Open thread

by liberal japonicus

Seems time to open another thread. Would love to have some informed speculation about Dominion v. Fox settlement. Shootings out the wazoo. Trying to figure out the sweeper pitch. Great chess. ANything else?

Comments

[Laura Koerber]

I think Dominion should have held out for more since Faux obviously didn't want Carlson, Ingraham, etc to be cross examined on the stand. I hope there are charges from the obstruction, and I hope the other lawsuit generates lots of headlines and I hope that shitty English billionaire decides to cut his losses and pull out.

[Pro Bono]

that shitty English billionaire

Do you mean Rupert Murdoch? He was born in Australia to Australian parents, with Scottish and Irish grandparents. He's now a naturalized citizen of the USA.

Which is to say: for all our faults, he's not one of ours.

[Girl from the North Country]

Which is to say: for all our faults, he's not one of ours.

To quote Mr Loaf, you took the words right out of my mouth.

[wj]

I see the Dominion settlement as a case of seriously short-term thinking by Fox. Because, after all, there is still the Smartmatic suit.

The quotes from discovery that I have seen talk about the vote fraud claims being known to be false. Not so much about Dominion per se (although certainly it gets mentioned). So much of that is relevant to the remaining suit. And now Smartmatic knows that Fox will be desperate to settle, for all the same reasons. And they were already suing for more than Dominion. Making it a matter of Fox having to pony up more, probably a lot more, or have the whole Dominion settlement be for nothing. Oops.

And that's before we get to the shareholder suits. Which fault the company (and/or its executives) for doing things which left it open to the defamation suits. The judge already ruled that there is no dispute about whether they lied. And unlike the defamation suit, the shareholders don't need to prove malice (the hardest part in a defamation suit) in order to win.

[Pro Bono]

...the shareholder suits. Which fault the company (and/or its executives) for doing things which left it open to the defamation suits.

My understanding is that shareholders can't sue the company - that would make no sense, the shareholders own the company. Rather, shareholders can sue directors on behalf of the company. The idea would be that Murdoch (or other directors) would have to reimburse the company for damages incurred.

But lawyers here may know better...

[nous]

Cornell Legal Information Institute on derivative action lawsuits:

https://www.law.cornell.edu/wex/derivative_action#:~:text=A%20derivative%20action%20is%20a,(2)%20the%20existing%20claim.

It's short and feels a bit self-referrential, so I won't quote any of it here.

[wj]

Rather, shareholders can sue directors on behalf of the company. The idea would be that Murdoch (or other directors) would have to reimburse the company for damages incurred.

That expresses it better than I did. Although I suspect that some of the senior executives, not just the directors, would be at risk as well. In their personal capacity -- i.e. judgements would come out of their personal pockets.

[McKinneyTexas]

When a case settles on the eve of trial, one reasonable inference is that the lawyers--probably on both sides--did not want to go to trial and gave their respective clients what we call "the black-bordered letter" outlining how everything in the world could go south.

I read Dominions Motion for Summary Judgment and was not overwhelmed. With maybe one or two exceptions, it looked like Fox was providing an outlet for a liar, not doing the lying itself. Providing an platform is pretty solidly inside the 1st Amendment. IOW, I thought the liability piece against Fox was weak and subject to an adverse rendition on appeal (in which the court appeals rules in Fox's favor as a matter of law, bringing the case to an end.)

On the damages piece, I was even less moved. In what manner did Dominion sustain actual, monetary damage? IMO, it was some of the best advertising ever. Companies cannot have mental anguish. Dominion would have to show loss of revenue or diminished value due to a damaged reputation. Self-reveal: I had to sue a client for defamation. It was a personal pain in the ass and the trial lasted over 2 weeks. I was also suing for unpaid legal fees. I won across the board except, I got zero actual damages for defamation (I got my unpaid fees) because the jury believed that no one believed my idiot client and therefore, my reputation was not damaged. I did get an award of punitive damages on top of the fees plus an award of attorneys fees, which was nice.

Back to Dominion: I would very much like to know how many actual jury trials the two sides' lead counsel have had. For a case this big, you would want someone with at least 50 major jury verdicts in your corner. In fact, you'd want 2-3 lawyers with that many large verdicts each, along with your trial support team. Maybe both sides had killer lawyers who did a great risk/reward/likelihood of success analysis and determined settlement was the best option. However, if that was the case, they would have settled weeks ago at a mediation or over the phone, not at the last minute.

No one is thinking coolly and objectively just before trial. Adrenalin levels are through the roof, you're getting maybe 4 hours of shitty sleep a night and your list of shit you absolutely cannot let yourself forget runs five pages on your notepad. The impetus to bring it to an end and get out from under the shitstorm can be irresistible.

Once trial starts, there is no let up: jury selection is pivotal. How many voir dires' have the lawyers done? Do they have a clue what they are looking for in a juror? The stress of having to do jury selection, then immediately make a clear and coherent opening statement and then gut your way through a 4 or 5 week trial is immense even when you've done it before and know what to expect.

If--as is the case more often than not--you have risen to "trial partner" in your mega high dollar law firm without ever having tried a case and you are about to put your professional reputation on the line in a high profile case like this, it's almost impossible not to panic and to panic your client into a settlement. It happens all the time.

As for Dominion's counsel, regardless of trial experience, my educated guess is that the Dominion team had a blended hourly/contingent fee arrangement with 15-20% of any recovery on the back end. Fifteen percent of 787M is 118M cash in hand. Given the likely not-great Dominion damage model, that is a ton of money. Lead counsel's cut would be 25-40%. If I was Dominion's lead, my office wouldn't see me again until 2024. If ever.

