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Running scared

The Obots are scared spitless, and now they will be attacking like wounded animals.

— Freeangel (September, 2008)

The Obots are running scared.
Shoot on sight.

Geir Smith (December, 2013)

It’s obvious to rational people that liberals are running scared. They now resorting to histrionics like screaming banshees..

cajun_2 (September, 2013)

Could the following be a possible trigger mechanism for Obots running scared and starting to cover up, edit, and scrub?

Charles Kerchner (January, 2014)

Listening to the Mike Volin show last night, and watching his chat room, enforced an observation I made earlier reading Birther Report: there is a lot of fear language in birtherism.

There are two conflicting birther eschatologies. On the one hand, birthers are running scared before the coming end of America as they know it. They believe that the President, with just a whisper to an aide, can have any birther web site shut down (even though they all come back up after they fix their technical problems), and any birther taken into custody and “disappeared” into an internment camp, although none have been. They are convinced that Obama is well on his way towards accomplishing a plan to destroy the country by the end of his term. A vision like that believed, is enough to scare anybody.

On the other hand, the birthers hold a vision of salvation and vindication. Along with vindication, the birthers also paint a pretty scary vision of what it means for them to win, as we see in this comment, again at BR:

It’s not just dr. commie’s articles that we’re interested in preserving for future prosecution: it’s all the comments left by his ass-kissing fellow Obots that need to be cataloged for investigation. For years, these enemies of freedom have done all they could to discredit birtherism and the eligibility movement. They mocked and ridiculed true Americans while they hid behind internet anonymity growing fat on money supplied by Soros and other NWO stooges. However, after the fall-out from Mike Zullo’s revelations in March, we’ll likely see citizen posses assigned to seek out and “interview” these traitors. If some of them don’t survive our questioning, America can count itself the better.

Continue Reading →

Orly disobeys subpoena: will Court hold her in contempt?

One may recall that Larry Klayman was the founder of a right-wing court watchdog group called Judicial Watch, and some know that he left that organization and turned around and sued it1 (he also sued his mother). But why is Klayman issuing a subpoena to Orly Taitz, and why is she not honoring it? Klayman wants her held in contempt of court.

The question of why Taitz blew off the subpoena, to be taken in Los Angeles, is given in the filing: she wanted $93.76 in witness fees, but it is also alleged that she attempted to evade service.

The reason for the subpoena in the first place goes to the claims in the lawsuit. In the amended complaint Klayman sues for defamation. He says that defendants defamed him by telling stories that he was “‘convicted’ of a crime for not paying a large amount of child support.” (Note that “convicted” is in quotes but “crime” is not.) Where was this scurrilous tale published? On Orly Taitz’ blog, of course. The complaint doesn’t explain the connection between defendants and Orly Taitz, but that is described in an affidavit from one of the defendants, Constance Ruffley.

Ruffley avers that she had a conversation with Taitz at a monthly California Coalition for Immigration Reform1 meeting in Garden City, in which Klayman was discussed, and the public record of his nonpayment of child support was mentioned. Ruffley denies that she called it a “crime.” Ruffley also said that she didn’t expect Taitz to publish the conversation. Continue Reading →

McInnish decision not overdue

Despite what seems a long delay, the Alabama Supreme Court decision in McInnish v. Chapman is not overdue.

The original appellate brief in the case was filed on March 26, 2013, or 307 days ago. According to Table VI of the “Supreme Court of Alabama Annual Statistics For the Fiscal Year Ending September 30, 2013,” the average pending days1 for a case requiring an original decision2 was 315. Alabama Supreme Court opinions are announced each Friday at the Alabama Judicial web site.

This particular case has some level of complication in that a number of amicus briefs were filed. See my article, “McInnish v. Chapman in brief,” for reference to those.

The appellant’s attorney is Larry Klayman.

1According to the Statistical Report:

The number of days pending in this Court includes the time necessary for preparation of the record of appeal and the filing of briefs. These events occur before the assignment of the case to a Justice for preparation and circulation of a proposed opinion. The number of days pending also includes the time expended while awaiting special concurrences or dissents of other Justices after a majority of the Court has concurred in the release of a proposed opinion.

