Mayer Brown, shame on you. (日本、ストライサンド効果へようこそ)

February 25, 2014

The offensive statue. Photo Courtesy of Melissa Wall, Ph.D. under a creative commons license.

The offensive statue.
Photo Courtesy of Melissa Wall, Ph.D. under a creative commons license.

Every law firm gets confronted (on a pretty regular basis) with the question: “should I put my name on this?

That soul searching comes into play when you wonder, “is this honorable?” You know when it is, and when it isn’t.

I’m not talking about representing a client that you know is guilty — they deserve a defense. I’m not talking about representing a really evil client — because there might be an important legal issue in play.

I’m talking about when you do something truly disgusting.

That bar is pretty low. Despite the lawyer jokes, I have encountered few lawyers who have ever even approached that line.

If a law firm takes on the Nazi party as a client, in furtherance of some greater good, I do not look down on them. Nobody should. Represent a child pornographer? I can see plenty of justification there. There is almost no cause that doesn’t have some justification.

But, sometimes you gotta say “no.” Or, at least if you say “yes,” you must do so with class and dignity.

For example, if you represent a child molester, that is ok. You take it on from the point of “I may not condone what my client did, but he has a right to a defense.” But, if you put in your pleadings “the kid had it coming to him, he just looked so fucking sexy in that altar boy outfit,” well then… you are a dishonorable and filthy-taint-licking-piece-of-shit.

Ok, got that? That is the bar you need to step over. It doesn’t take strong leg muscles.

I’m sort of disappointed that I have to draw that distinction for anyone. But, I come to you with proof that this lesson is actually necessary.

Mayer Brown brings you this masterpiece– a lawsuit where they are trying remove a memorial for World War II “comfort women” from a public park. You see, it “offends” some of their clients. The cause itself is a bit slimy, but how they’re going about it qualifies them as “the least honorable law firm in the world.

For those of you who do not know what the “comfort women” were — they were about 200,000 women (some say as many as 400,000) who were forced into working in whorehouses for Japanese soldiers during World War II. (source)

Many were abducted, and some were barely in their teens. “I was taken at the age of 11,” one former sex slave Kim Young-suk said.(source)

As you can imagine, these women were not terribly pleased with this treatment. And, wouldn’t you know it, but some of them are still all harping on the past.

The few surviving comfort women, all in their 80s and 90s, cry foul.

“I was walking along the side of the road when I was captured and taken away,” says Ok-Seon Yi.

It was 1942, and Japanese and Korean soldiers grabbed her and threw her in the back of a truck. Her family never knew what happened to her, she said, and gave her up for dead. She spent three years at a military brothel in China. She was 15.

She’s 87 now and lives in a home for survivors like her outside of Seoul. She’s tiny, with white hair, frail and quiet — until the subject turns to Japan.

She shakes her fist. “The Japanese government are thieves,” she says. “They’re trying to rewrite history.

“They have no right to take away my honor and dignity,” she adds.

She says she’s thankful for the memorials in the United States, and says America is the only country that can right the historic wrong. (source)

So in comes Mayer Brown to try and put and end to this outrage. Not the outrage of forcing a couple hundred thousand girls and women to suck the cocks of filthy imperial soldiers, mind you — but the atrocious conduct that happened in the City of Glendale, California. You see, the City of Glendale has done something awful — it put up a memorial to the “comfort women.”

“They were raped maybe 10 times a day. On weekends, as many as 40 to 50 times a day. The majority of them were teenagers,” says Phyllis Kim, who as part of Los Angeles’ Korean-American Forum helped bring the statue to Glendale. “There are victims who are still alive, and waiting for an apology.” (source)

This little statue does not sit well with… well, lets scratch our heads for a minute about that, shall we? Who are Mayer Brown’s “clients” in this lawsuit?

Two of the plaintiffs are Japanese-Americans who live in Glendale. The third plaintiff is an “organization” called “GAHT-US.”

