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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?
DJ (mail):
In a word, Professor, yes.
4.16.2009 7:43pm
Michael Masinter (mail):
To echo the thought, see Laird v. Tatum, 408 U.S. 1 (1972) there is no case or controversy here.

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.
4.16.2009 7:50pm
Steve:
In the olden days our government used to get its jollies by spying on extremist groups and infiltrating them. Now we have apparently been reduced to writing term papers about them.
4.16.2009 7:52pm
Guest 987:
OK: "Perhaps the plaintiffs want the Constitution to be radically reinterpreted by activist judges to invent some brand-new constitutional rights?"

G987: If that's what the plaintiffs want, then I think your yet-to-be-found word would be apt.
4.16.2009 7:55pm
Recovering Law Grad:
Of course it's frivolous. The court should impose sanctions on the plaintiff's attorney and court costs on the plaintiffs.
4.16.2009 8:07pm
Mike& (mail):
the Constitution doesn't provide a constitutional right to have the government not say things that might be considered criticism

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.
4.16.2009 8:16pm
Leo Marvin (mail):

The court should impose sanctions on the plaintiff's attorney and court costs on the plaintiffs.

Exposing two of the plaintiffs to the third may be sanction enough. As for how to punish Michael Savage, where do I start?
4.16.2009 8:18pm
SPO:
But wasn't the report frivolous--turnabout is fair play.
4.16.2009 8:19pm
Mike& (mail):
Here's a cribbed summary from Mendocino Environmental
Center v. Mendocino County, 192 F.3d 1283, 1300 (9th
Cir. 1999):

Governmental "action designed to retaliate against and chill political expression strikes at the heart of the First Amendment." Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987). "Accordingly, the victim of such action is entitled to sue the responsible" officers.4 Id. A plaintiff "may not recover merely on the basis of a speculative 'chill' due to generalized and legitimate law enforcement initiatives." Id. However, where a plaintiff "allege[s] discrete acts of police surveillance and intimidation directed solely at silencing" her or him, a civil rights claim will lie. Id. The defendant's intent is an element of the claim. See Thomas v. Carpenter, 881 F.2d 828, 829 (9th Cir.1989) (to avoid dismissal of claim for retaliatory firing, plaintiff need only allege that defendant's conduct "was motivated by an intent to retaliate for [the plaintiff's] exercise of constitutionally protected rights"), cert. denied, 494 U.S. 1028, 110 S.Ct. 1475, 108 L.Ed.2d 612 and cert. denied, 497 U.S. 1003, 110 S.Ct. 3236, 111 L.Ed.2d 747 (1990). The heightened pleading standard therefore applies with respect to Bari and Cherney's allegations of the FBI Agents' intent. Branch I, 937 F.2d at 1386.


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.
4.16.2009 8:21pm
Daryl Herbert (www):
I want to see a different lawsuit:

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?
4.16.2009 8:38pm
cboldt (mail):
I think the suit is frivolous. The DHS report will enhance Savage's ratings, not chill 'em.
.
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.
4.16.2009 8:39pm
Adam J:
SPO- the report is frivolous? how so? I'm surprised by the number of conservative bloggers &politicians that are offended by this report and seem to implicitly self-identify themselves as right wing extremists. Bit of a persecution complex if you ask me.
4.16.2009 8:48pm
Mike& (mail):
I think the suit is frivolous.

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.
4.16.2009 8:50pm
Bruce Hayden (mail):
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
This got me thinking about that FISA lawsuit where the judge originally found chilled speech of foreign terrorists, but was ultimately reversed. I would think that this suit was somewhat similar, alleging harm based on a chilling of speech based on a government action. The big difference I see here is that the speech of the plaintiffs is being chilled, versus that of the foreign terrorists whose speech with the plaintiffs there might be chilled.
4.16.2009 8:50pm
Mike& (mail):
I'm surprised by the number of conservative bloggers &politicians that are offended by this report and seem to implicitly self-identify themselves as right wing extremists.

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!
4.16.2009 8:54pm
Randy R. (mail):
Daryl: "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."

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?
4.16.2009 8:55pm
Oren:

discrete acts of police surveillance and intimidation directed solely at silencing

The suit alleges no such discrete acts to speak of.
4.16.2009 8:56pm
cboldt (mail):
-- Do you have any legal authority for the proposition that the lawsuit is frivolous? --
.
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.
4.16.2009 8:59pm
Mike& (mail):
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.

