Stay away from the fat kid!

October 14, 2014

Screen Shot 2014-10-14 at 10.58.57 AM

Wow…. seriously?

I only have five and a half years of experience as a parent, but I can honestly say that I’ve never considered the body mass index of another kid as a metric of, well, anything. I most certainly would not bring it up when trying to decide who my kids should play with.

On the other hand, I might avoid having my kids hang out with kids whose parents are vapid, vacuous, total fucking assholes.

The Ellora’s Cave case

October 12, 2014

I don’t want to write a blog post about this case (yet), since I’m counsel for the defendant. But, here’s a pretty good article on it that someone else wrote.

And another good one here, from Techdirt.

How to cite to Walter Sobchak

October 11, 2014

If you don’t know what the deal is with prior restraint, here, watch:

There. Simple. Right?


I wish I could just submit that clip to the next judge who even considers granting one. Just hold up a chromebook with that on it, play it, drop it on the floor, and walk out.

Dudeists have known this since 1998, and even most Dudeists were a bit late to the party.

I suppose that should not complain about misguided souls trying to get prior restraints.

If they stopped, I might actually have to find a less enjoyable way to make a living than being able to stand there with my arm around the Constitution, channelling Walter Sobchak. There is not much more career-choice-affirming than that.

Nevertheless, one after the other, they keep on coming — defamation plaintiffs who think that they’ve found the magic bullet that gets them a prior restraint. Hell, sometimes they even convince judges to grant them – which is even more awesome, because it then gets me a chance to get an appellate decision slapping it down.

In fact, I secretly hope that I will lose every prior restraint argument before the trial court. In 99% of those cases, the judge should look at the plaintiff and say “are you out of your fucking mind? Your motion is denied. THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”

Well what fun is that? I guess it would be fun as all hell if the judge actually did that.

But, when they get slapped down for being dumb, it helps get the word around to other judges who haven’t heard about this new thing called The First Amendment. I Each time a judge gets reversed for granting a prior restraint – which is exactly every fucking time unless the speech is about secret troop movements, it could help the next dumbass who managed to get elected to the bench. It could also help lawyers with this other new thing called “client control.”

I, myself, represent an occasional defamation plaintiff or two. Plaintiff’s side cases can be fun. But, they always start with the discussion about prior restraint.

The conversation that goes sorta like this:

Client: “I want a preliminary injunction in my defamation case.”

Me: “Wrong country, dude.”

Client: “Come on, at least try

Me: “FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT! So, no. No. No. No. I’m not even gonna fucking try. You know why? Because it is stupid. Stupid. Stupid. Stupid. I may not be the smartest lawyer in the world, but I’m not stupid enough to seek a prior restraint. You want an injunction, go hire another lawyer who is willing to look like an idiot and waste your money. After he gets his ass handed to him, come back and I’ll handle your case competently, not like the fuckwit that you finally arrive at after you get to the bottom of the barrel, and then dig your way through the wood to the other fucking side of the barrel, now shut the fuck up about an injunction or get out of my fucking office and take your retainer check with you!


Client: “Ok, ok… just take it easy, man.”

Me: “I’m perfectly calm, dude.”

Client: “Just take it easy.”

Me: “Calmer than you are.”

Now on the other hand, when I get a defense case where there is a prior restraint? Then I get all happy. The first draft of my opposition inevitably has the Walter Sobchak quote in it. But, it always gets taken out. Citing to a fictional character just doesn’t seem like the right call when you’re making a serious point.

The Big Lehrmann

The Big Lehrmann

Not anymore.

Friends, Americans, Dudeists: We have arrived. Justice Debra H. Lehrmann of the Texas Supreme Court gave footnote 7 in Kinney v. Barnes, 57 Tex. Sup. J. 1428 (Tex. 2014).

The U.S. Supreme Court has long recognized that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” … This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture(7). (citations and other footnotes omitted)

And that “7” brings us to this… get a handkerchief, because you’re gonna weep.

The Big Lebowski (PolyGram Filmed Entertainment & Working Title Films 1998) (“For your information, the Supreme Court has roundly rejected prior restraint.”).

