Section 230 and the Infrastructure and Reconciliation Bills

Both parties should have put a repeal (or at least a revision) of section 230 of the Communications Decency Act into these bills. Both parties have expressed dissatisfaction with this law. Republicans certainly should have included this as a provision and condition of passing these bills. I find this very disappointing. This is “social infrastructure”. Section 230 has been one of the most damaging things to happen in this country. People firing-off comments- ranging from obnoxious, to defamatory, to vindictive, to hurtful- is all a result of Section 230. I truly believe that section 230 and social media are responsible for the riots across this country. Together they combine rage, lies, and the aggregation of like-minded people who rally to or behind a cause, reinforce each other, and coordinate. We can improve the world and the dialogue by repealing this law and forcing websites to check facts before allowing comments to be posted. By doing this, in addition to liability for publication, it achieves three other things at the same time:

i. It shows the public that the comments are being reviewed and edited, and this then creates “brand equity”- which means that if mean things are posted, that the company chose to allow it, and that this is their brand;

ii. it stops fake, harmful content from being disseminated; and

iii it creates a huge business cost to these platforms, which is a “de facto” way to make them much smaller and less monopolistic. People will choose which brands- that are now editing content, under law- reflect their values. It will create a more fragmented social media market- a good thing.

I implore anyone who reads this to send this to their party influencers and lawmakers. This is a bipartisan and nonpartisan issue. This law was passed when commercial use of the Internet was in its infancy. We did not have enough data or knowledge of its uses and effects. We have learned enough at this stage about the harm that can done. Fact-checking before publication is not an abridgement of free speech. Newspapers and magazine have had to do it for decades. Opinions can be published in-line with the First Amendment. Anyone’s opinions should be welcome. But by checking “facts”, it forces the websites, like newspapers and magazines, to check tone of their brand, to stop false information, and to slow down the publishing of impulsive comments and responses (a cooling-off period). Remember that people can publish their own websites and blogs to promote their own opinions (with fact-checking, per the law). This has nothing to do with the First Amendment and opinions or feelings. This is about “facts”. Also, remember that this applies to business and travel review websites, as well. They exist because of section 230. So, false information about people’s businesses (such as from competitors or from vindictive customers) would also have to cease. Repeal this law.

Corporate Housing

https://www.theatlantic.com/ideas/arch

Corporations owning residential homes is in fact, a growing problem. It should be stopped.

This article misses the point. First, there are several issues involved, including zoning. But what matters is what communities private equity is investing in. They do not invest in poorer communities, in many cases, so they are not affecting the overall data. It’s skewed. Moreover, low interest rates and yields are allowing, or forcing people to pool money to form small private equity LLCs that are buying homes. This is hard to detect in the data. Further, short term rental companies are aiding people to turn houses into motel rooms. Finally, the input costs and lack of labor keeps hopeful homeowners in a bind. Corporate America should not be allowed to infiltrate local housing markets- where people need to afford to live. It is about small business and protecting the middle class. No one corporation should be allowed to exceed a percent of ownership within a certain zone, unless that corporation built those those.

https://www.theatlantic.com/ideas/archive/2021/06/blackrock-ruining-us-housing-market/619224/

The Value of Free Legal Advice

When someone calls or emails me for legal advice, I can always “sniff-out” that they want it for free. And when they do, it’s fine. But after I give them the advice, I explain, or qualify it this way, every time:

1. I am going on the facts that you gave me or on no facts, at all. I am just giving you the laws at issue. The facts of your situation would have to be properly implemented.

2. The advice is worth what you paid for it.

And I mean these things.

I’m happy to give some free legal advice (or free business, or financial, or branding, or economic, or writing, or speaking, or political advice). I make most of my income in other ways these days and I like to help. I have a lot of experience. But I always make these above two things clear so that everyone knows the rules and limitations on the advice: I don’t have all the facts, and my diligence on the details is limited by your budget. If you want certainty, retain a lawyer and provide him or her with all the specifics.

To Tweet or Not to Tweet: There is no Question

The problem with social media and politics is that people lash-out and rant, rather than intelligently articulate their positions. A lot of that is due to goading. A person on one side of an issue says something and then an unsolicited opinions follows- and then an argument ensues.

