HorsesAss.Org

At first glance it seems odd that an attorney general so lavishly praised by doe-eyed editorialists for allegedly championing open government would take the lead in removing one of our most powerful tools for assuring government accountability. But when you think about it, it all kinda makes sense.

In a guest column in yesterday’s Seattle Times, Washington State Attorney General Rob McKenna proposes that one way to close our state’s multi-billion dollar budget gap would be to make it harder for citizens to sue the state, but in a single paragraph McKenna not only lays out the crux of his argument, he also lets slip his true motivation:

Washington is in a class by itself — wide open to lawsuits with huge payouts. Suits demanding outrageous sums have become commonplace over the past few decades. Payouts have grown from $241,000 in the 1963-65 budget to more than $100 million during the last — and trial attorneys collect $30 million of that before sending the rest to those who have suffered.

It’s those damn trial attorneys who are bankrupting our government! If we could only get rid of them, and the public employee unions, our budgets would shrink, our taxes would fall, and Washington State would become a veritable paradise! … At least, according to Rob McKenna.

And what do trial attorneys and organized labor have in common? They both predominantly fund Democrats, of course, and in fact together comprise one of the largest chunks of the Democratic funding machine.

In other words, McKenna’s advocacy for shielding state government from citizen lawsuits is largely partisan:

Why are our state laws so much more permissive than every other state’s liability rules? The uncomfortable truth is that personal-injury lawyers are among the wealthiest and most powerful interest groups, and they vigorously oppose attempts to end Washington’s outlier status.

According to the Liability Reform Coalition, political-action committees run by trial attorneys contributed more than $1.4 million in the 2008 statewide election cycle. Trial lawyers chipped in millions more in individual contributions. That helps explain why during nearly every legislative session, legislators vote on bills that would actually increase, not reduce, taxpayers’ liability; 2010 was no exception.

Hear that? A PAC run by trial attorneys spent more than $1.4 million during the 2008 cycle. Heaven forfend!

Um… but… the Building Industry Association of Washington and its associated organizations spent, what… $13 million that year, in the gubernatorial race alone? I don’t hear McKenna complaining about that, and yet year after year the BIAW successfully blocks legislation that would permit homeowners from suing builders for shoddy construction.

(Sigh.)

Despite McKenna’s unsupported claims, Washington is not “in a class by itself,” nor are our state laws “more permissive than every other state’s liability laws.” Yeah, maybe we do pay out “eight times more than Tennessee, five times more than Arizona,” I dunno… but would we really want to be just like Tennessee or Arizona? And while Washington’s government does not claim “sovereign immunity” as McKenna advocates, unlike many other states, Washington does not allow for punitive damages in claims against the state.

Oops. I guess McKenna forgot to share that with his readers.

And his selective citation of facts doesn’t stop there, for McKenna stoops to perhaps the lowest form of political persuasion, the out of context anecdote:

The state is sued even when it follows all the rules. For example, a woman is convicted of forging a $13 check. She’s released after serving her sentence and carefully supervised by the Department of Corrections. But when she causes a fatal car accident, the state is sued and ultimately forced to settle the case for $300,000. While our hearts go out to the family who lost their loved one, the check forger caused the accident. State employees followed proper procedures. Yet lawsuits like these persist.

First of all, that’s just one successful lawsuit out of many, most of which do clearly address acts of negligence or malfeasance on the part of the state. And second of all, McKenna intentionally misrepresents the facts in even this particular case. Yes, the woman in question had merely been convicted of forging a $13 check, but she had a long criminal record including drug charges, missed court appearances and at least four DUI arrests:

Enoch-Jevne had received suspended sentences for four of her DUI convictions. In May of 1999, she was arrested on drug charges in Grant County. A judge revoked a previous sentence and ordered that she be held through December of that year. Instead, city and county officials failed to review court records and released Enoch-Jevne in October.

