(From Charles Platt) Is this a real threat, or just posturing? The ADA has already been extended far beyond the areas in which is was first designed to apply. I can certainly imagine regulations compelling web sites to be “equally accessible” to the disabled. Discussion here.
I used to have neighbors in Flori-duh, whose argument (to me anyhow) against gay marriage was “what am I supposed to tell my kids?“
Louis CK had a funny reply to that.
“It doesn’t have ANY effect on your life. What do you care? People try to talk about it like it’s a social issue. Like when you see someone stand up on a talk show and say ‘How am I supposed to explain to my child that two men are getting married?’ I dunno, it’s your shitty kid, you fuckin’ tell ‘em. Why is that anyone else’s problem? Two guys are in LOVE but they can’t get married because YOU don’t want to talk to your ugly child for five fuckin’ minutes?”
The issue came up with my daughter, yesterday. Age 4.
She asked what I was reading. I told her, “an article about a Supreme Court case” – 5 questions later, and it was time to make something up, or just tell her, and see if she got it.
I brought up one couple we know who are legally married (and happen to be my son’s “godfathers”). I told her “they are married, like mama and daddy, because they love each other.”
“Oh” she said.
I then told her about our cousin and his boyfriend of 25 years – who we also refer to as “cousin.” I said “they love each other just as much, but they are not allowed to get married, because they live in Las Vegas, which is in Nevada.”
“Oh. That’s not fair.”
There… conversation had. That wasn’t so hard.
I’m glad that my four year old understands the Equal Protection Clause better than some judges. When the gay marriage cases come before the Supreme Court, I’ll be impressed if Samuel Alito or Clarence Thomas are able to show as much intellect and wisdom as a girl who thinks that Santa Claus is a member of the First Amendment Lawyers’ Association.
By J. DeVoy
An admittedly portly University of Iowa undergrad, Jordan Ramos, is accusing a local nightclub for refusing to let her dance on the bar. Simultaneously, if she had danced on the bar, fallen and been injured – she would almost certainly have sued the bar anyway. Either way, it is a frivolous claim. And, hopefully, a victory for the establishment, the Union Bar, on a motion to dismiss in either circumstance.
Jordan Ramos was denied the opportunity to stand atop a bar platform and dance for onlookers. In Las Vegas, nightclubs hire go-go dancers for this specific purpose. In Iowa City, the bars apparently take what they can get and even allow walk-ons. Ramos was denied the opportunity to scale the bar and dance atop it in March. When she returned to the bar in April, she once again was denied access to a dancing platform:
“[A bouncer] said, ‘You’re not pretty enough and you’re pregnant.’ I said, ‘I can tell you with 100 percent certainty that I am not pregnant.’ He then looked at my stomach and said, ‘You obviously are.’ They knew I was not pregnant; it was there way of calling me fat without having to actually say it,” Ramos said. (source)
Surely no woman inside a nightclub has ever lied; nor has pregnancy ever been the subject of untruth.
I do wonder if Ramos and any lawyer pursuing the claim will be sanctioned by a court if it is filed. The story raises a serious question as to whether she knows she had no claim against the bar:
Ramos approached the Human Rights Commission in Iowa City, but the organization told her they could not do an investigation because size discrimination is not illegal by law, Ramos said. (source)
If Ramos tells her attorney about the commission’s finding and he/she was aware of it at the time of filing suit, there’s a good argument for sanctions against Ramos and even her attorney. Even if filed pro se, Ramos’ action will force the bar to mount a defense and research why weight discrimination by a private company (even one offering a place of public accommodation) is not unlawful in Iowa – a few thousand dollars that can and should stay in the venue’s hands.
Who emboldened Ramos to do this stupid shit? Certainly not a lawyer, who like the Human Rights Commission would have done some research and seen that Iowa law does not outlaw size discrimination. No, it was a social work professor – someone who, true to the maxim, could not do social work, and thus opted to teach it instead:
A social work professor at the University of Iowa told Ramos to return to the bar.
“She told my friends and I to go back and see if the same thing happens and to try to get them to say aloud ‘I am not allowing you up because of your size,’” Ramos said. (source)
Sorry, dipshit; being “othered” is not a cause of action. This subthread to the story is another vignette justifying my intense dislike for social workers along with teachers as the scylla and charybdis of useless public sector jobs, leading hundreds of millions of dollars in public funds to a useless demise.
