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User talk:Abd/Lomax v. WikiMedia Foundation/Reply to Opposition to Motion to Dismiss

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They talk about other cases being distinguishable[edit]

That just means it's an opportunity to set a new precedent. 13:09, 7 September 2019

You can always find similarities and differences between cases. Noonan v. Staples was based on understood principles, and Noonan II showed that the basis for suspecting malice need not be strong at the complaint stage. It must merely be plausible. It is not necessary to prove a claim in the Complaint. Their defense against defamation through the ban report is this:
  • 1. It was true. He was actually banned, therefore it is true and truth is an absolute defense against defamation.
  • 2. We have the right to ban anyone for any reason, and are protected by Section 230.
  • 3. Okay, in Massachusetts, truth is an absolute defense unless there is actual malice. But there is no reason to suspect malice, we treat all banned users the same, we did not single him out.

As to (1) the statement was literally true, but their policy and practice indicates that they don't ban without very strong cause. Therefore, to the public (and especially in the spreading of defamation over this, it's pointed out), a WMF global ban must represent a dangerous person, proving what the Rats have been claiming. So the "statement" includes what it implies, that they carefully investigated and there were serious violations. It must be serious because the WMF very rarely bans even with quite offensive behavior. It must be repeated, generally. I was told by a WMF board member that there was no chance of a ban based on what I had actually done. So the investigation was defective, and in Doe v. Amherst, what turned that case into one that Amherst apparently settled was a revelation that the investigation was badly flawed. So in this case, to discover the truth of this will require discovery. But I know I didn't do anything banworthy.

As to (2) they do have that right, at least the interpretation of Section 230 has gone that way. Challenging that is beyond my pay grade. It's possible with a class action, I suspect, but the issues are difficult. And there isn't any money in it. It would be a claim under the Terms of Use, so there are a number of barriers. Section 230 does not protect them for content that they originate themselves.

As to (3) I'm arguing that all the ban announcements are defamatory, not just mine, and that behind this is a generalized malice against anyone who would disrupt the project or promote dangerous or unpopular ideas. That they would choose to protect, rightly or wrongly, is not malicious. But publication may be. They claim to protect the privacy of complainants, but show no concern for the privacy of alleged offenders.

The standards for malice in this case are for common-law malice, not the stronger standards involved with defamation claims against public figures.

Without knowing the nature of the complaints, I cannot know for sure if there was malice. I suspect it.

As to the conspiracy, there clearly was a conspiracy, the evidence for that is strong, certainly strong enough for a claim. Did the WMF join the conspiracy? Again, a judgment of that probably requires discovery. They aided and abetted the conspiracy. To what extent are they responsible for that? I don't know, but I hope to find out. They definitely set up a complaint/response system that was vulnerable to abuse by a conspiracy, i.e., multiple complainants. This is not surprising! But this is why an alleged harasser should have some opportunity to counter evidence; this could be done through a neutral arbitrator to protect privacy. But the WMF provides no process and no possibility of a process.

In the Reply, they raise a series of irrelevancies, attempting to disparage me and the complaint. I think the WMF is pushing them hard, desperate to avoid the case going forward. "Do Something!!!" --Abd (talk) 00:44, 8 September 2019 (UTC)

Neil Gorsuch has written a new book (coming out tomorrow) where he talks about how the justice system is failing to serve litigants well, because lawyers are too expensive, it takes too long to get to trial, and few litigants ever actually get the jury trials that are guaranteed by the Constitution.
The longer these cases drag out, the worse it is for everyone, because it delays getting closure. It's better for the winning side to speedily get whatever "justice" they have coming to them, and for the losing side to go ahead and get their "injustice" so they can start licking their wounds (or succumb to the accumulated wounds, whichever it's going to be). Either way, it gets it over with. 16:24, 9 September 2019 (UTC)
We see this in many areas. The way we do things developed under different conditions, and the consequences were not always anticipated well. Great example is the electoral college. It was actually a brilliant idea, but not quite complete, and the lack of completion and the development of the party system corrupted it, yet it became almost impossible to change, and most people wanting to change it want direct election of the President, which would be just as much of a problem, it all makes our leadership vulnerable to the influence of money. Rather, the electoral college in concept was brilliant! It is known how to create full representation of the public in an assembly, and it has been known since the 19th century, but we still don't use the methods in our assemblies, anywhere.
Even the alternatives to present judicial process have become unaffordable. Who is actually working on solutions? --Abd (talk) 11:59, 10 September 2019 (UTC)