Thursday, May 25, 2017

Welcome to FromDC2Iowa: Contents & Guide

Welcome to FromDC2Iowa, a collection of well over 1,000 blog posts and pages on a wide variety of topics, created and maintained by Nicholas Johnson since 2006.

Quick Links
* Most recent blog essays: "How to Start a Governorship," May 25, 2017

"Mediacom's 1000% Interest Late Payment Fee," May 9, 2017

"What Trump Needs to Know About Libel," May 1, 2017

"A Millionaire by Age 30? Here's How," April 26, 2017

"Airlines, Crisis Communications 101, and Prohibited Speech," April 18, 2017

"Of Missiles and Teachers," April 7, 2017 [embedded: "Spending on Military Always Comes at a Cost," Nicholas Johnson, "Insight & Books," The Gazette, April 9, 2017, p. D5]

"Collusion, Treason, Trump and Putin," April 5, 2017

"How to Save Highter Ed," March 19, 2017 [embedded: "Saving Higher Ed; Step1: Listen to What Iowans Want," Nicholas Johnson, "Insight & Books," The Gazette, March 19, 2017, p. D1, and "Solutions for Iowa Higher Ed's Woes," Nicholas Johnson, Iowa City Press-Citizen, April 12, 2017, p. A7] ]

"Resources for Trump Watchers," February 11, 2017

"Who Are We?" January 31, 2017 (a response to President Trump's ill-considered travel ban)

"No Elephants in the Room," January 15, 2017 (NFL football)

"Educating In and For a Digital Age; The Vast Waistline & Other Challenges to Education as We Knew It," January 14, 2017 [text of remarks delivered at 4CAST - Campus Academic Strategies and Technology Conference, University of Iowa, Iowa City, Iowa, January 12, 2017]

"Eastern Iowa's Declaration of Human Rights," January 5, 2017 (contains "Focus on Our Common Values," The Gazette, January 1, 2017, p. D2)

"Tracking Trump," November 15, 2016 (More like a Web site with links to associated pages than like an individual blog essay, this is both a daily report and a repository of news and opinion regarding President-Elect Donald J. Trump from the day after the election (i.e., November 9) through the day of his inauguration as president on January 20, 2017.)

"Democratic Party's Past -- and Future," November 9, 2016

"Hillary's New Emails: A Solution for FBI Director Comey," October 31, 2016

"An Outrageous Merger," October 29, 2016

"Republicans Need to Get Their Party Back From Trump," Iowa City Press-Citizen, October 20, 2016, p. A7

"Iowa's Top Republicans' Major Mistake," October 13, 2016

"Law, Social Norms and Trump," October 2, 2016

"Donald Trump's Barrel of Squirrels," September 25, 2016

"First Thoughts on 911 -- 15 Years Later," September 11, 2016

"At Last, the Agnostic, Insomniac, Dyslexic Answer," September 10, 2016

"Trump Might Not Be Blundering in Race," September 9, 2016

"Labor Day for All 2016," September 4, 2016

"Our Revolution: Yes; But First Some Questions," August 31, 2016

"The Doping Dilemma," August 17, 2016

"Maybe This Explains Trump," August 15, 2016

When Words Can Kill," August 10, 2016

"The DNC Still Just Doesn't Get It," July 29, 2016

"Why Trump May Win; Discouraged By The Democratic Party's Self-Inflicted Wounds," July 25, 2016

"Doing It Ourselves," July 24, 2016

"An Answer to Athletes' Doping?" July 23, 2016

"Cancer: 'Of Course; But Maybe,'" July 13, 2016

"Clinton-Lynch Tarmac Talk; 'What Were They Thinking?'" July 4, 2016

"Focus on Muslims Misplaced After Shooting," Iowa City Press-Citizen, June 17, 2016, p. A5

"Keeping Up With ISIS; There Is Another Explanation for Orlando," June 14, 2016

"On Being, Doing and 'Compromise;' What's Next for Senator Sanders' Revolution? Here's My Suggestion," June 9, 2016

"When 'The Morning After' Looks Even Worse," June 8, 2016

"Searching for the Media's Soul," June 7, 2016

"My Take on Supervisor Race," June 4, 2016

"Breaking Through Power: The Media," May 29, 2016

* Most recent UI & President Harreld-related items & comments:

"What Putin Can Teach Rastetter," May 9, 2016, as published in The Daily Iowan, May 6, 2016, p. 4

"What Russia's President Putin Can Teach Regents' President Rastetter," April 16, 2016 (an expanded version of The Daily Iowan's excerpt, above)

UI President Harreld - Feb. 2016," February 1, 2016

Cessation of Ongoing Harreld Repository [Feb. 29]. For the past six months, since the Iowa Board of Regents' selection of Bruce Harreld as president of the University of Iowa, September 1, 2015, this blog has endeavored to compile a relatively complete repository of links to, and comments about, the news stories and opinion pieces dealing with the Board of Regents, President Harreld, and related items of relevance to higher education in general and the University of Iowa in particular. They are contained in the blogs for September-October, November, December, 2015, and January and February, 2016 (all linked from this page). I thought it would be a useful resource for those looking for a single source to follow the saga, as well as for those in future years wishing to do serious research, or merely inform themselves, about this important slice of UI's history. Response from readers indicates it has at least provided the former function. Now as they say, "as a concession to the shortness of life," and a desire to get back to other writing, I am going to reclaim those daily hours of research for other tasks. As major UI stories worthy of individual blog essays come along they will, of course be blogged about from time to time.

For research beyond February 29, 2016, you might start with this list (any omissions were inadvertent; email me suggestions for more):

University of Iowa AAUP, https://twitter.com/UIowaAAUP

Mark Barrett, Ditchwalk, http://ditchwalk.com (look for Harreld Hire Updates)

Iowans Defending Our Universities, https://twitter.com/IowansDefending

John Logsdon, https://www.facebook.com/johnlogsdon.jr, and on Twitter, https://twitter.com/JohnLogsdon

Josiah Pickard, https://twitter.com/uimemory

. . . and well-crafted search terms in Google. -- N.J., February 29, 2016
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More Detailed Contents, Links & Guide

The most recent blog essay (as distinguished from the entries listing UI-related material) is:"Breaking Through Power: The Media," May 29, 2016

See more, below.

University of Iowa, most recent: The most recent month's collection in the ongoing repository of news, opinion pieces, and documents regarding the University of Iowa, its current president, Bruce Harreld, the Iowa Board of Regents, and related matters is: UI President Harreld - Feb. 2016," February 1, 2016

University of Iowa, earlier: Earlier collections of, and individual blog essays about, the repository of news, opinion pieces, and documents regarding the University of Iowa, its current president, Bruce Harreld, the Iowa Board of Regents, and related matters are:
UI President Harreld - Jan. 2016," January 1, 2016

"UI President Harreld - Dec. 2015," December 1, 2015

"UI President Harreld - Nov. 2015," November 1, 2015

"Business Background: Enough for University President?" September 2-October 31, 2015

Recent terrorism-related blog essays

Recent TIF-related blog essays

Recent other than (1) University of Iowa, (2) terrorism, or (3) TIF-related topics:
"Breaking Through Power: The Media," May 29, 2016

"What Putin Can Teach Rastetter," May 9, 2016, as published in The Daily Iowan, May 6, 2016, p. 4

"What Russia's President Putin Can Teach Regents' President Rastetter," April 16, 2016
"The Constitution, Supreme Court and People's Voice: Senate Ignoring the People's Voice," March 21, 2016
"Why Won't Media Give Bernie a Break?" March 23, 2016
"The Constitution, Supreme Court and People's Voice," March 21, 2016
"Random Thoughts on Tuition-Free Iowa Universities," March 11, 2016
"Water," February 29, 2016
"The State of the Media," February 28, 2016
"Our Communities' Second Priority," February 7, 2016
"Bernie's Extraordinary, Unacknowledged Accomplishment," February 3, 2016
Why Nobody 'Wins' the Iowa Caucus," February 1, 2016
"Caucus With Your Heart And Head -- For Bernie," January 28, 2016
"Why I'm Caucusing for Sanders and You Should Too," January 22, 2016
"Reasons for Hope in 2016," December 25, 2015
"Feeling the Bern at The Mill," December 9, 2015
"Anyone for Democracy," November 22, 2015
General instructions on searching by heading, date, or topic

(1) If you've come to FromDC2Iowa and landed on this page, rather than what you are looking for, it is because this is the default page, the opening page, for this blog.