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:

Speech can be chilled even when not completely silenced. In Mendocino Environmental Center v. Mendocino County, we pointed out that the proper First Amendment inquiry asks "whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities." 192 F.3d 1283, 1300 (9th Cir. 1999) (emphasis added), (quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996), vacated on other grounds, 520 U.S. 1273 (1997) (internal quotation marks and citation omitted)). Because "it would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity," Rhodes does not have to demonstrate that his speech was "actually inhibited or suppressed." See id. Rhodes' allegations that his First Amendment rights were chilled, though not necessarily silenced, is enough to perfect his claim."
4.16.2009 9:04pm
BGates:
I'm surprised by the number of conservative bloggers &politicians that are offended by this report and seem to implicitly self-identify themselves as right wing extremists.

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.
4.16.2009 9:07pm
the_pathogen (mail) (www):
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
4.16.2009 9:08pm
Ariel:
Where I think it could get interesting is if they sued for a declaratory judgment along the lines of the ACLU suit on behalf of folks who thought they were being monitored by the warrantless wiretapping program. Could such a report be as much of a suggestion that the government is monitoring them as the ACLU had as its basis? If so, for those who think this is frivolous (and I am inclined to think so), do you also think that ACLU case was/is (not sure of where it is)?
4.16.2009 9:08pm
wooga:

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

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."
4.16.2009 9:19pm
BGates:
So why shouldn't the same standards apply?

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.
4.16.2009 9:24pm
cboldt (mail):
-- I'm surprised by the number of conservative bloggers &politicians that are offended by this report and seem to implicitly self-identify themselves as so-called right wing extremists. --
.
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.
4.16.2009 9:26pm
SG:
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?

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.
4.16.2009 9:27pm
BGates:
never offend a large, mannish woman who has access to grenades

The existence of the report shows we're on Napolitano's bad side already.

Which, if you've seen photos, was inevitable.
4.16.2009 9:27pm
frankcross (mail):
I'm surprised there's no precedent. This is nothing different from the reports and monitoring that the government has done for years, at least back to Vietnam, on antiwar groups, including churches.

It's interesting if none of the leftwing groups sued over all those years, but now the right is.
4.16.2009 9:32pm
Dreadnaught (www):
Looks like a way to bring attention to a radio show. What ever happened to yelling Bababoey at the Today Show?
4.16.2009 9:42pm
Interlocutor (mail):
It was mentioned on the other thread, but Laird v. Tatum seems like it's pretty on-point. In fact, the government went a lot farther in that case.
4.16.2009 9:46pm
Justin (mail):
I'm not sure they even state a cognizable claim in Paragraph 3 of their complaint. I'd think that there's no standing under Article III (no case or controversy), and therefore no subject matter jurisdiction.
4.16.2009 9:47pm
Interlocutor (mail):
Whoops, I meant to say Laird was mentioned in the second comment on this thread. Apologies to Michael Masinter.
4.16.2009 9:47pm
OrinKerr:
Mike, I looked up the Mendocino case, and weirdly, the passage you quote from does not actually appear to be in the opinion (at least in the Westlaw version).

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?
4.16.2009 9:51pm
Joseph Slater (mail):
Dreadnaught gets it exactly right. This isn't about the legal claim at all.
4.16.2009 9:52pm
Bonze Saunders (mail):

Adam J.

I'm surprised by the number of conservative bloggers &politicians that are offended by this report and seem to implicitly self-identify themselves as right wing extremists.


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:


... reporting of wartime ammunition shortages has likely spurred rightwing extremists—as well as law-abiding Americans—to make bulk purchases of ammunition. ... Both rightwing extremists and law-abiding citizens share a belief that rising crime rates attributed to a slumping economy make the purchase of legitimate firearms a wise move at this time.
4.16.2009 9:56pm
Richard Aubrey (mail):
Actually, to take Napolitano's word for this, it's advice to LEOs.
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.
4.16.2009 10:21pm
Not a nut:
When I read the initial reports, I thought it was just using the courts for publicity. (I still think that is the main motivation).