My thoughts, worth their weight in gold.

[wj]

I thought the liability piece against Fox was weak and subject to an adverse rendition on appeal (in which the court appeals rules in Fox's favor as a matter of law, bringing the case to an end.)

My understanding is that the judge in the case had already ruled that the facts, i.e. that Fox had lied, and lied knowingly, had been established. (I believe his phrasing was "CRYSTAL clear" -- emphasis in the original.) The only question for the jury involved determining malice (as legally defined).

If I have that right, wouldn't a successful appeal simply kick the determination of facts back to a jury? That is, the trial would happen again, just a longer one so the facts could be established by the jury, rather than the judge.

Or are you saying that the appeals court would overrule a jury finding of malice? On what basis? Faulty jury instructions? Something else?

[Priest]

Without looking to refresh my memory, but I believe there was at least one jurisdiction that canceled a contract or withdrew from pursuing a contract with Dominion explicitly because of the lies promulgated. I think that happened after the suit had been filed, so I don’t know if that would be able to be introduced as direct evidence of harm.

[liberal japonicus]

Would a different team be doing their suits against OAN and Newsmax? Especially since it is difficult to imagine that those two car clown outfits can access better representation than Fox...

[bobbyp]

it looked like Fox was providing an outlet for a liar, not doing the lying itself.

LOL.."looks like" does more heavy lifting. I'd offer that Lawrence O'Donnel gets it right here:

https://www.youtube.com/watch?v=PFKgNT1OK6U

[McKinneyTexas]

My understanding is that the judge in the case had already ruled that the facts, i.e. that Fox had lied, and lied knowingly, had been established. (I believe his phrasing was "CRYSTAL clear" -- emphasis in the original.) The only question for the jury involved determining malice (as legally defined).

If I have that right, wouldn't a successful appeal simply kick the determination of facts back to a jury? That is, the trial would happen again, just a longer one so the facts could be established by the jury, rather than the judge.

Or are you saying that the appeals court would overrule a jury finding of malice? On what basis? Faulty jury instructions? Something else?

I'm not arguing as a supporter of Fox, which I haven't watched in years and with which I have any number of issues. From a legal standpoint, making out a case of "actual malice" by a news outlet is a very steep climb. Reporting the words of another or allowing that other to speak on Fox's shows may not even be the acts of Fox, but rather the "witnesses". Fox doesn't have to believe and is not warranting the accuracy of its "witnesses" (or guests or whatever), it is just putting them up. All news outlets do the same.

If someone from Fox stated, "the evidence is clear, the election was stolen and it was Dominion who stole the election", knowing that such a statement was false, then there would be a case. And, if that happened, my take on the case--to that extent--would be wrong.

I'm not much impressed by the trial court's rulings or findings. Trial judges can be great, mediocre or awful and get it wrong all the time. The judge did not rule on actual malice, which means he did not rule that Fox knowingly lied, but if he did make such a ruling, that was likely error. A party's state of mind is almost always a fact issue for the jury and thus not appropriate for summary judgment (big long legal exposition to follow if anyone cares about summary judgment vs jury trial).

Even if a jury were to find malice, the appellate court would review that finding under an "no evidence" standard. I've won several appeals under that standard, which means both the trial judge and the jury got it wrong. Again, providing a platform is probably not defamatory per se.

Priest, it well may be that Dominion could show some damages--but, could it show 787 million or 1.6 billion? If it could show 1M, then that is the amount the jury would be allowed to award.

LJ--no idea about the other cases. My guess--and that's all it is--is that law firms are getting paid--"paid" being the operative word--to put up a fight and they aren't losing a lot of sleep over the outcome. OAN isn't Fox.

Again, just my thoughts.

[McKinneyTexas]

LOL.."looks like" does more heavy lifting. I'd offer that Lawrence O'Donnel gets it right here:

I didn't look at your link, but was O'Donnel expounding generally or analyzing Dominion's Motion for Summary Judgment? I'm addressing the Motion that I read, not what others said about the case (and I did not follow media coverage at all--I read the MSJ out of curiosity).

[bobbyp]

Priest, it well may be that Dominion could show some damages--but, could it show 787 million or 1.6 billion? If it could show 1M, then that is the amount the jury would be allowed to award.

Irrelevant. FOX settled. End of story.

[Girl from the North Country]

bobbyp: I thought that clip was good, and brought together a lot of the relevant info for the layperson.

McKinney's info was interesting too. And since (as all the decent pundits acknowledge) it was far from a slam dunk for Dominion, Fox's desire to settle was (despite what they may have been told about the likelihood of winning at appeal) no doubt motivated by wishing to put an end to the damaging flow of evidence showing that most Fox personnel knew perfectly well it was all lies, and were merely pandering to a gullible viewership. And let's face it, since dedicated Fox viewers probably know little about what's actually happened in this case, Murdoch et al would have wanted to keep it that way.

[wj]

Fox's desire to settle was (despite what they may have been told about the likelihood of winning at appeal) no doubt motivated by wishing to put an end to the damaging flow of evidence showing that most Fox personnel knew perfectly well it was all lies, and were merely pandering to a gullible viewership.

It seems clear that they still hold the view shown in the various emails and texts messages: That the cost to Fox of letting their audience know how bogus the election fraud claims were would be enormous. Because they are effectively signaling that they will also be willing to settle with Smartmatic for a similarly large amount. They may be wrong, but they certainly are terrified.

I wonder if they will seek to win the shareholder suits by establishing that they really were looking at enormous losses if they ceased pandering to the rubes.

[wj]

More fun election fraud news. Mike Lindell claimed he had evidence that China interfered in the 2020 election. But
Election denier Mike Lindell offered $5 million if he could be proved wrong. He’s just been told to pay.
And note that the guy who proved him wrong is . . . a Trump voter!

