The DMCA? She Bite Sometimes - Lenz v. Universal

Bubble Pearl Drink!
Let Me Crazy!

In Lenz v. Universal, the N.D. Calif. allowed a little push-back against overreaching copyright owners who wield Digital Millennium Copyright Act (”DMCA”) takedown notices like a blunt club.

In February of 2007, Stephanie Lenz videotaped her toddlers dancing in her kitchen to the Prince song, “Let’s Go Crazy.” She then uploaded the 29 second video to Youtube. “Let’s Go Crazy” can be heard for 20 muffled seconds. Universal then sent Youtube a DMCA takedown notice, and Youtube complied.

Lenz sent YouTube a DMCA counter-notification pursuant to the little-used portion of the DMCA codified at 17 U.S.C. § 512(g) Lenz took the position that her video “constituted fair use of ‘“Let’s Go Crazy’ and thus did not infringe Universal’s copyrights. Lenz filed a counter-notification and demanded that the video be reposted.

YouTube re-posted the video on its website about six weeks later.” (Source at 2) Lenz then utilized an even more rarely-employed portion of the DMCA, 17 U.S.C. § 512(f), which provides for liability to be imposed on those who file DMCA notices without the requisite good faith belief that the material in question is an infringement of the copyright owner’s rights. Universal moved to dismiss claiming that it did not need to consider fair use when sending a DMCA notice.

Universal contends that copyright owners cannot be required to evaluate the question of fair use prior to sending a takedown notice because fair use is merely an excused infringement of a copyright rather than a use authorized by the copyright owner or by law. (Source at 5)

Lenz countered:

Lenz argues that fair use is an authorized use of copyrighted material, noting that the fair use doctrine itself is an express component of copyright law. Indeed, Section 107 of the Copyright Act of 1976 provides that “[n]otwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. Lenz asserts in essence that copyright owners cannot represent in good faith that material infringes a copyright without considering all authorized uses of the material, including fair use. (Source at 5)

The Court found that Lenz had the more persuasive argument:

Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. (Source at 6)

Universal then complained that it would be too hard to evaluate whether something was fair use. The Court didn’t buy it.

Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review. (Source at 7)

Too many copyright owners misuse the DMCA as a mandate to squash all use, fair or not, of their material. In a particularly egregious example, Professor Wendy Seltzer posted a clip of the NFL’s copyright notice, and the NFL issued a DMCA takedown notice. Story here. With any luck, this N.D. Calif. case will make copyright owners think twice before sending out a ham-fisted DMCA notice.

FCC Gets Punked Again

When, oh when, will the FCC learn that it too is governed by the First Amendment?

The Third Circuit held that although the FCC possesses the authority to regulate indecent television content, it “had long practiced restraint in exercising this authority.” (Opinion at 13). This restraint had previously limited the FCC to find that broadcast material was indecent only in a few occasions “where programming contained indecent material so pervasive as to amount to ‘shock treatment’ for the audience.” (Opinion at 13).

During this entire period, the FCC consistently had a policy that isolated or fleeting material was not actionable indecency.

At the time of the infamous “wardrobe malfunction,” this policy was still in effect. However, in a blatant move to pander to the “values voters” who ushered in the Bush regime, the FCC decided to change this policy without notice or explanation immediately once the Super Bowl XXXVIII “wardrobe malfunction” hit the airwaves.

The Third Circuit found that while the FCC has the privilege of changing its policies, it must do so reasonably and not in an arbitrary or capricious manner. For engaging in this ambush-style policy change, the Third Circuit found the FCC’s actions “arbitrary and capricious under the Administrative Procedure Act as applied to CBS.” (Opinion at 14).

Additionally, the Third Circuit found that the FCC’s decision to hold CBS liable for Janet Jackson and Justin Timberlake’s halftime show performance was improper. Since Janet Jackson and Justin Timberlake were independent contractors, trying to hold CBS accountable was unlawful.

