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The New York Times Has Appealed Judge Charles D. Wood’s Order, In NY State. It Will Win.

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The idea that a judge who had lived through the Watergate era, as an adult, no less… would think that a prior restraint of the free press, in America — of this sort could even colorably be imposed, largely to avoid embarrassing certain law firms, lawyers and some “political spying operatives” (as a capable federal judge has memorably dubbed them, in other litigation)… is well, rather surprising. That he did it on Christmas Eve, is all but proof that he knew he’d be bounced, on an appeal. [The papers for immediate relief comprise a is a massive 78 Mb file.]

That appeal has now been filed as a petition for an emergency “show-cause” order, above. The language in it shades toward the majestic, because these cases present issues that directly threaten our free democratic republic’s long standing notions of “ordered liberty“, thus:

…In this application, The Times seeks to modify an extraordinary Decision and Order entered by the Supreme Court, Westchester County, on December 24, 2021 in a defamation action brought by Project Veritas. In the course of its newsgathering about the current FBI investigation into Project Veritas’s role in the theft of a diary belonging to President Biden’s daughter, Times reporters received certain legal memoranda provided by a lawyer to Project Veritas more than three years ago (the “Memoranda”). The Memoranda were obtained by journalists entirely outside the discovery process in this or any other litigation and have nothing to do with the underlying defamation claim in this action. The Decision prevents The Times from possessing or disseminating the contents of the Memoranda based solely on unfounded speculation that The Times improperly acquired them. The Decision both imposes a patently unconstitutional prior restraint on speech and also goes well beyond the scope of the trial court’s discretion to manage discovery under CPLR 3103(c), including because the Memoranda were not obtained through disclosure in this or any action.

A prior restraint is “the most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976). Indeed, the Times was last subject to a prior restraint against news reporting more than 50 years ago, in the Pentagon Papers case — in which the Supreme Court ultimately vindicated the newspaper’s right to possess and publish otherwise secret national security documents. Emergency relief is needed because the constitutional violation is ongoing….

The need for this Court’s intervention is particularly urgent with respect to the portions of the Decision that direct The Times to “immediately” turn over all physical copies of the Memoranda to Project Veritas, to destroy all electronic copies, and to seek to recover copies from other third parties. These actions, once taken, will be impossible to undo even if this Court subsequently grants The Times’s appeal in full, and thus will in the most literal sense irreparably harm The Times’s ability to research and report to the public on Project Veritas. The Times is required to certify its compliance with these provisions of the Decision by no later than January 6, on pain of possible default in the underlying defamation litigation and/or substantial financial penalties. In order to preserve the status quo, an interim stay of those portions of the Decision should be granted during briefing on this application….

This Court has the power pursuant to CPLR 5519(c) to stay enforcement of all or part of an “order appealed from pending an appeal or determination on a motion for permission to appeal.” Such a stay is at the discretion of the Court. See Schwartz v. NYC Hous. Auth., 219 A.D.2d 47, 48 (2d Dep’t 1996); Grisi v. Shainswit, 119 A.D.2d 418, 421 (1st Dep’t 1986). In addition to this statutory authority, courts retain “inherent authority to grant a discretionary stay of the proceeding pending appeal,” including if the party seeking the stay would “suffer hardship if this court does not grant a stay” and the party opposing the stay “will not suffer undue prejudice because of the stay.” Tax Equity Now NY v. City of N.Y., 173 A.D.3d 464, 465 (1st Dep’t 2019)….

I look forward to a quick hearing, and a complete win for the Cahill lawyers, and the New York Times. The law here is crystal clear. Judge Wood’s order is manifestly against controlling US Supreme Court precedents, that have now withstood the tests of a half century… unimpeded. Onward, to a bike ride now. Smiling, ear to ear… be excellent to one another, as another strange year (in a series of at least two prior strange ones) draws… to a close.

नमस्ते

A Christmas Eve NY State Court Trial Opinion — Wrongly Decided. On To The Appeals.

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UPDATED: Even Powerline’s ultra-right Scott Johnson acknowledges that this (elected, red) Westchester County state judge’s dumb opinion will be wiped entirely, on appeal.

This trial judge’s Christmas Eve opinion is manifestly wrong — on the law. See, Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion); see also New York Times Co. v. United States, 403 U.S. 713, 715 (1971).

The New York state judge fails entirely to grapple with the US Supreme Court decisions, instead talking almost exclusively about attorney-client privilege being older even than a free press. But that indeed simply ignores the central question: the Supremes have already repeatedly ruled that the Times may report on, and publish these materials, and pay damages if such publishing was wrongful. On appeal, the Cahill firm will prevail, on behalf of the NYT. Backgrounder, here.

