Glenn Beck’s WIPO Complaint

A very interesting case that Marc is handling.

He filed this Response (don’t forget the annexes) to Glenn Beck’s Complaint (exhibits included) yesterday.

UPDATE: He has requested that Mr. Beck stipulate to the First Amendment applying to these proceedings. I will update you when Beck responds.

ANOTHER UPDATE — ROUND TWO:

Glenn Beck filed a supplemental filing.
The Arbitrator accepted it and asked for a surreply.
The surreply — (and the exhibits to it)

Marc asked that LS’s editors/writers publish no further commentary on the case until a decision is rendered. However, there is commentary and analysis here.

He has further asked that any comments to this post should be respectful to both Mr. Beck and his attorneys.

Sotomayor’s Bad Free Speech Decision Doesn’t Mean She’s a “Censorship Goon”

By Jess Christensen

In an earlier post, Professor Randazza expressed the view that a 2008 decision by the Second Circuit Court of Appeals, of which Supreme Court nominee Sonia Sotomayor is a member, demonstrates that Judge Sotomayor is a “censorship goon.”

Respectfully, Professor, I disagree.

To be clear, I agree that the court’s ruling was wrong. But I disagree that this decision alone means that Sotomayor is no friend of the First Amendment.

You can read the court’s opinion in Doninger v. Niehoff, et al. for yourselves, but the gist is that student Avery Doninger was disqualified by school administrators from running for class office because of statements she posted on her personal blog calling the school district’s superintendent a “douchebag” and encouraging people to call the superintendent to express support for holding a school event.

The right to free speech embodied in the First Amendment is not a right to speak without consequence. If you tell your girlfriend, yes, your ass does look fat in those jeans, the consequence is likely to be no nookie for at least a month. If in a job interview, you say that your goal is to spend as little time working as possible and intend to surf the internets at every opportunity, you consequently aren’t going to get the job. If you set up an anti-semetic Facebook page that spews hateful racism and encourages violence, you run the risk that the Facebook people are going to tell you to piss off.

The problem arises when it’s the state that’s doling out the consequences.

Public school settings present a particularly thorny First Amendment landscape, where the balance between the free speech rights of students are often in awkward tension with the legitimate interests of schools to maintain an effective learning environment. If a student stands up in the middle of Algebra class each day and spends 10 minutes screaming “fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuuuuuuuuuuuuck” a the top of his lungs, I think we can all agree that while it might be funny the first time, it’s speech that is disruptive, and that, well, there should be some kind of consequence – even if that consequence technically transgresses the student’s First Amendment right to yell “fuck.”

In contrast, what the school failed to demonstrate, in the Doninger case, is that what Doninger wrote on her personal blog actually had the effect of disrupting the school (or, was so likely to do so that the school had no alternative to imposing discipline). That school administrators got some annoying phone calls and emails as a result of the blog (and a related email the students sent out) is insufficient to outweigh the likelihood that student free speech would be chilled as a result of banning Doninger from running for school office. So, I think, Sotomayor and the other members of the Second Circuit panel got it wrong.

That said, First Amendment cases that involve public schools are almost never easy, and very, very often are the result of the failure of the adults involved to find a solution to the problem that doesn’t involve state-imposed punishment. Doninger’s parents could have stepped in, and worked with their daughter to teach her that there are more effective ways to communicate about the issue. School officials could have used the controversy as an occasion to teach about the First Amendment, and perhaps convey the important life lesson that just because you have the right to say something, or say it in a particular way, doesn’t means it’s wise or productive to do so. Instead, the adults involved – parents and teachers – abdicate their responsibilities to courts who are ill equipped to mediate the growing pains of kids and make decisions about constitutional limits in the context of what should have been a parent-teacher conference.

So, while I agree that the Doninger decision was wrongly decided, I think its a poor basis for calling the game on her nomination. Initial reviews of her judicial record, including one done by the First Amendment Center, indicate that while there’s some cause for concern (the Doninger decision), there are other reasons to support her nomination based on cases involving free speech, free exercise, and separation of church and state – even if her record on the whole provides too few concrete examples to be able to predict how she’ll rule on many constitutional issues.

No More Rainbow-Themed Weddings in California

The California Supreme Court has upheld the constitutional amendment (known as Prop 8) passed by California voters last November — changing the state’s constitution to provide that you can’t get married if you’ve got matching nasty bits. The challenge to Prop 8 had been brought on the theory that it was really an unlawful revision of the state’s constitution, as opposed to an amendment. A tough sell by pretty much everyone’s estimation. However, the court did rule that gay couples already married in California prior to the vote approving Prop 8 would remain legally married. Californians can expect to see referendums to repeal the ban on every future statewide ballot.

Another Strip Club Sued for Age Discrimination

By Jess Christensen, Employment Law Correspondent

A while ago, I wrote about Kimberlee Ouwroulis and Barbara Sanders, both Canadian exotic dancers in their mid-40s who sued the club that fired them for being too old. Now the can you be too old to work at a strip club? debate comes to America.

