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Happy Thanksgiving

happy-thanksgiving
I’m thankful to people preserving traditional knowledge, especially languages, as they encompass different ways of thinking. Here’s an article about young Native American women working to preserve their culture. (Hat tip to Juliette Wade.)

I’m also thankful for libraries. This tale of the Ferguson library gives me some hope for humanity. They’ve also published a third wish list if you wish to contribute more specifically.

There are many other things I’m thankful for, but those two seem particularly important today.

This post by Chuck Wendig about -ists is an excellent read. I’ve been meaning to write a response to Faruk Ateş’s post What Being Cis Means to Me because I can go to a different place. Maybe if I say this in a blog post, I’ll actually write it.

Originally published at deirdre.net. You can comment here or there.

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Make Your Own Story

When-People-Undermine_700

(Product link on Redbubble.)

I wrote this piece in July after a particularly frustrating week.

One of those pieces of writing advice came back up (like vomit) again this week, and I’ve been in more discussions than I’d ever hope to be about it. I’ve reduced it to two things that really annoy me.

Failing to Respect Other People’s Writing Processes

I wish I had an easy process. I’ve tried. It’s not some moral failure on my part that I can’t outline then write a book. It’s that the energy of the book fizzles when I do it that way, and then I can’t actually write anything interesting.

Your process is your process. You can fuss with it a bit, but not that much. I still think Karen Joy Fowler is absolutely correct.

Dumping One’s Frustration with the Business of Writing on Others

All that advice about what’s “easier” or “harder” to sell onto people? (Anything can sell if it’s done well enough. Sometimes even if it’s not.)

Telling people that won’t sell? (Is that useful in this day and age?)

Telling someone their story is fatally flawed? (All story structures have flaws.)

Anyone who’s been around the block more than a few times will have had some hard knocks along the way. They hurt, and they shape the directions we turn, because we turn to avoid the pain. Sometimes, like I did for years, we just stand frozen in place, paralyzed.

The Responsibility of Teachers

It’s the responsibility of teachers not to stomp all over fragile creative processes or invalidate them.

It’s also the responsibility of teachers to not dump so much of one’s own pain about creative endeavors that one quashes a fledgling voice.

And Now for a Word from Lady Gaga

Song starts 2:30 in.

Originally published at deirdre.net. You can comment here or there.


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My Day in Federal Court

federal-court-header

After my first husband died, my credit files got mixed. That and my identity was stolen. On top of that, there is about a year during that time where I was lucky to remember my name. Some balls were legitimately dropped, and I was also taken advantage of.

I got involved in a web forum that no longer exists, and several people there had sued to get their credit files sorted out. In federal court. Pro se.

For many plaintiffs, pro se equals whackjob, but these were people who knew and respected not only the letter of the law, but the voluminous case law. Add to that the fact that Fair Credit Reporting Act cases and Fair Debt Collection Practices Act cases are typically for teeny amounts of money (FDCPA cases max at $1,000 plus actual damages, costs, and attorney’s fees), and you’ll see that except for the most egregious cases, it’s hard to find a lawyer to take them. There are just so many possible cases, and most litigants aren’t willing to go to all that effort for so little reward.

Plus, courts occasionally gave grudging approval to pro se parties in such cases, like this footnote in Oppong v. First Union:

Though not formally schooled in the law, Oppong has proven to be a resilient and sophisticated litigator who for years has battled the defendants to a draw in both the federal and state courts.

I wound up reading not only the entirety of the laws multiple times, I read all the case law. Thousands and thousands of pages of minutiae.

The First Federal Lawsuit

The first federal lawsuit I filed (C 04 5223 MEJ in California’s Northern District) was against Portfolio Recovery Associates and Capital One Bank. Essentially, a credit card in my name (which Portfolio and I discussed after the case was settled—it genuinely was not my account) had been sold to Portfolio with an alleged $1671 owing.

