What the First Amendment is all about

Judge William Downes of the U.S. District Court for the District of Wyoming ordered the University of Wyoming allow William Ayers speak on its campus with this explanation:

“This court is of age to remember the Weather Underground. When his group was bombing the U.S. Capitol in 1971, I was serving in the uniform of my country,” Downes said. “Even to this day, when I hear that name, I can scarcely swallow the bile of my contempt for it. But Mr. Ayers is a citizen of the United States who wishes to speak, and he need not offer any more justification than that.” (source)

Hat Tip: Popehat

Belgium Bans Burkhas

Belgium has banned the burkha. (source) One might think that this is an intrusion on civil liberties — and I suppose that one could credibly argue that it is. You ought to be able to wear a burkha if you want to.

On the other hand, I question how many women wear burkhas voluntarily. I bet that sub-group of burkha-wearers is somewhere around 12 worldwide.

When you are up against one of the abrahamic cults (christianity, judaism, islam) sometimes it takes radical moves to push for progress. In Turkey, back in the early 1900s, Mustafa Kemal Ataturk helped make the burkha a thing of the past by decreeing that all prostitutes must wear them, and simultaneously banning the headscarf for women. Accordingly, the burkha became the uniform of the whore, and law-abiding women didn’t wear them.

Of course, pushing against a cult is difficult, and to this day Turkish women disobey the law – preferring to do that over the immodesty of showing their hair in public.

I don’t really see a whole lot of a problem with a woman voluntarily wearing a headscarf. But, the burkha is just a disgusting display of misogyny. On the other hand, if she’s a nutbag that wants to wear one, then what business is it of the state to intervene? Is it proper for the state to make the same judgment I make — that she can’t possibly be voluntarily wearing it, and thus ban burkhas to “liberate” women who might not be able to liberate themselves?

Nostalgia rush

By J. DeVoy

If you’ve ever wondered how much easier it would be to beat Super Mario Brothers with characters from other Nintendo classics, you’re not alone — and now you can indulge your fantasy.

In Super Mario Crossover, you can play through Super Mario Brothers as Mario, Link (Legend of Zelda), Bill R. (Contra, pictured above), Simon Belmont (Castlevania, pictured below), Mega Man, and Samus Aran (Metroid).

Surprisingly, some aspects of Super Mario Brothers remain much easier with Mario, especially underwater levels.  As a lifelong Castlevania devotee (yes, those are pajamas), I’m surprised and disappointed by how difficult it is to make Simon Belmont work well in the game.  But the strong projectile attacks of Mega Man and Bill R. make up for it, and are really freaking cool.

“We would prefer a caucasian waiter, mkay?”

If this is true, it’s pretty nasty.

Rodney Morgan, and his family (visitors from the U.K.), recently stayed at the Ritz-Carlton in Naples, Floriduh. According to the Naples News, “they made it clear they didn’t want to be served by a black waiter or one with a foreign accent.” (source)

Okay, there’s WTF #1.

I’ve asked for strange things at hotels. Late checkout, change my sheets at 3 AM because I puked on them in my sleep, two bottles of tequila, and I don’t care how far you need to drive to get them, nor what it costs, because God Damn It, it’s an emergency.

I can not, however, ever recall checking in to a hotel and even thinking about who might be serving my food.

So ready for WTF #2?

The Ritz-Carlton supposedly entered the request into the hotel’s computers and honored it by informing Wadner Tranchant, a Haitian immigrant and waiter at the hotel, that he could not serve the Morgans.

WTF?

Tranchant is suing the Ritz in Federal Court. His lawyers claim that they have a copy of the computer entry, witnesses who will support his story, and that will testify that this is not the first time that the Ritz honored a request of this type. (source)

The Ritz issued an apology to Mr. Tranchant:

“We at the Ritz-Carlton deeply regret the manner in which the recent incident was handled while the guests were on property and the effect on Mr. Tranchant, a valued and long-term employee,” said the apology published Wednesday in USA Today. “…The Ritz-Carlton does not tolerate racially offensive comments or discriminatory treatment of our employees, and our data systems are not to be used to allow discriminatory requests by guests.” (source)

Apparently, the Ritz-Carlton has now also banned Rodney Morgan from ever staying at another Ritz-Carlton. (source)

Charlie Crist Leaves Republican Party

It looks like Charlie Crist is going to run as an independent. (source). Given that Charlie is a relatively level-headed and mentally stable guy, it seems like a rational move to leave a party that has been taken over by bat-shit-crazy-Palinite teabaggers, which is the constituency that is lining up to fellate Marco Rubio right now.

