Judge Rejects Sale of Infowars to The Onion

[zippy2006]

Is there a 3. punishment? Like society's sheer desire for the criminal to suffer as a result of the harms caused?

You tell me:

If you fail to adjust for wealth then the law isnt impartial with respect to punitive effect. The poor criminal suffers more than the rich criminal.

 

[zippy2006]

The amount that would act as a deterrent for one person will not for another.

How is this different from any other legal penalty?

 

[durangodawood]

You tell me:

I did. I want to know what you think.

 

[zippy2006]

I did. I want to know what you think.

What are you asking about? What is your list a list of?

 

[ThatRobGuy]

How is this different from any other legal penalty?

In the criminal code, the jail time (or removal of other rights) is the main deterrent, in tort law, the financial amounts ruled upon are the main deterrent.

For instance, rich or poor (although rich would still have a leg up on certain aspects), if you have a little issue with drunk driving, you will get suspended driving privileges regardless of if you make nothing, or you have a six-figure income.

Tort law involves civil/non-jailable offenses against another individual, so the financial aspect is the deterrent in these types of cases.


I noted before that I do think the amounts were excessive (I noted the same thing for Rudy's case as well), I do feel some of it is politically motivated, and that there was an attempt as some "funny business"...which it sounds like the judge picked up on despite not being on "Alex's side".


Defamation is the one of the more common forms of tort implementation.

For instance, if I make false statements about you that greatly disrupt your life and ruin your reputation. The amounts awarded need to be enough to A) make you "whole", and B) high enough that it would make me think twice about doing it again.

Hence the aspects of compensatory damages and punitive damages in civil cases.

 

[zippy2006]

Tort law involves civil/non-jailable offenses against another individual, so the financial aspect is the deterrent in these types of cases.

Okay, sure, but everything I said earlier still applies. See, for example, #18.

 

[durangodawood]

What are you asking about? What is your list a list of?

I was referring to the two conceptions of (criminal) law you listed in the post I quoted. So is punishment for its own sake, aka retribution, another valid conception of law in your opinion.

 

[zippy2006]

I was referring to the two conceptions of (criminal) law you listed in the post I quoted. So is punishment for its own sake, aka retribution, another valid conception of law in your opinion.

Okay, well I don't see the righting of wrongs as exhausted by compensation. Usually retribution is also part of that. I got at some of this <here>.

Retribution is central to punishment. Suppose I steal $500 from you, you catch me, the police arrest me, and I am merely forced to pay you $500. This would be compensation without any real retribution. The wrong consists not only in appropriating your money, but also in stealing, and this is why the (retributive) punishment will require me to do more than pay you $500. Righting the wrong requires more than compensating you $500.

But the central question here is, "Why should a wealthy person pay more in penalties for the same crime?" It is not because of compensation, and it is not because of retribution. So is it because of deterrence? (The post I linked is at bottom about the problems with reifying and separating deterrence as a standalone consideration.)

 

[ThatRobGuy]

Okay, sure, but everything I said earlier still applies. See, for example, #18.

If you're referring to this part:

On one conception law rights wrongs. On another it discourages actions. It is only when this second conception is given primacy that deterrence and pain/penalty become the central considerations.

"In order to properly deter and pain you, we are requiring that you pay X amount even though the damages and restitution were much less." That is the strange move, and it also raises the fraught question: Who receives this extra money?

It's not a strange move...it's not a perfect move, but it's the best move we've got in the way of avoiding conflicts of interest.

The wronged party receives the money from the punitive damages. As noted, it's not perfect. But it's less imperfect than letting it go to the government, as if that were the case, the immediate speculation would be that the government has a vested interest in jacking that amount up for selfish reasons.

For instance, if you were a mega millionaire, let's say you were worth $200M. You defamed me in a way that severely damaged my reputation, resulted in me getting harassed and getting death threats, and caused me to lose my job.

It would only take 4M to "make me whole". With $4M, I retire today, buy a new house in a new town, and never have to work again.

However, $4M alone isn't a deterrent to you if you're worth that much (and still earning millions per year on an ongoing basis), it's a drop in the bucket. What's to stop if you from doing it again in 6 months?