The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors without offering proof of scienter as an element of liability. And, it is unclear whether the FCC correctly applied a “willfulness” standard to find CBS liable for failing to prevent the Halftime Show’s indecency. (Opinion at 50)

This decision is not only very satisfying to me as a First Amendment advocate, but it also has the right tone when considered in light of Deborah Taylor Tate’s recent statement that “the law is simple. If a broadcaster makes the decision to show indecent programming, it must air between the hours of 10 p.m. and 6 a.m. This is neither difficult to understand nor burdensome to implement.”

Hopefully Ms. Taylor Tate and her asshat colleague, Kevin Martin, will now also learn that the First Amendment is also neither difficult to understand nor burdensome to follow.

Paul Broun hates our freedom and hates our troops

Forgive the headline, but I just love feeding conservatives neo-cons their own feces.

Rep. Paul Broun, R-Ga., has proposed H.R. 5821, the so-called “Military Honor and Decency Act” to close a “loophole” in the law that allows nudie magazines to be sold on military bases. Irony alert! If it passes, the people who are fighting the taliban, allegedly to protect our freedom, will no longer have the freedom to buy the latest issue of Penthouse.

“Our troops should not see their honor sullied so that the moguls behind magazines like Playboy and Penthouse can profit,” said Rep. Paul Broun, R-Ga., unveiling his House bill April 16. (source)

Broun trotted out the typical anti-porn rhetoric, spouted from pulpits and womens’ studies departments nationwide.

“Allowing sale of pornography on military bases has harmed military men and women by escalating the number of violent, sexual crimes, feeding a base addiction, eroding the family as the primary building block of society, and denigrating the moral standing of our troops both here and abroad.” (source)

If our military members are so fragile that they can’t take the sight of a naked woman (or man) in a magazine without falling apart, we’re going to need to hire some mercenaries to handle our foreign expeditions. Anyone soft enough to lose it over Penthouse isn’t really fit to write traffic tickets, let alone tote an M-16.

The measure was specifically targeted at Playboy and Penthouse. Those two publications made it through an earlier, less restrictive, review process. The military censorship board decided that both Penthouse and Playboy had “enough nonsexual content to be acceptable.” (source)

One veteran made a particularly sharp point:

So what basis does this Paul Broun make on pornography being unsuitable for us to view? As a former paramedic was I able to view the human body injured, mishapen, diseased and traumatized for the good of the country, but unable to exercise individual responsibility by going to a strip club on a Friday night? (source)

Another military member had this to say:

Still, the irksome thing about the Christian Taliban trying to deny everyone else anything they don’t approve of is that it creates a more uptight and less “fun” military. Good thing the Recession arrived to ensure retention.

The Cold War USAF, for example, was a “work hard, play hard” environment. Now it’s a “one mistake Air Force” where it’s all work and boring wholesomeness (well, someone ELSES idea of wholesomeness) instead of real martial spirit. Now that we are gradually morphing into a drone deployment corporation this may not matter much…but consider the people who want to micromanage what you read are displaying UTTER contempt for YOU by restricting YOUR choices. (source)

Yet another made this point:

Bottom line, I’ve been to Iraq twice now and sacrificed for the country and its freedom. What the hell are these Republican fundamentalists to push their morality on us? (source)

Amen, brother.

Oh, I almost forgot the best part. Broun’s justification for this measure? He doesn’t want government funds to go toward procurement of pornographic materials. When he was informed that the PX doesn’t give the magazines away, and that the base exchanges are self-funded, a Broun spokesman responded with this zinger.

Broun’s spokesman John Kennedy contended that taxpayer dollars are involved — “used to pay military salaries, so taxpayer money is, in effect, being used to buy these materials,” he said.

A man in uniform replies:

If the senator thinks that taxpayer money is used to buy these items because our salary comes from taxes I feel that all government employees should be subjected to the same standards. This should not include just pornography, but also alcohol, tobacco, violent video games & movies, any clothing that is a color other than white or black(could over stimulate your senses otherwise), spending more than $10 on a haircut, or anything else someone can come up with that would make him have to give up something. We are paid for services rendered and we should be allowed to spend our money in a way we see fit. Last time I checked all mombers of the military are legally adults and therefore can make decisions for themselves. (source)

Paul Broun, you are the ass-hat of the week, and the first to bear the title “Ass hat who hates our freedom and hates our troops.”