(2) Many visitors are looking for recent blog posts. At the bottom of this page you will find suggestions. At this time they include: (1) material related to the Iowa Board of Regents process for selecting President Bruce Harreld, and his ongoing performance in office, (2) terrorism, ISIS and Syrian refugees, and (3) TIFs, and other transfers of taxpayers' money to the wealthy.

(3) It is also possible to go directly to specific blog posts within this blog. Here's how:

First, go to the top of this page where you will see the headline, "Welcome to FromDC2Iowa: Contents & Guide" and click on it there (not as reproduced in this sentence). That will clean this page by removing blog posts from earlier this month.

In that right hand column you will find two ways of accessing individual blog posts:
(1) Blog Archive. The first is under the bold heading "Blog Archive.". You will see the years from 2006 to the present. Click on a year, and the months of that year will appear. Click on a month and the individual headlines for the blog posts during that month appear. Click on a headline and you will be transferred to that blog post. (Once there, you will see the unique URL address for that blog post that you can use in the future, or share with a friend, as a way to reach it directly.)

(2) Google Search Nick's Blog or Website. Immediately beneath the Blog Archive is the bold heading "Google Search Nick's Blog or Website," followed by an empty box, and the instructions, "Insert terms above; then click here." (Although it offers the option to search the "Nicholas Johnson Web Site" as well, it is set to the default: "FromDC2Iowa Blog.") Use whatever search terms you think most appropriate, such as "University of Iowa," "terrorism," "TIFs," or "Harreld." Your click will open up a Google search Web page listing the relevant blog posts (if any) with the links you can click on to see them.

University of Iowa's new President Bruce Harreld.
Looking for the blog post containing extensive repository of documents, news, opinion pieces (updated daily) from September 2 through October 31, 2015, regarding the Iowa Board of Regents' process, and early selection of UI President-elect Bruce Harreld? -->Click here<--

For November 2015 coverage -- with documents, news stories, and opinion pieces -- from his first day on the job, November 2, through November 30, 2015 -->Click here<--

For the December 2015 coverage -->Click Here<--

For the January 2016 coverage -->Click Here<--

In addition to these blog posts, which primarily contain chronological lists of documents, news articles and opinion pieces -- along with some relatively brief commentary about some of the items -- there are also the following more traditional blog essays and newspaper columns by Nicholas Johnson on these subjects:

"Hiring Candid, Courageous University Presidents," August 29, 2015

"Should Bruce Harreld Be Given Serious Consideration in UI Search?" embedded in "Business Background: Enough for University President?" September 2, 2015

"Better Ways to Pick a New UI President," The Gazette, September 27, 2015, embedded in "Seven Steps for Transitioning Universities," September 27, 2015

"UI's President Could Have Been Chris Christie," October 3, 2015

"Parallels Between School Systems Staggering," Iowa City Press-Citizen, November 10, 2015, embedded in "UI and Higher Education in Context," November 9, 2015

"Trouble in River City: Corruption Creep," December 13, 2015

"Quick Draw Harreld and Why Language Matters," December 17, 2015

Terrorism, ISIS, Syrian Refugees.
Understanding Terrorist Thugs," The Daily Iowan, December 3, 2015

Nicholas Johnson, "Sober Risk Assessment Needed to Respond to Terror," Iowa City Press-Citizen, November 28, 2015

Nicholas Johnson, "Syria's Refugees: Job One and Job Two," The Gazette, November 1, 2015

"Is U.S. Response Strengthening ISIS?" September 19, 2014

For additional speech texts, columns and blog posts on these subjects, see "Samples of Nicholas Johnson's Prior Writing on Terrorism and War"

TIFs and Other Crony Capitalism Schemes For links to 44 blog essays on these topics since 2006 see, "TIFS: Links to Blog Essays"

# # #

How to Start a Governorship

With President Trump's appointment of Iowa Governor Terry Branstad as Ambassador to China, his duties and powers devolved to Lieutenant Governor Kim Reynolds. On her first day as Governor she wanted to appoint a replacement Lieutenant Governor. It was unclear whether she had that power. One option would be to ignore her state's Constitution and stiff its Attorney General. Fortunately, she chose the other option -- "a little sidestep" reminiscent of a Texas Governor of years gone by.

video

[This is a one-minute, "fair use" clip of a wonderful scene from the feature film, "Best Little Whorehouse in Texas," loosely based on an establishment outside of Austin, Texas, many years ago called "The Chicken Ranch." The Texas Governor is under great political pressure from both sides, as you might imagine. Is he going to do anything about it? As one reporter sizes up the Governor's statement: "It's a possible 'maybe.'"]