The offer letter was for a credit card issued by Capital One. (front) (back)

Apart from the fact it wasn’t my account, there were three things I was torqued about:

  1. The FDCPA generally doesn’t permit disclosing information to third parties about debts except in extremely narrow circumstances, e.g., credit reporting. The letter made it sound like illegal disclosure had occurred. There was no legally permissible reason for Capital One to have had the capacity to send the letter, and yet Capital One had.
  2. All communication from a debt collector must be accurate and non-deceptive. And this wasn’t. Two paragraphs from my complaint:

    When Plaintiff read the body of LETTER, however, she realized that the terms offered were not as the boldface item indicated. The terms state: “Your account will have an initial credit limit of $1 that will increase to $50 after you make your first payment to Capital One. Plus, for every $100 of charged-off debt you repay to Capital One, you’ll receive a $25 credit limit increase up to a maximum credit limit of $800.”
    Plaintiff asserts that this language is deceptive. The $800 credit limit is approximately 1/2 the amount of the alleged debt (rounded down to the nearest $100). The terms of the credit limit increases, however, are approximately 1/4 ($25 per $100 paid) of the amount of the alleged debt. Exhibit B shows Plaintiff’s calculations, showing a maximum possible credit limit of $425, far short of the $800 with which LETTER attempted to entice Plaintiff.

  3. I wasn’t even sure which of the two companies had sent the letter, because the front and the back gave different answers.</p>

So I sued and it was settled pretty quickly. (Capital One took about a week, iirc.)

And Then There Was Merrick

Chuffed by early success, I decided to take on a bank where I’d owed the money (and paid it), but then got a deceptive letter after the fact. Specifically, I received two separate letters on two separate days thanking me for my payment in full on that date. They couldn’t both be true.

I’d had adverse action taken because they updated my credit report and I was feeling pissy about it, but this is the one bank that wouldn’t settle before more litigation steps were taken.

I’d never actually written a motion. I’d had a civil procedure class in paralegal coursework, but that was really more basic stuff. Motions were in the next class.

And yet, now I had to actually do it.

I kept telling myself, “You have a master’s degree in creative writing. You can do this.” Sure, it’s a different kind of narrative, more like an essay in an English class than like a novel, but a motion has a narrative structure, too.

The Weakness in My Case

The FDCPA only applies to third-party debt collectors, though there is a California state law that copies many of the provisions of the FDCPA and holds original creditors to those, too. So, worst case, I had a prima facie state case claim, and I had two letters, at least one of which was deceptive on its surface.

Except I’d filed in federal, so it was important that I prove that the FDCPA applied to this case. I was missing a piece of paperwork in my initial filing, which I eventually found. (That’s underlies the Order to Show Cause part of the ruling that’s in the header image.)

There’s another factor, though: the judge ruled one thing in error, and I wound up calling FDCPA attorneys in my district to see if they’d take an appeal. It was terrifying enough to write a motion for a federal judge to rule on, but the 9th Circuit? That was an order of magnitude scarier.

If you ever need a consumer law attorney, NACA is the organization for them. I’d found one, spoke to an attorney over the phone. He looked up my case and called me back.

“Your cites are better than 95% of the ones I see and you understand the case law,” he said. “You’ve got this.” He agreed with me that I had the law right and the judge had missed one point, and we talked about that.

I had no idea what I was doing as far as the mechanics of civil procedure went, but apparently I’d figured out how to write a motion. Go, me.

I filed a motion for reconsideration after my day in court.

My Day in Court

In May, 2007, I had my initial case management conference in the courtroom opposite Merrick’s hired litigator. I arrived early, and there were trial lawyers gathered outside the courtroom, each in suits more valuable than the entire amount of money I’d spent on every piece of clothing I owned. Most were involved in a huge medical class action case.

One of the attorneys, a woman, came over, curious about who I was. I’d told her, and she seemed genuinely excited for me despite me having this little case. It felt like being a minnow in a pod of friendly whales.

Many of them were gawking at the class action next door for Celebrex.

My courtroom had five cases for a case managdment conference. One of the lawyers for another case didn’t show up, so the judge put him on speakerphone. I felt SO mortified on his behalf (worse, he sounded like he’d been woken up by the call).

EDWARD BORACCHIA et al vs BIOMET, INC.
AIWA TROUTMAN vs UNUM LIFE INSURANCE CO et al
TOM SPEAR vs INTL UNION OF BRICKLAYERS et al
BARE ESCENTUALS BEAUTY, INC. vs L’OREAL USA, INC.
WILLIAM R. KLEMME M.D. vs NORTHWEST AIRLINES, INC

Doesn’t sound like a job that would ever get boring, really. Lots of interesting variety.

Anyhow, the judge was funny. She told lawyers who came before me, “You might want to invest in a rubber stamp that says CHAMBERS for your file copy. Marking the chambers copy is a part of local rules.”

When my case was called, I was afraid that I’d fall over in front of the judge. I was relieved that I managed to walk up to the podium without falling. When I had to speak, I had to grip onto the podium firmly lest I crumple at the knees.