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.
4.16.2009 10:23pm
Not a nut:
Orin:

Rhodes v. Robinson, 408 F.3d 559 (9th Cir, 2005).

It is quoting Mendocino.
4.16.2009 10:28pm
PQuincy1:

"Incidentally, in light of Waco and McVeigh, I do think that right-wing extremists should me monitored. It's only fair, right?"


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.
4.16.2009 10:31pm
zuch (mail) (www):
Mike&:
For purposes of a 12(b)(6) motion, the allegations in the lawsuit must be assumed as true.
No. That's the standard for a Rule 56 motion (motion for SJ).

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,
4.16.2009 10:42pm
Tim H. (mail):
I smell summary judgment
4.16.2009 10:43pm
zuch (mail) (www):
BGates: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.We didn't mistake ourselves for Guantánamo detainees. The folks on the right are alleging personal injury. Go figure.

Cheers,
4.16.2009 10:50pm
Daryl Herbert (www):
I smell summary judgment

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.
4.16.2009 10:53pm
TerrencePhilip:
Here's a cribbed summary from Mendocino Environmental
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!
4.16.2009 10:58pm
cboldt (mail):
-- At first blush, it certainly does seem clearly capable of chilling protected speech/activities of a reasonable person. --
.
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.
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I haven't read the Rhodes case, but have a strong belief that it too involves a situation where the government singled somebody out.
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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.
4.16.2009 11:01pm
cboldt (mail):
Mendocino Environmental Center, 192 F.3d 1283 (9th Cir. 1999)
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.
4.16.2009 11:13pm
Dave N (mail):
I have always thought that Weiner is liberal parody--because "Michael Savage" is such a caricature of conservatives and regularly goes out of his way to give mainstream conservatives a bad name.

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)
4.16.2009 11:31pm
Dave N (mail):
Oh, I also agree the case is frivolous for the reasons cboldt has explained.
4.16.2009 11:33pm
Alan K. Henderson (mail) (www):
What's the legal definition of "extremist"?
4.17.2009 12:17am
A. Zarkov (mail):
It's hard to see how this action can survive a challenge on standing. Moreover Michael Savage seems to have a habit of pursuing cases he can't win. He sued the University of California and lost; He sued CAIR and lost. He doesn't trust the government, but he trusts the courts. It make no sense to me. But as a publicity stunt, he's on a roll. The suit will increase his audience, which will raise his ratings. His likely loss will provide fodder for future programs. Whatever happens he comes out ahead.

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.
4.17.2009 12:18am
wuzzagrunt (mail):
Leo Marvin wrote:

As for how to punish Michael Savage, where do I start?


Start by ignoring him. He'd rather be waterboarded than ignored.
4.17.2009 12:35am
Christopher Cooke (mail):
If I were representing the defendants, I would ask the Court to take judicial notice of the DHS report, and move to dismiss under 12(b)(6). There really are no factual issues, so the case should be examined solely on the pleadings and disposed of.
4.17.2009 12:50am
BGates:
We didn't mistake ourselves for Guantánamo detainees.

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.
4.17.2009 1:46am
Mike& (mail):
No. That's the standard for a Rule 56 motion (motion for SJ).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007):

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F. 3d 247, 251 (CA7 1994), a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U. S. 265, 286 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright &A. Miller, Federal Practice and Procedure §1216, pp. 235–236 (3d ed. 2004) (hereinafter Wright &Miller) (“[T]he pleading must contain something more … than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”),3 on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U. S. 506, 508, n. 1 (2002) ; Neitzke v. Williams, 490 U. S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance … dismissals based on a judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U. S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”).


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.
4.17.2009 1:47am
jim47:
Orin, I don't see why it is necessary to construe the plaintiffs' arguments as asking the court to invent any new right to be free of government criticism. Rather than a case about individual rights, this seems like a case about the scope of government authority, and particularly about the ends it may legitimately pursue.

