Flori-duh. Thank you, again.

October 16, 2014

Governor Rick Scott refused to debate Charlie Crist (at least for a while) because Crist had a fan in the podium.

Depending on who you believe, Scott cited a rule that prohibited “electronics” in the podium, or there was a rule that was much more specific, which referred specifically to “fans.”

Just speculating here, but I would imagine that debate rules would prohibit “electronics,” as I could see a candidate getting an unfair advantage with an iPad or cell phone in front of him. To have a rule prohibiting “fans,” just doesn’t make much sense.

If anyone finds a copy of the rules, I would love to see them. In the meantime, feast your eyes on this. One of the worst political blunders I’ve ever seen.

But, this being Flori-duh, I’d imagine that Scott is the one who scored more points with it. Rational people would say that Scott looks petty and stupid. His base in Flori-duh? I’m sure that Larry the Cable Guy and his clones were hollerin’ “Yew stand yer ground, Ricky!


Bloggers are protected as “Media” – Comins v. VanVoorhis (Chapter 2)

April 13, 2014

It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements.   But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01. (I am proud to have represented Mr. VanVoorhis, the blogger in this case).

Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:

770.01 Notice condition precedent to action or prosecution for libel or slander.

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory

Florida’s appellate courts have interpreted this very strictly. Essentially, the statute doesn’t let you sue someone (as long as they are covered by the statute) unless you meet its conditions. It has a tendency to relieve courts of the burden of at least some frivolous defamation litigation, because the statute requires a defamation plaintiff to focus his attention on what, precisely, he finds to be defamatory and to articulate his concerns in writing. Theoretically, we must presume that such an exercise generates at least some self-reflection by parties and attorneys who might otherwise file unsupportable SLAPP suits.

The fact that 770.01 applies to newspapers and periodicals has never been challenged. When the legislature added “other medium” to the statute in 1976, I think it was being forward-thinking in trying to make the statute broad enough to embrace new media that might come into being. I always felt that “other medium” was clear enough. The Internet is a “medium,” so why shouldn’t 770.01 protect bloggers? We raised that issue at the trial court in this case, and the court gave us a pretty succinct ruling in our favor. (Trial Court Order).

Comins appealed, and he took the position that the words “other medium” did not extend to the Internet, and even if it did, it would only apply to news media. (Appellant’s brief at 14-15). Comins further argued that even if it extended to the Internet, Mr. VanVoorhis was not a “media defendant,” since he was not “a journalist.”

We argued that the language “or other medium” includes the Internet, and most certainly includes blogs. (Answer Brief). In fact, we took the position that the statute should apply to everyone, media, non-media, or anyone else. (The court did not hold that broadly). However, we also argued that no matter how the court looked at the scope of 770.01, it should apply to our client, because he was a “media defendant,” despite the fact that he “only” published on a blog.

The essential point, which the appellate court agreed with, is that a “journalist” is not something you are but is rather something that you do. Mr. VanVoorhis’ blog was journalism, and thus he was considered to be a “media defendant.” In agreeing, the appellate court gave us some wonderful language supporting the proposition that bloggers serve an essential function.

[I]t is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.

There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.

The presuit notice requirement of section 770.01 applies to allegedly defamatory statements made in such a public medium the purpose of which is the free dissemination of news or analytical comment on matters of public concern.(Op. at 23-24)

In other words, if a blog is a legitimate news source, it is just as protected as if it were The New York Times.

But, the court did not go so far as to say that everyone gets protection under the statute, and not every blog is a member of the media. There are certainly blogs out there that have different missions, and those would not be covered.

This is a great decision for bloggers, especially those who might find themselves under the threat of a defamation suit in Florida.

As a practice note, I have often said that filing a defamation claim in Florida without sending a 770.01 notice should be per se legal malpractice. The simple exercise of sending a letter, where you articulate your legal theory, should be no great burden on any plaintiff. This case should make that clear. We certainly believed (and argued) that the defense should have prevailed on the merits. See Answer brief at 36-68. However, neither the trial court nor the appellate court ever looked at the merits — since the claims were barred completely by the plaintiff’s failure to comply with the simple exercise of sending a pre-suit letter.

Conversely, if you’re defending a blogger in Florida, do not fail to raise the 770.01 issue at the pleading stage. While it may be more satisfying to prevail on the actual merits of the case, this route is a lot easier and cheaper than a trial on the merits.