Plaintiff GAHT-US Corporation (“GAHT-US”) is a non-profit public benefit corporation organized under the laws of the State of California. The purpose of GAHT-US is to provide accurate and fact-based educational resources to the public in the U.S., including within California and Glendale, concerning the history of World War II and related events, with an emphasis on Japan’s role. (Complaint at Para. 7)

Well, if we look for GAHT-US (The “Global Alliance for Historical Truth”), what do we find? We find that it is a corporation that someone created on February 6, 2014. After 14 days of legal existence, this lawsuit was GAHT-US’s first act — well after slapping up a web page.

This “Global Alliance’s” address is 1223 Wilshire Boulevard #613. That’s a UPS Store.

The world headquarters of GAHT-US

The world headquarters of GAHT-US

Ok, so with that illustrious organization out of the way, lets look at the two people that they managed to get to stand up for this noble cause…

As a Glendale resident of Japanese heritage, [Michiko Shiota Gingery] believes the Public Monument presents an unfairly one-sided portrayal of the historical and political debate surrounding comfort women…” (Complaint at 2).

The other Plaintiff, Koichi Mera, had similar gripes. I do see their point. I mean, on one side you have all these women who were kept in sexual slavery and essentially gang raped for 4-5 years. But, where is the side of the poor Japanese soldiers who had to fuck them? What of them? Have you ever had to fuck a woman who was captive and crying? I mean, think of it? Those poor Japanese rapist soldiers. The fact that nobody thinks of the other side in this discussion is really distressing. Bravo, Mayer Brown, Bravo.

Additionally, the Plaintiffs are upset because the monument offends them. They “would like to use Glendale’s Central Park,” but they now avoid the park because they are offended by the Public Monument’s pointed expression of disapproval of Japan and the Japanese people.(Complaint at 2, 4)

Guess what? I bet the City of Glendale actually loves Japan and the Japanese People. Aside from the fact that they seem to have a disproportionately large number of scat porn enthusiasts (second only to Germany), and this little “comfort women” thing, the Japanese are a-ok by me. For fucks’ sake, they gave us Godzilla. After being the only country to ever get nuked into the stone age, they staggered around for about 18 months, and then they kicked the entire world’s ass at technology, amassing wealth and power on a level that it took 17 Italians to equal the productivity and innovation of one Japanese high school girl with a Hello Kitty purse.

But yes, we all have our blemishes — and government-organized mass rape is a pretty bad one.

So if the consequence of such a sick-as-fuck act is that there’s a bronze statue in the corner of some obscure park 10,000 miles from the nearest piece of Japanese territory, I think that’s pretty fair.

Ok, so their clients are offended and rich, (I presume the rich part). The complaint has at least some rational points. They seem frivolous, but not completely off the wall. One part of the complaint discusses how this memorial interferes with the foreign relations between the United States, Japan, and South Korea. (Complaint at 14). I’m not saying it is a supportable argument, as Boos v. Barry, 485 U.S. 312 (1988) seems to dispense with the key point here. In that case, a D.C. ordinance sought to suppress speech that might chafe foreign powers. This is a little different, since it is private citizens trying to suppress governmental speech, but the core of the matter is the same — smooth foreign relations are not a sufficient justification to suppress speech.

The complaint also makes one rational argument –That the monument went in without the proper procedure being followed before the Glendale City Council. (Complaint at 16). I have to agree with this one (if it is true) — cities should not be engaging in ultra vires acts. And, the complaint could have made those arguments, stating that the complaint was brought reluctantly. Or, just lay off the victims, but make the dull legal points.

But no.

No.

Instead, Mayer Brown put its name to gems like this:

During World War II and the decade leading up to it, an unknown number of women from Japan, Korea, China, and a number of nations in Southeast Asia, were recruited, employed, and/or otherwise acted as sexual partners for troops of the Japanese Empire in various parts of the Pacific Theater of war. These women are often referred to as comfort women, a loose translation of the Japanese word for prostitute. (Complaint at Para. 14) (emphasis added)

You know… “whores.” They just “acted as sexual partners.”

I mean, lets just call them what they really were, BATTLE SLUTS!!!

Right now, my face is figuratively bright red and in searing pain from the epic facepalming that I am imagining doing to myself.

The complaint reads like a who’s who of hypocritical trash. Yoshikazu Noda, the poor mayor of Higashiosaka, Glendale’s sister city is quoted as saying that the installation of the monument was an extremely deplorable situation and the people of Higashiosaka are hurt at a decision made by [Glendale] city to install a comfort woman monument.” (Complaint at Para. 38).