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.
4.17.2009 2:01am
OrinKerr:
Jim47,

To quote the former Chief Justice Rehnquist, "What's your best case for your position?"
4.17.2009 2:16am
Dave hardy (mail) (www):
I'd agree it's BS. But in my days in DC, there was a case by some advocate for the homeless, who complained about a government report of some type, which I thought plainly failed case or controversy, but the DC Circuit or whatever the court was disagreed.
4.17.2009 2:20am
tvk:
Mike&, (1) I could not find the quoted excerpt in the cited opinion. (2) Once upon a time, if a Ninth Circuit opinion by Stephen Reinhardt was the best you got, your case was pretty frivolous...
4.17.2009 5:02am
zuch (mail) (www):
BGates:
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.
You seem to have a rather poor quality of "progressives" in your neighbourhood; I'd ask for warranty replacement or a refund.

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,
4.17.2009 6:20am
zuch (mail) (www):
Mike&:
[quoting a case] "...actual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright &A. Miller, Federal Practice and Procedure §1216, pp. 235–236 (3d ed. 2004) (hereinafter Wright &Miller) (“[T]he pleading must contain something more … than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”),3 on the assumption that all the allegations in the complaint are true (even if doubtful in fact)"
The gist of the 12(b)(6) motion is that there is no legal relief available on the claims and allegations as pleaded. The factual truth of the allegations is a matter for later consideration, after the pleadings themselves have been examined for sufficiency; it is this that is the essential nature of the 12(b)(6) inquiry. Yes, we have to consider the pleadings as pleaded (that's how we look to their sufficiency to state a cause for which judicial relief is available). But the standard here is not primarily factuality but legal sufficiency. If they are legally insufficient, it doesn't matter whether they are right or wrong; it's back to the drawing board (at best).

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,
4.17.2009 6:37am
lonetown (mail):
I think another fact has been overlooked here by those wishing it to go away. What about the fact that the DHS department of civil rights issued a concern about the language and it was released anyway. It was released in order to chill the so-called teaparties. Why else release it without addressing the concerns of your vetting department?

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.
4.17.2009 7:09am
/:
Dissent is destabilizing.

Self-defense is an affront to social order.

Liberty is extremism.
4.17.2009 8:31am
Snaphappy:
Mike&, I think you quoted all the authority we need to say that this is frivulous:

A plaintiff "may not recover merely on the basis of a speculative 'chill' due to generalized and legitimate law enforcement initiatives."
4.17.2009 8:45am
Richard Aubrey (mail):
I hope this goes as far as discovery.
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.
4.17.2009 8:55am
zuch (mail) (www):
lonetown:
It was released in order to chill the so-called teaparties.
Paranoid, much?!?!? Yeah, that's the ticket ... the sparsely attended "tea parties" with people walking around wondering what they were supposed to do (outside of yelling "Obama's a socialist!" [or worse]) was due to the heavy police presence ... you know, like at the RNC convention.....

Cheers,
4.17.2009 8:56am
zuch (mail) (www):
Richard Aubrey:
I hope this goes as far as discovery.
Wow. All of a sudden, RWers believe in questioning the executive w/o such impediments as SSP and "executive privilege". Welcome aboard; I have no problem. Get out your FOIA requests, have at it....
It would be nice to know who authorized going ahead before the civil rights question was resolved and what was the hurry.
What "civil rights" question? But it was Dubya's maladministration that started this. Is that what you need to know?

Cheers,
4.17.2009 9:03am
Not a nut:
One thing that disturbs me, is the false dichotomy that they set up between "right-wing extremist" and "law-abiding citizen." It is clearly possible to be both, and one does not imply the other or the absence of the other. "Right-wing" is either directly or a proxy for a political position, and the more I read of this doc, the more concerned I get.... not less. This has the smell of the old "Red Scare" stuff.

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.
4.17.2009 9:17am
lonetown (mail):
Hey Zuch, they just explained why they released them before proper vetting. It was simply a case of oversight, nothing to see here, move on.

Too funny. The political hacks don't change, only outraged lefties.
4.17.2009 9:25am
Mr L (mail):
4.17.2009 9:37am
zuch (mail) (www):
Mr. L:
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.
Gotta love this paragraph from Mr. L's linked article::
The top Republican on the House intelligence committee, Michigan's Pete Hoekstra, has asked the director of national intelligence's ombudsman to investigate the Homeland Security report for "unsubstantiated conclusions and political bias."
This is the same "we found WoMD in Iraq" Hoekstra?

