An article about one of Marc Randazza’s most controversial and groundbreaking cases – a case involving the founder of a Neo-Nazi website Andrew Anglin – was published in the December issue of the Atlantic magazine.
The article, “The Making of an American Nazi”, tells the story of the founder of The Daily Stormer: the site that is arguably the leading hate site and neo-Nazi platform on the internet. Anglin is now being sued for allegedly harassing Tanya Gersh, a Whitefish, Montana, real estate agent, and orchestrating an anti-Semitic online trolling campaign against her family.
In April, she filed a lawsuit claiming that anonymous internet trolls started bombarding her family with hateful and threatening messages after Anglin wrote a post blaming Gersh for engaging in “extortion” regarding a property sale from Sherry Spencer, whose son is another white nationalist and arguably the face of the alt-right movement. In that post, Anglin shared personal details, including photographs of Gersh’s family and other Jewish citizens of Whitefish, and called on his supporters, the “Stormer Troll Army” – to “hit ’em up.”
Currently, Gersh is suing Anglin for invasion of privacy, intentional infliction of emotional distress, and violation of a Montana anti-intimidation statute. Marc Randazza is representing Anglin in this case. Anglin is also accused of unleashing a campaign against other Jewish residents of Whitefish, as well as “cyberstalking” and aggressive online trolling of other people, whose identity or views are not in line with his beliefs as a white nationalist.
It’s also reported that apart from committing the aforementioned activities, encouraging his followers and fellow nationalists to share his views online and participate in cyber trolling campaigns; Anglin allegedly continued to grow his audience and supposedly urged them to take their hate from the online to the real world.
Marc Randazza, the managing partner of the Randazza Legal Group, is representing Andrew Anglin. This lawsuit has attracted the attention of legal experts and the public not only due to Anglin’s notorious personality, but because it’s the first time that an internet troll is being sued for his actions.
However, according to Marc Randazza, a well-known First Amendment attorney and a fighter for free speech, restricting Anglin’s online trolling may set a dangerous precedent for the American legal system. As Mr. Randazza commented, Anglin “has every right to ask people to share their views, no matter how abhorrent those views are…this is the shitty price we have to pay for freedom.”
As previously discussed, reader Angie NK asked for a post about the Ninth Amendment. I digressed to the Fourth Amendment as I had some thoughts already percolating on it. [Side note: turns out people still actually make and sell percolators.]
But, ask and thou shalt receive. The Ninth Amendment reads:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
So, what does this mean? It is a savings clause. James Madison explained the purpose during the introduction of those clauses that might become part of a bill of rights:
It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
There is a principle of legal interpretation known as “Expressio unius est exclusio alterius”. It means that the listing of items in a law or contract is to the exclusion of all others. If the law permits you to buy apples and milk from store X, it means only apples and milk. However, laws and contracts frequently intend that the list is non-exhaustive, using phrases such as “including, but not limited to”. This is in direct contrast to the Tenth Amendment, which endorses expressio unius…, stating:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
That is, these, and only these, powers are conferred to the federal government, as opposed to preserving all natural and fundamental rights including, but not limited to, those specified in the Bill of Rights.
Thus, in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991), the Sixth Circuit found that the 9th Amendment didn’t confer specific rights. You don’t base claims independently on the 9th amendment. The Supreme Court addressed the 9th Amendment in Roe v. Wade, 410 U.S. 113 (1973) speaking to a right to privacy:
whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
Justice Douglas’s concurrence to the companion Doe v. Bolton, 410 U.S. 179, 209 (1973) further emphasized “The Ninth Amendment obviously does not create federally enforceable rights.” See also Jenkins v. Comm’r of Internal Revenue, 483 F.3d 90, 92 (2d Cir. 2007) (“The Ninth Amendment is not an independent source of individual rights; rather, it provides a ‘rule of construction’ that we apply in certain cases.”); Strandberg v. Helena, 791 F.2d 744, 748 (9th Cir. 1986)(denying Ninth Amendment claim under 42 U.S.C. sec. 1983 because the right claimed was not an enumerated right).
It does not create rights, but it does ensure that any rights not listed in the Bill of Rights are still rights. Hence, in reviewing substantive due process claims for fundamental rights analysis under the 5th and 14th Amendment, it is important to keep in mind that there are fundamental rights, like the right to marry, the right to travel, that are not enumerated. Yet, restrictions on those rights may not occur without due process, because they share the same foundation as other fundamental rights: speech, religion, keeping and bearing arms, freedom from quartering, freedom from unreasonable searches and seizures, freedom from self incrimination, etc.