Upon her early release Enoch-Jevne failed to report to her state corrections officer as required, and even though the state had classified her as a danger to the public, and knew that she was violating the terms of her supervision, it made no effort to arrest her. Two months later, at a time when, by a judge’s order, she should have been locked up at the King County Regional Justice Center, she killed a man in a collision in which, yes, she was once again suspected of being under the influence of alcohol.

Was government negligence partially to blame for this tragedy? Maybe, maybe not. But it’s clearly not the absurdly abusive case that McKenna makes it out to be.

Of course there are abusive lawsuits, and I’m not expert enough to argue that there aren’t reasonable reforms to be made that might shield against the worst of these abuses. But to grant the state blanket immunity against most of these suits as a money-saving gimmick is not only unfair to the legitimate victims, it is unserious and shortsighted. For it is through lawsuits like these that the worst abuses of government mismanagement, malfeasance and negligence are revealed, and ultimately reformed. McKenna can tout his support of sunshine laws all he wants, but the courts have always provided the public its most effective tool in keeping our government accountable to the public.

And that’s what we would lose should McKenna prevail.

Sign the petition.

New York cabbie Ahmed H. Sharif was stabbed in the neck, face and arm last night after passenger Michael Enright asked if he was a Muslim, and Sharif answered “yes.” Yet another example of the cultural insensitivity of Muslims flaunting their religion so close to Ground Zero.

Why couldn’t Sharif let the 9/11 families grieve in peace?

Hot on the heals of my post about the presumed “enthusiasm gap” and it’s apparent lack of substantial impact on voter turnout in last week’s primary, The Stranger’s Eli Sanders has a somewhat different take, noticing the record high statewide turnout compared to the lagging performance of King, Snohomish and Pierce counties:

Which leads to the obvious question: Why did so many eligible voters in the greater Seattle metro area—that is to say, so many liberal voters—sit this primary election out?

Which I suppose seems obvious, except that Eli phrased the question slightly wrong. The real question is not why so many Seattle metro voters sat out “this” primary election, but why they sit out all primary elections?

In fact, this was actually a pretty good showing by King County primary voters, registering our second highest turnout rate over the 12 years for which KC Elections archives results online. And as I’ve previously pointed out, King County always trails the rest of the state in primary turnout, often by substantially larger margins.

So there’s nothing particularly surprising or disappointing about Tuesday’s turnout.

But while our region’s turnout always trails the rest of the state in primary elections, it’s almost alway within a point or two of the statewide average, give or take, when it comes to the November general election.

Speculate all you want about the reasons why, but it has nothing to do with this particular election cycle.

Incumbent U.S. Senator Lisa Murkowski trails teabagger challenger Joe Miller by about 2000 votes with 98% of precincts reporting in yesterday’s Alaska Republican senatorial primary, and the finger pointing has begun

One GOP source, who requested anonymity, said some are pointing fingers at Murkowski’s team of advisers who told her not to go negative until late in the campaign.

This is an extraordinarily negative election cycle, and with few exceptions, incumbents and challengers alike should be advised to go extraordinarily negative as early and as often as possible. Let the shit fly. That’s how to win in 2010.

With last week’s primary ballots mostly counted, I think it’s safe to take a look at voter turnout and speculate how it might have been influenced by the yawning “voter enthusiasm gap” that Republicans are counting on to sweep them to victory this November. And in fact voters turned out in far greater in Republican areas of the state than they did in dark blue King County, a fact that would seem to bode well for the Part of No this November.

But…

While King County barely turned out 37 percent of registered voters, compared to almost 42 percent in the rest of the state, that differential is pretty typical for Washington state in even-year primary elections. (Odd years are a different beast, when competitive city and county races sustain voter interest in King, while much less is at stake in most of the rest of the state.) For example, in 2006, King County’s primary voter turnout trailed the rest of the state by 36 percent to 40 percent, and in 2008, when Democrats arguably held the enthusiasm edge, the turnout gap was even greater, 35 percent to 46 percent.

What does that mean for November? Who knows? For one, such a top-line analysis does nothing to evaluate who turned out within each county, though it is reasonable to assume from various contests that the electorate trended a bit more Republican than usual. Neither does the primary electorate tell us a lot about what the electorate will necessarily look like in November, though historically, Democrats tend to turn out in higher percentages in the general, though slightly less so during non-presidential years.

