There’s Much to Discover in Latest Lawsuit

Papers and newscasts mentioned that former President Donald Trump filed class action lawsuits Wednesday against Facebook, Twitter and Google over their suspensions of his accounts.

Three thoughts immediately came to mind; one in particular persists.

Thought #1: The First Amendment

The first, the suit’s lack of merit, has been mentioned widely elsewhere, citing various experts. As Paul Barrett, deputy director of NYU’s Center for Business and Human Rights was quoted in the Washington Post, Trump has the First Amendment “exactly wrong”. Facebook and Twitter have a First Amendment right to “determine which speech their platforms project and amplify – and that includes excluding speakers who incite violence…”

Indeed, the interesting question is whether, as many argue, such platforms have a duty to exclude such speech as crossing the line from speech into harmful conduct.

Thought #2: Irony

This was an offshoot of the first: the obvious irony of this purported conservative beseeching the Judicial Branch of the Federal Government to tell private companies how to run their businesses. (They must provide him accounts?) At least these defendants are large, powerful entities that can take care of themselves, compared to the countless individuals and small businesses ruined by dealings with him over decades.

As pointed out in prior posts, the Donald is “conservative” only when – and to the extent – it serves his immediate, personal interests. Any notion of his being a champion of the First Amendment is simply laughable.

Thought #3: Imagine the Discovery

But, most of all, the overriding thought was: Oh, how I would love to do discovery in defending these lawsuits! Lawyers for the defendants must be salivating at the prospect. They, along with prosecutors and investigators waiting in the wings, might almost hope the cases aren’t summarily tossed like the 60+ frivolous election cases. After all, this could be fun.

A Little Background

Before they go to trial, parties in legal cases both reveal and seek information reasonably available about the case they’re in. That applies to both the facts and legal arguments. The process for doing so is called “discovery”. Robust discovery is encouraged and often required.

It’s good for TV and movies to have last-minute “OMG!” surprises at trial. (Hey there, fans of Perry Mason.) It’s good public policy, however, to have parties better understand their opponents’ cases – and their own – earlier. Among the advantages of clarifying legal and factual issues up front are increasing the chances of (a) settling the case and (b) having a focused trial result in justice when the suit can’t settle.

Important point: We value discovery so highly that its scope is very broad. Generally, you don’t have to prove information would be admissible at trial in order to obtain it in discovery, for example.

Typically, all three methods of pre-trial discovery are under oath: interrogatories – where parties answer each other’s sets of questions; depositions – where witnesses testify; and (my favorite) requests for admissions – where parties must either admit or deny assertions made by the other party.

So…

It follows that anything arguably relevant is fair game for development via discovery. There are some very interesting items of relevance to the suspending of these accounts, given the events of January 6. Surrounding, but not necessarily limited to, January 6.

An obvious defense – perhaps the obvious defense – available in these lawsuits is that the plaintiff and his followers were misusing the defendants’ platforms to engage in dangerous, criminal, even seditious, conduct. The insurrection, horrendous in itself, is also both culmination of prior activity and precursor to future threats. (What exactly is to happen, by the way, when DT is NOT restored to the presidency in August?)

So, prepare those interrogatories, draft requests for admissions, and by all means schedule multiple depositions. And remind everyone that perjury is still a crime worth prosecuting.

Why’d He Do It?

This plaintiff has employed diversionary tactics often in the past. When something negative is brewing, outrageous statements and actions meant to distract are automatic. With various state and federal prosecutors poring over records, the organization being indicted, and Rudy Giuliani’s law license being suspended in New York, the seriously negative is just beginning to percolate. Perhaps he thought a pre-emptive strike in which he portrays himself as a victim might help.

On the other hand, maybe he just wanted his bullhorn back. He isn’t the lead story much anymore. It’s awful.

Finally, it may just be his latest fund raising scam.

Regardless, he may have been better off this time staying away from courtrooms and litigation. He’s going to be seeing more of each than he’d like, some on the criminal side, soon enough.

Ken Bossong

© 2021 Kenneth J. Bossong

March 11, and Since (We Abide)

Emerging With Perspective and Resolve

Reflection seems a natural reaction to the process of emerging, however fitfully, from the pandemic. Two areas of reflection persist because they produce sheer wonder – the appalling and the cherished. The first shouldn’t matter, but unfortunately does; the second is what matters most, but can be elusive.