As a result, I do not plan to create a Ninth Amendment Lawyers Association, as it would lack focus. However, perhaps a symposium might be in order.
That said, in thinking about it more, it serves as a reminder that all of the enumerated rights should be deemed fundamental rights. The Bill of Rights memorialized the ones most important to the Framers, but these natural rights are all bundled. To that end, I would suggest that the Ninth Amendment should be read in such a way that the Fourteenth Amendment incorporates all of the enumerated rights. If they are so fundamental that they cannot be denied without due process under the 5th Amendment, then they cannot be so denied under the 14th.
In a comment to my post announcing the formation of the Third Amendment Lawyers Association, reader Angie NK asked for some Ninth Amendment love. I’ll get there, Angie, I promise.
But, before I do, I had some questions and thoughts about #3’s neighbor, the Fourth Amendment. The Third Amendment protects the home from a chronic invasion–the quartering of soldiers. The Fourth Amendment protects the home from an acute invasion–improper police searches. As a refresher, the Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Normally, we think of the Fourth in terms of evidentiary suppression in criminal matters. But that jurisprudence really didn’t come about until 1914 in Weeks v. United States, and didn’t apply to the states until 1961 in Mapp v. Ohio. So, what was the role of the Fourth Amendment before then?
To begin, what is a Warrant? Presently, we think of it as a piece of paper that police show to someone that lets them go ahead, look around, and take things. But, basically, a warrant is a get-out-of-jail-free card to the holder, that so long as they comply with the terms thereof, they will not face legal liability. “Warrant” does not actually mean permission; rather it is related to the word “Guaranty”. (Side note, this is a linguistic doublet, reaching English from the same roots, along different paths, like Ward and Guard.) It is a written guarantee for the holder. Thus, the holder of an arrest warrant is not liable for otherwise kidnapping the suspect, and the holder of a death warrant is not liable for otherwise murdering the inmate. With that in mind, what does a search warrant guarantee? It guarantees that the holder is not liable for trespassing upon your premises and stealing your stuff, which is normally what would occur if someone started snooping and taking your things.
Nowadays, we don’t really think about warrants in these terms. We focus on whether a seizure is reasonable (e.g. Terry stop) or whether evidence should be suppressed based on a direct violation or as fruit of the poisonous tree. But, let’s look at your standard scenario: the police enter your premises without a warrant, see your stash, seize it, and prosecute you for a drug crime. Your criminal defense attorney does a whiz-bang job of proving the warrantless search was unreasonable, the evidence is suppressed, and you go free. Now, you don’t get your stash back, because it is contraband, but any other items taken really shouldn’t have been. In effect, the police officers illegally entered your house (breaking and entering) and deprived you of your property (larceny, burglary), while armed (robbery).
Seems to me, that is probable cause to prosecute the officers for their unlawful actions and that a civil action would have merit. Certainly, the officers would have an opportunity to contest this (after all, the State losing the evidentiary hearing isn’t binding on the officers who did not have personal counsel involved in the process), but since they had no Warrant, they are not immune from this process. And the State would not really be arguing both sides–once it lost in the evidentiary proceeding, there is nothing wrong with acknowledging it was found wrong and is now on the side of right.
As a matter of policy, perhaps we might not want to criminally prosecute police, but then why prosecute any public official for honest services fraud? If the search and seizure was wrong, and there was no Warrant or the scope of the Warrant was exceeded, then those acting unlawfully should face punishment. (I am not, of course, advocating for prosecution where there was a Warrant issue, but the Warrant was issued improperly, unless it was the knowingly improperly procured. Otherwise, that would undermine any warrant as no officer would trust its reliability and carry out its purposes.) Similarly, the police departments themselves should suspend or terminate those who unlawfully search and seize, just as they should those who use excessive force. In all of those cases, the rights of the citizen have been abused, and the public deprived of the officer’s honest services. If we want to be tough on crime, we need to be consistent and not give a pass to those who break the law without a Warrant to do so. Otherwise, it seems to be selective enforcement that should not survive Oyler v. Boles–only enforcing against the class of person who are not police.
“If you protest, you’re just inciting the police to shoot you, so what do you expect?”
Pretty stupid, huh?
