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Help the President

January 15, 2018

Sometimes I think the legal profession doesn’t take the president of the United States seriously. He asks for a study of a vital legal topic and no one that I know about steps up to help.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

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Sometimes I think the legal profession doesn’t take the president of the United States seriously. He asks for a study of a vital legal topic and no one that I know about steps up to help.

Last week, for example, President Donald Trump announced that “we are going to take a strong look at our country’s libel laws, so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts.”

Now think back to the news coverage of this pronouncement. Was anyone quoted offering advice on how to improve libel laws?

The answer is no. All we got was nitpicking — the president has nothing to do with libel law, the president defames people all the time, the president just wants to stop criticism.

Picky, picky, picky.

OK, I could be picky too. Hardly a day goes by that I don’t see a defamation suit in court. We apparently already have some libel laws covering false and defamatory statements.

But none of this helps. The president needs guidance and we should be prepared to offer it.

Let’s begin by questioning the implied assumption of all the news stories — i.e., that President Trump wants to make it easier to sue people for libel.

Why would we assume this? It may be that the president — who is simply asking for a study — could want to make it harder to sue people for libel. We do have freedom of speech in this country so we should be able to, say, accuse someone’s father of killing President Kennedy or claim another president took office illegally because he wasn’t born here.

You can’t have a free and open debate if you have to pay attention to what you’re talking about.

I’m not sure what the president is asking, but that’s not going to stop me from offering suggestions. You should do the same.

My first suggestion is tit for tat. Rather than clog the courts with a mountain of litigation over hurt feelings, anyone who has been defamed should be allowed to defame back.

If someone calls you a liar, you can call them a thief. As long as the accusations are about equal, no one can complain.

We’ve already seen this in action on the federal level and it works pretty well. The media is failing and corrupt and the president is dumb and unstable. We have parity.

My second suggestion is humiliation. Rather than suing for money damages for defamation, plaintiffs should sue for the opportunity to embarrass people who have lied about them.

This will be a great opportunity for creative lawyering when it comes to damage requests. Public nudity is a good option, but I might go with forcing the defendant to dance on camera.

Finally, another possibility to consider is a law requiring people to say only nice things or nothing at all.

This would revolutionize the internet.

Department of Irony. Sometimes the most intriguing and mysterious sentences can be found buried in a Tax Court ruling. This is why one must read these things carefully.

I found a good one last week in a federal Tax Court ruling called Farr v. Commissioner of Internal Revenue, in which the court found that the founder of a group called Association for Honest Attorneys provided evidence that was “questionable, not reliable, not credible, and/or otherwise not persuasive.”

But that’s not the best part. This is the best part: “(P)etitioner used the AHA checking account in 2011 to pay $2,200 for the exhumation and DNA testing of her father’s remains.”

No, there’s no explanation for this, but there’s got to be a movie made about it.

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