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Are gay Boy Scouts coming soon?
Eric Holder finally goes after national security abuses by executive branch officials! Wait, he’s actually just going after leakers.
Wait, journalists can’t have fun making fun of politicians?
Richard Nixon was a really bad dude.
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Robert F. Kennedy Jr.
Back in 2021, Robert F. Kennedy Jr. sued Daily Kos to unmask the identity of a community member who posted a critical story about his dalliance with neo-Nazis at a Berlin rally. I updated the story here, here, here, here, and here.
To briefly summarize, Kennedy wanted us to doxx our community member, and we stridently refused. We protect our community at all costs. Shockingly, Kennedy got a trial court judge in New York to agree with him, and a subpoena was issued to Daily Kos to turn over any information we might have on the account. However, we are based in California, not New York, so once I received the subpoena at home, we had a California court not just quash the subpoena, but essentially signal that if New York didn’t do the right thing on appeal, California could very well take care of it.
It’s been a while since I updated, and given a favorable court ruling this month, it’s way past time to catch everyone up.
This has become a critical free speech case, with what’s called the ”Dendrite standard” at stake. In short, the Dendrite International, Inc. v. Doe No. 3 ruling states that anonymous speech is protected unless all of the following apply:
(1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identify the poster's allegedly actionable statements; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity."
Put another way, a plaintiff better have a damn good reason to violate an anonymous poster’s free speech rights in order to force a media organization to unmask them.
This test, suggested by Public Citizen and the ACLU in an amicus brief, was originally adopted by a New Jersey court in 2001. Ever since, Public Citizen has avidly sought to enshrine it in additional states. One of the missing states? New York. Public Citizen has assisted our defense team and represented our community member as an opportunity to enshrine the Dendrite protections in New York.
The issues at hand are so important that The New York Times, the E.W.Scripps Company, the First Amendment Coalition, New York Public Radio, and seven other New York media companies joined the appeals effort with their own joint amicus brief. What started as a dispute over a Daily Kos diarist has become a meaningful First Amendment battle, with major repercussions given New York’s role as a major news media and distribution center.
After reportedly spending over $1 million on legal fees, Kennedy somehow discovered the identity of our community member sometime last year and promptly filed a defamation suit in New Hampshire in what seemed a clumsy attempt at forum shopping, or the practice of choosing where to file suit based on the belief you’ll be granted a favorable outcome. The community member lives in Maine, Kennedy lives in California, and Daily Kos doesn't publish specifically in New Hampshire. A perplexed court threw out the case this past February on those obvious jurisdictional grounds.
[He] does not live or work in New Hampshire, he has no meaningful contacts with this state, he did not consult any New Hampshire sources when writing the article, he did not mention New Hampshire in the article or otherwise ‘direct’ the article to this state, and he had no reason to anticipate that the ‘brunt’ of the (alleged) injury to Kennedy’s reputation would be felt in New Hampshire—particularly since Kennedy is not a resident of New Hampshire and his connections to New Hampshire are, at best, attenuated.
Then, last week, the judge threw out the appeal of that decision because Kennedy’s lawyer didn’t file in time—and blamed the delay on bad Wi-Fi.
Freakin’ hilarious! So our intrepid community member, who ultimately unmasked himself, is in the clear! But that doesn’t mean the broader case is over.
Kennedy tried to dismiss the original case, the one awaiting an appellate decision in New York, claiming it was now moot. His legal team had sued to get the community member’s identity, and now that they had it, they argued that there was no reason for the case to continue.
We disagreed, arguing that there were important issues to resolve (i.e., Dendrite), and we also wanted lawyer fees for their unconstitutional assault on our First Amendment rights. (Fun fact: The press is the only profession specifically mentioned in the U.S. Constitution.)
On Thursday, in a unanimous decision, a four-judge New York Supreme Court appellate panel ordered the case to continue, keeping the Dendrite issue alive and also allowing us to proceed in seeking damages based on New York’s anti-SLAPP law, which prohibits “strategic lawsuits against public participation.”
