I enjoy listening to Tara Henley’s podcasts, even though she unable to get along well with her former employer, the Canadian Broadcasting Corporation. Here is how Bari Weiss describes her departure from CBC:
The story of Tara Henley is the story of countless liberals. Until recently, they were the ones pushing everyone else to be more tolerant, more understanding, more open-minded, more compassionate. Then, something happened — call it ideological succession or institutional capture or the new illiberalism — and, all of a sudden (or so it felt to them), they found themselves to the right of their friends and colleagues. Their crime? Refusing to abandon their principles in the service of some radical, anti-liberal dogma. If you’ve been reading this newsletter, you know well what we’re referring to. (See under: Paul Rossi or Maud Maron or Dorian Abbot.)
And so it was with Henley, an accomplished Canadian journalist whose book, “Lean Out: A Meditation on the Madness of Modern Life,” kind of says it all. Last week, she resigned in style from the Canadian Broadcasting Corporation and struck out on her own here on Substack.
Henley’s most recent article offers a list of many of the issues that left-leaning news media currently refuse to cover. The title to her article is “Meet the press: Why much of the media looks and sounds much the same.”
Here’s a good place to start: Ask yourself how many liberal media pieces you’ve seen over the past two years that, say, interrogate COVID restrictions critically (especially early on, with school closures, lockdowns, and mask mandates). Or evaluate Black Lives Matter as a political movement, assessing its strengths and weaknesses. Or offer opposing viewpoints on transgender athletes in women’s sports; or mass immigration; or diversity, equity, and inclusion philosophies, trainings, or policies. Or acknowledge the excesses of #MeToo, or prejudice against the white working class. Or present critiques of identity politics. Or explore downsides of puberty blockers and gender transition surgery for teens; or delve into the growing censoriousness on social media and in education, Hollywood, the arts, and NGOs. Or probe inner city gun violence. Or reflect the positive sides of masculinity. Or talk about God. Or reference anything that’s currently deemed a conspiracy theory in non-derogatory terms (see: the lab leak theory). Or express genuine curiosity on the reasons behind the rise of independent media, whether that’s Joe Rogan or Substack.
This, I would argue, is the no-fly list. These are the tripwires.
I’ll admit that, months after leaving legacy media, I still feel an instinctive trepidation even running down this list — that’s how ingrained this is.
One of the most important uses of a UDAP statute is to attack the failure to disclose material facts. Where sellers do not make affirmative misrepresentations or it is difficult to prove oral misrepresentations, the key to a UDAP case often is the claim that the seller did not disclose important information.
It is usually easier to prove that something was not said than to prove what was actually said. Where a class action is involved, it is certainly easier to prove the seller never told anyone an important fact than to prove what was said to each class member. It will be hard for a court to say as a matter of law that a fact is not material and need not be disclosed; consequently, a consumer’s claim of deception based upon the failure to disclose should be allowed to go to trial.
In a surprising number of situations where the consumer is having difficulty explaining what was deceptive about the seller’s conduct, the solution is found in detailing what was not said, what important information was not disclosed to the consumer. For example, a finance company offers to refinance a loan at far worse terms than are available elsewhere, but the complexity of the transaction is such that the consumer does not understand this. The best approach may be to claim it is deceptive for the creditor to fail to disclose that preferable terms are available elsewhere. Also consider a case where a dealer sells a car “as is,” keeps to itself known defects, but makes no explicit claims as to quality. A useful UDAP claim is that the dealer must disclose known defects.
There are three ways of showing that the failure to disclose is deceptive. Some UDAP statutes or regulations specifically prohibit the nondisclosure of material facts. Examine the statutory or regulatory language closely to see if the nondisclosure must be knowing, or if the defendant must have intended that others rely on it. Second, failing an explicit statutory or regulatory prohibition, courts consistently hold that nondisclosure can be deceptive. Finally, in states where the UDAP statute also prohibits unfair practices, it is prudent to add that the nondisclosure is “unfair,” and not just deceptive.
Missouri regulations further describe the meaning of Concealment, Suppression or Omission of Any Material Fact in General
60-9.110 Concealment, Suppression or Omission of Any Material Fact in General
(1) Concealment of a material fact is any method, act, use or practice which operates to hide or keep material facts from consumers.
(2) Suppression of a material fact is any method, act, use or practice which is likely to curtail or reduce the ability of consumers to take notice of material facts which are stated.
(3) Omission of a material fact is any failure by a person to disclose material facts known to him/her, or upon reasonable inquiry would be known to him/her.
(4) Reliance and intent that others rely upon such concealment, suppression or omission are not elements of concealment, suppression or omission as used in section 407.020.1., RSMo.
60-9.090 Half-Truths: (1) It is a misrepresentation for any person in connection with the advertisement or sale of merchandise to omit to state a material fact necessary in order to make statements made, in light of the circumstances under which they are made, not misleading.