Awwww… does it hurt, Noda? Can you describe the pain? Is it anything like being kidnapped, and then being raped repeatedly, every day, for four or five years? Does it hurt like that? Or just like when you step on a Lego brick in the middle of the night — because that, I tell you, absolutely fucking smarts.

The Plaintiffs want the monument removed and kept off of any and all public property in Glendale, and of course, they want money. (Complaint at 17).

I will give them some credit — at least the complaint did not call for all the remaining comfort women to be rounded up and shipped off to Manzanar.

Despite that small bit of tactful omission, I have never seen anything this dishonorable with a law firm’s name attached to it. I’ve seen dumber shit. I’ve seen more frivolous shit. I’ve seen more unethical shit. But, never seen anything this foul or shameful with a law firm’s name attached to it.

The silver lining in this? Mayer Brown’s abject stupidity and dishonorable behavior will bring their clients into complete disrepute (which they deeply deserve), and will educate more people than ever on the history of the “comfort women.” The “comfort women” have already won this battle – and they aren’t even really on the field.

Don’t let the bastards get you down, “Comfort Women”… Mayer Brown just made your critics into complete laughingstocks.

UPDATE: Looks like Popehat is pissed off about it too

I have written about many maddening lawsuits at Popehat. But I cannot remember a lawsuit that so immediately repulsed and enraged me. (source)


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.


Federal Circuit’s COCKSUCKER Decision Sucks

December 20, 2012

cork soaker

As many long-time readers know, Section 2(a) of the Trademark Act is one of my pet peeves. This is the section of the Trademark Act that gives pretty much unfettered discretion to a trademark examiner to deny a trademark registration on the basis that the mark itself is “immoral” or “scandalous.” The Federal Circuit just decided In Re Fox, in which it reaffirmed some very bad law, and in which it lacked the integrity to address some Constitutional fictions upon which most 2(a) denials are based.

“[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it[] (a) [c]onsists of or comprises immoral, deceptive, or scandalous matter.” 15 U.S.C. § 1052.

One of the most absurd elements of a 2(a) denial is that the evidentiary standard is so open to abuse. An examiner may prove “immorality” or “scandalousness” by simply establishing that the mark is “vulgar.” In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1340 (Fed. Cir. 2003). Essentially, if the examiner finds a single online dictionary or chat board where someone says “that’s vulgar,” then that is usually enough for the examiner, the TTAB, and the Federal Circuit.

So, another 2(a) denial is just a “ho hum” event. But, this portion of the opinion shows just how little respect the Federal Circuit has for Constitutional issues. I mean, come on guys, at least try and make it look like you didn’t just mail it in.

The prohibition on “immoral . . . or scandalous” trademarks was first codified in the 1905 revision of the trademark laws, see Act of Feb. 20, 1905, Pub. L. No. 58- 84, § 5(a), 33 Stat. 724, 725. This court and its predeces- sor have long assumed that the prohibition “is not an attempt to legislate morality, but, rather, a judgment by the Congress that [scandalous] marks not occupy the time, services, and use of funds of the federal government.” In re Mavety Media Grp. Ltd., 33 F.3d 1367, 1374 (Fed. Cir. 1994) (quotation marks omitted). Because a refusal to register a mark has no bearing on the applicant’s ability to use the mark, we have held that § 1052(a) does not implicate the First Amendment rights of trade- mark applicants. See id. (Op. at 2)

I find it outrageous not just because the court is wrong, but because the court was so glib and dismissive of the First Amendment.

Trademarks propose a commercial transaction; speech that proposes a commercial transaction is “commercial speech” and thus subject to First Amendment protection. Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976). Trademarks convey messages about the type, cost and quality of the product or service associated with the mark. See Friedman v. Rogers, 440 U. S. 1, 11 (1979). The trademark is a tightly targeted bit of expressive activity that seeks to persuade a potential customer to choose one product over another, either due to the identification of goods or to the communicative element of the trademark itself.

Thus far, all USPTO decisions regarding the constitutionality of Section 2(A) rely upon the improperly decided case In re Robert L. McGinley, 660 F.2d 41 (Fed Cir. 1981).

