In Polk County, Floriduh, no less. (source)
By J. DeVoy
A law school friend who shall remain nameless sent me a link to this post by Bobbi Starr, asking me if I’d seen it yet. I hadn’t, a revelation that stunned him – apparently I should have, since we’re all in the same porn universe. It’s a pretty good blog and I’ll be checking it regularly in the future, though.
People vastly overstate how porn-related, and concomitantly, how fun, my life is. From what I surmise of their assumptions, I sometimes wish they were right. In a given week I see enough porn that my preferences have been forever skewed to find some girl cooking dinner for me much sexier than any frilly underwear she can buy. Porn’s just a portion of what I do, though it allows for lots of creativity, and it tends to have the most cutting-edge legal issues. At this point, I think I’m better known as counsel of record in several mainstream copyright infringement suits. But, even when I stay up all night working on motions in those types of cases, the assumption is that I’m doing something wild and, of course, concerning porn. Just earlier this week, I had this text exchange with my older sister:
[jmd @ 5:20 am]: Had to write an emergency opposition filing. Just now going to bed. So much for a regular sleep schedule.
[jmd's sister @ 5:27 am (8:27 am her time)]: An irregular sleep schedule in the porn industry? Shocking :-)
And so it goes. I should bring a tape recorder to my parents’ next Christmas. Still, my life is not the hotbed of excitement some hope and, hopefully, others imagine with seething resentment. I spend most of my time hanging out with lawyers, a couple of bodybuilders, and when I’m really hard-up for affirmation, law students. More nights each month are committed to perfecting my deadlift form than drinking.
As mundane as my adult life is (college and, unbelievably, law school, were different stories), I like thinking about the issues facing the all-important porn industry. I’ve argued, repeatedly in fact, that its victory in the culture wars has improved my life, and the lives of other men. I firmly believe that it’s an industry worth fighting to help. I’ve been meaning to write a blog post about how bigger chunks of the porn industry could benefit from moving to Las Vegas. This doesn’t address every thought I have on the issue, but Bobbi Starr’s blog post provides a good springboard for my thoughts. None of this should be read as being aggressive, or even necessarily disagreement with Starr’s points. Having thought about these issues with some depth, I simply think an alternative point of view may be valuable.
Getting on to Substance – The Freeman Case, the First Amendment, and Sin City.
I’m based in Las Vegas and won’t claim to be disinterested in seeing a larger portion of the adult entertainment industry move here. I say “larger” because anyone who reads twitter knows that several companies, including one of the largest in online porn, are already filming large amounts of content in Las Vegas. There are challenges involved in this: Namely, it will be difficult to replicate the infrastructure found in San Fernando Valley. Also, Nevada does not yet have the First Amendment protection found in California under the Freeman case. New Hampshire has this protection, and I would wager that Oregon will probably be the next state to provide it – though, good luck getting anything done there with all the Dworkin/Valenti-types running around Portland.
In Nevada, prostitution – defined in NRS 201.295 – operates in a manner very similar to the California statute at issue in Freeman. Overburdened though Nevada’s courts are, the state lacks an intermediate appeals court and could settle the question of porn production’s legality fairly quickly, with a fairly libertarian Nevada Supreme Court to render the final decision. Then again, why tempt fate a second before it’s necessary?
In many counties, Nevada has legalized – albeit fairly stringently regulated – prostitution. The status of prostitution within the state is practically a precursor for porn. If anything, porn production is the next logical step. And though the regulations concerning prostitution may be wielded like an axe at porn, they are easily distinguishable, as discussed further on.
Escape from L.A. – and AHF, and CalOSHA.
First Amendment concerns are not the only threat facing the porn industry. The Scylla and Charibdis of porn for the last many years have been CalOSHA and AHF, the latter organization being capable of hectoring producers nationwide. As Starr notes:
Here’s the thing — the AHF plans to continue its unwanted crusade across the country. They’ve already made noises in Miami and if the industry moves to Vegas, I don’t see why they wouldn’t show up there as well. If you’re going to make a stand, LA is the place to do it.
As Starr observes in her post, stating that “the AIDS Healthcare Foundation is looking to grandstand and make points with their donors,” the inescapable conclusion is that this controversy boils down to money. Specifically, AHF needs to do something to justify getting more of it from its backers. In my opinion, it would be a rational proposition to pit AHF against a bigger, badder entity that needs and wants money even more than AHF does: The city of Las Vegas and state of Nevada. Is it even a “fight” if only one side shows up to do battle? The city of Las Vegas isn’t going to care what some outsiders think of it – the area’s reputation for no-tell, debauched vacations is well established. It’s not as if AHF is going to lower the city’s esteem as… what, a place to raise a family? A clean-livin’ town? If anything, the chance to catch a glimpse of a favorite star is probably one more reason for a guy to visit Vegas.
At base, Las Vegas and Nevada need money, and now more than ever. AHF will never win the hearts of minds of locals by trying to keep out reasonably lucrative businesses that need use of the services hardest hit in Las Vegas since the downturn. Speaking of Las Vegas “locals,” the metro area is so transient that it’s not dissimilar from a 500,000 person city in its character, despite its population being around 2 million. In some ways, Las Vegas might as well be Milwaukee. And, yet, many locals rarely venture to the strip, or downtown; instead, they predominantly stay within their master-planned communities. While some may call this a myopic and provincial way of living, this kind of bedroom community mindset is exactly what will lower any resistance people may have, even in the abstract, to porn companies coming to town. If it’s not happening in their actual backyard, and they don’t see it, why would they care – assuming, in the first place, that they ever found out the porn industry was in town.