I was terrified. I don’t think I’ve ever been that frightened.

The judge asked if I were computer-savvy. I allowed that I was. She suggested that I do electronic filing if defendant’s counsel agreed.

I wasn’t even chided for not having a rubber stamp. :)

Anyhow, the schedule issues came up, and she asked if we could really have our alternate dispute resolution that soon, and I realized I had to tell her that I was filing a motion for reconsideration.

That’s when I had the image of a pile of slippery pebbles, and a small panic attack. I was seriously afraid for a moment that I was going to fall over onto the floor, and wouldn’t that be fun. I held onto the lectern a little harder and made it through.

Merrick’s lawyer said he didn’t see the point of discovery, because the defense had submitted everything they had. The judge said, “Ms. Moen saw that something had been reported by a third party, and the inference was that the information was provided by Merrick. The plaintiff has the right to know what your client said about her to third parties, and I’m not going to deny her that.” (this was related to the way they credit reported after I paid them.)

I will tell you, there is something completely awe-inspiring about someone with that much power saying that little old you are actually important in some way.

She so rocked! (Aside from the part about the wrong ruling on one point, anyway.)

As we left the courtroom, the attorney I’d spoken to before the courtroom open gave me a fistbump, and I smiled. After exiting, opposing counsel asked, “Do you want to get rid of this?” Then he flew back to SoCal. (There’s also something awe inspiring about the other side flying someone in as opposing counsel.)

The Resolution

Given that a) the bank wanted to settle, and b) I was about to go on a long trip (Rick and I went to Greece, Egypt, and Turkey not long after the hearing), and c) I wanted to settle after I came back, we wound up settling. I never did find out what the 9th Circuit would have said or what the resolution of my reconsideration motion was.

Oh well.

The whole process was worth it for that one moment.

Oh, and Portfolio and Capital One changed the format of similar kinds of letters they sent in the future, apparently complying with the law. So, that’s a good thing I did.

IMG_0393-Edit

Originally published at deirdre.net. You can comment here or there.

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Privacy Via Doxxing Defense

Computerworld has a rather excellent guide on Doxxing Defense, aka removing your personal info from data brokers.

Even if you have no fear of doxxing, this may be a good thing to do. Up to you. (Note that it’s not, as writer Ken Gagne points out, a one-time thing. Unfortunately.)

I was very surprised, when I ordered my Lexis/Nexis report ages ago, that it was dozens of pages long.

I’ll add the following:

  1. If you have an online identity with a pseudonym and without, use different email addresses for both. Many of the services Computerworld lists authenticate with an email address. I don’t need to tell you the privacy implications of that.</p>
  2. Every single social media site that you do not pay for, well, you are the product, not the customer. Limit your exposure by limiting your reach.

  3. For every service that offers it, switch to two-factor authentication.

  4. Don’t give real answers to security questions, because those then become socially hackable. Make up screwball questions and answers where appropriate, just keep track of your answers somewhere.

    For example, just pulling up one of the links in the Computerworld article showed that the town of my birth was listed right there in the open. If I’d used that answer to a security question, it’d be one step easier to get access to other things like my bank account info.

    A trick I learned from a friend: don’t give answers of the same noun type as the question. She, a bicycle fancier, provides obscure bicycle brand and model names for location questions, and her favorite trail names for people questions.

    Yes, that’s hard to keep track of, which is why password security software is such a great idea.

  5. Don’t use the same security answers on different sites.

  6. Print out a hard copy of the most important security info, and keep it in a safe or safe deposit box.

As for me, well, if you were so silly as to want to doxx me, you might discover that my contact info is in my domain’s WHOIS record. After Scientology started harassing me (and others) in 1995, I’ve always figured I was safer if my friends were also able to find me.

That said, I still am going to clean up behind me because why should these assholes make money off my info?

Originally published at deirdre.net. You can comment here or there.


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Ellora’s Cave Author Exodus Reminder

Greek Sphinx, Delphi

Greek Sphinx, Delphi


It’s been almost six weeks since I first posted it, but the Ellora’s Cave Author Exodus Support Thread now includes 29 authors, several editors, and a cover artist.

Each of them have spoken out in some context about Ellora’s Cave.

If you’re looking for books to get you through the holidays (or to get other people for the holidays), they could use your support.

Originally published at deirdre.net. You can comment here or there.


