Both sides are claiming tolerance. The Mayor is all in favor of it (actually I assume he is just in favor of saying whatever gets him re-elected). The moslems are in favor of it, seeking merely to “reach out” (actually they are in favor of everyone becoming a moslem, because that’s what their spiritual force tells them).
How about opening a Moslem strip club? Call it “The 72 Virgins,” get a guy named Mohammed to run it, subtitle “The closest you can get to paradise without being killed by a suicide bomber.”
Now we have a measure by which we can assess tolerance as I understand the word. Will the pious Mayor and his First Amendment speech writer defend the right of the strip club to exist? No? Then he’s bogus. Do the Moslems endorse it as a powerful way of reaching out to the locals? No? Then they’re bogus. To the relatives of the dead find it acceptable? No? Then clearly they object to moslems, not strip clubs, and dead relatives are just an excuse for expressing their feelings.
Alas, “The 72 Virgins” would be firebombed within a week, if the cops didn’t close it first. But that, too, would be a statement about tolerance.
Catching up on the backlog of interesting stuff I couldn’t address during bar prep, Red Bull lost the UDRP proceeding seeking the transfer of domain names that an Austrian court ruled belonged to Red Bull.
In 2003, Red Bull held the Taurus Rubens, an air festival/art show that hopefully had more professional participation than its Flugtag events across America. Anticipating that the event would become an annual one, Reinhard Birnhuber registered the domains taurusrubens.com and rubenstaurus.com among others. When Red Bull discovered this, it offered Birnhuber € 500. Birnhuber demanded one million euros.
In April 2005, Red Bull registered its Taurus Rubens as an Austrian trademark and commenced a UDRP proceeding against Birnhuber before the WIPO. Red Bull lost. Though the decision, Red Bull GmbH v. Reinhard Birnhuber D2005-0862, noted that Birnhuber’s registration of the marks was probably in bad faith – Birnhuber owned several other Red Bull-related domain names – Red Bull had no standing under the UDRP rules. Because Red Bull had registered the Taurus Rubens trademark years after Birnhuber registered the relevant domains, the company had no right to appear before WIPO and its complaint was dismissed.
Red Bull then filed suit in an Austrian commercial court, winning against Birnhuber. Birnhuber, who was found to have registered the domains in bad faith, appealed the lower court’s decision, but again lost. With final judgment in its hands, a speedy transfer of domain names pursuant to the court’s order seemed all but certain for Red Bull. Indeed, any rational person would agree.
Birnhuber balked at transferring the domains to Red Bull, and the company initiated a second UDRP proceeding in 2009, D2009-1598. Red Bull lost. The WIPO panel held that the Austrian court’s determinations were of no merit or relevance in the case, and the panel’s own determinations should stand as the final judgment. With a few pages of paper, the WIPO arbitrators blinked several years of legal proceedings and costs out of existence. Why would WIPO want courts horning in on its (very good) gig? By excluding them, WIPO can have full control over the UDRP parallel universe. From Google Translate, the opinion has this to say:
The panel can see in the above circumstances, no new facts or actions that would warrant a new assessment of the case. In this respect, the complainant fails to recognize that not only “new actions” to the resumption of proceedings are necessary, but this also has to be relevant.
The correct legal result is more than the enforcement of that ruling in Austria, especially as the present legal request (transfer of the domain name) covers with the sentencing order of the Austrian court. Since both parties are domiciled in Austria, is likely a priori, no specific enforcement problems arise. WIPO panels can so far do not replace the state authorities.
A cold, expensive reminder that the bare right to something does not translate to its possession, especially on the internet.
Red Bull’s lawyers dun’ goof’d by apparently ignoring common law trademark rights, which are recognized by the UDRP. In BMEzine.com LLC v. Gregory Ricks / Gee Whiz Domains Privacy Service, D2008-0882, a dispute handled by Randazza, BMEzine.com LLC (“BME”) argued that it had been using the mark BME in its line of business for 14 years before the dispute arose, and it had become distinct and famous within the body modification industry as a result. Respondent, Ricks, was found to have registered the bme.com domain in bad faith because of BME’s continuous use of the mark, making Ricks’ use of bme.com confusingly similar to BME’s mark. Accordingly, the panel ordered Ricks to transfer the bme.com domain to BME. If this approach had been effectively used in the Red Bull cases, it could have resulted in different panel holdings and circumvented years of litigation in Austrian courts.
