Weblog Awards

November 25, 2008

They closed the “Best Law Blog” category before we could be nominated, but we qualify as an “Education Blog,” so we’re a nominee in that category.

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Lets Economically Separate Church and State

November 25, 2008

I’ve been wanting to write on this subject for a while. Well, procrastination allows me to ride on the work of others, as Jeff Schweitzer makes an excellent case for taxing churches just like the rest of us.

[T]he Supreme Court ruled in 1970 that exempting church property was permissible, but not required by the constitution (Walz v. Tax Commission of the City of New York). We have no obligation to exempt churches from property tax.

What has been obscured by time is the nature of the Supreme Court’s decision in Walz, a close vote of 5-4. The minority wrote an opinion supporting the argument that state exemption for church property indirectly caused the state to make a contribution to religious bodies, in violation of the First Amendment. Exempting churches from property tax was one vote away from being declared unconstitutional.

The Tenth Circuit Court further clarified the Walz ruling in 1972 (Christian Echoes National Ministry, Inc. v. U.S.), holding that “tax exemption is a privilege, a matter of grace rather than a right.” The Supreme Court went even further in that direction in 1983 (Regan v. Taxation with Representation), ruling 8-3 that tax exemption was indeed equivalent to a tax subsidy. Justice Rehnquist wrote:

“Both tax exemptions and tax deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income.”

That is not the ravings of a left-wing nut job, but the words of a Chief Justice of the Supreme Court who sat well right of center. Even conservative courts have ruled consistently that churches have no special privilege in property tax exemptions.

James Madison, Benjamin Franklin, James Garfield and Ulysses Grant all opposed the exemption. Grant said to Congress, “”I would also call your attention to the importance of correcting an evil that, if permitted to continue, will probably lead to great trouble in our land… it is the accumulation of vast amounts of untaxed church property.”

Extending that privilege can no longer be justified. (source)

Churches are big business, and we lose $300 billion to $500 billion in revenue every year by supporting them. Most church-attendees will tell you that their religion is more important to them than their cable TV, so lets have churchgoers tithe. Churches don’t pass the hat to support my superstitions nor my clubhouses, I shouldn’t have to pony up for theirs.


Well Doesn’t That Figure?

November 25, 2008

Adam Nossiter writes in the New York Times:

Southern counties that voted more heavily Republican this year than in 2004 tended to be poorer, less educated and whiter, a statistical analysis by The New York Times shows. Mr. Obama won in only 44 counties in the Appalachian belt, a stretch of 410 counties that runs from New York to Mississippi. Many of those counties, rural and isolated, have been less exposed to the diversity, educational achievement and economic progress experienced by more prosperous areas. (source)

I’m not sure what figures more, that someone figured out that the Republican base is poor white trash or that the New York Times is smugly telling us that.

Of course, what do you expect when you consider the RP’s slide into idiocrat rule? It began with Nixon who courted the south by courting white supremacists who were pissed off at the Democratic party for

A member of Sarah Palin's 2012 campaign staff?

A member of Sarah Palin's 2012 campaign staff?

supporting civil rights. The Republicans had a brief bright spot during Gerald Ford’s presidency, when intellect and reason ruled the Right for a brief two years. Then comes Reagan, who “instituted the Dull Wit as a Republican presidential virtue. He’s the one who dumbed us all down. George W. Bush has been on this same folksy Republican quest of the devaluation of intelligence, and now it’s apparently Sarah Palin’s turn. (source)”

If the Republican Party wants to continue to brand itself as the party of idiots, bigots, and the inbred, it has every right to do so. However, if it wants to survive, it is time to give itself an enema and shit out those who jumped ship during Nixon’s “southern strategy,” and who were attracted like ‘skeeters to a bug light when the Republicans decided that the best way to win was to court the abjectly stupid.

