The Catsouras Photos, Privacy, and Privilege

The Catsouras' Car. We have made an editorial decision to refrain from publishing the photos of the dead girl.

The Story:
A Porsche. A girl. A tragic death.

For those who don’t know, Nikki Catsouras was a beautiful young girl who made a terrible error in judgment, and it cost her dearly. Nikki was a rich kid (which is relevant) who stole her dad’s Porsche to go for a joy ride. With cocaine in her veins, and fine German engineering at her fingertips, she drove her dad’s $90,000 sports car way too fast, and way too recklessly.

She flipped the car and smashed into a tollbooth. In an instant, a vehicle that cost as much as a decent house in Kentucky transformed into a twisted ball of useless metal. More tragically, the impact tore Nikki Catsouras’ body apart. Someone at the scene took a series of photographs. The most graphic photo shows the girl’s head split open, the brain cavity empty as the impact squashed it like an over-ripe piece of fruit. I will not link to the photos of her, but if you are desperately curious, it shouldn’t take too much research to find them. Before you run off to search, let me warn you: If you have a single shred of humanity in you, viewing the photos of this girl’s body will make you feel like you’ve been kicked in the stomach. Crying would not be an unpredictable reaction – not even from the most stoic individual. You will, most likely, wish that you had never seen it.

The tabloid speaks to the daytime television addled masses

Newsweek reported on the story:

The accident was so gruesome the coroner wouldn’t allow her parents, Christos and Lesli Catsouras, to identify their daughter’s body. But because of two California Highway Patrol officers, a digital camera and e-mail users’ easy access to the “Forward” button, there are now nine photos of the accident scene, taken just moments after Nikki’s death, circulating virally on the Web. In one, her nearly decapitated head is drooping out the shattered window of her father’s Porsche. (source)

Somewhat predictably, the Newsweek piece then descends into tabloid-esque fear mongering and carries the torch for shrill anti-speech advocates. The author obviously spent her share of time talking to the fear-mongering and panic industry leaders, as she seems to be one of the last people on earth who considers the ironically-named “Reputation Defender” company to be any kind of a source of reliable information. The author takes only a few paragraphs before she cheekily labels those who posted the photos with a nifty little title, “cyber-aggressors.” The author does not deign to seek out anyone who might have a balanced opinion.

Silverman channels Jefferson, Voltaire, and Brennan

Although Newsweek did not seek out anyone with an opinion based in both law and ethics, preferring those who are pimping their books or their worthless “privacy defense” services, those voices are out there. Suffolk University Law Student, Justin Silverman provides a thought-provoking uncomfortable defense of those who publish the Nikki Catsouras photos — embracing the “hate the speech, but love free speech” view.

Silverman admits that his first reaction was “[s]traight from the gut,” and that he felt that the photos should be taken down. However, like all ethical thinkers, he reflected upon his emotions and meditated on his position. Silverman, giving us a view into his First Amendment bona fides, found himself defending expression which he despises.

I now realize my first reaction was the wrong one. Unlike most stories, the lines here are blurred and emotion can trick you into thinking you are advocating the right thing. The right thing, in this case, is not what it first seems. It is to defend that website’s right to show the photos, however disrespectfully it chooses to do so.

According to the Newsweek story, the Catsouras family considers itself out of legal options. The photos are public record after all, released by the police and made fair game to all whom seek to publish them. The dead can claim no privacy rights, and the photos are of only Nikki. These are the realities of firm legal principles that protect the public’s right to know and make it easier for information to be distributed. (source)

Of course, Silverman still despises those who published the photos. Despite his willingness to defend their publication, as part of his general support for free expression, Silverman does not let us forget that where the law’s boundaries end, there is still plenty of ground covered by something called “ethics.” Silverman is palpably reluctant in his eloquent defense of the right to publish the photos. Nevertheless, while he judges the photographs to be without value, and lectures the reader on ethics, he stays true to his own. Silverman admits that despite his personal distaste for this particular expression, he understands why the right to publish these photos exists, and he vows that he will continue to defend that right.

It’s not a change in the law I advocate. It’s just a reminder that in some cases our rights come at a high cost to others. Though we are free to exercise our rights, we should do so with purpose, for a greater good.

And that being able to publish photos doesn’t mean that we should. (source)

Amen brother.

The academic circle jerk naturally disagrees with Mr. Silverman and wants big brother to put us under his loving protective arm. Dan Solove comments at Concurring Opinions:

the government has a duty to avoid unwarranted disclosure of personal information unless there is a countervailing interest that outweighs the privacy interest. In the Catsouras case, the disclosure of the photos was clearly unwarranted. The police department punished the dispatchers for the disclosure, indicating that the disclosure was not condoned. These facts indicate to me a rather compelling case under existing law that the California Highway Patrol is liable for violating the Catsouras’s constitutional right to information privacy.

“Constitutional right to information privacy?” Hold on. Let me check my Constitution. I must have a different Constitution than Mr. Solove. Now worry not, I’m not one of those “if it isn’t explicitly in the Constitution, it isn’t there at all” types. I agree that there is some constitutional right to privacy. “The First Amendment has a penumbra where privacy is protected from governmental intrusion.” Griswold v. Connecticut, 381 U.S. 479 (1965). However, a constitutional right to information privacy? I can’t go that far.

Nevertheless, I do agree that there should be a right to some form of information privacy. You should be able to feel secure that when the government gathers private information about you, it won’t then go broadcasting it around without some proper purpose. However, this is not private information. This is incredibly public information. If you do something in public, whether it is peeing on the sidewalk, flashing your genitals, tripping over stick, or dying in a horribly gruesome manner — that makes it public. That means that you have no expectation of privacy in that information. Just ask every girl who shows her tits at Mardi Gras and then finds her photos on the internet and every guy who gets arrested on COPS wearing one shoe and a dirty wife-beater.

What drives the publication of these photos? What drives the outrage?

I agree with Mr. Silverman that just because we can disseminate these photos doesn’t mean that we should. One would hope that human decency would compel people to refrain from exercising their right to distribute gruesome, gory, death-scene photos. I considered linking to them to prove a point or two, but my conscience wouldn’t let me. I simply feel too much compassion for Nikki’s parents to be part of the pornification of her death.

Accordingly, we have figured out that there was a legal right to publish these photos. We have also figured out that it was ethically objectionable to do so. This was someone’s daughter, and turning their death into mere voyeurism is simply disgusting. While I do not support the Catsouras family’s legal quest to bring the wrongdoers to justice (because I see no legal wrong in the publication), I can assure you that if I met the person who did publish them, I’d haul off and bust their teeth out and mail them to Nikki’s parents as trophies.

But, that leaves some questions about the human condition. Why have these photos, in particular, become such a target for voyeurism? And, this begs the corollary question: Why has the publication of these photos, in particular, inspired such outrage from the established mainstream media? Why such outrage from the legal academy that accomplished professors would place their very credibility on the chopping block and fall over each other to invent legal theories that even a law student knows are bunk — merely to support their emotional response?

I think the answer comes down to cultural class warfare.

Lets think about what is so different about these particular photos from other gory death photos. Are these the first photos to be splashed across the internet that show twisted and mangled corpses of someone’s loved ones? Someone loved this guy, and this guy too. Rotten.com is full of images of the dead and dismembered. There was no similar outrage when ice-packed Iraqi corpses were displayed for all the world to see. To this day, we can find photos of burned victims of Little Boy and Fat Man.

But this is different, isn’t it? But why?

This is different because it was a privileged, young, white, girl.

If that accident had been some poor black girl in a Chevy Lumina with duct tape on the fender and cellophane over the brake light, nobody would have given a shit. The photos might have made their way on to rotten.com, but nobody would have forwarded them, and nobody – especially not anyone who went to an Ivy League school – would have wasted the sweat on their fingertips by writing about it.