That's where the punitive damages factor in. $100M would certainly give you something to think about before engaging in that behavior again, correct?

The question, would you rather that go to me? Or would you rather it go to government actors to fund policies and state actions that apply to everyone, that you're not a huge fan of? For instance, with that $100M they could subsidize <insert something you and half the town repulsive here>. Obviously your preference would be to not have to pay it all, but if you had to pick one of the two aforementioned options? The latter also creates a bad incentive structure where state governments could be encouraged to "go heavy on the punitive, because that'll help our bottom line".

For punitive damages, it's basically giving the money to the party that has the least amount of widespread influence. You give it to me, I'll spend on things that largely only impact me, you hand it over to the state government, they'll spend it on things that impact millions of people. (in ways that can be seen as good or bad)


Full Disclosure, if it were left up to me, the amount I would've dictated was "each of the 10 families gets $3-4 million dollars, and $50M in punitive damages that would get divided up between them -- or donated to a non-political charity of their choosing)

I do think a total (between the two forms of compensation) of $100-120M would've been enough to make them whole, and give ol' AJ something to think about. But that's a separate aspect of the conversation.

 

[zippy2006]

@ThatRobGuy - I don't know that you're really following. Here is the question:

But the central question here is, "Why should a wealthy person pay more in penalties for the same crime?"

To say, "Because deterrence!" sort of ignores the whole question of what punishment is and how deterrence relates to punishment, which I take to be the original question.

 

[ThatRobGuy]

@ThatRobGuy - I don't know that you're really following. Here is the question:


To say, "Because deterrence!" sort of ignores the whole question of what punishment is and how deterrence relates to punishment, which I take to be the original question.

But I answered that...in the case of tort law (which refers to civil matters where jail and other forms of deterrence aren't an option), financial deterrence is the only lever to pull to dissuade someone from engaging in a particular behavior.

In criminal matters, the threat of jail and removal of other rights and privileges are the levers that are pulled.


If, say, rape was considered in the realm of tort law and not the criminal code. And a fixed award of $100,000 was set for each infraction.

How would you expect to dissuade rich people from engaging in that sort of behavior? A "Harvey Weinstein type" is going to say "oh, cool, well I can do that to 10 different women and cover the amount with what's in my checking account right now, shall I make the check out to naive aspiring actresses? Let's speed this up, I have a party a Diddy's house to get to and I wanna get there before my Cialis wears off"

Meanwhile, for sexual deviant average joe is getting hit with an amount for the same crime that's going to be a financial hole he can never dig himself out of.


So the more direct answer, because in the realm of tort law, it takes a larger amount of money to dissuade a rich person from doing something than it does a poor person.

If I tell the guy at Jiffy lube "you better not spread this lie about me, if you do, you'll be on the hook for $1,000,000", he's going to clam up, if I said the same thing to Jeff Bezos, he's going to say "are you kidding, I'll say whatever I want about you, I make that amount of by 10:30am right after 2nd cup of coffee and morning deuce"


Now, we could make defamation a criminal offense instead of a civil offense, which means we'd be having a conversation right now about "why did Alex Jones get sentenced to 5 years in prison", but I don't suspect people would be crazy about that arrangement.

 

[zippy2006]

And the curious thing is that, although our age claims to be opposed to "vengeance" and "retribution," we are in fact waist deep in it. The George Floyd movement was primarily motivated by unjust vengeance. The John Wick movies, where dozens of people are killed in punishment for the life of a dog, is a celebration of vengeance. The recent UnitedHealth murder is the same, and the Alex Jones case also looks like the same sort of thing (although I have not followed it).

 

[Gene2memE]

OK. I agree with that. The "negligence" part is the obvious hang up. A lot of mind reading has to take place, and I think that why successful defamation suits seem pretty rare.

The negligence part, in the legal sense of "failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances", was very clearly established in the various Sandy Hook court cases. The judge in the Connecticut case stated that Jones/Free Speech Systems "conduct was intentional, malicious, and certain to cause harm by virtue of their infrastructure, ability to spread content, and massive audience.”