Sure, it pales beside the Dominion settlement. But then, Lindell's pockets aren't as deep as Fox's.

[Pro Bono]

Here's an attempt to quantify Dominion's losses from Fox's lies.

[Girl from the North Country]

Open Thread, so for anyone who is near or going to NYC, I just want to recommend the new play (just transferred from London) Prima Facie.

I did not see it live, but because of the pandemic the National Theatre filmed some of their big hits, and I saw it at the cinema. It is a good play, about an important subject, but the performance (it is a one-hander with Jodie Comer, who won multiple awards) is absolutely astonishing. She deserves everything she won, and more. Absolutely amazing, and very highly recommended indeed.

https://www.londontheatre.co.uk/theatre-news/news/everything-you-need-to-know-about-prima-facie-on-broadway-starring-jodie-comer

[GftNC]

For anyone in or going to NYC, I just want to recommend the new play on Broadway, just transferred from London, Prima Facie.

I didn't see it on the stage, but because of the pandemic the National Theatre filmed some of their biggest hits, and this (being a one-hander) was particularly suitable for that treatment. I saw it at a special showing in the cinema - it is a good play, but Jodie Comer's performance is absolutely astonishing. She won lots of awards, and deserved everything and more. I recommend it very highly, and if in the end they make the filmed version available, I highly recommend that as well.

https://www.londontheatre.co.uk/theatre-news/news/everything-you-need-to-know-about-prima-facie-on-broadway-starring-jodie-comer

[GftNC]

Aaand....the right to bear arms continues to defend patriotic Americans from marauding six year olds and their fathers when their basketball rolls into the yard of their neighbour.

https://www.theguardian.com/us-news/2023/apr/20/north-carolina-shooting-girl-parents-basketball-yard

[Laura Koerber]

I thought Murdock lived in England for some reason. Isn't he the same guy that owns English tabloids? Thanks for the correction. Is there a way to un-citizen him and deport him?

[wj]

Is there a way to un-citizen him and deport him?

Pretty sure the Australians would decline to take him back. Which shows good judgement on their part.

[Girl from the North Country]

Murdoch's nationality info is exactly as described by Pro Bono, but he does indeed own an English tabloid (the Sun), as well as a reasonably respectable although fairly rightwing broadsheet (the Times), and of course he used to own the infamous News of the World before he shut it down in the wake of the phone-hacking scandal. But then, I believe he still owns papers in Australia, and he also owns the Wall Street Journal and the New York Post (and perhaps others?) in the US. So, in short, he is a member of that interesting phenomenon, a citizen of Richistan, with its concommitant lack of allegiance to anything except power, money, power and more power.

[Hartmut]

He tried to get into the German tabloid newspaper market too but failed due to the niche already been filled by e.g. BILD.
(for comparision: Walmart failed miserably in Germany primarily because they outright refused to adjust to local customs* and because some of their standard operating procedures concerning their own employees were simply illegal here.)

*to just name two examples: Germans consider greeters fake at best and generally creepy. And if there is someone bagging your groceries, a German will spontaneously not think 'good service' but 'THIEF!!!'

[wj]

Oops!
Russia fighter jet bombs Russian city by accident, defense ministry says

The Russian military just goes from strength to strength.

[Snarki, child of Loki]

TBF, Putin's main skill has been bombing Russia.

[Girl from the North Country]

By the way, are any of the lawyers here, lurking or otherwise, able to confirm what Hartmut said on, I think, the other thread. Is it really true that there are no legal penalties in the US for companies lying in advertisements? If so, what is the US definition of fraud, which in the UK (if I correctly remember my brief period in law school) involves attempting to obtain a pecuniary advantage by deception? If there really is nothing to stop it in the US, by decision of the SCOTUS as Hartmut contended, no wonder the US is further forward in the post-truth stakes.....

[Hartmut]

I would also be interested since I could be partially wrong on that. Checking again it seems that the SCOTUS decision I remembered was specifically about political ads, i.e. campaign ads have no obligation to stay anywhere near the truth because otherwise the 1st amendment would be violated.
For mere 'commercial speech' some restrictions seem to be allowed but what I found was not about truth in commercial (non-political) ads but whether states have the right to outright ban certain kinds of advertisements (e.g. for casinos [=gambling] or alcohol). But the articles that came up in a quick search were not very new, so SCOTUS could have updated that by now.
So, a competent statement by our resident lawyers would indeed be appreciated.

[JanieM]

Google has a lot of references.....e.g.:

False advertising is an actionable civil claim under Section 43(a) of the Lanham Act. A party who successfully sues for false advertising may be entitled to either damages or injunctive relief.

To bring a claim for false advertising, the plaintiff must show:

The defendant made false or misleading statements as to their own products (or another’s);
Actual deception occurred, or at least a tendency to deceive a substantial portion of the intended audience;
The deception is material in that it is likely to influence purchasing decisions;
The advertised goods travel in interstate commerce; and
There was a likelihood of injury to the plaintiff.

Notably, the plaintiff does not need to show that they suffered actual injury from the defendant’s allegedly false advertising. That said, puffery, or claims a person could not reasonably rely upon, are not grounds for a false advertising claim.

[Last updated in January of 2023 by the Wex Definitions Team]

********

(No time for proper formatting but you all can ask the big G for yourselves if you want.)

[Girl from the North Country]

Ha! That makes lots of sense, and reassures me somewhat. It seemed extraordinary otherwise. Thanks, Janie.

[Girl from the North Country]

Mind you, what if the advertised goods DON'T travel in interstate commerce? After all, presumably lots of products are solely locally advertised...