There is intelligence in the Republican party. The problem is, the party made a strategy out of pandering to the dumbest and the most objectionable filth that America has to offer. Sadly, once the cousin-fuckers got into the party, they took it over. As a registered Republican, I wish that their time was truly at an end. But, with 65% of registered Republicans clamoring for Sarah Palin to be the next nominee, I’ll be sending my campaign contributions to the Democrats (again).


More Voices Against Eric Holder

November 24, 2008

Eric Holder, not to be trusted with our civil liberties

Eric Holder, not to be trusted with our civil liberties

From the Republican Liberty Caucus

For years, Eric Holder has worked to degrade our civil liberties and weaken the Constitution and the values which on which our nation was founded. That Obama should have picked him for Attorney General is a very discouraging sign for those of us who had hoped to see liberal policies on social issues and more respect for human rights and individual liberty from this administration. It’s past time to see a liberalization of marijuana laws and the basic rights to free speech and self-defense should never be abridged. Holder is one of the bad guys. He’s not the kind of change people were looking for from this administration.

If you didn’t like Alberto Gonzales, John Ashcroft or Janet Reno and their oppressive and draconian policies, you ought to be really worried about Eric Holder, who seems to be their most gung-ho ideological successor. (source) (emphasis added)


Descansos and Atheists

November 24, 2008

The Galllup Independent reports on efforts by Atheist groups to stop the erection of roadside memorial crosses, known in the South West as Descansos.

Descansos, or roadside memorial crosses, have been in New Mexico since before the state became part of the union, but the traditional monuments have been threatened in Utah and nearby states are filing briefs in support of the tradition. (source)

In Utah, the Highway Patrol erects crosses in memory of fallen Highway Patrol officers. Atheists have challenged that practice as a violation of the Establishment Clause. New Mexicans are concerned that the Descansos tradition may come under similar fire.

I am as Atheist as they come, and I believe in a very firm wall of separation between church and state. However, I also think that Atheists can push too far sometimes.

As the Atheist Ethicist wrote:

It is quite permissible to use religious symbols when they represent the views of a given individual.

I see no reason why a Utah Highway Patrol officer can not be honored in his own way, even if taxpayer dollars are used. If the UHP mandated that Atheist officers be honored with a crucifix, that would be another story, but I have not seen that allegation.

Church and state must be kept separate. However, we don’t need that wall to be so high that it blots out the sunshine of free expression.

UPDATE: Rogier van Bakel blogged about this last year when it first arose. Is he my philosophical brother, or what?


Daddy, Why Are The Lunch-Lady’s Boobs So Big?

November 24, 2008

Louisa "Crystal Gunns" Tuck at the AVN Awards

Louisa 'Crystal Gunns' Tuck at the AVN Awards

Former adult entertainer Louisa C. Tuck – a.k.a. “Crystal Gunns” – is stirring up trouble in Vineland, N.J., where she currently works as a lunch-lady and playground monitor at D’Ippolito Elementary School.

Upon learning of Tuck’s background in the adult entertainment industry (where she appeared in such cinematic classics as Busty Dildo Lovers #2 and #5, and Brabusters), parents and school officials sought to have her fired.

Fortunately for Tuck, she’s a public employee. Unlike most people, who work for private employers, public employees have due process rights related to their employment. This is a lesser known function of the Fourteenth Amendment (or the Fifth Amendment for federal employees), which states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In other words, public employees have a property interest in their jobs, and public employers must have cause to terminate them. While one’s background as an adult entertainer is not entitled to any special protection, unless there is an explicit school board regulation prohibiting persons with such backgrounds from employment, the school district cannot terminate her on this basis (unless her adult entertainment work was contemporaneous with her public employment, in which case the school district might be able to invoke some kind of “conduct unbecoming” rationale for her termination).

Tuck’s case provides a good tip for adult entertainers looking for maintstream employment who are worried about how their backgrounds will effect their employment – ironically, government is the way to go.