Runners up for the ass-hat award are the 16 freedom and troop hating sleazes who co-sponsored the bill. Take a bow, y’all.

Rep. Paul Broun, R-Georgia
Rep. Todd Akin, R-Missouri
Rep. Steve Chabot, R-Ohio
Rep. Randy Forbes, R-Virginia
Rep. Jeff Fortenberry, R-Nebraska
Rep. Virgil Goode, R-Virginia
Rep. Marilyn Musgrave, R-Colorado
Rep. Joe Pitts, R-Pennsylvania
Rep. William Sali, R-Idaho
Rep. Mark Souder, R-Indiana
Rep. Roscoe Bartlett, R-Maryland
Rep. Peter Roskam, R-Illinois
Rep. Steve King, R-Iowa
Rep. Rob Bishop, R-Utah
Rep. Mike Pence, R-Indiana
Rep. Chris Smith, R-New Jersey

The Georgia Court of Appeals commits attempted murder on American literature in “Red Hat Club” case.

Law.com reports on a case in which the Georgia Court of Appeals has committed the crime of attempted murder — of literature.

The Book - The Red Hat Club, by Haywood Smith

The case, Smith v. Stewart, 660 S.E.2d 822 (2008), arises from the book, The Red Hat Club, by Haywood Smith. For those of you who don’t know, the Red Hat Society is a real group. It describes itself as a dis-organization. It has few rules, except members must be women over the age of 50 and must wear purple dresses and red hats while they go out to lunch and flip the bird to age-ism.

The book is the story of five women who have been best friends for thirty years. Georgia, SuSu, Teeny, Diane, and Linda meet up once a month for what the author’s website describes as “a delicious monthly serving of racy jokes, iced tea and chicken salad, baskets of sweet rolls, the latest Buckhead gossip, and most of all–lively support and caring through the ups and downs of their lives.“

The drama to the story kicks in when Diane finds that her husband has purchased a condo for his mistress with the family’s retirement funds.

[T]he Red Hats swing into action and hang him with his own rope in a story that serves up laughter, friendship, revenge, high school memories, long-lost loves, a suburban dominatrix, and plenty of white wine and junk food. From the 1960s to the present, The Red Hat Club is a funny, unforgettable novel that shows the power women can find when they accept and support each other. (source)

Google Books). provides some excerpts from the work. The whole book isn’t there, but you can get the picture by scanning a few pages. More importantly, you can read some of the introduction to the character, SuSu by reading here.

Enter the character, SuSu, and the real-life woman, Vickie Stewart

The fictional character, SuSu, shares some key similarities with the real woman, Ms. Vickie Stewart. SuSu and Stewart both graduated from the same high school, and they both lost their first husbands to car accidents and they both had a hard time collecting the insurance settlements due to the interference of a subsequent lover. Both became flight attendants later in life and SuSu’s friends in the book call her the “world’s oldest stewardess.” (source).

Despite the resemblance between SuSu and Ms. Stewart, SuSu has many unflattering personality characteristics, which Ms. Stewart denies sharing with SuSu, and to which Ms. Stewart takes offense. SuSu is an Atheist, a “right-wing reactionary”, a drunk, and is very promiscuous. The book says, for example, that when SuSu was on a layover, the term was “a double entendre of galactic proportions.” (personally, I think “Atheist” is a compliment, but that’s me).

Ms. Stewart and the book’s author have, apparently, been life-long friends. That probably ended when Stewart filed suit against Ms. Smith for defamation. Stewart claims that the character identifies her, and defames her.

The Case

Stewart filed suit against Smith, St. Martin’s Press, and the secondary publishers, asserting claims for defamation, invasion of privacy, and infliction of emotional distress. Stewart claimed that there were so many significant similarities between her life and that of SuSu that they would lead a “reasonable person who knows [her] and who reads the book to reasonably conclude that the character SuSu is Vickie Stewart.” The complaint also charged that, as a result, Stewart is falsely depicted as an “alcoholic slut who drinks while working as a flight attendant” and that such depiction is defamatory per se. Smith v. Stewart, 2008 Ga. App. LEXIS 393 (Ga. Ct. App. 2008)

All of the defendants moved for summary judgment on the ground that the book is a work of fiction. “They also argued that Stewart could not establish the facts necessary to sustain her claims and that the novel could not reasonably be understood to be stating actual facts of and concerning Stewart. ” Id.