You have no idea who this girl is, do you? Click the image to find out.

Newsweek’s author and the academic circle jerk are offended because the Catsouras photos offend their notions of how the rabble should treat the privileged. You know exactly what I am talking about. That same privilege that made Natalee Holloway a TV news obsession because she was a privileged white girl on vacation in Aruba. Meanwhile, hundreds of black, hispanic, and just not-as-blonde, and most importantly — POOR — girls go missing in the United States every day. Greta Van Susteren could give a shit about them, but Fox News won’t ever let us forget that a rich blonde girl went missing in Aruba.

But it is hardly surprising that privacy advocacy and privilege go hand in hand. The entire concept of a “right to privacy” grows from an 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis. They were not motivated by fear of an over-reaching government. They were motivated by a threat to their own privilege. In 1890, class divisions were far more distinct than they are today. The poor literally starved to death. Disease ran through American slums like fear of the Swine Flu runs through the advertising addled of today. Meanwhile, the wealthy lived in their Back Bay and Beacon Hill mansions, summered in Newport, and were far removed from the unwashed rabble that toiled for pennies a day so that the rich might keep their hands clean. Yet, when the rabble began to see how the “other half” lived in the gossip rags, the Brahmins were aghast. Did they not have a “right” to lord over the proles without the damn proles peeking in their windows? Warren and Brandeis certainly thought so.

The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

Ah yes, the rhetorical device of claiming that mere words inflict more pain than bodily injury. Just once, I would love to hear someone say that and then slash their face with a razor blade to see if they really mean it, or if it is just academic circle jerking in action.

Brandeis and Warren trotted out rhetoric that sounds distinctly like the snooty whining of today’s Brahmins and over-educated do-nothings.

Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

Yes, if that looks familiar, you’ve been reading Cass Sunstein, Gail Dines, or Concurring Opinions. I don’t mock this, nor those authors, because I disagree with them. I actually agree 100% with the above paragraph. I fully believe that the idiots that slather across the landscape, driving at 45 miles per hour in the left hand lane, shopping at Wal-Mart, and very successfully passing their genes on to the next generation of Palin supporters and Octomoms are stupid and easily distracted and the world would be much better if they all read The Economist and Plutarch.

However, I’m different from the circle-jerk for two key reasons: 1) I can fully and publicly admit that I agree because I am a snob and I look down on 98% of mankind. 2) Despite the fact that I agree, I would not advocate for my views to be backed up by a change in the law. A citizen should be permitted to be an idiot if that is his choice. Where I part ways with Brandeis, Warren, and their intellectual descendants is when they call for the government to cure the ill. I say let the mouth-breathing NASCAR fans read their gossip magazines, watch their reality TV, and let them get off on watching the upper classes tear themselves apart. This, along with the opiate of religion, is what keeps them from rising up and cutting all of our throats. (By “our” I mean mine).

Lets face it, since the earliest of times, the lower classes have loved to watch their betters suffer. It provides a salve to the daily suffering that comes from being a low-life. If you live in some dump like Lakeland, Flori-duh, driving your crappy car to your crappy job and coming home to your crappy house and watch your crappy TV with your crappy stained t-shirt on while you look at your crappy ugly redneck wife and your stupid inbred redneck children, it must really suck. It must suck even more when you see that there are people like the Catsouras family: Dad worked hard, dad made lots of money, married a hot wife, and had three utterly beautiful daughters. Meanwhile, you’re eating pork rinds and beans in your fart shack of a dump, working at the plant, until it shuts down and your job gets shipped to Mexico. Then, you see the Catsouras family suffer — in large part due to their privilege. A rich kid’s drug (cocaine) plus a rich man’s car, in sunny Southern California, turns from the ingredients of a life that mocks your very existence into the components of a tragedy that lets you guffaw — that your kid won’t ever die like that, because you didn’t ever think too much of education or getting anywhere in life.

A big shiny Porsche and a beautiful young pilot with cocaine in her system turns from an object of envy into a parable for how the rich and their decadence will destroy them — or at least make those who drive that Chevy Lumina feel better about their condition.

Well, if that’s the case, damn it feels good to shit on the Catsourases, doesn’t it?

And when the rabble shit on the Brahmins, the Brahmins look out for each other and call for changes in the laws.

I’m sad that the Catsourases are collateral damage in this perpetual play. I got chest pains reading about their plight. I’ve been there. My best friend died in a rather spectacular manner, and the douchebag who did it is regularly profiled in magazines and TV spots — and he rubs my friend’s death in my face every time he does it. My wife has gone so far as to forbid me to enter the guy’s home state, lest my Sicilian heritage rear its head.

But, I’m not prepared to turn my pain into the suppression of the dissemination of lawful material, nor do I want a new law named after my best friend. Shit happens. Sometimes, when shit happens, there is a camera, a witness, a compelling story, and then those of us who were just minding our own business have to suffer the feeling of an ice pick into our hearts every time the needle skips on the vinyl of life. Those with privilege want to use that ice pick to chip away at our constitutional rights – which only further entrenches their privilege. If we let them, by the time they are done, we will have a patchwork of laws created by extreme outlier incidents, pushed for by the overprivileged like me, the Catsourases, and the legal academy – ushered in by a wail of hysterical shrill cries from those who follow them over the cliff.

Then, the 99.99% of other incidents that happen in daily life would be governed by these outlier incidents – slowly turning our entire existence into one that mimics our time in the security line at the airport.

That is not a result I want to see.

The Asshat in the Rye

Fuck You, Old Man Salinger

J.D. Salinger wrote one of the most influential novels in modern history. If you don’t know which book that is, then you’re a moron. That might piss you off, if you are one of those who don’t know which book Salinger wrote, being called a moron and all. All morons hate it when you call them a moron.

Since writing his book, Salinger pretty much didn’t do anything worthwhile. Sure, he wrote a few more books, but nobody read them and nobody much cared. The Catcher in the Rye (fine, morons, there it is) was his magnum opus, and if I ever wrote something that damn good, I probably wouldn’t bother to write anything anymore either. I’d just go off and sit on a beach and drink mojitos with my royalty check money. Of course, then I might get drunk and call the guy a moron, because the guy usually is a moron.

But back to the book. What really knocks me out is a book, when you’re all done reading it, you wished the author that wrote it was a terrific friend of yours and you could call him up on the phone whenever you felt like it. The Catcher in the Rye knocked me out that way. I think it knocked out this Swedish guy, goes by the name J.D. California, because he wrote a sequel to The Catcher in the Rye where the main character is in his 70s and runs around New York City as a crazy old coot. I’m pretty sure that the book, 60 Years Later: Coming Through the Rye, sucks. I haven’t even read it, but if it was written by a Swedish guy obsessed with America and he can’t come up with a better pen name than “J.D. California?” I’m sure the book is a bunch of lousy recycled crap about what he sees on T.V. and thinks that is anything to do with the crumby America we live in.

Crumby and stupid or not, it was probably about time someone writes a sequel to The Catcher in the Rye. You might figure that Salinger would do it, but until today, I thought the old coot was dead. I guess he is still alive, 90 years old, he probably smells like that old guy smell, writing crap wishing he could write The Catcher in the Rye again.

Well, old man Salinger got right sore at “J.D. California,” for writing his sequel, and he’s suing him for it. I can see him now, old man Salinger and some stick up his ass crumby Ivy League lawyer, maybe even an academic with stupid patches on the elbows of his jacket, in court to stop J.D. California from writing the words “Holden Caufield,” because Old Man Salinger thinks that he owns that. Crazy old bastard. But, phony J.D. California doesn’t even call the guy “Holden Caufield.” He just uses the name “Mr. C.” Here’s Salinger’s lousy complaint full of self-important goddamned junk. God I hate that stuff.