And in the federal courts of Manhattan, the NYT is already clearly winning. Veritas is in for some potentially criminal exposure there, as well. Hilarious. Onward, to a Christmas banquet — with family and dear friends, under now clearing Arizona skies. Grinning….

नमस्ते

Cahill Gordon Reminds A NY State Judge That He Is… Overdue, In “Veritas” Case.

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Technically, the applicable NY Civ. Pro. rule would recite 5 PM EST, this Thursday, as the outside date — for for his ruling to be delivered — were it on a “run of the mill” motion.

But in “prior restraint” / free press cases (an exceedingly rare breed), the US Supreme Court has punched up the urgency — well beyond the routine (as the Cahill firm points out), thus:

…We write to respectfully urge the Court to rule on the pending Order to Show Cause by this Thursday, December 23, as required by CPLR 2219(a), which provides that “[a]n order determining a motion relating to a provisional remedy shall be made within twenty days… after the motion is submitted for decision.” As the Order to Show Cause was fully submitted on December 3, CPLR 2219(a) requires that a decision be made by December 23. The Interim Order was entered 33 days ago, on November 18, 2021 [Dkt. 170], and, even as modified [Dkt. 197], the Order restricts The Times’s newsgathering and publishing activities in ways that irreparably harm The Times and the public.

As the United States Supreme Court and New York courts have repeatedly held, this “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion); see also New York Times Co. v. United States, 403 U.S. 713, 715 (1971) (Black, J., concurring) (“[E]very moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.”); Time Square Books, Inc. v. City of Rochester, 223 A.D.2d 270, 278 (4th Dep’t 1996) (“Infringement of the constitutionally guaranteed right of free expression, ‘for even minimal periods of time, unquestionably constitutes irreparable injury’” (quoting Elrod)). For the reasons set forth in our prior submissions, and given the significant constitutional freedoms at stake, The Times respectfully requests that the Court promptly lift the Interim Order and deny the Order to Show Cause.

We thank the Court for its consideration….

Now you know. The able lawyers at the Cahill firm are correct, beyond any shadow of a doubt. Onward, grinning — as a festive family gathering assembles here on neutral ground — in the desert….

BREAKING: Chicago, Like LA — Starting January 3, 2022 — Will Require A Vaccine Card To Enter A Bar, Restaurant, Concert, Sports Event Or Theater…

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Here it is — and it is a wise response, as LA took — based on science available at the moment:

When this ends now hinges — almost exclusively, upon those choosing NOT to vaccinate.

नमस्ते

In Which Hinderaker Decides That Equitable Health Care Delivery For ALL Is… “Racalization”, By Biden. Huh.

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You can’t begin to make this… lunacy up — I couldn’t if I tried. [And as my spouse intones, I have a near Steven King-level of… imagination, in all (undue) modesty. I can find a conspiracy… almost anywhere. Heh.]

This evening, John tells us that it is CRT that drives doctors, tied to financial incentives (he claims), to lament the FACT that people of color don’t get the same care as wealthy whites in our system.

This, despite the FACTS: the entirely unsurprising data (borne out in study after US study of health care delivery) that all people of color, all other factors held equal — experience generally worse care, and generally worse outcomes… than wealthy white people, in the US health care system.

But John wants us to (wait for it!) blame Mr. Biden — for “racializing / radicalizing health care”.

So… the fact that systemic bias exists in the way our institutions fail to as aggressively listen to and diagnose people of color… is Mr. Biden’s unique fault?

Not a whisper of the centuries prior, nor the last occupant of 1600 Penn., here John?!

That’s proof positive for me, as to John — denial is not just a river in Egypt.

Cheers. What a malignant moron. He knows better, as does the chuckle-head he was quoting.

Cahill Gordon Again Eating “Veritas’ Lunch” — In New York State Trial Courts, On Amendment First…

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We have smiled, and widely so, as we read the able lawyers for the Gray Lady (forgive the antiquated reference — but it works well here)… positively skewer the rank amateurs hired by Veritas, in both the federal and state level courts.