But what I can confidently say is that the primary turnout differential itself provides little or no evidence of an impending Republican wave.

How about this? Metro bus drivers should agree to give up their contractually guaranteed 2-percent COLA increase if the Seattle Times agrees to give up its 40-percent B&O tax cut for which Frank Blethen successfully lobbied last year.

I mean, if, as the Times editorial board argues, “the public sector is not in a position to pay out COLAs right now,” then certainly the public sector is not in a position to hand out 40-percent tax cuts to wealthy, Mercer Island millionaires. Right?

Seems like a fair compromise to me. Your move, Frank.

It is a primary election night in five states (Alaska, Arizona, Florida, Oklahoma and Vermont), so come and cheer for your favorite teabagger and spend an evening of electoral politics under the influence at the Seattle chapter of Drinking Liberally. We meet at the Montlake Ale House, 2307 24th Avenue E. beginning at about 8:00 pm. Some folks will be there early for dinner.

Not in Seattle? There is a good chance you live near one of the 272 other chapters of Drinking Liberally.

You know how you get to know somebody online or in email or on the phone, and then when you finally meet them in person they’re nothing like what you expected? Well the first time I met Ivan Weiss, he was exactly what I expected.

Kinda sad that some of the best journalism today comes from a fake news show.

The Seattle Times’ editors just seem to love stories like this — “Online ranters increasingly pay a price” — apparently drooling for the day when uppity bloggers like me are put in our place.

The Internet has allowed tens of millions of Americans to be published writers. But it also has led to a surge in lawsuits from those who say they were hurt, defamed or threatened by what they read, according to groups that track media lawsuits.

[…] “Most people have no idea of the liability they face when they publish something online,” said Eric Goldman, who teaches Internet law at Santa Clara University in California. “A whole new generation can publish now, but they don’t understand the legal dangers they could face. People are shocked to learn they can be sued for posting something that says, ‘My dentist stinks.’ “

I’ve never claimed that bloggers and commenters should be free to defame their subjects with impunity, but the example above shows why your typical online citizen journalist/participant needs more protection from defamation suits, not less. Obviously, anybody should be allowed to go online and say “my dentist stinks,” because that is a statement of opinion for which one would likely never be found liable in court. I think the Seattle Times editorial board stinks; good luck winning a defamation suit over that.

But just being sued for defamation by a determined plaintiff is enough to crush one financially, thus chilling public discourse via the mere threat of legal action. Yet this is exactly the kinda fearful mindset the the Times seems to be cheerleading.

Times Crown Prince Ryan Blethen, in a previous opinion piece, blames bloggers like me for this very real and imminent threat to online speech, warning that they should “learn to check themselves, and use a modicum of restraint” before, you know, some deep-pocketed asshole decides to make an example of us. But the plaintiff’s side of our defamation laws seems an awfully odd position for a future newspaper publisher to stake out… unless, of course, you view it within the broader context of the industry’s dramatic decline, and Blethen’s documented history of blaming his paper’s woes on external forces rather than, say, his own boneheaded idea to leverage the family business by buying newspapers in Maine. (I’m just sayin’.)

The problem as I see it is that defamation laws that evolved to address the unique circumstances of print and broadcast are simply not well suited to the realities of our more democratic, online media landscape, a nuance that, as I’ve written before, appears to escape Blethen the Younger:

And that is what Blethen, heir to a dead tree publishing throne, obviously doesn’t understand about this new medium. HA isn’t a “publication,” and my words aren’t “spun off the press” in some inviolable, datelined tome. A blog is an ever evolving dialectic, a give and take, a living conversation between writers and readers, and readers with each other, and between one blogging community with the blogosphere as a whole. HA may be my own personal realm, but the world is my fact checker.