Case Documents:

    Comins Appellant Brief

    Van Voorhis Answer and Cross-Appeal Brief

    Comins’ Reply and Cross-Appeal Opposition

    Van Voorhis’ Cross-Appeal Reply Brief

    Appellate Court Opinion


Law Enforcement Priorities

April 13, 2014

I’ve been involved in the debate over whether we should criminalize “revenge porn.” As much as I despise the practice, I don’t agree with new criminal laws to punish it. In fact, I just spent some time on a panel at Stanford Law School, in the company of three people I greatly admire — one of whom (Attorney Erica Johnstone — one of the founders of “Without My Consent“) is a strong proponent of enacting new criminal laws to punish “Non-Consensual Porn.”

We had a very respectful debate over our differing opinions. During that discussion, I shared one of my rationales — that law enforcement just won’t give a shit. I’ve personally spoken with prosecutors about revenge porn cases in which the victim is underage — so a bona fide child pornography prosecution, wrapped up in a nice little bow for them. All they need to do is go grab the perpetrator.

The reaction?

“We just don’t have the resources to go after every one of these guys.”

Ok, fair enough. A 14 year old girl who had her life thrown upside-down. A child who expected that the state might give a shit about her. She’s not a priority. I’m not going to shit on law enforcement for making that judgment call, although that might seem to be a proper reaction. Lets look at it this way — that 14 year old girl had her life thrown upside down, but somewhere maybe, there’s an 8 year old girl tied up in a basement, and they need the resources they have in order to go save her. Fair enough?

But then, if that’s our rationale for ignoring the 14 year old, how are we ever going to convince a detective or a prosecutor to go after the ex-wife of a 35 year old guy who might wind up on an Non-Consensual Porn website, because his ex got pissed off at him and submitted some cock shots to the latest NCP site?

We aren’t.

When I get interviewed about this kind of thing, I often mock our law enforcement priorities – stating “If there were some underage kids drinking, or an old lady smoking pot for her glaucoma, they’d send in the troops. But, not for this kind of thing.”

Yeah… exactly. Swat teams for small amounts of marijuana, which never hurt anyone. Meanwhile, the kids I represent in civil cases can’t get law enforcement to give a shit about them, because resources.

You know, resources spent going after middle aged women who are buying plant food – because sometimes you might catch someone with a little bit of weed. (One of many sources)


Carlos Miller – First Amendment Hero

January 21, 2013

If you don’t already know who Carlos Miller is, you should. You are more free because Miller won’t let newsgathering and photography die under the wheels of a paranoid nation, shrieking with fear at imaginary terrorists, and hiring policies in police departments that seem to favor people with personality disorders that would make Eric Cartman blush.

Miller’s crusade began a few years ago, when he photographed some Miami-Dade officers standing around on the street. Arrested for his “crime,” Miller beat the rap. Then, he did it again, and was convicted, but won his case on appeal, despite representing himself. (source). Since then, Miller has refused to back down when challenged by police officers, TSA Agents, and rent-a-cops who think that they are above the law. He recently beat another charge, over dishonest testimony by the Miami-Dade cops. (source)

Anyone with even a half a brain knows that Miller’s conduct is legal. However, as his case requiring an appeal shows us, judges don’t aways give a shit about the law. And, when a judge and a prosecutor team up to spank a citizen for not respecting authority, that citizen can face serious repercussions. Miller faced incarceration and financial ruin, and does again and again, when he refuses to back down in the face of a pig screaming “respect my authoritah.”

Do you have balls that big?

Last night, Miller was at it again. Taking pictures. For this “crime,” a bunch of gutter swine decided that it was time to punish him. He has a history with “50 state security.” He is involved in a lawsuit against them for violating his rights. Funny enough, they decided to rough him up last night.

As a First Amendment lawyer, I occasionally get mail from people saying really nice things about what I do. I stick up for the Constitution. I stick up for people whose rights have been violated. But, I do so in a pretty cushy way. Yeah, I wind up not getting paid for my work a lot of times, since I can’t turn down a good First Amendment story. Sometimes I even get threatened by opposing counsel when I outclass them in terms of professionalism and ability. Sometimes, I agree to help someone on a pro bono basis, and they turn on me because they want to prove that no good deed goes unpunished. Back in 2006 or so, I had a redneck display a gun to me, to warn me that representing a “dirty bookstore” in his town ran afoul of his christian principles. I have gotten my share of threatening phone calls and emails.

But, I’ve never been locked in handcuffs for the First Amendment.

I’ve never faced financial ruin and imprisonment for the cause.

I’ve never shed actual blood for it.

Miller has done all of the above.

Why?

Because someone has to.

Someone has to say “no” to the flunkies and the petty little tyrants who incrementally chip away at our liberties. Someone has to have the courage to put his liberty and his personal safety on the line. That someone is Carlos Miller.

And Carlos Miller is my hero. He should be yours too.