Now, of course, The Big Lehrmann (as she shall now be known) can get away with citing it that way. But, I can’t see a trial court in Muskegon, Des Moines, or even Los Angeleez going for that. But, The Big Lehrmann now gives us the respectability and acceptance that Constantine once gave to the early Christians.

So now, I’ll tell you how to cite this. And before you trot out the bluebook, fuck the bluebook.

The next time you are arguing against a prior restraint, this is how you cite to the wisdom of Sobchak:

Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

This affects all of us man.

Our basic freedoms!


UPDATE: I personally use the “small caps” option when citing. But, wordpress does not seem to have that option.

Related: The post that inspired this one, How to cite to Buzz Lightyear.

Pedo Privacy is Important Too

October 9, 2014

No, no, no, you smartass... that's not it at all.  Oh, why do I bother?

No, no, no, you smartass… that’s not it at all. Oh, why do I bother?

by MJR

Stephen Collins, the actor best known for playing dad/pastor in the long-running TV series, “7th Heaven,” finds himself the latest tabloid whipping boy over allegations that he diddled underage girls. It sorta figures that he played a pastor, eh?

With all the rotten eggs being metaphorically hurled at him, it seems like nobody is at all uneasy about how the story came to light in the fist place.

Pedophiles are bad. Exposing them is good. End of story. Because fuck him, that’s why. Right?

No. Wrong.

While the tabloid-consuming dipshits are crowing about the salacious accusations, can I please get one person to put down the Brawndo® and think about the one serious issue here? What about Collins’ privacy?

The whole sordid affair came to light because someone recorded Collins during a therapy session in 2012 while he talked about screwing around with little girls. Yeah. Its pretty goddamned creepy. TMZ got ahold of the tape and published it. Let the games begin.

At this point, we don’t know for sure who made the recording. Collins’s lawyer says that his client’s estranged wife, Faye Grant, leaked it to TMZ. That’s probably what happened, but I really don’t think it matters (at least not for the purposes of this column). When we look at the legal issues, who leaked it is really secondary to who made the recording.

Given the context, the recording could have been made by Grant, the therapist, or some other person who bugged the therapist’s office. It seems pretty obvious that it was Grant, but what the hell, lets walk through the possibilities. It beats talking about dirty old men putting 10 year old girls’ hands on their dicks. I don’t like talking about that at all. Yes, dear readers, something creeps me out.

Under California Penal Code 632, it is illegal to record a conversation without the consent of all parties. So, unless Collins, the therapist, and Grant all consented, someone broke the law.

But wait, there’s more! There is an exception to §632 in California Penal Code § 633.5. Under that provision, a party to a conversation may secretly record it if the recording is made for the purpose of “obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, or any felony involving violence against the person.” “Violence against the person” can mean a lewd or lascivious act with a kid under the age of 14. See Cal Pen Code § 288; (§ 667.5, subd. (b)(6)). In fact, there is a California attorney general opinion right on point.

Not only do lewd acts on a child (§ 288) constitute a “violent felony” under section 667.5, so also do continuous sexual abuse of a child (§ 288.5) and penetration by a foreign or unknown object (§ 289) by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (§ 667.5, subd. (c)(11), (16).) Based upon Hetherington and Stephenson, we believe that each of these forms of child molestation qualify as “any felony involving violence against the person” (§ 633.5) as defined by the Legislature. (82 Ops. Cal. Atty. Gen. 148)

So, right there, it seems like it was legally permissible to make the recording if the wife made it, and she did it to gather evidence about Collins getting a little grabby with little kids.

It doesn’t appear so, but it’s at least possible that the therapist made the recording. But then the therapist would not have had a right to disclose it unless he or she had permission or did so in order to prevent an imminent lawless act.

If a fourth party made the tape – that is, someone who was not a party to the conversation – then even the exception in Section 633.5 would not apply. The exception does not give every person in California a warrantless wiretap free pass.

So where are we legally? Maybe the therapist violated his professional responsibilities, maybe someone bugged the office. Maybe Grant made the tape to prevent a crime or solve a crime, or maybe she did so to create an advantage in her divorce proceedings. Or, maybe this was some fourth party who clearly broke the law. Most likely, this was a legal, but shitty, maneuver by the wife.