Stewart filed her own motion for partial summary judgment and showed that Smith knew about the key events in Stewart’s life, told Stewart that her life story was interesting, and that she had used information about Stewart’s life to create the SuSu character. Smith admitted that she used details of Stewart’s life for the character, but that she fabricated other events and details, and based some other parts of SuSu on other people.

In this case, in addition to the numerous unique facts about Stewart which Smith used to create SuSu’s character and background, as outlined above, the book includes many other references to distinct, albeit more common, similarities between Stewart and SuSu. These similarities include their propensity for being chronically late, their hair color (red/auburn), their chain-smoking and smoker’s cough, and the descriptions of their parents’ occupations and their childhood homes, as well as other facts about Stewart that were not matters of public knowledge until the publication of the book. In fact, the court trial found at least twenty-six specific examples of similarities between the two. As noted above, these similarities led many readers to immediately conclude that SuSu was based on Stewart.

Further, the defendants have conceded that SuSu was inspired by and based in part on Stewart, that there are numerous similarities between Stewart and SuSu, and that SuSu is recognizable as Stewart. The defendants argue, however, that there are also many differences between SuSu and Stewart, such as their names and the names of their friends, and the fact that, unlike SuSu, Stewart was not a high school cheerleader or a member of a sorority and does not belong to a group called The Red Hat Club. Those differences, however, merely create a jury issue as to whether the character of SuSu was a portrayal of Stewart. Id. (citing Fetler v. Houghton Mifflin Co., 364 F2d at 653-654).

Under these circumstances, Stewart should be allowed the opportunity to prove that, despite the fictional label, the character of SuSu bears such a close resemblance to Stewart that a jury could reasonably conclude that the character was intended to portray her. Whether the book was actually understood by third parties to be about Stewart is, of course, a question of fact for the jury.

But it is “fiction”

It is a common lay-person’s error to think that labeling something as “opinion,” means that it automatically loses any ability to be defamatory. While opinion is always protected and can never be defamatory, merely labeling it as such does not give it a magic blanket of legal protection. Conversely, failing to label something as opinion does not strip it of its First Amendment protection.

Similarly, while fictional events and characters are per se not defamatory, the mere label fiction does not act as a magic talisman against a defamation suit. “In other words, the test for libel “is not whether the story is or is not characterized as ‘fiction,’ or ‘humor,’ but whether the charged portions, in context, could be reasonably understood as describing actual facts about the plaintiff or actual events in which she participated.” Id. (citations omitted.)

The Secondary Publishers

The court avoided at least one very dangerous precedent. It held in favor of the secondary publishers: Those who published the audiotaped, internet, and large-type versions of the book. The court recognized that there was no evidence of negligence on their part.

Personally, I am not sure how anyone could hold ever a secondary publisher liable by applying a mere negligence standard. Imposing a duty of care on a re-publisher to independently verify facts, or fact-based fiction, in a novel would seem to be a judicial declaration that secondary publishers would need to go out of business altogether.

Defamation of character based on characters

Defamation cases brought as a result of movie and book characters are not all that uncommon. See, e.g., Davis v. Constantin Costa-Gavras, 654 F.Supp. 653 (S.D.N.Y. 1987). In that case, the SDNY held that due to the plaintiff’s status, he needed to demonstrate actual malice in order to prevail in a defamation case based upon a fact-based fictional character in the movie Missing. Failing to do so, the complaint could not go forward. Additionally, there were issues in that case (although I do not believe that they were dispositive) with regard to the dramatized character actually identifying the plaintiff.

In Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980), the Second Circuit came to a contrary opinion. In that case, the defendant published a book called “Match Set,” about a transsexual named “Melanie Geisler,” who engaged in lots of weird sex and in rigging tennis tournaments. A real girl by the same name was none too pleased, filed suit, and the 2d Circuit held that there were sufficient grounds to allow the case to get to a jury.