If you really want to hear about the suit, the first thing you’ll probably want to know is what “fair use” is, and what Section 107 of the Copyright Act says and all that Mel Nimmer kind of crap but I don’t feel like going into it, if you want to know the truth. I don’t really write this blog for people who don’t know that kind of stuff already.

And like I said, I haven’t read anything by “Mr. California,” so maybe it is a “rip off,” like Old Man Salinger says, but I doubt it. Among other things, you’ll find that Old Man Salinger is not the first person who was ever confused and frightened and even sickened by human behavior and wrote a book about it. If his book is about a guy right out of high school, and “California Man” writes his about an old bugger, with maybe the same name and all, I can’t see any way that could be “copyright infringement,” at least not the section 106 or 107 version of it they taught us in my crumby law school. And if it pisses you off that there are guys out there who contribute one thing to the collective culture, and then think they have a monopoly on anything related to it, well you’ll be excited and stimulated to know. Many, many men have been just as troubled morally and spiritually as you are right now.

The thing is, anything that pisses you off and sickens you or stimulates you is probably something that another alienated wack job felt. Happily, some of them kept records of their troubles. You’ll learn from them – if you want to. Just as someday, if you have something to offer, someone will learn something from you. It’s a beautiful reciprocal arrangement. And it isn’t education. It’s history. It’s poetry. But, don’t you know, Old Man Salinger’s mind must be so addled by brain rot and the whisperings of his crumby Ivy League lawyer that he doesn’t give a shit and now “Mr. California” will stand trial for more than picking a really queer pen name.

The crappy part of it is that we’re seeing this happen again and again. First crappy Seinfeld and his suit in Castle

Crumby judge

Rock. Then bitchy J.K. Rowling proved that you can take the white trash out of the U.K. ghetto, but it doesn’t change that she’s trash. And we’re supposed to be all nice about it, and say that they are just living off the fruits of their creative labors. But really, they are just putting big “Fuck You” signs on every stupid corner of the culture and they don’t care – because they made their money, and their stupid stick-in-the-ass Ivy League lawyers don’t care either, because they feel entitled. And if you ever wondered reasons why Sonia Sotomayor is a crumby judge, all you need to do is read her Castle Rock opinion – Castle Rock Entertainment v. Carol Publ. Group, 955 F. Supp. 260 (S.D.N.Y. 1997) where, like morons usually do, she stacked the deck for the big guy and crapped on the First Amendment.

In that case, Beth Golub watched too much Seinfeld, so she wrote The Seinfeld Aptitude Test, a bunch of trivia questions testing the reader’s knowledge of the Seinfeld TV Show. It doesn’t get much more “fair” use than that, but Sotomayor decided to apply a quasi-trademark law view mixed with a bizarre and narrow view of the fair use doctrine – and that since Castle Rock might have one day expanded their works into the trivia book realm, that Golub was infringing on Castle Rock’s derivative use rights. Then the crumby Second Circuit upheld her opinion. See Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998).

So with the crazy opinion in Castle Rock, you know that this is why Old Man Salinger filed in the Southern District of New York. After he saw Rowling win her case – even though Ol’ Bill Patry even thought she shouldn’t have – then you know that Old Man Salinger was just drooling on his remote control when Matlock came on and then his Ivy asshole lawyers told him he could win. And you know he will even though there’s no way he can say that he was gonna write the sequel, because he just hides in some cabin in New Hampshire, writing nothing or writing something but not publishing it.

Knowing that is half the way to knowing that copyright law has gotten seriously fucked up. The Copyright Clause says that it is there to promote the progress of science and the useful arts – and they thought that writing books was a useful art, don’t you know, so how is it “progress” to stop this “California Dreamer Guy” from writing his sequel, when all that Salinger should be writing is his stinking tombstone. If you think about it, and read Sotomayor’s anti-speech dribble and drabble and drivel you’ll start to see that she, and Old Man Salinger are the reasons that the whole damn culture is covered with “Fuck You” signs written by Ivy League assholes. And all it proves is that if you had a million years to do it in, you couldn’t rub out even half the ‘Fuck you’ signs in the world. It’s impossible. So I’ll just make one of my own.

Fuck You, Old Man Salinger. Fuck You.

Volokh Pwns Censorship-Minded “Liberal” Congresswoman Sanchez

Dirty Sanchez

A California congresswoman has been reading too much Danielle Citron bullshit and has proposed a crybaby liberal bill against “cyberbullying.” I’ve been working on a piece slapping her legislation around like the piece of shit that it is. Why bother, Volokh brings the pain, but he brings it nicely.

And you thought only Republicans were censorship goons! Silly mortals.

Chuck Grassley – No Campaign Contribution For You!

Grassley? More like ASSLEY!

A few months ago, I was on the Charles Grassley (R-IA) fan band wagon, here and here. I even said I would give him a campaign contribution. I take it back. Fuck Chuck. He’s sponsoring yet another jingoistic flag-burning amendment.

“No other image depicts as clearly the freedoms and ideals of our country than the American flag. It’s the symbol our men and women in uniform have fought for over 200 years,” Grassley said in a prepared statement. “The American flag has been proudly flown in times of battle, of victory, and of national tragedy. It is the most recognized symbol of freedom and democracy in the world.”

No, you fucking retard. The Constitution is the symbol of freedom and democracy. The Flag is a piece of cloth that doesn’t mean anything without the Constitution behind it. We should not fetishize a piece of cloth. Without the Constitution, that piece of cloth is meaningless and worthless. That is why I have proposed a change to the Pledge of Allegiance:

Proposal — The New Pledge

I pledge my highest allegiance
to the Republic of the United States of America.
I pledge to uphold, defend, and protect the Constitution
against all enemies, foreign and domestic, at all times.
I pledge to join with my fellow citizens for this cause,
and to achieve Liberty and Justice for All

Now THAT is a patriotic, accurate, and Constitutional pledge. We should pledge to that which really matters.

We should ritualize our loyalty in an accurate and constructive manner – to remember from where our country’s true strength grows. Grassley is just playing to the uneducated.

When “Support” is Really a “Tantrum”

Facts are sexist!

Ann Bartow posted a piece over at Feminist Law Professors that started out seeming to be a rather nice bit supporting Prof. Mark Lemley, one of the attorneys representing Brittan Heller and Heide Iravani in the AutoAdmit suit, — and a defendant in Anthony Ciolli’s countersuit — a case that the Eastern District of Pennsylvania has allowed to go forward — in part.

Bartow writes:

Mark Lemley got involved with this case, in my opinion, because he is a progressive, good-hearted, moral and generous person. (source)

I can’t be sure why Lemley got involved in that case. I directly asked him that question, and he didn’t answer me. Nevertheless, I believe that Prof. Bartow’s assessment of him is accurate. He does seem like a genuinely good-hearted, generous, and moral person, and I have never heard a single person say otherwise. His involvement in the case did puzzle me, which is why I asked him about it. While his silence was disappointing, I can understand that for liability reasons, it was better that he not reply.

I suspect that he got bamboozled into the case — that he wasn’t told the whole truth until he was already waist deep in the muck, and then it was too late to back out gracefully. Accordingly, I think it is kind of nice that Bartow supported Prof. Lemley. Hell, the man was one of my heroes before I saw the Auto Admit case with his name on it. I still reverently respect him and personally like him, and a part of me hopes that he can disprove the allegations against him. However, if the allegations do stick, like him or not, adults must answer for their actions.

Regardless of Lemley’s motivations, Prof. Bartow’s piece is not at all about supporting Lemley. Behind all of her compliments for him, this post is just Bartow’s latest anti-free-speech diatribe (see commentary on a previous one here), further demonstrating that second-wave feminists have turned the Auto Admit case into their cause-celebre. They just can’t wrap their heads around the fact that sometimes, occasionally, the poor female victim(s) can lie, be spiteful, be unethical, be misled, or just plain wrong. Or, if they can wrap their heads around it, they would rather set themselves on fire than admit it.

