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.

“Why I do it” — An Erotic Documentarian’s Viewpoint

by Tony Comstock
Special Guest to the Legal Satyricon

In a world that seems awash in sexualized imagery, why is it that so little of this imagery speaks to the common pleasurable reality of sex? We’ve been producing the “Real People, Real Life, Real Sex” erotic documentary series for some time now, and I’ve heard the same kinds of questions dozens, perhaps even hundreds of times from people who know and love our work, from therapists and counselors, from people in pain about their sexuality, and from people enjoying their sexuality as part of full and wholesome lives. Over and over, I am asked, “Why are films like ours, films that depict sex in a way that is joyous and cinematic, almost nonexistent?” “Why are art films that contain explicit sex always so downbeat?” “Why does pornography look and feel so different from the other sorts of visual images we see?” “How does what we do — and do not — see in cinema affect our understanding of our own sexuality?”

I’d like to say the answer is that I have a special insight into the human sexual condition as it relates to cinema, but it’s a little more complicated than that. To truly understand why sex on film looks the way it does, one needs to look at the history of sexual imagery in cinema, the history of obscenity laws, and the business and technology of image making. Once you have that background, you can explore how cinematic images actually work, and how that relates to cinematic depictions of sexuality. I have spent many years investigating that background, and the more I learn, the more I am driven to make the films that we produce.

I have been a photographer my entire adult life. I believe passionately in the power of the moving image to help us understand who we are as human beings. I’ve documented unspeakable suffering, violence, and death. For that, I’ve been called a courageous witness.

In bearing witness to sex, I sometimes get called other, less charitable names. Sometimes this hurts my feelings. Sometimes it makes me feel like quitting.

I bear witness to the sex act because I believe that depictions of truly joyous and wholesome sex — depictions that represent the overwhelmingly positive and important role that our sexuality plays in our humanity — are all but absent from the cinematic landscape. Moreover, in an age where it is easier than ever to see sexually explicit imagery, it is harder than ever to find imagery that reflects the common reality of sex: that sex is nice; that sex is normal; that sex is good.

I’d like to share a comment left on my blog about three years ago. As you might imagine, doing this work and demanding that it be taken seriously can sometimes be a struggle. But when I despair, I go back and read this:

I have issues with sex. I’m a sexual abuse survivor. Anyone who’s been sexually abused comes into sexuality with a handbag and two trunks of emotional baggage.

When we were trying to conceive there was a blatant point to having sex: having a baby. That made it okay. After all, society couldn’t look down it’s nose at a married couple — young, still facing fertility problems, trying to have a child.

And then when the child is born, you get the excuse of body recuperation. And if your child is sick, you get a bonus 6 month reprieve. However, there does come a point where sexuality, motherhood, couplehood, and life clash. I’m tired. Sex requires energy. So does doing the dishes. But sex requires an emotional investment, something I’m not ready to make, something I feel inferior making. So the dishes it is. And laundry for good character.

I feel conflicted by sexual imagery. I sometimes like what I see. I sometimes like it a lot. But sometimes it scares me. I’m not pretty like Eva Longoria. I’m not thin or have shiny hair. I don’t have nice breasts. Mine are saggy and droopy and currently nourish the body of a very rotund 9 month old. They serve a purpose, and purposeful breasts aren’t sexy — to me anyway. And besides, they don’t LOOK like the breasts I see on TV. Perfect, sculpted breasts. Breasts that boys like. And bodies. Don’t get me started on the bodies.

What we see isn’t real. It’s said over and over. I know there are 50 people off-set creating the magic. What they’re feeling isn’t real. What they’re doing isn’t real. And it makes me wonder if what I’m doing is okay. Emotionally un-investing myself in my relationship. Because really, I can’t ask family about sex. I can’t ring my mother-in-law up and ask her if she ever felt this way when looking at her naked body. Or ask her if she felt hung up on emotional issues when her husband’s hand touched her bottom.

Abuse survivors bring guilt into the game as well. Not only do we have more bodily hang-ups, failed relationships and mental problems, but we have guilt about sexuality. About wanting sex. About feeling GOOD about sex.

Today though, something struck me in just in the right spot. I had one of Oprah’s famed “a-ha” moments. A link took me to www.comstockfilms.com. Dubbed: “Real People, Real Life, Real Sex” the site explores sexuality for real. In a documentary style, we meet and enjoy the couple and then venture into the velvety movement of their bodies.