Every few years one of these disputes arise, and yet “face policies” persist. There are several reasons for this, the first being that state laws cannot reasonably adapt to subjective categories of discrimination such as “size” the way they can to objective standards like race, national origin and religion – making it difficult, if not impossible, to outlaw these other forms of discrimination. Additionally, they work. Why do people wait for hours and pay hundreds of dollars to get into Marquee, XS or Haze? Is it because they’re letting John and Jane Q Public in the door with flip-flops, unflattering clothing and an unseemly gait? Hint: No. Keeping out average people is a way to maintain exclusivity and charge supracompetitive prices for an utterly forgettable experience, converting admission to the venue into intangible social capital.
Unfortunately, the outcome of drunken people dancing on elevated surfaces normally is injury. While the bar may or may not be liable for the injuries dancers suffer from their activities, it’s easier to avoid litigation that will cost far more than this motion to dismiss to find out the contours of this responsibility. There are a number of facts that point in both directions, such as bouncers regulating who may or may not dance, as well as the provision of flat surfaces amenable to dancing (and the accepted practice of patrons doing so). While an imperfect policy, the bouncers did what they could: Screening for people who appeared to have the litheness and balance to dance without causing themselves injury.
Under California law, the venue’s actions arguably would be expressive conduct – the setting, enforcement and expression of a policy put in place for patron safety and bar profitability under Cal. Code of Civil Procedure § 425.16. A suit based on Ramos’ claims could face dismissal under California’s anti-SLAPP statute, and leave the aggrieved student to pay the bar’s legal fees – as she should. Iowa, however, has no anti-SLAPP statute at all.
As for Ms. Ramos, perhaps she should go to the gym before the courthouse. The world is not a nice place, and not every ugly duckling matures into a graceful swan. I do not complain about “discrimination” at the hands of bodybuilding competitions because I’d be laughed off the stage in spite of the time I spend in the gym. Her disappointment in life – and I believe there will be lots of it, given her seemingly hypersensitive leap to litigation in this instance – is not actionable.
EDIT: Re-reading the articles, I see there is no claim that a lawsuit has been filed, no reference to a case, and no docket number provided. Apparently there is no active litigation. So – why is this news?
Nutshell version: while a cadet, a superior officer convinces her to let him take risque photos, which he promises will only be used for official business in investigating sexual predators. While she should have been tipped off when he claimed he was storing them on a 3 1/2″ floppy disk in 2004, not 1994, she nevertheless consented. Lo, and behold! He shared the photos and hit on her. She claims defamation of character, IIED, and some nebulous respondeat superior breach of duty claim. Umm, who blew the Title VII sexual harassment deadline? Or, heck, how about a 1983 claim? I see no immunity defense, so that should have been pleaded.
Maybe the attorney came on late and wants to stay in state court, so I’ll give the benefit of the doubt, but I’m not buying the $50m damages.
Sometimes, I think the courts should create a new defense of “Really? You really thought that? Really?” Yes, he took advantage of her and acted inappropriately, but she should have seen this coming.
Gentlemen, start your engines. The city of Indianapolis is facing a lawsuit arising from competing disability claims. In one corner, a person using a service dog to help them with their disability (while the typical scenario is the seeing-eye dog, apparently this is a paprika-sniffing dog). In the other, a person with a dog allergy.
The Americans with Disabilities Act (along, likely, with the Indiana state law equivalent), in a nutshell, requires employers to not discriminate against employees in the terms and conditions of their employment on the basis of a disability, so long as the employee can perform the essention functions of their job with or without reasonable accommodation. Here is where it gets sticky. Let’s first assume both employees in question are disabled within the meaning of the statute, which they likely are as they suffer from physical impairments (exposure to specific allergens) that substantially limit a major life activity (e.g. anaphylaxis preventing breathing in severe reactions). Using a service dog or preventing dogs in the workplace are both likely reasonable accommodations. Problem is, these are mutually exclusive accommodations.
Of course, there is an escape clause: employers are not required to make an accommodation, even if reasonable, if it otherwise would impose an undue hardship. Here, if the dog-allergy employee (DAE) is valuable, the employer could state that it would be an undue hardship to permit dogs as it would cause the loss of services of the DAE. It is an affirmative defense that the employer would have to prove, though it may be conflated with the reasonableness of the paprika-allergy employee’s (PAE’s) request. Also, employers are not required to provide the most reasonable accommodations, or the best reasonable accommodations, but rather one of the list of possible reasonable accommodations.