From the “Thank God Congress Has Nothing Better to Do” Desk: Four U.S. Senators Write Stern Letter to Facebook

by Jason Fischer

Plenty of whiny types are up in arms over Facebook’s recent “personalization” improvements, which automatically link fan pages for companies, bands, television shows, etc. to users’ profiles, based on their self-proclaimed favorites.  Also, when a user specifies their favorite music, movies, books, and the like, that information may now be accessed more readily by parties not in that users’ friend list.

Critics complain that this gives unwanted access to evil corporations, who will use gathered information to exploit their consumers.  This week four U.S. Senators, including asshat Al Franken, have put their displeasure with the social networking giant onto paper and mailed it to Facebook founder Mark Zuckerberg.

No doubt these idiots are only responding to angry phone calls from their constituents, but how many votes would they really lose by explaining that this really isn’t the kind of thing the federal government should be getting involved in?  Not everything that someone can gripe about should be the subject of a congressional investigation.  If you don’t like the way Facebook treats its users, you don’t have to be a member.

Legal blogger Ann Althouse gets skewered

By J. DeVoy, Madison’s second most famous blogger

In the land of big egos and petty catfights known as the legal blogosphere, Ann Althouse looms large.  Beginning her blog in 2004, when the internet was a barren wasteland devoid of YouTube and easy file embedding, Althouse’s commentary on law, politics and life now garners more than 500,000 viewers per month.

The x-factor that put her in this position, a certain jai ne sais quis, irks some people, and one of them finally called her out on it.

UPDATE:  This is far from the first time Althouse has come under fire from others.  Last summer, commenters at The Volokh conspiracy raked her over the coals for giving this exam question (reprinted in part):

On May 1, having received notice that Justice Souter will retire, President Obama said:

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

Let’s assume that the President — who used to teach constitutional law — has arrived at this preference through studying the cases that we studied in this course. [...]
Where, in the cases that we studied, has it mattered whether a Justice followed abstract theories and dry text from case books instead of the things the President wants from a Supreme Court Justice? Choose specific opinions (majority, concurring, or dissenting) … that illustrate the two types of judicial reasoning that the President contrasted….

[L]ooking at the opinions you have written about, take a position on the importance of the quality of empathy in a Supreme Court Justice.

I took that exam about a year ago, and there was a 2,000-word length limit.  I still remember sitting outside at Cosi after the exam, talking with my classmates, and will let the readers determine the substance of that conversation.  I beat the median, so thank FSM for small miracles.

As Althouse’s student, I was impressed.  Her ability to talk about intersecting doctrines and issues in Constitutional law without the aid of notes was impressive, and becoming of someone who graduated at the top of her class from NYU Law and clerked for the Southern District of New York.  She did have a few quirks – one time she left the classroom with her clip-on microphone live and still attached to her – but it was a good experience.  I have no idea where the meme that she’s a right-winger arose from, other than her own proclamation, because it doesn’t seem to be true.

Massachusetts School District Says “Why Bother?” To a Stupid Clothing Rule

Here’s something you would never see in Flori-duh.

A Central Massachusetts school committee considered a proposal that would ban the display of cleavage, bare midriffs, and exposed underwear — and shot it down. (source)

Wait… Jesus Christ on a crutch! They want our kids to be PORNOGRAFIED???

No, that’s not it at all.

The Tantasqua School Committee shot down a proposal to ban cleavage along with bare midriffs and exposed underwear, which are already forbidden at the Tantasqua Regional Junior High School handbook, said Principal Jennifer Lundwall.