Bartow writes:

[I]t seems pretty obvious to me why Anthony Ciolli was named in the original law suit. ISP immunity under Section 230 does not apply to the authors of contested material. Ciolli was clearly posting comments at the AutoAdmit discussion board under at least one pseudonym, “Great Teacher Onizuka.” The plaintiffs had every reason to suspect that he was posting under others as well, and that he could have been personally responsible (and liable) for some of the actionable material. They could not rule him out without conducting discovery in the context of litigation, and they could not do a thorough investigation of the matter unless Ciolli was a named party. Once the plaintiffs knew either that Ciolli was not a bad actor or that they would be unable to prove that he was a bad actor, they dismissed him. Any competent lawyer would have done the same thing. This is Civil Procedure 101. (emphasis added)

Ciolli was “clearly” posting under a pseudonym. Was he? Was it clear? Was it about the girls? Was it negative? Then why include this?

Lets teach Prof. Bartow a little bit about Civil Procedure. Or, better yet, lets teach everyone else about it, because I can’t see Bartow getting off her shrill perch — but I’d rather not let people in the blawgosphere be misled.

Even if Ciolli were not a defendant, the plaintiffs would have had every right to subpoena and depose any person who may have possessed relevant information. In fact, after Ciolli was dropped from the case, Heller and Iravani’s lawyers did, indeed, take his deposition to make sure that they did not leave any stones unturned. Any competent law professor would know that this was not only possible, but proper. Any competent blogger would have at least read Ciolli’s complaint to find that fact. But, lets not let a pesky thing like the facts get in the way of a Dworkin wanna-be’s tirade.

If the reason Heller & Iravani sued Ciolli was because he “might have” posted under multiple personas, then why did they not name each and every moniker on Auto Admit? Everyone on Auto Admit could have had multiple monikers. In fact, law professor Brian Leiter is rumored to have posted on Auto Admit under the name “Tokyo Rose.” I posted on AutoAdmit under my real name. Why not name me? By Bartow’s post-hoc rationalization, Leiter and I both could have been one of the defendants until we were ruled out in discovery, no? Furthermore, if there was ever a suspicion that Ciolli used another moniker, then why wasn’t that allegation ever made, on information and belief, in the complaint?

I’ll tell you why not, because the Plaintiffs’ own published statements contradict Bartow’s made up “facts.” The “theory” that Mr. Ciolli was another pseudonymous poster never arose until Heller & Iravani’s lawyers started grasping for a way out of possible sanctions, and their cheerleaders started to see their lovely pre-packaged daydream unravel.

A competent attorney does not file suit against each and every person who could hypothetically be a defendant. (As in if the facts and the law were stretched like a goatse about to snap). If that were the case, then every lawsuit would name hundreds of defendants, including people who did nothing wrong, and let discovery sort out who was actually liable. Meanwhile hundreds of additional defendants would need to report that they were defendants in civil actions and live under the cloud of litigation while plaintiffs took their own sweet time figuring out if they had sued the right person. No, it doesn’t work that way and Professor Bartow should know that.

Bartow then throws out her own “theory.”

My theory on why Ciolli is suing Lemley and the plaintiffs? To scare away other potential plaintiffs, and to discourage other lawyers from representing them.

To scare other potential plaintiffs who might bring a lawsuit against him? I should hope so, since pages 23-29 of this decision make it pretty clear that Ciolli has brought a proper claim for wrongful initiation of civil proceedings against Iravani and her attorneys. Ethics and judgment are supposed to discourage lawyers from bringing baseless claims. It is a shame when someone must file suit in order to “scare” potential plaintiffs from abusing the courts and filing frivolous claims for an improper purpose.

The AutoAdmit case has been shown to be more of a shakedown, legal extortion, than a suit calculated to vindicate any real legal interests. While some might point out that over-inclusiveness and scattershot complaints are more common than I might like, the fact is that Bartow’s post is less about backing a nice guy – and more of a way of backpedaling and acting as an apologist for misuse of the legal system. Ethics matter, and the reason that so many lawyers miss that lesson is professors like this seem to disagree.

Ciolli had some pretty damning evidence to present in his case. Unfortunately for him, the E.D. Pa. ruled that it was excluded by FRE 408. Lets sit back and see if Ciolli’s lawyer in that case can find an alternate way of getting the information before the court. If he can, I’d imagine that Ciolli will prevail — which will probably give Bartow an excuse to blame it on the “patriarchy,” because in Bartow-world, the only women who are ever wrong or ill-motivated are those who disagree with her.

Homo Demons Attack: Just Because I Don’t Condone it Doesn’t Mean That I Didn’t Laugh Really Hard

Tradition? Check. Family? Check. Property? Check. Bat-Shit Crazy? Check! Lets Roll!

I have no idea how I wind up on some mailing lists. I get frequent updates from “The American Society for the Defense of Tradition, Family, and Property,” and they are always entertaining. TFP describes itself as follows:

The American Society for the Defense of Tradition, Family and Property (TFP) was born of a group of Catholic Americans concerned about the multiple crises shaking every aspect of American life. Founded in 1973, the American TFP was formed to resist, in the realm of ideas, the liberal, socialist and communist trends of the times and proudly affirm the positive values of tradition, family and property. (source)

Yes, because if there is one thing that Jesus and The Pope teach us, it is to defend property.

Lets just say that the updates from TFP are usually just hysterical shrieking about gay marriage or some other “the sky is falling” alert. This one just took the cake. In this update, our brave TFP warriors describe the ordeal of being attacked by homophile demons in the chaotic wastelands… New Hampshire:

Pro-homosexual Stalkers Harass TFP Volunteers

As we wrapped up after an exhausting yet very successful day, four individuals dressed in black raced across the parking lot towards the intersection where we had been standing. Not finding us there, they burst into the nearest office building, a used car dealership, asking where we had gone. To our dismay, the salesman pointed to our van. Seconds later our van was surrounded by the four sinister individuals in black. Their garish hairstyles defied any sense of decorum. Imagine bright purple hair and you have a mental picture of what they looked like. Honestly, I could not tell if they were male or female. They carried a sign caked with fresh red paint which they slapped on our windshield, smearing wet red paint on our van window. The sign was vulgar and I will not repeat was it said.

I was on the phone with a reporter when this happened but quickly realized these individuals wanted to damage our property (van) and perhaps harm us physically, if they could. “Get off the phone and leave,” I told myself. Then my TFP colleague, Mr. Benjamin Hiegert, calmly reached out and removed the pro-homosexual sign that was slapped onto our windshield, clearing our view. Although the sign was removed, red paint remained smeared on a portion of the windshield.

We drove away, but the harassment continued. ”We’re being followed,” observed TFP member Charles Sulzen (also our bagpiper) from the back of the van. In fact, the individuals in black also drove a black car. They tailgated closely behind our van, cutting off other vehicles on the road, breaking traffic laws in the process. If someone deliberately opposes God’s law, why would they respect traffic laws?

After making a series of traffic maneuvers and u-turns, the pro-homosexual advocates were still following us, flaunting their lustful behavior while waving a rainbow flag outside the window of the their car. Moments later, a second pro-homosexual car joined the first and it soon became clear that we were being stalked.

We invoked the Saints and decided to drive to the nearest police station. About one block shy of our destination the pro-homosexual advocates realized where they were being led and veered off in another direction. The police officer on duty received a detailed description of the incident and put out a search for the vehicles.

May Saint Joseph continue to protect us from the snares of the devil as we travel for traditional marriage. Please keep us in your prayers. Thank you. (source)

Fortunately for us, we had a Legal Satyricon camera crew up in New Hampshire and caught the whole thing on film.

Here we go again, Flori-duh proselytizing with our license plates

Rhonda Storms, as bat-shit crazy as she looks

Our favorite Anita Bryant wanna be, Rhonda Storms (R-Valrico) teamed up with the least intelligent member of the Flori-duh Senate Gary Siplin (D-Orlando) to each pass their own version of a bill to fund Christian-themed license plates for America’s Wang.

