For most of the 20th century left-of-center politics was defined by class struggle between the rich and the poor. Now the left has been completely subsumed by identity politics, the struggles for historically disadvantaged demographic groups for equality. Unfortunately the class struggle (which largely drove the oppression of women and minorities) has been all but forgotten by mainstream liberal politicians and political parties.
The National Enquirer and Radar Online published a series of news stories that reported that Richard Simmons, the fitness instructor and TV personality, was transitioning to become a woman. “Richard Simmons: He’s Now a Woman,” read an Enquirer headline.
The Enquirer lied about Simmons. So he sued.
Seems like a straightforward case of libel. Yet, insanely, thanks to California’s constitutionally dubious, nonsensical “anti-SLAPP” statute, a judge has ordered him — a bona fide victim of “fake news” — to pay the Enquirer $122,000. The miscarriage of justice in Simmons’ case is worth thinking about as well-intentioned progressives try to defend the Fourth Estate from toxic smears by President Trump.
Proposals like a federal “shield” law to protect journalists and their sources could help shore up the First Amendment. But the current push for a national anti-SLAPP law like the one that slammed Simmons is woefully misguided and would only bolster Trump’s argument that the media publishes lies with impunity.
Simmons, a gay icon who calls himself “an avid supporter of the LGBTQ community,” sued the media outlets for libel in Los Angeles. Simmons presented key evidence, an Enquirer document indicating that the newspaper could not rely on its source for the Simmons transgender story, his former assistant.
The landmark 1964 U.S. Supreme Court case Sullivan v. New York Times established a standard that, in order to prove libel, a public figure such as Simmons must show that the defendants either knew a story was false at the time of publication, or that they had reckless disregard for the truth. Simmons seems to have the makings of a successful case on both counts.
Simmons says he sued because the stories violated his privacy and falsely portrayed him as someone he’s not. Also, given that as many as one out of four Americans are uncomfortable with and/or actually despise transgender people, it would not be unreasonable for Simmons to worry that he might lose business as a result.
Twenty-eight states have anti-SLAPP (“strategic lawsuit against public participation”) laws. They’re presented as a way for a poor individual or whistleblower to defend themselves from deep-pocketed corporations. The reality is a classic case study in unforeseen consequences: poorly-written, confusing anti-SLAPP laws are routinely abused by giant media outlets so they can avoid being held accountable for reckless smears and to send a chilling message to victims who seek redress in the courts.
The assumption behind anti-SLAPP appears to have originated during the Reagan-era “tort reform” movement. Courts, conservatives claimed, were clogged by frivolous lawsuits filed by giant companies. In 1996, for example, Texas cattlemen sued talk host Oprah Winfrey under the state’s “veggie libel” law for saying that she’d stop eating burgers. But there is no statistical evidence that the problem, if it exists at all, is widespread or can’t typically be disposed of by the standard litigation tactic of filing a motion for summary judgment.
In states like California, a libel or defamation defendant like the National Enquirer can file an anti-SLAPP motion as soon as it receives a lawsuit. Discovery stops. Plaintiffs aren’t allowed to subpoena documents or depose witnesses. A judge reads the legal complaint, assumes everything the plaintiff says is true and everything the defendant says is false and, based on those assumptions, assesses whether the case has minimal merit. If so, the anti-SLAPP motion is denied and the case moves forward.
If not, the case is thrown out of court and the plaintiff is ordered to pay the defendant’s attorneys’ fees. (The supreme courts of Minnesota and Washington have declared anti-SLAPP laws unconstitutional because they violate plaintiff’s right to a jury trial.)
That’s what happened to Richard Simmons. He is appealing.
Anti-SLAPP laws rely on a flawed theory. In reality, deep-pocketed interest groups like the cattlemen who sued Oprah aren’t deterred by the potential expense of having to pay the defendant’s legal fees. Moreover, the statutes are extremely confusing, featuring more exceptions to exceptions than French grammar. Moreover, anti-SLAPP asks judges to act against their very nature; for example, judges are not supposed to assess the evidence, but simply take everything the plaintiff says at face value. In case after case, judges simply can’t help themselves.
Judges are gonna judge.
Which is how Simmons, the gay icon, wound up on the hook for $122,000, forced to pay a newspaper that lied about him, that oppressed him, that common sense says owes him an apology and a retraction, as a martyr to transgender rights. Los Angeles Superior Court Judge Gregory Keosian ruled that Simmons falsely being declared a woman did not expose him to “hatred, contempt, ridicule or obloquy,” so no more defamation occurred than if they had falsely described the color of his clothes.
“While, as a practical matter, the characteristic may be held in contempt by a portion of the population, the court will not validate those prejudices by legally recognizing them,” Keosian ruled.
If Simmons loses his appeal, California’s Court of Appeals will order him to pay the publications even more money.
To most people, Simmons’ case is a mere judicial curio. Not for me. I’ve taken an interest in anti-SLAPP laws since 2016. That was when the Los Angeles Times, defended by the same lawyers as the National Enquirer, filed a California anti-SLAPP motion against me. I had sued the Times for defaming me in a pair of articles they ran as a favor to the Los Angeles Police Department, which I had criticized as the paper’s editorial cartoonist, by falsely accusing me of lying and fabulism.