Both of these cases came to logical conclusions — unlike Smith v. Stewart. In Davis, would be awfully strange for a man who doesn’t share the name of a character to complain about the portrayal of a fictional character in a film who happened to share his common first name.

However, in Geisler, given the fact that the name “Melanie Geisler” isn’t exactly common, it seems reasonable to let a jury decide whether or not a fictional character was a defamatory portrayal of a real girl by the same name. The burden upon the author in that case was relatively low — take a little time to make sure that there is nobody out there by that name.

Commentary on Stewart v. Smith

Stewart v. Smith departs from this logical trend and creates some miserable law. While I agree that inaccurately describing Ms. Stewart (or anyone else) as a drunken, whoring, nut-case is likely defamatory, the book does not describe Ms. Stewart as such.

The real issue that the Georgia Supreme Court should cover, if this case is appealed, is to educate its lower court on the difference between a character being based upon someone and a character identifying and describing someone.

Anyone who has ever written a piece of fiction understands that there is no such thing as a truly “invented” character. From the Bible to Borat, authors of works of fiction base the events and people in literary works on real events, people, and things. No piece of fiction is woven from pure wool, but is rather a quilt of the author’s experiences, imagination, conscious, and subconscious.

The character SuSu is a fictional character inspired by real people, places, and events. Nevertheless, the book is clearly a work of fiction. You can take a scan of excerpts from the book here on Google Books). The centerpiece in the idiocy of this decision is found here:

The record shows that Smith based much of the book upon true stories, some of which actually involved Stewart, that she set the action in actual restaurants, hotels, clubs, and other buildings located in and around the city of Atlanta, and that she researched the details of the book to ensure their accuracy and to add “credibility” to the book. And the book is not just a “light-hearted romp” that simply describes a few “implausible” antics by the main characters; it also includes stories about real adult issues, including adultery, divorce, spousal abuse, mid-life crises, deceit, disappointment, and regret. In fact, in an e-mail message to a fan of the book, Smith admitted that her “books deal realistically with sexuality, anger, and women in crisis who make destructive choices[.]”

Perhaps the Georgia Court of Appeals would have been happier if The Red Hat Club were written with all of the literary skill and authenticity of “Doc Hollywood.”

Despite the fact that the SuSu is based upon Vickie Stewart, no reasonable juror could conclude that this book of fiction defames Stewart. In fact, any juror that did so should be immediately forcibly sterilized so as not to further pollute the gene pool, thus causing the continued devolution of the human race from Homo Sapiens to Homo Walmartus.

The standard for fiction liability should be much higher than the low bar set by this decision. In this case, the court found that there were 26 similarities between SuSu and Stewart. So, what is the magic number of similarities required for identification? Nobody knows. Under this decision, fiction authors will need to re-edit their works, making sure to wash away indicia of authenticity from any works that might portray any character in a non-flattering light. Essentially, the entire genre of reality-based literature is at risk. The First Amendment can not tolerate such a miserable, unworkable, and unclear standard.

I, myself, am briefly portrayed in Gentlemanly Repose, and the portrayal is none too flattering. So, anyone who wants to ask “how would you like it if it was you?” can kiss my Sicilian ass. It has been me. I recognize that Gentlemanly Repose is a book of literature, and that the author took a little dramatic license with his portrayal. I am happy to have been a piece of mortar in the literary edifice he constructed, and I’m not whining for a monetary handout from a court.

If this moronic decision stands, any author who sets a story in Georgia, talks about a Georgian, or even sells a book of reality based fiction in the State of Georgia, will have to carefully vet each character to make sure that it doesn’t resemble anyone at all, lest some unethical sleaze comes knocking, looking for a piece of the author’s success. The average book contract pays very little. We’re talking four figures here. What will become of our literary landscape if publishers and authors need to whitewash all literature in order to avoid the next Stewart? Is our culture not dumbed down enough by the marketplace? Does the fear of liability need to further dowse the flames of American creativity?