It was January 2007, and I was teaching an entertainment law course at Barry University School of Law. I wanted a way to deliver materials and supplemental reading to my students, without having to make photocopies or maintain an email list.
So I tried out using the wordpress platform. I put up a few posts with materials for my students to review. Nothing all that interesting happened. 200 visitors in January. 129 in February. 478 in March.
Then, I started getting comments from people who were not students. They were asking questions about legal issues. They were suggesting materials and articles. I responded, and April saw 1600 visits. By the end of 2007, the Legal Satyricon had 54,000 visitors. I thought that was pretty cool.
2008 saw 350,000. 2009 had 750,000. 2010 has 480,000 to date. The total is somewhere around 1.7 million.
Pretty cool.
Even cooler, over the years, this has developed into less of an extension of my narcissism, and more of a team effort. There have been a lot of voices on the blog. Some I agree with. Some I don’t. Becoming a Satyriconista has never had any correlation to how much I agree with you. But, those that have lasted have become some of my closest friends and confidants. In a shitty legal economy, three of them got jobs with the Randazza Legal Group as a result.
Two and a half years later, some awards, and some degree of fame… and here is our 2000th post. So what to write about?
I guess I’ll keep it simple and make it an expression of gratitude. DeVoy, Platt, Tatiana, Harbin, Fischer, Papantoniou, Jess, Blevins, Warrington, Bobby, and all the rest of the Satyriconistas… you’ve made the past two and a half years a lot more fun and a lot more edifying.
A Washington Grand Jury indicted Roger Clemens for lying to Congress in a deposition and in under-oath testimony before a congressional committee. He falsely denied, while under oath, ever using steroids. Clemens faces 30 years in jail and a $1.5 million fine. (source)
And after that, when he finally dies and goes to hell, he will be sentenced to a demon shoving a pineapple up his ass every day for all eternity — for the crime of wearing pinstripes after being a member of the Red Sox. Yeah, fuck you too, Johnny Damon.
The Utah Highway Patrol Association (“UHPA”) put up twelve foot high crosses to honor fallen Utah Highway Patrol troopers. The crosses bore the Utah Highway Patrol (“UHP”) symbol and they were on public land. Funny enough, since Mormons don’t use the cross as a religious symbol, the UHPA actually seems to have had an innocent (if slightly ignorant) intent. They did not intend to send a religious message, but rather used the crucifix as what they thought was a “universal” symbol of a memorial to the fallen.
The American Atheists sued to block the displays as violations of the Establishment Clause. The district court found in the UHPA’s favor, but the 10th Circuit reversed yesterday – finding that while there was no intent to promote religion, the crosses still had that effect. (Opinion).
The 10th Circuit analyzed the case under Justice O’Connor’s “endorsement test.” Under that test, “[t]he purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.” Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring).
The Purpose Prong
The 10th Circuit rejected the argument that any time the government uses a Latin cross, it is a per se establishment clause violation. (Example)
Here, we can discern a plausible secular purpose. Considering first the evidence of the UHPA’s motivation, that organization has, throughout the course of this project, consistently asserted that its intent in erecting these memorials is only secular: to honor fallen troopers and to promote safety on the State’s highways. The secular nature of the UHPA motive is bolstered by the fact that the memorials were designed by two individuals who are members of the Mormon faith, the Church of Jesus Christ of Latter Saints (“LDS Church”), a religion that does not use the cross as a religious symbol. These men explained that they were inspired to use the Latin cross for the fallen trooper memorials because of the presence of such crosses in military cemeteries, which honor fallen service members for their sacrifice, and roadside memorials found where traffic fatalities have occurred. Plaintiffs are unable to point to any evidence suggesting that the UHPA’s motive is other than secular. (Op. at 20-21)
The 10th also looked at the facts to make sure that the secular explanations were not a mere sham. (Op. at 22). They determined that the UHPA was sincere in its secular intent.