In the choice between DAE and PAE, the employer is free to choose DAE. However, the inquiry does not end there. The city apparently offered her only her job w/o dog or unpaid leave, neither of which are reasonable. What about a transfer of position or location that could accommodate both? Cities are usually sufficiently spread out to permit such an accommodation, so long as there is no conflict with civil service laws or collective bargaining agreements. So, PAE may yet have a case; in the meantime, she should be eligible for unemployment benefits.
Also, who knew? Paprika is everywhere!
By Tatiana von Tauber
I’m embarrassed to be an American woman with witness to the current state of the Union.
Being a woman is without a doubt the most difficult process of becoming I’ve ever undertaken especially since I began my role as a mother 14 years ago. Nothing prepares you for the experience of motherhood better than truth and so I feel the same about the future of young girls in America. There are many I know who were totally lost in the wake of the conservative pool of stupidity in the days of GWBush and his side’s abstinence education policies in American schools. There is an entire generation of kids who are completely misinformed about birth control and sex because of religion.
More and more I feel battered by having the feeling women were given erotic beauty for reproductive purposes – that selfish gene – and then, as though being whores weren’t enough, women were thrown into the immature flatlands of male needs where they were then expected to create synthesis. However, a bit of a power struggle later, women became those to not only seduce, but birth, nurture and support an entire family, if not society yet be given “jump for the carrot” freedom on body parts – by the very men they birthed! How did America come to be like this? If American politics continue to enter the domain of a female’s sex life, America has little to offer women of the next generation.
I’m drained from realizing Congress is really a bunch of men who can’t get their heads out of the female genitalia. If they don’t pay to get in one they pay for others to stay out of one! For the men who are playing around with this issue, women are only a piece of ass and little more, except maybe for their little girls who are a piece of ass for the boy next door. For women who support recent attacks on female rights in the name of being faithful to a God, I have no words, only disgust.
Reproductive rights, the womb, women’s health – all of it has to do with the absolute power this birth right gives to women; and patriarchy has never been stronger in modern America! As an American I am so appalled at this downfall of this great nation – that the womb and its ownership, the vagina and a woman’s health are on the table of political discussion rather than the real issues that need immediate attention, it all makes me want to throw up on Congress.
The bottom line to all this rhetoric is this: women have the power to veto men through sex and men don’t like that. Thank you Dr. Leonard Shlain for helping me understand this through your wonderful work, Sex, Time and Power (may you rest in peace) but how about a little help down here with the rest of the blind folks, eh?
The last time I checked, my kidney belonged to me and nobody could force me to do anything specific with it. The main reason the womb is different is because it controls males’ sex lives. The fact that women are under attack, in America, in 2012 stuns me.
Here’s my contribution to the debate: “Feminist War of 2012″. I designed this back in 2007 or so and struggled with a proper title. The Image just found its perfect match and almost sadly, its perfect time.Bonus material to chew on:
Speaking of controlling women, this is an example of how women get screwed by men and the baby fantasy and how media uses them to make money to help glorify the chaos and continue the cycle. See Kate Gosselin, mother of 8 now.
Great post and kick ass quote: The Body Politic, “This campaign needs more women and less gynecology” – Virginia Heffernan
From Charles Platt
A judge in Pennsylvania who just happens to be of muslim faith informed a plaintiff that the 1st Amendment doesn’t necessarily give you the right to “p people off.” The plaintiff had worn a “Zombie Mohammed” costume in a public parade in Mechanicsburg, thus enraging a muslim observer who ran forward and tried to choke the man until police intervened. Charges of harassment, filed against the muslim for trying to choke the demonstrator, were dismissed by the muslim judge. Details here.
Today, the Supreme Court in Hosanna-Tabor Church v. EEOC issued a unanimous ruling on the First Amendment. While this blog regularly celebrates the Freedom of Speech clause, the decision focuses primarily on the Free Exercise Clause and, to a lesser extent, the Establishment Clause.
In a nutshell:
- Church had 2 types of teacher–lay and ministerial.
- Ministerial teacher develops disability and takes leave of absense; replaced by lay teacher.
- Church rules normally prioritize ministerial teachers, but when this teacher tries to get her job back, she is denied.
- She becomes insubordinate and complains of an ADA violation.
