Nov. 27, 2021 - The Political Cesspool - James Edwards
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You're listening to the Liberty News Radio Network, and this is the Political Cesspool.
The Political Cesspool, known across the South and worldwide as the South's foremost populist conservative radio program.
And here to guide you through the murky waters of the Political Cesspool is your host, James Edwards.
Good King Wencis Loss looked out on the feast of Stephen when the snow lay round above, deep and crisp and even, brightly shone the moon that night, though the frost was cruel when a poor man came inside, gathering winter few.
Ladies and gentlemen, we hope that you had a wonderful Thanksgiving and are continuing to have a wonderful Thanksgiving weekend.
Welcome one and all to tonight's live broadcast of the Political Cesspool this Saturday evening, November the 27th.
And we are now transitioning, of course, into the Christmas season.
And there is something about the sense of togetherness and community that comes with this time of year that our people are sorely lacking.
And we will do the best job that we can to the extent of our abilities to foster that sense of togetherness through these radio airwaves over the course of the next month of programming.
And to help us do that, we'll be playing some of our very favorite songs of the season.
And I wanted to kick it off tonight with that traditional English hymn, Good King Wencesless.
And there's some lessons to be learned from that song, and we'll try to teach them to you over the next few weeks.
But, well, the trials, the three trials that we have been so heavily covering on this program over the course of the last month, the Charlottesville trial, the R. Bury McMichaels trial in Georgia and the Rittenhouse trial, have now all been decided.
The verdicts are in.
And to help us break that down tonight is a very good and longtime friend of mine and my first choice for tonight's particular treatment.
He is Glenn Allen.
Glenn Allen is a former attorney for the city of Baltimore who has paid a heavy price for having the courage to think freely.
He's a tireless champion of free speech, and he's now standing up for others who have been subjected to similar injustices by founding the Free Expression Foundation.
And Glenn just a few days ago wrote a very, very excellent article entitled A National and Historic Disgrace.
It talks about the lawfare in the Signs v. Kessler show trial, which we've been leading with for each of the last four weeks.
And in this article, Glenn discusses the gross disparity of legal resources, the ideological motives and goals of the plaintiff's attorneys, the dangers of broad discovery, aggressive use of expert, expensive experts, and the misuse of the conspiracy allegations that this trial featured.
So without any further ado, let's bring him back on, Glenn Allen.
And Glenn, let's just break down your article first, and then we'll get into the verdict and the intricacies of that and what your analysis can tell us.
But that article, my friend, take it from the top and what do you think needs to be remembered about this particular trial?
Well, James, there's always been abuse of litigation.
And there are statutes that try to deal with it.
They're anti-slap statutes.
And there are provisions in our legal system for sanctioning people who misuse litigation.
But I think this Signs v. Kessler is almost a class unto itself.
It's pure, what I would call, lawfare, and that's a term that was created in the context of military operations, but it really applies, I think, to certain kinds of litigation that are ideologically motivated and are really not intended to get compensation for injury.
They're intended to bankrupt and silence one's ideological opponents.
And Signs v. Kessler really, to me, set a precedent and a bad one in that it was even allowed to go forward.
I do think that the judge in that case would have been justified in stopping the case at the motions you dismissed.
But the case went on for four years.
It started in October of 2011, I mean, 2017, and it just went to the jury on October 25th of 2021.
So four years of expensive litigation that had a horrible impact on the defendants who are not wealthy.
But it had a horrible impact on the First Amendment, too, because it sent out the message that if you express your views and someone shows up who doesn't like them and you get in some scuffles, well, you might get sued.
And that's not a message that I think the First Amendment should allow, and that's not a message that I would like to see in this country.
And of course, we've talked about Heckler's vetoes.
We've talked about things like that, which would be to protect dissidents, to have the freedom to assemble and speak on the public square, public property, which heretofore to this case, everybody had the right to do.
And we've talked so much about it, but I think that your article here just brings it into sharp focus.
And as we reach the summation and conclusion of our coverage on this, again, I say I don't think there was anybody else better to help us do it than to you.
But let's focus on another aspect, if you don't mind, Glenn, that you write about in this piece, which has been republished everywhere.
By the way, you can check it out at its original source, the Free Expression Foundation.
And ladies and gentlemen, as important as the work of Glenn Allen was before last week, it is 10 times more important now that organizations like the Free Expression Foundation be supported.
It's also been reposted at American Renaissance, the Occidental Observer, and our website as well.