I choose to create sensible ideas and strategies based on my values and knowledge- financial, economic, political, legal, whatever- and then offer them to others- without being rude or posting them publicly to offend people who do not want to hear/read it. I think readers and recipients appreciate it. I choose not to tweet or post; because I know that it inflames and annoys others- as it does me. Instead, I craft thoughtful clear detailed letters- or emails- not only on politics, but also on economics, and law, and charity, and social issues- and send them to those who can help get my ideas out to those who can influence policy, change, and/or legislation- or just to improve or rectify a factual inaccuracy (such as on a financial network). I am more “old school” and targeted in my approach.

It’s true that I am an attorney and I can better articulate arguments and positions and I am a better writer than many, but perhaps we need writing skills taught more effectively in schools so that people can learn the power of the written word- not the written tweet. Good writing is part of exercising your First Amendment right to free speech and a free press as well as your right as an American to participate in your government through opinions and votes, and it’s far more empowering than tweeting on the Internet. People take it much more seriously if you take the time to articulate your ideas and your thoughts- direct them to a specific recipient (just like for a resume, addressing a specific person is more likely to capture a reader’s attention) to educate them on topics, or enlighten them as to the thoughts of a member of the general public, or to encourage a reaction- rather than something designed, or that will inevitably lead to reactions and rage.

Don’t get me wrong. I fire off spontaneous thoughts and ideas, just like everybody else; but I do not post them where people can be offended by my ideas. Frankly, I think that that is anti-social, insensitive, disrespectful, impulsive, and rude to just impose your latest opinion on unsuspecting people. Nobody likes that, really (unless they like your opinion).

Your opinions and ideas on the national government and your own state government is as valuable as that of any governor or senator or sitting president. They have the power- but you gave it to them. The power is in the representation of “you”- whatever your party affiliation; and you have the right to express your ideas, thoughts, and feelings on how any and all aspects of your own nation or state should be operated and legislated. But you have to do it professionally to really get a foothold in the process without running for office. Tweets are not the way to do anything except blow off steam and divide us all further.

Another option is to create an intelligent blog and put all of your ideas there. I do this, as well. Then reach out to people of influence, in a professional manner, with a letter of introduction, to ask them to follow your blog. Whether you post your ideas to a blog or send them in an email, these are better options than tweeting out inflammatory things if you really are dedicated to affecting policy and legislation and getting a result. Of course, I am not suggesting that your ideas or thoughts will, alone, change a policy or law- I’m just suggesting that you can provoke thought and get attention with smartly and professional drafted letters (or emails) that aid people to trust your judgment and intentions.

The best thing that you can do is the last thing that anyone wants to do- often, whish is to get directly involved in the political process. Make the effort. Read the legislation and understand both sides’ motivations. Communicate with influencers and lawmakers about your feelings and positions and ideas. Violence and division comes from anger. Anger comes from frustration. Frustration comes from not being heard or factored in- a feeling of powerlessness. You can change all that. Get involved in the process. It’s your responsibility as a citizen. But people don’t want that responsibility. That want to tweet and insult and criticize. Learning, acting, discussing, professionally and clearly communicating, and participating as best as possible is an option.

PG&E Charged With Manslaughter- Strange

https://www.npr.org/2021/09/24/1040630538/pacific-gas-electric-manslaughter-charges-california-wildfire-zogg

Even as an attorney, I did not know that a company can be charged criminally unless a person is also charged. It doesn’t make sense to me that a corporation- a legal figment- can commit a crime without a person having, actually, committed that crime. It seems ridiculous. A crime- requires a criminal. No? All states, of course, have their own laws and theories, but there had to be a decision-maker(s) who made the fatal decision; so, if a company is responsible, I don’t see how a person is not responsible. A person made the decisions. Moreover, the criminal penalties are the same as the civil penalties- fines. In a civil or commercial matter, we accept that a corporation shields a person from personal liability, but there is really no general understanding that in a criminal matter, a corporation shields an individual from liability for a crime- or else we’d all form corporations and act through them on a daily basis. What if an owner or executive at a company assaults someone while at work or robs a bank to pay company bills? Is only the company criminally liable, but not the person? It really makes no sense, at all.

https://www.npr.org/2021/09/24/1040630538/pacific-gas-electric-manslaughter-charges-california-wildfire-zogg

Sonnie – Amazing Stuff

I recommend that everyone take time to listen to Sonnie Johnson. She is intelligent, interesting, informative, eye-opening, and historically-enlightening, and I have learned tons from her message and programs. Really amazing stuff, irrespective of your politics. It’s educational.