Because Nevada is Nevada and California is California, CalOSHA’s risks are mitigated. If CalOSHA tries to regulate porn shoots occurring within Nevada because the companies they’re done for are based in California, the ensuing legal battle between Nevada and California will resemble a religious crusade. Despite Californians having a huge presence in Las Vegas as transplants, tourists or otherwise, Nevada’s state character is steeped in making sure everyone knows that it is not California. (This was an overarching theme in BarBri when I studied for the Nevada bar exam.) Nevada will not respond well to California encroaching its jurisdiction, especially if CalOSHA agents show up within Nevada’s physical territory.
Assuming CalOSHA won’t overstep its jurisdictional mandate, that leaves the porn industry to contend with Nevada OSHA (“NVOSHA”). To get a sense of the disparity of resources at play here, compare the CalOSHA website with NVOSHA’s. NVOSHA couldn’t keep six people from dying, most of them brutally, during the completion of America’s largest privately financed construction project. Between that kind of feeble oversight, Nevada’s far more dangerous industries – such as mining – and the general lack of resources Nevada has relative to California, it’s reasonable to believe that NVOSHA has bigger concerns than whether two consenting, regularly tested adults are wrapping it up when making commercial motion pictures.
A potential slippery slope exists with respect to Nevada’s prostitution regulations, which have numerous onerous requirements, from monthly and weekly testing (depending on the disease) to mandatory condom use. Prostitution, though, is a service open to the general public, while porn is a closed circle where those on camera are regularly tested and (theoretically) limiting their contact with unknown, untested interlopers. Because of the inherent differences between porn companies and brothels, and the reduced public health concerns at play, the condom restrictions should not transfer over – but that will be left to the legislature. If they’re getting all of this new growth because the porn industry wanted to escape the tyranny of condoms, will legislators foist them upon their newest constituents? It’s possible, but seems unlikely. Even if those provisions are put into effect, NVOSHA has to actually enforce them – something it may be ill-equipped to do.
Las Vegas Loves Porn… and Anything With Money, Really.
Another point raised by Starr is the suspicion that people don’t really love porn, despite the money it could bring to their local economy. To some extent, I agree with this. Some ultra-lib location like Manhattan would look down its collective nose at middle America for feeling uncomfortable about porn — but if production ever showed up below 125th Street with any substantial volume, it would quickly be zoned out as “harmful to property values,” and opposed under the color of PC rhetoric, such as how it’s “degrading” to women and normalizes male violence. On the other hand, Las Vegas has a robust industry of escorts (despite prostitution being illegal within Clark County) and strip clubs that everyone accepts as part of the landscape. Without making it sound like Detroit, as I am pretty fond of Las Vegas, I think people will embrace whatever revives the area. Downtown Las Vegas, despite having a few cool bars and art studios I’m fond of, is underdeveloped for an urban core and fairly low-density. Thus, it’s practically giving land away for development through tax credits. They city doesn’t condition the credits on how the land will be used – as long as something’s being done, and people are being employed, Las Vegas is happy.
To those who claim that the tide will turn against porn when the economy improves, I have some good/bad news: Economically, things are never going to get better. We’re at the dying, spasming end of American-style capitalism. I hope you own a gun. Consequently, capital holders can put a collar around places like Las Vegas, making governments and citizens alike do whatever the investors want. Capitalists have the money, and capacity to bring more, that everyone else needs. Those who can muster up $1M in liquid assets, and probably down to about $250,000, can basically write their deal’s terms. The global economy’s collapse isn’t really any one person’s fault, anyway, so it shouldn’t impede making smart business moves in the here and now. After all, if everyone lived in fear of the world ending tomorrow, nothing would get done, now would it?
A Sidebar About Miami.
Starr also notes the recent arrest of Kimberly Kupps on numerous obscenity counts as a reason to avoid Florida. (You can donate to Kupps’ defense fund here.) This is a reasonable concern, but one that insiders within Florida’s adult community can dismiss with fairly strong assurances. In addition to geographic distance, Miami and Polk County Florida are culturally very distant and distinct. Polk County Sheriff, Grady Judd, has made it his life’s work to punish any kind of sexual expression occurring in his jurisdiction, and is a retrograde bully unmatched by any in Florida. Miami doesn’t have the absolute safe harbor protection that Los Angeles does due to Freeman, but its resident businesses have done very well for themselves, mostly free from significant legal interference. With that said, a Judd-like epidemic of arrests is unlikely to sweep Miami-Dade county.
Is “Going Underground” Still a Thing?
In this internet age, where everyone competes for Google rankings and traffic, and search engine optimization is a lucrative industry, rather than some annoying B-school buzzword, is it even possible to go underground? Setting aside competition for internet traffic, since that’s where most of the money is now, going underground carries many possible tax consequences that can consume more than a company’s worth, or makes. Back-owed interest and penalties are not your friends.
I’m ambivalent in the desirability of porn being mainstream v. underground debate. There are pros and cons to each side, and I think the best approach depends on the company and its content. Culturally, though, “porn” qua concept is mainstream, even if certain subsets and niches of it are less known.
One of the concerns raised by Starr is that “legitimate businessmen” would co-opt the industry if it were to go underground, and make it even more volatile than it currently is with CalOSHA and AHF breathing down its neck. This, too, is a valid concern. Any city with appreciable population, say over 200,000 people, has competing networks of organized crime. Though the appearance has changed, from “families” with members wearing pointy-toed shoes and double breasted suits to gentlemen with baggy jeans and neck tattoos, these organizations still exist. For the most part, their influence seems to have been confined to drug and prostitution trades.