Like the judge in Simmons’ case, Judge Joseph Kalin failed to follow the letter of the anti-SLAPP statute. He ignored the minimal-merit standard. In his decision, he stated that the facts in the case were in my favor, not the Times. Nevertheless, he ruled against me using logic counter to the anti-SLAPP law and awarded the Times and their lawyers — the party that victimized me — $350,000. I am appealing too.
In both these cases and countless others, wealthy media conglomerates are shaking off cases that deserve their day in court before a jury, and collecting hundreds of thousands of dollars at a time from plaintiffs victimized by brazen journalistic malfeasance. Media companies might be winning in courthouses — but they’re getting clobbered in the court of public opinion.
(Ted Rall, the editorial cartoonist and columnist, is the author of “Francis: The People’s Pope.”)
On the one hand, the news that another psychologically damaged man shot 17 schoolchildren to death with an AR-15 semiautomatic rifle is not news. Put it on page 27 below the fold, maybe?
On the other hand, you have to be shocked because these are kids and who do we become if we stop being shocked? Congress and the president should put their heads together and act now.
On the one hand, the Second Amendment is an essential safeguard against government tyranny. While an authoritarian state (any state) will always have police and troops with better training and arms than its enemies at its disposal, owning a weapon will give many resistance fighters of the future the courage they need to fight back.
On the other hand, the population of Americans who live in rural areas was 95% when the Founding Fathers ratified the Constitution. Now it’s 15%. Once a major source of food necessary for survival, hunting today is mere sport. Considering the daily carnage of gun violence, the Second Amendment may be as obsolete as the flint-lock rifle. Perhaps we should repeal?
On the one hand, military-style weapons like the current mass shooters’ gun of choice, the AR-15, were designed for one purpose: to kill people efficiently. Until 2008 they were banned. Why not renew the assault weapons ban?
On the other hand, people really do use them to hunt. Having been on the receiving end of more than my fair share of death threats, I’d rather defend my homestead with an AR-15 than a less efficient, less accurate gun. Sorry, liberals, but gun rights people have a point: ban AR-15s and the next step will be a push to ban other weapons. Slippery slopes are a real thing; look how the pro-life movement has rolled back abortion rights via incremental, reasonable-seeming moves like bans on late-term terminations.
On the one hand, there are 270 million guns in the United States — almost one for every man, woman and child. Even if we banned guns, how would we force the gun genie back into its bottle of death? Send government goons to kick down every door in the country to search for them?
On the other hand, existing guns could be grandfathered into a ban on the manufacture and sale of new guns (including from one individual to another). Guns would get old. They’d rust. Those used for target practice would wear out. Trigger mechanisms are often the first to go. Like the fairly effective ban on ivory, the effect would become evident over time: a nation awash in weaponry would become less so with the passage of time.
On the one hand, states like Florida seem crazy for not requiring gun purchasers to register their weapons. Florida actually bans such regulations. Cars, boats, even bicycles and cats and dogs, must be registered. Why not devices that kill people?
On the other hand, gun ownership is different. It’s a constitutional right. Automobile ownership, operating a boat and having a pet are privileges guaranteed by state and local laws. Mandatory gun registration would be no more constitutional than forcing media outlets to apply for a state license before publishing (they do this in other countries).
On the one hand, many if not most mass shooters are mentally ill. Wouldn’t it make sense to prohibit sales of firearms and ammunition to people suffering from mental illness?
On the other hand, who gets to define what constitutes mental illness? Federal law bans sales to anyone who “has been adjudicated as a mental defective or has been committed to any mental institution.” New York, where I live, goes further, banning sales of guns to one “who has stated whether he or she has ever suffered any mental illness.” That’s very broad: “Heathers” and “Stranger Things” actress Winona Ryder, singer Mariah Carey, artist Yoko Ono and actress Roseanne Barr were all institutionalized. But no one thinks they’re going postal any time soon — frankly, I’d trust Winona with the nuclear codes more than Trump. The metric is also highly subjective. Gays were officially classified as mentally ill until 1987. Transgender people are still on the list.
On the one hand, people who knew him say they’re not surprised that Florida shooter Nikolas Cruz went berserk. The signs were there all along: violent Internet posts, ties to white supremacists, erratic behavior like threatening people with a BB gun. People saw something; why didn’t they say something?
On the other hand, this isn’t “Minority Report.” You can’t jail someone for what they might do. People are entitled to their opinions, no matter what they are. If you jailed everyone who acts strange or right-wing or loopy, half the country would be locked up. And anyway, who trusts the police or the government to decide which half?
On the one hand, if anyone deserves to die, it’s Nikolas Cruz.
On the other hand, what kind of society executes a “broken child,” possibly autistic, almost certainly emotionally damaged, absolutely wrecked by the recent death of his mother, his last surviving parent?
How does killing a killer send the message that killing is wrong?
(Ted Rall (Twitter: @tedrall) is co-author, with Harmon Leon, of “Meet the Deplorables: Infiltrating Trump America,” an inside look at the American far right, out now. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)
CORRECTION: This piece has been corrected by the deletion of “because it’s the 18th school shooting so far this year, ” from the first sentence. I fell victim to a widely disseminated, now known to be untrue, statistic. Please see The Washington Post here for details.