Siplin didn’t mince words when asked what his “Trinity” plate looks like, saying, “It has a picture of my Lord and savior Jesus Christ.” It, along with a “Preserving the Past” plate offered by Siplin, would benefit the Toomey Foundation for the Natural Sciences.

Storms’ “I Believe” plate would benefit Faith in Teaching, an Orlando company that funds faith-based programs at schools. Its design features a cross over a stained-glass window. (source)

At least Siplin’s plate would fund an organization that seems to be willing to accept the fact that the Earth is more than 6,000 years old. Storms, not so much.

Gary Siplin,
Incompetent, stupid,
and a state senator. Made in Flori-duh

Neither of them seem to have consulted with even a middling lawyer before pushing their little agendas. Last year, a federal judge blocked South Carolina’s “I Believe” license plates. See Summers v. Adams, 3:08-2265-CMC (D.S.C. 2008). Order granting Plaintiff’s motion for preliminary injunction.

In tossing out South Carolina’s “I Believe” tag, the United States District Court relied upon the three-part test laid out in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under that test, a government action must meet all three of the following requirements in order to conform with the Establishment Clause.

1. The action must have a secular purpose
2. The action must have a primary effect that neither advances nor inhibits religion
3. The action must not foster an excessive government entanglement with religion

The judge determined:

Based on the record now before the court, the court finds it unlikely that the “I Believe Act” satisfies even one of these requirements. As the Act must satisfy all three requirements to survive constitutional scrutiny, the court concludes that Plaintiffs have made a strong showing of likelihood of success on the merits as to their Establishment Clause Claim. (Op. at 4).

If you're sick of being a punch line, stop electing idiots!

Neither Siplin’s nor Storms’ initiatives seem like they would be able to survive the Lemon test either. But, don’t expect either of them to start respecting the Constitution any time soon. While legislators place their hand on the Bible and swear to uphold the Constitution, Storms and Siplin both think they did just the opposite.

One of these two clowns should be named “Asshat of the Flori-duh Senate.” I can’t decide which should be the winner, and which should be the first runner up.

Go Google each of them and vote. Feel free to lobby for your position in the comments.

Well, in OUR culture, we take a man at his word. New Guinea tribesman lies to Jared Diamond and now wants $10,000,000.

Can Pinocchio sue for defamation?

Pulitzer Prize winner, Jared Diamond, wrote a story in the New Yorker about a blood feud taking place among some yahoos from New Guinea. Apparently the story goes like this: One guy kills another guy, so that guy gets mad and kills another guy. Next thing you know, over a few decades, 47 people die and someone makes off with 300 pigs. The article, ““Annals of Anthropology: Vengeance Is Ours: What can tribal societies tell us about our need to get even?” is a difficult-to-believe tale. Nevertheless, Diamond is no Jayson Blair. Diamond’s book, Guns, Germs, and Steel cemented his name as an award winning anthropological author. Accordingly, it is easy to see how “Vengeance is Mine” might have some built-in credibility.

However, the subject of his story is now claiming that “Vengeance is Mine” is a complete fabrication. The problem is, the fabrication appears to have been spun by the subject.

From the abstract of the story:

The highlander explained that people in his clan are taught from early childhood to hate their enemies and to prepare themselves for a life of fighting. His first attempt at revenge was a failure, so he hired men from other villages as allies for his next attempt. Mentions intermarriage between enemy clans. In a battle, each warrior faces dozens or hundreds of enemy warriors, many of whom he’s related to, and some of whom he’s not permitted to kill. The highlander stressed the clear thinking necessary for fighting well. Eventually, a battle arranged by him succeeded in achieving revenge against the man held responsible for his uncle’s death. The highlander was unapologetic and enthusiastic about this outcome, although he himself was now, of course, a target for revenge. Fortunately for him, several years later a shift in clan enmities and alliances ended the whole cycle of revenge killings and united both clans against a common enemy, a neighboring tribe. The highlander said, “I admit that the New Guinea Highland way to solve the problem posed by a killing isn’t good…we are always in effect living on the battlefield.” (source)

“The Highlander” is a man by the name of Daniel Wemp, who served as Diamond’s driver when Diamond went to Papua New Guinea. Over a period of time, Wemp started telling Diamond stories of his tribal warfare including murder, rape, and pig theft. Diamond ate up the dramatic stories like any journalist or author would — and realized that they would be great fodder for an article. Unfortunately for Diamond, Wemp now claims that none of the stories are true — and he wants Diamond to pay.

Wemp and fellow tribesman Isum Mandingo are suing Diamond for defamation because they claim that Diamond’s story falsely accuses them of “serious criminal activity” and “murder.” (source) Wemp claims that the stories in Diamond’s article are false, and he is working with a New York organization (The Art Science Research Lab) to bring that to light. ASRL provides a scathing dissection of Diamond’s article here.

Here’s the problem for Mr. Wemp: Wemp actually told these stories of death and pillage to Mr. Diamond. He just claims that he made the stories up in the first place — not realizing that Mr. Diamond would share them with others.

Wemp friend and legal adviser, Mako John Kuwimb, explains: “When foreigners come to our culture, we tell stories as entertainment. Daniel’s stories were not serious narrative, and Daniel had no idea he was being interviewed for publication. He has never killed anyone or raped a woman. He certainly has never stolen a pig.” (source)

Guess what? His real name isn't Henry Krinkle.

According to Wemp’s supporters, there is a tradition in Papua New Guinea of “story telling” to amuse foreigners. I can tell you from first-hand experience, there is also a tradition among taxi drivers to tell their passengers stories as well. Enthrall them or make them laugh, and it means a few more ducats for you. I drove a cab to pay my way through college, and I’m sure that there are people to this day who tell stories about this crazy cabbie from Tunisia / Italy / Russia / Iceland, etc., who had six kids, fled a war, engaged in cannibalism, lived with a hooker, blah blah blah. I was doing the “Borat” thing when Sacha Baron Cohen was just a nerdy kid. Unfortunately for me, I wasted my schtick on passengers I picked up at Logan Airport. However, I didn’t just do it to break up the monotony of a 24-hour cab driving shift — I found that when I told believable, but outrageous stories, I got bigger tips. Everyone likes to be amused and entertained by stories — and most people will pay for the pleasure with a few bucks. If nothing else, if they listen to your stories, you don’t have to listen to them. You don’t need to be from New Guinea to know that. This is taxi driver 101.

I don’t know if Wemp was really living up to some local custom which demands that they bullshit the white guy, or merely engaging in a time-honored cabbie tradition. In any event, Wemp did tell Diamond the stories that Diamond later published. Whether Diamond got all the details right or not seems to be open to argument, and it seems that if the stinkyjournalism.org report is correct, Diamond did fumble a lot of details. Nevertheless, it also seems that Mr. Wemp’s problems began when he started telling fairy tales to Mr. Diamond — not when Diamond screwed up the details. Wemp indeed claimed to have done the terrible things that Diamond said he did. To complicate matters more, others in the area seem to have confirmed the stories as part of another local tradition — that everyone “keep their stories straight.” As one of Wemp’s U.S. supporters wrote:

In my investigation, as I explain even in short report was that everyone’s telling of the 2 K fight was remarkably uniform among enemies, friends and Gov. officials we spoke with. It was only later I came to realize why this was so. It is the settlement and compensation practices that make keeping one’s story straight vitally important. Any departure to the agreed upon narrative could rekindle a fight. (source)

One commenter, who was very critical of Mr. Diamond, wrote:

Highlands [Papua New Guinea] has a very oral culture, and people “stori” as a way of socializing, entertaining, joking and welcoming as well as sharing important information. Having great oratorical skills is a prerequisite of being a Big Man (chief) of a clan. It is not at all unusual to get an exagerrated tale as Diamond apparently got during his drives with Wemp. This doesn’t mean it’s okay for him to print it and suggest that it’s real or truth or evidence about people running around PNG pell mell raping and killing and pig slaughtering. But it is a real difficulty of working on the ground faced by Western researchers since Malinowski. It can take many, many years of finessing and listening and asking questions in many different ways to get the “accurate” story. (source)

In other words, Wemp lied to Diamond — or at least embellished his story, but Diamond believed Wemp. Wemp now thinks that since Diamond published his embellished tales, that he is entitled to $10,000,000. The fact that he is being backed by an organization that calls itself a “media ethics” watchdog is troubling. Someone has an ethics problem here for sure, but it seems like there is enough blame to go around.