- She is terminated.
- Teacher sues the church for retaliation against her for making an ADA claim.
- Supreme Court says church wins.
Assuming there was blatant retaliation, the church still wins. Why? Because if the government were to tell a church they couldn’t fire a particular minister, that would prevent a church from freely deciding who gets to spread the gospel and who doesn’t. To its extreme, though excepted specifically in Title VII, if the government had the power to dictate who a church could fire, it could prevent the Pope from defrocking an American Bishop who pronounces the Shahada and converts to Islam. Basically, the 1st Amendment lets a religion freely decide who gets to be a minister, even if the reasons for hiring or firing are otherwise abhorrent to society. If you don’t like it, you are free to change religions. Or declare the person who did the firing a heretic and stone them. Either way.
By Tatiana von Tauber
And if Obama had two boys?
I’m deeply disappointed by the recent decision to eliminate easier access to the so called morning after pill by girls 17 and under. I fully get where Obama gets his mindset from. I’m a parent of 2 girls, one 13 and very pretty.
Obama’s decision to side with Health and Human Services Secretary Kathleen Sebelius who overruled scientists at the Food and Drug Administration was a poor one. While he’s coming from a good place, may be a good father and honorable in doing what he thinks most parents would want, he just missed to boat of doing what’s actually in the best interest of young girls rather than what’s in the best interest of a parents’ wish for young girls. As far as HHS Secretary Kathleen Sebelius, may you have bad traffic and no easy access parking the entire holiday season! And I mean that.
Nothing, and I mean, nothing is more important to me as a female than ensuring other females have rightful ownership of their reproductive system no matter what their age. Without our womb, society can’t get very far. It’s the most powerful tool women have and thus, the rest is repeat history.
State of the female union
The majority of young girls – exampled as 11 and 12 year olds for the poor reasoning labeled ”common sense” which aided the elimination of this pill over the counter, aren’t that young often enough to discredit the good of the pill to older girls. It blatantly discriminates.
While it would statistically occur perhaps, the numbers would be small to have little girls, basically, just head over to the supermarket by the condoms isle and buy a $50 pill. This is so ludicrous that you have to be an idiot to side with it if not for political reasons. AND, if young girls did do that, then bravo for them taking pro-active measure to fix their screw up.
Who to trust when adults don’t give you all the facts?
I have never seen an influx of pro-lifers opting to fund, house or care for the millions of unplanned children of the world. embryos are great in utero. They’re fresh potential to mold. Religion needs followers and governments need taxes. Someone has to produce human beings at all costs.
“The FDA did not have the data to support a decision of this magnitude,” said Rep. Joe Pitts, R-Pa. “The secretary pointed out obvious deficiencies in the research and acted in the interest of young girls.”
Really? Of this magnitude? This pill has been used for decades in Europe and the issue of great magnitude is the subtle and sly attempt to strip females of what has always been rightfully theirs.
How to Fix this?
Here’s a suggestion then which truly does act in the interest of young girls:
How about yearly comprehensive sex education for boys and girls in the pubic school system mandated by federal and secular standards, not state. In GA my daughter met several young girls who actually believed they could get pregnant from kissing! This is sick in a country which claims such global superpower.
What about introducing reasonably easy access to free or reduced priced condoms or birth control to under aged girls instead of empty promises of abstinence whilst a nice hard cock stands to seduce. Perhaps if we reframe the way we view sex and morality the morning after pill can be marketed as an “Oops! Did you miss your birth control pill last night? We understand the heavy responsibilities a vagina and womb bring, so we’re here to help. Plan B. Here for you when Plan A bombs.” However, because it’s also used and known as an abortion pill, everything changes.
If God was so intelligent, why didn’t he make it so menses began at 18? If God can allow pre-teen girls to get a period, the intent is quite frankly, for them to reproduce. The morality stick should be poking God himself, not our young females. It’s sickening that taxpayers fund government salaries and research to pay for morality treatments as we hush science, logic and individual freedom.