Ms. Stewart should, since she denies being an Atheist, pray to her god that her victory is reversed on appeal. If this case really was about her wanting to defend her good name, she should consider how she would like to be remembered. Would she rather be remembered as the basis for a fictional character? Or would she rather that her legacy be that of the ass-hat who killed American literature?

HT: Debra Weiss

Another Borat Lawsuit Dismissed

In a 13-second segment of the movie, the man, Jeffrey Lemerond, visibly alarmed or frightened, is shown running and shouting “Go away!” and “What are you doing?” at the intersection of Fifth Avenue and 57th Street, as Mr. Cohen’s character, Borat Sagdieyev, a fictitious journalist from Kazakhstan, chases him while trying to hug strangers. Mr. Lemerond was shown twice in the movie and once in a trailer, although his face was scrambled and rendered blurry in the trailer.

In a lawsuit filed last June, Mr. Lemerond sued 20th Century Fox, which distributed the film, arguing that the movie had improperly used his image, without his consent, in violation of a century-old state civil rights law.

In general, the civil rights law prohibits using a private person’s name, portrait or likeness for “advertising purposes or the purposes of trade” without the person’s written permission. But as a judge, Loretta A. Preska of United States District Court in Manhattan, noted in a nine-page ruling on Monday, state courts have interpreted the ban narrowly, as “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.”

The ban does not apply to “newsworthy events or matters of public interest,” and “newsworthiness” has been taken to include “not only descriptions of actual events, but also articles concerning political happenings, social trends or any subject of public interest.”

Does Borat deserve the same protection as, say, a reporter for The Times? (Readers, be gentle.)

Judge Preska skirted that question, saying the court should be wary about judging what is newsworthy or of public interest. She wrote:

Of course, the movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers. At its core, however, “Borat” attempts an ironic commentary of “modern” American culture, contrasting the backwardness of its protagonist with the social ills [that] afflict supposedly sophisticated society. The movie challenges its viewers to confront not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from “ordinary” Americans. Indeed, its message lies in that juxtaposition and the implicit accusation that “the time will come when it will disgust you to look in a mirror.” Such clearly falls within the wide scope of what New York courts have held to be a matter of public interest.

Mr. Lemerond vigorously disagrees and is considering filing an appeal, his lawyer said.

“We believe that New York law does not allow a corporation like 20th Century Fox to pluck an otherwise anonymous citizen out of a crowd and subject him to public humiliation in order to make a buck,” said the lawyer, Eric Hecker, of the firm Emery Celli Brinckerhoff & Abady. (source)

Ed Stross - Michigan Mural Case Update

I posted on the Ed Stross mural case last night, but hadn’t yet located the decision. Now that I have reviewed it, here is my full analysis.

In 2005, artist Ed Stross painted a mural on the outside of his studio that has been described as “a take on Michelangelo’s ‘Creation of Man.’ It depicted Eve with a bare breast and has ‘love’ written on it.”

The bare breasts are part of a rendition of the biblical “Eve,” as depicted in the “Creation of Man” work at the Sistine Chapel by artist Michelangelo. He called his the “Creation of the spirit of Roseville.” Each letter of “love” is depicted on open pages clasped by angels. (source)

Roseville, Michigan’s sign ordinance prohibits display of genitalia and lettering.

In February of 2005, Stross was sentenced to 2 years probation and 30 days in Jail by Judge Marco Santia for his transgressions against society. (source) Santia refused to allow Stross to raise First Amendment defenses and refused to allow the sentence to be suspended pending appeal. (Judge Santia, come on down and accept your ass-hat award).

Fortunately, the Michigan Court of Appeals reversed, stating that such a move would violate Stross’ First Amendment rights.

Interestingly enough, the case was not about the bare breasts, but on the lettering.

The Court of Appeals noted, intelligently, that breasts are not “genitalia.”

We note that the mural did not contain genitalia under the plain meaning of that term. Random House Webster’s College Dictionary (2001) defines “genitalia” as “the organs of reproduction, esp. the external organs.” Because breasts are not reproductive organs, they are not properly considered genitalia. Stross v. Roseville at 4 note 5.