Proposed New Porn Rule: No porn with your kids

December 27, 2012

A few weeks ago, I declared that I have two rules for porn:

Rule #1: The subjects must be adults
Rule #2: The subjects must be consenting adults

I am not sure if I should add this as a third rule:

Proposed Rule #3: The subjects should not be in a pornographic film with their children, of age or not.

A mother-daughter duo is, apparently, launching a porn career together. (Oh… one guess where these beauts are from).

The mother and daughter claim that this is not technically incest because they refrain from making physical contact with each other during sex, while participation of a third party.

Although in the video it may seem as though they are touching or kissing, they claim that it is not happening.

What do you think? They’re both over 18. So this does not violate Rule #1 or Rule #2. Do we need a third rule? Maybe not… maybe we should just have a “now that is totally fucked up” category.

Update: A commenter asked if I thought “sister porn” was ok. I said that was all right, since I presume that sisters are relative equals, thus there is no power dynamic that fucks things all up.

I guess what makes me uncomfortable about parent-child porn is that if it is the parent driving the move, then I can’t see how there could be an absence of coercion. If it is the child driving the bus to crazy-land, then I just can’t imagine that there was good parenting involved.

I think that my discomfort really isn’t from a “this porn is too fucked up” perspective… it is a parenting issue. Because honestly, if a two women pretended to be mother-daughter, mother-son, father-son, father-daughter, in a porn movie, I wouldn’t care. I might not buy it, but I wouldn’t care if you did.

I might be getting old.


Deadspin Weighs in on Raanan Katz Suit

December 18, 2012
FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!

FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!

As some of you remember, Raanan Katz sued Google and others for copyright infringement this summer over a Blogger user’s publication of an “unflattering” photograph of him.  Today, popular sports blog Deadspin has the story.

Beyond the copyright suit, the Deadspin piece goes on to discuss a Florida trial court’s order in separate, concurrent litigation that Katz has brought against the same defendant as his copyright suit. 

This is a very complicated case. You know a lot of ins, a lot of outs, a lot of what-have-yous, but in particular, Deadspin addresses a decision by Florida’s 11th Judicial Circuit enjoining the defendant from writing further about Katz, since what the Defendant has written thus far is “arguably defamatory.” (source.)

As Randazza is counsel of record in the case, we provide no comment beyond a link to the appellate brief in the case.


Hemingway’s Cats, Flunkies at the USDA, and the Commerce Clause

December 11, 2012
If I remove these glasses, that will substantially affect interstate commerce, Mr. Larry Johnson.

If I remove these glasses, that will substantially affect interstate commerce, Mr. Larry Johnson.

Henmingway said, “There is nothing noble in being superior to your fellow man; true nobility is being superior to your former self.” That may be true, but you still have to point at the asshats and laugh, if not throw things at them.

If you’ve ever been to Key West, you’ve probably gotten drunk on sticky frozen cocktails, eaten conch fritters or key lime pie, tried to see this “green flash” that supposedly happens at sunset, but never does, and you’ve said “awwww” at one of the “Hemingway cats” that roam the island. (Either that, or “get away from me, you mangy mutant cat!”)

The cats are (word of the day, kids!) polydactl cats, that is they have six (or more) toes. Legend has it that sea captains considered polydactl cats to be good luck, and a particular captain named Stanley Dexter happened to be drinking buddies with Ernest Hemingway. Dexter gave Hemingway a polydactl cat named Snowball; Hemingway didn’t bother to have Snowball spayed, and the rest is history.

Now, Key West is home to a small colony of polydactls, which are informally called “Hemingway Cats,” and the colony pretty much comes and goes as it pleases, but its home base is (naturally) the Hemingway House at 907 Whitehead Street, which is now a museum.

All was well with the cats. They lived there, charmed visitors, roamed free, and never bothered anybody. Until 2003, when apparently a visitor “expressed concern” about the cats’ welfare — all the way to the United States Department of Agriculture. (source). One thing led to another, and the Hemingway Cats (figuratively) went to federal court.

In 2003, Dr. Moore, of the USDA recommended that the museum apply for a USDA license as an “animal exhibitor.” He returned to Key West, on your tax dollars, and “raised concern” that the cats roamed free. Their suggestions?

contain and cage the cats in individual shelters at night, or alternatively, construct a higher fence or an electric wire atop the existing brick wall, or alternatively, hire a night watchman to monitor the cats; tag each cat for identification purposes; construct additional elevated resting surfaces for the cats within their existing enclosures; and pay fines for the Museum’s non-compliance with the AWA. 907 Whitehead St., Inc. v. Gipson, 2012 U.S. App. LEXIS 25106 (11th Cir. Fla. Dec. 7, 2012)

Moore came back again in 2004, with Dr. Gja, also of the USDA. When they couldn’t figure out a reasonable way to contain the cats inside the museum, the USDA denied the license and informed the museum that it would face fines of $200 per day, per cat. The USDA threatened to confiscate the cats, and finally someone at the USDA grew half a brain. “Dr. Chester A. Gipson, a USDA deputy administrator for animal care, proposed a temporary resolution: granting the Museum an exhibitor’s license from the USDA without prejudicing the Museum’s right to contest the USDA’s legal authority to regulate the Museum.” Id.