Don't get me wrong. I think it's about time that Iowa have a woman as governor -- and United States senator -- even though I have, and probably will continue to, differ with these two on most issues. I believe that women's rights are among the top priority human rights issues of our age (globally as well as in the U.S.), and that the cause is greatly advanced with women in government. With 6 women of 50 Iowa state senators (12%) and 27 women among 100 House members (27%) Iowa still has a long way to go. I support Emily's List of women candidates for office, prefer that my Kiva loans in third world countries go to the women who have over the years, so far, paid back 100 cents of every dollar loaned, and I cheer women's victories from Iowa Women's Basketball to 100 Grannies. And see, "The Natural Superiority of Women; And Why Men Fail," September 11, 2012.

Indeed, it is for those reasons it's essential Governor Kim Reynolds not get off on the wrong foot.

What has she done -- or failed to do -- that is problematical? She has made one of her first acts the "appointment" of a Lieutenant Governor (Adam Gregg). Jason Noble, "Reynolds Taps Adam Gregg as Lieutenant Governor, but There's a Catch," Des Moines Register online edition, May 25, 2017.

There's little to object to about the person she chose. Gregg has a spectacular paper record in and out of government.

So what's the problem?

The problem is that the Iowa Constitution, its language, the context of that language, its courts' interpretations, and the interpretations of other states' constitutions with similar language, forbids a Lieutenant Governor, who takes over the responsibilities of a Governor, to appoint a new Lieutenant Governor. And in this instance, that conclusion is driven home by the legal opinion of Iowa's Attorney General, Tom Miller.
And this was no ordinary two-page legal opinion. The research, citations, organization, analysis, and quality of writing in the 23-page document are of law review article quality. If you would like to read it, you'll find a link to it HERE.

That opinion is the best source (indeed the only source so far as I know) for the contested issues, but some general examples (not necessarily applicable in this case) may help. However, know that the following paragraphs are not "the analysis" or "the answer" to the legal issues raised by the Iowa Constitution. They are only designed to warm up your brain to receive that analysis and answer from Attorney General Tom Miller's opinion.

For starters, it's necessary to understand the distinctions between "being" and "doing." I sometimes ask law school colleagues departing for deanships elsewhere, "Is it that you really want to do what deans do, or is it that you just want to be a dean?" It's not unusual for them to return to the classroom once they come to realize what they signed up to do.

Clearly, when the office of Governor is vacated, someone needs to do the constitutional tasks the Governor was doing -- as when there is a vacancy in the office of the president of a corporation or university. In the case of a Governor, that person is the Lieutenant Governor. Does that mean the Lieutenant Governor becomes the Governor, with the title of Governor, or that a state still has a Lieutenant Governor who is merely authorized to do what the Governor was doing?

Under these circumstances, if the Lieutenant Governor remains the Lieutenant Governor there is simply no vacancy to be filled. Or, if a state's constitution provides that the Lieutenant Governor is an elected position, no one can "appoint" a Lieutenant Governor. Or if a state's constitution provides an order of succession -- in Iowa it is Governor, to Lieutenant Governor, to Senate President, to House Speaker -- it would be inconsistent with that constitutional process to have, in effect, two Lieutenant Governors (one formerly elected, the second appointed by the first), thereby preventing (in Iowa) the Senate President from assuming the position of Governor.

In other words, had Governor Reynolds barged ahead and "appointed" a Lieutenant Governor, the best that could be said on her behalf would be that it was not clear she had that power. More likely, as the State's Attorney General concluded, were she to make such an appointment, it would be litigated up to an Iowa Supreme Court that would most likely find she did not have that power.
Before I knew that she had already appointed Adam Gregg, it seemed to me she had a couple of possibilities. (1) If she didn't wish to show her hand before the 2018 election, she could now appoint anyone she was leaning toward to some staff position -- something she would clearly have authority to do. (2) If she thought it politically advantageous, she could indicate now the person she currently proposes to select at that time as her running mate. (That is, while she can't appoint a Lieutenant Governor, with her Party's acquiescence she can in effect "appoint" a running mate who, if they win the election, becomes an "elected" Lieutenant Governor.)