How about, “if you don’t want people to protest, then don’t treat them in a way that they feel like they need to protest.”
Same shit with drawing Mohammed.
If you don’t like people drawing Mohammed, perhaps you shouldn’t incite them to do so by reacting so negatively about it.
Drawing Mohammed is now not only permissible but (I think) absolutely goddamned necessary. It is necessary to defy those who would stifle debate with violence.
The winner of the “Draw Mohammed” contest.
Do I like offending Muslims? No. Not at all.
I thought, for example, that “Piss Christ” was fucking stupid. I still think it is fucking stupid. The only thing that gives “Piss Christ” any value, to me, is the fact that it inspired calls for censorship.
But, nobody ever got killed over it. Christians moved on.
If anyone ever killed someone over “Piss Christ”, I’d be peeing on crucifixes like it was an Olympic sport.
Draw Mohammed. Spread pictures of Mohammed. They’ve now made it an imperative.
You remember that episode, where Michael Scott declares bankruptcy?
Keep that in mind for this lesson, kids.
This happens to all of us, from time to time. A lawyer sends you a letter with some threatening language on it that he thinks accomplishes his goal of making it “confidential.” You know, like this:
CONFIDENTIAL LEGAL NOTICE
PUBLICATION OR DISSEMINATION IS PROHIBITED
The correct legal response is “suck my ass” or whatever you want to say. Ok, fine, how about “your point is invalid”. Let’s go with that. It is nicer, after all. And I’m all about being nice.
Now here’s one thing you can rest assured of: If someone puts that foolishness on their letter, it is because they’re afraid of that letter getting out there. They can’t possibly have confidence in what’s in it. Look, I write a letter, I expect that it might wind up getting slapped on Simple Justice, with Greenfield making fun of it. Even then, I can’t seem to catch every typo. But you know what? If my name is on it, you can bet your ass that I’ll own it.
And here’s why you can make the chucklefuck who signed YOUR letter own it by publishing the shit out of it, if you want.
For starters, saying “This letter constitutes confidential legal communication and may not be published in any manner.” is about as legally compelling as Michael Scott yelling “I DECLARE BANKRUPTCY.” Lawyers do not have magic powers that turn letters into confidential communications. You’re more likely to find a lawyer who can turn water into funk than a lawyer who has the magic spell to make a letter confidential. Sure, there might be some rules that make them inadmissible for certain purposes in litigation. But, you wanna share that letter? Go right the fuck ahead. Unless you’ve agreed to confidentiality, it ain’t confidential.
When I get one, I usually email the other guy and say “I’m not going to respect your request for confidentiality.” I give them a chance to support their position. When they don’t, I ask them if they want to give me something in exchange for confidentiality. So far, no takers.
Then, they realize “holy flaming peckerballs, this Randazza character can see right through the I DECLARE CONFIDENTIALITY trick! Randazza has spell capability? FUCK, he’s not a fighter, he’s a goddamned level 9 Ranger, and he’s got Druid spells! HE JUST CAST THE ‘SEE THROUGH BULLSHIT’ SPELL!!!!!
I know, it’s my intellectualize proprietary res judicata!
So then they try again…
“Aha, smart ass. That letter is COPYRIGHTED! I hereby throw the spell of Title 17!”
Bush. League. Shit.
If someone pulls that on you, they’re even more full of shit than the guy who just tries the I DECLARE CONFIDENTIALITY spell.
Dumbass rolls a 2.
Here’s why:
It is no secret that the film, The People vs. Larry Flynt is one of my favorite movies of all time. It was required viewing in my classes, back when I did the lawprof thing. New hires need to watch it at my firm. You need to watch it.
Most of my readers are fully aware of the Supreme Court case depicted in the film. However, the lesser known case, mentioned for all of 30 seconds in the film, is the Hustler v. Moral Majoritycountersuit.
In that case, Jerry Falwell took the “Jerry Falwell Talks About His First Time” Campari parody and sent it to his Moral Majority minions — soliciting donations. Falwell took the entire copyrighted work and used it for a blatantly commercial purpose.
One of Falwell’s top executives conceded that the inclusion of a copy of the ad parody was part of a “marketing approach” to fund-raising, and the court can safely assume that this strategy involved encouraging the faithful to donate money. Hustler v. Moral Majority, 606 F. Supp. 1526, 1534 (C.D. Calif. 1985).
However, the court also found that he was not using the ad to elicit support for purely commercial gain, but even if he was, this did not dissolve his fair use defense.
