When the newly-formed Knight Institute decided to bring suit against Trump for blocking people on Twitter, it struck me as the clickbait of lawsuits. It would bring attention to Knight Institute, for sure, but the problem itself was unserious. Trump blocked people on Twitter? Big deal.

The workaround was easy enough to read his twits*, so no one was seriously precluded from seeing anything Trump twitted. As for the interactive aspect, there are a million random people hate-replying to Trump’s bizarre twits. One hundred, even ten thousand, more or less wouldn’t make a difference. It wasn’t a matter of right or wrong, so much as a tempest in a Twitterpot. De minimis non curat lex.

But the case was brought, and Trump lost. The case was appealed, and Trump lost again, this time in the Second Circuit. The ruling held that an account that might otherwise be personal became a government account based on its use for that purpose, turning the account into a “public forum.” Continue reading →

The editorial barely bothers with the requisite “alleged,” and goes from there to assume every awful thing possible about Jeffrey Epstein, his unnamed conspirators and Alex Acosta.

Even in the relatively sterile language of the legal system, the accusations against Mr. Epstein are nauseating. From “at least in or about” 2002 through 2005, the defendant “sexually exploited and abused dozens of minor girls,” some as young as 14 and many “particularly vulnerable to exploitation.” The girls were “enticed and recruited” to visit Mr. Epstein’s various homes “to engage in sex acts with him, after which he would give the victims hundreds of dollars.” To “maintain and increase his supply of victims,” he paid some of the girls “to recruit additional girls to be similarly abused,” thus creating “a vast network of underage victims.”

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Back when the call was to end discrimination in public accommodations, Title II of the Civil Rights Act of 1964 was enacted.

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

But that was when the law sought to remove a detriment based on race imposed on black and brown people by white people. Even though it applies with equal force when the sides change, despite the fashionable redefinition of discrimination applying only when it’s the privileged doing the dirty to the oppressed, the law still prohibits discrimination based on race, no matter who is doing the discriminating and who is taking the hit. Continue reading →

When the prosecutor won’t, who will? Criminal law reformers took their battle away from the courts, then the legislatures, and found a relative sweet spot by electing reform “prosecutors” to office. It was a brilliant move, really, as the race for District Attorney was never particularly sexy, people didn’t have strong feelings and a small, highly motivated group could basically seize power. They did in Philadelphia when they elected criminal defense lawyer Larry Krasner.

Since his election, Krasner has proven to be the real deal, implementing his reforms such as declining to prosecute laws with which he disagrees and trying to stem mass incarceration by using alternatives. The issues about his use of authority aside, it was a fascinating experiment testing whether the historic tough-on-crime approach that produced Prison Nation was necessary to protect people, or whether it was a hugely destructive force, particularly to the poor and minorities who suffered the brunt of the system’s brutal force.

The Pennsylvania lege decided to pull the rug out from beneath Krasner. Continue reading →

Senior District Judge Glen Conrad stopped the bleeding for the moment, which was obviously a good thing.

In an unusual sex-discrimination lawsuit, a federal judge barred the University of Virginia from having a hearing for a former student accused of rape, as a consequence of which his degree might be withheld, saying the institution might not have authority to punish him for the alleged incident that occurred off campus.

There are three facts to note here. First, the accused student had completed his studies and was all but done, awaiting commencement ceremonies and receipt of his diploma. Second, the alleged non-consensual sex occurred two years earlier. Third, the purported “victim” wasn’t a student and the sex occurred off-campus. Continue reading →

It’s a bold move. The first time anyone tries a new legal approach is, almost invariably, a bold move. The law likes precedent, the comfort of knowing that somebody already signed off on something, whether it’s teeth marks as admissible forensic science evidence despite it being neither science nor evidence, or an individual cause of action brought on behalf of a group of students. A class action.

Andrew Miltenberg already had two cases on his plate with Michigan State. That’s the same school that concealed Larry Nasser’s abuse of female athletes for decades. Unsurprisingly, the taint, not to mention the liability, of Nasser caused Michigan State to overcompensate by crafting Title IX procedures certain to damn any male accused of any sexual misconduct. See? We’re the good guys now!