I must say. I was stunned. I’m not a fan of porn. I am disgusted by a lot of what is sold to men. The fairytale behind that isn’t charming, in my opinion. But watching these clips I thought, wow. Oh my goodness. So THIS is sex. For real. And I loved the charming banter of the couples. I feel grown up right now. Like a real adult. I’ve confronted one of my demons — enjoying a sexual experience — and I can actively admit that I enjoyed it. Which is probably a lot more information that you’ve wanted to hear from the mother of a child who doesn’t do a lot of sleeping. If you’ve got the time and the inclination I encourage you to take a step into the realm of Comstock films. It’s the first step I’ve taken to embracing that humans are allowed to be sexual beings. – Jen P.

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Award-winning filmmaker Tony Comstock frequently lectures on the legal and business realities that shape and too often warp the sexual imagery we see. Drawing on examples from Hollywood’s history of self-censorship, landmark obscenity cases, and the collision of technology and image-making, Comstock offers an expanded framework for understanding of how what we do and do not see in cinema effects our understanding of our own sexuality.

Facebook proves that its terms are not First Amendment friendly

by Jason Fischer

Facebook has confirmed that they have removed two group pages belonging to holocaust deniers after receiving pressure from members of the public, including attorney Brian Cuban (brother of entrepreneur Mark Cuban).

A Facebook spokesperson explained that “if the discussion among [a group's] members degrades to the point of promoting hate or violence, despite whatever disclaimer the group description provides, we will take them down. This has happened in the past, especially when controversial groups are publicized.”

As a private organization, Facebook is certainly entitled to take these actions. It is unfortunate, however, that they find it necessary to do so. The “marketplace of ideas” is capable of labeling the members of these groups as asshats and rejecting their hate speech. Freedom means ignoring viewpoints you don’t agree with, not censoring them.

Obama Art Unveiling Suppressed

by Jason Fischer

Artist Michael D’Antuono was scheduled to publicly unveil his painting (pictured below) in New York’s Union Square Park this morning, to commemorate Obama’s 100th day in office. However, due to “thousands of emails and phone calls; online blogs and other public commentary received in the first 48 hours following its release”, the event was canceled. (source)

Should this speech be suppressed? What do you think?

MOTHERFUCKER! Fox v. FCC Overturned; Clarence Thomas Captured by Space Aliens!

Clarence Thomas appears to have been captured by aliens and replaced with a reasonable facsimile who respects the First Amendment!

by Marc J. Randazza and Jason Fischer

The 5-4 decision came down yesterday. In an opinion written by Scalia, the Second Circuit’s speech-protective ruling in Fox v. FCC was overturned. (Prior decision discussed here) At least the Court left open the question of whether the FCC’s policy might violate the First Amendment in certain circumstances.

Scalia says vaffanculo to the First Amendment (what else is new, lately)

Scalia flatly rejects any notion that he might have a responsibility to examine the First Amendment issues in the case.

The Second Circuit did not definitively rule on the constitutionality of the Commission’s orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, “not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at the periphery of First Amendment concern,” Pacifica, 438 U. S., at 743 (plurality opinion of STEVENS, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time. (Op. at 25-26)

In other words, Scalia gives a big “fuck you” to the principles laid out in two key First Amendment cases. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (”[I]n cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).

On what grounds did the Court overturn the Second Circuit’s ruling?

The Second Circuit said that the FCC acted arbitrarily and capriciously in suddenly changing its three decades old position that “fleeting expletives” are not actionably indecent. The Second Circuit said that some of the FCC’s justifications for its new policy, in contrast to the earlier policy, were “divorced from reality“.

Scalia’s view is that as long as the FCC can come up with any articulable rationale for its rule, and it could have enacted the rule in the first place, it doesn’t need to have a more detailed reason to change the rule. The Constitution be damned:

In this appeal from the Second Circuit’s setting aside of Commission action for failure to comply with a procedural requirement of the Administrative Procedure Act, the broadcasters’ arguments have repeatedly referred to the First Amendment. If they mean to invite us to apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, we reject the invitation. (Op. at 12)

Nevertheless, the analysis of the administrative procedures act and an agency’s rule-making authority is, quite honestly, too dull for me to get into in depth. (A future update may change this). Suffice to say that the FCC can change the rules if it has some reason to do so.

