Month: July 2019

This Doe v. Doe case was filed Monday in San Francisco Superior Court; plaintiff (described only as a “business executive”) is suing defendants for libel, false light, and harassment, but it’s basically a libel claim:

On or about May 21, 2019, Defendants caused to be published false and unprivileged statements directly injuring Plaintiff in his business and professional reputation by expressly stating in a written flyer … that Plaintiff is “an abuser.” The Flyer identified both Plaintiff and his employer’s names and their incomplete email addresses, as well as the hashtags: “#BelieveVictims” and “#SupportSurvivors.” … Defendants retained and paid individuals … to distribute copies of it outside of a nearby event space where Plaintiff was speaking at a private conference sponsored by his employer.

Now I understand why the plaintiff wants to be anonymous—if he is identified, then more people will hear of the accusations against him, even if he’s ultimately vindicated (or, as is more likely, the case eventually settles). But nearly all criminal defendants (except the very few whose identities have already become widely known), most civil defendants, and nearly all libel plaintiffs would prefer anonymity for the same reason; yet that’s not the way that our system works.

As Seventh Circuit Judge Richard Posner put it (in an opinion joined by Judges Frank Easterbrook and Ilana Rovner), “Judicial proceedings are supposed to be open, … in order to enable the proceedings to be monitored by the public. The concealment of a party’s name impedes public access to the facts of the case, which include the parties’ identity.” Indeed, even the great bulk of sexual harassment cases are litigated under both the plaintiffs’ and defendants’ real names.

There are, to be sure, exceptions; victims of outright sexual assault are generally allowed to use pseudonyms, for instance. Minors usually litigate under pseudonyms (whether John Doe or initials such as M.V.). Facial challenges to government actions—such as claims that a speech restriction is unconstitutionally overbroad on its face—are sometimes brought pseudonymously, with little controversy because the identity of the particular plaintiff is largely irrelevant in such cases (I was involved as a consultant in one such case). There are some other categories as well.

But, again, they are exceptions. That one has been accused—perhaps falsely—of bad behavior (e.g., sexual harassment as an employer) is generally not seen as sufficient to justify concealment of one’s name, whether one is a libel plaintiff, a sexual harassment civil defendant, or a criminal defendant.

What’s more, if the legal system really commits itself to concealing a libel plaintiff’s identity, it will have to suppress a great deal of information at the heart of the case, including the specific statement that’s alleged to be libelous. After all, even if the plaintiff’s name is redacted from the statement, there will often be enough to identify the plaintiff—for instance, in online libel cases, if the material hasn’t yet been removed, including any part of it in court filings may make it easy for people to just Google that part and see the whole statement. (The wrongful search optimization lawsuit I blogged about two weeks ago is an example of that; I found the underlying facts using Lexis, a pay service, but I think they could have been found via Google as well.)

That may push the court towards not just allowing pseudonymity but also sealing the allegedly libelous statements that are at the very heart of the litigation (as I’ve seen happen in at least two pseudonymous libel lawsuits). And that would make it much harder for the public to monitor how courts are resolving the libel lawsuits—and in the process monitor (and perhaps critique) when and why courts are restricting defendants’ speech, whether through damages awards or injunctions.

Of course, a court could adopt pseudonymity without sealing, perhaps on the theory that pseudonymity will at least expose the plaintiff’s identity less to casual searchers, even if determined reporters (and others) who really want to cover the case can figure out what’s going on. But my sense is that allowing a libel plaintiff to proceed as a Doe is often just the first step towards broader public access restrictions as well.

In any event, I thought I’d flag this case as an interesting example of this broader question—and an interesting consequence of the recent increase in public attention to alleged sexual harassment. I hope to write about a few other such cases in coming months as well.

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After the U.S. invasion of Iraq in 2003 turned into a mess that led to an immense loss of life and years of violent havoc in the Middle East, the war’s backers flippantly declared that “everyone” agreed on the war. The invasion’s evolving justifications—Saddam’s supposed amassing of “weapons of mass destruction” to his alleged ties to Al-Qaeda—were overblown, but if everyone was in agreement then who could possibly second-guess the military effort?