But it is true, that the judge in New York state is well outside the bounds of settled Supremes’ precedents in maintaining a prior restraint order here (See, New York Times Co. v. United States, 403 U.S. 713, 715 (1971)). Without serious doubt, the 80 plus years of well-settled US law holds that — if the NYT is libeling “Veritas” — the remedy is damages, after the fact — damages which NYT can clearly pay — not gag orders. Not prior retraint. Here is the latest from the most recent of last week’s letters:

…We write in response to Project Veritas’s December 15, 2021 letter [Dkt. 198], which argues that a New York Times article constitutes a party admission that all of Project Veritas’s newsgathering methods are at issue in this case, rather than just the content of its reporting about an alleged link between Congresswoman Ilhan Omar and voter fraud. That argument is clearly wrong. Even if a news organization could make party admissions through news reporters — a proposition for which Project Veritas provides no support — Project Veritas misconstrues the sentence on which it relies.

The article states that Project Veritas’s defamation claim stems from The Times’s “description of the group’s reporting practices.” Dkt. 199, at 1-2. The phrase “reporting practices” is simply a brief way of describing the reporting at issue in this case: whether Project Veritas made a deceptive report about alleged voter fraud in connection with Congresswoman Omar’s campaign. See Definition of “report,” Oxford University Press (2021), available at https://www.lexico.com/en/definition/report (last accessed Dec. 16, 2021) (defining “reporting” as “giv[ing] a spoken or written account of something that one has observed, heard, done, or investigated”). The phrase is not contrary to any of The Times’s legal arguments, and in any event, the legal memoranda have no bearing on any matter that may be adjudicated here for the simple reason that The Times has agreed not to use them in this litigation.

The Times respectfully urges the Court to promptly rule on the Order to Show Cause, as the interim order subjects The Times to irreparable harm with each day that it remains in effect. New York Times Co. v. United States, 403 U.S. 713, 715 (1971) (Black, J., concurring) (“[E]very moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.”)….

Indeed — onward, to watch a Bears / Vikings Monday night matchup, with a frosty mug of root beer, and a big ole’ plate of turkey lasagne on tap… smile.

नमस्ते

Trivia — As We Await President Biden’s Remarks Tomorrow: Tangerine Got Booed By His Fans, For Admitting He Got The Booster. Hilarious!

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It came up at some insipid O’Reilly confab in Texas (Natch’) — after the former VP candidate (and Alaskan “Russia seer”!) Sarah Palin said she’d never get a vcaccine.

Whatever. I am all out of the proverbial “f’s to give” — for these chuckleheads. But I do love that Baby-T finally reaps what he sows:

…Before Trump spoke Sunday, former Alaska Gov. Sarah Palin, who was the Republican vice presidential nominee in 2008, said at a conservative event in Arizona that, “It’ll be over my dead body that I get a [Covid] shot.”

“I will not. I won’t do it and they better not touch my kids either,” Palin said….

That’s all. On to tomorrow — and before that, whilst awaiting the arrivals of the rest of my adult kids — an easy 70 degree biking afternoon. Smile….

नमस्ते

[U] Just As I Said — The Fifth Circuit Was In Error, As Was The Texas USDC — Prior OSHA Vax Stay… Lifted In Sixth Circuit, Tonight. Boom.

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Updated 12.18.2021: To be clear, as an appellate opinion — this decision sweeps away all the trial court rulings to the contrary. It is the final word, nationwide — unless the Supremes step in to stop the mandate. Cheers.

More in a minute (and an updated graphic) — but I wanted to post the full opinion, as a link. Unsurprisingly, OSHA — as its agency name suggests — may regulate workplace health. Full stop.

Here it is, a full 57 pager — and the most-salient bit:

…Congress passed the Occupational Safety and Health Act of 1970 (OSH Act or the Act) and established OSHA “to assure safe and healthful working conditions for the nation’s work force and to preserve the nation’s human resources.” Asbestos Info. Ass’n/N. Am. v. Occupational Safety & Health Admin., 727 F.2d 415, 417 (5th Cir. 1984). It expressly found that “personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.” 29 U.S.C. § 651(a).

OSHA is charged with ensuring worker safety and health “by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems.” Id. § 651(b)(5). To fulfill that charge, Congress authorized the Secretary of Labor (the Secretary) “to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce.” Id. § 651(b)(3). And it vested the Secretary with “broad authority… to promulgate different kinds of standards” for health and safety in the workplace. Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 611 (1980)….

Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs. In a conservative estimate, OSHA finds that the ETS will “save over 6,500 worker lives and prevent over 250,000 hospitalizations” in just six months. 86 Fed. Reg. 61,402, 61,408. A stay would risk compromising these numbers, indisputably a significant injury to the public. The harm to the Government and the public interest outweighs any irreparable injury to the individual Petitioners who may be subject to a vaccination policy, particularly here where Petitioners have not shown a likelihood of success on the merits. See Coleman v. Paccar, Inc., 424 U.S. 1301, 1307–08 (1976).