The Effect Prong
Despite the good intent, the 10th found (logically) that the effect of the crosses would be to communicate a message of governmental endorsement or approval of christianity. They looked at the display through the eyes of an objective observer, and determined that a reasonable objective observer would conclude that the crosses were an endorsement of religion. The crucifix is a christian symbol, and the addition of the UHP logo on the crosses capped the well.
Here, we conclude that the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity. The memorials use the preeminent symbol of Christianity, and they do so standing alone (as opposed to it being part of some sort of display involving other symbols). That cross conspicuously bears the imprimatur of a state entity, the UHP, and is found primarily on public land.
The record indicates that at least one, and perhaps several, of these memorials are located on private land near a state highway. That fact does not change our analysis, however, because those crosses, even though on private land, still bear the UHP insignia, which UHPA was authorized by UHP to use.
The connection between the UHP and Christianity is perhaps even more strongly conveyed by the two memorial crosses located immediately outside the UHP office. We are deeply concerned about the message these crosses would convey to a non-Christian walking by the UHP office or, even more troubling, to a non-Christian walking in against his will.
The fact that the cross includes biographical information about the fallen trooper does not diminish the governmental message endorsing Christianity. This is especially true because a motorist driving by one of the memorial crosses at 55-plus miles per hour may not notice, and certainly would not focus on, the
biographical information. The motorist, however, is bound to notice the preeminent symbol of Christianity and the UHP insignia, linking the State to that religious sign.
Moreover, the fact that all of the fallen UHP troopers are memorialized with a Christian symbol conveys the message that there is some connection between the UHP and Christianity. This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP—both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah’s highways. The reasonable observer’s fear of unequal treatment would likely be compounded by the fact that these memorials carry the same symbol that appears on UHP patrol vehicles. See Friedman v. Bd. of County Comm’rs of Bernalillo County, 781 F.2d 777, 778, 782 (10th Cir. 1985) (holding that a city’s seal “bearing, among other things, a latin cross and the Spanish motto, ‘CON ESTA VENCEMOS’ [‘With This We Conquer’],” violated the Establishment Clause in part because “[a] person approached by officers leaving a patrol car emblazoned with this seal could reasonably assume that the officers were Christian police. . . . A follower of any non-Christian religion might well question the officers’ ability to provide even-handed treatment. A citizen with no strong religious conviction might conclude that secular benefit could be obtained by becoming a Christian.”). And the significant size of the cross would only heighten this concern. (Op. at 26-28).
Interestingly enough, Justice Scalia, in Salazar v. Buono (a case concerning the constitutionality of a war memorial cross on federal land in the Mojave National Preserve) said that the cross is a universal symbol, not a Christian symbol. Naturally, Scalia is a liar, but it is nice to see the somewhat conservative 10th Circuit remain intellectually honest, even though they could have hung their hat on Nino’s bullshit.
Commentary
As much as I agree with the reasoning in this case, and as much as I recognize that it is important to bring Establishment Clause cases, so that we can hold back the religious nut jobs from their attempts to turn the United States into a theocracy, I would have been uncomfortable bringing this case. The families of every fallen trooper approved of the memorials. The UHPA acknowledged that they would have raised a different memorial to any trooper at the request of their family.
I’m not saying that I don’t appreciate the case being out there, as this case will protect that wall of separation between church and state. I just think that I’d rather see my atheist brethren pick and choose their battles a little more tactfully.
Yesterday’s post about Dr. Laura was not a First Amendment post. It was a post about a cultural issue, not a legal issue. However, I got a persuasive email from a friend who all but demanded that I address the First Amendment “issue” in the story. I just wanted to ignore Dr. Laura’s claim that she “wanted her First Amendment rights back.”
Dr. Laura isn’t the first one to try and bamboozle us by crying “First Amendment,” when the First Amendment just doesn’t belong in the picture.
A number of years ago, I was on South Beach with Jennifer. She was sunbathing topless, which is normal on South Beach. Some perv walked by with a camera, and did a little behind-the-back maneuver — trying to surreptitiously snap a photo of her. When I got up and confronted him, he actually said that he had a “First Amendment right” to take photos there, since it was a public place.
For that reason, I did not call the police. I just beat the shit out of him until he gave up his camera, and then I threw his camera into the ocean.
No First Amendment problem there.