At the Editorial Board of the Orange County Register, we produced one piece after another questioning the war. We even got in a spat with one Fox News personality, who took umbrage at criticism of the war while the fighting was going on. That was somehow unpatriotic. But the United States has been involved in endless conflicts. If Americans held their tongues while bombs are dropping, then when could they ever feel free to air their concerns?

“There is no real threat to the United States, only a theoretical one based on faulty premises,” I opined at the time. “It is unjust, in that it is not a war of last resort. It will run up tens of billions of dollars in costs, and it will lead to the limiting of civil liberties at home. Furthermore, America will be managing Iraq for years, perhaps decades, and our presence there is more likely to destabilize than democratize the region.”

Those points largely were correct. (This column isn’t about “I told you so,” by the way, but about “look how far we’ve come.”) Even the current GOP president has lamented that war. When Donald Trump recently called off airstrikes on Iran at the last minute, almost everyone expressed relief. It’s a new world ideologically and our long-standing foreign policy consensus is, finally, up for debate again. It’s taken long enough, but better late than never.

Many of us have serious concerns about our increasingly fractious political discourse, but it’s great that old coalitions are falling apart, new ideas are flourishing, and we’re seeing a rethinking of age-old international policies that have been off-limits to debate. It’s refreshing to see many conservatives abandon their kneejerk support for militarism—and nice to watch a prominent Democratic presidential candidate, former Sen. Joe Biden, held accountable for his support for the Iraq blunder.

One recent Boston Globe column highlights how much the ground has shifted. Both sides have their billionaire bogeymen. Conservatives dislike George Soros and liberals dislike the Koch brothers. But Soros and the Kochs are “uniting to revive the fading vision of a peaceable United States,” according to the article. They are working to end our “forever war” policies and “promote an approach to the world based on diplomacy and restraint rather than threats, sanctions, and bombing.” Bring it on.

The founding fathers were skeptical of empire. In his oft-quoted farewell address, George Washington warned against “the necessity of those overgrown military establishments which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty.” This has been a constant thread even in modern times. We all know that President Dwight D. Eisenhower, a celebrated general, warned about the “military-industrial complex.”

During World War I—another costly, unnecessary conflict that led to horrific unforeseen consequences—progressive writer Randolph Bourne warned that “war is the health of the state.” Indeed it is. During wartime, the public becomes part of “the herd,” he wrote. It is reluctant to criticize its own government, which always is the main threat to our liberties.

These days, many of Trump’s supporters are paleo-conservatives, who have always looked askance at military adventurism. Presidential candidate Tulsi Gabbard, a member of Congress from Hawaii who served in the U.S. military in the Middle East and is a major in the Army National Guard, has been the most thoughtful Democrat on the subject.

She complained to National Public Radio about “leaders in this country from both political parties looking around the world and picking and choosing which bad dictator they want to overthrow.” She opposes “sending our military into harm’s way and then trying to export some American model of democracy that may or may not be welcome by the people in those countries.”

These are unusual political times. We’ve got many evangelical Christians celebrating the “miracle” of a president who, let’s just say, has a spotty moral background. We’ve got “limited government” conservatives championing government control of the economy through tariffs and “big government” Democrats espousing free trade. And yikes—we’re even debating socialism again.

But the good news is things have gotten weird enough that Americans appear ready to consider a foreign policy based on peace and diplomacy. I didn’t believe that was possible in 2003 when the United States was invading Iraq, but it’s possible now—and that’s heartening even if everyone isn’t on board with it yet.

This column was first published in the Orange County Register.

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David Crosby has been many interesting things over the course of his 77 years: a founding member of the Byrds—the band that created folk rock—and of the subsequent super-duper group variously known as Crosby, Stills & Nash (CSN) or Crosby, Stills, Nash & Young (CSNY). He has also been a junkie, a fugitive, a convict and a world-class asshole. The new documentary David Crosby: Remember My Name lays out this story in ways that are often moving and, if it need be said, never dull. (Some rarely seen club and concert footage helps a lot.)