In light of the foregoing, we find that the factors regarding irreparable injury weigh in favor of the Government and the public interest….

Grinning ear to ear. Of course, the Supremes are yet to formally weigh in — but this increases the odds that the mandate takes effect, and measurably so. The above ruling comes from a generally conservative federal circuit (middle Ohio), but it simply applies clearly settled 60-plus year old law. Science — and black letter federal law… win the day.

नमस्ते

That Goofy USDC (Texas!) Judge Tipton Will Hear A Truncated, And “High-Speed” No Discovery Trial — Despite Fifth Circuit Strongly Suggesting He Should Dismiss The Litigation.

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Friday morning’s trivia dept.: Well, other than the waste of federal AG resources defending a suit… where the plaintiffs (the State of Texas, among others) manifestly have no standing, there is little that is NOT boring about Judge Tipton’s ongoing refusal to accept defeat [as it is now fair to say he acts more as an advocate for the Texas State AG, than an impartial jurist — on most live Zoom hearings I’ve watched (backgrounder here) — stem to stern.]

What is interesting here is watching young Tipton’s very public, and performative art — as I would reasonably guess he is “auditioning” on this stage — for a role on the Texas State Supreme Court, or perhaps… a run for Congress, from that state. [It is decidely unbecoming a man… formerly, and supposedly, of Semper Fi. I may now fairly question his fidelity to that oath, to “support and defend the US Constitution,” among other things.]

In any event, here is the agreed “express” calendar — likely agreed to by the Biden Administration mostly just to dispose of this nonsense, and end the appeals (after a quick loss by Texas, lacking any helpful and real evidence, as opposed to baseless conjecture — at trial — there will be very little in the factual record to dispute, for any future appeal).

We shall see — but I say this one is already DOA.

…The parties will not seek any discovery [Ed. note: the Fifth Circuit had already forclosed that — as to Texas’ efforts].

The parties may take live testimony from witnesses at trial.

Plaintiffs will not seek the direct testimony at trial of any current DHS employee, including that of any DHS component, or submit such testimony through affidavit or declaration.

The parties agree that the evidentiary materials attached to their previous briefs are authentic, can be admitted without a sponsoring witness, and are presumptively admitted as “part of the trial record and need not be repeated at trial.” Fed. R. Civ. P. 65(a)(2). The parties are also permitted to submit additional extra-record evidence….

Now you know. Jet planes (to warmer climes), await — tomorrow evening… at 7 pm… smile.

नमस्ते

Individuals (Sackler Family Members) Cannot Get Bankruptcy Protection — If They Don’t File For… Bankruptcy.

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We mentioned this in detail two weeks ago, but have been following it for at least seven years, on and off.

Tonight’s decision is not at all surprising — for any real person who’s handled personal bankruptcies, on a pro bono basis — though it may come as a surprise, to some… billionaires.

Tonight, the able USDC Judge McMahon in Manhattan has ruled that unless the individual Sackler family members are willing to file bankruptcy, and surrender almost all their assets (as all other ordinary humans must, to be granted a bankruptcy discharge of debts, suits and liabilities)… they may not escape the liabilities imposed by future suits, on fostering opioid addiction. Here it is, in full (142 pages!) — and a bit:

…Aided by superb briefing and argument on both sides of the question, and by extended ruminations on the subject by several esteemed bankruptcy judges of our own District — Judge Drain not the least — this Court concludes that the Bankruptcy Code does not authorize such nonconsensual non-debtor releases: not in its express text (which is conceded); not in its silence (which is disputed); and not in any section or sections of the Bankruptcy Code that, read singly or together, purport to confer generalized or “residual” powers on a court sitting in bankruptcy. For that reason, the Confirmation Order (and the Advance Order that flows from it) must be vacated.

Because I conclude that the Bankruptcy Court lacked statutory authority to impose the Section 10.7 Shareholder Release, I need not and do not reach the constitutional questions that have been raised by the parties. Nor do I need to decide whether this is a case in which such releases should be imposed if my statutory analysis is incorrect. Those issues may need to be addressed some day, but they do not need to be addressed in order to dispose of this appeal….

So — unless these individual Sackler family billionaires are willing to file a chapter, and leave court with only $6,000 in total to their names (i.e., never will they do that) — per person… they will not escape suits for this decades long blight on countless American families, from opioid addiction.

And that is… justice. Of course there will be appeals, from here — but this is a solid first step to making every human equal, before the law. Grinning — ear to ear, here now.

नमस्ते