The EEOC has filed a lawsuit against Houston’s Cover Girls club on behalf of former waitress Mary Bassi, alleging that the club engaged in age discrimination when it fired her in 2006. At the time of her termination, Bassi was 56 years old, and had worked for the club since 1993. According to reports (the complaint itself does not appear to be available online), club managers called Bassi “old” and teased her about entering into menopause and showing signs of Alzheimer’s disease. According to the EEOC attorney handling the case, Bassi had been a high earner until the club started to assign prime shifts to younger waitresses. Attorneys for the club have so far declined to comment on the case. Bassi now works as a waitress for a competitor club—though, competition isn’t stiff (heh), since Cover Girls burnt down in 2007 and hasn’t yet been rebuilt.

Tempest Storm and Bette Paige

As talked about in my earlier post, an employee’s age cannot be considered as a factor in any employment decision, unless age is a Bona Fide Occupational Qualification (BFOQ)—i.e., that age is relevant to the essential functions of the job. While strip club employers will undoubtedly argue that age relates to beauty, and beauty is certainly an essential qualification for adult entertainment establishments such as strip clubs, they might do well to consider the case of Tempest

Who says 81 isn't hot?

Storm, who at age 81, is still a crowd pleaser. Although Storm has semi-retired after more than 50 years as a stripper and burlesque dancer, she still makes headliner appearances at such legendary venues as San Francisco’s O’Farrell Brothers Theater and performs frequently in Las Vegas, stripping down to a sheer bra and G-string in front of cheering, packed houses.

And now for a little Friday afternoon entertainment…

Does Your Sex Life Need A Federal Bailout?

Larry Flynt, publisher of Hustler magazine, and Girls Gone Wild CEO Joe Francis say it does.

Flynt and Francis announced that they will be asking Congress for $5 billion in federal bailout funds. Because the porn industry is in the same financial crapper as the Big 3 auto makers and the banks? No. It’s not the industry that needs the bailout, they say, its the sex lives of Americans:

With all this economic misery and people losing all that money, sex is the farthest thing from their mind. It’s time for congress to rejuvenate the sexual appetite of America. The only way they can do this is by supporting the adult industry and doing it quickly.

Is more porn for all the answer to America’s economic woes? Maybe not. But really, at least this way, when we pony up bailout money we’ll be getting screwed in a good way.

You Are Only Young Once — But You Can Be Immature For A Lifetime

Prof. XXX: The Early Years

In honor of all things old and over trafficked, the Satyriconistas are pleased to bring you this, our 1000th post – which fittingly comes on the most esteemed day of all: Marc “Professor XXX” Randazza’s 21st…er, 29th…echem, 32nd…eek… 39th BIRTHDAY!

Baby Makes Three

As many of you know, Marc has a lot to celebrate this year. In what is rumored to be one of the great “gotchas” of all time, he convinced an otherwise lovely and sane woman to marry him. Not one to settle for anything less than a complete coup, he also got her to procreate, bringing us the lovely Natalia. Loud-mouth punk come loud-mouth husband, father, lawyer, teacher – it seems you have arrived.

Fierce and... nearly 40!

So, on this auspicious day, we offer you our best birthday wishes, given with love and the knowledge that in the shadow of your many accomplishments to date, you are and will always be, older than us.

And remember, in the words of the late Charles Schulz, with whom you share this birthday, “once you’re over the hill you begin to pick up speed.”

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

Louisa 'Crystal Gunns' Tuck at the AVN Awards

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

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

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

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

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

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

Too Old To Strip? Canadian Dancers File Age Discrimination Suits

By Jessica Christensen, Employment Law Correspondent

Kimberlee Ouwroulis

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

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

Barbara Sanders

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

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

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

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

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

“Happy Holidays” Cause of Economic Crisis

You Choose: 'Merry Christmas' or Thunderdome

Ken over at Popehat points out the latest Wall Street Journal bizzaro-world editorial; one which bears further gawking.

According to editorial page Deputy Editor Daniel Henninger, the cause of the current economic crisis can be boiled down to the cultural trend to offer your neighbor a “Happy Holidays” instead of the more traditional “Merry Christmas.”

This year we celebrate the desacralized “holidays” amid what is for many unprecedented economic ruin — fortunes halved, jobs lost, homes foreclosed. People wonder, What happened? One man’s theory: A nation whose people can’t say “Merry Christmas” is a nation capable of ruining its own economy.

Yeah. That’s right. You lose your Christmas spirit, you lose your house. Duh.

What really went missing through the subprime mortgage years were the three Rs: responsibility, restraint and remorse. They are the ballast that stabilizes two better-known Rs from the world of free markets: risk and reward.

Responsibility and restraint are moral sentiments. Remorse is a product of conscience. None of these grow on trees. Each must be learned, taught, passed down. And so we come back to the disappearance of “Merry Christmas.”

It has been my view that the steady secularizing and insistent effort at dereligioning America has been dangerous. That danger flashed red in the fall into subprime personal behavior by borrowers and bankers, who after all are just people. Northerners and atheists who vilify Southern evangelicals are throwing out nurturers of useful virtue with the bathwater of obnoxious political opinions.