I guess I'd better check myself with the big G, as Janie suggests!

[wj]

claims a person could not reasonably rely upon, are not grounds for a false advertising claim.

Which would seem to exempt anything that might be construed as political advertising. Who could reasonably rely on such?

[ral]

No reasonable person would.

[GftNC]

Well, well. Lachlan Murdoch withdraws from his case against Crikey, which said the Murdochs were "unindicted co-conspirators" in the January 6th matter. The ramifications of the Dominion settlement will no doubt run and run, even if most Fox viewers know nothing about it.

As Lachlan Murdoch’s day in the witness stand in the Dominion v Fox News case drew closer, at home in Australia the News Corp co-chairman was keen to make a separate legal case against an independent news website go away.

On Friday, just days after Fox News reached a $US787.5m settlement with Dominion in the US defamation lawsuit, Murdoch’s lawyers filed one line in Australia’s federal court to discontinue “the whole of the proceedings”.

The whole of the proceedings was a defamation case Murdoch had brought against an Australian publication last August for daring to link him to the 6 January Capitol riots.

After hundreds of hours spent in preliminary court battles and thousands of pages of discovery, he simply dropped his case against the Australian media company Private Media, the publisher of news website Crikey.

This was the second time in a week Murdoch had walked away from a legal challenge, with this bill certain to be significantly less, but still likely in the millions.

It was quite the backflip by the 50-year-old media mogul whose legal case has played out in lurid media headlines for eight months. He launched the proceedings after Crikey named the Murdoch family as an “unindicted co-conspirator” in the US Capitol riot.

Written by Crikey’s political editor Bernard Keane, the article did not name Lachlan Murdoch, but was headlined “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator”.

Incensed by the opinion piece, as well as Crikey’s decision to publicise his legal letters in an advertisement the New York Times, Murdoch engaged top silk Sue Chrysanthou SC to represent him and filed a suit.

Chrysanthou talked tough, arguing the publications contained “scandalous allegations of criminal conduct and conspiracy” and carried a number of “highly defamatory and false imputations about him”. Crikey argued in preliminary court hearings that the article did not suggest the Murdochs were guilty of criminal conspiracy.

But as the months dragged on and the case blew out in complexity and length and the number of respondents grew to include the company’s editors and executives, Murdoch wanted to settle, the Guardian understands.

Behind the scenes his lawyers made several offers to bring the case to an end as early as January. But Crikey, the little mouse that roared, refused to back down and apologise – or remove the piece – and the case was set down for a three-week trial in October.

For Crikey the principle of freedom of speech was at stake and the publisher believed it should be free to publish a hyperbolic remark about a billionaire media proprietor without being sued. It was a brave – or foolhardy – stance because if Crikey lost it may have closed the business down.

Private Media alleged in court that neither Lachlan nor any member of the Murdoch family had publicly repudiated claims propagated on Fox News alleging electoral fraud.

Although technically unrelated, Murdoch’s case against Crikey was hampered by the discovery in the Dominion case, which uncovered that Lachlan and his father, Rupert Murdoch, knew that Fox News was telling lies about the US election being stolen in 2020.

In March the case began to look rosier for Crikey as it considered the implications of those Dominion admissions.

Crikey’s legal team jumped on the Dominion material and submitted an amended defence. Murdoch’s lawyers objected to the defence, saying it would mean extending the length of the trial and introducing irrelevant material.

Prof David Rolph, a defamation expert at the University of Sydney’s law school, said at the time the Dominion revelations were key to Crikey’s case. “I think it would seem odd if on the one hand in the United States Dominion succeeds, and here in Australia Crikey doesn’t with its public interest defence,” Rolph said.

On Friday Rolph said the issues involved in the two cases were different but the revelations in the US proceedings were obviously damaging, and it’s against that backdrop that the Australian case would have been litigated.

“It’s also clear that Crikey was attempting to incorporate the US material into their defence and it would have been difficult for Lachlan to avoid getting into the box and being cross examined,” Rolph said. “Obviously withdrawing those proceedings avoids that from happening. I think that’s what it really boils down to.”

The Dominion case had already begun to dominate proceedings. Earlier this month Crikey’s lawyers told the court that Murdoch was culpable for the violent insurrection of the US Capitol, generating the type of headlines Murdoch was trying to avoid with his original claim.

Barrister Michael Hodge KC said that while many media sources fuelled a conspiracy theory that Joe Biden stole the election from Donald Trump, Murdoch could still be held responsible.

“He controls Fox Corporation,” Hodge said. “He permitted for the commercial and financial benefit of Fox Corporation this lie to be broadcast in the United States.

“We say that gives rise to culpability where you are allowing and promoting this lie and that lie is the motivation for the insurrection.”

Chrysanthou for Murdoch accused Crikey of including masses of material from the Dominion case in the Australian defamation lawsuit purely as part of its “Lachlan Murdoch campaign”. A key tactic employed by Chrysanthou was to claim Crikey was using her client as a way to increase subscriptions and build a fighting fund. The Guardian understands this marketing campaign particularly infuriated Lachlan.

“They are happy to martyr themselves in this litigation to seek more money on the GoFundMe me campaign … to turn the case into something that resembles an inquiry and they don’t care if they win or lose,” Chrysanthou said.

With the US media’s attention on Dominion, the Murdoch camp decided to drop the case before the weekend, knowing the Crikey case would be just a footnote in the coverage outside Australia.

Murdoch’s lawyer John Churchill claimed he was ending the case so as to not enable Crikey’s “marketing campaign”.