Cheers,
4.17.2009 9:45am
sonicfrog (mail) (www):
"Thomas More, Thomas More,
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.
4.17.2009 10:16am
Ken Arromdee:
I think it's great that white people (the majority of right-wing extremists) are feeling the effect of racial profiling.

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.
4.17.2009 11:09am
Joseph Slater (mail):
A nice Monty Python reference!
4.17.2009 11:10am
Clayton E. Cramer (mail) (www):

the sparsely attended "tea parties"
Hmmm. Have you seen the pictures? There were 2500 in Boise (a city of less than 200,000 people) yesterday. There were thousands in each of hundreds of cities across the country. You might want to actually look for data, instead of having NBC and CNN spoon feed it to you.
4.17.2009 11:13am
Angus:
There were thousands in each of hundreds of cities across the country.
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).
4.17.2009 11:20am
hawkins:

There were 2500 in Boise


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?
4.17.2009 11:27am
zuch (mail) (www):
Yes, the Cour D'Alene crowd has always had rather ... -- uhhh, "Republican" -- tendencies.

Cheers,
4.17.2009 11:54am
keypusher64 (mail):
the_pathogen (mail) (www):
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!
4.17.2009 12:03pm
karrde (mail) (www):
RE: sparsely attended "tea parties"

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.
4.17.2009 12:09pm
jukeboxgrad (mail):
cramer:

You might want to actually look for data


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.
4.17.2009 12:31pm
Justin (mail):
That 262,025 is undoubtedly high. For instance, the official count in Lansing was somewhere between 3,000 and 4,000, but because the organizers claimed over 5,000 it was "averaged" to 4,500 by RealClearPolitics.

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.
4.17.2009 12:41pm
zuch (mail) (www):
JBG: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.Biggest one was maybe 7K. How about this one for comparison?
4.17.2009 12:51pm
sonicfrog (mail) (www):
Does anyone else find it a little sad that Michael Savage, and so many of the “Conservative” radio talk show hosts are exceedingly eager to portray themselves as the “victim” or, better yet, as the extremists vaguely identified in the report, in order to get sympathy and higher ratings? Yes, it’s a stupid and insulting report, but does anyone really think this will lead to any policy implementations? I mean, come on! The DHS has barely implemented a third of the recommendations from the much more important and factual 9/11 report, and that’s been five years!

More thoughts here.
4.17.2009 12:51pm
zuch (mail) (www):
JBG:
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.
Biggest one was maybe 7K. How about this one for comparison?

(sorry about the premature post above)

Cheers,
4.17.2009 12:54pm
cboldt (mail):
-- Does anyone else find it a little sad that Michael Savage, and so many of the "Conservative" radio talk show hosts are exceedingly eager to portray themselves as the "victim" or, better yet, as the extremists vaguely identified in the report, in order to get sympathy and higher ratings --
.
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.
4.17.2009 1:26pm
glangston (mail):
Producing and releasing these reports separately smacks of their divisive nature, intended or not.

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.
4.17.2009 1:44pm
sonicfrog (mail) (www):
To summarize my opinion of TMCL, I'll quote Christopher Hitchens, who once noted “By all means, stupid people should be represented, but not by stupid people.”
4.17.2009 2:18pm
Sagar:
why are only Rightwingers suing? wasn't there a similar brief about leftwing extremism by DHS?

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.
4.17.2009 5:45pm
fat tony (mail):
Angus said:

"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.
4.17.2009 8:32pm
whit:

Actually, to take Napolitano's word for this, it's advice to LEOs.
In other words, to watch for signs of discontent, such as supporting the NRA, opposing centralizing power.


it's advice to LEO's to watch themselves.

most LEO's i know support the NRA and oppose centralizing power.

including yours truly.
4.17.2009 11:06pm
Alan K. Henderson (mail) (www):
The "leftwing extremism" report cited specific organizations and specific criminal activity. The "Right-Wing Extremism Report" is abotu as useless as Joe McCarthy's briefcase full of names.

Maybe we should start calling Ms. Napolitano "Tailgunner Jan."
4.17.2009 11:48pm
Frank Snyder (mail):
OrinKerr --

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.
4.18.2009 2:35am
jim47:
I said:

I don't see why it is necessary to construe the plaintiffs' arguments as asking the court to invent any new right .... no means are legitimate when employed for illegitimate ends .... alleged[ly] ... illegitimately suppress speech ...

to which Orin responded:

To quote the former Chief Justice Rehnquist, "What's your best case for your position?"