The point for a healthy society of commerce and politics is not that religion saves, but that it keeps most of the players inside the chalk lines. We are erasing the chalk lines.

Feel free: Banish Merry Christmas. Get ready for Mad Max.

Before you ask, yes, I believe he is getting paid to write editorials. I guess it follows that if we bring back Yule Logs and impose mandatory caroling, we’ll be out of the financial weeds in no time.

You So Smart

Legal Satyricon Readers: Wicked Smaht

This website claims to analyze what “type” a blog is. By extension, this would also suggest what “type” the bolg’s readers are. Here’s the result for Legal Satyricon:

The logical and analytical type. They are especialy attuned to difficult creative and intellectual challenges and always look for something more complex to dig into. They are great at finding subtle connections between things and imagine far-reaching implications.

They enjoy working with complex things using a lot of concepts and imaginative models of reality. Since they are not very good at seeing and understanding the needs of other people, they might come across as arrogant, impatient and insensitive to people that need some time to understand what they are talking about.

Can anyone say “lawyers”?

HT: Andrew Sullivan

EDITOR NOTE:

If our readers are so smaht, then explain this: Here are the top three search terms that brought people to this blog yesterday.

penis 125
penis pumps 13
max hardcore 9

The First Amendment Is A Beautiful Thing

The Divine Queen and Heiress Mariette

Often we are challenged to remember the importance of the First Amendment in the context of truly objectionable expression, such as hate speech. But every once in a while, the truly objectionable transgresses into the truly hilarious – as is the case with this gem. It’s an amicus brief filed in the California Supreme Court by the Kingdom of Heaven: World Divine Government in support of Proposition 8’s ban on same-sex marriages.

The brief’s author, one D. Q. Mariette Do-Nguyen, “Heiress Of The Almighty Eternal Creator,” is not merely advancing her own political perspective here. She had a dream.

After a night full of dreams, before dawn of November 11, 2008, before I woke up the morning, the Almighty Eternal Creator ordered me, saying, “You explain to them the consequences that follow each and all actions. Once they understand, they will listen!”

Along with my dreams during the night before dawn of November 11, 2008, the Almighty Eternal Creator instructed me to explain the consequences in writing and file with the California Court of Appeals, the Supreme Court, as well as the United States Federal court regarding certain individuals and government agencies for each and all actions. He seriously emphasized that world government leaders and high-ranking officials are like religious leaders and officials, and they must assist each other to comply with the Laws of the Almighty Eternal Creator/sole Owner of the earth and human race.

As instructed, the Heiress explains:

The issue of this case is gay and lesbians demanding that the State of California courts strike down the State of California’s Constitutional Amendment that passed by a majority (52%) of voters on November 4, 2008. This amendment is for wrong purposes of legalizing same-sex marriage. Courts throughout the entire State of California, the United States of America, as well as world courts DO NOT have authority to reverse the Almighty Eternal Creator’s Law that bans same-sex marriage.

This apparently is because

They lack understanding of the Almighty Eternal Creator’s family of three-the three branches that function in God’s family. They do not understand the Almighty Eternal God’s creation of planets, the earth, living creatures, including human souls and human natural bodies, and religious identities. The United States Supreme Court justices fell to the region where the Devil reigns, and the majority of them issued the following two decisions: separation of church and state and a woman’s right to abort unborn children.

As such,

These two matters (gay-lesbian and abortion) are just a couple of many major cases where people are exercising their free-will rights for wrong purposes. This has gone on for a hundred-thousand years and has contributed heavily to extreme weather, global warming, financial crisis, recession, global hatred, lying, violence, war and murder, serious sickness and diseases-often for the purpose of gaining rights for wrong purposes, power, and money.

And,

For individuals who choose to exercise their free will and disobey the Almighty Eternal Creator’s Laws, their souls receive an energy supply “indirectly” from God, through a destructive channel, known as the Devil or Satan. The Devil or Satan was created by the Almighty Eternal Creator to discipline human souls. The energy supply distributed by the Devil or Satan is very destructive for purposes of destroy human on earth, the earth and human souls eternal life. Therefore, once anyone chooses to exercise free will by disobeying the Almighty Eternal Creator’s Laws, their souls automatically receive an energy supply from the Devil or Satan’s channel.

Therefore, in conclusion

Indirectly, God prohibits gay and lesbian marriage.

Here’s hoping that all the pro-Prop 8 briefs are similarly so well reasoned!

News Flash – California Supreme Court to Consider Constitutionality of Prop 8

Just over an hour ago, the California Supreme Court issued an order stating that it will hear the challenge to the consitutionality of Proposition 8, the ballot measure banning same-sex marriage in California which was approved by voters in this month’s election.

The issues to be heard by the Court are:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 14.)

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Briefs are set to be filed in January 2009.

Your New Job’s “No Wussies” Health Plan

 

By Jessica Christensen, Employment Law Correspondent

Who says the AFL-CIO doesn’t have a sense of humor? Joining the viral-video age, “big labor” brings you “Your New Job,” endorsing the Employee Free Choice Act (which I previously wrote about here).