McGinley is where we get the idea that since trademark applicants are still free to use the trademarks, then there is no abridgment of speech if your trademark is denied registration due to its content. However, this reasoning is simply shoddy and contrary to a body of First Amendment jurisprudence. For example, in striking down New York’s “Son of Sam” law, which prohibited criminals from profiting from writing books about their crimes, the Supreme Court held “[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” Simon & Schuster v. New York State Crime Victims Bd., 502 U.S. 105, 115 (1991). In the Son of Sam case, the authors were still free to write, but were denied the financial benefits of their labors. That was the end of that law. This appears to completely dispense with the McGinley reasoning.

Bad Frog Brewery, Inc. v. New York States Liquor Authority, 134 F.3d 87 (2d Cir. 1998) analyzed a similar issue. In that case, the appellant sought to use a trademark of a frog giving the finger. The Second Circuit held that since trademarks are commercial speech, prohibition on use of so-called “offensive” trademarks did not advance the stated governmental purpose of protecting children from vulgarity or promoting temperance, nor was it narrowly tailored to serve that purpose. Not binding on the Fed. Cir., but I think that the Fed. Cir. is the wrong place to challenge McGinley. There is no indication that the Fed. Cir. will ever admit that it was wrong in McGinley, and every time it gets a chance, it doubles down.

Finally, there can be no clearer authority for the death of Section 2(a) than Lawrence v. Texas. (“The fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”)

“Morality” is not a valid reason to confer or deny a governmental benefit – instead the government must articulate a reason why registration of a mark might be harmful, and then apply that reason to the particular circumstances at hand, in a narrow manner. The government has done none of this in this case, nor in any other 2(a) denial.

2(a) Delendum Est!


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.


Grow House Busted: Children Saved(?)

October 20, 2012

Yesterday’s headline: “Police Bust Grow House in Henderson.” (source)

Well, at least now the good people of the Las Vegas Valley are safer…

The house is five houses down from a school.
“We act upon every tip that we get. It makes us feel good that we are getting a steady amount of tips every night,” Lt. Laz Chavez of Metro Police said. “We have a lot of children that walk by this house to go to and from the school, and that just goes to show the disregard that these criminals that put together these grow houses.”
Police said the house posed a danger to the residents living near by and to a school just a half block away. (source)

Because, umm, you know… plants growing in a house… that, ummm, yeah, that shit is dangerous.

Lt. Chavez, shut the fuck up. Fine, marijuana is illegal. Fine, you have a job to do, and that includes busting people for growing marijuana. Fine, maybe you don’t have the luxury of saying “this is a complete waste of taxpayer money and my time to send me out to arrest people for growing plants that some stupid bastards in the legislature are afraid of.” For all that, I’ll cut Lt. Chavez a break. Perhaps he was just doing his job.

Of course, “I’m just doing my job” was what the East German Stasi and Ceaucescu’s secret police said too, but … you know, lets just let that go for a moment.

Go ahead, take Mr. Prue (the guy who was inside the grow house) and lock him up. Toss him in jail, prosecute him, destroy his life because he was cultivating plants that the government doesn’t like.

But, Lt. Chavez, shut your fucking mouth if you can’t keep the bullshit from oozing out of it.

The mere suggestion that marijuana inside a house poses a threat to children walking by is just asinine. It shows the moral and intellectual bankruptcy of the war on drugs. If you really need to stoop to that level of lying, that level of bullshit, then you should turn in your badge and go be a Wal-Mart greeter, because it displays that you suffer from either a complete lack of intelligence or a complete lack of integrity. Nobody should be walking around on the street with a gun and a badge who lacks in either of those categories.

Do your job, if you must, and you lack the courage to actually stand up for what is right.

But stop fucking lying.


Will the FAA remove head from ass on electronics?

March 21, 2012

Doubtful, but this post gives us a glimmer of hope — and some explanation as to why it hasn’t done so thus far.