Back in 2009, Washington State Governor Christine Gregiore signed SB 5688, the so-called “Everything But Marriage” act. Source. Shortly thereafter, a group of concerned citizens calling themselves Protect Marriage Washington got enough signatures to place a referendum challenging the bill. Protecting marriage from what, exactly, remains a mystery but Imma call them “The Protectors” anyway. No word on if they have capes with an Xed-out picture of two guys holding hands. Anyway, shortly after Washington Secretary of State Gary Reed determined the signatures were valid, he received a public records request under Wash. Rev. Code §42.56.001 for the names and addresses of the 137,000 signatory Protectors. The Protectors didn’t like that one bit and asked for a preliminary injunction to prevent Secretary Reed from complying with the request. They are trying to say that disclosing their names and addresses violates the First Amendment because referendum petitions are political speech and the resulting harassment they would (allegedly) receive would stifle that speech. This case wound its way all the way to the Supreme Court. Here’s the Opinion: Doe v. Reed.
Boiled down, the Protector’s main gripe is that the government’s interest in preventing voter fraud and the integrity of the electoral process pales in comparison to the stifling of their first amendment rights because the public records request was made to harass them for their political views. The Big Dogs didn’t buy it. Justice Stevens’ concurrence sounded a little like “Why the hell are we even here?” so that was a treat. But the Nine did recognize that disclosure requirements could stifle speech in some cases and even allowed for an exemption if there is a “reasonable probability that the disclosure would result in threats or harassment.” They didn’t address whether the request was unconstitutional as applied to this particular petition, so the parties got sent packing back to the District Court in Tacoma to figure it out. Both promptly filed motions for summary judgment. Source.
The Protectors tried to convince the Court that they should be afforded the disclosure exemption because their paltry 137,000 signers are a minority party akin to the NAACP in 1958 or the 60 member Socialist Party in 1976. Really Protectors? Really? Anyway, Judge Settle disagrees. And even if the Protectors could be granted minority status, they still would have had to produce…uhm….oh yeah. Evidence. But, awshucks, they couldn’t come up with anything to show that they had experienced harassment, threats, or reprisals due to their involvement with the referendum. Oh-did I mention several of the Protectors posted YouTube videos, had television and radio interviews, stood on street corners with signs, testified before the Washington State Legislature, collected signatures in front of Wal Mart and Target, put signs in their front yards, had bumper stickers on their cars, and published articles about their anti-gay position? Yeah, they did that. But we need to protect their anonymity because they might be harassed because of this stupid petition.
Look, part of being a junk yard dog for the First Amendment means that sometimes I have to defend speech I find repulsive. For what it’s worth, I think the Protect Marriage folks are bunch of hate-spewing morons. They seek to stifle the speech of those opposing a view they willingly cram down our throats and then hide behind the very Amendment they kick in the nuts when it comes to other people’s naughty bits. BUT- If they could have come up with evidence showing a probability that they were being harassed, threatened, and harangued to the point they were fearful of expressing their view, I would argue in favor of exempting them from disclosure. But the Protector’s evidence of harassment consists of testimony that shows a pastor got a call from a *gasp* transgender woman. The horror! Another Protector got flipped off one day *shudder*! One guy even got called a homophobic bigot. The shame! No one was fearful to testify in the case. No one is being clubbed. No one is being swept down the street by fire hoses. The worst they could show is that sometimes the Protectors are called “assholes” and told that their platform “is a bunch of shit”. Well, if the shoe fits, Cinderella…
James Fallows over at the Atlantic says, “Just for the Record: Anti-Mormonism Is Bigotry Too.”
No. No it is not.
Fallows sums his position up:
To be against Mitt Romney (or Jon Huntsman or Harry Reid or Orrin Hatch) because of his religion is just plain bigotry. Exactly as it would have been to oppose Barack Obama because of his race or Joe Lieberman because of his faith or Hillary Clinton or Michele Bachmann because of their gender or Mario Rubio or Nikki Haley because of their ethnicity. (source)
If a candidate believes in trickle-down economics, and you are against him for his beliefs, that isn’t bigotry. That’s looking at his views, realizing that they are incompatible with logic, and dismissing him because he’s an idiot.
If you are against someone for being Hispanic or Black, that’s bigotry. The color of someone’s skin doesn’t necessarily say anything about their beliefs or how they will behave.
But being against someone for what they believe, that’s not bigotry. That’s being a rational person. And there is no way I want someone leading my country if they believe that some snake oil salesman found magic gold tablets, that only he could see, and read some magic words from it, and discovered that people should wear magic underwear. Mormonism is stupid, and anyone who believes in it is too irrational to hold the remote control at my house, let alone the nuclear launch codes.