What she ended up doing today [May 25, 2017] was something of a combination between those two:
Gregg will hold the title of lieutenant governor, but he will not be responsible for its sole constitutional function [succession to the Governorship]. Should Reynolds leave office, the vacancy would be filled not by Gregg but instead by Senate President Jack Whitver, the No. 3 on the gubernatorial depth chart according to the state constitution. . . . Gregg will "operate" the office of lieutenant governor but not actually "hold" that office. That means he'll be tasked with the ceremonial and administrative tasks of the office — and will draw the state salary associated with it — while remaining outside the gubernatorial line of succession.
Jason Noble, "Reynolds Taps Adam Gregg as Lieutenant Governor, but There's a Catch," Des Moines Register online edition, May 25, 2017.

Constitutional crisis averted. Gregg will be, in effect, a staff aide to the Governor, performing Lieutenant Governor-type tasks she might otherwise have to do. Meanwhile, should she change her mind during the next few months, she could designate someone else as her running mate without having to impeach Adam Gregg.

Not too bad a way to start a governorship.

# # #

Monday, May 22, 2017

Why Net Neutrality is Your Friend

[Graphic credit: ACLU]

President Donald Trump kept his promise. He said he’d “drain the swamp” in Washington. He has. What he didn’t tell us was that he would then fill his administration with the creatures that crawled out.

The news media and late night shows have reveled in their good fortune. Trump has provided them a daily flow of stories both entertaining and terrifying to move their audiences between tears and laughter.

But as a result, that 99 percent-plus of the federal government that’s not in the White House is mostly ignored by the media.

Farmers worry over the loss of overseas markets from Trump trade agreements. Public schools must deal with the loss of revenue from school vouchers. The oil and gas industry cheers a removal of regulations that rivals the Teapot Dome scandal that sent one of President Warren Harding’s cabinet members to prison.

And my old agency, now Trump’s Federal Communications Commission, is going about repealing the consumer protection called Network Neutrality. You don’t need to know anything about computers or the Internet to understand that one.

You do need to understand monopoly capitalism.

Most cities of any size have an abundant array of restaurants from which to choose – locations, menus, prices, and atmosphere. Aside from health concerns, “marketplace forces” provide adequate consumer protection.

By contrast, with rare exception most neighborhoods in those cities have no choice among monopolist internet service providers, such as Mediacom.

It’s the business of business to maximize profits by increasing prices and cutting costs (quality and services) until both reach optimum levels.

In a conversation with Chicago economist Milton Friedman he used the example of corporate pollution of rivers. “You are appealing to them to be ethical,” he said. “They can’t afford to be ethical. They can afford to comply with a law that’s also applicable to their competitors. Your answer is in Congress and state legislatures, not preaching in the streets.”

If an Internet service provider (ISP) also profits from distributing content it owns, it can make more money by censoring a competitor’s content, charging more for it, or slowing its delivery to your TV. If it doesn’t own content providers, it can bargain with those who are, providing them unfair advantages for the right price. And ISPs will set customers’ charges at the optimum profit maximizing level.

Harm to consumers will be limited only by the ISP’s imagination.

Once cities have as many ISPs as restaurants we can talk about “marketplace regulation.” Meanwhile, common decency requires that the FCC retain the consumer protection of Network Neutrality.

# # #

Tuesday, May 09, 2017

Mediacom's 1000% Interest Late Payment Fee

It takes a lot of money to survive in this economy if you're an unemployed single mother, trying to raise a couple of kids -- or working multiple jobs at the minimum wage or less. Millions of American men and women of all ages confront similar challenges.

How's that?

Dependent on public transportation, poor folks may end up paying convenience store prices for their groceries, rather than the cheaper prices (for more nutritious food) at Costco or mega-supermarkets. When there's "too much month at the end of the money" they have to borrow, paying interest on the money they use to pay their bills. If the bank won't loan to them, the interest on a "payday loan" to pay off the last payday loan may end up costing hundreds of dollars more than they initially borrow. Annual percentage rates of 400% are not unusual. If they're lucky enough to have a checking account, but unlucky enough to not have enough money in the bank, they may end up owing the bank $30 for each "insufficient funds" check -- plus another $30 to each of the merchants they were trying to pay, depending on merchants' charges for returned checks. [Photo credit: Nick Graham, staff, Dayton Daily News.]