I thought closing the country was a bit of an over-reaction to my 68th birthday. It is fair to say, though, that no one will ever forget my 69th year. I certainly won’t.

Yes, the country shut down on March 11, 2020. That’s the date the NBA halted operations – in at least one instance, in the middle of a game. When billionaire owners tell millionaire employees (players) to stop generating income, the response is “Whoa! This has to be serious.” In that sense, the NBA did us all a favor.

What a Year!

As crazy as the last few years leading up to my 68th birthday were, I still did not foresee some of what I saw, heard, and experienced between then and my 69th this past March 11. Among the dozens of things I may never get over are these sentiments, in no particular order, some COVID-related and some not, whether actually articulated or inherent in behavior:

COVID-19 is just another flu, if it exists at all.

I don’t care what anyone says; I’m going to do whatever I want, however I want, whenever I want. The whole thing is a hoax and an excuse to take away our freedoms. I won’t keep my distance and it’s un-American to wear a mask.

Hang Mike Pence!

[At times when infection rates and deaths were down] Distancing, delaying large gatherings, and mask wearing seem to be working. Let’s stop doing them.

The election was stolen.

COVID doesn’t worry me at all – but the vaccine, now that scares the hell out of me.

Black lives matter?! How dare you!

The “Chinese virus”, etc.

Wait. What?

Let’s pause for a moment on that last one. Isn’t “Kung flu” just a lame attempt at humor? Wish it were so, but the problem is where racist tropes inevitably lead. (And, by the way, we all know where they lead. As is well documented, it’s nothing new.) Consider: Because COVID 19 is believed (but not definitively known, mind you) to have originated in Wuhan, China, neighbors of Asian descent – any Asian descent – deserve to be not just vilified but physically attacked, even murdered? Yeah, it’s a shame people just can’t take a joke when they’re pummeled senseless, or bleeding out in the street or the ER.

Meanwhile, for all the attackers know, the attackees’ families have been making positive contributions to America far longer than their own families have even been here.

The big picture is a seemingly insatiable need for Us vs. Them (see post of 2/19/19). Any excuse to divide people will do. But no divider works as well as race.

When the UK variant was established as the most contagious and the most deadly strain, did random, vicious attacks start on people of Anglo descent? (“Are you Geoffrey Smythe?” “Yes I am. Why?” POW!)

Then There’s the Scope and Scale of It All

It’s bad enough to contemplate the sheer idiocy of what some believe. I’ve always consoled myself with the thought that the truly crazy, or genuinely evil, stuff is confined to relatively small lunatic fringes. The worst part of my 69th year – what I really can’t get over – is the dawning realization that I’ve been deluding myself.

The stunning, undeniable truth is that various groupings of millions of people believe all of the above, and more. No matter how far-fetched the story, how despicable the lie, or how obvious the falsehood, millions are willing, indeed eager, to embrace it.

The tossing aside of common sense, basic principles and core values this readily and on this scale reveals something ugly and leaves us in dangerous territory. It’s not a majority of us, but it is well beyond satirically amusing. What are people lacking in their lives? Do they need a twenty-first century “Il Duce” to tell them what to think and feel? To create, and then “solve” their problems?

Harmful lunacy wasn’t confined to the year between my birthdays, of course. Recently, an Ohio physician testified to the effect that (a) people receiving vaccine shots have been “magnetized”; (b) “there is some sort of interface…between what’s being injected and all of the 5G towers”; and (c) the vaccines have caused thousands of deaths. Rather than suggesting the doctor get the help she needs and apologizing for the hearing, an Ohio state representative gushingly thanked this Dr. Tenpenny for such expert testimony before the Ohio House Health Committee.

And Yet, Even Amid Infuriating Insanity…

I abide. We abide, as does the precious legacy of everyone we’ve lost. And we have all lost people who matter a lot. (It hasn’t all been COVID, of course. The pandemic did not supplant the normal hazards and perils of life; it piled on. Heart disease, cancer, mental illness, and accidents did not get the memo that only coronavirus could take our loved ones.)