I’m sure that there are intersections between organized crime and legitimate businesses throughout the country — assuming otherwise would be naive. But, given Las Vegas’ modern origins as a gangster playground, the city and state are concerned about making sure that scenario never happens again. Because of the efforts of people ranging from Howard Hughes to Steve Wynn, Las Vegas has come totally above ground and is very much a corporate town – all of the casinos on the strip and off are owned by a small handful of companies. This isn’t to say there aren’t seedy elements of Las Vegas. Seedy sells, after all. But Las Vegas now is law-abiding in a way that it wasn’t at its 20th-century inception.
Because of this somewhat nefarious history, Las Vegas and Nevada are particularly sensitive to the presence of organized crime and its intersection with what appear to be legitimate businesses. MS-13 will always be smuggling in drugs from Central America, no matter what local, state and federal authorities do. To the extent organized racketeers can be prevented from co-opting businesses and disenfranchising their customers, though, Nevada and Clark County appear to take that threat much more seriously. Theoretically, a mob takeover of business can happen anywhere. In my observations, however, it’s less likely to occur in Las Vegas than other places.
Conclusion (a/k/a tl;dr, Summary)
Though Las Vegas is not a perfect location for relocation of the porn industry, it’s a good one – better than many alternatives. While Miami is an option, it is a more expensive place to be than Las Vegas by most every metric. Unlike Nevada, Florida still has a pesky capital gains tax. Las Vegas is much closer to the San Fernando Valley, too, making it easier to get a critical mass of people to make the necessary jump across state lines.
Relocation may be easier and more profitable than digging one’s heels in the dirt and fighting a war nobody particularly wants to have, especially against deep-pocketed adversaries such as CalOSHA and AHF. Las Vegas is as tolerant as it is willfully blind to the sex industry already here, and it is likely to welcome economic activity in any manner it can obtain it.
As in any business, there are risks involved in relocating – especially to Las Vegas. But are they any costlier than the slow death of remaining so heavily in Los Angeles, where the thousand cuts of taxation, CalOSHA, AHF and other challenges bleed dry the remaining brick-and-mortar porn companies? At this point, it hardly seems like it.
By J. DeVoy
As we previously reported, Theresa Warren, a/k/a Kimberly Kupps, has been charged with several counts of producing obscenity in the backwoods of backward Polk County, Florida. Kupps and her husband are represented pro bono (i.e. free) by Larry Walters, a friend of the blog. However, there will be some costs associated with the case, namely for experts and investigators who can establish that Kupps and her husband not guilty.
A legal defense fund has been started for Kupps and her husband, which you can donate to here. Marc has already made a donation to the cause. While the legal fees are covered in this case, investigators and experts, the testimony and findings of whom can be crucial to acquittal, are not free. In the interest of free speech, we encourage those with the means to donate to do so.
By Marc Randazza
Following a three-month-long investigation of Theresa and Warren Taylor – Theresa being better known as “Kimberly Kupps” – the Polk County sheriff arrested them both on charges of promotion and distribution of obscene material. The crime? Creating pornography in their own home, then selling it both on their paysite and the popular distribution site clips4sale.com. (Source.)
Sadly, this is par for the course in Polk County. The same Polk County where Philip Greaves, then living in Colorado, was indicted on obscenity charges for writing a book concerning pedophilia. Let’s not forget the 15-year-old who was suspended from using the bus for three days after he passed gas on it. And then there was the antique store owner who was charged with obscenity production for taking nude photos of willing participants – even if, at first blush, child porn charges may have been more appropriate. Maybe I have Polk County all wrong and this is all the doing of dedicated gestapo fuckhead Sheriff Grady Judd. But then again, Polk County is home to all the drooling, meth-addled retards who keep electing him.
It would be comforting to write this off as another Judd-ism, write a blog post about it, and put the incident behind me. I don’t even live in Florida anymore; to hell with the place. This case, however, goes too far. Consenting adults, in the sanctuary of their own home, filmed themselves having sex — and by all accounts, the content they produced was pretty vanilla (e.g. no fisting, no watersports, no extreme bondage or BDSM, etc.). In addition, the couple wasn’t exactly rolling in dough from this venture: by available reports, their porn activities brought in $700 per month. (Source.)
Enough for a few nice meals, sure, but not enough to finance a credible criminal defense.
Never one to let common sense or the First Amendment to come between him and a camera, Judd went to the press shortly after these arrests. Fox 13 had the initial interview.
“We want a wholesome community here, we don’t want smut peddlers,” Judd said, “and if they try to peddle their smut from Polk County or into Polk County we’ll be on them like a cheap suit.”
“They should heed the warning: If you engage in creating or selling obscene materials we are going to lock you up, and we enjoy that,” he said.
The profundity and wisdom of Judd is matched only by Yoda himself. The last time I checked – I’m only a First Amendment attorney – “smut” is not a prohibited form of speech, much less a recognized category of speech. Child porn is not protected by the First Amendment. Nor is obscenity. Smut, whatever the hell it is defined as, is protected by the First Amendment, as is everything not falling within the child porn and obscenity exclusions. I’ll refrain from picking the low hanging fruit pointing out the hilarious irony of a peckerwood inbred like Judd mocking a cheap suit.
To Judd, this is a big game. He “enjoy[s]” when he can “lock you up.” He’s not going to let a few founding principles get in the way of getting his jollies. After a perusal of my prior coverage of Polk County affairs, I realized I’d left something unsaid that I want to say right now.
Grady Judd: fuck you.
And to the people of Polk County who enable this kind of bullshit for decades on end, fuck you, too.