Under the old paradigm, where the scarcity of the airwaves and the huge financial barriers to market entry left the bulk of the media in the hands of a powerful and wealthy few, the libel laws were often the best or only defense against the indiscriminate, negligent, and malicious misuse of the power of the press. But in this new medium, this distributed, democratic and decentralized paradigm of the Internet, the best defense against bad journalism is more journalism, the best remedy for falsehood is the truth, and aggrieved parties should only look to the courts as a desperate and last resort.

… [For] in a media landscape increasingly dominated by freelancers, contractors and lone wolves outside the protection of deep-pocketed corporate overlords, the mere threat of costly legal action to resolve disputes threatens the viability of the medium itself, potentially shielding those able to afford attorneys from legitimate criticism by those of us who cannot.

In other words, our defamation laws evolved to protect the average citizenry from powerful publishers like Blethen, not the other way around.

It is, in fact, not reckless bloggers but this blogger-beware meme that presents the real threat to the viability of the Internet as a meaningful and credible medium for disseminating dissent and facilitating public debate. Blethen argues that a lowly comment troll can and should be held to the same defamation standards as a Rupert Murdoch or a, well, Ryan Blethen, but this would be the legal equivalent of hitting a nail with a pile driver.

Unlike Blethen I don’t have attorneys on staff or on retainer, and thus I lack the opportunity to take every potentially controversial post I write, and run it past legal. Neither can I afford to defend myself against even the most frivolous of SLAPP suits. The alternative, which Blethen seems to advocate, is that I write fearfully.

Media-law experts repeat the advice that bloggers and e-mailers need to think twice before sending a message.

“Before you speak ill of anyone online,” Baron said, “you should think hard before pressing the ‘send’ button.”

What an utterly oppressive and ultimately undemocratic sentiment.

The balance that needs to be struck, and that needs to be reflected in our laws, is the balance between the individual harm that can come from truly reckless and malicious free speech, as opposed to the societal harm that comes from crushing dissent. Personally, I’d argue that a legal standard that puts one at risk of financial ruin for posting the words “my dentist stinks,” clearly strikes the wrong balance. But Ryan Blethen and his newspaper apparently disagree, otherwise, I suppose, they would he would be advocating for the law to be changed, rather than for bloggers like me to fearfully mind it.

If they’d made this up on The Wire, critics would have laughed at how unrealistic it was:

The Department of Justice is seeking to hire linguists fluent in Ebonics to help monitor, translate, and transcribe the secretly recorded conversations of subjects of narcotics investigations, according to federal records.

A maximum of nine Ebonics experts will work with the Drug Enforcement Administration’s Atlanta field division, where the linguists, after obtaining a “DEA Sensitive” security clearance, will help investigators decipher the results of “telephonic monitoring of court ordered nonconsensual intercepts, consensual listening devices, and other media”

And it just made me think of this:

Emily Heffter has the scoop in the Seattle Times:

City Councilmember Tim Burgess has appeared to be positioning himself to run against McGinn in 2012.

Which of course would totally catch Mayor Mike McGinn by surprise, considering the election isn’t until 2013.

It’s an okay ad that makes a point that I can’t help but believe will resonate with voters, the majority of whom already start out at least a little suspicious of Dino Rossi, but what really strikes me about this ad is the new ground it breaks in citing PubliCola as a source to back up one of its claims… and in a U.S. Senate race, no less.

See, the power of a daily newspaper monopoly like the Seattle Times to influence elections comes not as much from the initial coverage of any one story, but from their role as an allegedly credible, unbiased and independent source that the political campaigns can cite to back up their campaign ads. For example, the bullshit Darcy Burner diploma story would not have had nearly the impact it did if the Reichert campaign had not spent a million dollars citing it.

That’s an advantage the Seattle Times will always have over me, for while I am at least as good a writer as any of their editors, and all of their editors are at least as biased and partisan as me, nobody’s going to put hundreds of thousands of dollars behind an ad attempting to cite HorsesAss.org as a credible source. I just don’t have the brand.

But apparently, PubliCola now does, and after only a year and a half of publication. Congrats Josh and Erica.