The Crosby of today—his freak-flag hair now snowy but still flying—is a man battered but unbowed. He’s had “two or three” heart attacks, he says, and there are eight stents inserted in that weary organ—the maximum number possible. Hepatitis C destroyed his liver, which required a transplant, and that’s been chugging along for 25 years now. He is also diabetic.

“But I’m happy,” he tells interviewer Cameron Crowe (who first interviewed Crosby for a CSNY piece in Rolling Stone in 1974). “Yeah, I’ve got a huge regret about the time I wasted bein’ smashed. I’m afraid of dyin’, and I’m close. I’d like to have more time—a lot more.”

He’s making up for as much of his many lost years as he can. He feels he still has things to say musically, and in the last five years, he’s recorded four solo albums with younger musicians. But he also needs to stay out on the road touring, because unlike Steven Stills (“Suite: Judy Blue Eyes”), Graham Nash (“Teach Your Children”) and Neil Young (“Ohio”), Crosby didn’t write any of the big hits of the groups with which he’s most closely associated. So he has to keep finding ways to pay the mortgage on the tranquil ranch he shares with his wife, Jan.

So it’s tough. And kind of lonely. “All the main guys that I made music with won’t even talk to me,” Crosby says. “All of ’em. McGuinn, Nash, Neil and Steven all really dislike me. Strongly.”

He doesn’t blame them. Byrds guitarist Roger McGuinn—the man whose jangly 12-string sound became a sonic readymade in the garage-band tradition—grew tired of Crosby’s political loud-mouthing, especially after he launched into a conspiracy rant about the Kennedy assassination onstage at the 1967 Monterey Pop Festival. “David had become insufferable,” McGuinn says in the film. “He was hard to hang out with. You didn’t want to be around him.”

After being fired from the Byrds, Crosby fell in with Steven Stills, whose own band, Buffalo Springfield, was just then falling apart. They were soon joined by English singer and songwriter Graham Nash, who’d grown bored scoring beautifully crafted pop hits with the Hollies. The first CSN album was a smash. Then it was decided to expand the group’s lineup, and Crosby recalls a one-on-one audition with Neil Young, another Springfield refugee, sitting on the trunk of a car one-night strumming through new songs like “Helpless” and “Country Girl.” Déjà Vu, the first CSNY album, was an epochal money-gusher, and it triggered auxiliary solo careers for each of the group’s members. (Crosby’s first solo album was the 1971 If I Could Only Remember My Name.)

Crosby found a way to screw these good times up, of course. (“I was a difficult cat—big ego, no brains….”) Along with tossing off colorful bits of period reminiscence throughout the film (Jim Morrison: “what a dork”), he cops to every bit of bad luck he created for himself and for others: the girlfriends he led down a dark path of drugs, his own ruinous heroin addiction, his unauthorized flight from a drug-rehab facility, which led to a five-year prison sentence (of which he served only five months—long enough to kick his heroin habit).

Through all of this, CSN and CSNY wobbled on, amid much bickering and recrimination. Then, in a 2014 press interview, Crosby described Neil Young’s new girlfriend (and now-wife), the actress Daryl Hannah, as a “poisonous predator.” Crosby says he thought the remark was off the record, but knew it was way out of line in any case. Young hit the roof, and let it be known that CSNY was over. A number of other unpleasant things surely went down as well. “He tore the heart out of CSN and CSNY in the space of a few months,” says Graham Nash, adding that he wrote a song called “Encore” with Crosby in mind: “Who are you when the lights have gone out and the audience has left? Are you a decent person? Or are you a fucking asshole.” Nash says that he hasn’t spoken with Crosby—a man he talked to every day for four decades—in several years.

What may turn out to be the last CSN performance ever took place at the National Christmas Tree lighting ceremony in Washington, DC, in 2015. We see it in the film: the three of them standing out in the cold, struggling to harmonize a simple rendition of “Silent Night,” and failing. “We were fuckin’ terrible,” Crosby admits.

So is that it? The end? Crosby hopes not. “I think you should be able to say goodbye, and tell them what they meant to you,” he says. He knows time’s getting tight, though.