When I’m not blogging, I’m busy running a law firm, Randazza Legal Group. You may have heard of it; I have the privilege of defending bloggers, decorated war veterans and porn companies from attacks on their free speech rights. I do not represent Mrs. Taylor or her husband. I will, however, be making a donation to their legal defense fund.
I encourage everyone else who values free speech to do the same. Inability to pay should not be a barrier to justice, especially in a case like this where the fundamental right to free expression is at stake. Making only $700 per month from their adult business operation, Judd probably just expects the Taylors to roll over and plead guilty – quickly. They shouldn’t, and we shouldn’t let them. I do not know if this will be the case, but it’s time for someone to end Grady Judd. Not to beat him, to ruin him. To bescumber his legacy and make his name forever synonymous with the worst, most oppressive kind of home-grown terrorism that he’s inflicted onto the people of Florida, deserving though they may be, for decades. I want him to have a forced, miserable retirement, and his children to quickly – in hushed shame – change their last names when he dies, to forever bury the shameful association. It is long past time for Judd to be forced into the outhouse where he spends most of his time secretly thumbing through a crusty Fredericks of Hollywood catalogue from 1977, panting while doing so, forever. (Proverbially! rhetorical hyberbole ftw.)
By J. DeVoy
Following up on Marc’s earlier coverage of Phillip Greaves’ arrest in Pueblo, Colo., on charges brought by Polk County Sheriff Grady Judd, we now have the arrest warrant and affidavit. This document sheds a little more light on how the case was developed, including the affiant’s communication with Greaves under an assumed name to obtain a copy of The Pedophile’s Guide to Love & Pleasure.
I’m the first to admit that Phillip Greaves is not the most sympathetic figure in America. Greaves wrote “The Pedophile’s Guide,” which was originally for sale on Amazon.com before the online retailer bowed to public pressure and pulled the book from its online shelves.
I don’t necessarily have a problem with that.
But, I have a big problem with today’s developments. The Orlando Sentinel reports that Polk County Sheriff Grady Judd had Mr. Greaves arrested in Pueblo, Colorado on obscenity charges.
Despite the “real crime” in his jurisdiction, Judd instructed his detectives to
request an autographed copy of the book. Mr. Greaves obliged and Judd used that as his justification for having Greaves indicted on obscenity charges in his little caliphate of inbred-methistan.
Greaves told ABC News last month he wasn’t trying to promote pedophilia and was not himself a pedophile: “I’m not saying I want them around children, I’m saying if they’re there, that’s how I want them to [behave].” (source)
The implications of this arrest should outrage you far more than any child molestation incident. That is not to minimize child molestation, nor is it me just trying to be provocative. If a child gets molested, our republic stands. If petty little white-trash sheriffs like Grady Judd can find a book they don’t like and have the author hauled off to jail for it, the First Amendment means nothing. Judd’s offense is compounded by the fact that Mr. Greaves does not live in Florida and has no connection to
bibleburg Polk County except that he mailed a book there, at the express request of a law enforcement officer who was clearly trying to manufacture jurisdiction.
Judd made his disdain for the constitution abundantly clear.
Judd said he was frustrated that Greaves’ book was protected under freedom of speech laws, even though it was created “specifically to teach people how to sexually molest and rape children.”
“There may be nothing that the other 49 states can do, but there is something that the state of Florida can do … to make sure we prosecute Philip Greaves for his manifesto,” Judd said. (source)
I hope that Mr. Greaves can afford a spirited defense to his extradition. If he winds up having to face these charges in Polk County, I can’t imagine his defense lawyers being able to find jurors with the intellect or the ethics to stand up for the First Amendment. Naturally, I would imagine that a conviction will be overturned on appeal – but only after he spends a significant amount of time in jail awaiting that happy day.
And in the meantime, your Constitution will sit in that jail cell with him.
Anyone who is inclined to lack sympathy for Mr. Greaves should set that aside. I don’t ask you to care about Mr. Greaves. I ask you to care about your constitution. I ask you to realize what his happening in this case.
This is the same pig who locked up Chris Wilson for publishing photos sent to him by U.S. troops in Iraq. This is the same backward jurisdiction where a guy who said “shit” because he was going to jail got 179 days for that transgression. This is where a guy who took photos of consenting adults, at their request, for their own personal use, was pursued relentlessly for obscenity charges. This jurisdiction saw a 15 year old arrested for farting. Another kid was arrested for taking photos of a traffic light. Before all that, when an adult entertainment performer called the cops because she was being stalked, she wound being charged with obscenity.
Just like censorship minded swine from Anthony Comstock to Katherine MacKinnon, Grady Judd is obsessed with the power that comes from wielding the censor’s cane.
And if we let him get away with it, we all lose something precious.
When, and if, I find out who is defending Mr. Greaves, I will post a follow up with information on how to donate to his legal defense fund.
By J. DeVoy
In a quintessentially Floridian story, Dr. Daniel R. Lerom is being sued by his former patient and lover over their tryst. The plaintiff, known only as HK in the filing-and referred to as RHL, red hot lover, by Lerom-even ended her engagement to pursue the good doctor.
According to the plaintiff’s filings, Lerom billed their romps to Blue Cross Blue Shield as “sessions.” In addition to meeting in hotel rooms and Lerom’s office, HK gave him a key to facilitate their meetings in her Lakeland home. And, of course, as in any modern love saga, there are the text messages Lerom sent his patient:
“My body felt great all over after last night. “
”I wish you were here in the shower with me to warm me up.”
“If I were there, I would rub you and kiss you all over.”
There are no charges pending against Lerom, although the evidence above is enough to convict on Class A Betatude.