What people need to understand is that the First Amendment protects you from the government. The First Amendment does not exempt you from an ass kicking from your fellow citizens.
And that is an important lesson to learn. Dr. Laura deserved to have her ass kicked, metaphorically speaking. She is a bigot. She is an asshole. She is a charlatan. She is divisive. She is hateful. Her speech is bad. I find it troubling that despite years of proof of all of those things, the one thing that finally created a surge of anti-Schlesinger sentiment was that she dared to utter the magic word, “nigger.” It wasn’t that her terrible ideas were actually rejected by the marketplace – it was her use of the magic word.
I have a problem with that as a cultural issue — but it is not a First Amendment issue.
Both Schlesinger and Sarah Palin don’t have a clue about what the First Amendment means — nor does anyone else who thinks that Dr. Laura’s First Amendment rights are at issue here. No government official called to investigate her. A bunch of vocal assholes decided to exercise their First Amendment rights, put pressure on her advertisers, and my friend takes the correct position that this is the marketplace of ideas working effectively. My friend wrote:
The flip side of the First Amendment is private protest/shaming, etc. She can’t be put in jail, but she can be reviled, and forcefully so. To me, this just seems like the marketplace of ideas in action. You say that the marketplace didn’t reject her, but it seems like you have to take a pretty narrow view of what “the marketplace” is (advertisers/audience vs. the PC police). You’re looking at her actual statement and trying to figure out the context, but the market doesn’t need to be so forgiving, that’s the beauty of it.
This is the credited response.
But I hope that the cultural issue can be separated from the legal issue. As a legal issue, I have no problem with Schelsinger being forced off the air by a screaming mob of idiots. Culturally, I have a beef with shutting down debate by allowing one word to be a game-over-trump-card. That is what happened here. Dr. Laura is not off the air because her ideas are disgusting. She is off the air because she dared to say the magic word.
But, turning back to the First Amendment non-issue: It is important that we put up firewalls to stop the spread of ignorance. (If you listen to Dr. Laura or Sarah Palin, you probably already suffer from terminal and incurable ignorance, but there is always a ray of hope). Dr. Laura’s First Amendment rights were no more suppressed here than those of the asshole perv on South Beach. She exercised her First Amendment rights and she got an ass kicking.
If you’re looking for a First Amendment angle in the Dr. Laura story, there is nothing to see here except the “teachable moment” about what the First Amendment means (and what it does not mean).
Repeat after me:
The First Amendment protects you from the government. The First Amendment does not exempt you from an ass kicking by your fellow citizens.
Jeb Corliss is working on a plan to skydive and land without a parachute. (source)
I initially wrote about Corliss’ case in my article, BASE Jumping and the Law. In that post, I wrote about how Corliss attempted a jump from the Empire State Building, but was apprehended just as he got over the suicide fence. New York then charged him with reckless endangerment on the theory that had he made the jump, he very well could have hurt people below. This theory was successfully argued by the prosecution in United States v. Carroll, 813 F. Supp. 698 (E.D. Mo. 1993).
Corliss convinced the court that he planned the jump very carefully — so carefully, that nobody could reasonably call his conduct “reckless.” The judge bought it and dismissed the case.
Unfortunately, the Appellate division reversed and remanded. Not sure what became of that case.
One in five Americans think that Obama is a Muslim. (source)
Before you bring out the surgery tools, this seems to be a Fox News focus group. So, really the headline should be “one in five abject fucking retards who get their ‘news’ from Fox think that Obama is a muslim.”
A few weeks ago, someone who I despise, Dr. Laura Schlessinger, used the taboo “n-word” on her radio show. She didn’t say it to be mean, nasty, or racist. She was quoting someone else.
And that turned into a shit storm.
Apparently, now the word “nigger” has become so taboo, that even uttering it means that you’re a racist. Despite Dr. Laura’s protestations that “context matters,” the hysterical boob on the phone with Schlesinger decided that since she lost the argument, she would just focus on the fact that Laura allowed “nigger” to pass through her lips.
Dr. Laura was forced to apologize. And now, she’s leaving radio. (source) Personally, I say “good riddance,” because Dr. Laura is a retard, and her show makes its listeners dumber with every minute that they tune in.