Too Old To Strip? Canadian Dancers File Age Discrimination Suits

November 24, 2008

By Jessica Christensen, Employment Law Correspondent

Kimberlee Ouwroulis

Kimberlee Ouwroulis

Kimberlee Ouwroulis, age 44, and Barbara Sanders, age 45, are both Canadian exotic dancers who have filed complaints with the Ontario Human Rights Tribunal against their former employer, New Locomotion, for age discrimination.

According to Ouwroulis, she began working for the New Locomotion club in Mississauga, Ontario as an exotic dancer when she was 40 years-old. In June, her manager called her into his office and told her “your time is up” and that the club was going in a new direction, with younger dancers. (source) Sanders, who had only worked for the club for seven months, was told by the same manager that she was too “old and ugly” to continue as an exotic dancer. (source) Both women have since found jobs as dancers at other Toronto area clubs.

Barbara Sanders

Barbara Sanders

While the actual complaints filed with the Tribunal (Canada’s equivalent of the U.S. EEOC) have not yet been made public, news reports seem to suggest that both Ouwroulis and Sanders performed well as dancers, and were capable of performing their job duties. Reports also suggest that the reasons both women were fired – their ages – are not disputed. Assuming this is so, the only real question to be decided by the Tribunal is whether or not under Canadian anti-discrimination laws, it is permissible for a strip club to use age as a Bona Fide Occupational Qualiication (BFOQ).

Canadian law regarding age discrimination in employment is nearly identical to U.S. law (e.g., the Age Discrimination in Employment Act, or ADEA). In both countries, an employer may only use age as a factor in hiring, firing, promotions, etc. if age is a “BFOQ” – in other words, is reasonably necessary for the normal operation of the business. An easy example is the U.S. Constition’s requirement that a person is not eligible to be elected president or vice-president unless he or she is at least 35 years old. This is an easy example because the age related qualification is an objective one.

The ananysis is much more difficult where the qualification is a subjective one, such as “attractiveness.” For example, in Lindsay v. Prive Corp., 987 F.2d 324 (1993), the employer club terminated the plaintiff, who sought promotion from waitress to topless dancer, stating that she was “too old” and that she did not meet the club’s standard that all dancers must be “beautiful, grogeous and sophisticated.” In overturning the lower court’s grant of summary judgment in favor of the employer, the Fifth Circuit noted that while a court cannot second-guess the employer’s determination of what it means to be “beautiful, gorgeous and sophisticated,” it was for a jury to decide if the club’s assertion of this reason for the plaintiff’s termination was credible, or instead was pretext for age discrimination.

The Lindsay case highlights a particularly thorny issue for employers – especially those in the adult entertainment industry – because commercial concepts of “beauty” or “attractiveness” are intimately related to age. Case law has yet to develop any clear standards delineating where attractiveness standards veer into the territory of discrimination, but it’s not hard to imagine the arguments that can be made on either side. If the Canadian women were financially successful as dancers and can establish that they performed well financially in relation to other dancers, the club will have a difficult time establishing that they did not satisfy the club’s attractiveness standards. On the other hand, if a club markets itself as providing “young” dancers, the women may have difficulty overcoming the club’s internal decision about what “young” means.

One thing is clear – with an aging majority workforce, enterntainment employers can expect to face an increase in age discrimination challenges to practices that have until now been accepted as just how the business works.


Farting and Blowjobs

November 24, 2008

In Flori-duh, a 12 year old boy was placed under arrest for farting in class, and in Georgia, a woman is going to lose her home because she gave her boyfriend a blowjob three weeks before he turned 16 — when she was 17 years old. She was convicted of “sodomy” and had to register as a sex offender for life.


Westboro Baptist Church Member Challenges Nebraska Flag Desecration Law

November 24, 2008
Westboro Baptist Church members at a funeral for a U.S. soldier killed in Iraq

Westboro Baptist Church members at a funeral for a U.S. soldier killed in Iraq

Westboro Baptist Church is the group that comes to soldier funerals holding signs with messages like “God Hates Fags,” and blames the soldiers’ deaths on their god’s wrath for America’s “tolerance” of homosexuals. I truly do hate everything the Westboro Baptist Church intentionally stands for.

