Happy Fourth of July!

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Today I am thankful that I can say what I want, provide for my family, and succeed by my own hand in the greatest nation in the history of this Earth.

…and if you find this image triggering, then this holiday is not meant for you.

The Complex Litigator is moving domain hosts, so there may be wonkiness...

The Complex Litigator is moving all domain services…right about now. It may be smooth, but it may cause a day or three of strange behavior. The upside is that I can install proper certificates for secure connections, which will speed things up. Also, I can manage the domain in the same place that I manage the blog, so one less trip when things need updating.

Carry on…

UPDATE: Like, OMG, it finally worked. I spent the entire day fighting to push this transfer through.

My tech toolbox will include less of the Google hegemony

“Then they came for me—and there was no one left to speak for me.”

This is actually a shorter version of a post I tried to put up earlier today. The gist is that I am uncomfortable with a few tech giants like Google deciding what communications can be consumed when the "soapbox” is effectively a virtual soapbox now and anything you want heard must go through the Interwebs. The First Amendment isn’t directly implicated, but a few companies now have almost total control over the digital public square, and they are putting their thumbs heavily on the scale.

I read an article yesterday that commented on internal Google emails that referred to Ben Shapiro and Jordan Peterson, and Dennis Prager as “nazis.” I find that both depressing and disgusting. Depressing, as it shows that the current members of society are profoundly ignorant about the Holocaust. Disgusting, since it is simply a horrible slander.

I have heard all three of them speak more than once (Ben Shapiro and Dennis Prager mostly on the radio and Jordan Peterson in interviews). While I don’t know what lies deep in their hearts, I’ve heard nothing remotely close to justifying that abusive label by Google employees. Moreover, nothing they have to say is sufficiently awful to support an effort by Google’s employees to craft ways to exclude their content from recommendation algorithms. According to the story I read, those three individuals all had relatives that were killed during the Holocaust. Now, I happen to think Ben Shapiro, in particular, is frequently an obnoxious and arrogant punk. But at least he refuses to back down from the heckler’s veto mob, so credit for having brass ones I suppose. And not liking an opinion does not make one a “nazi.” That should go without saying. Apparently, it doesn’t.

The bottom line is that, after seeing tech companies like Google and Twitter and Facebook de-platform people while hiding behind their Section 230 immunity, I’ve decided that Google doesn’t get to look at my every purchase, newsletter and interest to make money by targeting ads at me.

I have started to view these lockstep platform bans as cartel behavior. Certain practices in the restraint of trade are categorized as being automatically unlawful. Such practices include group boycotts of competitors, customers or distributors. Implicit cartel agreements to refuse to deal with a class of customers might be per se unlawful behavior in restraint of trade.

If it isn't per se unlawful, the fallback analysis is the "Rule of Reason." I don't specialize in antitrust (at all), but this seems like a theory that should be examined closely by organizations with some resources that are being de-platformed and de-monetized.

Martin Niemöller offered the right warning; if you stay quiet for too long, eventually nobody will be left to speak out when they come for you.

Open Friday Post

It’s Friday again, so here is another chance to put up your very first ever comment.

Here’s a topic (that troubles me as a blogger): Do you think allowing the very large social media companies to ban swaths of commentary based on viewpoint will be beneficial in the long run? I’m not talking about the common error non-attorney commentators make of confusing this with First Amendment issues. I mean just what I asked — can you see any way that this doesn’t slide into severe, and constantly changing, viewpoint suppression by actual or quasi-monopolies?

Here’s an example: Pinterest Blacklists PJ Media, Other Conservative Sites and This Is Just the Tip of the Censorship Iceberg. PJ Media, if you don’t know it, is clearly a conservative political commentary site. But it’s certainly not radical by any reasonable measure. Among other things, it hosts Tennessee College of Law Professor Glenn Reynolds’ blog, Instapundit, which is widely read and not a hotbed of crazy, whether you agree with the politics there or not. Glenn is cool enough to have a regular column in U.S.A. Today, so I think it is safe to say that blacklisting a site like PJ Media is well down the slippery slope to the place where that greased pig is picking up steam. It’s all fun and games until your speech is the suppressed and blacklisted speech.

Can’t wait until I’m blacklisted. Bright side: maybe I already have been!

Enjoy your weekend.

USC Law turns pathetic, moves to protect snowflakes and endorse heckler's vetoes

I attended USC Law School. When I was there, I don’t recall a lot of compassion for snowflakes troubled by school speakers. That was then. Now, USC takes a bold and decisive step to self-neuter, allowing graduation speaker Jeh Johnson, Former Homeland Security Secretary, to withdraw as a graduation speaker…because some people complained about him. His comment in withdrawing was certainly diplomatic, reportedly saying that “graduations should be free of tension and political controversy.” Noble sentiment. But what it actually does is permit a heckler’s veto over any idea more milquetoast than “You all get a diploma. Yay!”

To the students crying about a former Homeland Security Secretary that, shocker, made some mild efforts to enforce border security and control immigration, drop out now. To the faculty complaining about his work — in an administration not known for its overwhelmingly harsh stance on immigration and border control — find another career, as you are unfit to craft the minds of young people into solid attorneys.

To the Dean of USC Law, grow a pair. You should have told the faculty to stuff it and told the students they were free to be elsewhere on graduation day.

Friday Open Post

So I’m going to try an experiment that will almost certainly fail, but I’m going to do it anyhow to spit into the wind. This is your chance to suggest anything you want in comments. You can propose cases to discuss (I’m still contemplating the Supreme Court’s Lamps Plus decision, so that’s covered on my list already). You can note other legal news of note. Anything (within reason - but I will bend the comment policy quite a bit to allow for far-ranging topics).

Related to comments, I’ve updated this blog to use Disqus for comment functions. I wanted to see if it generates any more community discussion. Probably not, because lawyers, for whatever reason, are resistant to actively engaging with sites like this. What I have yet to figure out is why lawyers do so much on LinkedIn but not blogs. Anyhow, go crazy! Comment! Give you review of Avengers: Endgame in the comments.

A word to the (un)wise...

Work product gets reused by other attorneys all the time in the legal profession. No big deal, right? If someone crafts a good argument on an issue, and someone else is facing that same issue, it makes sense to present that good argument. I take no issue with that.

What I do take issue with, however, is false attribution of the original source of the argument. That treads into dangerous terrain. I note this distinction because it has come to my attention that an “enterprising” young lawyer out there copied a large number of very elaborately formatted and designed Microsoft Word templates and then began passing them off as his own to other employers. Re-using an argument I’ve created is fine. Who could blame you really? But to tell an employer that you bring value because of the hard work that went into creating the templates that you ripped? That’s just shady. I am providing this public service announcement while maintaining the anonymity of the little rapscallion in the hope that this friendly note will encourage more honest disclosures going forward. By the way, I have the very first versions of many of those templates (like the mediation brief format I devised to resemble an appellate brief, rather than a letter or a pleading), creation-date-stamped and all, so I could prove my point if I had no other option…

A word to the…wise.