But here is where it gets exciting.

Are you sitting down? Good. Read this from a concurrence in the case.

I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. “The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so” in these cases. (Concurrence at 1)

Guess who wrote that… wait for it… waaait for it.

Clarence Thomas!

Yeah, THAT Clarence Thomas.

Holy shit, it gets better.

First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the “scarcity of radio frequencies,” Red Lion, supra, at 390, to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” District of Columbia v. Heller, 554 U. S. ___, ___ (2008) (slip op., at 63). In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution. (Concurrence at 3)

A reminder, that is Clarence Thomas writing there. Clarence. Motherfucking. Thomas.

I am open to reconsideration of Red Lion and Pacifica in the proper case. (Concurrence at 6)

Clarence Thomas. First Amendment Bad Ass of the Week.

UPDATE: According to Fischer, Thomas has always been awesome.

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…

Censorship in the Name of Political Correctness — Gamers Prepare to Face a New Enemy

Editorial and Comment by Zac “AGhostInTheSnow” Papantoniou

“Just when the decency police and moral values group have been all but defeated in the courts–both of law and public opinion–a new threat has emerged from our left flank: political correctness . . . The leftist thought police are now wanting to impose their view of propriety on modern cultural discourse.” – Lawrence Walters

If you love video games as much as I do, you should ingrain the name Lawrence Walters into your brain.

Walters, who has been described by some as “the Anti-Jack Thompson,” is a distinguished First-Amendment attorney and Managing Partner at the law firm of, “Weston, Garrou, Walters and Mooney”; he recently spoke at the “2009 Game Developers Conference” in a session titled, “Silencing the Censors.” (Disclaimer, Walters is Randazza’s law partner).

During the session, Walters forewarned game developers of a looming threat to the video-game industry, censorship in the name of “political correctness.” Walters cited pending legislation, in the state of New York, that aims to prohibit sales of games to minors, that have various degrees of profanity, racist stereotypes, derogatory language, and/or actions toward a specific group of persons.

The law would require New York retailers to apply warning labels to any game that contained such subject matter and would require retailers to keep all such games in a “sealed and locked container” inaccessible to customers. Non-compliant retailers – or “non-custodial” adults who purchase regulated games for minors – would be subject to a fine of up to $1,000.

I have some major points of contention with legislation such as this. First, the video-game industry voluntarily set up a self-regulating body (the ESRB), over 15 years ago, to independently rate and label the content of every game sold in North America. Attempting to enact such legislation is a waste of precious tax-payer dollars; dollars, that could be better spent on a multitude of various state needs, such as . . . oh, I don’t know, maybe . . . education?! Second, legislation based on political correctness, which would impose a $1,000 fine on an offender is both excessive and (should be) a shock to one’s conscience; especially considering the way such legislation binds the hands of parents when it comes to child-rearing. Last, but certainly not least, such legislation is an affront to one’s rational ability to use common sense, not to mention, the basic freedoms afforded by the First Amendment of the Constitution! As Walters pointed out in his session:

“Think about that for a minute. Would we ever in a million years tolerate the government passing a law that movies cannot have profanity, racial jokes, or derogatory language? That would eliminate practically every movie made,” he said.

“Now we can debate all day long whether racist stereotypes or derogatory language is even appropriate in video games, but that’s for us to debate, and not for the government to decide.”

This type of “thought policing,” as of late, has generally come from those leaning to the right of the political spectrum; but Walters warns that with the new change in the political landscape, it is ever increasingly coming from those on the left as well. We’ve seen this before, I mean, who grew up in the 80’s and doesn’t remember Tipper Gore’s “War on the Music Industry?”

This type of thinking will do us in people! Parents must be free to make decisions as to their children’s best interests; video-game developers must be free to create products and retailers must be free to sell those products as they see fit, without having to worry that they’ll be fined a grand if a minor gets their hands on a video game with mature content in it. You and I, must be free to express thoughts, ideas, expressions and creations, without having to constantly look over our shoulders, wondering if we’ll be the target of a politician’s next attempt to stifle something they find “controversial.” Because it starts here, with you and I; and if we don’t speak up for ourselves, we’ll have to then wonder, will there be anyone left to speak up for us, once the thought police come to stifle our fundamental freedoms?