That’s not bigotry. A Mormon can wake up, smell the reality, and stop believing in bullshit. That day, the Mormon magically stops being a Mormon, and he starts being a normal rational human.
Marco Rubio can’t wake up tomorrow and say “y’know, I’m sick of being Cuban. I think I’ll be Irish now.” Hating on him for being Cuban — that’s bigotry.
Don’t mistake this for a post singling out the Mormons. Their beliefs are no less idiotic than those of any other cult. If you believe in a magic space zombie Jew, you’re not rational enough to be president either. At least not in my eyes. Islam? It doesn’t have any edge over Mormonism or Christianity.
The analysis gets a little tricky with Jews (sigh, doesn’t it always). You have to figure out if you’re dealing with a secular Jew or a religious one. Sammy Davis Jr. would have been unqualified to be President in my eyes, not because he was black, but because he believed that there is a magic space man who, after creating heaven and earth, decided that he didn’t want people to eat bacon, but he did want people to cut the tips off of little boys’ penises. Albert Einstein, Carl Sagan, and Golda Meir were qualified to run things. Joe Lieberman? Fuck no.
If you believe in some magic voodoo shit, good for you. If it works for you, believe it. I don’t care if you believe in a magic pink monkey that flies out of the ass of whales with a blue bucket on its head singing show tunes.
If you believe in such things, you still might be the coolest guy in the world. I would fight with everything I have to protect your right to believe in those things — no matter how I feel about them. I might even want to be best friends with you. I have friends who believe in some of the goofiest shit ever, from Orthodox Jews to Christians to Muslims, and I even think I have a Scientologist in there somewhere. Being religious is no disqualification from being on my good side.
But there’s no damn way I’d vote to let them run the country — not until they wake up from their self-imposed delusion.
If you disagree, you’re in good company. My view is totally screwed. I doubt we’ll ever have an openly-Atheist president. Not until there is a revolution.
As an Atheist, I don’t call that “anti-Atheist bigotry.” If you wouldn’t let me run things because I don’t believe in goblins, it doesn’t make you a bigot. It just makes you disagree with something that I have chosen to believe (or not believe, as it were).
That’s not bigotry.
Supermodel Naomi Campbell is insulted at being compared to Cadbury’s Dairy Milk Bliss chocolate as in this ad. She’s considering legal action at its racist tone.
If Cadbury’s Dairy Milk Bliss were white chocolate and compared to a white supermodel, I wonder if racism would come into the interpretation zone. Sexism might as who doesn’t love to lick chocolate and we could interpret that white chocolate subtly refers to creamy semen giving a whole new meaning to “milk bliss”. Interpretations are something interesting aren’t they?
By Marc J. Randazza
Washington Redskins owner, Dan Snyder, seems to have awfully thin skin for a guy who owns a sports team named after a racial insult.
Snyder accuses the WCP of spreading “lies, half-truths, innuendo, and anti-Semitic imagery” to defame him, seeking $2 million in damages. The amount is split between two claims, the first for defamation and the second for false light. The “anti-semitic imagery” he complains of is a crude addition of horns, a unibrow and Anton LaVey-esque goatee to Snyder’s photograph in the WCP, which can be seen here.
No, your irony meter is not broken. It is actually reading 11. A guy who owns the Washington Redskins is complaining that someone created an allegedly racist drawing of him. And, anyone who thinks that “Washington Redskins” isn’t a bigoted term, I used to think the same thing. In law school, I was in a debate with a guy I’ll identify as “Steve B.” I was armed with my free-speech bona fides, and ready to pwn Steve in front of the whole class for being overly politically correct. With his opening shot, Steve looked at me and said “what would you think if they were called the ‘Washington Jigaboos?’ Because the way black people would feel about that is how Native Americans feel about ‘Redskins.’”
I immediately conceded. Steve was right. The debate was over.So, the owner of the Washington
On behalf of Native Americans, up yours, Dan Snyder. Up yours with a cactus grown in the driest part of the Navajo reservation.
But lets get back to the issue at hand:
Dave McKenna’s comprehensive compendium on Snyder’s questionable reputation, which gave rise to this lawsuit, is not the first time he offended Snyder’s sensibilities. Snyder paints a paranoid picture of McKenna as a conspirator, evidenced in his November 24, 2010 letter to the WCP – sent less than a week after McKenna’s article hit the streets. Because McKenna mentioned Snyder within the WCP and its blog 15 times in as many months, Snyder believed McKenna was attacking him to please his new bosses at Atalaya Capital, which acquired Creative Loafing and the WCP in August 2009. (source.)