I spoke to one of Mr. Wemp’s supporters about a year ago. She asked me if I might be willing to give an expert opinion on Mr. Wemp’s case like some of the other experts on her website. I told her that I might be willing to issue an opinion, but that my opinion would not be favorable toward Mr. Wemp given that that the damaging statements that Wemp complained about originated with Mr. Wemp himself.

With great passion in her voice, she explained the “story telling” tradition among Mr. Wemp’s people — that telling remarkable tall tales is part of their culture — and that Mr. Diamond should not have taken Wemp’s accounts of his life at face value. She said that Mr. Diamond should have understood that about Mr. Wemp’s culture.

This might be grounds for a product liability suit, but not for a defamation suit.

I explained that cultural literacy is a two-way street. Mr. Diamond comes from a culture where if a man says “I stole a pig,” then we don’t go asking around to find out if the man stole a pig. We take him at his word, and we might even tell others about it. Frankly, Mr. Wemp has more experience interacting with people from cultures that understand this principle than Mr. Diamond could possibly have with this obscure culture of lying chest-pounders. For Mr. Wemp to try and impose his culture’s tradition of lying through their teeth to amuse foreigners or to support a civil settlement was just as objectionable as if we were to try and impose our perjury rules upon them.

It is entirely likely that Diamond’s article mis-portrayed Wemp and his fellow tribesmen as bloodthirsty savages. It is equally likely that Diamond could have done more/better/deeper research. It seems certain that Diamond mixed up some details and had failures in his translation. It is also fair to criticize Mr. Diamond as possibly exploiting Mr. Wemp, taking advantage of him, and even misquoting him.

Nevertheless, just as Mr. Diamond may get some lessons in proper journalistic practices and having one put over on him by the locals, Mr. Wemp will (I hope) get an education in how our culture treats people who lay on bullshit and then expect to be compensated for it. His case has zero chance of survival if it lands before a judge with more than six operating brain cells. One can only hope that the New Yorker will refuse to give him so much as a nuisance money settlement, as doing so will only encourage more “story tellers” to lie to journalists and then sue them for believing them.

Orlando Police Chief vs. The First Amendment

Val Demings:
First she lost her gun. Then she lost all sight of what 'uphold and defend the Constitution' means.

by Marc J. Randazza

There aren’t too many elected officials in Flori-duh that I respect. Orlando Police Chief Val Demings, used to be one of the select few. She hasn’t done a perfect job, and had a particularly embarrassing incident in which her gun was stolen. Nevertheless, my general impression of her has been that she is competent and ethical.

Not anymore.

Val Demings vs. the First Amendment

The Orlando Sentinel reports that Demings is threatening to sue an Orlando resident for creating a website that criticizes her performance in office.

Valdemings.com is run by Ezell “Easy” Harris, a frequent critic of Demings’, and contains a disclaimer stating the chief has no association with the site.

Demings’ attorney, Griffith J. Winthrop III, accuses Harris in an April 17 letter of “maligning” and defaming the chief. The letter also says Harris violated the law by using her “persona” and identity and claims Harris’ behavior is “malicious.”

Demings is demanding that the Web site be taken down and threatens to sue Harris if he refuses. (source) (links added)

Harris refused to take down the site – correctly claiming that he is “simply exercising his First Amendment rights.” However, Winthrop (Demings attorney) says that Harris is portraying Demings in a “false light.”

Winthrop would not elaborate on Demings’ claims or the logic behind them. He said he prefers to argue the matter in court. (source)

Poor Mr. Winthrop. When you represent a public figure and threaten a citizen for criticizing that public figure, you have to go to two courts — one being the court of public opinion. Winthrop and Demings need to simply back out of this hole slowly, apologetically, and contritely. If Winthrop does get a chance to argue this matter in court, it isn’t going to end well for his client.

I get a funny feeling that Mr. Winthrop and Ms. Demings are about to learn some valuable lessons about defamation law and litigation public relations. In fact, I’ll provide some here, free of charge.

Litigation Public Relations 101: The Streisand Effect

Shoulda kept your trap shut, Babs.

Once upon a time, Kenneth Adelman posted aerial photos of Barbara Streisand’s home on the intertubes. Streisand got all Barbara on him and sued him for $50 Million. Before the suit, almost nobody had seen Adelman’s website. The lawsuit generated so much attention that millions of people hit his site and the photo was picked up by the AP as newsworthy. Barbara’s tantrum caused the exact opposite effect that she had hoped for.

Just watch, as this story grows legs, how much traffic floods in to valdemings.com.

As of April 26, 2009 at 6:45 AM, valdemings.com had 1572 hits. I wonder how few it had before Winthrop sent his inadvisable letter. Lets see how many it gets over the next few weeks, because the blawgosphere is going to have a field day with this.

Why will the blawgosphere have a field day with this? Aren’t Demings’ claims supportable?

No they aren’t.

I don’t usually prefer to slam the lawyer in cases like this, but Winthrop is really asking for it.

“Truth is not always a defense,” Winthrop said. “I hope he [Harris] gets himself a really good lawyer,” he said. (source)

Even this guy has heard of New York Times v. Sullivan

The last thing that Winthrop should hope for is for Harris to get a “really good lawyer.” Even a half-assed moron of a lawyer would know that Demings’ claims are unsupportable, and that Winthrop is completely off-base. In Massachusetts, truth isn’t necessarily a defense to a defamation action — if the speech is on a matter of private concern. Here in Florida, Winthrop is dead wrong. Whoever taught this guy defamation law should be fired.

Defamation Generally

In order to sustain a cause of action for defamation in Florida, the Plaintiff must show, at a minimum, that there were:

1. False statements of fact;
2. Published to a third person;
3. Which caused damage to the Plaintiff.

Without those essential elements, there is no defamation. See, e.g. Valencia v. Citibank, 728 So.2d 300 (Fla. 3d DCA 1999); Cape Publications, Inc. v. Reakes, 840 So.2d 277, 279-80 (Fla. 5th DCA 2003); Linafelt v. Beverly Enterprises-Florida, Inc., 745 So.2d 386, 388 (Fla. 1st DCA 1999); Smith v. Cuban Am. Nat’l Found., 731 So.2d 702, 705 (Fla. 3d DCA 1999).

Defamation of Public Figures

As a public figure, Demings must prove the same elements shown above, but she will also have to prove “actual malice” on Harris’ part. While Demings may believe that this term fits, “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth. See New York Times v. Sullivan, 376 U.S. 254 (1964):

[There is] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). Florida courts have held that the First Amendment requires neither politeness nor fairness. See Pullam v. Johnson, 647 So.2d 254, 258 (Fla. 1st DCA 1994); Mile Marker Inc. v. Petersen Publ’g LLC, 811 So.2d 841, 845 (Fla. 4th DCA 2002). Moreover, the Plaintiff must prove the actual malice element by clear and convincing evidence. Id.; Friedgood v. Peter’s Publishing Company, 521 So.2d 236, 239 (Fla. 4th DCA 1988).