Amid the heartbreak and pain of loss, it dawns on us: the more the person lost meant to us, the more we miss them – and the luckier we were to have had them in the first place. This is one of the inevitable, inescapable ironies of life. It may not be that the good always die young, but they do always die too young.

Perspective

A card from a good friend this year included a reprint of “For Your Birthday” by John O’Donohue. While recommended in its entirety, these lines particularly resonate:

Praised be your father and mother,
Who loved you before you were,
And trusted to call you here
With no idea who you would be.

Blessed be those who have loved you
Into becoming who you were meant to be,
Blessed be those who have crossed your life
With dark gifts of hurt and loss
That have helped to school your mind
In the art of disappointment.

When desolation surrounded you,
Blessed be those who looked for you
And found you, their kind hands
Urgent to open a blue window
In the grey wall formed around you.

Blessed be the gifts you never notice…

Consider how we love a great view. It’s as humbling as it is thrilling to gaze out upon an ocean, the Grand Canyon, a snow-capped mountain, or a shimmering lake. Awe at such beauty, the forces of nature, and the scope of it all provides the gift of perspective. We are but a speck in the world; our earth a speck in the galaxy; and our galaxy a speck in the universe. Inflated self-importance quickly fades in that context.

Then consider: Empathy, selflessness, courage, understanding, relentless effort despite adversity, a kind word or gesture – to experience these is to have one’s breath taken away as surely as by the most spectacular view. These too provide perspective – of our true significance. To care, to serve, to cherish, to love and be loved: this is to matter, to be truly human.

In this crazy year-plus, the goodness within us also surged to the surface in countless examples large and small.

Happy Birthday, Baby

Yes, we abide, but we’ve been pounded with constant reminders of our frailty and mortality. The impossible-to-comprehend number of atoms that comprise our body, along with whatever the “stuff” that forms our mind, character, conscience and soul, remain magically intertwined. It’s hard not to notice, though, that a fair amount of the hodge-podge called me doesn’t work quite as efficiently or crisply as it once did. A quick, mundane story illustrates.

Not long ago I was shooting baskets on an outdoor neighborhood court I hadn’t used before. Apparently someone had installed new nets that were still tight. After a shot actually went in, the ball got caught in the bottom of the net. Unbelievably, two or three jumps to retrieve the ball were unsuccessful. Understand that the ball was caught not between the rim and the backboard, but in the bottom of the net. Ruefully recalling a time when I could grab the rim any time I pleased, I fetched a stick. I’d love to tell you it was a short stick.

Looking Back, Assessing, Resolving, Pursuing

On March 14, 2020, three days after the country shut down on my 68th birthday, I published the post “Opening Up While Shutting Down”. So, did I take my own advice and use the time afforded by the shut down for introspection and self-improvement? Well, [clearing my throat] – let’s call it a mixed bag.

One of my frustrating quirks/faults is inefficiency with time, ironically enough. I underestimate the time required to do things, I lavish time on items unworthy of the attention, and so forth. (This is where anyone knowing me gets to smirk at the understatement employed here.) I am too slow doing things, like publishing posts.

Thinking about wonderful people gone too young and too soon, though, it’s finally occurring to me: I have a hell of a nerve. As one blessed to still be here and capable of doing some good, I owe it to them and to myself to do the best I can with what I can control, in whatever time is allotted me. We’ll see how that goes.

One of my favorite law professors, David J. K. Granfield, O.S.B., liked to say that every person has a dignity and a destiny. His point was that the Rule of Law, wisely used, both recognizes such dignity and fosters each person’s quest to fulfill their destiny. His wisdom applies to not just how we govern ourselves, but how we live.

Yes there are lies to confront, but while we’re at it, there are truth and beauty to embrace. The trick is not merely to survive the year in question. The trick’s in remaining truly alive. Genuine thriving is in the striving, even after mistakes. Especially after mistakes, lapses and failings.

If I have any sense at all, I will take none of the good for granted, seek chances to contribute, and resist temptations to do harm. Love and be grateful to be loved – by all I’ve been blessed to have and to have known in my life.

Oh, and revel in the pleasure of shooting baskets, rather than bemoan the missing vertical leap.

We matter, alright; every one of us, all the time. What we believe, what we think, what we say, what we do.

Ken Bossong

© 2021 Kenneth J. Bossong