Even so, it appears McKenna gave Snyder a fair shake. Before McKenna’s article was published, Snyder’s wife went to the local media to defend her husband. In an interview, she said her husband was now surrounded by ‘better people,’ and that he had ‘grown and he’s evolved.’ (source.) The offending article even begins with the words “[w]e’ve been told a New Dan Snyder walks among us”!
Nevertheless, lets not forget that Dan Snyder is a wealthy man. He is a fabulously wealthy man. And we all know that the fabulously wealthy often believe that they are above being criticized by the rabble — and when the rabble forgets it, they need only spread their ass cheeks, let a few filthy pieces of silver fall from their milk-fed buttholes, and some swine of a lawyer will be lying underneath, mouth agape, happy to catch what might dribble from the sphincter of privilege — their oath, their ethics, and free speech be damned.
In nicer words, this is a classic SLAPP suit — not filed because it has a chance of success — but filed because the cost of defending it will be punitive enough to remind the little people that people who can afford to use helicopters as personal transportation vehicles do not like to be made fun of or criticized.
The first sign that this is a SLAPP suit? You need go no further than paragraph 1. The complaint states “Mr. Snyder is a public figure. As such, he accepts the right of the public and the press to criticize him or to express personal dislike, whether or not such expressions are justified by the facts.”
In other words, Mr. Snyder is going to need to leap over the “actual malice” standard laid down in New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, the Supreme Court held that the First Amendment required that a public official libel plaintiff must establish, through clear and convincing evidence, that the defendant acted out of “actual malice.” That doesn’t mean that the writer must have acted out of malicious intent, but rather that the defendant published his words “with knowledge that it was actually false or with reckless disregard of whether it was false or not.” Later cases expanded this to encompass defamation suits by public figures, as well as public officials. See, e.g, Curtis Publishing Company v. Butts, 388 U.S. 130 (1967); Gertz v. Robert Welch, 418 U.S. 323, 351 (1974).
Public figures can, occasionally, prevail under this standard. However, the bar is so high that unless the case is flawless, it is unlikely to go anywhere except down the “expensive to defend” highway. Snyder knows this. His attorneys know this. But Snyder is a wealthy man, and his lawyers don’t mind the taste of feces in their mouths, as long as they are licking the foul substance off of Snyder’s coins.
Lets take a look at Snyder’s claims under New York law. New York is very protective of free speech — especially where the news media is concerned. What constitutes a statement of opinion is broad, and can even embrace language that in other states may be defamation per se, such as calling another person “unprofessional.” See Amodei v. New York State Chiropractic Association, 160 A.D.2d 279, 280 (N.Y. Sup. Ct. App. Div. 2d Dept. 1990), aff’d 571 N.E.2d 79 (N.Y. 1991); Halegoua v. Doyle, 171 Misc. 2d 986, 991 (N.Y. Sup. Ct. 1997); Wait v. Beck’s North America, Incorporated, 241 F. Supp 2d 172, 183 (N.D.N.Y. 2003). (“Statements that someone has acted unprofessionally or unethically generally are constitutionally protected statements of opinion.”).
Despite Snyder’s melodramatic whining about McKenna’s negative opinion of him, even incendiary and inflammatory criticism of a subject is protected rhetorical hyperbole. See Greenbelt Coop. Pub. Ass’n v. Bresler, 893 U.S. 6, 14 (1970); Gross v. N.Y. Times Co., 623 N.E.2d 1163, 1167 and 1169 (N.Y. 1993). Even heavily caustic attacks on public figures are afforded the highest level of Constitutional protection. Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988).
The second cause of action is a bit trickier. While the language reads like a false light claim, there’s a wrinkle here: According to the Citizen Media Law Project, New York doesn’t recognize the tort of false light. Costanza v. Seinfeld, 27 Media L. Rep. 2177 (N.Y. Sup. Ct. 1999), aff’d, 719 N.Y.S.2d 29 (N.Y. App. Div. 2001); Howell v. New York Post Co., 21 Media L. Rep. 1273 (N.Y. 1993) That leaves Snyder with the tort of defamation by implication, which remains a form of defamation and thus subject to the same attacks set forth in the preceding paragraph.