In other words, Winthrop couldn’t have his defamation law more backwards. If his client thinks that she can bring a defamation action on these facts, she is in for a rude awakening. Not only is truth a defense, but even if Harris’ website does contain defamatory falsehoods, Demings’ case should not survive a motion to dismiss. Given that she is a public official, Demings would need to prove by clear and convincing evidence that Harris published false and defamatory statements while knowing them to be false, or while subjectively entertaining serious doubts as to the truth of the publication. New York Times v. Sullivan, 376 U.S. 254. Fortunately for Harris, all the statements on his website appear to be republications from other news sources or facts gathered from the public record.

What About “False Light”?

Winthrop doesn’t only allude to a defamation action, but claims that “truth is not always a defense,” and that Harris portrayed his client in a “false light.” I guess Winthrop can be forgiven for not knowing that this is a cause of action that no longer exists in Florida. Well, maybe not. But, lets cut the guy some slack. In all fairness, that has only been the state of the law for the past five months. Of course, every other lawyer in Flori-duh knows this, but maybe he was on vacation in the Andes or something.

Florida’s Anti-SLAPP Law

Florida has a particularly weak anti-SLAPP statute (SLAPP stands for Strategic Lawsuits Against Public Participation). However, if Demings brings this suit, it could be one of the select few cases that actually fall under § 768.295, Fla. Stat. (2008) – the Citizen Participation in Government Act. This statute provides as follows:

No governmental entity in this state shall file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against a person or entity without merit and solely because such person or entity has exercised the right to peacefully assemble, the right to instruct representatives, and the right to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.

If the demand amounts to more than mere chest-thumping, and Demings does actually bring a suit against Harris, this statute should apply. Harris would then be entitled to an expeditious resolution of the claim under a special motion to dismiss or a motion for summary judgment. If successful, he would be awarded reasonable attorneys’ fees, and coould be awarded damages as well. While this statute has not appeared in any reported decisions, there is a similar provision regarding Florida homeowners’ associations. See § 720.304(4), Fla. Stat. (2008), which prevents homeowners’ associations from filing similar suits against their members. That has only been used once, and it didn’t end well for the SLAPP perpetrator.

Conclusion

Three Orlando area bowlers expressions say it all
One quipped, 'Are you telling me these clowns never heard of
New York Times v. Sullivan?'

Winthrop and Demings both ought to be forced to attend a remedial course in Constitutional Law. The First Amendment requires politicians and other public figures to have a reasonably thick skin and endure a substantial amount of harsh criticism. Unfortunately for Demings, she seems to lack that thick skin, and didn’t seem to get the best advice. Winthrop really should have known better.

My prediction: Demings will eventually be forced to back down. I can’t really see anyone being stupid enough to file a suit like this. Wait, scratch that, I’ve seen many lawyers dumb enough to file a suit like this. Despite Winthrop’s ill-advised statements to the media, I’m not betting that he is one of them.

And by the way, from the time I started writing this piece until I hit “publish” — the counter on valdemings.com rose to 1682.

I can hear Barbara Streisand singing now…

It Doesn’t Get Much Lower Than This – “Susan Boyle Does a Porno?”

Representing adult entertainment industry clients makes my cocktail party discussions somewhat interesting (to say the least). Often, I get asked “okay, but where do you personally draw the line?” I have always said that I’ll know it when I see it.

I have now seen it.

An adult entertainment company has registered susanboylexxx.com and has placed an offer on that site to pay Susan Boyle $1 million if she will lose her virginity on camera. Aside from the fact that this has to be one of the most douchebaggy things I’ve ever seen, the company that registered that website is certainly violating 15 U.S.C. § 1129 and probably violating 15 U.S.C. § 1125(d).

If Susan Boyle wants to simply collect $100,000 plus attorneys fees, she ought to sue them instead of taking them up on her offer.

Short Url: http://bit.ly/CWKgS

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Technorati :  Adult Entertainment Law, adult entertainment trademarks, ass hat, trademark

Damn Queer Elephants!

Well this is the quote of the week:

“We didn’t pay 37 million zlotys ($11 million) for the largest elephant house in Europe to have a gay elephant live there.”

So said Michal Grzes, a conservative councilor in the city of Poznan in western Poland. (source)

I guess I can see his point. First one gay elephant moves in. Then another. Then a gay zookeeper. Next thing you know, there are all these window boxes full of flowers outside the cages and the damn zoo is so gentrified that the hyenas can’t afford to live there anymore. I mean, seriously, have you priced condos in the South End lately?

H/T: Corey.

Goldman Sachs Tries To Bully Blogger

I've got news for you: the Supreme Court has roundly rejected prior restraint!
So Goldmansachs666.com will remain up as this case slowly winds its way through the courts like the man in the black pajamas wound his way through the jungles of 'Nam.

Michael Morgan is a Florida blogger who is a little bit upset with Goldman Sachs and its business practices. To voice his displeasure, he registered the domain name goldmansachs666.com and goldmansachs13.com and forwarded them to his blog on the financial giant.

Naturally, Goldman Sachs doesn’t like to be criticized. Who does? Nevertheless, I fail to see how they could have perceived Morgan as a threat to their financial well being or anything else. The fact is, Mr. Morgan’s blog just isn’t that good. The layout is visually painful. The writing isn’t engaging. After muddling through it for about 15 minutes, I still don’t really get what all the fuss is about. In other words, Morgan’s blog was destined for the blogger derelict heap. Morgan has a full time job, had very few readers, and probably would have either gotten bored with his griping, or his blog would have been ignored to death.

With Morgan’s blog plodding along in obscurity, enter John A. Squires of Chadbourne and Parke, LLP. Now this guy has an impressive background: He was top of his class in law school, on his law school’s moot court team, on law review, and an Order of the Coif inductee. Sounds like a pretty smart guy, no? Smart enough to become co-chair of the intellectual property practice at a major law firm. Smart enough that he “is widely recognized in both the financial services and technology sectors as one of the country’s top experts on the issue of patent-eligible technologies.”

Goldman Sachs' demand letter
Click to enlarge

Nevertheless, he put his name to one of the dumbest trademark demand letters I have ever read. Go ahead, click it. If you practice trademark law, don’t drink any liquids while reading or you’ll shoot them out your nose as you’re laughing and then you might have to change your shirt.

This letter seems to anecdotally confirm two things I’ve preached for years:

1) Patent guys don’t necessarily know trademark law,

2) A lawyer who doesn’t understand public relations is only half a lawyer.

I’m just guessing here, but I’m reasonably certain that Mr. Squires did know better. This demand letter just screams “reluctantly written to shut a client up.” Patent lawyer or not, the guy had to know that his trademark claims were just plain stupid. If goldmansachs666.com creates confusion in the marketplace, then I guess that I had better stop calling my balls my “nutsack,” because someone might come along and expect them to sweat stock options.

Personally, I would never have affixed my signature to this piece of dung. I’ve learned the art of “client control.” That’s when you tell someone “my credibility is worth more than what you want to pay me to write this unsupportable demand letter.” Sadly, many lawyers never learn this skill. I’m certain that some tool at Goldman Sachs told Squires “I don’t care if we can’t back the claims up, just send the letter to try and scare this little mouse of a blogger.” (Or maybe I’m just inclined to give the lawyer the benefit of the doubt).

Although I would love to say that I would continue to that same big shiny set of brass balls if my client were a gazillion dollar financial powerhouse that shits rubies, I won’t judge Mr. Squires until I walk a mile in his Bruno Maglis — especially since I’m 98% certain that somewhere, he has an email to his client telling them that the claims in the letter are just one molecule away from being pure pharmaceutical-grade fecal goodness.

At least I hope so… because the mouse, he bite.

Squires’ letter ends with a threat that if Morgan doesn’t confirm, in writing, that he will stop using the words “Goldman” and “Sachs,” they just might sue him. Well, April 18 is a Saturday, Walter Sobchak doesn’t roll on Shabbos, and Mike Morgan did respond in writing — with a lawsuit of his own.