“Mr Murdoch remains confident that the court would ultimately find in his favour, however he does not wish to further enable Crikey’s use of the court to litigate a case from another jurisdiction that has already been settled and facilitate a marketing campaign designed to attract subscribers and boost their profits,” Churchill said.

Private Media’s CEO Will Hayward said it was a substantial victory for legitimate public interest journalism and labelled Churchill’s claim that Murdoch would have won as absurd.

Matthew Collins KC, a barrister specialising in media law and a former Australian Bar Association president, said Murdoch was liable for most of the costs.

“While every case is different, the costs that are recoverable by a party following a discontinuance of proceedings are typically in the range of two-thirds to three-quarters of the actual costs of the party,” he said.

And for connoisseurs of Marina Hyde, she is in sparkling form today on the resignation of the awful Dominic Raab after the report into his bullying of officials was completed:

https://www.theguardian.com/commentisfree/2023/apr/21/dominic-raab-hardman-rishi-sunak-scandal

[wj]

Ah, if only we had a political class where "Remember not to be a massive arse." was a touchstone. Definitely nothing that DeSantis (not to mention Trump) has ever considered might be part of his interactions with the world.

[Pro Bono]

False advertising is an actionable civil claim under Section 43(a) of the Lanham Act...

There's also the Federal Trade Commission Act which set up - surprise - the Federal Trade Commission to protect consumers from dishonest adverts, among other things.

[novakant]

While Murdoch is not a UK citizen, his 4 decades long dominance of UK media (newspapers since 1968 and he set up Sky in 1990) and influence on UK politics (Thatcher, Major, early Blair) could easily make one think he is.

[McKinneyTexas]

Broadly speaking, there are both statutory and common law limits on commercial speech intended to induce "detrimental reliance", which means pretty much any change in the listener's economic position whether paying for substandard goods/services, foregoing one opportunity for another and so on. The list is almost as varied as the range of human economic interaction.

Texas has had its Deceptive Trade Practices-Consumer Protection Act on the books since 1973 and it provides a ton of consumer remedies for "false, misleading and deceptive business practices, unconscionable actions and breaches of warranty". We have additional statutes for real estate transactions, insurance sales and claims handling and many, many others which address--in one manner or another--commercial speech.

So, for example, I cannot sell you a bottle of syrup on the promise that it will cure cancer, but I can say, "vote for me and I will find a cure for cancer." Trolling someone for their money is different from trolling for votes.

[wj]

Trolling someone for their money is different from trolling for votes.

Short story shorter: You can lie to the voters; you just can't lie to the donors.

[McKinneyTexas]

Short story shorter: You can lie to the voters; you just can't lie to the donors.

WJ, I disagree with the last part. Donors who donate in exchange for a vote are guilty--along with the politician--of bribery. Of course, it goes on all the time, but the politician's promise in exchange for favorable legislative treatment is not an legally enforceable promise; just the opposite, it's a felony. Likewise, lying to the public is perfectly legal under many circumstances, but not legal under others.

[wj]

McKinney, it's bribery to donate in exchange for a vote. But to donate because you like what the politician says he will do? IANAL, but it seems somewhat different. Enough to dodge a bribery charge? Don't know.

But what the politician says he will do is clearly advertising. And if you expend money based on advertising....

(Perhaps it becomes clear why I am not a lawyer. :-)

[Michael Cain]

IMO, it was some of the best advertising ever.

Maybe. Dominion's direct customers are city, county, and state governments. They change their voting technology infrequently. The only decision that has been prominantly reported is in Shasta County, CA where the county commissioners ordered that no machines are to be used, hand count only. At least one of commissioners there has been quoted as saying they don't care about evidence.

[ral]

I predict Shasta County is going to regret this decision.

[CaseyL]

ral - Unless the "hand count" is carried out by, and overseen by, non-partisan, non-interested, etc., individuals and/or organizations, I predict that Shasta County elections will from now on go exactly as the Shasta County Commission wants them to.

[nous]

I'd say that Shasta is a microcosm for much of the rural purple US. There are extremists with a noisy plurality and just enough others who are tired of noise and scared of disruption that the extremists keep a measure of control. Then the extremists use intimidation to drive down participation so that they can remain in control despite no one wanting most of the things they actually do.

[Michael Cain]

I predict Shasta County is going to regret this decision.

So far, the county recorder who has to actually conduct the elections has told the commissioners that (a) her budget is not nearly big enough to do a hand count and (b) hand counts violate California state law.

[nous]

Shasta is holding on. But it’s not a healthy political atmosphere and a lot of people are scared. It feels like a lot of other places from the 80s and 90s where anti government extremists have built up a public presence and attempted to take control on a local level.

[wj]

Shasta County's commissioners can probably sustain having cancelled the county's contract with Dominion. But they'll just have to go with a different vendor. Possibly they'll convince themselves that getting rid of Dominion was sufficient -- delusions are good at redefinition like that.

[GftNC]

Today's Grauniad, on Shasta County:

In a seemingly long gone era – before the Trump presidency, and Covid, and the 2020 election – Doni Chamberlain would get the occasional call from a displeased reader who had taken issue with one of her columns. They would sometimes call her stupid and use profanities.

Today, when people don’t like her pieces, Chamberlain said, they tell her she’s a communist who doesn’t deserve to live. One local conservative radio host said she should be hanged.

Chamberlain, 66, has worked as a journalist in Shasta county, California, for nearly 30 years.

Never before in this far northern California outpost has she witnessed such open hostility towards the press.

She has learned to take precautions. No meeting sources in public. She livestreams rowdy events where the crowd is less than friendly and doesn’t walk to her car without scanning the street. Sometimes, restraining orders can be necessary tools.