For the Last Time, NO, Sandra Fluke does not have a valid defamation claim against Rush Limbaugh

March 6, 2012

Why we have a First Amendment; Show Your Love for It

When I hear Rush Limbaugh’s voice, I want to vomit. I despise just about everything that pill-addled, hate-spewing, disgusting piece of human tripe has ever said. The thought of him being thrown off the air and silenced forever makes me swoon with joy. A man can dream, after all.

But, as a First Amendment lawyer, nay First Amendment fetishist, I realize that when I feel this way about a speaker, it is time for me to make sure that I am acutely protective of that speaker’s right to peddle his wares in the marketplace of ideas. Whether it is the Ku Klux Klan, Mike (the Situation” Sorrentino, the American Nazi Party, Glenn Beck, Gail Dines, the Westboro Baptist Church, The Jonas Brothers, Ann Bartow, Creed, Jack Thompson, or anyone else whose stall in the marketplace of ideas smells as if a hungover bull who had eaten too many spoiled Jamaican beef patties took a crap in it, I take a deep breath and for a small and twisted moment, I savor the aroma. The speech that tests our commitment to free speech – that’s the really good stuff. That’s the stuff that we need to affix shields, sharpen swords, and stand next to our brothers and sisters in arms to protect.

I Must Defend Rush Limbaugh

It is for the above reason that I must stand up to defend Rush Limbaugh. House Minority Whip Steny Hoyer came out and said that Sandra Fluke should sue Limbaugh for defamation for famously calling her a “slut.” (source). And a Philadelphia attorney, Max Kennerly, told his local newspaper that he thinks Fluke has a case. (source)

She has no such thing, and shame on those who say that she does. It isn’t that Rush Limbaugh needs to be shielded from these barbs. It isn’t that Sandra Fluke actually might be emboldened to sue. The problem with these uneducated and erroneous statements about the viability of such a suit is that they act like a blizzard wind blowing through the marketplace of ideas. They spread misinformation among the proletariat, who didn’t have the benefit of an education in Constitutional law, and consequently believe Fluke might have a claim based on Rush’s impolitic statements. And the next time one of these moronic proles gets butthurt about something someone says, they’ll be right on the phone to the closest bottom feeding lawyer they can find. (Example)

Spreading ignorance about defamation law makes the marketplace of ideas just that much more chilly, just that much more dangerous, and just that much more likely to be hit with a bomb by some opportunistic ambulance-chaser teamed up with a thin-skinned professional victim so that he or she can get paid for his or her mere “butthurt.” Butthurt is not defamation. Butthurt is butthurt, and you don’t get paid for that in the United States of America. Not on my watch.

Sandra Fluke is a Public Figure

When you purposely inject yourself into public debate, you lose your status as a “just minding my own business” private citizen.

When a plaintiff alleging defamation is a public figure, he or she must show that the allegedly false statements were made with actual malice – that is, knowing falsity, or a reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 779 N.E.2d 167, 171 (N.Y. 2002). Such public figures can include limited-purpose public figures who “have thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).  It is not necessary for a plaintiff to be a household name to be a public figure, either; he or she may be a limited-purpose public figure within a certain community for the same public figure standards to apply. Huggins v. Moore, 726 N.E.2d 456, 460 (N.Y. 1999).  It is not even necessary for a public figure to seek the limelight to be held to this standard – it is possible to be a public figure by mere circumstance, rather than concerted effort. See Gertz, 418 U.S. at 345 (“it may be possible for someone to become a public figure through no purposeful action of his own”).

Fluke was testifying before Congress, on National TV, in a debate that she willingly ran toward. She purposely dove into the spotlight, and if the spotlight burned her, that’s her problem — not my beloved Constitution’s problem.

As a public figure, in order to prevail in a defamation case, Fluke must prove the “actual malice” on Limbaugh’s part. While Fluke probably thinks that the statements were “malicious” (and they certainly were), “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth. See Sullivan, 376 U.S. 254 (1964):

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

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). The First Amendment does not demand politeness, fairness, nor that debate should be measured and soft. In fact, the First Amendment provides ample breathing room for political discourse to get nasty, unfair, and brutish. See Sullivan, 376 U.S. 254. Furthermore, the First Amendment does not require that every statement be 100% objectively true, nor does it allow defamation suits to continue just because a statement is false, or implies a nasty falsehood.