“We are pretty strict here with the dress code in general and don’t really have a huge dress code problem,” said Lundwall. “We don’t have something that’s out of control.” (source)

You see that? The School Committee sat down with a proposal that was sure to raise some heightened emotions, decided that it wasn’t an out of control problem, and refrained from passing new, stupid, rules.

In the words of Guinness Beer, brilliant!

“Show Me Your Papers!” – Not new law…

by: Jonathon C.A. Blevins

The sky is not falling…

The new AZ law requiring law enforcement to inquire as to the legal status of its population is a hot button issue. The reason the issue is so hot is that the law is targeted at illegal immigrants, undocumented workers, aliens, or whatever politically correct noun is currently popular. I will concede the facts surrounding the passage of the law are unpalatable. However, the law is probably consitutional. Further, the request for “your papers” is similar to a request for “your driver’s license or ID.” (The analysis assumes the law will require LEOs to inquire to EVERYONE about legal status).

I cannot postulate on the status of AZ law. But, I am familiar with the law of the State of Florida. Thus, I will provide analysis of the AZ law as if it were passed by the FL legislature. Hopefully, the readers can ascertain that the below is an analysis of the law and not a pro/con law enforcement argument. Regardless of your feeling regarding LEOs, the status of the law is, well, the status of the law.

Law enforcement is allowed to inquire into the legal status of the population provided LEOs follow certain procedures. If LEOs do not  follow the procedures, the remedy is suppression of evidence and/or release of detainee.

So long as LEOs do not use the legal status inquiry as a basis for any of the following, the Fourth Amendment will not be triggered. If the sole basis for detention or arrest is to inquire about legal status, it is clear that all evidence from the detention would be suppressed.

Florida recognizes three levels of police-citizen encounters or “lawful police contact”:

1. Consensual encounter

2. Investigatory stop / detention

3. Arrest

Popple v. State, 626 So.2d 185, 186 (Fla. 1993).

In a consensual encounter LEO is allowed to approach any individual and inquire about any topic, including proof of identification. The test for a consensual encounter is whether a reasonable person would think he/she was free to leave. Whether a person is free to leave is a test of factors: the number of officers, tone/language used by LEO, display of weapon, blocked path, lights/sirens, whether the officer ordered anything (not an exclusive list). During a consensual encounter, LEO is allowed to ask for ID/DL/Proof of legal status.

The LEO is allowed to approach an individual at any location and ask any question. The responses to questions are not subject to Miranda and the answers may be used against the individual. Further, the LEO can search the individual with consent. The key to a consensual encounter is the individual sets the parameters for the encounter. The individual may refuse to answer any question posed by the LEO. The individual may walk away from the LEO and refuse to produce an ID. During a consensual encounter, the LEO is at the mercy of the individual’s consent.

An investigatory detention/traffic stop (aka Terry stop)  the parameters are narrower. The encounters must be supported by reasonable, articulable facts that create a reasonable suspicion the individual has committed, is committing or is about to commit a crime. The totality of the circumstances will determine whether the LEO acted reasonably in detaining an individual.

If the LEO is able to articulate facts that lead to a reasonable detention of the individual, LEO can ask for ID. However, unlike a consensual encounter, the individual does not have the right to refuse. Thus, the individual will be compelled to answer investigatory questions. The questions are not always subject to Miranda. In fact, in a DUI case, the LEO is explicitly allowed to ask questions about the charge without reading Miranda.

LEO are permitted to detain a suspect as long as necessary to effectuate the purpose of the stop/detention.  It is a reasonableness test. So, if the LEO has a reasonable suspicion of criminal activity, the individual will be reasonably detained and compelled to produce ID/DL/Proof of legal status.

The arrest is the most obvious type of LEO-citizen encounter. If the individual is formally arrested and questioned, the individual must be provided Miranda warnings. The individual is not free to leave. The LEO may formally arrest someone if probable cause is established. Probable cause lies somewhere between reasonable suspicion and proof beyond a reasonable doubt that a crime was committed, is being committed, or is about to be committed. Even if the person invokes Miranda, the individual will be compelled to produce ID/DL/Proof of legal status…at the time of arrest or at booking.