Here’s how one of our lawyers, Adam Bonin, described the court order: “A New York appeals court is unanimously allowing Daily Kos to proceed on claims that RFK Jr. had no right to try to unmask one of our users and that his attempts to do so violated New York's anti-SLAPP rules, which may entitle the site to seek damages against him.”
Kennedy opened up a can of worms and has spent millions fighting this stupid battle. Despite his losses, we aren’t letting him weasel out of this.
We’ve been able to fight this fight on behalf of our valued community because of your generous support.
Reprinted with permission from Daily Kos.
Chris LaCivita
Donald Trump's presidential campaign is trying to sell donors on the idea that less is more when it comes to his flagging ground game in critical battleground states.
“We’re focused on quality over quantity. I mean, how novel a concept,” chief Trump campaign strategist Chris LaCivita told a crowd of mega donors on May 4 at Mar-a-Lago.
But here's how that leaner field organization looks on the ground to many GOP state strategists: “There is no sign of life,” said Kim Owens, a Republican operative in Arizona.
“Especially in a state that Trump lost so closely last time," Owens continued, "you’d expect to have more of a presence. I would think, ‘Let’s step it up.’ I think it’s a terrible mistake.”
These accounts come from an absolutely wild piece of reporting by four reporters at The Washington Post: Michael Sherer, Josh Dawsey, Maeve Reston, and Yvonne Wingett Sanchez. The reporting, which relates to the structural aspects of the contest, also comes at a moment when fresh New York Times/Siena polling suggests Trump is ahead of Biden in a handful of key battleground states.
Arizona's GOP operatives aren't alone in feeling mystified by the Trump campaign’s lack of presence—they are joined by those in Michigan, Georgia, and others as well.
The reason for Trump's flagging operation isn't exactly clear. To be sure, the Trump campaign is cash strapped, particularly when compared to the Biden campaign's war chest. Trump also recently took over the Republican National Committee, and the new leadership, which includes his daughter-in-law Lara Trump, reportedly scrapped the organizational plans drawn up by the old leadership under the direction of Ronna Romney McDaniel.
Under the original plan, in Georgia, the RNC was supposed to hire 12 regional field directors and 40 field organizers by the end of May, topped off by 20 field offices down the road. Instead, the RNC currently has one consultant, according to Cody Hall, a senior aide to Republican Gov. Brian Kemp, who has a tense relationship with Trump. Hall said he has "seen no evidence" that the Trump campaign has the field operation necessary to win the Peach State.
A similar story is playing out in Arizona, where the RNC planned to open seven field offices and hire six regional field directors overseeing 23 organizers by the end of May. That plan appears to be dead on arrival with nothing to take its place.
An RNC presence is also missing in action in other battleground states, including Michigan, where several unnamed operatives were concerned.
Additionally, the Bank Your Vote effort, an early voting operation the RNC had launched at the beginning of the year, has gone dark with its website entirely offline for an indefinite amount of time.
Yet Trump campaign staffers and allies appear to be gaslighting their way through the deficit.
Asked about the Bank Your Vote operation by the Post, James Blair, the national political director for both the Trump campaign and the RNC, said, "It is full speed ahead. Stay tuned for more on the program.”
Blair's response was par for the course in the piece, which makes it difficult to pinpoint exactly what is happening with the RNC and the Trump campaign, which effectively appears to be a joint operation at this point. But among Republican operatives in these states—who are usually instrumental to implementing a statewide strategy—everyone is in the dark.
Perhaps most concerning is that Trump directed the RNC leadership to focus their efforts on election security rather than field operations and turnout. According to the reporting, Trump is plenty sure of his own ability to turn out his voters.
But here's another way to read that: Trump has no earthly idea if he can turn out enough people to win on the front end, so he's training the campaign's resources on ways to cause trouble on the back end. They’ll do this by questioning the integrity of the vote and, therefore, the election's results.
“Focus on the cheating,” the Post reported Trump told McDaniel and others when she was still leading the organization.
So as its GOTV operation flails, the RNC is planning a massive "election integrity" operation with "tens of thousands of volunteers who will monitor precincts and vote counting across the country," according to the reporting.
Reprinted with permission from Daily Kos.