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Ellora’s Cave: Tenses and Figures

This post discusses phrasing of the initial lawsuit filed by Ellora’s Cave and Jasmine Jade Enterprises against Dear Author and DA columnist Jane Litte. In Courtney Milan’s thread system, this is Thread A.

The Tense Thing

My most frequently overlooked problem when critiquing other people’s work is tense wobbles. So, while I noticed the change of scope in this section I’m going to quote, I’d missed some potential implications of the tense shift.

I was talking about the case with a friend of mine, and he said:

I notice they’re playing silly buggers with the tenses.
“have not” and “are”
and they don’t dispute that in fact they hadn’t been paid in six months.

Here are two of Jane’s allegations in the Curious article:

There is a set of authors who have not received royalty payments in over six months. EC has blamed this repeatedly on a new accounting system installed in December of 2013.
[...]
The total sum of unpaid royalties, editor fees, cover artist fees is in the several thousands, perhaps approaching six figures.

In EC/JJ’s lawsuit, here’s what they allege:

[...] Such false statements include:
[...]
That the Authors have not received royalty payments in over six months when in fact they are being paid.
[...]
That unpaid royalties, editor fees, and cover artist fees amount to several thousands of dollars perhaps approaching six figures when they do not.

In my Proving Substantial Truth post, I’d talked about the size of the data set in proving that “a set of” is untrue.

But I hadn’t talked about the fact that what EC claimed was defamatory in the lawsuit paperwork wasn’t actually what Jane Litte wrote. Courtney Milan talked about this some in the interview she did on the SBTB podcast.

Hypothetically Speaking

Let’s say the following are true:

  1. An article, published mid-September, states “a set of authors who have not received royalty payments in over six months.” Past tense. There are over 500 authors, but the article’s author knows the claims are true for at least three. a = {Fred, George, Mark}</p>
  2. After the article was written, the publisher in question writes checks for all its authors due royalties for a given accounting month. Let’s say the royalties being paid are for May, the checks are dated August 31, and they are mailed in late September.

  3. After the checks are mailed, the publisher in question files a defamation lawsuit abut the blog post. In said lawsuit, the publisher claims, “That the contract authors (Authors) have not received royalty payments in over six months when in fact they are being paid.”

  4. Note that there’s no claim that said Authors are fully paid. Or that they had been being paid. In fact, it’s present continuous tense, making it sound like the checks are being written even as the paperwork for the lawsuit is being typed. (Lest one think I’m being harsh on this point, remember that we’re discussing a publisher. Tenses and nuance are their core competency.)

  5. After the lawsuit is filed, Fred, George, and Mark each receive a check for the most recent month’s royalties, but this does not change the fact that the language in the blog post was correct as of the date it was published. They are still owed back payments, however.

So, hypothetically speaking, it’s entirely possible that there was a set of authors who hadn’t received royalty payments in over six months, and for whom between the time of that post and the lawsuit being filed, checks had been cut for at least some payment, making the present-continuous-tense statement also true. (It’s probably also not necessary for every single author to be paid to make the present-continuous-tense statement true, either.)

Yes, well, that’s all well and good, but there was a second part to the article’s claim, and how could that work? Here’s a hypothetical.

EC claimed: “That unpaid royalties, editor fees, and cover artist fees amount to several thousands of dollars perhaps approaching six figures when they do not.”

This really hinges, I think, on nitpicking two phrases: “several thousands” and “perhaps approaching six figures.”

I’ll just throw this out there: if the amount owing is known to be in excess of $100,000….

No, I can’t finish that sentence. I can’t rationalize the verbiage.

Remember, “unpaid royalties” as of mid-September includes not only May’s royalties that were reportedly received at the end of September or early October, but also monies received—for hundreds of authors—for June, July, August, and so far in September. Not just amounts that may be past due.

When one looks at, say, the amount Lolita Lopez didn’t receive in December 2013 that was on her 1099 (tl;dr: $13,354.79), and realize that there are (or were) several big-name EC authors who were making that kind of money monthly, royalty amounts owing in excess of $100,000 doesn’t seem that big a stretch for 4-1/2 months, even if the dramatic drop in Amazon sales were true.

Even without including editors and cover artists.

However, claiming that someone owes less than they actually do isn’t defamatory.

I have no personal information about the actual facts of the Ellora’s Cave case, so I have no information about the veracity of my hypotheticals.

So…?

The point of the above: if what Jane Litte wrote weren’t true, why not file a lawsuit claiming that specific language was untrue?

Why bother using different language in the filing when Jane’s post is right there to copy/paste from?