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?
4.18.2009 3:43am
OrinKerr:
Frank SNyder:
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.
Frank, I plainly never claimed that only a publicity seeking hypocrite could possibly bring such a complaint. I said the complaint was frivolous. It seems to me that it is. To get around that, you seem to have to argue that publication of a DHS report is "using law enforcement to target political opponents" and then asset that posting a .pdf for imagined specific purposes is unconstitutional. But do you have any case law for any of that? Your suggestion that it's some how a dramatic shift in position to go from saying "there is no such right to relief" to saying "name the case that could support the right to relief" strikes me as very strange. It has been a long time since I took civil procedure, but my recollection is that if there are no cases or other legal authorities that support a right to relief, there is no right to relief.

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.
4.18.2009 11:22am
jim47:
Orin,

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.
4.18.2009 1:19pm
Kenno (mail):
The Left and the Right both know that Obama's DHS report is evil. The difference is that right-wingers, who live courageous active lives, despise her for it, and the leftists love it because it makes them feel tough. While they sit at their cowardly soirees sipping latte, they giggle, "Tee hee, we're sooooo bad!" An example is Andrew Sullivan, who thinks all activity in America should be based around pleasure. No room for sacrificing for a higher cause; for leftists like Sullivan and zuch it's all about their next orgasm.
4.18.2009 10:38pm
zuch (mail) (www):
Frank Snyder:
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.
The problem is that the complaint, to withstand a 12(b)(6) motion, must make such claims, and with specificity enough to let the defendant know what is being claimed. A typical example of such would be:

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,
4.19.2009 12:12am
zuch (mail) (www):
Alan K. Henderson:
Maybe we should start calling Ms. Napolitano "Tailgunner Jan."
No. That would be the Republican Congressman with the "list" of 17 Congressmembers that are Socialists.

Cheers,
4.19.2009 12:17am
Linda Mae (mail):
To read your own copy of the List, go to the Progressive Democratic Caucus site. Check out the American Socialist Party site first to review its goals and objectives - ones that you will also find in the Progressives link. Waters, Waxman, Frank are proud members. (the committe who denied that Fannie and Freddie were in trouble and were safe under the capable hands of Mr. Raines- $90,000,000 CEO) I think it ironic that socialists have taken an oath to serve and protect the Constitution which they also have sworn to destroy and replace with a socialistic form of America.

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.
4.19.2009 1:15am
jukeboxgrad (mail):
linda:

Savage did sue CAIR and the end result was that CAIR had to pay court costs


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:

Illston previously dismissed Savage's copyright infringement and RICO lawsuit alleging CAIR illegally published singled-out quotes and audio excerpts from his show regarding Islam, misappropriated his words and used the clips for its own fundraising purposes, damaging the value of his copyrighted material.


Savage's suit was dismissed, so you shouldn't pretend it amounted to some kind of victory.

Alinsky's Rules for Radicals #5 Ridicule the messenger so as to neutralize the message


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 socialists have taken an oath to serve and protect the Constitution which they also have sworn to destroy and replace with a socialistic form of America.


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.
4.19.2009 11:23am
Frank Snyder (mail):
Hi, Orin.

You first wrote,

Perhaps the plaintiffs want the Constitution to be radically reinterpreted by activist judges to invent some brand-new constitutional rights?

Now you say,

I plainly never claimed that only a publicity seeking hypocrite could possibly bring such a complaint.

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.

The suggestion that it's some how a dramatic shift in position to go from saying "there s no such right to relief" to saying "name the case that could support the right to relief" strikes me as very strange.

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.

Zuch: "The problem is that the complaint, to withstand a 12(b)(6) motion, must make such claims, and with specificity enough to let the defendant know what is being claimed."

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?
4.19.2009 3:50pm
Richard Aubrey (mail):
The DHS report might be in the way of being correct in other circumstances.
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.
4.19.2009 4:45pm
A. Zarkov (mail):
jukeboxgrad:

"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.
4.19.2009 9:54pm
A. Zarkov (mail):
I think this case is really weak. After reading the complaint, I don't see how it can withstand a standing or 12(b)(6) challenge. In my opinion it's a blatant publicity stunt. Savage sued CAIR and withdraw from a appeal later without telling his audience why. He collected money for the CAIR case, and I can't help wondering what became of the residual.
4.19.2009 10:00pm
Leo Marvin (mail):
Kenno:

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.)
4.19.2009 10:18pm
jukeboxgrad (mail):
zarkov:

I should think you would be embarrassed to post a number with obvious spurious precision.