But you write about the misuse of conspiracy allegations.
I was shocked, Glenn.
Now, I'm a layman.
I don't have any sort of legal expertise like you do, but to hear how loose and flimsy what constitutes a conspiracy has become was really, I was really taken aback by it.
Yeah, you should be, James, and anyone should be.
Again, that was not created out of whole cloth.
There have been much criticism of conspiracy allegations by many distinguished judges and legal commentators for many years.
I think you may recall I quoted from Justice Jackson about how a conspirator sits in an uneasy seat because he has a motive to try to go after his fellow so-called conspirators to separate himself, but that just plays into the hands of the prosecution or the plaintiffs.
And as you say, it is just so amorphous, so vague.
I am quite confident that people in this Signs v. Kessler case who were found to be conspirators really had no knowledge of what they were allegedly liable for.
Some statement by some often, frankly, stupid or intemperate statement by someone else that they would not have approved of if they had known about it.
Yet, on the basis of these very broad conspiracy allegations, they all became liable for them.
Having said that, James, we'll get into this, but they were not found liable under the federal conspiracy.
The jury really had trouble with the federal conspiracy claims.
So they were found liable under the state conspiracy claims.
But the same principle applies that these things are much too vague.
And especially in the context. of First Amendment expression, which, as you mentioned, was classical First Amendment expression.
Well, ladies and gentlemen, as he mentioned, pardon the interruption, Glenn, we're coming up on our first break, but Glenn's right about, listen, the judge said you can be part of a conspiracy even if it's unbeknownst to you.
You can be considered to be part of a conspiracy even if you step foot on the place on the soil of where the conspiracy is occurring.
That's how loose it is.
So anyway, we are going to talk about the confusing and convoluted verdict form in just a moment with Glenn Allen, so stay tuned for that.
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Hither, page, and stand by me, if thou knowst it telling, yonder peasant, who is he, where and what is dwelling?
Sir, he lives a good league hence underneath a mountain, right against the forest fence by St. Agnes Far Then bring me flesh and bring me wine, bring me pine logs hither, thou and I will see him dine when we bear them thither.
Page and monarch, forth they went, forth they went together through the rude winds, wild lament, and the bitter weather.
Ladies and gentlemen, that song paints such a beautiful verbal picture of what duty and sacrifice for one's people can be.
And it's a wonderful way to usher us into this Christmas season.
If you've never really listened to that song, I encourage you to look it up and read the lyrics.
And we've got a guy here with us that I think really embodies that sense of duty and honor.
And that is Glenn Allen with the Free Expression Foundation.
The mission of this organization, founded by Mr. Allen, is to advocate for free expression with a particular but not exclusive focus on combating and ameliorating the anti-free expression effects of digital deplatforming, hate labels, lawfare, which we're talking about, vis-a-vis Charlottesville, doxing, cyber vigilantism, and terrorist and quasi-terrorist intimidation tactics.
Support his work at freexpressionfoundation.org.
We're going to talk just a couple of more minutes about this excellent article he's written that is all over the place this week, been cross-published at several different sites.
And my co-host, Keith Alexander, who is also an attorney by trade, read with interest the article and would like to share a quick observation and ask a quick question of Glenn.
Keith, take it away.
Glenn Keith Alexander here.
How are you doing, sir?
Yeah.
Hi, Keith.
Doing all right.
Doing fine.
Well, let me ask you this.
Lawfare, when I first heard the term, I thought they were trying to analogize to welfare, but obviously they're trying to analogize to warfare.
They're using the court system as a weapon against dissenters, both civil and criminal arenas or courts on this.
Now, I guess one thing that both types of lawfare have in common are that they money whip the defendants.
What are your thoughts about, you know, well, which one do you think is more dangerous?
Which one do you think is more of a threat to conservatives generally?
Between which and which?
Between criminal and civil lawfare.
Oh, my civil case like Charlottesville and the criminal case like Rittenhouse and Arbery.
Oh my gosh.
I mean, as you say, it's a pretty awful choice, isn't it, to choose between two such evils.
I'm not sure I'm even capable, Keith.
It's a good question.
I will say that I am a civil litigator, and I'm only now learning more and more about criminal matters.
And I hope to learn more and more.
And I'm hoping actually to get involved in the January 6th defenses to some degree.
I can only tell you that my focus on civil litigation is quite concerning to me because I do think that in criminal matters there are a few more protections than are built into civil litigation or that are being dissolved in civil litigation.