And that is what they did — unsuccessfully.

“The AWA somewhat obscurely defines an “exhibitor” as “any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary.” 7 U.S.C. § 2132(h).” Id. The Museum did not dispute that it exhibits the cats for compensation, but argued that its exhibition was not a “distribution . . . which affects [interstate] commerce.” The 11th Circuit Court of Appeals disagreed, holding that the Museum, indeed, “distributed” the cats in a manner that affected interstate commerce.

How?

They gave cats away, and people could view the cats on the Museum’s website. Silly, but you can squint your eyes and see the logic.

Then it goes right over the cliff. The 11th Circuit held that even if those conditions were not met, the Museum still “distributed” the cats. The court wrote: “The Museum “distributes” the cats in a manner affecting commerce every time it exhibits them to the public for compensation.” Id. Yep. You read that right. Little did you know that when you walked into the Hemingway House and squatted down to look at a six toed cat, you were involved in an interstate commercial “cat distribution.”

But, of course, the federal government’s Commerce Clause power couldn’t possibly extend to whether or not some six toed cats stay inside at night, on an Island at the tip of Florida, right?

The Commerce Clause, U.S. Const. art. I, § 8, cl. 3, authorizes Congress to regulate “the channels of interstate commerce, persons or things in interstate commerce, and those activities that substantially affect interstate commerce.” The 11th Circuit concluded that “the Museum’s exhibition of the cats substantially affects interstate commerce.”

“The Museum argue[d] that its activities are of a purely local nature because the Hemingway cats spend their entire lives at the Museum—the cats are never purchased, never sold, and never travel beyond 907 Whitehead Street.” In making that argument, the Museum cited United States v. Lopez, 514 U.S. 549 (1995)(gun-free school zone act unconstitutional). Nevertheless, the court found that the cats substantially affect interstate commerce.

But the local character of an activity does not necessarily exempt it from federal regulation. “[W]hen a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Gonzales v. Raich, 545 U.S. 1, 17, 125 S. Ct. 2195, 2206, 162 L. Ed. 2d 1 (2005) (internal quotation marks omitted); see also Wickard v. Filburn, 317 U.S. 111, 125, 63 S. Ct. 82, 89, 87 L. Ed. 122 (1942) (reasoning that even if “activity be local[,] and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce”). And it is well-settled that, when local businesses solicit out-of-state tourists, they engage in activity affecting interstate commerce. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 573, 117 S. Ct. 1590, 1596-97, 137 L. Ed. 2d 852 (1997). The Museum invites and receives thousands of admission-paying visitors from beyond Florida, many of whom are drawn by the Museum’s reputation for and purposeful marketing of the Hemingway cats. The exhibition of the Hemingway cats is integral to the Museum’s commercial purpose, and thus, their exhibition affects interstate commerce. For these reasons, Congress has the power to regulate the Museum and the exhibition of the Hemingway cats via the AWA.

This shouldn’t come as too much of a surprise. Remember, in Gonzalez v. Raich, the Supreme Court found that if you grow marijuana in your living room, and pick it in your living room, and smoke it in your living room, with the windows closed, and never receiving a guest, then that has a “substantial effect on interstate commerce.” So, if a plant in your living room affects interstate commerce, why not cats jumping over a fence?

So what do we learn here? Most importantly, we are reminded that the Commerce Clause is a congressional blank check to do whatever the hell it wants. But, we’re also reminded that some people’s lives must truly be so without meaning, so truly worthless, that I would rather burn in a lake of fire for all eternity than be reincarnated as someone like them.

Hemingway once said “Every man’s life ends the same way. It is only the details of how he lived and how he died that distinguish one man from another.”

All of this could have been avoided, if someone at the USDA pulled their head from their ass, wiped the shit from their eyes, and looked at the world with a little bit of clarity. For any of this to happen in the first place, someone at the USDA had to get this issue on their desk, and had to say “I, sir, am important,” and decided to exert their Cartman-esque authoritah in the dumbest way possible. They had to leave Option B on the table, which would have been “I’m using my discretion to determine that this is a unique situation, and probably not the best use of the USDA’s money and time. In short, I am a thinking human being, not governed by a script.”

The details of how these flunkies at the USDA did their jobs speak volumes about them. Their lives will end the same way all of ours do, but their worthlessness as human beings is conclusively proven — in a federal case, no less.


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