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.

White middle class people are not inclined to demonstrate as opposed to Hispanics who love to get out and wave the Mexican flag.


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.

The liberals are extremely practiced at the demonstration business having been at it in American for more than 40 years.


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.
4.19.2009 10:21pm
zuch (mail) (www):
Linda Mae:
To read your own copy of the List, go to the Progressive Democratic Caucus site. Check out the American Socialist Party site first to review its goals and objectives - ones that you will also find in the Progressives link. Waters, Waxman, Frank are proud members...
Assuming arguendo your factual assertions above:

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 that socialists have taken an oath to serve and protect the Constitution which they also have sworn to destroy and replace with a socialistic form of America.
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,
4.19.2009 11:47pm
Richard Aubrey (mail):
"spying on everyone" huh, zuch?
No sense asking for an explanation, is there?
4.20.2009 12:04am
A. Zarkov (mail):
jukeboxgrad:

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.
4.20.2009 12:05am
zuch (mail) (www):
Frank Snyder:
Reading the complaint in the light most favorable to the plaintiffs, ...
You misunderstand what the court is required to do. They may grant some leeway for sloppy lawyering, but they are under no obligation to. While a Rule 56 SJ motion requires that all issues of fact be assumed in favour of the non-moving party, there is no such equivalent obligation for the court to assume anything beyond the explicit claims in the complaint in deciding . If these are not legally sufficient (and complete enough) to support a verdict in favour of the plaintiff, out goes the suit (or at minimum, they're given permission to file an amended complaint to remedy the lacunae in their filing.
... 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....
Yes. Mental illness is a devastating debility and a terrible thing to see. But hallucinations are not sufficient grounds for filing a lawsuit. You must allege actual specific acts that justify the legal remedy sought. What were the specific acts of "conspiracy"? "[C]onspiracy" to do what exactly?
... It alleges some specfic facts in support of that allegation....
Such as?!?!?
... This isn't a fraud claim;...
How are the requirements for a fraud claim any different from any other civil claim?
... notice of the acts complained of is enough.
Not if there's no legal basis for the remedy sought based on the acts complained of, even if true.

Cheers,
4.20.2009 12:17am
zuch (mail) (www):
Frank Snyder:
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.
Hallucinations can't be enjoined. The problem with the "Right Wing Extremism Policy" is that this is a hallicination, and not some specific act that can be enjoined. Is this starting to become clear to you, or need I explain in a different fashion? At best (or worst) "policies" are ideas. What matters to a court is overt acts that can be enjoined (if that is otherwise legally justified). They haven't alleged a "specific practise"; all they're saying is that someone is "out to get them".

Cheers,
4.20.2009 12:26am
zuch (mail) (www):
Frank Snyder:
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?
The N.Y. Times was the defendant in Times v. Sullivan. All they asked was that the lawsuit against them be dismissed.

Cheers,
4.20.2009 12:31am
zuch (mail) (www):
Richard Aubrey:
The DHS report might be in the way of being correct in other circumstances.
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.
More like: "[I]f, say, the folks named in the report thought that Obama's vaguely-described civil forces, funded as well as the military, is (or was becoming) as intrusive and repressive and arbitrary as they have the potential to become, the actions one might see would perhaps come from the folks named in this report."

Cheers,
4.20.2009 12:38am
jukeboxgrad (mail):
zarkov:

Generally when one says "about" the number following does not have a lot of significant digits


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.

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.


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:

White middle class people are not inclined to demonstrate as opposed to Hispanics who love to get out and wave the Mexican flag


Was that "a feeling," or "just guessing," or something else? Because "a feeling is not enough."

NASCAR is heavily promoted. In contrast "tea parties" are just getting started


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.

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.


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."
4.20.2009 12:43am
A. Zarkov (mail):
Jukeboxgrad:

"In this case, the number had a lot of significant digits because Silver was adding individual tallies,..."