Now lets stop giving a shit if it was legal or not, and start asking some more philosophical questions. Did someone piss on Collins’ expectation of privacy? I think that the response is a resounding “hell yeah!”

Even if it were legal, there is something really twisted about all of this. Collins had an expectation of privacy in that conversation. He was in fucking therapy for chrissakes. Yeah, yeah, I’m sure that the dumpy fucking Fox-News lovers out there are screeching “so what, this is a pedophile, THIS IS ARE COUNTRY! SEPTEMBER 11, NEVAR FORGET!

And ok, even the dumbest of the dumbfucks are sort of right here, aren’t they? Does privacy matter when we are setting out the snare for child molesters?

I say it does. Before we cheer the loss of an accused pedophile’s rights, we should remember that those rights matter. They matter even for child molesters, because if they actually matter for a guy who might have been trying to get a handy from an 11 year old, then they matter for all of us. So yeah, I’m ok giving epic creepy guy some privacy – because I want it.

Now of course, we have varying expectations of privacy depending on where we are. If you’re in the middle of the street, wearing a leather codpiece and blowing a vuvuzela, you have no expectation of privacy in that act. Welcome to the front page and social media fame, weird-leather-clad-vuvuzela guy.

On the other hand, if you pose for an intimate picture for your girlfriend (with a vuvuzela), it is reasonable to expect that the photo will not turn into “revenge porn.” And when you’re at the therapist’s office, you should expect that you can speak freely and frankly without fear that your problems will be divulged to the world. Otherwise, what is the fucking point of therapy? Where else do you have an expectation of privacy than when you’re on the damned divan talking about what a fucking weirdo you are?

When someone pisses on a child molester’s rights, few want to speak up for him. And, I really don’t give two shits about Collins. But, I want to speak up for his rights, again, because I want those rights – and not for any lewd or screwy reason. I want them because I’m a goddamned human being. If that makes me an apologist for a child diddler, while someone crows “what about the children” then so be it.

I will stick up for the diddling creep — because privacy matters. And public approval of privacy violations (or just silence about it) in cases like this just normalizes privacy violations in general. That affects us all. First they come for the diddling creep’s rights, but once you break the seal, do you think that it will ever get re-sealed? No way. That’s not how the cops or google think.

But, you know what? Even if you don’t accept privacy as a fundamental good that we should protect for its own sake, then simply follow me down logic lane. Down at the end of the road, you’ll find that we still need to protect accused pedophiles’ privacy – no matter how much we may despise them.

Consider this: There is such a thing as a “non-practicing pedophile.” Some people feel sexual attraction for children, but they refuse to act upon it. (source) Many of them lack that self-control on their own, so they seek treatment so that they can avoid acting upon their unacceptable desires. (source). Don’t we want them to seek out treatment? If every therapy session is potentially bugged, how many of these creepy characters will simply forego treatment?

Do we want them to do that, or do we want them lying on the sofa, talking it out with the therapist?

Without privacy, therapy becomes something to fear. Patients clam up or avoid seeking help altogether. Where are we safe, if not when speaking to our spouses or our therapists? Is every conversation just so much data for tabloids and search engines to mill into grist for click bait? If that is the case, we’re going to have a lot of untreated pedos. We will drive them into “solitary secrecy,” where they may do the most harm. (source) If you’re a “what about the children” type, then you should realize that this privacy violation just made children less safe.

If you look at this from a simple utilitarian perspective, and not (as I do) from a fundamental belief in a right to privacy, you still should wind up on the same square — this violation of Collins’ privacy is a bad thing for us all. Don’t applaud it.

Criminal Heterosexual Speech

September 10, 2014

Though the title of this post sounds like SEO keyword trolling, it is not. Yesterday, the Massachusetts Supreme Judicial Court released its opinion in Commonwealth v. Sullivan (can be found here).

Mr. Sullivan was found guilty of violating G.L. c. 272, sec. 53, which sets forth the statutory penalty for prostitution as well as “persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex”. I’m sure you see where I’m going with this.