As I have been saying for months, Republicans must make a much larger more dedicated effort to listen to and respond to the needs and wants of minorities- many of whom are Republican- or Conservative (either through party affiliation or just through their beliefs, values, and essences as Americans). It’s a matter of votes, but it’s not just a matter of votes. It’s a matter of a bigger tent with those who have the same values that are … well … valued by Conservatives.

https://www.foxnews.com/media/sonnie-johnson-warns-gop-to-stop-talking-down-to-black-america-fix-the-issues-plaguing-urban-communities

Representing Clients: Laws and Facts

An attorney provides a client with the applicable law for their case or lawsuit. The client provides the attorney with the facts.

Sometimes, it’s difficult for an attorney to get the correct facts. It all starts with the client.

The initial facts for a transaction or lawsuit starts with a client’s description (in a business transaction), rendition (in a business litigation), or recollection (in a criminal cases) of the facts.

But by interviewing the client, it often is the case that either the facts are confused or the client does not know the facts he or she presumes to know.

In order for the attorney to best represent the client, the facts have to fit the law. Even in a contract, the facts of the client’s business operation have to be known in order to craft a proper agreement that serves the client’s purpose. At the end of the day, the client has to provide the facts the attorney applies to a case or contract.

Now-

an attorney has to do a certain amount of independent investigation of facts- if for no other reason than to ensure that the client is not mistaken, or, to make sure the client is not wrong- or lying.

An attorney has to do a certain level of research (including reviewing relevant documents, such as contracts, police reports, or leases, depending on the type of issue), but, ultimately, has to rely on the client to provide the facts that the attorney implements into a legal strategy or contract- as long as the attorney does not have good reason to know that the facts are wrong.

An attorney can proceed on wrong facts if he or she chooses- knowing the risk of committing malpractice if a business transaction fails, or the risk of losing a case. But, the attorney can get a written consent from a client that the client knows the facts are not clear, could be contradicted, and the mis-facts could cause losses under a contract or a lawsuit.

So, the client has to provide and/or sign-off on the facts with which the lawyer will proceed after the lawyer fully apprises the client of the facts being used and the risks of bad facts being contradicted.

This said, an attorney should not proceed and should refuse to represent the client where the facts the attorney believes to be true are grossly different than those that the client represents to be true, as the attorney could lose the case, harm his or her reputation, and even be found to have unethically proceeded in a case or transaction where he or she knew she was ill-equipped to provide effective counsel- even with the client’s consent.

Every American is entitled to a zealous legal defense or legal representation. But, if there are clearly misalignments between the law to be applied and the facts being applied to the laws, then the attorney should probably not take the case or transaction, as it can lead to negative or flawed outcomes- and then no one ends up happy.

You will often hear criminal defense lawyers say that they do not ask their clients if they are guilty, unless the client offers it up. They just review the facts as provided by the client and the police, then agree with client on the defense based on the facts the client and police have. In fact, unless the facts contradict the position, the attorney will just assume the client is not guilty- again, unless the client offers otherwise- and the attorney will attack all elements that the uncontroverted facts do not contradict. Or, the client and attorney will agree to a procedural defense- such as seeking a plea. The attorney, would of course, advise the client of the risk of losing on the defense decided upon.

In sum, the attorney provides the law and legal strategy available to the client- but the client has to provide the facts to the attorney that he or she believes to be accurate for the attorney to proceed upon. Whether in a business transaction or a lawsuit, it’s ultimately up to the client what facts are used and up to the attorney if he or she is comfortable with the facts to be used.

The First Amendment

There’s been a lot of talk in recent months about the First Amendment. Especially with regard to social media, where people write about everything that pops into their heads- including about hoping for violence or harm to groups or to individuals. Note, that I wrote “hoping” (or “wishing”), which is different than inciting, or soliciting, or planning.