I’ll leave you to ponder that and end with a throwback moment.

Ellora’s Cave Legal Throwback: Two. Thousand. Three.

Over the past couple of months, I’ve read a great deal of the documents involved in the Brashear case where EC/JJ were defendants.

As a fascinating aside, one of the items EC submitted in their answer and counterclaims was a snippy email by Brashear to complaints that payments were, once again, late. That was in October 2003.

It was in response to an email that said this (and then some):

Look, I KNOW you guys work hard at keeping everything together at EC and this new accounting system has been trouble — BUT, don’t promise that checks are going to be mailed on a certain date and then fail to deliver. OK? (This is not the first time this has happened.)

Two. Thousand. Three.

It’s Chestnut Season

In addition to the above, I note that we should seasonally switch from popcorn to chestnuts—especially given the subject matter.

Originally published at deirdre.net. You can comment here or there.


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Doing the Next Thing

This isn’t about a convention, but I’m using a convention change as a launching point.

BayCon is going to be a three-day convention this next year rather than the four-day convention it has been in prior years. I heard about this through random pissing and moaning through facebook.

By “pissing and moaning,” I mean people who say things like it’s not what it used to be, yada yada yada.

Well, I’d hope not!

Anyhow, here’s my take when I hear that kind of thing:

  1. You can only do X similar things Y times before the magic smoke stops working for you. How similar X events have to be to each other and how large a number Y needs to be are individual.</p>
  2. At that point, the right thing to do is something that isn’t quite so similar to X, whatever that happens to be for you.

  3. There are always problems with {conventions, vacations, cruises, rocket launches, square dances, rodeos, church socials, bowling leagues}. The problems only start glaring when you’re at point #1.

I honestly had a blast at BayCon this year. Sure, some things I’d enjoyed in the past didn’t happen this year, but other new things did.

So, if you’re not having fun because something doesn’t seem fresh and new, go find something fresh and new to do. Maybe you can go back to X at some point. Maybe not. Maybe you need something similar to X, but not too similar.

There are a million billion things to do.

The world is a big place. Enjoy it.

Originally published at deirdre.net. You can comment here or there.


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100 Countries (and Territories)!

100-countries

As of today, I’ve completed one of my travel life goals: to visit 100 countries and territories from the Traveler’s Century Club list. In short, you can’t join the club as a full member until you’ve been to 100.

Sure, they are liberal in what they count (their list totals 324 countries and territories, where the UN list is 193), but they encourage people to see far-flung places that are very different from the ruling government far away.

For what it’s worth, I’ve been to 65 UN member countries (plus the Vatican). Eventually, I’d like to get to 100 there, too, but that interests me less.

Here’s my list in alphabetical order:

Alaska * Aruba * Australia * Austria * Bahamas * Balearic Islands * Barbados * Belgium * Belize * Bermuda * Bulgaria * Canada * Canary Islands * Cayman Islands * Chile * Colombia * Corsica * Costa Rica * Crete * Denmark * Dubai * Easter Island * Egypt * El Salvador * England * Estonia * Faroe Islands * Finland * France * Germany * Gibraltar * Greece * Guam * Guatemala * Haiti * Hawaiian Islands * Honduras * Hong Kong * Iceland * India * Indonesia * Ionian Isles * Ireland * Isle of Man * Italy * Jamaica * Japan * Leeward Islands, French * Leeward Islands, Netherlands * Liechtenstein * Luxembourg * Macau * Madeira * Malaysia * Maldives * Marshall Islands * Martinique * Mexico * Micronesia * Montserrat * Morocco * Myanmar * Netherlands * New Zealand * Nicaragua * Northern Ireland * Norway * Panama * Pitcairn * Portugal * Puerto Rico * Romania * Russia * Sardinia * Scotland * Singapore * South Africa * South Korea * Spain * Sri Lanka * St. Barthélmy * St. Lucia * St. Maarten * St. Vincent & Dependencies * Sumatra, Indonesia * Sweden * Switzerland * Tahiti * Thailand * Trinidad & Tobago * Turkey in Asia * Turkey in Europe * Ukraine * United States * Vatican * Venezuela * Vietnam * Virgin Islands, British * Virgin Islands, US * Wales

On the TCC list, I have at least one visit in each region except Antarctica.

My 100th was Trinidad and Tobago. Here’s a picture from Charlotteville, Tobago, announcing a cricket match (click for full size):

2014-11-10 15.30.08_Snapseed

Originally published at deirdre.net. You can comment here or there.