Here is the entire fact pattern laid out by the SJC:

At approximately 9:30 p.m. on September 28, 2007, R.M. was walking alone on Massachusetts Avenue in Cambridge. She was returning to her dormitory on the Massachusetts Institute of Technology campus after a Tae Kwon Do class. The operator of a motor vehicle traveling on Massachusetts Avenue, whom R.M. later identified from a photographic array as the defendant, swerved toward her and stopped on the side of the road. R.M. thought that he was going to ask for directions, so she took a step toward the vehicle. The defendant rolled down the window and said, “Hey little girl, you look so tired. Come on over. Talk to me. Let’s, you know, let’s talk.” R.M. described the pitch of his voice as “much higher than his normal tone of [*5] voice, more like, well, what you use to bribe someone.” She stepped back from the vehicle and started walking away because she “didn’t want to have anything to do with that situation.” The defendant then got out of his vehicle while the engine was still running, and he walked toward R.M., asking her to come over and speak with him. R.M. declined to engage him in conversation and attempted to move away. The defendant came closer, causing R.M. to angle her body to avoid touching him. Eventually, R.M. managed to continue on her way, the defendant returned to his vehicle, and he drove away. The encounter, however, did not end there.

Apparently changing his mind about heading toward Boston, the defendant suddenly reversed his direction and followed R.M. in his vehicle as she turned onto Landsdowne Street, which at the time was dimly lit and devoid of other pedestrians. When he caught up to her, the defendant stopped abruptly and got out of his vehicle a second time. With the engine running and the car door open, he approached so closely that R.M. was aware of an unpleasant odor emanating from his body. The defendant sounded angry, and he demanded that R.M. “get in his car.” Although he did [*6] not touch R.M., the defendant made a gesture like he wanted to put his arm around her shoulder and guide her toward his car. At this point, R.M. was “very scared.” She moved away from the defendant, turning sideways on the sidewalk so she could “scootch” between the defendant and a wall that was behind her without touching him. As R.M. walked past the defendant, he started to follow her. R.M. then began reciting to herself the license plate number of the defendant’s vehicle. At that point, the defendant “stormed off,” got into his car, and left the scene. R.M. ran straight to her dormitory feeling “really, really, really scared,” and the police were called.

Mr. Sullivan, properly, was convicted of attempted kidnapping. The only other charge, however, was for accosting or annoying a person of the opposite sex. In short–if R.M. was a man, Mr. Sullivan would not have been guilty of this crime. Given that the facts giving rise to a violation of the statute would generally occur in a sexual harassment situation, homosexual men and women likely would not find themselves in violation.

I’m not a fan of the “accost or annoy” language, as I feel it is too vague for first amendment principles. But, assuming otherwise constitutionally applied, the statute needs amendment. If the people of Massachusetts feel it warrants criminal punishment, then it should mirror other statutes and eliminate the “opposite sex” language or modify to “on account of sex” or some such. It likely could not survive review under Goodridge v. DPH (the marriage case). I must say, I am surprised Mr. Sullivan’s attorney did not argue this issue; a quick review of earlier proceedings did not seem to demonstrate such. Given the attempted kidnapping conviction, I’m not sure Mr. Sullivan could or would raise the argument in the future. Either way, this should be legislatively corrected.

A loss, is a tie, is a win.

August 20, 2014

The Connecticut Bar Association voted on whether to sign onto a brief in support of a firearms law. The House of Delegates voted yes, 2-1, but there was a referendum petition. A vote was taken. By a vote of 734-729 (5 votes), the members voted to join the brief. Those opposed to signing the brief technically lost. Yet, the CBA President called it a tie, in light of the close vote. The practical result: the CBA will not sign the brief and the opposition effectively wins.

There’s a logic to it, but it is a curious thing.

That’s one way to do it

August 12, 2014

It is a pretty common story — “christians” protest other people having fun. In this case, a church in Ohio decided that it is their business to protest a strip club and to harass its patrons.

What makes the story uncommon — the strippers decided to protest the church.


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