Nevertheless, I am with Dr. Laura on this one.
Lenny Bruce said:
it’s the suppression of the word that gives it the power, the violence, the viciousness. Dig: if President Kennedy would just go on television, and say, “I would like to introduce you to all the niggers in my cabinet,” and if he’d just say “nigger nigger nigger nigger nigger” to every nigger he saw, “boogie boogie boogie boogie boogie,” “nigger nigger nigger nigger nigger” ’til nigger didn’t mean anything anymore, then you could never make some six-year-old black kid cry because somebody called him a nigger at school.
Just in that quote alone, Lenny Bruce said “nigger” 14 times, yet nobody could credibly say that Lenny Bruce was a bigot.
Of course, context is everything. Lenny Bruce can say it 14 times, and he’s not a bigot. But, you can whisper it under your breath at someone, and that makes it a pretty nasty verbal barb.
That seems pretty simple to me. Context matters.
I went to law school with a guy who wasn’t the least racist guy I have ever met. He didn’t ever use the word “nigger.” However, he explained to me that he called black people “Canadians.” Why? “So when you see some black person acting like a dumb nigger, you can roll your eyes and say ‘Canadians,’ and nobody knows that you’re being racist.”
Context is everything.
This kind of thing gives critical crybaby theorists and every other kind of “victim studies” blowhard a raging boner. But, for those of us who actually contribute something to society, all it does is get us to a place where the message gets lost in endless quibbling over words. The Newspeak police are so damned hypersensitive that innocent use of the word “niggardly,” a word derived from Old Norse (which means “cheap” or “miserly” can create a national freak out, and even “Water Buffalo” (a Hebrew translation) can be perceived as racist, thus labeling the user as a thinker of racist thoughts, ergo someone who needs re-education sensitivity training.
More times than I care to remember, I meet idiots who quote from the movie “True Romance,” after they ask if “Randazza” is a Sicilian name. I don’t like being called a “nigger” either. I don’t like being called a daygo, a wop, a guinea, a greaseball, or anything of the sort.
But, the words are not magic words that I will not tolerate being uttered by others. There’s a country called “New Guinea.” I take no offense. I don’t insist that we change the name of the Guinea Pig to something less racist.
If we’re going to have words that are so magical, so blasphemous that we can’t use them — EVER — not to quote someone else, not to demonstrate a point, not to use them in any way at all, because some useless bag of shit might feel “offended” at the mere sound of the word, then I want to submit my list of words to the thought police as well.
Or, we could just go with Plan A: Take the power from the word and think about the real issues underlying the discussion. That’s why I will never say “n-word” when “nigger” is what I really mean. Because if I want to be an asshole, I can just as easily say “fuckin’ Canadian,” and it means the same damn thing in a nasty, racist context.
Dr. Laura Schelsinger is objectionable, nasty, and stupid. She should be off the air. But, she should be off the air because the marketplace of ideas rejects her views so resoundingly that listeners would rather listen to a microphone stuck in the ass of a sumo wrestler who eats nothing but Taco Bell. Personally, I think you could learn more from the sumo farting network than you could learn from Dr. Laura.
Nevertheless, the marketplace of ideas did not reject Dr. Laura. The PC police drove her from the marketplace with the torches and pitchforks of “sensitivity”. The fact that the marketplace did not reject her means that either:
a) Dr. Laura’s ideas had validity; or,
b) Dr. Laura’s ideas were bad, but they had not yet run through the crucible enough to be proven so.
Either way, the PC police took something away from all of us when they drove Dr. Laura off the air. Either we lost her correct ideas or we lost the benefit of throwing our own ideas into the marketplace to compete with hers and probably triumph over them.
Don’t let them win.
Please don’t say “nigger” as an insult. It makes you an asshole. It might even get you a much-deserved ass kicking. But, no matter what the word, there is a time and a place for it, and context matters. If we let these fuckheads take ONE word and put it in the “magic words” bin, then the process of linguistic devolution is already complete. Don’t give them that power.
Save the word “nigger.” Even if you save it just so that we can kill it, Lenny Bruce style, by finally making it not mean anything anymore.
HR 4364, the Federal Anti-SLAPP bill, was introduced by Rep. Steve Cohen (D-TN9) – a two-time First Amendment Bad Ass Award winner.