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Ellora’s Cave: On Dear Author and CDA § 230

broken-ankh

Riffing off Courtney Milan’s post here.

While I haven’t followed appellate cases on the Communications Decency Act § 230 the way Courtney has, the first thing I did after reading Dear Author’s answer was to read up on existing case law. Like Courtney, I didn’t see any that applied to something similar to the Dear Author situation.

As Courtney points out, most of the CDA § 230 cases involve larger companies completely unrelated, legally speaking, to the person who wrote the content in question at the heart of the suit.

Rick and I talked a lot about the implications, some before I wrote this post about DA’s answer, and some after it, but every time we talked about it, we agreed that, at its heart, the CDA does protect Dear Author LLC.

The fact of a separate legal person isn’t even an issue here.

For example, say you’ve let an author write a guest post on your own blog and you’re unincorporated. You get commenters too.

Is that still an interactive computer service?

Here’s the CDA definition again:

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

Yep, that still applies.

In reading the definitions, here are some examples:

  • “Interactive computer service” – a blog
  • “Information content provider” – the writer of a specific blog post (or a specific comment)
  • “Access software provider” – WordPress or Blogspot or whomever

I said this before:

In other words, because Jane Litte, the pseudonymous author of the Curious post, is not Dear Author LLC, the LLC providing the Dear Author service offering the Curious post, Dear Author LLC is not liable for any statements Jane Litte made.

That’s true in this case (my opinion, not yet set in legal precedent afaik), but it shouldn’t actually matter that these are different legal persons.

If I wrote my own blogging software and someone wrote and posted a guest post, I as the publisher and software writer—but not the information content provider—should still be protected.

So What Does This Mean As Far As the Dear Author Case?

A legal case is about triable matters of fact and applying legal investigation methods (discovery) to determine those facts and settle what points of law apply to them.

At the point where the matters of fact are determined and it has become a simple matter of law, a party can move for summary judgment, moving to apply that matter of law to that set of facts. (And then the other party typically opposes with their own brief, and the judge rules, sometimes asking for a hearing first.)

Here’s a quote from a free legal dictionary.

Two criteria must be met before summary judgment may be properly granted: (1) there must be no genuine issues of material fact, and (2) the Movant must be entitled to judgment as a matter of law.

I believe this is a matter of law that’s clear about DA being entitled to judgment. After all, CDA § 230 states:

It is the policy of the United States—

  1. to promote the continued development of the Internet and other interactive computer services and other interactive media;</p>
  2. to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

…and…

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Dear Author is not Jane Litte.

It doesn’t matter that this is a novel application of CDA § 230. That’s why you hire someone like Marc J. Randazza: because a great lawyer thinks outside the box of existing case law and looks to intents behind the laws.

Originally published at deirdre.net. You can comment here or there.


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Wow, Sixth Circuit Dissent

As you probably heard, the majority in the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) ruled against equal marriage.

The dissent is blistering. It starts on p. 43.

Here’s the opening:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.

And here’s the closing:

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

I’ve seen a few statements of no confidence in the majority opinion before, but none so thorough.

Wow.

One more paragraph, from p. 61 (close to the end):

Moreover, as it turns out, legalization of same-sex marriage in the “nineteen states and the District of Columbia” mentioned by the majority was not uniformly the result of popular vote or legislative enactment. Nine states now permit same-sex marriage because of judicial decisions, both state and federal: Massachusetts, Connecticut, Iowa, New Mexico, and Colorado (state supreme court decisions); New Jersey (state superior court decision not appealed by defendant); California (federal district court decision allowed to stand in ruling by United States Supreme Court); and Oregon and Pennsylvania (federal district court decisions not appealed by defendants). Despite the majority’s insistence that, as life-tenured judges, we should step aside and let the voters determine the future of the state constitutional provisions at issue here, those nine federal and state courts have seen no acceptable reason to do so. In addition, another 16 states have been or soon will be added to the list, by virtue of the Supreme Court’s denial of certiorari review in Kitchen, Bostick, and Baskin, and the Court’s order dissolving the stay in Latta. The result has been the issuance of hundreds—perhaps thousands—of marriage licenses in the wake of those orders. Moreover, the 35 states that are now positioned to recognize same- sex marriage are comparable to the 34 states that permitted interracial marriage when the Supreme Court decided Loving. If the majority in this case is waiting for a tipping point, it seems to have arrived.

Originally published at deirdre.net. You can comment here or there.


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