The First Amendment to the US Constitution prevents the government from making laws which regulate an establishment of religion, or that would prohibit the free exercise of religion, or abridge the freedom of speech, of the press, of assembly, or of the right to petition the government for redress of grievances.

First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, freedom of the press, or freedom of the right of the people peaceably to assemble, and freedom to petition the Government for a redress of grievances.”

The First Amendment broadly protects the rights of free speech and free press. Free speech means the free and public expression of opinions without censorship, interference and restraint by the government. The term “freedom of speech” embedded in the First Amendment encompasses the decision what to say as well as what not to say. Free press means the right of individuals to express themselves through publication and dissemination of information, ideas and opinions without interference, constraint or prosecution by the government.

The Supreme Court in Chicago Police Dept. v. Mosley (1972) said:

But there are limitations on the First Amendment, as follows: for obscenity, fraud (i.e. misstatement of a material fact that directly causes damage or lose), child pornography, speech that incites imminent lawless action, fighting words, speech that violates intellectual property law (ex: copyright infringement), plagiarism (duplicating another’s words and holding them out as your own), perjury (lying under oath), blackmail (threats in order to obtain monies), sedition (plan to overthrow the government), discussing classified information, solicitation to commit a crime (offering to pay to have someone killed- which would fall under “conspiracy” and require a substantial step beyond words), true threats (“I’m going to kill you when I see you”), official limitations on time, place, and manner (cities regulating protests), defamatory words that cause harm (slander- a much higher standard of proof is required for defamation of public figures than for private citizens), and commercial speech, such as advertising.

You may recall that in recent years, certain people have implied or even expressed desires to see the President killed, with one actress having a model of the President’s severed head-in-hand on the Internet, and an actor, Johnny Depp, asking about the last time an actor killed a President. This is all protected speech under the First Amendment. Even if a person tried or succeeded in killing the President and said, “Johnny Depp said I should do it”, Mr. Depp would not be criminally liable or responsible because he did not order that person to do it (or have the ability or power to order such), or agree/conspire with that person to do it, and the element of “incitement” would not have been met (for a variety of reasons, including that there has to be a foreseeably imminent act that immediately occurs in response to words that cause/incite the immediate act. Writers of lyrics to songs have been sued for suicides that happened, allegedly, in response to lyrics, but those cases failed due to the legal elements- foreseeability, imminence, targeting, immediacy- not being met. Plus, suicide is not, necessarily, illegal. So an “illegal” act- harming a person, breaking into a bank, stealing someone’s money- has to be incited. Many things can be incited by words- but if it’s nothing illegal, then, obviously, there is no illegal event. For example, if you incite someone to hurt someone’s feelings, or to challenge someone to a mutually agreed fight, or to argue how someone is not intelligent or competent or honest, or to bring a lawsuit for damages to their reputation, those are all “legal” actions, so the incitement of such things are legal.).

https://ultimateclassicrock.com/ozzy-osbourne-fan-suicide/

It’s worth noting that the First Amendment applies to the government, not to private organizations. For example, in the former example, the actress was fired for her legal, though obnoxious, photos. Websites can decide what information appears or disappears on their websites, as they are not the government (their procedures in editing content raise other, “private” action issues.)

In sum, the right to free speech under the First Amendment means that you can say whatever the heck you want, to whomever the heck you want, or about whomever the heck you want, and it protects any and all speech from being suppressed or stopped or punished by the federal or any state government as long as it does not incite “immediate” foreseeable physical or monetary harm or unlawfulness that could or does physically or monetarily harm a person or organization, and does not qualify as a plan or threat to physically or monetarily harm (except through litigation) a person or organization, and does not seek to solicit a crime with a substantial step being made towards such crime, and does not cause monetary loss or reputational damage to a private citizen, and does not cause mental anguish or other harm to a minor child, and that does not seek to overthrow the nation or violate state secrets.

Other than that … just try to be nice (i.e. don’t hold up a model of a President’s severed and bloodied head or suggest that as an actor, you should shoot him or her. It’s legal- but it isn’t nice).