And to be fair, a little bit of self-congratulations to me, for while Josh et al downplayed my involvement in PubliCola’s startup for arguably good reasons, I put a lot of effort into getting it off the ground, and used HA to promote the hell out of it for its first year. To be absolutely clear, I’ve never had any editorial role in PubliCola, and I’m not always happy about the editorial direction they’ve taken — Josh is simply wrong a lot of the time — but I still believe PubliCola plays an important role in our local political media landscape that would remain unfilled without them.

And with this citation they’ve clearly proven that even relatively small scale new media ventures can quickly break the credibility monopoly formerly held by newspapers like the Times.

No doubt the entertainment industry has a lot of trepidation about the recently announced Google TV (though it sounds to me like Google is just building Android and Chrome into TV’s and set-top boxes, much in the same way that everybody expects Apple to put iOS into its unannounced iTV… I mean, if you’ve played with the NetFlix or ABC apps on an iPad, it doesn’t sound like there’s anything really new here)… but what really struck me from the LA Times article reprinted in today’s Seattle Times was this particular toss-away:

The prospect of Google getting into television frightens many in Hollywood, who worry that Silicon Valley will upend the entertainment industry just as the Internet ravaged the music and newspaper industries.

Yeah, um, except… what happened to the music industry and what happened to the newspaper industry are two entirely different things.

Music sales, in both units and dollars, rose steadily and healthily for decades before plateauing in the late 1990’s at about $17 billion annually. That’s when digital piracy, particularly the widespread popularity of peer-to-peer file sharing networks, started to take the legs out from under the industry. The dollar value of music sales has pretty much shrunk nearly every year since, to about $10 billion annually today, though thanks in large part to Apple’s iTunes, unit sales in 2009 reached an all time high.

Total paid U.S. newspaper circulation on the other hand had been relatively flat since about 1960, despite huge increases in population, and has been on the decline since the mid-1980’s, well before the market penetration of broadband Internet could have much of an impact on its business. Indeed, if any medium is to blame for stealing away paid subscribers, it is television not the Internet. And while readership has shifted dramatically from print to digital over the past decade, unlike the music industry, it wasn’t digital pirates who put the newspapers’ content free online, but the newspapers themselves.

Furthermore, there’s another huge difference between the music and newspaper industries, and the respective woes they face sustaining themselves in this new medium. While it is true that music industry revenues have continued to slide even as unit sales reach record highs, so too have their unit costs. Thanks to new digital technologies, the cost of recording an album is now a fraction of what it was just 20 years ago, while the cost of distributing a digital track has shrunk to virtually nil. If the old labels can’t figure out a way to exploit these new efficiencies to remain relevant in the new online marketplace, well, that’s their problem, and no real loss to artists who now have multiple means of promoting themselves to new audiences.

But newspapers haven’t benefited nearly as much from new technologies, for while the cost of delivering an online paper is, likewise, virtually nil, they’re still locked into the expensive, capital-intensive medium of print, regardless of how many fewer customers now purchase the print edition. As I’ve previously argued, the whole notion of an “online newspaper” per se is oxymoronic, for the industry’s entire business model is one based on the physical need to print and distribute paper. Absent this medium, much of what a newspaper does as an institution becomes unnecessary, and its legacy print edition becomes a financial drag on the organization as a whole, making it less competitive to newer, totally online competitors.

Indeed, it is reasonable to question whether most dailies can survive the shift from print to digital in much more than name only… which suggests the biggest difference between the music and newspaper industries, at least from the consumer’s perspective. Music labels publish and distribute the collective work of independent artists, whereas newspapers mostly create their own content via staff reporters. Thus if the large music labels were to suddenly collapse and disappear, few consumers would notice, as the new distribution medium is already mature enough to allow independent artists access to the marketplace. But if newspapers were to suddenly disappear there would be an equally sudden collapse in the amount of local journalism being produced… with potentially dire consequences for our democracy.

All the more reason why newspaper executives should not be allowed to absolve themselves of their own mistakes, simply by blaming the bulk of their industry’s woes on external forces.