The analysis above is not mind blowing. In fact, the analysis is basic. The fact that the analysis is so basic is what astounds me about the outcry against the AZ law. If LEO follow the above parameters, no Fourth Amendment violation will occur. The request for production of ID/DL/Proof of legal status will not run afoul of  precedent or the basic reading of the Fourth Amendment.

As for FL, in order to get a DL, you must produce proof of identify, social security and residence .    Thus, if the LEO asks for ID, you are producing proof of citizenship…guess what? No Fourth Amendment violation!

If LEO does not follow the above parameters and the specific caselaw of the jurisdiction, the remedy is suppression of evidence and/or release of detainee. The “show your papers” hysteria assumes we live in a country run by law enforcement. For the law to truly be abused, the SAO, defense bar and judiciary would have to be in collusion.

Law enforcement officers are not the final decision makers regarding arrest and detention. Yes, LEO make the temporary decision whether to arrest an individual. Yes, LEO can ruin your day. Yes, there are abusive LEOs in the world…the opposite is also true. 

However, a dutiful and responsible State Attorney (or similar state prosecuting agency) will analyze the case for 1) likelihood of conviction and 2) lack of potential suppression issues. If either of those two elements are not met, the ASA may want to think hard about whether to file the case. If the ASA is not diligent, it is the defense attorney’s responsibility to  file appropriate motions. Then it is the judge’s job to decide whether the law was followed. The process is not perfect and the process is slow…but it is our process.

The above process is afforded to EVERY case in the Union. The system will provide redress for abusive policies and abusive laws. The same process will be provided to every person required to produce ID/DL/Proof of legal status to LEO. The idea that the “show me your papers” law will disassemble the process is without merit.

The “scary” issue of being forced to carry your papers everywhere is ridiculous. WE ALREADY CARRY OUR PAPERS. You are required to carry your papers to drive, to vote, to write a check, to set up cable, etc. We carry an ID everywhere…what is new?

This is much ado about nothing…at least much ado about nothing new…

Thinspiration: Still legal in the U.S.!

By J. DeVoy

While not all speech protected by the First Amendment is palatable, it is valuable.  Almost two years ago, France tried to stifle the spread of information about anorexia and bulimia.  The bill proposed to the country’s legislature provided steep penalties for promoting these diet and lifestyle choices.

[The bill] would take aim at any means of mass communication – magazines, blogs, Web sites – that promote eating disorders like anorexia or bulimia with punishments of up to three years in prison and €45,000, or $71,000 fines. (Source.)

Depending on the bill’s language, these terms could be dangerously vague.  Only a few blogs are well-read enough to rival traditional media and truly be mass communication as most people would understand it.  Moreover, the definition of how one “promotes” anorexia or bulimia is problematic.  Of the sites I’ve seen, most of the promotion is done in terms of life experiences, as women (and some men) talk about their increased confidence and desirability as a consequence of being thinner.  One of the main avenues of promotion is photography, often through websites dedicated to pictures of thin people; these images, sometimes lumped together as montages on YouTube, are known as Thinspiration.

There’s no question that anorexia and bulimia carry health risks.  So do tobacco and alcohol, though, both of which are legal and heavily advertised.  Being thin is an element in the bundle of physically attractive traits both men and women can possess.  A Dateline NBC story found that attractive people really are treated better; Above The Law‘s David Lat argued that, on average, attractive people have better legal careers — and readers agreed, at least according to the post’s unscientific poll.  Before blaming cultural bias, which undoubtedly plays some role, consider a recent study from the Netherlands that found even blind men found thin women the most attractive — especially those with a waist/hip ratio around .7. This suggests a biological imperative in determining attractiveness based on thinness.

Despite health risks, which are inherent in all kinds of legal activities such as driving and smoking, there is some evidence that the outcomes from bulimia and anorexia can be positive.  In fact, the immediate risks of eating disorders are less significant to others than driving, especially while intoxicated, or releasing second-hand smoke for others to breathe.  France and various other Debbie Downers, however, want to ban support for this lifestyle.