From an inquisition by investigators, who are supposed to be neutral but instead dedicate themselves to “trauma informed” ideology, building the case of the accused’s guilt, demanding a defense before disclosing the accusations, to the denial of a live hearing and deprivation of the right to cross-examine, the process at Michigan State was carefully calculated to bring a smile to then-DoE Office of Civil Rights bureaucrat Catherine Lhamon’s face, prevent her from eliminating its federal funding and appeasing her vicious appetite to ruin a school that gave the accused a tenth of a chance. Continue reading →

The allegations are awful, using underage homeless girls as sex slaves. The bold-faced names like Prince Andrew, Bill Clinton and Dersh, are salacious. Even the federal prosecutor, Alex Acosta, then United States Attorney for Southern District of Florida, is now Secretary of Labor under Trump. There is no quarter for billionaire Jeffrey Epstein, who was arrested as his private plane arrived at Teterboro Airport on a sealed indictment from the Southern District of New York.

That makes this the perfect case to do the damage.

Who would be so disgusting as to come to Epstein’s defense, which by current definition means that one approves of his conduct, every allegation of which must be taken as true. Everybody knows it, as the current right to believe, combined with the duty to believe, makes his guilt beyond question. Continue reading →

Some will recall the questions posed by a committee of our best and brightest senators to Facebook’s Zuck. It was high comedy, between the righteous indignation of angry speechifiers and the cluelessness about tech that could have been explained by their grandchildren, if they bothered to ask.

And yet this donkey show has given rise to nonpartisan consensus: regulate the internet!

Tech regulation may be the only thing on which a polarized Capitol Hill can agree. “We should be suing Google and Facebook and all that, and perhaps we will,” President Trump recently declared. Senator Elizabeth Warren, a Democratic presidential candidate, has made the breakup of tech companies a central plank of her campaign. Even Silicon Valley-friendly contenders like Pete Buttigieg have called for curbs on the industry’s power.

On one side of the equation is whether Trump or Warren will do a better job micromanaging the internet. The answer, obviously, is the person you prefer will do good, while the other person will be horrible. Which is which varies. But everyone believes they should be in control. Continue reading →

Among the most pressing issues making America horrible on Independence Day was that the women who played for the United States soccer team were paid a mere fraction of what the men were paid, even though they were far more successful in their World Cup challenge. It was so horrible that the New York Times felt compelled to call it out as an example of America’s awfulness, the sexism permeating our society.

Except there is an actual reason for it, as is obvious to anyone not seeking an example of sexism. Women’s soccer isn’t nearly as popular as men’s soccer, doesn’t earn anywhere near the same money and, consequently, can’t pay what it doesn’t make. The problem isn’t sexist pay scales, but lack of public interest. Like it or not, you can’t force people to be fans of women’s soccer. People watch and attend the sporting events they prefer. They’re just not that into it.

That same problem affects art, and its relationship to race, as well. There have long been complaints that female and minority artists have been closed out of exhibitions, and therefore can’t get their work seen by the public. If the public can’t see it, they can’t love it. If their work isn’t seen because curators favor work by white male artists, then they have a strong argument. So the Whitney put on a show. Continue reading →

It looked as if Tiffany Cabán pulled off her coup. The New York Times, bizarrely, endorsed her. Democratic presidential candidates endorsed her. She was that progressive district attorney candidate who would represent “transformative change,” her lack of experience, competency or much of anything beyond social justice platitudes and her identity as a “queer Latina” notwithstanding. Still, this is how democracy works, and if she got the votes, she wins.

The test, however, didn’t go nearly as well as hoped. Despite all the guns on her side, there were two overarching problems. The first was that a mere 11% of the potential Queens Democratic voters bothered to show up at the polls. Whether the problem was that 89% couldn’t be bothered, didn’t care or wanted nothing to do with any of the candidates is unclear. What is clear is that Cabán couldn’t get them out any more than her nearest competitor, Queens borough president Melinda Katz.

Still, a win is a win, even if the best Cabán could manage was about 39% of 11% of the eligible voters. But even as Cabán proclaimed herself the victor, Katz waited for the count of absentee and challenged ballots. And the tide turned. Continue reading →