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Here’s a story from this week that you likely won’t hear much about, what with the 24/7 cable news screamfest over the Trump-Squad wars: The White House announced that its 2019 federal deficit projection has been revised upward to the symbolic $1-trillion threshold.

To accommodate this irresponsibility, Treasury Secretary Steven Mnuchin and House Speaker Nancy Pelosi (D-Calif.) are quietly negotiating the increase or even removal of that once-controversial artifact: the debt ceiling.

Mnuchin maintains, probably with some hyperbole, that the country faces default in September unless Congress raises the $22-trillion debt limit the country already blew through in March. (Treasury has been taking various emergency measures to patch the fiscal ship of state since then.)

Pelosi counters that in exchange for Democratic support, she wants a two-year budget deal that jacks up discretionary domestic spending. If recent history is any judge, the two will likely dance around each other for a while, then agree to spend and borrow trillions more.

Notice what is not on the table, despite a GOP administration: reining in federal spending, whether next year or next decade. What a difference a little power makes.

When a Democrat held the White House, the debt ceiling was the Republicans’ favorite tool for forcing conversations about spending caps and long-term entitlements. It dominated the national political headlines from 2011-2014.

Now, particularly under a president who won a competitive primary by trashing traditional conservative notions of trimming the welfare state, Republicans are treating the borrowing limit as a momentary irritant, to be waved off as politically necessary.

The flight from fiscal rectitude pre-dated the rise of Trump. As soon as Republicans re-took control of the Senate in November 2014, new Majority Leader Mitch McConnell (R-Ky.) said: “Let me make it clear: There will be no government shutdowns and no default on the national debt.” So much for the previous four years of political conflict.

Back then, fiscally conservative members of the Tea Party movement still had enough self-respect to call out their free-spending colleagues. In March 2015, then-Rep. Mick Mulvaney, a founding member of the recently formed, deficit-hawkish Freedom Caucus, wrote a Wall Street Journal op-ed headlined: “The Republican Budget Is a Deficit Bust,” arguing, “There is no honest way to justify not paying for spending, no matter how often my fellow Republicans try.”

Less than three years later, as a power-accruing member of the Trump administration, Mulvaney declared that “We need to have new deficits.” Well, mission accomplished.

The Congressional Budget Office last month once again called the country’s long-term fiscal trajectory unsustainable, warning that any meaningful rise in interest rates could trigger a global financial crisis. We will soon top even World War II records for debt as a percentage of GDP; annual debt service will likely eclipse military spending during the next presidency, and Medicare is on pace for forced benefit cuts by as early as 2026. All this during the late stages of a near decade-long economic expansion.

So what are the deficit hawks at the Freedom Caucus doing nowadays? Criticizing co-founder (and now defector) Rep. Justin Amash (I-Mich.) for daring to criticize Trump.

The president is certainly onto something when he says, whenever asked about the looming debt crunch, “Yeah, but I won’t be here.” Sadly, though, the rest of us will be.

And here’s where things get worse. As Mulvaney warned in 2015, Republicans from 2011 through 2014 “were gaining the moral high ground on spending,” but with new increases “we lost it, and it will be harder to regain the next time.” No one will soon believe Republicans next time they cry about President Elizabeth Warren’s mammoth new spending plans.

Americans received a telegram from that lost world of conservative deficit-hawkery on Tuesday, when former South Carolina congressman and governor Mark Sanford said he was considering a challenge to Trump for the Republican presidential nomination. “I think the Republican Party has lost its way on debt, spending and financial matters,” Sanford told the Post and Courier.

So will Sanford be the flicker that causes the GOP to reignite its sense of fiscal sanity? Bet your life savings against it. Not only are we living in a time when one of the most influential conservative media figures, Tucker Carlson, is singing the praises of Warren’s economic ideas; there’s the not-insignificant matter of Trump himself.

The Republican Party already has a primary challenger to the president who talks in every speech about debt and deficits, fiscal rectitude and long-term entitlement fixes. And Bill Weld is being outpolled by an average of more than 70 percentage points, while being outfundraised by Trump 150 to 1. There may be a place for deficit hawks in American politics, but it’s not in the Republican Party.

This article originally appeared in the L.A. Times.

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