Public Intellectual reports that Cohen has brought on a few more co-sponsors: Rep. Charles Gonzalez (D-TX20), Fortney “Pete” Stark (D-CA13), and Mike Doyle (D-PA14). (source)
Does anyone see anything wrong with that picture?
Four Democrats support a tort reform measure. Where are the Republicans? Are they only in favor of “tort reform” when the cases are against doctors and chemical companies? Come on, not a single one of you fuckers give a shit about the First Amendment?
For those of you out in Satyricon Land, I urge you to call AND WRITE to your congressman, don’t just call. Tell them to support HR 4364. If you don’t know who your Representative is, look it up here.
“We’ve come here to Governors Island to stand where the earliest settlers first set foot in New Amsterdam, and where the seeds of religious tolerance were first planted. We come here to see the inspiring symbol of liberty that more than 250 years later would greet millions of immigrants in this harbor. And we come here to state as strongly as ever, this is the freest city in the world. That’s what makes New York special and different and strong.
“Our doors are open to everyone. Everyone with a dream and a willingness to work hard and play by the rules. New York City was built by immigrants, and it’s sustained by immigrants — by people from more than 100 different countries speaking more than 200 different languages and professing every faith. And whether your parents were born here or you came here yesterday, you are a New Yorker.
“We may not always agree with every one of our neighbors. That’s life. And it’s part of living in such a diverse and dense city. But we also recognize that part of being a New Yorker is living with your neighbors in mutual respect and tolerance. It was exactly that spirit of openness and acceptance that was attacked on 9/11, 2001.
“On that day, 3,000 people were killed because some murderous fanatics didn’t want us to enjoy the freedoms to profess our own faiths, to speak our own minds, to follow our own dreams, and to live our own lives. Of all our precious freedoms, the most important may be the freedom to worship as we wish. And it is a freedom that even here — in a city that is rooted in Dutch tolerance — was hard-won over many years.
“In the mid-1650s, the small Jewish community living in lower Manhattan petitioned Dutch governor Peter Stuyvesant for the right to build a synagogue, and they were turned down. In 1657, when Stuyvesant also prohibited Quakers from holding meetings, a group of non-Quakers in Queens signed the Flushing Remonstrance, a petition in defense of the right of Quakers and others to freely practice their religion. It was perhaps the first formal political petition for religious freedom in the American colonies, and the organizer was thrown in jail and then banished from New Amsterdam.
“In the 1700s, even as religious freedom took hold in America, Catholics in New York were effectively prohibited from practicing their religion, and priests could be arrested. Largely as a result, the first Catholic parish in New York City was not established until the 1780s, St. Peter’s on Barclay Street, which still stands just one block north of the World Trade Center site, and one block south of the proposed mosque and community center.
“This morning, the city’s Landmark Preservation Commission unanimously voted to extend — not to extend — landmark status to the building on Park Place where the mosque and community center are planned. The decision was based solely on the fact that there was little architectural significance to the building. But with or without landmark designation, there is nothing in the law that would prevent the owners from opening a mosque within the existing building.
“The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.
“Whatever you may think of the proposed mosque and community center, lost in the heat of the debate has been a basic question: Should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion? That may happen in other countries, but we should never allow it to happen here.
“This nation was founded on the principle that the government must never choose between religions or favor one over another. The World Trade Center site will forever hold a special place in our city, in our hearts. But we would be untrue to the best part of ourselves and who we are as New Yorkers and Americans if we said no to a mosque in lower Manhattan.
“Let us not forget that Muslims were among those murdered on 9/11, and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies’ hands if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists, and we should not stand for that.
“For that reason, I believe that this is an important test of the separation of church and state as we may see in our lifetimes, as important a test. And it is critically important that we get it right.
“On Sept. 11, 2001, thousands of first responders heroically rushed to the scene and saved tens of thousands of lives. More than 400 of those first responders did not make it out alive. In rushing into those burning buildings, not one of them asked, ‘What God do you pray to?’ (Bloomberg’s voice cracks here a little as he gets choked up.) ‘What beliefs do you hold?’