These are expenses with which the wealthy are unfamiliar, because they've never had the experience of dealing with them.

However, there is one more expense analogous to Anatole France's observation that, "La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain." ("The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.") Le Lys Rouge, ch. 7.

Rich and poor alike are subject to the penalties for late cable bill payments.[fn 1]

Of course, like laws criminalizing the theft of bread, late payment fees fall heavier on some than others. The wealthy don't fail to pay their bills on time because they don't have the money. It's because they were on holiday in Europe when the bill arrived, put it in a pile of paper that they didn't go through in time, someone pays their bills for them, or they just don't care. For their poorer cousins it may mean one more payday loan.

I'm not wealthy. And I didn't major in STEM courses. But I do know enough math to work the numbers.

Here's an example of what I mean. Our City water bill is something less than $60 a month. What would it cost me, I wondered, if I just kept a balance of $60 with the City? These days it's hard to get more than 1% a year return on invested cash. So if I put that $60 in a savings account or CD it would produce 60 cents at the end of the year. That would be my cost, my loss, my "insurance policy" premium, for letting the City hold my $60 for a year. In exchange, I would never have to pay a single late payment fee (5% of the bill, plus unspecified "service fees" plus an additional fee for turning water back on). Such fees would be, in total, for a single offence, multiples of the 60-cent annual cost of avoiding them. And so long as I didn't fail to pay the bill for over two months I wouldn't have to worry about precise due dates.

It worked. No more risk of late payments fees. I started maintaining a balance with others. Except for the cable company, Mediacom. I tried it, but they seemed unable to handle the concept of a positive balance, so I gave up and tried to remember to pay promptly. Until this past month, when their bill got lost in a stack of paper, and they introduced me to their version of a late payments fee.

Now there's a little background you need.
• (1) To the best of my recollection I had a record of prompt cable payments every month for 28 years.

• (2) Very significant in this case, the cable company bills in advance. That is, I was charged a "late payment" fee for not paying in advance promptly enough for service I hadn't yet received (and is of often of unacceptable quality -- a technician is coming this morning to deal with broken signals[fn 2]).

• (3) Not knowing of the late payment fee that had been assessed on April 24, I had paid the amount due when the bill was discovered on April 26, in a check that cleared on April 27.

• (4) Thus, on the assumption that had I paid two or three days earlier the penalty would not have been imposed, what had the company lost? It had lost what it could have earned on $76.19 for (let us be most generous) four days. What would that have been at an annual percentage rate of 1%? Slightly less than one penny.

• (5) And how much was the penalty for this loss of 8/10ths of one cent? $8.50. And what is the annual percentage rate represented by $8.50 for four days use of $76.19? Roughly 1000% per year -- for paying a bill in full, four days late, for services not yet received. Rates like that make the pay-day-loan business look like a public charity.
Thirty years go this year (September 14, 1987), I was asked by an organization of cable company executives (CTAM) to participate in a debate with former FCC Chair Dick Wiley regarding the state of the cable industry. Here is a brief excerpt of my comments on that occasion. Although a bit harsh, they were delivered in good humor and received as such by the executives present. The question today is, just how much better has the industry become during the intervening years? Is it enough that they aren't dragging customers out of their recliners and onto the streets, airline style? Shouldn't we demand a higher standard?



[fn 1] I should make clear that the objection I advance in this post addresses the amount of the penalty for late payment, not the existence of such fees. The value of money, a payment, or a debt, is always a function of time. I would not deny for a moment that creditors are entitled to that value. I would strongly disagree that they are entitled to 400% (payday loan) or 1000% (cable company fee) returns during that time.

[fn 2] In fairness I should report that the two techs who came (and resolved the problems) were excellent in every way. They arrived at 10:00 for a 10:00 appointment, combined a friendly demeanor with a professional, experienced, serious approach to the challenges at hand, diagnosed more difficulties than they anticipated. Stuck with it until the problems were resolved, and left me a happy customer.

# # #

Monday, May 01, 2017

What Trump Needs to Know About Libel

[This commentary is not legal advice, and we do not have a lawyer-client relationship. If you are involved in, or contemplating, suing or being sued for defamation you should consult a lawyer, preferably one with experience in such matters. Lest you wonder, that cannot be me; I've long since turned my bar memberships in Iowa, Texas, and the District of Columbia to "inactive" status. -- N.J.]