Morgan probably figured that if Goldman Sachs wasn’t bluffing, they would file suit against him in New York. Morgan lives in Florida, and would likely rather just have it out in Florida than travel to New York. So, given that there was a bona fide legal question — created by Squires’ dumb letter, Morgan had the right to file suit to just get the whole thing over with. Naturally, Goldman Sachs probably isn’t too worried about the financial consequences of this suit. The most that Morgan will win is a piece of paper that says he has the right to use the words “Goldman” and “Sachs” to criticize Goldman Sachs. But what a piece of paper it will be.

More importantly, now that he has filed suit, a lot more people are going to take note of this dispute. I’ve been following it for a little while myself, and until I received a copy of Morgan’s complaint, I didn’t really find it interesting enough to write about. Guy gripes. Company whines. Dumb demand letter. Yawn. Happens every day.

What doesn’t happen every day is that the griper has the coglioni to tell one of the biggest financial institutions in the world “You wanna step outside? Fine, lets go.“

So now what happens?

Hopefully, Mr. Squires tells his client “I told you so,” and keeps a copy of the memo he sent them telling them that this was all a really dumb idea and that they should have just ignored Mr. Morgan’s blog. If he didn’t tell them so, then someone at Goldman Sachs should re-think how they choose their attorneys.

Once that is all settled, Goldman Sachs should just gracefully back away from this — issue a statement that they reconsidered their position, and it all goes away. The first rule of getting out of a hole is to stop digging. However, I predict the opposite will happen: Goldman Sachs will dig in, the Spin Doctors song “Little Miss Can’t Be Wrong” will be played over the PA system at Chadbourne and Parke, and we will see both an answer and a counterclaim that will be just one hair shy of being frivolous enough to warrant sanctions because some nitwit will think that it will scare Morgan into submission… and the case will draw even more attention to this once-obscure blog.

And then we’ll see if Mr. Morgan’s reporting on Goldman Sachs’ misdeeds grows any legs. He already has a conference call scheduled to gather the volunteers who have rallied to his side.

Iowa Idiot Calls for “Executive Order” Staying State Supreme Court Decision on Gay Marriage

Bob Vander Plaats on the campaign trail

This is a new “tactic” by the American Taliban.

In Iowa, Bob Vander Plaats, a Republican candidate for governor has issued a statement that demands that Iowa’s current governor “immediately intervene” to set aside the Iowa Supreme Court’s ruling that the Equal Protection clause of the Iowa Constitution requires that marriage be offered to all Iowans.

“I don’t want to wait two years,” said Vander Plaats. “I want this governor to issue an executive order that says there will be a stay on all same-sex marriages until the people of Iowa have the right to vote. If I were governor today, I would issue that executive order immediately.” (source)

And if I were a leprechaun, I’d shit gold nuggets and piss Guinness beer.

In the next election, when the people of Iowa are considering their choice for governor, I hope that they will remember Vander Plaats’ stupidity and his bush-like misunderstanding of what the executive can do. The governor doesn’t get to issue “executive orders” that overturn supreme court decisions.

H/T: Brian B. Vakulskas

Vero Beach, Flori-duh Moves to Ban Adult Entertainment

Vero Beach, Home of the Beach Burkha

Vero Beach, Flori-duh is moving to ban jello wrestling, mud wrestling, and any unauthorized display of the buttocks — which it defines as follows:

“For purposes of this section, the term ‘buttocks’ shall mean the area at the rear of the body which lies between two imaginary lines running parallel to the ground when a person is standing, the first or top such line drawn at the top of the nates (i.e. the prominence of the muscles running from the back of the hip to the back of the leg) and the second or bottom line drawn at the at the lowest visible of this cleavage or the lowest point of the curvature of the fleshy protuberance, whichever is lower, and between two imaginary lines on each side of the body, which lines are perpendicular to the ground and to the horizontal lines described above, and …”

In other words, ladies, you better get rid of those swimsuits. (source)

Mathew Staver: Free Lunch Crybaby

I don't want no commies in my car... No Christians either!

Blue Ollie writes about how the Palinite Front is reacting to the fact that gays and lesbians are being granted first-class citizen status in many states.

The moronic right wing is feeling that it’s liberties are being infringed upon. Funny, but the right wing seems to equate “liberty” with “we want to be able to control YOUR personal life”. (source)

Ollie directs us down a link trail that leads us to this article in The Baptist Press: ‘Gay marriage’ colliding with parental rights, religious liberty around the country.

My thought, just upon reading the headline, is that this proves how abjectly weak their ‘religion’ truly must be. If two guys getting married and fucking each other up the ass on their wedding night ‘collides’ with the ‘liberty’ of anyone whose prostate gland isn’t directly involved, then the ‘collision’ ‘victim’ has some deep psychological problems. The author trots out the usual asshats, including asshat extraordinaire, Matthew Staver — who unwittingly tells us what this is really all about.

Mathew Staver, chairman of Liberty Counsel, a religious liberty legal organization, told BP. “Whenever you have same-sex marriage or same-sex civil unions, you end up having a clash between the same-sex agenda and freedom of religion. The two are not compatible, because the same-sex agenda seeks to force by law acceptance of its view, and that will inevitably collide with Christian values…. People really need to wake up, because this, I think, is the greatest threat to our liberty that we face today — bar none.” (source)

Wow… his ‘religious’ beliefs are so strong, yet a couple of people loving each other is in direct confrontation with his supposed ‘religion.’ Oh wait, we were going to find out from Matty boy what this was really about. Lets let him continue talking out his sphincter.

“That’s the agenda. It’s always been the agenda,” Staver said. “There is no question that if same-sex marriage becomes legal, that churches eventually will have their tax-exempt status threatened — no question whatsoever. If churches today discriminate against race, they would not be able to have tax-exempt status today. If churches discriminate on the basis of same-sex marriage — if it became legal — then same-sex marriage becomes the equivalent of race, and churches would not be able to have tax-exempt status if they oppose same-sex marriage.”(source) (emphasis added)

In other words, he’s worried that the public will no longer have to subsidize superstition-based businesses. Same old shit with the christianists. It doesn’t have a damn thing to do with their magic space ghost. It is all about money and power. Isn’t it awfully funny that the same people who will rail the loudest against socialism are its prime beneficiaries?

I don’t see why churches (or anyone else) should be forced to be non-discriminatory. If you want to run a religion based on racism, sexism, or homophobia, then so be it. If you want to run a religion based on equality, so be it. But it does piss me off that my property tax bill is higher every time I see a sign pounded into the ground announcing the future home of some ‘church.’

I challenge the ‘religious’ who feel so ‘persecuted’ by worrying about losing their tax-exempt status to solve the problem once and for all. Simply tell the government that they don’t WANT tax-exempt status. Then Staver’s bullshit ‘religion’ can discriminate against anyone they want, they can tell people how to vote (as if they don’t already), and when the tax bill comes due, ask the congregation to dip into its wallets. Let the marketplace decide whether a petty little cult can continue to survive. Surely even the most destitute members of the poorest congregation have a few bucks to keep a roof over the pastor’s head.

And if the congregation can’t, or won’t, tithe enough to keep the property tax bill paid? Then auction the place off as if it were any other piece of property. If the members of the church can’t muster up the favor of the Almighty, or put on a benefit concert, or whatever the rest of us have to do in order to pay our taxes, then why the hell should I have to subsidize it?

If the ‘religious’ will agree that my favorite sports bar should receive tax exempt status, then I’ll agree that their little house of lies should have the same. Until then, they should stop being a bunch crybabies whenever they are afraid that that the free ride might be over. It ought to be over, and if they think the free ride comes with too dear of a price tag, then they should reject the subsidy. Then I don’t have to pay higher taxes and they don’t have to treat fellow citizens with any degree of decency.