“The attack was an act of war, and our first responders defended not only our city, but our country and our constitution. We do not honor their lives by denying the very constitutional rights they died protecting. We honor their lives by defending those rights and the freedoms that the terrorists attacked. (emphasis added)
“Of course, it is fair to ask the organizers of the mosque to show some special sensitivity to the situation, and in fact their plan envisions reaching beyond their walls and building an interfaith community. But doing so, it is my hope that the mosque will help to bring our city even closer together, and help repudiate the false and repugnant idea that the attacks of 9/11 were in any ways consistent with Islam.
“Muslims are as much a part of our city and our country as the people of any faith. And they are as welcome to worship in lower Manhattan as any other group. In fact, they have been worshipping at the site for better, the better part of a year, as is their right. The local community board in lower Manhattan voted overwhelmingly to support the proposal. And if it moves forward, I expect the community center and mosque will add to the life and vitality of the neighborhood and the entire city.
“Political controversies come and go, but our values and our traditions endure, and there is no neighborhood in this city that is off-limits to God’s love and mercy, as the religious leaders here with us can attest.”
If you’re not a liberal by eighteen, you’ve got no heart; if you’re not a conservative by thirty, you’ve got no brains — as the saying goes. The axiomatic truth behind those words is what makes this GQ story about Rand Paul kinda cute and heartwarming. Some of the senatorial candidate’s Baylor buddies remember that he was quite the rebel back in the day, and what better time to talk to a reporter about it than ninety days before an election? I’m sure the political theater aspect of this whole thing never entered into the minds of GQ’s editorial staff.
Understandably, Paul and his campaign staff are a bit upset about the story. It paints the picture of a college dropout who regularly participated in felonious assaults on women — one to which Kentucky voters may have a hard time relating. In response, a spokesperson for the campaign has hinted that there may be a defamation suit in the works, and GQ’s Editor-in-Chief, along with the rest of the left, doing their best Glenn Beck impression, just want to know why there’s been no denial. Why isn’t he answering questions? Don’t we have a right to know?
In the week since the story was first published, the most salacious charges therein have been largely discredited, and only one question remains (at least as far as we’re concerned): If the story was really false, can Dr. Paul prevail in a libel suit against GQ? The answer to that question is not a simple “yes” or “no” — but hey, what fun would it be if it were.
Since Rand Paul is a public figure, he must successfully prove, not only that the statements in the story were false, but that GQ published them with knowledge of their falsity, or at least with reckless disregard for whether they were false. This standard, which comes from the Supreme Court decision of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), is known by the term of art “actual malice.” (Be on the lookout for upcoming dissents from Kagan about whether this should still be the standard.) As you might imagine, this is a pretty difficult hurdle to clear, and as a result, most public figures don’t bother with the trouble, and as a result, we’re able to pass the time in the grocery store checkout aisle reading headlines about which Brangelina star is single-handedly fighting off the Masonic alien takeover plot that threatens to end all organized world governments.
The public policy involved here is a good one. It should be harder for public figures to sue people and shut them up. A public figure is in a better position than the ordinary citizen to answer an erroneous news item with an explanation, so unless the publishing entity is actively spreading lies, or isn’t even bothering to check whether something is a lie, there’s no foul.
Moving on with the analysis of the instant fact pattern, assuming for the sake of argument that the GQ story was false, under which circumstances would actual malice be present? Again, for the sake of argument, let’s assume that GQ wasn’t aware that the story was false. They had a source who claimed it was true; isn’t that enough? Maybe. Did they have two confirming sources? I’m guessing no. Personally, I roll my eyes at any news item based on *factual* accounts provided by a source that must, for whatever reason, remain anonymous. Anyone who doesn’t realize that such garbage is, at best, propaganda should seriously consider euthanasia. Does reporting on anonymous tips rise to the level of “reckless disregard for the truth,” I say “yes,” but I’m sure there are plenty who would disagree.
Don’t be confused, however, between the right that everyone has to remain anonymous, in criticizing or participating in public discourse, and the shoddy practice of quoting an anonymous source. In the former, the speaker had better give some hard, verifiable facts before she should be given any credibility whatsoever. The latter is, nine times out of ten, unforgivable deception that any reputable news outlet will avoid if it has any notions of integrity. If the magazine you’re reading is citing anonymous sources, as long as you’re aware they’re probably printing lies, there’s no need to worry about it. If you’re voting in elections based on that information, though, pay attention to this: Anonymous sources in every state election commissions’ offices all confirm that the 2010 mid-term elections will be actually held on Wednesday, November 3rd. See you at the polls then.