When reached for comment, a spokesperson for the Citizens Commission on Human Rights had this to say:
“It’s a felony. It’s against the hippocratic oath. It’s something you just don’t do.”
“This is not OK to do. It’s psychiatric rape. It’s not OK. It’s against the law. You cannot do this.”
We get it, really. Still, one wonders if Whoopi Goldberg considered the potentiality of psychiatric rape when pontificating on the different degrees of rape, such as “rape” and the ostensibly more serious “rape rape.” (Rape is a bright line, and stylizing it as different forms with malleable standards-psychiatric rape, rape rape, whatever-diminishes the act’s grave severity.)
Latest evidence, a kid tried to take photographs of a traffic light in a school zone, and a dumb as fuck peckerwood Polk County cop (no, there isn’t any other kind there) tried to stop him because of… you guessed it, fears of terrorism. See Carlos Miller’s blog for the whole story.
A Lakeland, FL man has been sentenced to two years in prison for recording a rap song entitled “Kill Me a Cop” (source). It seems that the local sheriff’s office considers the lyrics to be a credible threat of imminent violence — never mind the fact that the source of that “imminent” threat was in county jail on parole violation when “apprehended.”
A Porsche. A girl. A tragic death.
For those who don’t know, Nikki Catsouras was a beautiful young girl who made a terrible error in judgment, which cost her dearly. Nikki was a rich kid (which is quite relevant) who stole her dad’s Porsche to go for a joy ride. With cocaine in her veins, and fine German engineering at her fingertips, she drove her dad’s $90,000 sports car way too fast and way too recklessly.
She flipped the car and smashed into a tollbooth. In an instant, a vehicle that cost as much as a decent house in Kentucky turned into a twisted ball of useless metal. More tragically, the impact tore Nikki Catsouras’ body apart. Someone at the scene took a series of photographs. The most graphic photo shows the girl’s head split open, the brain cavity empty as the impact squashed it like an over-ripe melon. I will not link to the photos of her, but if you are desperately curious it shouldn’t take too much research to find them. Before you run off to search, let me warn you: If you have a single shred of humanity in you, viewing the photos of this girl’s body will make you feel like you’ve been kicked in the stomach. Crying would not be an unpredictable reaction – not even from the most stoic bastard. You will, most likely, wish that you had never seen them.
The tabloid speaks to the daytime television addled masses
Newsweek reported on the story:
The accident was so gruesome the coroner wouldn’t allow her parents, Christos and Lesli Catsouras, to identify their daughter’s body. But because of two California Highway Patrol officers, a digital camera and e-mail users’ easy access to the “Forward” button, there are now nine photos of the accident scene, taken just moments after Nikki’s death, circulating virally on the Web. In one, her nearly decapitated head is drooping out the shattered window of her father’s Porsche. (source)
Somewhat predictably, the Newsweek piece then descends into tabloid-esque fear mongering and carries the torch for shrill anti-speech advocates. The author obviously spent her share of time talking to the fear-mongering and panic industry leaders, as she seems to be one of the last people on earth who considers the ironically-named “Reputation Defender” company to be a source of reliable information. The author takes only a few paragraphs before she cheekily labels those who posted the photos with a nifty little title, “cyber-aggressors.” The author does not deign to seek out anyone who might have a balanced opinion.
Silverman channels Jefferson, Voltaire, and Brennan
Although Newsweek did not seek out anyone with an opinion based in both law and ethics, preferring those who are pimping their books or their worthless “privacy defense” services, those voices are out there. Suffolk University Law Student, Justin Silverman provides a thought-provoking uncomfortable defense of those who publish the Nikki Catsouras photos — embracing the “hate the speech, but love free speech” view.
Silverman admits that his first reaction was “[s]traight from the gut,” and that he felt that the photos should be taken down. However, like all ethical thinkers, he reflected upon his emotions and meditated on his position. Silverman, giving us a view into his First Amendment bona fides, found himself defending expression despite despising the particular expression at hand.
I now realize my first reaction was the wrong one. Unlike most stories, the lines here are blurred and emotion can trick you into thinking you are advocating the right thing. The right thing, in this case, is not what it first seems. It is to defend that website’s right to show the photos, however disrespectfully it chooses to do so.
According to the Newsweek story, the Catsouras family considers itself out of legal options. The photos are public record after all, released by the police and made fair game to all whom seek to publish them. The dead can claim no privacy rights, and the photos are of only Nikki. These are the realities of firm legal principles that protect the public’s right to know and make it easier for information to be distributed. (source)
Of course, Silverman still despises those who published the photos. Despite his willingness to defend their publication as part of his general support for free expression, Silverman does not let us forget that where the law’s boundaries end, there is still plenty of ground covered by ethics. Silverman is palpably reluctant in his eloquent defense of the right to publish the photos. Nevertheless, while he judges the photographs to be without value, and lectures the reader on ethics, he stays true to his own. Silverman admits that despite his personal distaste for this particular expression, he understands why the right to publish these photos exists, and he vows that he will continue to defend that right.
It’s not a change in the law I advocate. It’s just a reminder that in some cases our rights come at a high cost to others. Though we are free to exercise our rights, we should do so with purpose, for a greater good.
And that being able to publish photos doesn’t mean that we should. (source)
The academic circle jerk naturally disagrees with Mr. Silverman and wants big brother to put us under his loving protective arm. Dan Solove comments at Concurring Opinions:
the government has a duty to avoid unwarranted disclosure of personal information unless there is a countervailing interest that outweighs the privacy interest. In the Catsouras case, the disclosure of the photos was clearly unwarranted. The police department punished the dispatchers for the disclosure, indicating that the disclosure was not condoned. These facts indicate to me a rather compelling case under existing law that the California Highway Patrol is liable for violating the Catsouras’s constitutional right to information privacy.