I know that. But your statement was
There were about 262,025, nationally.
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.
4.20.2009 6:42am
jukeboxgrad (mail):
zarkov:

One must drill down into your link to see that it's only a very crude estimate.


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.

Normally when one says that "x is approximately y," this means [formula omitted for html reasons] …


Really? That's how the word "approximately" is defined? By what authority other than you?

The proper way to write that sentence is "Nate Silver reports a tally of news sources at 262,052."


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:

A more detailed way to write that sentence is "Nate Silver reports a tally of news sources at 262,052."


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 on a Wednesday when most people are working or in school.


The tea party was held at lunchtime. People in Boise don't eat lunch?

this [Obama rally] was a staged political event backed up by a well funded campaign.


The tea party was a staged political event backed by major promotion via Fox News and other channels.

That number come from Media Matters, a highly biased source.


Thanks for this nice example of hiding behind an ad hominem argument:

An ad hominem argument, also known as argumentum ad hominem (Latin: "argument to the man", "argument against the man") consists of replying to an argument or factual claim by attacking or appealing to a characteristic or belief of the source making the argument or claim, rather than by addressing the substance of the argument or producing evidence against the claim.

The process of proving or disproving the claim is thereby subverted, and the argumentum ad hominem works to change the subject.


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.

NASCAR events are not held on working days


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.

the tea parties did point fingers at Republicans


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:

White middle class people are not inclined to demonstrate as opposed to Hispanics who love to get out and wave the Mexican flag.


Really? Do you have any proof? What's that based on? A feeling? "A feeling is not enough."
4.20.2009 9:33am
Richard Aubrey (mail):
jbg.
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.
4.20.2009 3:40pm
eddie (mail):
This suit is beyond frivolous. But more interesting are the "arguments" that the case is not frivolous. First there is the argument regarding "left wing" concern over detainee rights. I remember a childhood saying about criticism . . . oh yeah . . . "Sticks and stone may break my bones but words can never hurt me."

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.
4.20.2009 4:04pm
Richard Aubrey (mail):
eddie.
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?
4.20.2009 4:42pm
Frank Snyder (mail):
Sorry to belabor this, but:
You misunderstand what the court is required to do. They may grant some leeway for sloppy lawyering, but they are under no obligation to. While a Rule 56 SJ motion requires that all issues of fact be assumed in favour of the non-moving party, there is no such equivalent obligation for the court to assume anything beyond the explicit claims in the complaint in deciding.

From West’s Business and Commercial Litigation in the Federal Courts § 6.7(a):
The successful FRCP 12(b)(6) application is . . . a challenge made at the very beginning of a case and strikes at the very heart of the lawsuit. It is a statement that even if the plaintiff were given every benefit of the doubt and everything it claimed were true, the plaintiff’s claim should be dismissed — either because it is not legally cognizable or because sufficient facts have not been alleged to make out a cognizable claim.

When considering a 12(b)(6) motion, the court presumes that all the allegations of the complaint are true; it resolves all doubts or inferences in the plaintiff’s favor; and it reads the complaint in the light most favorable to the plaintiff. Needless to say, the burden of proof on such a motion is on the party making it. No material from outside the pleadings may be considered . . . .

Given all these benefits and the liberal pleading requirements of the Rules, all the plaintiff has to do to survive the motion is make out some sort of claim for which a court might provide relief.

[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:
Hallucinations can't be enjoined. The problem with the "Right Wing Extremism Policy" is that this is a hallicination, and not some specific act that can be enjoined.

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).
4.20.2009 7:40pm
jukeboxgrad (mail):
aubrey:

Actually, a feeling is perfectly sufficient.


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.
4.20.2009 10:26pm
Richard Aubrey (mail):
I don't like to speak for zark, but I got the impression that he was explaining why he thought something. Not to convince you or anybody else. To put forth any additional effort to convince you of anything would be, of course, foolish.
4.20.2009 10:54pm
jukeboxgrad (mail):
I got the impression that he was explaining why he thought something.


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:

White middle class people are not inclined to demonstrate as opposed to Hispanics who love to get out and wave the Mexican flag.


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.

To put forth any additional effort to convince you of anything would be, of course, foolish.


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."
4.21.2009 9:55am

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