“Vajazzle” is exactly what it sounds like

By J. DeVoy

Ferdinand Bardamu of In Mala Fide is launching an internet campaign to lay claim on a new word: Vajazzle.

Vajazzle \və-ˈja-zəl\ (verb):  the process of adorning a vagina with shiny crystals. 

So, a cross of the iconic 1970s direct order product, the BeDazzler….

…and a female reproductive organ. Got it.

Don’t shoot the messengers, either.  Blame Jennifer Love Hewitt, who brought the subject up in this interview with George Lopez.

ANTI SLAPP MONTH: Blogger gets SLAPPed for passing on government warnings

By J. DeVoy

At Elliott.org, the story of a travel insurance company’s SLAPP suit against the blog’s writer, Christopher Elliott, rises from the murk and into daylight.  In March of 2009, Elliott reported that Florida regulators had warned three travel insurance agencies, all of which were offering policies from bankrupt Prime Travel Protection Services, that their conduct may violate state law.

Elliott quoted statements made by a spokeswoman for Florida’s Department of Financial Services, indicating the state ordered the insurance agencies to stop selling unauthorized policies, and that further activity was pending.  This was clarified in a subsequent press release from the state of Florida:

As a result of ongoing investigations into complaints about the sale of unauthorized travel insurance in Florida, Chief Financial Officer Alex Sink has notified three travel agencies that she intends to order them to stop selling insurance.

This clarification was immediately noted on Elliott’s blog.

This would seem like important, newsworthy information to publicize — unless you’re Palm Coast Travel.  While some businesses would have tried to resolve the issue as quickly and quietly as possible, Palm Coast Travel brought suit against one of its customers, Peter Lay, and Elliott, filing this complaint.

Elliot provided this excerpt of the complaint on his blog:

Elliott included among his reporting recent regulatory investigations of customer complaints regarding Prime Travel Protection and Jerry Watson. Elliott’s reporting included publication of false information regarding Palm Coast, which has and will continue to damage Palm Coast’s business unless it is properly remedied.

Among the statements Elliott published were falsehoods that stated that Palm Coast had been ordered to cease doing business by the State of Florida. No such order exists, and therefore that report was false.

Further, Elliott, when purporting to “clarify” his deliberately false statement regarding the State of Florida’s investigation of travel insurance, did not fully remedy the false impression he fostered regarding Palm Coast’s role.

Elliott’s falsehoods were directed at, among other aspects of Palm Coast’s business, its reputation in the trade or industry of travel. Moreover, Elliott did not properly correct, clarify, or retract his falsehoods, despite proper notice.

In developing situations, facts get garbled and details are lost.  On Setpember 11, 2001, there were repeated claims that a bomb had gone off at the State Department that later turned out to be false.  Here, Elliott reported the information he had, when he had it, and clarified the State’s statements once more facts were available.

These kinds of actions threaten to shoot the messenger, and shoot him or her dead.  Where an apology or clarification would have been sufficient, a lawsuit has been filed, and with the hope that Elliott will never engage in this kind of speech again.

The Citizen Participation Act, a bill that will introduce new punishments against these kinds of SLAPP cases, reward defendants who are wrongly sued, and ensure that only constitutionally protected speech is preserved, has been introduced to Congress. Send a letter to your representative supporting this bill today.

ANTI SLAPP MONTH: Write your Congressman NOW in support of Federal Anti-SLAPP legisation

By J. DeVoy

As Marc noted, Rep. Steve Cohen (D-TN) has introduced The Citizen Participation Act, the first Federal anti-SLAPP legislation, to Congress.

Like any bill, this one needs your help.  Yes, you, the internet user whose free speech, financial security and family’s well being are at stake if you find yourself in the crosshairs of such a lawsuit.  We don’t do a lot of political grandstanding at The Legal Satyricon, but dammit if we won’t come together like one big dysfunctional family to support the most important free speech legislation to be proposed in a decade.

Write your congressman.  Print this letter, add your name, and mail it. (A Microsoft Word version is also available if you want to start with ours, but customize it.)  

Unsure of whom to write? Find your congressman here.  It doesn’t matter if you can’t stand and never voted for him or her: This bi-partisan message needs to reach everyone with a vote.

Federal Anti-SLAPP Legislation Introduced — Hail Rep. Steve Cohen (D-TN)

Congressman Steve Cohen, D-TN is our First Amendment Bad Ass of the week.

Mr. Cohen introduced The Citizen Participation Act, a federal anti-slapp bill. The bill describes its purpose as follows:

To protect first amendment rights of petition and free speech by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called ‘‘SLAPPs’’, and for other purposes.

It is about time.

SLAPP suits are all-too common and are a scourge on our legal landscape. Personally, they have been good for me, as I earn a significant income by defending these kinds of suits, but as much as I love money, I love free speech more (and I’m sure that I could sell that time elsewhere). A SLAPP suit is a “Strategic Lawsuit Against Public Participation.” In other words, it is a lawsuit that some hosebag files against a critic — not because he hopes to win anything, but because the mere filing of the suit is punishment enough for the critic. Lawsuits are expensive, and when a rich douchebag has plenty of money to spend on attorneys’s fees, he can afford to sue a couple of critics, thus scaring the bejesus out of anyone else who might criticize him.

The Public Participation Project had this to say about SLAPPS:

Regardless of who is speaking and who is suing, everyone is losing when SLAPPs are allowed to continue. These meritless lawsuits clog the courts, waste resources and contribute to a general culture of litigousness. Instead of answering speech with speech, SLAPP filers answer speech with subpoenas and spurious claims.

SLAPPs frequently end in settlement, conditioned on silence, apology or retraction, so important ideas are excised from the debate, and critical information – about health, safety, economic security, civil rights and liberties, and government abuse – is withheld from the public. Would-be participants in public life see the devastating effects of lawsuits – on life savings, employment, reputation and even staying insured – and think twice before speaking out.

Judge Nicholas Colabella, Jr., famously said of SLAPPs that a greater threat to First Amendment rights can scarcely be imagined. SLAPPs chip away at the will and ability to speak out, person by person, group by group, issue by issue. James Madison cautioned that “there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations,” and his words ring true in the SLAPP context. (source)

About half of the states have some form of legislation against this, but only California and Oregon have anti-SLAPP statutes that are worth a damn. Flori-duh’s is so watered down that it may as well only apply when a Unicorn shits on the Defendant’s lawn. However, in California and Oregon, if a Plaintiff files a lawsuit that implicates the Defendant’s First Amendment rights, the Defendant can file a “special motion to strike.” Then, the Plaintiff will need to show that his suit is not just a baseless and harassing claim. If the Plaintiff can’t do that, then the case is dismissed and the Plaintiff has to pay the Defendant’s attorneys fees.

Congressman Cohen’s bill is very similar to the California law (Cal. Code Civ. Proc. 425.16), and provides the right kind of remedies. One would think that the Republicans would line up behind this — as it provides much-needed “tort reform.” The Democrats… well, there was a time when the Democratic party seemed like the party that favored free speech. I am starting to doubt that, but Mr. Cohen should be able to marshall some of his Democratic colleagues to support this bill.

I can not stress how important a bill like this is. If you can, please write a letter to your Representative urging their support for HR 4364.

Copy this post, if you like. You don’t even need to attribute, if you don’t want to. (I hereby release the copyright in this post to the public domain). Distribute the news far and wide. If you ever use your First Amendment rights, then this bill matters to you.

And… to really make the other congressmen stand up and take notice, if you can afford to, send Congressman Cohen a campaign contribution with a note stating that you only sent it because of his sponsorship of this bill. I sent him a hundred bucks today.

Also… if you want help writing your congressman, click here.

Hat Tip to Eric Goldman

Genetics, IQ and the judicial double standard

By J. DeVoy

Emergent research is raising a serious question about the heritability of IQ, suggesting that most of it is, in fact, genetic.  High IQ is associated with the prevalence of certain SNPs – groupings of nucleotides in an individual’s genetic code – which cannot be caused by normal life functions like exercise, eating a healthy diet, or even studying really hard.  Other studies have shown that in-group IQ remains relatively constant over life, indicating that things like education and reading can’t enhance IQ, but merely reflect one’s innate genetic gifts.

Courts, however, have been facing these realities long before now.  In Atkins v. Virginia, the Supreme Court held that it was unconstitutional to execute someone with a severe mental disability — a condition inherently reflecting low IQ.  Similarly, in Griggs v. Duke Power Co., the Supreme Court banned the power company’s use of IQ tests in assigning employees to certain tasks and positions.  Turning to anecdote, I witnessed a sentencing hearing while volunteering for my home district’s Federal Public Defender where the AFPD asked for leniency because the defendant, pleading guilty to child pornography charges, had a shockingly low IQ (below 80).

IQ is used as a one-way street: It excuse the actions of people who cannot function in society without committing crime and harming others, and that is all.  Pointing out low IQ as a reason for individual failure, though, is career suicide – the concept may as well not even exist in those circumstances.  If IQ shows that someone may be smarter than his or her peers, then IQ is just a “social construct”*, as personal success can only be attributed to that ugly “p” word, “privilege.”

While extreme cases like Atkins may warrant heightened protection of individual rights – it is the death penalty, after all – low IQ, like ugliness, is not a protected condition.  Yet, in cases where defendants are incapable of apprehending the wrong of their actions, and even less likely to learn from them, society’s urge to punish them is almost nil.  For instance, an Italian court reduced the sentence of a man who showed he was genetically prone to crime.  Is this bizarro world?  If violence is genetically innate for someone, it makes sense to detain them even longer, probably even forever. Rehabilitation sure as hell isn’t going to happen.

Inasmuch as it is impossible to change one’s genes, it is impossible to expect these people to change hard-wired genetic traits.  Low IQ is not an excuse for criminal conduct, but instead an excellent predictor of it.

While it would be inhuman to punish the low IQ simply for having low IQ, courts and society need to embrace a consistent approach.  Using IQ as an excuse when convenient, while decrying it as a social ill at all other times, is unworkable.  When IQ is a factor in an individual’s criminal conduct, courts and counsel should realize that the likelihood of rehabilitation generally is low.  Though the defendant may not reoffend, that consideration will arise from how strongly his or her law-abiding habits are ingrained as constant behaviors, something ascertainable only on a case-by-case basis.  This consideration does not make low-IQ individuals bad people, and may even make the incarceration experience more sensitive to their unique situation.  This point cannot be reached, though, until courts acknowledge the immutable, unchangeable nature of IQ, and stop allowing it to exist merely as an excuse for criminal conduct.

*g, the general factor of intelligence, is a composite of all other forms of intelligence and a mathematical construct.

Watch Randazza LIVE in Oral Arguments

In ISC v. Marshall before the Florida Supreme Court, starting at approximately 11:20am (EST) here.

(Court may be running 15-20 minutes behind schedule)

ISC v. Marshall Liveblog

By Christopher Harbin

Starting at 11am EST, we will be live blogging the oral augments in ISC v. Marshall. WordPress doesn’t support iframes (the bastards), so you’ll have to watch it in a popup.

Click Here

Randazza Oral Argument Drinking Game

by Jay DeVoy

Tomorrow, our fearless leader Marc Randazza has something to say to the Florida Supreme Court about a little topic known as free speech.  It’s an important case addressing the very real threat of jurisdictional chill on all internet users. If you post on the internet, this case is about you. The decision in this case has direct implications on where you may have to defend a lawsuit arising from your internet activities.

The fifty-cent skinny is this:  Plaintiff Internet Solutions, a Nevada Corporation, sued Washington resident Tabatha Marshall in Florida for defamation. Marshall’s alleged defamation stems from posts about Internet Solutions business practices.  The Middle District of Florida dismissed the case for lack of personal jurisdiction over Marshall.  Internet Solutions appealed to the Eleventh Circuit.  The Eleventh Circuit then a certified the question to the Florida Supreme Court on whether Marshall’s alleged activities were within the scope of Florida’s long-arm statute. For more comprehensive coverage,  check out the Citizen Media Law Project’s Page.

In honor of this momentous occasion, we’re breaking our own flimsy “no drinking before noon” rule.  For loyal Satyricon readers, you can play along at home in real time or later, by watching the rebroadcast.  Like any State of the Union or other public address drinking game, the rules are simple: Drink as much as we tell you, when we tell you to do it.

1 Drink

“Internets”

“Unprecedented”

“Novel”

“Pennoyer v. Neff“

“International Shoe“

“Long-arm”

“Great,” when in reference to the state of Florida.

“Precedent”

“Judge,” when addressing the justices, which is a no-no.

“Due process”

“Counsel(or)”

“Chill(ing)”

“Factors”

“Constitution(al)”

“Unconstitutional”

“[Audible sigh]“

“Minimum Contacts”

2 Drinks

“Slippery slope”

“Tubes”

“Interwebs”

“Moron”

“Equit(ies/able)”

“Policy”

“Over 9,000″

“Founders”

“Opponent”

“Illogical”

“Pavlovich“

“Sliding scale”

“Jeremiad”

“Shame”

“Fair Play”

“Substantial Justice”

3 Drinks

“Webbernets”

“Where do we draw the line?”

“Ass hat”

“Unconscionable”

“Blumpkin”

“Desecrate”

“Retarded“

“Unintended consequences”

“Suspicio(n/us)”

Waterfall (don’t stop until the Florida Supreme Court does)

“Fucking asshole”

“TTT“

“America’s wang,” again in reference to the state of Florida.

“Goose Stepping”

“Don’t you know who I am?  I’m Marc Motherfucking Randazza!”

“Goddamn-dipshit-Rodriguez-gypsy-dildo-punks. I’ll get your ass. “

Awesome Toy or Awesomest Toy?

by Christopher Harbin

When I was a kid, the most dangerous toy I had was lawn darts.  I lament that I never got a portable atomic energy lab.  :( 

Germany’s highest court overturns privacy-invading anti-terror law

By J. DeVoy

Today, Germany’s highest court overturned a law mandating the retention of data from e-mails and phone calls, finding it a “grave intrusion” on personal liberties.  This is an interesting demarcation of what is considered private information in that nation, as its courts previously held that individuals’ IP addresses are not personal information and can be stored without consequence.

From the article:

The law had ordered that all data — except content — from phone calls and e-mail exchanges be retained for six months for possible use by criminal authorities, who could probe who contacted whom, from where and for how long.

“The disputed instructions neither provided a sufficient level of data security, nor sufficiently limited the possible uses of the data,” the court said, adding that “such retention represents an especially grave intrusion.”

The court said because citizens did not notice the data was being retained it caused “a vague and threatening sense of being watched.”

There second paragraph’s buried lede is that this policy could pass muster if it offered greater data security and a narrower range of the data’s potential uses.  In reality, the court could set those standards so high that they could never be met.  But, it seems the court isn’t permanently closing the door on such regulations.

Changes ordered by the court included granting access to the data only by court order and only in the event of “concrete and imminent danger.” The court further insisted the information be stored in the private sector so it was not concentrated in one spot.

Sounds reasonable.  Generally, parties need a warrant or subpoena to access IP, e-mail and phone records in the U.S. as well.  The standard isn’t as high as “concrete and imminent danger,” but this isn’t a perfect comparison, either.  As for storing the data in the private sector, this seems like more of Germany’s epic free market trolling that began with electing Angela Merkel.

And, of course, there’s a historical angle:

Germans, in particular, are sensitive to privacy issues, based on their experiences under the Nazis as well as the former East Germany’s Communist dictatorships, where information on individuals was collected and abused by the state.

Whatever the reason, it’s good to see Germany stand up to the E.U.  When the union’s currency collapse comes to pass and its open-borders immigration policies prove to be unsustainable (however warm and fuzzy they make people feel), Germany will be one of the few nations left standing.

SUNY-Buffalo Law administrator threatens students with character & fitness complaints

By J. DeVoy

In a recent e-mail sent to graduating 3Ls at SUNY-Buffalo Law School, the school’s administration alluded to filing character and fitness complaints against students who are savvy with their graduation tickets. (Emphasis and editor’s notes added.)

From: “Saran, Melinda” saran@buffalo.edu
To: [UB3L]@buffalo.edu
Sent: Thu 02/25/10  9:56 AM
Subject: Fwd: Commencement cap & gown order deadline is March 2nd!

This message is being sent to all 3L and LLM students

Caps & Gowns

   The deadline for ordering you [sic] tam, gown and hood (for rental) is next Wednesday, March 3, 2010.  Orders are taken at the University Bookstore.  The Bookstore will not guarantee tam hats on any orders after March 2nd.   You may pickup [sic] your caps and gowns beginning on April 20th.

Tickets

   Commencement tickets will be limited to six (6) tickets per graduating student. With the number of tickets and the gradates [sic], we fill the Mainstage Theater.  NO EXTRA TICKETS ARE AVAILABLE!!!

   If you need more than six tickets you can also ask other students who are not attending or do not need all seven tickets.  We will not have a wait list or any extra tickers.  No ‘scalping’ or counterfeit tickets will be allowed.  Such behavior will be reportable to the Character and Fitness committee.

   Tickets will not be distributed until April.  Each graduating student will have an envelopewith [sic] her or his tickets inside.  We will let you know when the tickets have arrived and are ready for distribution.

A tacit threat by a velvet-gloved iron fist?  Note the e-mail’s Reaganesque use of passive voice about “reportable” behavior.

Sanctions for counterfeiting tickets are understandable, as it’s obviously deceitful conduct.  Rolling it in with scalping, though, becomes more problematic.  New York state law specifically allows the resale of tickets for whatever value the market will bear.  Ironically, in one of the few arenas where New York promotes a free market, the state’s lone public law school wants to inhibit it.

Times are hard for law students everywhere.  Here, though, the law school that has taken students’ money for three years is threatening to subterfuge their careers for engaging in a legal activity.  As if the legal market and broader economy of upstate New York isn’t bad enough, graduating UB 3Ls have the pendulum of a character and fitness complaint swinging above them for trying to monetize a valuable commodity — lawfully!

One would hope that students are civil with one another regarding something as important as graduation tickets.  But, considering how current 3Ls are wont to fight like sharks over the skeletal whale carcass of economic opportunity, anything is possible.  Nevertheless, this punishment does not fit the crime; it’s unseemly for a school to threaten its own students’ careers like this.