So I don't know whether one can draw comfort from the written house jury verdict and say there was some integrity to that.
And there doesn't seem to have been one in the Charlottesville one.
But I also know of many abuses by the criminal system and particularly in the pressures that are put on criminal defendants to make plea bargains.
I imagine, Keith, you're quite aware of that.
I mean, what's going on in January 6th, what went on with the rise above movement people, the conditions they were kept under, and then they were forced, in my judgment, coerced really into plea bargains that, you know, really destroyed their lives.
So there's an immense danger.
What are your thoughts, Glenn?
Go ahead.
I thought you paused there for a moment.
No, go ahead and finish your thought.
Well, just that there are dangers in the criminal justice system that most people are unaware of.
They don't know the pressures that are put on defendants who are incarcerated to make plea agreements that are, you know, very harmful to them.
So, yeah, they're both huge, huge dangers, Keith.
That's, I guess, my only response.
Okay, yeah, let me just say this.
What can be done to rein in lawfare?
What is this a matter of for the Board of Professional Ethics?
Is it a matter for the judges to discipline lawyers or the Board of Judicial Conduct?
Do you see any way to get this monster under control?
Well, that's another good question.
And earlier, James asked about my article.
I'm not sure I fully responded on a couple details.
I didn't go into much detail, but one of the problems, of course, is, to be quite frank with you, is just a disproportionate allocation of resources.
In the Sinsby Kessler case, Roberta Kaplan, who headed it up, raised $25 million, you know, pretty easily, I believe.
Right.
And she had 38 lawyers, many of who gave pro bono work for three large law firms that had income of $2 billion, and the defendants had very little.
It's not my practice to second-guess lawyers, but I can tell you that if the resources were more equally divided, there are things that could have been done to push back against this at that trial.
For example, on expert testimony, I mean, the platinums were able to pay $30,000 for an expert, and the defendants just could not afford that.
So a lot of it, and I'm just being candid with you, Keith, but I know we need to be candid, is just resources.
I mean, there are things we can do within the existing system to push back against this, but it really requires resources.
But apart from that, I do think we just need to educate people.
I think they don't see it.
And to the degree we can educate the public, I mean, it will seep into judges.
As you know, judges are out in the world too, and they do pick up things that they should have known in the first place, but often don't.
So, yeah.
I was actually going to say, you know, it may take a seismic shift in societal trends before we can ever, because it does permeate what happens outside the courtrooms permeates the jury.
I mean, there's just no doubt there were juries.
I was able to listen to the jury selection process.
I listened to the whole trial in Charlottesville.
Not one, not two, but several jurors in the jury selection process that were afraid to be on the jury for fear of reprisal from Antifa, from doxing, from all of the things that your organization seeks to shield people from, Glenn, because they understand society expects a guilty verdict and punitive damages.
And I'm sure that they felt it in Georgia and in Wisconsin as well.
Very quickly, Keith, we're going to take a break on things.
Society expects it, but the left that controls the media does.
Yeah, that's what I was going to ask you.
I don't want to sound jaded, but I think it's all a matter of venue.
You just, you know, if you get in the wrong venue in a little ivy-covered North Korea like Charlottesville, you don't have a, you know, a snowball's chance in hell of having a good result, I think.
Well, what did he say?
Well, down in rural Georgia, you know, so much for southern juries as we saw in the Arbery.
That's the Atlanta area.
That's an outlier.
That's not like rural Georgia.
Well, maybe so, but what I said, you're right.
It was a good point, a good retort, Keith, about society.
I think society increasingly is shifting in our direction, but the media, which perception is the ultimate reality, is the media.
And there is certainly an understanding that the jurors were going to be in harm's way to an extent if they ran afoul of the media's narrative and what was expected by the media to be delivered.
Perhaps it was the media, not society.
Well, Glenn, with only seconds remaining, we will shift gears when we come back.
So, for everybody out there who doesn't understand, the headlines read: $25 million awarded to the plaintiffs in the Charlottesville case.
And we're going to break that down.
Is it as black and white as that?
Glenn Allen has studied and poured over the very long and confusing verdict form, and he's going to break it all down for us with expert analysis.
Get down to the nuts and bolts of the verdict and tell you all about it.
So stay tuned.
Pursuing liberty, using the Constitution as our guide.
You're listening to Liberty News Radio, USA Radio News with Lance Pryde.