Further, there is a reason why public figures need to meet a higher standard than ordinary people. When you jump into a boxing ring, you can’t whine when the other guy punches you in the face. And, when you step onto the gladiatorial sands of public political debate, you’re going to just need to accept that people who disagree with you are going to say nasty things about you. If you can’t stand the heat, don’t go running into the kitchen.

Wah! But Rush Limbaugh called her a “prostitute.”

No. No he didn’t.

Yes, literally, Rush Limbaugh said that Sandra Fluke was a “prostitute.” However, it should not take too high of a degree of sophistication to understand the difference between actually accusing someone of being a harlot of the night, who takes money for sex, and calling someone a prostitute in the exercise of rhetorical hyperbole.

Even his “factually sounding” statements must be taken in context.

“She wants to be paid to have sex. She’s having so much sex she can’t afford contraception. She wants you and me and the taxpayers to pay her to have sex.”

“If we are going to pay for your contraceptives, thus pay for you to have sex, we want something for it, and I’ll tell you what it is: We want you to post the videos online so we can all watch.”

Even these are hyperbolic and not “false statements of fact.”

When it comes to defamation, it is not a simple matter of (False Statement) + (Angry Plaintiff) = Defamation. Context is everything. See Greenbelt Coop. Pub. Ass’n. v. Bresler , 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law).

In Dworkin v. L.F.P, Inc., 839 P.2d 903 (Wyo. 1992), Hustler Magazine called Andrea Dworkin inter alia a “shit-squeezing sphincter” and “a cry-baby who can dish out criticism but clearly can’t take it,” Id. at 915.

Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim…We agree with that said by the Ninth Circuit Court of Appeals: “Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are.” Dworkin v. Hustler, 867 F.2d at 1194. Vulgar speech reflects more on the character of the user of such language than on the object of such language. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966). Id. at 915-916.

The law is clear that defamation law is not there to protect anyone from annoying speech, embarrassing speech, vigorous epithets, or mere vitriolic spewings of a fat pill-addled blowhard bastard.

Posner wrote that rhetorical hyperbole “is a well recognized category of, as it were, privileged defamation.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996); See also Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005) (Illinois law requires that an allegedly defamatory statement must contain an objectively verifiable factual assertion); Pease v. Int’l Union of Operating Engineers Local 150, et al., 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991) (“Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable.”).

It is implausible for Limbaugh’s statements about Fluke, even if appearing to be factual upon facile review, to be interpreted as actual facts.  When a reader – or in the case, listener – would not interpret a statement as factual, it constitutes rhetorical hyperbole, which is not actionable as defamation.  Letter Carriers v. Austin, 418 U.S. 264, 283 (1974); Greenbelt, 893 U.S. at 14 (characterizing conduct as “blackmail” was, in context, non-actionable rhetorical hyperbole).  “Statements that can be interpreted as nothing more than rhetorical political invective, opinion, or hyperbole are protected speech.” Burns v. Davis, 196 Ariz. 155, 165, 993 P.2d 1119, 1129 (Ariz. App. 1999).  Even where defamation defendants have made statements that could be interpreted as factual – a claim of rape, Gold v. Harrison, 962 P.2d 353 (Haw. 1998), cert denied, 526 U.S. 1018 (1999), or a statement that someone behaved “unethically,” Wait v. Beck’s North America, Inc., 241 F. Supp. 2d 172, 183 (N.D.N.Y. 2003) – courts have protected this expression as non-defamatory.  

The fact that these statements were made by Rush Limbaugh, the man who coined the term “feminazi” and constantly bemoans the mere continued existence of liberal feminists to a conservative, politically aware radio audience, denudes his description of Fluke as a “prostitute” of any capacity for defamation.  No reasonable person would interpret Limbaugh’s statement to be factual, and it fits safely under the umbrella of rhetorical hyperbole.

Ok, Rush called her a “slut” – that’s defamation per se!

Wrong again, Skippy.

