Akiva Cohen Profile picture
Feb 7 11 tweets 2 min read
There is & can be no meaningful "philosophical" commitment to free speech distinct from the legal notion of free speech as "freedom from government consequence". (You can argue about what the appropriate limits of that freedom should be, that's not what I'm talking about)
Why do I say there can't be any such philosophical commitment distinct from the legal? Because once you're talking about non-governmental consequences, you're focused on *competing* speech and associations - any private boycott or deplatforming is just private also-free speech
I don't have any moral obligation to actively or tacitly support speech with which I disagree. Of course, we need a modus vivendi to deal with both the mutually-assured-destruction version of "boycott anything I disagree with" and the actual harm of epistemic closure; life in a
bubble is impoverished; we gain immeasurably from the clash of ideas. But the way we deal with that is the recognition that there's a range of ideas within which we accept disagreement without imposing social consequences and ideas on the outside of that range where we don't
For example, if you see someone standing on a street corner loudly advocating for gerrymandering reform, you probably aren't going to spend much time listening to them but even if you disagree with them you aren't going to shun them. If you see the same guy advocating for
bringing back slavery, or rape as an appropriate punishment for curfew violations, you're never going to willingly spend time with that person; they've got an absolute right to spout those ideas without government repression and YOU have an absolute right to not support them
And if you see the NYT or WSJ or whatever media company give "rape them for their own good" dude a column to argue for his pro-rape views, you'd probably wonder what the fuck was happening behind the scenes there, maybe even cancel your subscription.
You might even suggest to other people that they should spend their media dollars on newspapers that don't publish pro-rape opinion pieces, or advocate for social media companies to decide that they don't want to enable the pro-rape community to coordinate discussions of how to
spread their pro-rape message.

And yeah, I'm choosing a deliberately absurd and outrageous example, because that's the fucking point. At the level of private responses to speech, we're already "only talking about the price"
Want to have a debate about where society should appropriately set the line, how tolerant we should be of dissenting views and under what circumstances social consequences of various levels should be imposed for "bad" speech? Good, that's an important fucking conversation
But we can't have *that* conversation, with all the nuance and consideration of tradeoffs and incentives and negative externalities and applications that it involves, if we're stuck debating whether the very idea of social consequences for any speech is somehow immoral.

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More from @AkivaMCohen

Feb 1
Oh, hey, #LitigationDisasterTourists, a Plaintiff that accused YouTube of violating their First Amendment rights just had their case yeeted for all of the reasons that Trump, Berenson, and everyone else suing Twitter for banning them will.

Let's review
This particular plaintiff is a different band of merry plague enthusiasts than the RFK Jr. led (and Orwellian-named) Children's Health Defense: Del Bigtree's Informed Consent Action Network.

Oh, and claims against FB too.
BTW, I'd say that as a policy, "we're going to remove anything you post if it contradicts what the government says on the topic" is a TERRIBLE policy (yes, even on health info); have a standard other than "what's the government say", guys! But they get to have terrible policy
Read 24 tweets
Jan 28
Every so often, I get people asking me why I do my litigation disaster tours. And the truth is, the *reason* I do them is it's important for people to understand what the law is and how it can impact them.

But I *can* do them because they're also business development
I've gotten terrific clients - yes, including @legalminimum - who found me because they saw threads like these and went "huh ... this guy probably has the skills to do a damn good job in the courtroom"

And yes ... I do.
And my team (@dmschmeyer @KathrynTewson, & sometimes @Katerationopia are force multipliers like you wouldn't believe).

So ... if you're an in-house counsel reading and enjoying these threads, please feel free to see if you've got a small matter to give us a test run on.
Read 4 tweets
Jan 28
OK, fine, fine, #LitigationDisasterTourists, I did promise you a rundown on that antivax lolsuit.
So, today's episode of litigation nutbaggery is brought to you by "Children's Health Defense" - the RFK Jr. group who brought you such antivax hits as "VAXXED (2016)" and "VAXXED II (2019)". These aren't just covid vaccine mandate fighters. They are general purpose antivaxxers
But CHD isn't the only plaintiff here, and the caption tells the story - they wanted to be in the Western District of Texas, so they found a local plaintiff or two to anchor the case there
Read 125 tweets
Jan 26
OK, #LitigationDisasterTourists, let's talk about Mike Lindell.

When we last left our pillow friend (apologies, #WoT fans, I had to), he was being sued for defamation by Dominion and appealing the District Court's denial of his motion to dismiss that lawsuit
A motion to dismiss, as most of you know, is basically a defendant saying to the Court "look, judge, even if I did everything their complaint plausibly says I did they wouldn't win their case, so just dismiss it now"

Until that got dealt with, he didn't have to file an answer
Under the Federal Rules, which govern Dominion's lawsuits because they're in federal court, parties can't start taking discovery until they've had what's known as a Rule 26(f) conference to discuss a joint discovery plan.
Read 46 tweets
Jan 23
Hey, #LitigationDisasterTourists, it's worth spending some time thinking about how the lawyers for the employees should be approaching this upcoming hearing.

The easy path for an attorney faced with this situation is to focus on how wrong the Judge and hospital are on the law
And absent some information we don't know, they ARE completely wrong here. These are at-will employees. The hospital system can't keep them if they don't want to be there. And you have to say so, forcefully.

But somehow, the judge already rejected that argument. So ...
Were I representing these employees, I'd go a different route. I'd have each employee sign an affidavit declaring that given that their employer just went to court to hold them hostage, they will NEVER, under any circumstances, agree to continue working there.
Read 7 tweets
Jan 10
Listening to Trump v. Thompson, and trump's lawyer is now arguing that Trump has a *duty* as president to try to pressure Raffensberger into reversing Georgia's election
Sorry, Thompson v Trump
"is there anything a president could say while President that would subject him to a civil suit in your view?"

"I can't think of anything"

Don't think this will fly
Read 10 tweets

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