America is back.
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Conservative journalist David Webb on Fox News has a different view of America's direction.
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This is someone who doesn't want the economy to function as it does.
The president has theorists and ideologues and Keynesian economists.
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The United Kingdom is already blocking flights from several South African nations as of Friday.
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The African nation of Egypt set out to revive a tradition that hadn't been seen in a couple thousand years.
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The 1.7-mile-long road is lined on both sides with more than a thousand statues of Sphinxes and Rams.
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Sire, the night is darker now, and the winds blow stronger.
Failed my heart.
I know not how.
I can go no longer.
Mark my footsteps, my good page.
Tread thou in them boldly.
Thou shalt find the winter's rage.
Freeze thy bloodless cold.
In his master's steps he trod, where the snow lay dented.
Heat was in the very sudden, which the saint had printed.
Therefore, Christian men, be sure, while the rain possessing, he who will now bless the poor, shall yourselves find blessing.
So in the song, of course, the young page is cold and afraid to make the trek, and the monarch shields him and keeps him safe.
We need that sense of courage as they trod through the bitter weather to tend to the well-being of their kinsmen.
And again, I think that's analogous to what Glenn Allen is doing with the Free Expression Foundation.
And please, ladies and gentlemen, check it out at freexpressionfoundation.org.
We need to learn these lessons and we need to learn them well.
We have to.
We have to have this sense of duty towards our people again, and we have to remember that charity begins at home.
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Charity begins at home.
It begins with your family and your extended family.
Well, let's get into it now, Glenn.
The verdict form.
So I think people who have been listening to the show over the course of the last month will understand it pretty well.
We've covered it with so many hours of airtime, but there were six different charges, nine plaintiffs, and 17 different defendants.
So that's what the jury had to weed through when making their decisions.
The media is painting this as an unconditional surrender by the plaintiffs, or rather, an unmitigated victory for the defendants and an unmitigated victory for the plaintiffs.
But I'm not sure if that's the case.
And you are about to get into that before we had to take another break.
So, based upon your analysis, what did you find of interest in the verdict in Charlottesville?
Well, James, as you mentioned, there were six claims that went to the jury.
The first two were federal claims under the Civil Rights Act of 1871.
One was a very strange one, by the way, the section 1986 one.
The third one was for state law, civil conspiracy under Virginia law.
The fourth one was for ethnic or racial harassment, a statute in Virginia.
And that the fifth and sixth were directed only against James Fields and were for assault and emotional, intentional infliction of emotional injury.
And as I'm sure you've educated your listeners, James, that the case went to the jury on Friday, whatever that was, October 25th.
Then the jury deliberated for over three days.
And there was thought that maybe they had deadlocked.
And in fact, they did deadlock on the first two claims, the federal claims.
And they, as you mentioned, they rendered their verdict in the form of a jury verdict form.
And for the first two claims, they left it blank.
They did not check the box that said they found any defendants liable for the federal claims.
On the third one, they did indicate that all the defendants were liable, all 17, and that's 17 out of the 25 who had originally been named, and that was five organizations and 12 individuals.
That they were all liable.
But then when it went to enumerating the actual damages, as to two of them, it found zero.
Seth Whistleby, who's, I understand, a minister, and the name plaintiff signs, it had zero compensatory damages.
And then when it had to spill in the spot about the section about punitive damages, it just gave half a million to all the 12 individual defendants.
I mean, as against the 12 individual defendants and five against the organizational defendants, which is a chunk of money.
But let's just focus for a minute on this third claim because it's really got some unusual dynamics here.
Let's first bring up the fact that in Virginia, there's a statutory cap on punitive damages of $350,000.
So, and it's a pretty explicit statute.
Let me just read it to you.
It says, in any action accruing on or after July 1st, 1988, the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trial of fact.
In no event shall the total amount awarded for punitive damages exceed $350,000.
The jury shall not be advised of the limitation prescribed by this section.
However, if a jury returns a verdict for punitive damages in excess of the maximum amount, the judge shall reduce the award to the maximum amount.
Well, James, as I read that, I'm not a Virginia lawyer, but I think I know how to read a statute.
That's $350,000 for the whole case, for the whole, it says the action.
So that means against all defendants by all plaintiffs.
So this $25 million that you hear, I think that's contradicted by this statutory cap.
I think the maximum is $350,000.
So that's the first important factor.
Yeah, go ahead, Keith.