An American flag hangs from the railing of a bridge overlooking a river and lush green hills.

These practices have become crucial in the last three years, she said, as she’s documented the county’s shift to the far right and the rise of an ultraconservative coalition into the area’s highest office. Shasta, Chamberlain said, is in the midst of a “perfect storm” as different hard-right factions have joined together to form a powerful political force with outside funding and publicity from fringe figures.

The new majority, backed by militia members, anti-vaxxers, election deniers and residents who have long felt forgotten by governments in Sacramento and Washington, has fired the county health officer and done away with the region’s voting system. Politically moderate public officials have faced bullying, intimidation and threats of violence. County meetings have turned into hours-long shouting matches.

https://www.theguardian.com/us-news/2023/apr/21/california-journalist-far-right-takover-shasta-county

[Girl from the North Country]

RIP Barry Humphries, a brilliant and complicated performer and comedian. Personally I will never forget the immortal Barry Mackenzie, his ocker creation in the early Private Eye, complete with his slang (point percy at the porcelain, one-eyed trouser snake, slipping the ferret, technicolour yawn etc), but of course his creation of total genius was the inimitable Dame Edna. An American diplomat once said to me, about Dame Edna "Oh, I don't really like drag acts", to which, astounded, I could only answer "Dame Edna is not a drag act!". When he asked me what she was then, I answered "demonic possession." And I (more or less) stand by it.

[Hartmut]

So far, the county recorder who has to actually conduct the elections has told the commissioners that (a) her budget is not nearly big enough to do a hand count and (b) hand counts violate California state law.

Another thing where the US tick completely differently from Germany.
Over here both a) and b) would be the other way around.
Over here every citizen can be drafted as an election helper (although usually public servants get called up first) and the hand counts are done by law in public. The idea that one could lack personnel for that or it being too expensive seem simply absurd. And if voting machines are not outright illegal, their use would meet massive protests. It's just seen as an improper and unreliable way tp conduct elections. And it's extremly rare, if the final results are not known by midnight.
But of course we lack something like the GOP in Germany, even the Bavarian CSU does not come close

[wj]

And if voting machines are not outright illegal, their use would meet massive protests. It's just seen as an improper and unreliable way tp conduct elections.

Here, not only are voting machines** common, it was (until recently) common in some states to use machines which record votes at the polling place without creating any kind of paper ballot which could be audited/recounted. (Including, be it noted, if then extremely red Georgia.)

In California, pretty much everything is, as noted, done by machine. But it is standard practice to do a hand count of (randomly selected) precincts afterwards, in order to verify the machine results. And, of course, if someone asks for a recount, that can be done by hand as well.

As we saw in 2020, hand counts rarely deviate by more than a handful of votes from the machine counts. In random directions. And whether the hand counts are more accurate is debatable.

P.S. I'm trying to picture the results of someone trying to set up a draft of people to do a hand count. Considering the reactions of some to being drafted for jury duty, I'm guessing there would be significant opposition.

** That's both machines to mark your ballot for you, and other machines which tally both machine marked and hand marked ballots. So far, the far right seems focused on the latter.

[Michael Cain]

And it's extremly rare, if the final results are not known by midnight.

In 2022, my ballot contained on the near order of 65 items: federal officials, state officials, numerous county and city officials, people to run the university system, people to run the local school system, people to run a couple of special districts (whose boundaries don't align with anything else), whether to retain judges at multiple levels, plus a fairly typical number of referendums and initiatives. Two languages. Probably 50-60 different ballot types. About 200,000 ballots cast in the county. All of which have to -- by statute -- be transported to a single secure location to be counted. Oh, and the state requires risk-limiting audits so the process is verified in several different ways from beginning to end.

America's dependency on machines to do most of the counting is driven by the fact that we vote on so many things.

[wj]

America's dependency on machines to do most of the counting is driven by the fact that we vote on so many things.

And that we have so many voters. In just my county (1 of 58 in California) in 2020, there were over 590,000 ballots cast (out of 700,000+ registered voters in the county -- voting not being mandatory here). For, as Michael Cain notes, numerous offices from President to city councils to water district boards -- most of the local district boundaries being different from and overlapping with any other kind of district, leading to multiple ballot types being needed. Plus 12 state propositions and 8 local measures somewhere in the county. And that wasn't a particularly unusual collection of stuff to vote on.

That's a whole lot of counting to do. (And if you have the totals from each of dozens, or hundreds, of individual vote counters totaled using an adding machine, isn't that machine tabulation anyway? Anyone want to bet it wouldn't be parsed that way by some election deniers?)

[ral]

It occurred to me to ask, just how many ballots will have to be counted? So I am trying to go to the Shasta County web site and guess what happens when you click the "elections" link.

[JanieM]

@ral -- i get the elections page.....which switches back and forth between "Special Election Results are Certified" and "Manual Tally Information" -- with more links etc. Do you get something else?

[Snarki, child of Loki]

Hey, if Shasta County MAGAts don't want their votes for RWNJ candidates to count, please proceed.

[ral]

The link from the home page to Departments | Elections times out.

[ral]

(as do several Google'ed alternatives)

[JanieM]

@ral -- not for me, it pops right up -- both your link and if I google it myself.

Finer points -- it pops right up on Chrome, where I let scripts run. It takes a while on Firefox, where I don't allow scripts. (Or whatever....it has been years since I made those settings.) But it comes up on both of them just fine.

Weird.

[ral]

Ah, works in Chromium, fails in Firefox (112.0 for Ubuntu).

[JanieM]

I am on a very conventional Windows 11 machine. ;-)

[wj]

Hey, if Shasta County MAGAts don't want their votes for RWNJ candidates to count, please proceed.