“Constitutional right to information privacy?” Hold on. Let me check my Constitution. I must have a different Constitution than Mr. Solove. Now worry not, I’m not one of those “if it isn’t explicitly in the Constitution, it isn’t there at all” types. I agree that there is some constitutional right to privacy. “The First Amendment has a penumbra where privacy is protected from governmental intrusion.” Griswold v. Connecticut, 381 U.S. 479 (1965). However, a constitutional right to information privacy? I can’t go that far.
Nevertheless, I do agree that there should be a right to some form of information privacy. You should be able to feel secure that when the government gathers private information about you, it won’t then go broadcasting it around without some proper purpose. However, this is not private information. This is incredibly public information. If you do something in public, whether it is peeing on the sidewalk, flashing your genitals, tripping over stick, or dying in a horribly gruesome manner — that makes it public. That means that you have no expectation of privacy in that information. Just ask every girl who shows her tits at Mardi Gras and then finds her photos on the internet and every guy who gets arrested on COPS wearing one shoe and a dirty wife-beater.
What drives the publication of these photos? What drives the outrage?
I agree with Mr. Silverman that just because we can disseminate these photos doesn’t mean that we should. One would hope that human decency would compel people to refrain from exercising their right to distribute gruesome, gory, death-scene photos. I considered linking to them to prove a point or two, but my conscience wouldn’t let me. I simply feel too much compassion for Nikki’s parents to be part of the pornification of her death.
Okay, so we have figured out that there was a legal right to publish these photos. We have also figured out that it was ethically objectionable to do so. This was someone’s daughter, and turning their death into mere voyeurism is disgusting. While I do not support the Catsouras family’s legal quest to bring the wrongdoers to justice (because I see no legal wrong in the publication), I can assure you that if I met the person who did publish them, I’d haul off and bust their teeth out and mail them to Nikki’s parents as trophies.
But, that leaves some questions about the human condition. Why have these photos, in particular, become such a target for voyeurism? And, this begs the corollary question: Why has the publication of these photos, in particular, inspired such outrage from the established mainstream media? Why such outrage from the legal academy that accomplished professors would place their very credibility on the chopping block and fall over each other to invent legal theories that even a law student knows are bunk — merely to support their emotional response?
I think the answer comes down to cultural class warfare.
Lets think about what is so different about these particular photos from other gory death photos. Are these the first photos to be splashed across the internet that show twisted and mangled corpses of someone’s loved ones? Someone loved this guy, and this guy too. Rotten.com is full of images of the dead and dismembered. There was no similar outrage when ice-packed Iraqi corpses were displayed for all the world to see. To this day, we can find photos of burned victims of Little Boy and Fat Man.
But this is different, isn’t it? But why?
This is different because it was a privileged, young, white, girl.
If that accident had been some poor black girl in a Chevy Lumina with duct tape on the fender and cellophane over the brake light, nobody would have given a shit. The photos might have made their way on to rotten.com, but nobody would have forwarded them, and nobody – especially not anyone who went to an Ivy League school – would have wasted the sweat on their fingertips by writing about it.Newsweek’s author and the academic circle jerk are offended because the Catsouras photos offend their notions of how the rabble should treat the privileged. You know exactly what I am talking about. That same privilege that made Natalee Holloway a TV news obsession because she was a privileged white girl on vacation in Aruba. Meanwhile, hundreds of black, hispanic, and just not-as-blonde, and most importantly — POOR — girls go missing in the United States every day. Greta Van Susteren could give a shit about them, but Fox News won’t ever let us forget that a rich blonde girl went missing in Aruba.
It is hardly surprising that privacy advocacy and privilege go hand in hand. The entire concept of a “right to privacy” grows from an 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis. They were not motivated by fear of an over-reaching government. They were motivated by a threat to their own privilege. In 1890, class divisions were far more distinct than they are today. The poor literally starved to death. Disease ran through American slums like fear of the Swine Flu runs through the advertising addled of today. Meanwhile, the wealthy lived in their Back Bay and Beacon Hill mansions, summered in Newport, and were far removed from the unwashed proles that toiled for pennies a day so that the rich might keep their hands clean. Yet, when the rabble began to see how the “other half” lived in the gossip rags, the Brahmins were aghast. Did they not have a “right” to lord over the proles without the damn proles peeking in their windows? Warren and Brandeis thought so.
The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.
Ah yes, the rhetorical device of claiming that mere words inflict more pain than bodily injury. Just once, I would love to hear someone say that and then slash their face with a razor blade to see if they really mean it, or if it is just academic circle jerking in action.
Brandeis and Warren trotted out rhetoric that sounds distinctly like the snooty whining of today’s Brahmins and over-educated do-nothings.
Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.
Yes, if that looks familiar, you’ve been reading Cass Sunstein, Gail Dines, or Concurring Opinions. I don’t mock this, nor those authors, because I disagree with them. I actually agree 100% with the above paragraph. I fully believe that the idiots that slather across the landscape, driving at 45 miles per hour in the left hand lane, shopping at Wal-Mart, and very successfully passing their genes on to the next generation of Palin supporters and Octomoms are stupid and easily distracted and the world would be much better if they all read The Economist and Plutarch.