I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. . . . So when The New York Times writes a hit piece which is a total disgrace . . . we can sue them and win money instead of having no chance of winning because they're totally protected. . . . we're going to have people sue you like you've never got sued before."

-- Presidential candidate Donald Trump, Rally, Ft. Worth Texas, Friday, February 26, 2016, Hadas Gold, “Donald Trump: We're going to 'open up' libel laws,” Politico, February 26, 2016.
President Donald Trump campaigned, and now governs, with ongoing attacks on the judiciary and the media – two institutions designed by the drafters of our Constitution to provide a check on presidential abuse of power. For those who look to the “original intent,” that was the original intent.

The president’s attack on the media has included the assertion that he is going to “open up our libel laws” so that he can sue newspapers like the New York Times.

Trump can already sue for libel. For starters, he already has the legal right to sue any newspaper or other media outlet for defamation (“libel” if written, “slander” if spoken). Anyone can sue for defamation. That includes the president.

Whether the plaintiff will win involves many elements of a defamation claim, but here’s a summary. There is a statement, about the plaintiff (not always obvious), the meaning of which must be ascertained (not always obvious), as understood by the individuals of relevance (such as customers of the plaintiff, neighbors, or members of the plaintiff’s profession), that was factual in nature (as distinguished from “opinion”), false, and which caused a measurable harm to the plaintiff’s reputation (among those individuals of relevance).

In short, it's simply not true, as Trump has asserted, that the reason he hasn't sued the media is he has "no chance of winning because they're totally protected."

(Many of the president’s tweets and other informal comments attacking and demeaning individuals and institutions would seem to fall within that definition of defamation. But the issues involved when a citizen wishes to sue the president for defamation would require another commentary.)

Different standards for plaintiffs who are public officials. If what Trump meant to say is that, as a public official, he must meet a slightly different standard than you or I to recover a judgment for defamation, he is right. That standard was set in a Supreme Court case.

What was new about Justice Brennan’s analysis for the Supreme Court in the landmark defamation decision, New York Times v. Sullivan, 376 U.S. 967 (1964), was that he approached the language involved from a First Amendment perspective rather than, or in addition to, solely a defamation analysis. [Supreme Court Justice William J. Brennan, Jr., photo credit unknown.]

He wrote,
“[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Sullivan, the plaintiff, was one of three elected commissioners in Montgomery, Alabama –- and therefore a “public official.” As such, the Court held, he had a right to sue for defamation, but to prevail on the elements just itemized he would need to show not just that the Times story had some factual errors.

He would need to show what the Court called “actual malice” – an unfortunate choice of words, since the everyday meaning of “malice” was no part of the standard. “Actual malice” meant that he would need to show “that the statement was made . . . with knowledge that it was false or with reckless disregard of whether it was false or not.”

The standard involving plaintiffs who are ordinary citizens focuses on, recognizes and protects the asset value of individuals’ reputations – with the byproduct of reducing remedies involving violence. Unlike the standard involving ordinary citizens, which only requires a false statement, public officials must show a measure of fault on the part of the media. This is because of the First Amendment value of speech involving public policy and public officials – speech that lies at the heart of what the First Amendment was designed to protect.

Balancing the desire to offer citizens a means for protecting their reputations against the value of First Amendment speech, this is where the Court came out.

Constitutional restraints on congressional and presidential law making. Article I of the Constitution lays out what in high school we call, “how a bill becomes law” (in Article I, Section 7). Clearly the president cannot create “law” all on his own; he cannot “open up our libel laws,” or any other laws for that matter.

Nor can Congress make any laws it pleases. Congress only has the power to legislate regarding what the Constitution grants in the 18 clauses within Article I, Section 8 – none of which come remotely close to libel laws. The “interstate commerce clause” (Article 1, Section 8, clause 3: “The Congress shall have power . . . To regulate Commerce . . . among the several States . . ..”) has been stretched pretty wide by the courts. But defamation? Originating in the English “common law” (judicial decisions) at least in the early 17th Century, if not before, has been considered a matter for the U.S. states.

Hopefully, Mr. President, you’ll find this analysis helpful in your quest to “open up our libel laws.”

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