2An original decision is one on a case not previously heard by an appellate court.

Klayman to take another run at Esquire appeal

Joseph Farah (et al.) sued Esquire Magazine over a spoof article Esquire published online that Farah claims destroyed the salability of the book, Where’s the Birth Certificate? by Jerome Corsi. Farah lost when his case was dismissed under the DC Anti-SLAPP law  (and for other reasons). You can read about the case from my various articles on it.

The real issue in the appeal was not whether Esquire Magazine defamed Farah, but whether the case should have been dismissed rather than tried. Plaintiffs have decided to try again, requesting that the case be heard by the full circuit court, en banc.

A hearing of a case by the full circuit is discretionary (requiring a majority of the judges not recused in favor), not a right, and in the District of Columbia, certain principles apply. Hoping for a better result is not grounds for a hearing by the full circuit. Here are the sorts of things the DC Circuit considers en banc:

  1. resolving an apparent conflict  in the prior decisions of panels of the court;
  2. rejecting a prior statement of law which, although arguably dictum, warrants express rejection to avoid future confusion;
  3. overruling an old or obsolete decision which, although still technically valid as precedent, has plainly been rendered obsolete by subsequent legislation or other developments; and
  4. overruling a more recent precedent which, due to an intervening Supreme Court decision, or the combined weight of authority from other circuits, a panel  is convinced is clearly an incorrect statement of current law.

Klayman’s argument is that this case is of “exceptional importance” dealing as it does with  limits on the protection of satirical speech. He does not make any argument that existing precedent is insufficient, conflicting or outdated. Klayman’s essential argument is that the decision was wrong for various reasons, already rejected by the Circuit Court panel who denied his appeal.

I won’t get into the Lanham Act angle—interested readers can read the briefs. What I do want to mention is that part of an Anti-SLAPP dismissal involves an assessment of the likelihood that a plaintiff could prevail at trial, and I certainly consider it doubtful that Farah and Corsi could show that they were actually damaged by the Esquire article (beyond its satirical purpose that they be laughed at). Klayman argues that the Esquire article is libel per se (and damages need not be proven) because it accuses Farah and Corsi of a crime, citing Raboya v. Shrybman & Associates1; however, Klayman never explains exactly what the crime is when someone writes a book with “factual inaccuracies” (the actual words that Esquire satirically puts into Farah’s mouth). If “commercially defrauding the American Public” means putting “factual inaccuracies” in a book, then this is a crime that Farah and Corsi are arguably guilty of many times, along with a host of other authors.

From my layman’s viewpoint, the issues are clear cut and the DC Circuit will not endorse a hearing en banc. Sometimes there is a published written order with explanation when petitions for hearing en banc are decided.

The word "Doomed " in dripping font

1This is a curious case to cite in that the defendant successfully had the libel per se count dismissed. The Court took a strict view of what constituted a crime. If anything, this decision seems to hurt Klayman’s case.

Birther lawyer gets injunction against Obama

Sort of…

Attorney Larry Klayman, notable here for his legal attempts to prevent Barack Obama’s re-election, is also suing the President (and others) over what he feels is the unconstitutional invasion of his privacy by the National Security Agency’s program of massive collection of information about telephone calls and other electronic communications. A similarly directed lawsuit, ACLU v. Clapper, was filed last June and is currently awaiting an order on a motion to dismiss.

Klayman’s lawsuit is styled Klayman v. Obama which is where the “Obama” part of the article’s comes from. There are actually two Klayman lawsuits before Judge Richard Leon, one against Verizon and a list of federal defendants, and a second against those same defendants plus Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and Apple.

The ruling by Judge Richard Leon in the District of Columbia is rather narrow, granting an injunction against two defendants from collecting information about Klayman and one other plaintiff. Then the judge stayed his own order pending appeal.

Reading the memorandum order, I find it it notable that Judge Leon doesn’t seem to be agreeing with plaintiffs, but rather performing his own independent analysis of the government’s representations and the applicable law. One gets the impression that the injunction was granted not because of Klayman’s arguments but in spite of them. In the one rare instance where Judge Leon referenced Plaintiffs’ arguments, he said:

Likewise, I find that plaintiffs also have standing to challenge the NSA’s querying procedures, though not for the reasons they pressed at the preliminary injunction hearing.

As if to underscore this point, Judge Leon cites from the transcript:

… I specifically asked Mr. Klayman whether plaintiffs had any “basis to believe that the NSA has done any queries” involving their phone numbers. … Klayman responded: “I think they are messing with me” … then went on to explain that he and his clients had received inexplicable text messages and emails not to mention a disk containing a spyware program. … Unfortunately for plaintiffs, none of these unusual occurrences or instances of being “messed with” have anything to do with the question of whether the NSA has ever queried or analyzed their telephony metadata, so they do not confer standing on plaintiffs.

Judge Leon pointed out that the complaint fails to even allege that two of the plaintiffs are even Verizon customers, and so the injunction can’t include them. In language that reminds me of something a judge said to Orly Taitz, Judge Leon seems have to figure out figure what the plaintiff’s are asking for, saying:

In light of how plaintiffs have crafted their requested relief, the Court construes the motions as requesting a preliminary injunction.

I think that Judge Leon made a mistake in his argument on standing. His analysis is correct in saying that there is a high probability (almost a certainty) that Klayman’s records have been collected and stored–supporting the part of his order enjoining the government against collecting data, but he also argued that Klayman’s records are being regularly queried because every time a new phone number is searched, it must be compared to every record in the database to see if anyone called it. Databases are indexed and it would be extremely unlikely that any record not associated with the target phone number (or a number linked from it) would actually be queried. (As an analogy: one doesn’t have to read an entire book when searching for a topic that’s in the book’s index.) A reasonably-designed database would not require full-table scans to find records that are obvious identifiers such as a telephone number. That mistake removes the justification for the second part of the injunction, prohibiting the querying of Klayman’s records. I will throw in my opinion that a judge enters dangerous ground when he starts doing his own analysis on technical issues. When he judges the arguments from the parties, he can evaluate them, but when he makes his own analysis, he doesn’t have the benefit of experts from the two sides. If Klayman had raised the argument Judge Leon made, the government would have certainly explained why it was wrong, as I did. As it is, the government will no doubt raise the issue on appeal.

Klayman didn’t fare so well before Judge Leon in the earlier Farah v. Esquire Magazine defamation lawsuit, which was dismissed.

D.C. District Court NSA Opinion

Or else…

I was reading a birther site and somebody said that November 19 changed everything. Like a dummy, I asked what happened on November 19. November 19 was when about 100 conservatives hosted by Larry Klayman met in the park and demanded that Barack Obama resign, or else…. The deadline was today!

I dropped by the White House web site just now and the top item was Barack Obama wishing everybody a “Happy Thanksgiving.” I think it’s a safe bet that Obama won’t be resigning between now and midnight.

The actual “or else” statement from Klayman had something concrete in place of that ellipsis. Here’s what he said, courtesy of US News and World Report:

Freedom Watch founder Larry Klayman, who emceed the event, told attendees if President Barack Obama does not resign by Nov. 29, conservative activists will meet in Philadelphia to elect a shadow government.

If he does hold a convention in Philadelphia, I hope it’s in May.

Photo credit Obama Conspiracy Theories

So they plan to replace what they think is a usurper with an actual usurper. Good thinking, Larry.

What should we do about lingering unemployment? The Shadow Government knows.

How can we improve relations with Pakistan? The Shadow Government knows.

How can we deal with the national debt? The Shadow Government knows.

It may be that the Shadow Government™ will deal with these and a host of other issues by relying on a strategy based on Richard Nixon’s secret plan to end the war (a phrase Nixon didn’t actually use). All I can say is “talk is cheap.”