Commercial or Non-Commercial Speech?

The first question to answer in these kinds of cases is what level of protection should the expression enjoy? Commercial speech receives far less protection than pure non-commercial expression.

The dissenting justice wrote that the mural was commercial speech:

Although the mural may not be an advertisement in the typical sense of that term, it is located on the building in which defendant operates his art studio, bears his signature as the artist, and serves to inform the public of his talent and artistic abilities. The mural itself is an example of the product that defendant, an artist for hire, offers for sale. Moreover, the obvious economic motivation for the mural is to draw attention to defendant’s talent in hope of attracting persons in need of an artist’s service. In addition, signage not located on the wall works in association with the mural to promote defendant’s art studio and the sale of his work. (source)

This is a bit chilling — so I am grateful that this was in the dissent. Otherwise, it would likely mean that all signed art could be considered to be commercial speech.

The majority, on the other hand, declined to determine whether the mural was commercial or non commercial speech. The majority held that resolution of that question was unnecessary since the ordinance violated even commercial speech rights under Central Hudson Gas & Electric Corp. v. Pub. Service Comm’n. of New York, 447 US 557, 566 (1980). Accordingly, if the ordinance violates commercial speech rights, it certainly violates non-commercial speech rights.

Why does the ordinance run afoul of commercial speech rights?

Under Central Hudson , courts must ask:

(1) Does the speech concern a lawful activity and is it not misleading, so that it falls within the protections of the First Amendment, and (2) is the government’s restriction justified by a substantial governmental interest? If those two questions are answered “yes,” then we must go on to ask: (3) Does the regulation directly advance the asserted governmental interest, and (4) is the regulation more extensive than necessary to serve the governmental interest.

Under this test, the Court of Appeals looked at the genitalia prohibition and the lettering prohibition, splitting the difference. The Court found that it was reasonable for the City to ban genitalia on signs, but not lettering.

In a heartening statement, the Court said “There appears to be no dispute that the mural is protected under the First Amendment.” No further discussion.

It then went on to examine the governmental interest in the regulation. The regulation’s stated purpose was to

“protect the health, safety and welfare of the citizens of the City of Roseville, including but not limited to defining and regulating signs in order to promote aesthetics, to avoid danger from sign collapse and to regulate sign materials, avoid traffic hazards from sign locations and size, avoid visual blight and provide for the reasonable and orderly use of signs.”

Finding these interests to be legitimate, the Court examined whether the ordinance advanced those legitimate interests.

Plaintiff argues, and the circuit court determined, that the mural is located at a well-traveled intersection, and that the restrictions are clearly related to avoiding traffic hazards. The mural is 1,100 square feet and covers most of the 50-foot side of the building housing defendant’s art studio. Considering the overwhelming size of the mural, the inclusion of genitalia in the mural could very well distract motorists and cause aesthetic concerns. The inclusion of lettering could also distract motorists, depending on the size and quantity of the lettering. For example, a mural consisting principally of words could cause a traffic safety hazard if drivers shifted their focus to reading the mural. Thus, it appears that the restrictions directly advance the asserted governmental interests.

Accordingly, the Court agreed that 10 foot tall penises might cause traffic hazards and negatively impact the City’s aesthetics. Accordingly, there was a “reasonable fit” between the genitalia provision and the stated legislative interest. However, as noted above, this did not impact Mr. Stross’ case, because the Michigan Court of Appeals understands anatomy to a greater extent than Kevin Martin or Deborah Taylor-Tate (they think that the buttocks are a sexual organ).

The Court gave a bit more thought to the restriction on lettering.

While prohibiting lettering to a certain extent may be a reasonable means of achieving the goals of traffic safety and aesthetics, prohibiting lettering completely appears to be an excessive restriction compared to the interests sought to be advanced. Indeed, it does not appear that the word “Love” on the mural would distract motorists or detract from the aesthetic value of the neighborhood. Thus, we conclude that the complete ban of all lettering is too restrictive to promote the goals of traffic safety and aesthetics and is not narrowly tailored to achieve these objectives. Accordingly, the restriction prohibiting lettering is an unconstitutional regulation of speech, infringing on defendant’s First Amendment protections.