If you really want to know about it, the podcast 'Knowledge Fight' goes into extraordinary detail covering how Jones/Free Speech Systems failed to perform even the most basic fact checking of anything. What's more, they deliberately misconstrued and/or failed to report information that contravened their defamatory positions. Such as Jones reading media reports verbatim while on air and as he did so altering the words or leaving out sections that didn't meet the conspiracy narrative.

This wasn't just a couple of mis-statements. This is deliberate and legally malicious promulgation of falsehoods. Look up the various 'Formulaic Objections' episodes for ~30 hours of coverage and analysis of depositions related to the case.

 

[zippy2006]

But I answered that...in the case of tort law (which refers to civil matters where jail and other forms of deterrence aren't an option), financial deterrence is the only lever to pull to dissuade someone from engaging in a particular behavior.

So you conceive of the government as a moral nanny that runs around trying to deter people from doing bad things, and depending on the person in question it will use different methods of deterrence? Like I said earlier, that is not an impartial rule of law. It's person-based manipulation for the sake of a desired behavior-end.

If, say, rape was considered in the realm of tort law

It's not.

 

[zippy2006]

@ThatRobGuy - Look for example at a statute for civil theft:

Subdivision 1. LIABILITY FOR THEFT OF PROPERTY.​

A person who steals personal property from another is civilly liable to the owner of the property for its value when stolen plus punitive damages of either $50 or up to 100 percent of its value when stolen, whichever is greater. If the property is merchandise stolen from a retail store, its value is the retail price of the merchandise in the store when the theft occurred. (MN law - Source)​

Now your idea is apparently that if a very rich person steals personal property in this way, then we need to ramp up the penalty in order to deter them, no? Because the penalty based on the tort itself won't suffice?

 

[ThatRobGuy]

So you conceive of the government as a moral nanny that runs around trying to deter people from doing bad things, and depending on the person in question it will use different methods of deterrence? Like I said earlier, that is not an impartial rule of law. It's person-based manipulation for the sake of a desired behavior-end.

In the case of defamation, it's not the government doing anything, it's one citizen vs. another, making their case in front of jury with a judge presiding over it.

If I make defamatory statements about you, and you react with "meh, nobody really cares what you say, it's no skin off my back", the government literally does nothing about it. The same isn't true of criminal statutes. If I hold you up at gun point and steal your wallet, it doesn't matter whether or not you say "meh, I don't care", the cops are still going to arrest me and the state will file charges.

It's not.

That was just an example.


But, in the realm of defamation. If I'm an established business owner with lots of money, and for everyone who tries a new upstart company that tries to start up to challenge me in market, and I make up a BS story about something bad they supposedly did in the past in order to ruin their reputation, with the effect of getting people not to shop there. If there was a fixed penalty for that in the realm of tort law, what's to stop me?

If I'm a multi-millionaire, and I have the option, I'll pay a hundred $10,000 settlements per year in order to make sure I don't have competition, that's a drop in the bucket, and in no way a deterrent.


Basically, what you're getting at, is that you want the financial penalty for defamation (in tort law) to be the same for a poor guy as it is for a rich guy. That doesn't work. How that ends up is poor people have to keep their mouth shut and walk on eggshells, and rich guys can lie about people all they want and have their accountant write a check. The very two-tiered justice system I assume you want to avoid.



Simple question:

Do you think Jeff Bezos or Elon Musk are dissuaded from doing anything over the risk of losing $10,000? Or is that amount of money so insignificant to them, that is has little to no bearing on their decision making process?

 

[durangodawood]

The negligence part, in the legal sense of "failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances", was very clearly established in the various Sandy Hook court cases. The judge in the Connecticut case stated that Jones/Free Speech Systems "conduct was intentional, malicious, and certain to cause harm by virtue of their infrastructure, ability to spread content, and massive audience.”

If you really want to know about it, the podcast 'Knowledge Fight' goes into extraordinary detail covering how Jones/Free Speech Systems failed to perform even the most basic fact checking of anything. What's more, they deliberately misconstrued and/or failed to report information that contravened their defamatory positions. Such as Jones reading media reports verbatim while on air and as he did so altering the words or leaving out sections that didn't meet the conspiracy narrative.

This wasn't just a couple of mis-statements. This is deliberate and legally malicious promulgation of falsehoods. Look up the various 'Formulaic Objections' episodes for ~30 hours of coverage and analysis of depositions related to the case.