Now, I was going to say that I guess there's going to be a motion for a remitature filed on behalf of the defendants, right?
Well, you know, life is simple.
Yes, there should be.
Here's the complication, and this is arcane procedural stuff, but you can only file these like a remitator or what they call post-trial motions after there's been entry of judgment.
And normally you can't enter judgment until all claims have been resolved.
And the first two claims were never resolved because the jury left them blank.
I am kind of scratching my head how this is going to get resolved.
I checked the docket yesterday, and there had been no entry of judgment.
So that would trigger the 10-day clock in order to file for a remitature.
But I don't know when judgment will be entered.
There's a couple of possibilities, and I don't mean to complicate everyone's life with arcane legal doctrines, but it may be, and it probably that the plaintiffs who still haven't sated their bloodlust will move to retry the first case.
Well, there's another possibility, too, Glenn, and that's that they don't really care.
They would love to try this case again because the real goal is not to recover money.
If it was that, they would have done a 1983 action, I think, or something.
I think they just want to money whip the defendants.
And another trial does that very well.
That's a good point.
I think it's right in line with what we talked about, the lawfare.
I mean, if they can make this go on for another year and bankrupt these poor defendants even more, they'd be happy to do that.
And they have an additional incentive.
Excuse me, Mike.
I apologize.
My cat is here.
Perfectly fine.
You know, the cats rule houses.
When they want out, you got to watch.
Well, you remember Winston Churchill's saying, he said that dogs look up to us, cats look down on us, but pigs consider us equals.
I remember that.
Yeah, that was true.
It's hilarious.
But an additional incentive for the plaintiffs to try to retry the first two counts.
And I don't think they can retry all six of them.
I think they can only retry the first two.
Would be they could get attorney's fees.
They can't get attorney's fees under the other four.
And I would just rhetorically say how errands that is.
When Roberta Kaplan raises $25 million, and most of these guys are looking for pro bono, but nonetheless, I bet they're going to ask for a million dollars in punitive damages if they can win and those, I mean, not punitive, attorney's fees, if they could retry the first two claims.
I'm not sure I've given you a clear answer, but it's definitely true that it would be a motion for a remitter.
When that would be appropriate to make, it's a little unclear because it's unclear how these first two claims are going to get resolved.
Well, Glenn, I've got to say, you've done an expert job of breaking this down.
This has been fascinating for me as a host, even to serve as a listener for this segment, because it's just really for people that wanted it spelled out, you're doing it quite quite, quite effectively.
Yeah, and let me add a couple things also about the punitive damages, which is really the trouble.
I mean, well, except for the compensatories against James Field.
Punitives can't be taken out in bankruptcy, right?
I doubt it.
I know.
I mean, there's an exception.
You can't just charge willful, I think it's willful or malicious or willful and malicious torts.
And I have talked with Sam Dixon about this.
I'm sorry, Glenn.
Sam is under the impression that bankruptcy cannot shield the defendant from this particular judgment.
Now, hold on right there.
As good as that segment was, we're going to try to make this last segment with Glenn Allen that much more informative.
And there's some other things that need to be mentioned and that have not yet been brought up.
We'll get Glenn's expert legal opinion on that.
So stay tuned.
Glenn Allen doing a fantastic job.
FreeExpressionFoundation.org.
We'll be right back.
The runner-up third takes a short lead.
Elwood glances over.
Now back to the plate he sets.
The pitch.
It's one on strike three.
They've won it.
They have won it.
World champions.
Jim, what's it like down on the field?
John, it's a madhouse down here.
I'm trying to get to Bobo with the winning picture.
Bob, Bob, how does it feel?
Winning the seventh game on a strikeout.
Yeah, I thought he'd be looking for a slider, so I came on with my fastball.
World champions!
Is this the greatest moment of your life?
Absolutely not.
Jim, the best moments for me are breakfast with the kids, long walks with my wife, just holding her hand, you know?
Marriage, you're never too far apart when you're still holding hands.
From your neighbors, the Church of Jesus Christ of Latter-day Saints.
Jim, when was the last time you held your wife's hand?
Well, it's been a while.
I tell you, you need to step up to the plate, Jim.
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I believe there will come a time when we are all judged on whether or not we took a stand in defense of all life from the moment of conception until our last natural breath.
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My hand shook, my heart pounded.
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I chided my church as a senior in high school for not seeming to care about the not yet born, for looking the other way and for not taking a stand on life.