As always, sunlight is the best antiseptic.  If there are profound health consequences from eating disorders, the internet is an adequate forum for activists to identify them.  Like so many things, anorexia or bulimia may be choices that cannot truly be regulated by the state.  Where there is a voice criticizing eating disorders, another necessarily exists to promote them as a fulfillment of intense mental and emotional needs.  If nobody was seeking out eating disorders, there wouldn’t be a desire to ban their promotion.

There are many reasons thinspiration is protected speech and the regulations proposed in France are inconceivable in America.  Above all others, it’s because the Constitution and American people assume individuals can make responsible decisions for themselves about their image and health.  And, even if that’s not true, First Amendment protections provide the forum for debate on both sides of this and any other controversy.

Largest. Class. Action. Ever.

Yesterday the Ninth Circuit upheld (mostly) a California District Court opinion certifying a nationwide class action against retail giant Wal-Mart. The classes and sub-classes could encompass as many as 1.5 million current and former female employees of Wal-Mart, who may be entitled to billions in back wages and punitive damages. Not to mention the attorney’s fees and costs.

The case was filed in 2001 by The Impact Fund, a Bay Area non-profit organization that takes on large scale civil rights related litigation. The lawsuit alleges that Wal-Mart pays female employees less than their male counterparts (in violation of equal pay laws), and promotes women more slowly than men (in violation of Title VII).

What’s so interesting about this behemoth 137 page decision? Not a lot unless you’re an attorney who practices class action law. But the decision does represent a clear acknowledgement on the part of the judiciary that just because you’re an astonishingly gigantic and absurdly wealthy company doesn’t mean that you can’t be called to court to account on a wholesale basis for your (alleged) bad deeds. At least if you’re sued in the Ninth.  Without question, Wal-Mart will be looking to the Supremes for a reversal.

I solve the immigration problem

I have never met an illegal immigrant who annoyed me. No, not a single one, and I have met a lot of them. When I hear of people climbing fences and walls, swimming across rivers, and trekking across a desert, dodging rattlesnakes and white trash with guns — just to live in America, I think about how lucky I am that I live somewhere that people would risk their lives just to have the privilege of mowing my lawn.

I say that they’re all welcome.

Of course, the anti-immigrant crowd has some valid points. We can’t just have the borders wide open for every Tom, Dick, Harry, Phong, Rosalita, Priya, or Cinque to move here… can we?

Well… maybe we can….

The problem in this country is not that Mexicans are streaming across the border. We had a huge flood of immigration in the early 20th century, and but for that immigration, America wouldn’t be half the country it is today. Immigration is not the problem. The problem is that so many of our home-grown citizens are stagnant, lazy, and stupid (and yes, so are many of our new arrivals). So how do we separate the wheat from the chaff?

We should have a “point system” for how much citizenship you get, with completely open borders. This country is built on freedom and competition, right? Let’s inject competition into the citizenship market! We could each earn between 0-100 citizenship points. 50 points is full citizenship. At 75 points, you get Silver Citizenship Status, 85 points you get Gold Status, and at 95 points you get Platinum status. Maybe some super-platinum for 100 points.

If you have one of the higher-status citizenship categories, you get certain privileges — maybe no TSA lines for you. You can carry a gun anywhere you want. You can cut in line at the DMV or other government agencies. All men will still be created equal, but some can earn status that makes them quantifiably superior — at least in terms of the rights they get.

You get 5 points for being born to an American parent, so there is a little bit of legacy preference, but not a lot.

You get a certain number of points for having a full time job, graduating from high school, for paying your taxes, etc. Essentially, a few points for doing the stuff that we expect all productive members of society to do. If you do absolutely everything that you’re supposed to do, you get somewhere in the neighborhood of 65 points. No special privileges, but a good padding above full citizenship so that one or two screw ups won’t cost you your passport.

You get a certain number of extra points for graduating from college, a masters program, or a PhD program. We could give more points for more useful degrees, so yeah, get that MA in Victim Studies, but don’t think that it is going to make you more valuable to us than a nursing degree or an engineering degree, because it ain’t. A law degree, sadly speaking, wouldn’t get you jack these days.

You get bonus points for truly kicking in to improve America. You author a book. You start a business that employs a certain number of people. You invent something useful.

It wouldn’t be wholly economically-based either — as there are non-financial contributions that indicate a desirable citizen. You save a puppy from a burning building. You use that law degree that didn’t get you any points to handle a meaningful pro bono case. Joining the military gets you some extra points. Medals get you points too. Congressional Medal of Honor gets you 10 points that you can’t ever lose.

You lose points by being convicted of crimes, but also by douchetastic behavior that we don’t necessarily criminalize. Maybe if you make your living by flipping houses or by shorting stock, we can dock you a few points. You can still be rich with lower status, but having more money in the bank won’t buy you citizenship points. You wanna chase ambulances and Unruh Act violations? More money to you, but you’re not getting any closer to Platinum Status citizenship.

You can’t serve as a judge, in public office, as a cop, or a lawyer unless you have at least Silver status (75 points).

If you have less than 50 points, the Constitution doesn’t fully apply to you. Maybe some provisions apply at 10 points or so, but you’re not a full citizen, you don’t get full protection. Certain geographic areas would be closed to people below a certain number of points.

If you are over 25 years old and you have less than 10 points, you get nothing. No First Amendment, no Fourth Amendment, no nothing. Essentially, you’re on probation. You have to move out of the way for citizens when you are in line at the store. You don’t get to drive. If your points get to zero, we give you a choice of moving to another country (never to return) or prison — but in Prison, you can earn points and get yourself out.

We open the borders and welcome everyone. Certain immigrants get to start with a few points. Perhaps you did some act of service to the United States, like saving American soldiers from kidnappers. You win a Nobel Prize, you get 25 points just to move here. But, your average immigrant gets only a point or two for checking in at the border and letting us know he’s here. A truly worthy immigrant – the kind we want, can earn 50 points in 5 years or less, and within a few decades can even be eligible to run for president. A crappy one will find life here to be very unpleasant, as will a home-grown loser, who might find it more desirable to just leave – thus making room for more worthy immigrants.

Who’s with me?

Police Raid Gizmodo Editor’s House Over iPhone Leak

by Christopher Harbin

For those who haven’t kept up, here’s a recap of this story:

1. Apple engineer loses his iPhone in a bar.

For ironic effect, Apple forced the police to use this hammer to break down Gizmodo's editor Jason Chen's door.

2.  Some dude picks it up and contacts technology blog Gizmodo.

3.  Gizmodo buys it off some dude and runs a story.

4.  Gizmodo editor’s house gets raided by the fuzz.

And here’s a preemptive strike at people who say “but he’s possibly trafficking in stolen property.” Fuck you.  I hope you die in a fire.  It’s a friggin’ iPhone.  If Apple can’t manage its trade secrets correctly, fuck em’.

Seriously, it’s a fucking iphone that was lost in a bar — is this really worth raiding a journalist’s home over?   Isn’t there a better PR way of handling this rather than breaking down somebody’s door?

But the real question is — will Marc still keep his love of Macs after Apple becomes the Fourth Reich?

“The assertion that someone is gay is not defamatory”

By J. DeVoy

That’s the holding of the United States District Court for the District of New Jersey in Murphy v. Millennium Radio Group LLC, No. 08-1743, Op. at 13 (D.N.J. Mar. 31, 2010). The full opinion is available here.  The case, brought by a photographer against two shock jocks, involves a number of issues including copyright infringement and defamation based on claims that the plaintiff, Murphy, was a bad business partner and homosexual.

Focusing on the latter issue, the court granted the defendants’ motion for summary judgment, finding the speech about Murphy’s business relationships to be rhetorical hyperbole.  The court’s grant of summary judgment about the defendants’ claim Murphy was gay, though, represented a clear shift in New Jersey’s law on this issue.  In Gray v. Press Communications LLC, 342 N.J. Super 1, 10 (App. Div. 2001), the court held that “a false accusation of homosexuality is reasonably susceptible to a defamation meaning.”  But as times change, so does the law; after New Jersey adopted a statutory regime allowing for same-sex civil unions, New Jersey’s Supreme Court held that “there has been a developing understanding that discrimination against gays and lesbians is no longer acceptable in this state.” Lewis v. Harris, 188 N.J. 415, 338 (2006) (emphasis added).