I’ll leave you with something Ben Franklin once said:

“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

HT to First Amendment Bad-Ass, Lawrence G. Walters, for speaking up, and fighting for our right to play any fucking video game we choose . . . Read more: Here and Here.

Protesting Censorship Down Under

by Jason Fischer (follow me on )

Hackers hijacked Australia’s official online censorship board website to protest that agencies practices of filtering web content that hasn’t been ruled to be obscene. (source)

In case you can’t read the tiny text pictured above, here’s the message:

This site contains information about the boards that have the right to CONTROL YOUR FREEDOMZ. The Classification Board has the right to not just classify content (the name is an ELABORATE TRICK), but also the right to DECIDE WHAT IS AND ISNT APPROPRIATE and BAN CONTENT FROM THE PUBLIC. We are part of an ELABORATE DECEPTION from CHINA to CONTROL AND SHEEPIFY the NATION, to PROTECT THE CHILDREN. All opposers must HATE CHILDREN, and therefore must be KILLED WITH A LARGE MELONS during the PROSECUTION PARTIES IN SEPTEMBER. Come join our ALIEN SPACE PARTY.

The First Amendment Is Often Inconvenient… But That Is Besides the Point

Editorial and Comment by Zac “AGhostInTheSnow” Papantoniou

Ok, so we’re a little late on this one, but over the course of the last two weeks, Rogier van Bakel at the blog “Nobody’s Business” posted, commented on, and eventually “debated,” law professor Kristen Juras on the subtleties of the First Amendment.

Professor Juras is an assistant law professor at the University of Montana. Professor Juras has been in the news recently because she has a fundamental problem with the content of a weekly sex column featured in the “Opinion” section the University’s newspaper, the “Montana Kaimin,” and is written by a University of Montana senior, Bess Davis.

Professor Juras has publicly stated that the column is “embarrassingly unprofessional,” and that the subject of sex is “inappropriate for college students.” The professor also stated that the sex column not only, “. . . reflects poorly on the university’s School of Journalism and UM itself,” but also, “. . . affects my [Juras’s] reputation as a member of the faculty.” The Professor, after having her complaints in letters to the paper’s editor go nowhere, has now threatened to take the issue to the state legislature unless the newspaper establishes written policies for hiring columnists and reviewing content that could be deemed “controversial.”

While I certainly can’t agree with the Professor’s views and struggle to find the logic of her arguments, Professor Juras is nonetheless a member of the University’s community, and as such, she is free to express her view that the sex column takes up space that can be better used for other things. However, when Professor Juras was contacted by Rogier van Bakel, to respond to van Bakel’s initial post on Juras’s public threats to take her complaints to the Montana state legislature, not once does she suggest what a better use of such column space might be.

It’s perfectly reasonable for Professor Juras to have and express her opinion, but the Professor would be wise to educate herself with something Benjamin Franklin once wrote – “Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick [sic] liberty, without Freedom of Speech.”

If Kristen Juras were not a law professor, I would still vehemently disagree with her view on this issue. However, Ms. Juras is a law professor; and that makes me find her arguments and threats to seek legislative action, for suppressing the free dissemination of ideas and subjects with which she personally finds “inappropriate for college students” completely repugnant.

Simply saying that you support the First Amendment just doesn’t cut it; as a law professor, you more than most, should know and understand the dangers of institutional/governmental oversight on the press and while I must disagree with Rogier that your actions amount to “professional misconduct” – they are, to me, professionally reckless. As the wise Supreme Court Justice Anthony Kennedy once said, “The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of its obligation to tolerate speech.”

HT to Rogier van Bakel at the blog “Nobody’s Business.” Read more of his initial post here and his second post, including Professor Juras’s response, here.

Competing Views on the Auto Admit Story: Define “Awesome”

Caps Lock: Awesome?

Portfolio Magazine recently did a remarkably in-depth piece on the Auto Admit story.

Never one to let facts get in the way of a good opportunity to make an unsupported swipe, Ann Bartow at Feminist Law Professors, probably one of the most intellectually dishonest “academics” to ever stain the title, crowed “Brittan Heller and Heide Iravani are awesome” and selectively quotes the parts of the Portfolio article that support her chosen perspective that these were “awesome” people.