Since the California Republican Party has made itself unelectable in statewide elections, lack of their votes changes nothing. All they really need to care about is elections for their own county offices. Where they can continue to count the votes for their fellow RWNJs locally, even if the state ignores their results for other contests.

[Michael Cain]

Where they can continue to count the votes for their fellow RWNJs locally, even if the state ignores their results for other contests.

It's all fun and games until the state starts filing felony charges for violating state election laws...

More seriously, I wonder how much of the election process depended on Dominion services. Ballot design? Return envelope verification (since California now sends mail ballots to all registered voters)?

[wj]

Return envelope verification (since California now sends mail ballots to all registered voters)?

My understanding is that ballot envelopes have their signatures verified manually. Then the external barcode is scanned (no idea if this involves so Dominion hardware, but I suspect not). This to confirm that the individual has not already voted; and to record who voted by mail, so they cannot subsequently vote in person as well.

Then the envelopes are opened and the ballots are removed and scanned by a Dominion machine.

[novakant]

I geth that the resistance against voting machines in the US is currently driven by MAGA people and that hand counting would probably lead to even worse fights about election outcomes ("hanging chads 2.0... ?")- so I don't know what the answer is here.

But I think it's important to note, that electronic voting is quite rare internationally. Barely any countries in Europe use it, quite a few have tested it at some point and decided it's not transparent and / or safe enough.

[wj]

One thing to remember is that "electronic voting" covers a variety of possible implementations.

For example, you can have a machine where the voter entes his votes, the machine records them electronically, and later those counts are totalled. For a while, some places in the US (I believe I mentioned Georgia) used those.
The problem, obviously, is that there is no audit trail and no way to do a recount to verify the results. So those are pretty much all gone now.

Or you could go all in, and have voters vote over the web. Not only no paper ballot (audit trail), but you could question the security of the transmission of the votes. (Sure, you may be comfortable doing you banking that way. But that's only you life savings, not your vote.). And indeed the security of network transmission varies a lot, depending on which protocol is being used. Not to mention that quantum computers look likely to become powerful enough to allow breaking even the most secure current encryptions.

Another option is to have the voter enter his vote on a machine which then generated a paper ballot. Essentially, a printer. Those printed ballots can then be counted, either manually or by being scanned, and the results tallied. (Here, this is an option, or the voter can manually mark his ballot.) Save those paper ballots, and you have an audit trail.

Or, you can have the voters manually mark their ballots, and then have them scanned and counted. Again, an audit trail.

As we saw in Arizona, machine counting of paper ballots is quite reliable. Safe and transparent.

In fact, the biggest lack of transparency is that the ballot boxes at the polling stations are opaque. (There was a time, I believe, when glass sided boxes were used. But not currently.). That is mostly addressed by double custody: two people sign off that the boxes were empty at the start, and two sign off that all of the ballots were removed for counting.

[Michael Cain]

But I think it's important to note, that electronic voting is quite rare internationally.

So are ballots that include dozens of items. When lever voting machines were introduced in the US in the 1890s cities routinely required days/weeks to tabulate their election returns. The primary problem the machines were intended to solve was speed. Still is. I'm looking forward to seeing how Shasta County tries to solve it.

[wj]

I'm looking forward to seeing how Shasta County tries to solve it.

I, too. Although I'd give odds that the new commissioners have given zero thought to the logistics, not to mention the cost, of implementing their intended manual counting. (The testimony of the recently fired county elections officer suggest the same.)

But hey, it made a wonderful election slogan for them. And MAGAts, I have observed, care little about actually implementing any of their platform -- except, of course, the bits about firing various non-partisan government employees.

[Michael Cain]

I'm looking forward to seeing how Shasta County tries to solve it.

I see that Shasta County has now signed an $800,000 contract with a different company for various equipment, software, and training, including centralized scanners, for disabled voter access. The news stories imply the $800,000 will have to be offset by cuts in other programs, as yet unspecified.

[bobbyp]

Paper ballots, counted electronically, seems the way to go to me, but hey, what do I know?

I would wager that (The Revolution notwithstanding) the first shooting 'civil war' to break out will be in some place like Shasta County between two groups of "real 'murican" thugs.

[wj]

two groups of "real 'murican" thugs.

Well, if non-reactionaries are too few (especially after a little judicious voter suppression) to be significant, elections will be between two "real 'murican"® candidates. So, if you lose, who must have perpetrated the election fraud? Yup: RINOs, AKA the other guys.

The bad news: if you try to shoot your way to a "proper" election result, i.e. "stop the steal!"®, the other guys will be equally heavily armed.

[JanieM]

"Let's you and him fight!"

[Nigel]

I suppose I should not be surprised, but this dissent from Thomas, in the latest SC decision, is quite something.

He effectively invites the state of Texas to execute Reed (who is very likely innocent of the crime he was convicted of*) to render the Court's decision to grant his appeal moot.
https://www.supremecourt.gov/opinions/22pdf/21-442_e1p3.pdf

Also dissenting, of course, is Alito, along with Gorsuch.

*
https://slate.com/news-and-politics/2023/04/supreme-court-reed-goertz-death-penalty-kavanaugh.html

[wj]

Regarding this Supreme Court decision, I believe the aphorism is:
"Even a blind pig finds an acorn now and then."

[Hartmut]

This from Texas (Via NBC News):

The Texas Senate on Thursday passed a bill that would require the prominent display of the Ten Commandments in public school classrooms, reigniting a debate over the role of religion in schools and parental rights. The measure, sponsored by Republican state Sen. Phil King, states that every public elementary or secondary school must “display in a conspicuous place in each classroom of the school a durable poster or framed copy of the Ten Commandments” starting in September.