Because the jury was permitted to convict defendant based on the unconstitutional provision prohibiting lettering, his conviction must be reversed. “[W]here a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground.” Griffin v United States, 502 US 46, 53; 112 S Ct 466; 116 L Ed 2d 371 (1991). Thus, because the jury could have convicted defendant based on either the unconstitutional lettering provision or the provision prohibiting genitalia, we reverse his conviction.

The Chicago Tribune reports that the town may appeal to the Michigan Supreme Court. (source) The only justification for such an appeal would seem to be a City governed by those who are completely and irrationally obsessed with “being right” as opposed to those who uphold their oath of office. See, e.g., Daytona Beach.

Majority opinion here. Dissent here.

Sammy & Me

I still hold out hope that Samuel Alito will become what Scalia should have been — a jurist of which Italian Americans can be proud.

Today’s news gives me a little hope.

Justice Samuel A. Alito Jr. criticized The Sopranos television show yesterday for stereotyping Italian-Americans and his home state of New Jersey.

In a talk at Rutgers University, Alito complained of “an insidious connection popular culture often makes between being a gangster and being Italian,” the Trenton Times reports. (source)

It is for that precise reason that I personally believe that The Sopranos is a bigoted and classless TV show. That being said, I’ve never tried to have it banned from the airwaves. I have, however, banned it from my home.

Nobody seems to get it… except my pal, Sammy.

Borat Case Dismissed on Jurisdictional Grounds

Kathie Martin, an etiquette teacher in Birmingham, who appeared in the Borat movie, brought suit against the filmmakers because she didn’t like how she was portrayed in the film. The media has been buzzing with news of the dismissal, which isn’t as powerful of a victory for our favorite Kazakh reporter as it might seem.

The Alabama Supreme Court dismissed the claim due to the fact that a forum selection clause in the contract between the filmmaker and Martin provided that New York was the only forum in which disputes would be resolved. Martin has apparently filed something in New York. Stay tuned.

FCC Commish Tate — Asshat of the Week

This post comes with a soundtrack provided by the Meatmen. Listen to this song as you read this entry.

Last week, the FCC imposed a fine of $1.43 million against ABC for daring to show the side and back of a naked woman getting into a shower on NYPD Blue. (source)

The FCC’s briefing said:

“Although ABC argues, without citing any authority, that the buttocks are not a sexual organ, we reject this argument, which runs counter to both case law and common sense.”

Lemme get this straight…. case law determines what is a sexual organ? And common sense tells us that the buttocks are a “sexual organ”????

Here is the comment that gets Ms. Tate the Asshat award:

“Our action today should serve as a reminder to all broadcasters that Congress and American families continue to be concerned about protecting children from harmful material and that the FCC will enforce the laws of the land vigilantly.” (source)

If the FCC wants to rely upon case law, here is some for them:

“Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.” ACLU v. Gonzalez, 2007 US DIST LEXIS 20008 (E.D. Pa. 2007)

And if we want to speak to the issue of common sense… I hope that Commissioner Tate is run out of Washington as soon as possible. Any person who thinks that the sight of buttocks is “harmful material” from which children need protection (and that the “laws of the land” do not include the First Amendment) has no right to serve this country. Perhaps once her neo-con benefactor is finally out of office, a nice government in Iran or North Korea would have use for her services?

“Buttocks… buttocks… I love buttocks…. ” (The Meatmen, We’re The Meatmen… And You Suck! - Touch And Go Records 1983)

Related post: Fox v. FCC - Is Common Sense and Liberty Coming Back Into Vogue?

Also, see Dr. Marty Klein’s take on this issue here: Obsessed With Asses, FCC Screws America

Another Borat Lawsuit

Now the driver’s ed instructor from the Borat film has filed suit. This film will be featured prominently in my entertainment law class. (Source)

UPDATE: A plaintiff in an earlier-filed Borat suit not only had his case dismissed, but he now owes Fox $43,775 for their attorney’s fees! Kudos to the judge who had the chram to impose this penalty for frivolous litigation. (source)