Marc previously addressed the evolving meaning and power of words in the defamation context.  The word “slut” traditionally has been defamatory per se, but the word has evolved alongside terms like “scam” to be, potentially, a garden-variety insult rather than a statement of fact.

The term “slut” has different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”);Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996). (Source.)

As terms like slut lose their original meanings, they become general pejorative terms that represent ideas instead of facts.  As such, they lose their ability to convey defamatory meaning.

“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974). An alleged defamatory statement “must be provable as false before there can be liability under state defamation law.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990). (Source.)

The Murphy court takes this analysis a step further: Even if the term “gay” is being used with defamatory intent, it’s incapable of having a defamatory meaning.  The District Court based this on New Jersey’s statutory acceptance of same-sex gay and lesbian relationships and the equal rights conferred onto those couples by the state.  A Florida court engaging in identical analysis, though, may reach the opposite result in light of the public’s approval of Amendment 2 to the State Constitution, restricting “marriage or the substantial equivalent thereof” to male-female couples.  Nevertheless, if “gay” loses the negative associations surrounding it to the satisfaction of a court considering the term’s negative implications, it can no longer be a defamatory term.  Bringing same-sex and heterosexual couples to parity under the law furthers this goal.

Similarly, crusades to devalue the harmful effect of terms such as gay may also achieve this end.  Despite lacking the force of law found in New Jersey’s statutes, removing the stigma of “gay” could remove it from the dictionary of defamatory terms.  A similar analysis may apply to “slut” as well, as activists like Jessica Valenti try to make the word meaningless by rationalizing promiscuity as normal and decrying purity. (Many men would disagree.)  Such an analysis would require greater context than mere statutory analysis, and courts may thus be wary to engage in it.

While it is established that words not offering a statement of provable fact are not defamatory – many colorful insults come to mind – courts are now moving to consider which facts actually are harmful.  The Murphy decision opens a new window for defamatory terms, as changing circumstances may denude them of their previously harmful implications.  Eventually this will reduce the pool of defamatory terms and result in freer speech.  Because the inquiry in Murphy seems to be so fact- and state-specific, though, a national consensus will not soon be reached.

Lane Bryant Got Sexy

By Tatiana von Tauber

Big may be sexy but it still ain’t easy.

Thank you Lane Bryant for showing us that full-figured women can be incredibly sexy as shown here:

Shame the networks , specifically ABC and Fox, find plus size cleavage too controversial and therefore inappropriate to air . Talk about double standard.

UPDATE:

In this Salon article, Lane Bryant’s curvy models censored? , I was rather interested in the author, Tracy Clark-Flory’s comment:

Here is what I do know: I found the Lane Bryant ad to be rather titillating. There is so much more flesh, more cleavage, more bounce!…Regardless of the truth behind this ad war, it is safe to say that many –myself included, I shamefully admit — would find something unnerving about these full-figured women. They are formidable, healthy-looking and robust. They are va-va-voom. Watched alongside the Victoria’s Secret commercial, these two ads are a feminist critique of pop culture that writes itself. Together, they speak volumes about the pressure women feel to be thin, fragile and take up less space. Because that is the type of femininity we’re comfortable with, not the kind you see in the Lane Bryant ad.

Actually what these real women exude is in your face confidence and that is what we’re not comfortable with.  Real bodied women are so used to hiding in the background that when their boobs have a chance to escape the Playtex 18-hour bra mom used to have into something sexier, they rightfully have a lot more bounce than their thin girl competition and there’s going to be some va-va-voom action.  There’s excitement in this.  

I unshamefully admit that I found the ad erotic and that kind of titillating supercharge is rare from a commercial; this should be plastered on every network opposed to the crap which represents “real women” now.  The best part here is the kind of eroticism Lane Bryant represented.  Finally respectability with respect to sexuality and no sense of sexual objectification onto these women opposed to Victoria Secret stick figures.  This ad is what eroticism is.  Lane Bryant got it right on the money.  THIS is excellent feminist advertising.  Take note Go Daddy.