The measure passed the Texas Senate on Thursday and is now pending in the House

[Hartmut]

It also seems that Tucker Carlson and Fox are parting ways.

https://www.msnbc.com/rachel-maddow-show/maddowblog/tucker-carlson-fox-news-out-rcna81147

[wj]

It also seems that Tucker Carlson and Fox are parting ways.

Good riddance to bad rubbish. 'Nuff said.

[nous]

Cleaning house before the Smartmatic trial begins? Seems a bit late for that sort of damage control.

[Girl from the North Country]

Good riddance to bad rubbish. 'Nuff said.

Yes. I wonder what his next move will be, in finding an outlet for his dark, doom-laden, nativist fantasies. Let's hope it won't have so wide an audience, but I wouldn't bet on it.

[CharlesWT]

Going for a broad sweep. CNN fired Don Lemon. Susan Rice to leave role as White House domestic policy chief. Now if MSMBC fires Joy Reid...

[JanieM]

@nous -- funny, my first thought was that Tucker just got too big for his britches and thought he was actually in charge, and the real person/people in charge had had enough of that nonsense.

[hairshirthedonist]

If only OAN would fire ... um ... well, I can't name anyone on OAN. But I'm sure there's someone I would like to be fired!

[JanieM]

But it was Carlson’s comments about Fox management, as revealed in the Dominion case, that played a role in his departure from Fox, a person familiar with the company’s thinking told The Post.

Heh.

[JanieM]

Now if only we could fire him from Maine....

[wj]

But it was Carlson’s comments about Fox management, as revealed in the Dominion case, that played a role in his departure from Fox, a person familiar with the company’s thinking told The Post.

Considering his scathingly accurate comments about Trump, as see in those emails and texts, it seems likely that he was equally accurate about Fox management. Which would certainly upset them -- more so than if he was totally fantasizing, like on his show.

[Girl from the North Country]

Not sure I totally buy that explanation for TC's ouster, but I like it anyway! Megyn Kelly says he will crush an independent venture of some kind - I hope not but it may well be true. He really is a despicable (and kind of creepy) guy.

[nous]

LA Times is saying that Murdoch and some of the board pushed Carlson out in part because of the Grossberg lawsuit.

https://www.latimes.com/entertainment-arts/business/story/2023-04-24/tucker-carlson-is-out-at-fox-news

My first speculation, based on who made the decision, is that there are some hard feelings, sure, but the board had to act to protect themselves from the derivative action suits. Keeping Carlson and his executive producer on payroll leaves them in jeopardy for any shareholder that comes after the board - especially with one big settlement already done and another waiting in the wings.

Just a guess, but it fits the context.

[Girl from the North Country]

nous, that seems more likely to me, because it fits with what I consider their bloodless (i.e. not caring so much about the insults) but Machiavellian nature (caring about financial and other kinds of jeopardy).

[CaseyL]

How much does firing Carlson now protect Fox, though?

The lawsuits are all based on acts done while he was still an employee.

IANAL, but I don't think you get to say, "Hey, we fired him! You no longer have a case against us!"

[nous]

The case may still be there, but if the motivation for the suit was not so much monetary as it was ideological - shareholders upset with the election denialist business model - then the firing may undercut their motivation to sue.

[Michael Cain]

To get pushed out at a high level at Fox News seems mostly to require some sort of sex scandal (including major league harassment). O'Reilly was fired from the same time slot, with similar audience size, because of sex. I'm sort of expecting that we will eventually see a Carlson sex scandal. To borrow from a female friend, "Carlson is at exactly the right combination of age, income, marriage length, and arrogance for a midlife crisis involving a blond with big tits, or the male equivalent."

[CharlesWT]

Yes. I wonder what his next move will be, in finding an outlet for his dark, doom-laden, nativist fantasies.

If he could step away from the character he has played on TV, he could return to being the good journalist he used to be. He might be able to create his own mini-media empire like that of a number of other people who got kicked out of traditional media have done on Substack and other venues.

[CharlesWT]

To get pushed out at a high level at Fox News seems mostly to require some sort of sex scandal (including major league harassment).

"Ms. Grossberg said in the lawsuit naming Mr. Carlson that male producers regularly used vulgarities to describe women and frequently made antisemitic jokes."
In a Lawsuit, Tucker Carlson Is Accused of Promoting a Hostile Work Environment: Carlson’s former head of booking, Abby Grossberg, said that male producers regularly used vulgarities to describe women and frequently made antisemitic jokes.

[Snarki, child of Loki]

every public elementary or secondary school must “display in a conspicuous place in each classroom of the school a durable poster or framed copy of the Ten Commandments”

I look forward to the lawsuit that demands the posting of
DO WHAT THOU WILT SHALL BE THE WHOLE OF THE LAW

[JanieM]

Per Charles @8:06 -- um, the good journalist he used to be? Is there any actual evidence for this?

And even if there is, who on earth do you think his audience would be?

The millions who swallowed his lying poison for the past however many years won't be the slightest bit interested in anything sane he might come up with to say -- more likely they'd lynch him for it. And the (I hope many more) millions who despise him for helping to destroy the country are not going to need or want any "journalism" from him.

[CharlesWT]

Per Charles @8:06 -- um, the good journalist he used to be? Is there any actual evidence for this?

Given his extensive media career, he must have something on the ball.

Tucker Carlson - Media Career

[wj]

Given his extensive media career, he must have something on the ball.

Experience in a number of businesses over the years suggests that, while competence is one route to a successful corporate career, it is definitely not the only one. Which is to say, inferring that Carlson was ever a good journalist is not justifiable just based on how extensive his career may have been.