The Illinois Appellate Court’s 3d District recently overturned the LaSalle County circuit court’s decision to preserve online anonymity for two commenters. In the comments section of an Ottowa Times’ online article, the anonymous parties accused the plaintiffs, a local couple, of making bribes in order to secure favorable zoning treatment for land they owned.
The dispute’s subject matter raises interesting questions of public importance and privilege for the commenters’ statements. Still, the commenters’ accusations of the officials’ corruption through accepting bribes calls for a more nuanced argument than merely claiming the statements were mere opinion. The Tribune and other news organizations filed amicus briefs in the case, arguing in favor of commenter anonymity for the sake of freer, more open discourse.
If appealed further, Illinois will have a chance to weigh in on the standard for unmasking anonymous internet commenters. Many states have followed the Delaware Supreme Court’s standard in Cahill v. Doe, which requires a plaintiff to present evidence that could defeat a defendant’s motion for summary judgment in order for the court to issue a subpoena that would unmask a Doe defendant. Though a higher standard than bare “good cause,” all that is required to oppose a motion for summary judgment is an issue as to some material fact. While some facts are required under this standard, and it prevents devious plaintiffs from baselessly denuding defendants of their anonymity, it is not a particularly high threshold to meet.
Cahill is not the undisputed measuring stick for determining whether anonymity should be preserved or stripped from an internet commenter, though. In Dendrite International v. Does, the New Jersey Appellate Court set forth a five-factor balancing test for compelling an ISP to unmask an anonymous poster. The factors considered are:
1) The plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him or her to respond;
2) Plaintiff must identify the exact defamatory statements made by the poster;
3) The complaint must set forth a prima facie cause of action;
4) The plaintiff must bring forth sufficient evidence for each element of its claim; and
5) the presiding court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the plaintiff’s prima facie case and the necessity for the disclosure of the defendant’s identity.
There is evidence that the multi-factor Dendrite case is becoming the favored standard for evaluating subpoenas that would unmask anonymous defendants. The Arizona Appellate Court remanded the case in Mobilisa v. Doe to the trial court with specific instructions to apply the Dendrite test, as its application of the Cahill standard was improper.
Assuming further litigation arises in this case, it would be an ideal time for Illinois to adopt the Dendrite test or reinforce that standard’s primacy within the state if it has only scant support. The Cahill test isn’t bad, per se, but lacks the refinement and explicit First Amendment considerations found in Dendrite’s multifaceted evaluation of the subpoena and its consequences.
The scenario that everyone should fear is the Illinois court bucking the nation and fashioning its own standard, creating yet another test to be evaluated by courts that have yet to decide this issue on their own. While the Illinois courts would be within their discretion to create such new tests, it is unnecessary; the current tests work fine, even if one is superior to the other. For Illinois to create a new standard for the sake of demonstrating its own perceived legal significance – at least relative to New Jersey and Arizona – hundreds of truly innocent defendants would pay the cost of divining which standard should apply — a particularly cruel fate for the SLAPPed.
Popehat is a blog that I think was born in the same litter of puppies as the Satyricon. We love them. Reason #1 — constant Dr. Who references. Reason #2 — ethics lessons.
In this piece, Patrick provides us with a fantsays letter (based on a phone call he had) declining to represent an insurance company that wanted to sue kids who attempted suicide. In their failed attempts, the kids apparently made a mess in their insured’s homes.
In this day of the legal profession going to hell, and all of us scrambling to stay with the “haves,” as the income gap widens, Patrick’s “fuck you” letter should be distributed to all first year law students. As a lawyer “I am only doing my job,” is not an excuse for doing something sleazy, shitty, or shady.
Anyone who takes those cases should be disbarred and then they should have a bees nest shoved up their asshole, and it should be capped with a cactus. The same fate should befall the flunky who suggested that this might be a basis for a viable claim.
Posted by Charles Platt 
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