For most of our history, stating or implying that a woman was unchaste would give rise to a claim for defamation per se. In fact, in recent history, a number of courts have specifically held that describing a woman as a “slut” is defamatory per se. See, e.g., Bryson v. News Am. Publs., 672 N.E.2d 1207, 1221 (Ill. 1996); Howard v. Town of Jonesville, 935 F.Supp 855, 861 (W. D. La. 1996) (stating that a woman is “sleeping with everyone” at her place of employment and is incapable of performing her job duties “would appear to be defamatory on its face”) (punctuation and footnote omitted); Smith v. Atkins, 622 So.2d 795, 800 (La. Ct. App. 1993) (calling a woman a “slut” is defamatory per se).

However, I believe that this theory is a throwback to the days when women were essentially the sexual property of their controlling male. A daughter who was unchaste became less valuable to her father, and a wife that was unchaste was less valuable to her husband.

The times they are a changin’…

In 2005, an ex-girlfriend of KISS lead singer Gene Simmons sued after VH1 ran a “rockumentary” in which she was portrayed, she claims, as an “unchaste woman.”

The plaintiff, Georgeann Ward, said that a portrayal of her as promiscuous was defamatory. The defendants argued that “changing social mores could affect how certain sexual conduct is viewed by the community, and that what was defamatory at one time may no longer be the case.”

While the New York state court refused the defendants’ motion to dismiss the lawsuit, the judge did suggest that the proper “legal authority or social science data” might convince a court that saying a woman is promiscuous is no longer automatically defamatory. The two sides have since settled, but I believe that this is an accurate portrayal of modern thought. Things might be different in Mississippi or other third world jurisdictions, but a case brought in DC (where I would imagine the claim would be brought) would likely be examined through 20th century, and not antebellum, eyes.

Professor Lisa Pruitt of the University of California at Davis School of Law said that although it might be more difficult for a woman to sue today when she is defamed in a sexual manner, the change in the law is “a net gain for women because it signifies, through law’s expressive function, that women’s most important attribute is no longer their sexual propriety.” (source)

Accordingly, it would be awfully ironic to hear someone supposedly championing women’s rights arguing that defamation law should stop its march forward and that a sexist standard should be applied to her suit.

Absent such a bold maneuver, this element would probably wither under scrutiny as a statement of protected opinion.

What is the standard for someone to accurately and factually be described as a slut? Clerks suggests that if a woman performs oral sex on 37 men, that this might be the line. I really don’t know. I think that most women would say that the line is well below 37. Then again, I wouldn’t really call any woman a slut (unless it was a term of endearment – some women giggle when you call them that). I just don’t make value judgments about someone’s sexuality. If a woman or a man is promiscuous and they are happy, they can be a slut if they want (or not).

In other words, “slut” is properly regarded as little more than a statement of opinion. But see Bryson, 672 N.E.2d at 1221; Howard, 935 F.Supp at 861; Smith, 622 So.2d at 800.

“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact.” Gertz, 418 U.S. at 339-40. An alleged defamatory statement “must be provable as false before there can be liability under state defamation law.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).

The term “slut” has different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996). As such, a term with such diffuse and subjective meaning, colored and even defined by the reader’s life experiences, is incapable of precise definition. Like “short,” “ugly” or “fat,” slut is a word that is given its meaning by those who use it – a fact that the participants of SlutWalks around the world in 2011 would be quick to cite. Absent something really bizarre happening in Court, I can’t see a court, in this day and age, allowing a defamation claim based on the term “slut.”

Conclusion

This incident is unfortunate for those on the Left who have, at least since 2000, considered their side of the aisle to be the place where free speech can feel safe and secure. It has exposed the liberal and academic Left to be as hypocritical and as bad as the dirty Right wing when it comes to free speech. Remember when Democratic elected officials condemned Bill Maher for calling Sarah Palin a “cunt?” No, me either) Sandra Fluke’s statements were worthy of some criticism, and I lobbed some of my own. Rush Limbaugh could have done a much better job of criticizing Ms. Fluke. But, the fact is that those on the left, defamation lawyers trolling for clients, and Rush Limbaugh haters alike have set aside their desire to understand or support free expression in a hysterical pile-on of the prick from Palm Beach. They are all wrong. They are not only wrong on the law, but they are also morally wrong because someone, somewhere out there is listening to them — and will believe that when someone gets butthurt, that they are a victim, and that someone has to pay for their thin-skinned indignation in court.

And then we all lose.


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