However, I’m different from the circle-jerk for two key reasons: 1) I can fully and publicly admit that I agree because I am a snob and I look down on 98% of mankind. 2) Despite the fact that I agree, I would not advocate for my views to be backed up by a change in the law. A citizen should be permitted to be an idiot if that is his choice. Where I part ways with Brandeis, Warren, and their intellectual descendants is when they call for the government to cure the ill. I say let the mouth-breathing NASCAR fans read their gossip magazines, watch their reality TV, and let them get off on watching the upper classes tear themselves apart. This, along with the opiate of religion, is what keeps them from rising up and cutting all of our throats. (By “our” I mean mine).
Lets face it, since the earliest of times, the lower classes have loved to watch their betters suffer. It provides a salve to the daily suffering that comes from being a low-life. If you live in some dump like Lakeland, Flori-duh, driving your crappy car to your crappy job and coming home to your crappy house and watch your crappy TV with your crappy stained t-shirt on while you look at your crappy ugly redneck wife and your stupid inbred redneck children, it must really suck. It must suck even more when you see that there are people like the Catsouras family: Dad worked hard, dad made lots of money, married a hot wife, and had three utterly beautiful daughters. Meanwhile, you’re eating pork rinds and beans in your fart shack of a dump, working at the plant, until it shuts down and your job gets shipped to Mexico. Then, you see the Catsouras family suffer — in large part due to their privilege. A rich kid’s drug (cocaine) plus a rich man’s car, in sunny Southern California, turns from the ingredients of a life that mocks your very existence into the components of a tragedy that lets you guffaw — that your kid won’t ever die like that, because you didn’t ever think too much of education or getting anywhere in life.
A big shiny Porsche and a beautiful young pilot with cocaine in her system turns from an object of envy into a parable for how the rich and their decadence will destroy them — or at least make those who drive that Chevy Lumina feel better about their condition.
Well, if that’s the case, damn it feels good to shit on the Catsourases, doesn’t it?
And when the rabble shit on the Brahmins, the Brahmins look out for each other and call for changes in the laws.
I’m sad that the Catsourases are collateral damage in this perpetual play. I got chest pains reading about their plight. I’ve been there. My best friend died in a rather spectacular manner, and the douchebag who did it is regularly profiled in magazines and TV spots — and he rubs my friend’s death in my face every time he does it. My wife has gone so far as to forbid me to enter the guy’s home state, lest my Sicilian heritage rear its head.
That said, I’m not prepared to turn my pain into the suppression of the dissemination of lawful material, nor do I want a new law named after my best friend. Shit happens. Sometimes, when shit happens, there is a camera, a witness, a compelling story, and then those of us who were just minding our own business have to suffer the feeling of an ice pick into our hearts every time the needle skips on the vinyl of life. Those with privilege want to use that ice pick to chip away at our constitutional rights – which only further entrenches their privilege. If we let them, by the time they are done, we will have a patchwork of laws created by extreme outlier incidents, pushed for by the overprivileged like me, the Catsourases, and the legal academy – ushered in by a wail of hysterical shrill cries from those who follow them over the cliff.
Then, the 99.99% of other incidents that happen in daily life would be governed by these outlier incidents – slowly turning our entire existence into one that mimics our time in the security line at the airport.
That is not a result I want to see.
You know how most of the country groans at the fact that Flori-duh is part of the United States? Well, Polk County is Flori-duh’s Florida.
The latest brilliance to come out of
Inbred Peckerwood Central Polk County is the tale of (turn on your irony meter), Johnathan Locke, Jr., age 15. Mr. Locke has been accused of passing gas on the school bus, and for that mere accusation he was barred from riding the bus for three days. (source)
Locke denies that he dealt it.
Trouble for Locke started Monday afternoon after school when a student sitting next to him started making [fart] noises with his mouth.
Then, students smelled a pungent aroma.
“I started laughing,” Locke said. “It was a bad smell.”
On Tuesday when Locke walked onto the bus, the bus driver handed him the suspension form.
Locke said he chuckled.
“I asked, ‘What is this for?’”
The bus driver ordered Locke off the bus.
Locke exited the bus, then called his father for a ride home. (source)
If you are the kind of person who freaks out about global warming, I ask you to consider whether the phenomenon might be a good thing. You see, if the global temperature rises a few degrees, then the sea levels will rise a few feet. You know what that means? Flori-duh will be swallowed up by the mighty Atlantic. Sure, it will suck to see South Beach fall beneath the waves, I’m not sure where we’ll launch our rockets from, and it will be disastrous for my property values.
Nevertheless, the loss of Flori-duh’s treasures will be worth it — because Polk County, Flori-duh will also cease to exist. If being a moron, inbred, and a completely worthless piece of peckerwood trash, were an Olympic event, Polk County, Flori-duh would bring home the Gold.
So please, buy a Hummer and drive it everywhere. Right now, people in Polk County are reproducing. Only you can stop global idiocracy.
The Lakeland Ledger reports that an antique store owner who used his business premises to take nude photographs has been busted on obscenity charges in Polk County, Florida. However, the story seems a bit fishy.
Sheriff’s officials said a confidential source told detectives that within the last 30 days a teenager had been paid $40 to pose nude for photographs taken at the business.
“Detectives were told the confidential source asked the girl her age and she replied 14,’’ a sheriff’s report said. “Detectives learned that Denitto uses the same side room to manufacture films that include males and females engaged in sexual acts.’’
Undercover detectives visited the business Friday and saw a hand-written sign on the counter advertising “Models Wanted Paid Hourly.”
“When the undercover detectives asked what types of models were being sought, Denitto said he was looking for nude, female models and would pay $20 an hour,’’ the sheriff’s report said.
On Tuesday, detectives served a search warrant at the business.