I totally agree with the defamation judgement in this case. I was just pointing out how to me it seems challenging to prove the negligence claim generally. In this case the defendant made it easy.

 

[durangodawood]

......But the central question here is, "Why should a wealthy person pay more in penalties for the same crime?" It is not because of compensation, and it is not because of retribution. So is it because of deterrence? (The post I linked is at bottom about the problems with reifying and separating deterrence as a standalone consideration.)

The wealthy should pay more to achieve both deterrence and retribution.

Retribution is basically vengeance, right? Thats the desire to see the offender suffer in some regard. Obviously simple or double compensation wont achieve that when the amount is negligible to the offender. It has to be an amount that "hurts" - and that depends of the wealth status of the offender.

This is assuming retribution is valid goal for the justice system.

 

[zippy2006]

Retribution is basically vengeance, right? Thats the desire to see the offender suffer in some regard.

But in what regard? That is the question. Classically it must be in a regard proportional to the crime/tort itself.

The wealthy should pay more to achieve both deterrence and retribution.

Let's come back to retribution (which is really just another word for punishment) and focus on deterrence for a bit, because that is the original topic and the one on which @ThatRobGuy continues to beg the question.

So how does this matter of deterrence work for you? Are you saying that the goal of deterrence justifies an increased penalty?

___

In the case of defamation, it's not the government doing anything, it's one citizen vs. another, making their case in front of jury with a judge presiding over it.

Nah. If you think there should be a law for the sake of deterrence, then you apparently think the government should be a moral nanny in the way I suggested.

If I hold you up at gun point and steal your wallet, it doesn't matter whether or not you say "meh, I don't care", the cops are still going to arrest me and the state will file charges.

If you don't report the crime nothing will happen.

In the case of defamation, it's not the government doing anything, it's one citizen vs. another, making their case in front of jury with a judge presiding over it.

So make your case. "Hello Mr. Judge. This fellow stole $400 from me. The law says I should get my $400 back and another $400 for punitive damages. But he's rich. So let's charge him an extra $10,000 for the sake of deterrence. Sound okay to you?"

Like, what kind of reasoning is that?

But, in the realm of defamation.

Why is defamation different from civil theft?

Basically, what you're getting at, is that you want the financial penalty for defamation (in tort law) to be the same for a poor guy as it is for a rich guy. That doesn't work. How that ends up is poor people have to keep their mouth shut and walk on eggshells, and rich guys can lie about people all they want and have their accountant write a check. The very two-tiered justice system I assume you want to avoid.

There are a lot of people around here who think it is unfair that rich people are rich and poor people are poor, and that therefore we should redistribute wealth, or the poor should be able to steal from the rich with no consequences. I don't think that. I think rich people can do things poor people can't do, including paying penalties. That's called reality. My only surprise is that you are a libertarian who thinks it is unfair that rich people can do things poor people can't do, and that the government needs to step in and make partial laws based on personal wealth.

For example, rich people can speed in a way that poor people can't, because they can afford speeding tickets. Do we need to fine the rich way more in order to deter them? I don't think your theory of punishment is very well thought out. The logical alteration of your position would be to say that some torts should in fact be crimes - that is probably the crux of the issue.

Do you think Jeff Bezos or Elon Musk are dissuaded from doing anything over the risk of losing $10,000? Or is that amount of money so insignificant to them, that is has little to no bearing on their decision making process?

Who cares? The government is not a moral nanny.

 

[durangodawood]

But in what regard? That is the question. Classically it must be in a regard proportional to the crime/tort itself.

Yes, the suffering (retribution enacted) should be proportional to the severity of the offense. (I'm stipulating that retribution is a valid goal of a justice system - I'm not sure myself).

Let's come back to retribution (which is really just another word for punishment) and focus on deterrence for a bit, because that is the original topic and the one on which @ThatRobGuy continues to beg the question.

So how does this matter of deterrence work for you? Are you saying that the goal of deterrence justifies an increased penalty?

Deterrence requires felt negative consequence. Monetarily, the same felt consequence requires a bigger penalty for a wealthier person, typically. Jail time is different of course, as on average time spent in liberty is equally precious to everyone.