We’ve requested a rehearing en banc (that is, the full court) by the DC court of appeals on the mistaken ruling in December of a division of that court. Amici (and I’d expect at least as many as the last time) have another week to file.
[Late-morning update]
Cato has filed an amicus brief:
Political thinkers would certainly like to believe that historical analogies are integral to expressing their views on important political choices. Just in the last year, one candidate for office has been compared to Hitler, 21 Hitler, 22 Hitler, 23 Hitler, 24 and Mussolini. 25 Indeed, that public figure was so annoyed by this criticism that he threatened to “open up the libel laws” to prevent such speech in the future. Luckily for him, the division’s decision has done this work for him.
I don’t think they realize what a can of worms they opened.
[Later-afternoon update]
National Review has also filed a petition.
I don’t think they realize what a can of worms they opened.
Indeed. Ruiz’ ruling is so colossally bad, one would expect the en banc rehearing to be almost certain. One would also expect that the en banc ruling will not require another two years to be issued.
And the people cheering this ‘victory’ on are the perfect example of the short sighted vindictive hubris of the Obama era.
I hope sanity is restored. The chilling effects of a decision like this would be just way too much.
Rand if this went south on you, what is the absolute worse that could happen? Did he call for monetary damages?
Yes, but it would be paid by legal insurance.
With regard to the Cato brief on the question of analogies (“Hitler, etc.) Refresh my memory on the legal sticking point, please.
It appears to me that at this stage of the process — and a stage that has progressed past the original filing — all parties stipulate that comparisons of one Penn State employee to another are protected. The question remaining at issue appears to me to be whether the word “fraudulent” is a claim of FACT rather than opinion, right? And that a jury might be persuaded to regard the claim as a fact claim, made in reckless disregard of supporting facts, and in actual malice toward not only the public figure, but the public issue.
That is, at this stage, comparing someone to Lex Luthor or some other “evil-doer” is okay, but accusing the same someone of a verifiable and specific “evil” is defamation.
Is that a fair interpretation of the legal state of play?
It depends on which case you’re talking about. National Review’s is different than mine. I didn’t use the word “fraudulent.” But you need to read the petition to understand my legal situation.
Between this and the Basket of Deporables amicus, Ilya Shapiro is on quite a roll. I think I’ll take up a career writing amicus briefs, where I don’t have to worry so much about controlling my sarcasm.