On the other hand, Westboro Baptist Church forces us to consider just what the First Amendment means. In that regard (and this tastes really bad), I am grateful for the Westboro Baptist Church and its antics.

In 2007, Shirley Phelps-Roper of Westboro Baptist protested at a Nebraska funeral for a fallen soldier.
“Investigators said that a part of the protest that included trampling on a flag violated state law.” (source) Phelps was arrested and charged with violating Nebraska Rev. Stat. § 28-928, which states:

(1) A person commits the offense of mutilating a flag if such person intentionally casts contempt or ridicule upon a flag by mutilating, defacing, defiling, burning, or trampling upon such flag.

(2) Flag as used in this section shall mean any flag, ensign, banner, standard, colors, or replica or representation thereof which is an official or commonly recognized symbol of the United States or the State of Nebraska.

(3) Mutilation of a flag is a Class III misdemeanor.

Phelps-Roper claims that it is within her First Amendment rights to trample the flag as a form of protest.

“Everyone knows from sea to shining sea, except Omaha and Sarpy County, you cannot stop people from using that flag as a form of expression,” Phelps-Roper said. (source)

Local Prosecutor, Nicole Hutten, disagreed.

“States are permitted to and have, for all time, regulated conduct based on health, safety and welfare of its citizens, which would include both targets of conduct and individuals engaging in conduct,” said prosecutor Nicole Hutten. “That’s simply what we have here.” (source)

Hutten is wrong. All this prosecution is likely to do is invalidate the Nebraska flag desecration statute.

In Texas v. Johnson, 491 U.S. 397 (1989) the Supreme Court invalidated a Texas statute that outlawed flag desecration.

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

We have not recognized an exception to this principle even where our flag has been involved. In Street v. New York, 394 U. S. 576 (1969), we held that a State may not criminally punish a person for uttering words critical of the flag. Rejecting the argument that the conviction could be sustained on the ground that Street had “failed to show the respect for our national symbol which may properly be demanded of every citizen,” we concluded that

“the constitutionally guaranteed ‘freedom to be intellectually . . . diverse or even contrary,’ and the ‘right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.” Texas v. Johnson, 491 U.S. 397, 414 (1989)

Shortly thereafter, in United States v. Eichman, 496 U.S. 310 (1990), the Supreme Court echoed Texas v. Johnson and invalidated a federal law that outlawed the destruction of the flag.

“Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.” Id. at 319.

Accordingly, while I truly do hate Shirley Phelps-Roper and every last member of the Westboro Baptist Church, my hate for them is outweighed by my love of the Constitution. I support them in their fight against the State of Nebraska.

If we want to silence the WBC, we can do it by winning in the marketplace of ideas. My beliefs are strong enough that they can stand forever in opposition to those of the WBC. I am disappointed that the State of Nebraska does not have the same degree of faith.

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Judge Warns Litigants Against Unprofessional Litigation Tactics

November 24, 2008

For those of you who are new to the profession, or those of you who are simply wondering why your job as an attorney is so stressful, David Maister offers some advice.

The toughest lawyer is not the one who is the most obnoxious. Clients will say they want a tough son of a gun to make somebody life’s miserable, a real bulldog, etc.

Don’t be that person. It’s been my 100% uniform experience that the bulldog only adds time, expense, stress and confusion to an otherwise inevitable result. Even clients can’t stand them after a couple of months. You want to be tough? Have the best preparation on the facts, the law and the strategy. Judges care only about those things, not a whit for bluster. Bullies are jerks, they wreck the profession for everyone, and you can beat them every time.

And finally and hands down most importantly, and please pass this on to your friends and your children, because it’s really important — Be nice and have fun. Just doing that makes life better for everybody, mostly you.

Fortunately, most of the lawyers I have met as opposing counsel already know this. I learned it very early in my career from a great guy in Fort Myers, and as a result, most of my best friends in the profession are former opposing attorneys. Unfortunately, I have encountered my fair share of douchebags in this profession as well. That’s fine, I think that despite Maister’s wisdom, one does need a punching bag to get out one’s aggression — douchebag lawyers serve that purpose for me.

In an ongoing SLAPP suit in Arizona, it seems that someone has been ignoring Maister’s advice and engaging in a little bit of litigation douchebaggery. See Best Western v. Doe, Case 2:06-cv-01537-DGC (D. Ariz.)

The Court assumed that the case would settle or be tried in a relatively simple proceeding. The Court again was wrong. On October 15, 2008, the parties filed 2,939 pages of material. These include a 125-page joint proposed final pretrial order, 31 motions in limine, and three longer motions that should have been motions in limine. In a remarkable feat of microscopic dissection, the parties sliced four modest claims into 51 separate factual disputes and 30 issues of law. Plaintiffs listed 52 potential witnesses and Defendants listed 69. Plaintiff listed 434 exhibits (with 175 pages of objections to defendants’ exhibits), and Defendants listed 320 exhibits (with 63 pages of objections to Plaintiff’s exhibits). The parties claim the need for 102 hours of trial time, which would require a five-week trial.
These filings are wasteful in the extreme.

The Court is not a forum for the parties to expend every possible dollar seeking to litigate every conceivable issue, no matter how insubstantial. The Court will no longer tolerate the excesses of this case. (Op. at 3-4, emphasis added)

HT: Eric Goldman


Joyous Court Climax for Madonna of Orgasm Church

November 24, 2008

Oh those Swedes! Madonna of Orgasm Church achieves a new level of state recognition in Sweden. (source)


It’s Not Me… It’s You

November 23, 2008

A blogger explains Bob Jones University’s absurd excuse that it was a nest of bigots because of “American Culture.” That blogger also whups Bob Jones University’s white-trash bigoted ass.

See Fundy School Blames Their Racism on You at Classically Liberal.


Let’s do it, man. Lock and load. Ain’t life a [expletive deleted]?

November 23, 2008

The Executioners Last Songs: Vol. 1

Ah, a bully pulpit! A rabble to rouse!

So I get to be the first non-lawyer Satyriconista? w00t!

Marc’s got me dead to rights… I spend a lot of time thinking about technology, privacy, the law, and bizzare things that keep normal, middle of the road food tubes awake at night.

Out in the meat world I make ROBOTS that migrate the content locked in antique magnetic media (videotapes,) into lossless digital files for large cultural archives, networks and libraries.

When I’m not working in the electromechanical/digital salt mines for my corporate masters I make theater: Charlie Victor Romeo.

Let’s kick it off with a bang…

The title of my introductory post is a quote taken from one of my favorite implementations of that Web 2.0 blog thing, the Texas Department of Criminal Justice: Executed Offenders page. I figure that G.W. Green looked toward his merge with the infinite with exactly the same enthusiasm as I have for scattering thought-provoking info-bombs and subsequent collateral damage.

If thinking about the death penalty seems like a bummer then I’d recommend singing along with the death penalty, or at least humming a few bars with The Pine Valley Cosmonauts’ great album The Executioner’s Last Songs: Volume 1. It’s a wonderful compilation of Bloodshot Records artists renewing classic American country death songs by The Louvin Brothers, Hank Williams, Charley Pride, Johnny Paycheck, Cole Porter, Merle Haggard, Stanley Brothers, Johnny Cash, and Bill Monroe all to support the Illinois Coalition To Abolish The Death Penalty.


Introducing a New Satyriconista

November 23, 2008

Bob Berger

Bob Berger

We have had a few Satyriconistas that didn’t quite work out. We keep some of their spare parts in a damp room in the basement of Petronius Labs. I left the back door ajar a few weeks ago, and some primordial ooze from the nearby Tacos! Tacos! Tacos! Tacos! franchise seeped into the Satyriconista recycling bin. All it took was someone dropping a toaster oven on the heap, plugged in of course, and life was created. Behold, new life was formed! After consulting with our human resources manager, we determined that we may as well keep him on the payroll.

Bob is the first non-lawyer Satyriconista. He formerly kept a blog, Trip Out Through The Windshield, where he managed to collect bizarre law and tech facts and stories. He managed to find such useful items as Shemp Meditation Tape and the mind molester before a famine in his home country caused him to cease publication. I’ve missed TOTTW ever since.

LS Human Resources Director, Mazinga

LS Human Resources Director, Mazinga


It just so happens that Bob and I have been friends since 1987. Back when I lived in the Phud House in Amherst, he lived in the equally infamous 55 Gray Street abode. The houses were allied in all matters except mannequins — which caused occasional bouts of warfare to erupt between the houses.

Please welcome him to the Legal Satyricon. I’m sure that you’ll enjoy his contributions as much as I’ve enjoyed his friendship.


Protect “Hate Speech” – Fight Hate

November 23, 2008

It doesn't matter how noble the goals are, censorship is evil.

It doesn't matter how noble you think the goal is.

A good friend of mine recently asked me whether “hate speech,” was protected by the First Amendment. When I explained that it was, he was a little bewildered. He was even more bewildered by my thought that it should be so protected.

In my elaboration, I invoked Oliver Wendell Holmes, who said:

We should be eternally vigilant against attempts to check the expression of opinions that we loathe…

If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought; not free thought for those who agree with us, but freedom for the thought that we hate.

Holmes is both an eloquent and accessible spokesman for free speech, however he was hardly the originator of this philosophy. Holmes’ intellectual predecessor was John Stuart Mill who summed up the inherent good of unfettered free expression in his timeless essay, On Liberty:

The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clear perception and livelier impression of the truth, produced by its collision with errors.

In the Kennebec Journal, Zachary Heiden, legal director of the Maine Civil Liberties Union, is the latest to channel J.S. Mill (in fact, he quotes the passage above) as he explains why we must protect hate speech, even while we simultaneously fight racism.

Heiden reports that a surge of hate speech followed in the wake of the Obama election. Nevertheless, Heiden cuts would-be censors off at the pass and explains. Heiden explains that he supports the right of Nazis and the Klan to speak not only in spite of his commitment to equality, but because of his commitment to it. Even hate speech “advances the cause of civil rights.”

The First Amendment tells us… that the government cannot and will not protect us from evil thoughts or malicious speech.

Instead, we are obligated as citizens to criticize racism, sexism, xenophobia, homophobia and any other ideology we wish to discredit. Only by meeting disagreeable speech head-on with more speech can we hope to undermine the power of hatred.

This is easy enough for contentious-yet-civil speech, but the pressure comes — as it has in recent weeks — when the speech is unpleasant, distasteful or hateful.

Freedom of expression helped bring us to a day when a black man could be elected president of the United States. The 1963 March on Washington remains the iconic event of the civil rights movement. The Selma-to-Montgomery marches in 1965 drew national attention to police violence and motivated Congress to pass the Voting Rights Act. Marches, rallies, protests and speeches — all core First Amendment activities — helped bring us closer to the world we want.

In contrast, government censorship has consistently undermined freedom. (source)

However, Heiden doesn’t let us off easily. Heiden doesn’t say that hate speech should go unchecked. While would-be censors would lazily ask the government to step in and curtail racist, sexist, or homophobic speech, Heiden calls on those who oppose hate speech to practice advanced citizenship — to add our contribution to the marketplace of ideas.

That means every individual who was disturbed by the racism directed at Obama is obligated to speak up about it: attend rallies, write letters to the editor, hang signs in your own place of business expressing hope for full racial equality.

It is not the government’s job to combat disagreeable speech, it is ours. It is yours. Take it seriously. (source)


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