Scott Greenfield at Simple Justice isn’t sure that Bartow understands the definition of “awesome.” He brings the other side of the debate forward: That Heller and Iravani were simply throwing a temper tantrum in the courts.

Now I may be a bit blind to something, not being as politically correct as some, or perhaps not being as myopic as others, but I fail to see how anyone, regardless of one’s blind devotion to feminist orthodoxy, can call two women who wrongfully and disgracefully destroyed the life of a young man solely because he was the only one they could find to hurt “awesome”. Is there some disease that infects the feminist law professor mystique that relishes harming an innocent 20 year old male, no matter what? (source)

I too find nothing “awesome” about bringing a lawsuit that, perhaps justified against some defendants, was clearly frivolous against others. These “awesome” individuals had to have known that their suit against Anthony Ciolli, “Beach Body Brady,” and Ryan Mariner (”A Horse Walks into a Bar Association”) had no foundation whatsoever – and the claims were questionable, at best, against others. Worse than that, how they conducted themselves post-suit was clearly worthy of disdain, not praise. Read this complaint and ask yourself if the defendants in this action were “awesome.”

While Heller and Iravani started out as the victims of malicious slurs on the discussion boards, they turned it around and went on the attack. The problem isn’t that they stood up for themselves, though many questioned their motives, calling them two elitist, self-centered brats who couldn’t bear not being in control of others. Some suggested that it was this demeanor that gave rise to their problems, bringing the ire and disdain of their classmates down on them like a hail of feces. After all, the attacks against these young women appeared to come from the same people they sat with daily. Maybe, just maybe, some of their classmates at Yale Law School didn’t think as well of them as they thought of themselves? (source)

Witch Hunting: Not Awesome

I agree that the initial online smears against Heller and Iravani were unfair, uncool, and uncalled for — even if they might have somehow invited them (and I have no reason to say that they did invite them). Nevertheless, I find it impossible to agree that they were “awesome,” for how they dealt with it. If you are a victim of unfair treatment, fighting back is commendable. Simply flinging harm at other undeserving parties is not awesome in the least – unless one uses “awesome” in the context of “awesomely poor judgment” or “awesomely foolish” or “awesomely unfair.”

Giving you the finger is awesome!

“Cyberbullying” – The First Amendment Means we Don’t Have to be Nice

There sure is nothing wrong with choosing to be nice and civil. There is nothing wrong with choosing to make your words soft — as you may need to eat them one day.

But, the First Amendment means that it must remain just that — a choice. This Arizona Daily Wildcat editorial discusses the ludicrousness of the “cyberbullying” hysteria and exposes it for what it is — censorship in “protect the children” clothing.

The First Amendment doesn’t have any fine print. There aren’t any puling little equivocations, any “buts” or “excepts.” The amendment protects freedom of speech, period.

This is why the First Amendment presents an ever-present threat to those who would seek to stifle us in the name of hurt feelings. And that is why we must be ever on alert to spot attempts to keep us from expressing “hurtful” thoughts. They don’t trumpet their intention of censorship; they mask their intentions in the guise of promoting “safety” and preventing “harassment,” even if those elements are in no way relevant.

Ding Dong, the COPA witch is dead.

In July, the Third Circuit Court of Appeals struck down the Child Online Protection Act as unconstitutional. The government’s petition for certiorari has apparently been denied.

Jello Biafra Writes An Open Letter To Barack Obama

Jello Biafra

It’s quite something when one of your heroes reminds you why you respected them in the first place….

“I did not vote for him because of his record in Congress voting for the PATRIOT Act, the anti-immigrant wall, numerous corporate breaks and subsidies, the FISA bill legalizing all the NSA’s illegal wiretapping, etc. Nevertheless I, too, felt moved by his speech in the park that night in Chicago, seeing Jesse Jackson cry and wondering how Martin Luther King, Jr would have felt. I can only imagine how much this would have meant to Wesley Willis.

And, yes, I am glad that the adult version of the Eraserhead baby and his pitbull pal were not handed the keys to the White House.” (Firedoglake.com, 12/16/08)

33 Months for Shipping Obscene Materials

An Indiana man was sentenced to 33 months in prison for shipping movies of consenting adults having sex with other consenting adults to other consenting adults who paid for the movies to be shipped to them.

Land of the free, my ass.