Nonetheless, as the owner of the Redskins, Snyder has access to lawyers and the money to pay for them, and can inflict quite a lot of pain onto the defendants. Furthermore, even if the WCP fends off these claims, Snyder has made it clear that anyone smaller than the WCP had better be worried — criticizing him is not without its significant costs.
Mr. Snyder has more than sufficient means to protect his reputation. We presume that defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.” (source)
Snyder appears more butthurt than genuinely wronged. Unfortunately for him, or fortunately for us all, there still is no cause of action in the United States for intentionally butthurting a rich dude. Unfortunately for us all, win or lose, Snyder and his legal team just turned blew a cold wind across the free expression fruited plain.
J. Malcom DeVoy contributed to this post. Hat tip to Johnny Utah.
By Chad Belville, Guest Satyriconista
Iowa, a square state in the Heartland, is one of the few states in the US that allows any two adults of legal age to marry, regardless of gender. Unlike every other state where Supreme Courts found that government should legally recognize the unions of two same-sex adults, the Iowa decision was unanimous and shot down all arguments against limiting legal recognition, including those of tradition, religious bias, and the red herring argument that removing the gender restriction of two adults to enter into a bi-lateral contract will lead to allowing persons to enter into contracts with plants, animals, or upend the entire bi-lateral nature of the marriage license and allow polygamous marriages. The decision was well-written and should be a foundation for all other states to follow.
Immediately following the decision, the usual right-wing activists vowed to reverse it and take those rights away with an amendment to the Iowa Constitution. This requires approval by both House and Senate in two consecutive sessions of the Legislature followed by a popular vote. Democrats in control of both chambers refused to bring the issue to the floor, thus maintaining the equal rights of all adult citizens.
This past November, Republicans took control of the Iowa House of Representatives, who vowed to pass a bill that could eventually send the issue to the voters. The Iowa Senate remained in control of the Democrats and the Leader of the Senate, Mike Gronstal, has vowed not to bring this discriminatory amendment for a vote. Senator Gronstal can effectively keep such an insidious vote at bay for this legislative term but what happens beyond 2012 remains a mystery. His position is that civil rights of minorities should never be subject to approval by a popular vote, and he is absolutely correct.
As more time passes, more people realize gay people are not imported from far-away lands to indoctrinate kindergarteners but instead are their friends, neighbors, and relatives. Attitudes change and the urgency to take away the legal right to not testify against a same-sex spouse fades. These right-wing wackos know that time is not on their side; they know that if they do not pass constitutional amendments right now their battles will be lost as public opinion turns against them. Massachusetts has a similar system of amendment; after passing once and failing the second time through both Houses the issue died off. The fanatics moved on to take away or prevent establishment of rights for gay couples in other states where their shrieking could be effective.
In the State of Iowa, one man really stands in their way. Senator Gronstal’s position on equality and civil rights has painted a target on his back for the social conservatives who wish to turn back time. The National Organization for Marriage will expend millions of dollars to unseat him as punishment for opposing their bigoted beliefs, regardless of whether or not they can ever succeed in passing an amendment through both Houses in consecutive sessions. They led a successful campaign to remove 3 of the 7 Justices from the bench of the Iowa Supreme Court so their threats must be taken seriously.
Over the next two years, tremendous pressure will be put on Senator Gronstal to allow a vote on the floor of the Iowa Senate. Groups that are friendly only to Ozzie and Harriet-style families but not any others will pour money into anti-gay campaigns in an attempt to roll back the rights of a very small minority for the sake of their religious purity. Iowa is a small state, and the money from outside organizations will have a serious effect on the outcome. For now, equality in marriage is the law of the land in Iowa, but it is extremely vulnerable. The old saying is that “So goes Iowa, so goes the country” which used to apply to Presidential primaries but applies here and now to the issue of equal rights in the eyes of government. I have donated directly to Senator Gronstal’s campaign and to OneIowa, the umbrella civil rights organization that is countering NOM’s campaign of bigotry. I will continue to donate all of my equal rights contributions to Iowa organizations because the battle there is so acute and my donation dollars can do the most good. While I support things like the Employment Non Discrimination Act, the outcome of national equal rights activism is not on such a tiny fulcrum as in Iowa. I am asking anyone that will listen to join me in donating to the campaign of Senator Gronstal and OneIowa where small donations WILL make a difference.
by Tatiana von Tauber
Nothing like the F word being appropriately used: