As Donald Trump Ramps Up Threats To Sue Newspapers, A Reminder Of Why We Need Free Speech Protections
from the federal-anti-slapp-please dept
Just last week, we discussed Donald Trump's ridiculous and almost instinctual reaction to threaten to sue the media any time they write something about him that he dislikes. That's not how defamation law works, and Trump should know since he's sued for defamation a few times in the past, and lost. Of course, Trump has also flat out admitted that he sometimes sues for defamation just to cost opponents money, which is the classic definition of a SLAPP (Strategic Lawsuit Against Public Participation) lawsuit.This is all quite relevant today, seeing as a whole bunch of stories broke in the past 24 hours or so about Trump, mainly focusing on claims by women of (frankly) horrific things he's accused of doing to them (and, again, we're not a political site, and I'd really, really appreciate it if the comments on this post don't go down a political path, even if I know such a request is unlikely to be respected). Trump and his lawyers immediately started threatening to sue. The main target so far is the NY Times, which published the first major story, focusing on the allegations of two women. But within that story, the article notes that the reporters got Trump on the phone and he immediately threatened a lawsuit:
In a phone interview on Tuesday night, a highly agitated Mr. Trump denied every one of the women’s claims.A few hours later, there were reports that Trump's lawyers were preparing a lawsuit against the NY Times and the Palm Beach Post, which had another story of another woman. Instead, however, Trump's lawyers sent a laughably thin cease and desist letter. As we and others have pointed out repeatedly, a defamation threat letter that fails to point out what statements are actually defamation is an empty threat letter designed to scare off the naive and clueless.
“None of this ever took place,” said Mr. Trump, who began shouting at the Times reporter who was questioning him. He said that The Times was making up the allegations to hurt him and that he would sue the news organization if it reported them.
“You are a disgusting human being,” he told the reporter as she questioned him about the women’s claims.
The essence of a libel claim, of course, is the protection of one's reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host's request to discuss Mr. Trump's own daughter as a "piece of ass." Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump's unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.That's... pretty incredible. It sure would be interesting in court (though it's unlikely to ever get there, as we'll explain). From there, the NYT notes a second point, which is that they were reporting on a matter of national importance:
But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night's presidential debate. Our reporters diligently worked to confirm the women's accounts. They provided readers with Mr. Trump's response, including his forceful denial of the women's reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.Notably missing from this letter is the usual response to blowhard defamation threats: that truth is an absolute defense to defamation, and in suing, you are opening yourself up to pretty widespread discovery -- and also that Trump has a very, very high bar to cross to win a defamation lawsuit. That is, as we've discussed many times, in the US, for there to be defamation of a public individual, the material printed must not just be false, but must be published with malicious intent. That's going to be virtually impossible for Trump to show if it even gets that far.
Of course, as many have pointed out, it's quite unlikely that any lawsuit (if one is actually filed -- and so far this campaign, Trump has threatened to sue publications many times and never followed through) would be dropped by Trump soon after the election. The only reason to threaten or to file a lawsuit is really just to scare off other women from coming forward and/or to scare off other publications for publishing such a story. And that's the real issue here: the chilling effect of abusing defamation law in this manner.
While Tim O'Brien, a writer that Trump actually did sue for defamation (and where he lost badly -- actually, he's the author that Trump gleefully explained that he sued just to cost him money), is saying that publications shouldn't fear Trump lawsuits because he'll always lose and it's not that easy. A publication like the NY Times has the resources to handle any such lawsuit. But many (perhaps most) other publications do not. And it is both timely and cost-intensive to defend against even a bogus lawsuit. And every publication knows that.
And that's the real problem here. It creates massive chilling effects on reporting on a topic of national importance concerning the Presidential election.
This is why we've been blathering on for years about the need for a federal anti-SLAPP law that would prevent these kinds of lawsuits, allowing for them to be tossed out of court quickly and where those who file such suits will have to pay the expenses of those they sued (of course, it should be noted that a key sponsor of the federal anti-SLAPP law that was introduced last year is also a top Trump supporter).
Right now, unfortunately, anti-SLAPP laws are state-specific, with some states having no such laws, and many having very weak laws. You can bet that if Trump's lawyers do sue, they'll do so in a state that has very weak or non-existent anti-SLAPP laws. But as Eriq Gardner at the Hollywood Reporter points out, these constant bogus threats should be a wake up call for Congress to finally pass a strong federal anti-SLAPP law.
As many have recognized, if Donald Trump does bring a lawsuit against media outlets over their coverage of sexual assault allegations, it will hardly be resolved by Election Day. Many speculate that Trump will quickly drop such claims post-election to avoid a discovery process that would investigate the real truth. No one should fail to recognize, however, that the lawsuit itself is a form of bullying intended to give members of the media and other women pause before reporting about this public figure's fitness for office.Indeed. Of course, expecting Congress to do anything right now is kind of ridiculous. It's not going to happen, even though it should.
The only way to ensure that members of the media throughout the nation continue to be strong participants in civic affairs is to erect downsides to the filing of lawsuits. The U.S. Congress has such an opportunity and can discourage attacks on the First Amendment with a federal anti-SLAPP act that imposes penalties on frivolous lawsuits that cost money to defend and suck up judicial resources. It's time for lawmakers to act.
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Filed Under: anti-slapp, chilling effects, defamation, donald trump, first amendment, slapp, threats
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Legal Strategy
The Defendant can always file a counterclaim. If they do so before the Plaintiff dismisses the case, the Plaintiff is unable to unilaterally dismiss the case. The P must either get a stipulation from the D agreeing to it, or file a motion and get the Court to do so despite D objecting.
So ... if Donald Trump is stupid enough to sue the NYT, the NYT should --instead of waiting it out-- file some counterclaims. Those will survive a Trump attempt at dismissal, and he WILL be subject to Rule 26 disclosure.
Unfortunately that discovery would not be published, and would likely be subject to mostly being under seal. However, it sure would be fun knowing he's going to fight hard not to be grilled... and for a change... it will cost HIM.
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the animals may eat each other
also dont like the NYT.
may luck will win out and both will destroy each other.
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Freedom of Press, not freedom to slander
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Re: Freedom of Press, not freedom to slander
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Re: Re: Freedom of Press, not freedom to slander
:P
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Let us connect some dots.......
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Re: Let us connect some dots.......
Donald Trump is running for President of the United States.
William Clinton is not.
If you'd like to indict someone because they're married to the wrong person, you have a sorry understanding of the concepts of justice or the law.
Mike did say to keep this from being political, so I'll stop there.
Donald is running for president and he has damaged his own reputation. What ANY OTHER PERSON DOES OR DOES NOT DO is irrelevant to that discussion.
Best
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Re: Re: Let us connect some dots.......
If Bill wasn't so thoroughly tied to Hillary's campaign it might be irrelevant. But Hillary has defended Bill, regardless of his actions and that is relevant.
Hillary damaged her reputation when she defended Bill and trashed the reputations of any woman who came forward.
As far as concerned, that's not being political, just like Ehud saw his as not being political.
It's a difference of opinion.
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The current system is fine, it's just that honest intelligent people have to put up with a little inconvenience because others will abuse the tools if they are provided. Better this that the site having to waste time and effort on new features that will need to keep being updated to avoid the inevitable misuse.
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Re: Re: Re: Re: Re: Re: Let us connect some dots.......
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Last time I remember, Bill Clinton did actually do a few other things than fooling around with interns while in office, and I rather doubt that Hillary's recollections of events in the White House were limited to orgies she indulged in. Bill Clinton seemed a lot more capable in picking suitable advisors depending on the task than G.W.Bush was, so I rather doubt Hillary was even invited.
While I admire the ambition of Trump supporters to offset every C beam in his eye with a splinter in someone else's, the trope of not distinguishing between some handwavy notion of Original Sin and Evil Incarnate has become wearisome millennia ago.
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Typo?
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And this is the problem with the legal system. A bogus lawsuit should, by definition, not require any active defense at all. You simply show up to court at the appointed time, and let your accuser lose because they don't actually have a case. No need to bring a lawyer, since there isn't actually any need for defense when no offense is available.
The reality is that the legal system is so hopelessly complex that it is quite possible to lose a case in which you are accused of forming an illegal settlement on the surface of Jupiter, on the basis of procedural and other legal requirements. The merits of the case itself are nearly irrelevant in most situations.
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As a consequence, there is no incentive to appear before court without lawyer for obvious harrassment suits.
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To be fair...
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Re: To be fair...
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They will get the hit
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Re: They will get the hit
Feel free to link to your source for this dubious claim.
Or do you really just mean that you trust politicians more more than the media. Still seems weird...
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Re: Re: They will get the hit
"Feel free to link to your source for this dubious claim."
Does it matter? At this point they are all just contractors to any mega corp willing to pay. It is so transparent they should be filing a W-9.
My theory on the was validated the other day. The Amazonian Post was shilling Well-Fuckedgo on the front page. Basically the gist of the story was, "CEO Steps Down, (SEE! There really is banking reform.)" Of course they neglected to focus on the fact that nobody is going to jail for a multimillion dollar fraud, committed by the same company that was a major player in the AIG mortgage securities scam.
Then I turned over section A. Full page add: Well-Fuckedgo. They will shill for anybody.
Big corporate media exists to create smoke screens and divert attention from crimes committed by the American aristocracy. They exist mostly as a propaganda outlet at this point. Really, I just read them to see who is trying to cover shit up. It is the only way any of the bizarre stuff they write/broadcast makes any sense.
It is amazing. But if you want to know what is going on in the country that wrote the bill of rights, you now pretty much have to look to individuals, or foreign news sources.
Two major factors that contributed to this: 1. Media deregulated passed by Bill Clinton. 2. Citizens United vs. FEC. which made Politics a media industry, instead of a civic duty.
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He sued Univision for defamation just last year.
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Not going down the political path
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Re: Not going down the political path
Someone who has been United States Secretary of State, a US senator, First Lady of the United States - with an active role in vetting appointments, health reform and other policies to the point where Republicans called her a "co-president" - similar roles as First Lady of Arkansas, practicing lawyer, graduate of Yale Law school, etc. etc.
I'm not saying that she's likable or honest. (I consider her more honest than ANYONE in the 2016 or 2012 Republican primaries, but that's a low bar to meet.)
But unqualified?
Relevant to Techdirt: While at the Rose Law Firm in the late '70s, Hillary specialized in patent infringement and intellectual property law.
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As for Bill, I'll keep that in mind if Trump's spouse is running for President.
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Yep.
Going to the crotch when your nervous is a typical act of fear and desperation. Resume points don't account for being emotionally insecure.
The current news cycle is like a freshman talking about her own breasts in front of the football team. It is overtly desperate, and it is dangerous. And the fact that this political move was initiated by a candidate for POTUS is terrifying.
The freight on this behavior will be payable by our sons and daughters in the military. Do you really want somebody who goes for the crotch when they get nervous, to be in a position where they have to decide to deploy troops?
The news hasn't talked about genitals this much since the last Clinton was in office. Eventually you have to consider the common denominator.
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Trump is also the one who is "emotionally insecure", able to be baited by a tweet, and attacking those on his own side for the smallest well-deserved criticism.
C'mon. Be serious.
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Re: Re: Re: Re: Not going down the political path
I'm not saying that Trump isn't a douche. I'm voting third party. I'm saying that the national debate is about penis, and it was about penis last time a Clinton was in office, and it will be about penis if a Clinton is in office ever again.
The problem with that, is the United States is the ONLY country where this bullshit flies. Russians don't care about POTUS penis. Neither does anybody in the Middle East.
So HRC comes home from the U.N. and the national debate is supposed to be about: "He tried to put his penis on the President". And if you don't think foreign heads of state are familiar with her, and willing to put their finger on that button, your wrong.
The news is just going to be one long penis story after another. All of journalism would read like an issue of Hustler Magazine for four years. You might as well paint a cock and balls on air force one.
So either the country is going to be frustrated, because of these unnecessary attention getting spasms that result in zero action. Or to prove that she is just as much of a penis as anybody she will go to war for no justifyable reason, which makes her technically the Republican in this election.
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Your "logic" essentially excludes ANY woman from the White House because it would be "about penis."
Your outright claim that a woman "will go to war for no justifyable reason" "to prove that she is just as much of a penis as anybody" sums your position: Your blatant misogyny - and Trump's - disqualifies women from running because you fear they might respond.
Enjoy the dustbin of history. America is better than you.
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Re: Re: Re: Re: Re: Re: Not going down the political path
No, it just excludes those that presume to use genitals as a basis of political leverage. Which is what is going on right now.
At this point the national dialog has been reduced to a level of a elementary school playground spat. BOTH of them are to blame for that. But this follows Clinton around like a plague. Regardless of blame, it is irresponsible for EITHER of them to let this process degrade to this level. It weakens us on the International stage.
At some point you have to acknowledge that the one common denominator is her.
I don't fear women running. I am revolted by the idea that sadistic narc actually has a chance at the Whitehouse. I would say the same thing if she was Richard Nixon.
Again: Voting third party. I am not supporting Trump. I am explicitly AGAINST BOTH OF THEM. If you think that my position is sexist, you've obviously never seen somebody fuck something up because he/she misread bravado for competence, and chose to emulate the former. Which is what I was alluding to in my satire. Got enough penis yet?
Again, it isn't a sex thing. It is a sadistic narc thing. It just so happens that people like her often go to the crotch when they get nervous. It is a symptom. And it is it will weaken the office of the President.
The current debate weakens us all. Frankly I think both the DNC and RNC should be charged with treason. Regardless of intent, they both clearly regard the Constitution with contempt. They have both subverted the electoral process, and should be held accountable for that.
My contribution to bouying the nation from the current depths of stupid, is to vote third party. But I am seriously hoping somebody out there takes a more hands on approach. The nation deserves a little payback.
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Donald Will Clamp Down On False News, Crooked Hillary Will Infringe Our Free Speech Rights
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Re: Donald Will Clamp Down On False News, Crooked Hillary Will Infringe Our Free Speech Rights
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Re: Re: Donald Will Clamp Down On False News, Crooked Hillary Will Infringe Our Free Speech Rights
HRC has the same effect because she's more urbane in the way she presents herself, which makes it easier for her to enact her policies. That's what makes her so dangerous: it's hard to take Trump seriously but people in power pay attention to Hillary.
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said the Donald. You can't make this shit up.
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True, now you need to demonstrate that they're actually lies. Go on, we'll watch.
"For example, there are some out there, you included, who will take some one else's words, like "when you're rich, they let you" (which refers to a set of instances in which consent is involved) and attempt to pass that off as "rape" or "sexual assault"."
Nobody with any credibility has claimed that making those comments is an act of rape or assault. You're conflating two completely different things, probably because it's hard for you to think about two complex issues at once.
"You're so immersed in sucking Clinton cunt to give a shit about the truth anymore."
I'm not sure you even realise how intellectually insignificant comments like this make you sound. If "sucking Clinton cunt" is the cleverest analogy you can come up with, you're only ever going to get laughed at.
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http://in.reuters.com/article/usa-election-trump-legal-idINKCN12D30Xx`
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SLAPP THIS
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Simply put, given the veracity of the allegations concerning this most recent "Trumpscapade"!... the call by members of the Republican Party for Trump to step down-- as he is viewed as an embarrassment!!... the declaration by Trump's running mate, Mike Pence, that he can't, and won't defend Trump's lewd comments that were heard on tape!... the call by Mike Pence for prayers for Trump's family, and for a "changed Trump" to be made manifest at last Sunday, October 9th's, 2016 2nd Presidential debate!... public commentary from both Democrats and members of the Republican Party that Mike Pence represents a "better alternative" than Trump for President!... warrants the question: Why should Hillary Clinton even appear at the 3rd Presidential debate, on October 19?
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And!... re the "gals" who showed up to the 2nd Presidential debate with Trump in an attempt to "upstage" Hillary (and... indirectly!... Bill!)!... how seriously can we-- should we!-- receive the "discomfort" and "disdain" of this "offended delegation", when these would (nevertheless!) not only appeal to Donald Trump (a.k.a., the "Groping Orange Perv"!) re their displeasure... but!... who would also (by commission and/ or omission!... directly and/ or indirectly evidenced!) SUPPORT A PRESIDENTIAL CANDIDATE THAT IS AS TAINTED BY THE SAME PERSONAL FLAWS, AS IS A-L-L-E-G-E-D OF BILL CLINTON! I-T B-O-G-G-L-E-S T-H-E M-I-N-D!! And!... and regardless of the said flaws of Bill Clinton!... how do the BEHAVIORAL LACKS of both Bill Clinton and Donald Trump, reflect some BEHAVIORAL and POLITICAL LACK in Hillary? Just because "the guys" have not been able to get their stuff together, doesn't mean that Hillary... and the future of America!... must-- in some abstruse and obtuse fashion!-- B-E F-U-R-T-H-E-R V-I-C-T-I-M-I-Z-E-D!!
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To conclude... I-- for one!-- have no intention of watching an additional shameful display of "sociopsychopathic misogynist hubris"! And, my suggestion to Hillary, would be to stay home! Trump, is finished!! And!... no one-- IN A RIGHT FRAME OF MIND!-- would contend otherwise!!
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Please!... no emails!
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P.S.: If the allegations of Trump's alleged Sexual Assaults aren't shocking enough for you, you might want to have a look at the reporting in URLs, http://www.huffingtonpost.com/lisa-bloom/why-the-new-child-rape-ca_b_10619944.html... and... http://www.deathandtaxesmag.com/306274/trump-court-date-set-jane-doe-child-rape-lawsuit/... and... https://www.theguardian.com/us-news/2016/oct/12/donald-trump-jeffrey-epstein-alleged-rape-lawsuit... and-- if true!-- we could very well see the first ever arrest of a Presidential Candidate, for Child Abuse!!
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Please!... no emails!
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Re: SLAPP THIS
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Re: Re: SLAPP THIS
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On the other side, there were what, 15 republicans, Jeb Bush the presumptive favorite. What did the media do? They covered Trump much more than any other candidate, gave him millions of dollars of coverage that no candidate could ever hope to buy. The media made Trump. If they covered him as much as his polling numbers were, he would have never become the nominee.
Of course, the media also knew they could destroy Trump. NBC knew it had those tapes of Trump from 2005. They have had those tapes for 11 years. Does anyone think that they just found those tapes and released them at this point? They could have released those tapes before the first Republican debate, but of course they didn't.
Seem kind of strange to anyone? One could think that this election has been perfectly scripted.
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Mind you, given the Establishment sensibilities of the owners of the media, you may find that the anti-Trump articles are the result of their distaste for him.
Even on the right it's hard to find support for Trump aside from "Do it for the party!"
That he's an absolute jerk doesn't help. So no, it's not as cut-and-dried as that. An odious man is being called out for his boorish behaviour because he's a boor. That he's not in favour with the Establishment doesn't help his case.
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CREOPLE IS GETTING CREEPIER
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Please!... no emails!
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Please!... no emails!
This is not the right forum for your opinions on other forums.
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Re: Please!... no emails!
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Folks!... if you thought the allegations of Trump's alleged Sexual Assaults weren't shocking enough for you, you might want to have a look at the reporting in URLs, http://www.huffingtonpost.com/lisa-bloom/why-the-new-child-rape-ca_b_10619944.html... and... http://www.deathandtaxesmag.com/306274/trump-court-date-set-jane-doe-child-rape-lawsuit/... and... https://www.theguardian.com/us-news/2016/oct/12/donald-trump-jeffrey-epstein-alleged-rape-lawsuit... and-- if confirmed!-- we could very well see the first ever arrest of a Presidential Candidate for CHILD ABUSE!!