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I will not equivocate and I will not excuse.
I will not retreat an inch and I will be heard.
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Oh, the weather outside is frightful, but the fire is so delightful.
And since we've no place to go, let it snow, let it snow, let it snow.
It doesn't show signs of stopping.
And I bought some corn for popping.
The lights are turned way down low.
Let it snow, let it snow, let it snow.
I tell you, the weather outside is not the only thing that's frightful in this country, to be sure, anymore.
But I want to thank again Glenn Allen for his expertise, for his duty and his sacrifice for his work.
He has really set a fantastic example.
Freexpressionfoundation.org.
I'm going to shoot my last shot on this, Glenn, and throw at the kitchen, throw the kitchen sink at this last little bit of commentary on this case.
A couple of odds and ends.
Number one, this was the longest civil trial in the history of the state of Virginia.
I learned that this week.
That's incredible.
I actually heard them say that from court.
And also, you mentioned that Virginia state law caps punitive damages.
A punitive, basically, ladies and gentlemen, as you know, just means a punishment.
It's arbitrarily designed.
It's possible to compensatory.
Right, which compensates people for actual injuries that they sustained.
At $350,000.
So the jury came back with $500,000 per individual and $1 million judgments per organization.
But it looks as though that's just going to be a formality that that's going to be slapped down to $350,000.
Although, even though the law says that, that doesn't mean the courts will abide it.
I certainly learned that in my libel case.
I want to quickly break down each charge.
There were six charges.
The first two charges where you had the hung jury were on the federal civil charges, the federal conspiracy charges, rather.
And I think they incorporated the Ku Klux Klan Act.
And those were the ones, according to an African-American reporter who was commenting on this case.
She's actually an attorney herself.
She said, in spite of what you see in the headlines, this was her report on her local Charlottesville TV station.
This was not the win that the plaintiff's attorneys wanted.
She said, in fact, one of the defense attorneys were absolutely giddy at the verdict.
So I found that to be interesting.
And so it was a hung jury on the first two charges.
They did get the defendants on the state conspiracy civil charge.
That was the third one.
I guess the standards were a little bit lower in that one.
That's where you had most of the punitive damages.
There was a fourth charge that dealt with the torchlight rally.
That didn't cover all of the defendants because not all of them were there for that.
So some were there, some were not.
And then the last two charges of the six applied to fields only.
Now, here's my question for you, Glenn.
You mentioned capping it at $350,000.
That's state law.
And then also, Rich Hamblin, who was one of the people to provide testimony on behalf of the defense, sent me this.
This is a Supreme Court state case, State Farm Mutual versus Campbell.
And this was a case that the U.S. Supreme Court held that due process limits punitive damages awards to less than 10 times the size of compensatory damages awarded, and that punitive damages awards of four times the compensatory damage is close to the line of constitutional impropriety.
So by that standard, if this factors in or weighs in at all, and you would think it would because this was a federal case and the Supreme Court's tied to federal.
By that standard, the compensatory damages were either $1 or $0 per plaintiff.
It was the punitive damages where you had these big numbers rung up.
But if State Farm versus Campbell comes into effect, it would seem as though these damages could be capped in terms of the ones of dollars.
Does that add up?
Does that make any sense to you, Glenn?
What's your take on that?
Well, James, before I was an attorney with the city, I worked for a private firm and I did quite a lot of punitive damages analysis and litigation in Maryland law.
So I'm pretty familiar with that.
I don't remember that exact case, and I may have it wrong, but I suspect that maybe the holding in that case was that a multiple of 10 was about as far as the court would go.
But I will tell you, my impression is that it isn't a fixed rule, it's more a rule of reason.
But that generally, you know, something like 10 or even 20 might offend their constitutional sensibilities, as they say.
So it is a big issue, and that's in addition to the $350,000 cap.
And with respect to this proportionality, there's another proportionality.
There's three actual proportional due process requirements.
There's the one that you mentioned.
There has to be a proportionality between the actual damages and the punitive damages, and whether it's 10 or what.
Again, I think there's some flexibility and that if there are very little, very small amounts of compensatories, the courts may allow a higher ratio of punitives.
But right now, if you do the math, it's like, what, 500 million to one or something?
I mean, it's just astronomical.
So I think it's cut down.
I mean, $1 actual and $500,000 in punitives.
I don't know how many zeros that is, but it's just off the charts.
But there's a couple other ratios that the courts look at in these due processes.