“During the search several photo albums of nude women were discovered in various locations throughout the store. In a room adjacent to the southeast side of the business, detectives discovered a video camera, several photography books, a 35 MM camera, a Polaroid camera, and several nude photos of women. In addition six VHS tapes were seized,’’ the report said. (source)
Note how the story starts by setting up the story as a child porn investigation. However, John F. Denitto, the store owner was only charged with producing “obscenity.”
Polk County Judge Kevin Abdoney determined the tapes to be obscene, according to the Sheriff’s Office.
In his post on the story, Mark Kernes asks “What; they don’t have child porn laws in Florida?” This very astute observation reveals a possible flaw in the original reporting, or perhaps misinformation put out by the Polk County authorities (and it wouldn’t be the first time). If they searched the premises and found child porn, I imagine that Denitto would have been appropriately charged. Instead, they got a Polk County judge to determine that the materials are “obscene”?
There may be more to this story than appears on the surface. If it were anywhere else, I wouldn’t be so suspicious. However, Polk County is absolutely batshit crazy when it comes to bringing citizens up on obscenity charges. Innocent until proven guilty is particularly applicable when we’re talking about this kind of charge in this particular place. There is a reason why this blog has a “Polk County” category.
Hat Tip to Mark Kernes.
The AP reports: A poll released late Tuesday found that 70 percent of New Yorkers think Spitzer should resign, while 66 percent believe he should be impeached and removed from office if he doesn’t. (source)
That seems to be an awfully harsh indictment from the state that roots for the New York Yankees – a moral crime that is far worse than banging some hooker.
But seriously, I have conspicuously remained silent about the Client 9 issue, because I make no value judgments about people who decide to be prostitutes or patronize prostitutes. Everyone should have the freedom to do both.
I do, however, delight in feelings of schadenfreude for politicians and public figures who embark on moral crusades, and then are destroyed when it is revealed that they are just as sinful as their targets. I never had a problem with Bill Clinton’s philandering because he never seemed to have a political axe to grind with anyone else’s sexual conduct. Smoke up, Billy!
I have not been a student of Eliot Spitzer’s career. I only knew him as a public servant who tirelessly pursued corporate corruption — and I was grateful to him for that.
Perhaps I am the last one to know, but it appears that Spitzer was an anti-prostitution crusader himself. The New York Times reports:
As New York’s attorney general, Eliot Spitzer had broken up prostitution rings before, but this 2004 case took on a special urgency for him. Prosecuting an international sex tourism business based in Queens, he listened to the entreaties of women’s advocates long frustrated by state laws that fell short of dealing with a sex trade expanding rapidly across borders.
And with his typical zeal, he embraced their push for new legislation, including a novel idea at its heart: Go after the men who seek out prostitutes.
It was a question of supply and demand, they all agreed. And one effective way to suppress the demand was to raise the penalties for patronizing a prostitute. In his first months as governor last year, Mr. Spitzer signed the bill into law.
Now the human rights groups, which credit him with what they call the toughest and most comprehensive anti-sex-trade law in the nation, are in shock. Mr. Spitzer stands accused of being one of the very men his law was designed to catch and punish. (source)
He even went so far as to go after New York businesses that sold “sex tourism” travel packages to Thailand and the Philippines, despite the fact that no crimes took place on American soil, let alone in New York.
And now we come to find that Mr. Spitzer was “Client 9.”
This news has forced me to change camps.
I don’t care if a public official or public figure (or anyone else) does in the privacy of their own home, hotel room, or wherever. If I have learned one thing, it is that those who you least expect it from are probably the freakiest in the crowd. I almost prefer my politicians to have a rough edge to them.
But when a politician pushes a morality based agenda that, if applied fairly, would ensnare him too — I spit on him.
For the good Spitzer has done for us all throughout his distinguished career, I thank him. But, I now (belatedly) join the chorus calling for his resignation.
Joseph Javaun Woods was on probation for possession of marijuana, and was arrested for fleeing to elude a law enforcement officer. Since there was a gun in the car, he was also charged with carrying a concealed weapon and being a felon in possession of a firearm. Lets face it, Mr. Woods is not a perfect little innocent angel, but there is a key factor here — he might not be an angel, but he isn’t a felon either. The only charge on his record was the misdemeanor possession charge. See Woods v. State, 2007 Fla. App. LEXIS 13954 (Fla. 2nd DCA 2007). (Opinion available here)
Mr. Woods’ first appearance was broadcast from jail by video into Durrance’s courtroom. Judge Durrance told Woods that he was going to be held without bail because he was a felon in possession of a firearm. Normally, that might be appropriate. However, when Woods told Durrance that he had no prior felony convictions, just a single misdemeanor, Durrance, in an act of complete dismissiveness for the defendant, “told him his lawyer would get that straightened out for him and asked for the next defendant to be brought forward.” (source)
In other words, Durrance didn’t care what the facts or the law said. Mr. Woods was going to jail, without bail.
As Mr. Woods was being hauled away, without bail, he then had the audacity to mutter the word “shit.” (case). The transcript of the exchange appears below:
Cue up the Benny Hill Theme…..
Chris Wilson reports on more Law Enforcement hijinks in Polk County. Grady Judd is trying to create a “no First Amendment Zone” in between Orlando and Tampa. (See, e.g., here and here) Perhaps his attention would be better spent cleaning his own house.
As reported earlier (another tip from Wilson), the Lake Wales PD has its very own child molester.
Far less shocking, but more indicative of a level of complete arrogance, a guy calls 911, the officer arrives and determines that there is no emergency, so he just steals $450 from the guy who called them.
Even Public Enemy wasn’t thinking of this kind of behavior when they wrote “911′s a Joke.”