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And so... in addition to checking out Trump for Viagra, penicillin, and possession of date rape drugs, maybe we can bring groups like RAINN.org and the National Children's Advocacy Center down to the 3rd Presidential debate to voice their concerns about Trump's SET COURT DATE involving allegations of C-H-I-L-D R-A-P-E!
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Hillary!... stay home!... this guy's going NOWHERE!... save-- and if GOD, and the courts, are willing!-- to J-A-I-L!!
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Please!... no emails!
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Just a reminder of what tech companies exist for
people forget that the internet was created by the US military all the dominant "tech" companies got there seed money from that same military
we seem to have to live the 80's and 90's over again
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This is just sabre-rattling by Trump
And make no mistake: there's more. Much more. This is a pattern of behavior that he's exhibited for decades. Just like Bill Cosby. And just like that case, more and more victims will gradually come forward -- especially if they have the chance to put their story into the judicial record.
Trump shouldn't be worried about litigating against the NYT, which has done excellent work here. He should be worried that those women will jointly hire legal counsel and sue him. And he should be doubly worried because a number of those women were under age at the time of the incidents.
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Re: This is just sabre-rattling by Trump
An that right there is the problem. The system lets the Trumps and Thiels of this world use the law as a weapon of revenge or retribution even when they won't win or don't want to even try.
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Suits by suits
Or as the old saying goes:
"Where there's smoke, there's usually a fire of enormous proportions somewhere nearby, burning down the neighborhood"
Oh, yeah, I know, wrong quote, but that never stopped DT from lying, either.
Blowing smoke up his ass as usual. Obviously he's never heard of NYT v. Sullivan....
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Really? Coulda fooled me; virtually every single article on here is about laws, politics, and public policy in one way or another, presented in such a way as to attempt to persuade readers to hold specific, well-defined opinions on various politically relevant topics.
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Just a general rule
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federal anti-SLAPP law
However, to be a truly effective deterrent, anti-SLAPP laws most do more than include attorneys fees and expenses. They must also include meaningful penalties, including significant monetary sanctions payable to the victims of SLAPP suits.
Deep-pocketed people like Trump are not deterred by (maybe) having to pay attorneys fees and expenses. They consider that the cost of doing business.
And while it's helpful that a SLAPP suit victim can get their attorneys fees and expenses paid, they still end up being uncompensated for all the time and stress caused by the SLAPP suit.
Why should only the attorneys on both sides get paid in a SLAPP suit?
In fact, anti-SLAPP laws should also include significant sanctions against attorneys who file SLAPP suits. That could be the best deterrent of all!
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Re: federal anti-SLAPP law
Sounds like Trump is going to use it after the election if you believe what he says. I'm also sure he has used it in the past. He threatened people and businesses all the time. Like newspapers that write things he might not like.
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Question
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Just change the subject: Bill did it also
Reporter: Mr Trump, did you assault these women? Will you apologize for what you did?
Trump: Crooked Hillary did worse! She should be locked up for her e-mails. I'll lock her up.
Reporter: Yes, but will you apologize?
Trump: Those women are liars and it never happened. All of them liars. And I know liars. They're liars. And I'm going to sue them. All of them. Big lawsuits.
Reporter: But we have you on tape saying it.
Trump: Look, they're liars and that's not good. You know what's not good? Hundreds of illegal immigrants coming over the border everyday. And Obama lets it happen! I would send them all back to Mexico so they won't take jobs. I'll get jobs back and I'll give tax cuts to middle Americans.
Reporter: But you still haven't answered the question.
So, here we are, almost a week later, and Trump still doesn't acknowledge that he did anything wrong. How does something Bill Clinton (or anyone) make it right for him to do something? At some point, all adults move past the idea of "but he did it first" argument.
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Re: Just change the subject: Bill did it also
It could be argued that that statement, combined with the fact that he is calling the women who are making these allegations liars, constitute saying that he did not assault these women.
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convenient
if your accused of something - you are presumed innocent until proven guilty.
However - if the "press" (and i use that quote loosely) prints something... you are guilty until you PROVE yourself innocent.
I call bullshit
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Re: convenient
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Fed Anti-Slapp
Let's allow cameras in too, why not.
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