And you mentioned that Supreme Court, there is some choice of law, but really the state courts, the Supreme Court of Virginia, I'm pretty sure, has fallen in line with the U.S. Supreme Court.
And I know the Court of Appeals of Maryland has.
But another ratio is it has to be proportionate to the reprehensibility of the defendant's conduct.
And let's just process that for a minute, especially with regard to the third claim, as you mentioned.
$1 in actual damages, $500,000 in punitive damages.
But if there's $1 in actual damages, that means they weren't injured, right?
There was no physical injury.
They never went to the hospital or anything.
So that whole – I think amongst all the plaintiffs, Glenn, I think the total compensatory damages doled out for the nine plaintiffs combined was about $10 or less.
Yeah.
Yeah.
So the whole, quote, reprehensibility was really the message, right?
And that is so contrary to our First Amendment doctrine, which says the whole purpose of the First Amendment is for people to express views that other people don't like, that they may find reprehensible.
So I think there's a serious First Amendment problem with that punitive damages on the reprehensibility ratio.
But I think what the jury was offended by was the message.
And I think that's contrary to the First Amendment.
And the other ratio I wanted to mention, and I don't know if this got cheed up, but there has to be a ratio between the punitive damages and the defendant's ability to pay.
The purpose of punitive damages, as I think Keith mentioned, or you mentioned, is to send a message, but it's not, and this is from the Supreme Court, it's not to cripple or destroy.
And this will cripple or destroy if it's allowed.
But having said that, I mean, the burden, as I understand it, was on the defendants to introduce evidence that the defendants had limited means.
And I don't know if that was done.
And I can understand that as a trial strategic, you may not want to get, you know, start talking about Assuming you're going to lose and then trying to tell the jury you don't have much money.
I understand it's a difficult issue, but those are the three ratios that the due process clause imposes.
And yeah, and I think that they are all maybe factors that should reduce this even further below the $350,000 destroyed capital.
Okay, Glenn, this is Keith again.
Yeah.
Do you really trust Judge Moon to, you know, keep this thing of between the ditches, or is he going to rubber stamp what the left wants?
What is your sense on that?
Oh, gosh, I hate, you know, I clerk for judges and I had a lot of respect for them.
I always kind of wanted to be a judge until I became radioactive, you know.
I just, I have a bias toward thinking that they're honorable people when they put their robes on.
I was disappointed in Judge Moon's refusal to dismiss this case at the outset.
I was also involved in the rise above movement sentencing, and I was disappointed that he didn't, he seemed oblivious to the Antifa's actions.
I mean, the prosecution would put up videos of these rise above movements punching people, but they wouldn't show the Antifa precipitating the fight.
And these guys got, as you may know, a couple years ago.
That was actually a problem in this case, too, Glenn, as I listen to it every day.
What evidence was allowed to be admitted and what evidence wasn't?
And a lot of evidence that favored the plaintiffs was admitted, and it was a little more difficult for, I mean, the Heathy report, for God's sake, wasn't even admitted, which was the report commissioned by the city of Charlottesville itself, which exonerated the United Right to protesters or rallygoers to a larger degree.
So, yeah, that was interesting.
Glenn, with only seconds remaining, I want to thank you again for coming on.
Free ExpressionFoundation.org.
Ladies and gentlemen, the work of Glenn Allen and this foundation are going to be more important going forward as lawfare is certainly not a thing of the past and it's perhaps only heating up.
With seconds remaining, Glenn, the final word is yours.
Keith Alexander and I will continue to break this down in the second hour.
We'll talk about the situation in Georgia and Rittenhouse's post-acquittal actions as well and much, much more, the Waukesha massacre.
It's all coming up.
But a final word this hour to the great Glenn Allen.
Glenn?
Well, I would just say, apropos of Keith's question, what can we do against lawfare?
Speaking as an attorney, I'm an advocate for robust expression, even of offensive, but I do think some of these statements that came out in that Charlottesville rally were intemperate and inappropriate.
I'm speaking as an individual.
I mean, people need to be sensitive to how these things are received.
You know, maybe it feels good to say them, but that doesn't mean you should say them.
You can express your views.
That's a good point.
It's a good point.
And that was something that I said.
They certainly gave Capital Big Tarry.
A bludgeon with which they could be hammered.
But anyway, thank you, Glenn, again.
And FreeExpressionFoundation.org.
We've got much more to come tonight, and we'll do so right after these words.