer is that most claims can be pleaded in the most general terms, but fraud requires that the specific fraudulent acts and statements be pleaded with specificity. See FRCP 9(a).
As to the argument:
I respectfully submit that you read the complaint. It does not use the phrase in the sense of some general idea (like, say, "Obama's domestic policy," but in the sense of a deliberate course of action (like, says, an "Apartheid Policy") that resulted in a specific act, the release of the report complained of.
In any event, a claim that something is an "hallucination" is a claim that there is no factual basis for the belief, which is not For example, if I file a lawsuit saying that Jessica Simpson broke into my house and sexually assaulted me, I may be hallucinating. But that's a factual question, not an argument under 12(b)(6).
We're thrilled that you've decided to offer your opinion in this regard, but I wasn't addressing you. I was addressing zarkov. He said "a feeling is not enough." Actually, what I think he meant to say was 'my feelings are enough but yours aren't.'
Anyway, I'll be happy to watch while the two of your work out your differences on this key point.
I wonder where you "got" that "impression." Is that something that happened while you were reading this thread? You must be getting the special unredacted version of the thread, where zark can be found "explaining why he thought" this:
The version of this thread that pops up on my computer contains no such explanation. Rather, it seems that he was just making an assertion based on a feeling. Which is odd, because he also said "a feeling is not enough." But what he obviously meant was that my feelings aren't enough, even though his are.
I realize that your concept of "convince" is to present your speculations as if they were proven facts, despite being completely unencumbered by any reference to actual facts (example). Thinking that you would be taken seriously while doing so would, indeed, be "foolish."
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.