[T]he court must also consider whether “the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used.” Marcus, 695 F.2d at 1175; Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied 459 U.S. 879, 74 L. Ed. 2d 143, 103 S. Ct. 175 (1982) (same); see Italian Book Corp. v. American Broadcasting Companies, 458 F. Supp. 65, 70 (S.D.N.Y. 1978) (fair use generally sustained if defendant’s use not in competition with the copyrighted use). Under this principle, defendant’s use is more likely to be considered fair if it serves a different function than plaintiff’s.
…
In distributing the parody Falwell evidently meant to provoke the anger of his followers and to comment on the level of obscenity in the work.
The C.D. of California also pointed out portions of the Copyright Act’s legislative history, upon which a re-poster of a demand letter can rely:
The court discerns additional support for Falwell’s position in the legislative history to section 107. The House Report states: “When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and re-produce such parts of the work as are necessary to permit understandable comment on the state-ments made in the work.” House Report, supra, at 73. It would thus be consistent with congressional intent to find that Falwell was entitled to provide his followers with copies of the parody in order effectively to give his views of the derogatory statements it contained.
Accordingly, when a law firm sends you a cease and desist letter accusing you of illegal activity, you can use that letter to provide your own supporters with copies of it in order to effectively give your own views on the issue — and to gather support for your cause. And… to make fun of that shit (because making fun of buffoons is classic fair use)
The legal landscape for I DECLARE CONFIDENTIALITY gets even more gloomy as we continue to read the Hustler case. The First Amendment rears her sexy pouty slutty face. (Yes, I want to bang Lady Liberty. Its a fetish. Constitutional cosplay anyone?)
First amendment considerations also enter into the court’s assessment of the purpose and character of defendants’ use. Although the first amendment does not provide a defense to copyright infringement, when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use. See Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957, 959-60 (D.N.H. 1978) (political committee’s use of a portion of rival candidate’s musical composition amounted to fair use in light of public interest in full debate over election and absence of injury to plaintiff). Cf. Robert Stigwood Group Limited v. O’Reilly, 346 F. Supp. 376, 383-84 (D. Conn. 1972), (priests’ un-authorized copying of rock opera, “Jesus Christ Superstar,” was not fair use where facts did not support defendants’ contention that their performance was counterattack to original’s “perverted” version of the Gospel), rev’d on other grounds, 530 F.2d 1096 (2d Cir.), cert. denied, 429 U.S. 848, 50 L. Ed. 2d 121, 97 S. Ct. 135 (1976).
Similarly, anyone who receives a cease and desist letter, from any lawyer (including me) can certainly claim that there is a debate at hand. Without the debate, there would be no complained-of statements or actions. It does not take Justice Brennan to see the First Amendment protection inherent in the republication of a demand letter in this context.
The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such non-commercial uses would merely inhibit access to ideas without any countervailing benefit. Sony Corp. v. Universal City Studios, 104 S. Ct. 774, 793 (1984)
Under the “harm to the market for the original” prong of fair use, if the defendant’s use would tend to diminish sales of the plaintiffs work, then the factor can count against the defendant. However, that only applies if it would supplant the marketplace for the original. For example, if I copied a demand letter and used it as my own, then I might be committing copyright infringement. On the other hand, if I use the demand letter to ridicule the author, and the result of that ridicule is that consumers form the opinion that perhaps it would not not be a wise choice to select that lawyer to represent them, that is protected speech.
Let us return to Hustler v. Falwell:
The court has carefully considered all the evidence placed before it in light of the factors set out in section 107. It concludes that the “‘equitable rule of reason ‘ balance,” Sony Corp., 104 S. Ct. at 795, tilts sharply in favor of a finding of fair use. Any other result would mean applying the copyright laws in an inflexible manner and ignoring fundamental considerations of fairness. The ad parody was a satire about Falwell. He was entitled to use it as he did.
Exactly. The cease and desist is an instrument of attack upon the recipient. Any court that would find that this is copyright infringement should be reversed or impeached.
Okay counselor, but do you have a case that is exactly on point?
As a matter of fact, I do.
In Online Policy Group v. Diebold, the Northern District of California held that “fair use is not an infringement of copyright.” This is a slight tilt from the more common “fair use is an affirmative defense” logic. The N.D.Calif. held that the copying of the copyrighted materials (Diebold email archives) was so clearly fair use that “[n]o reasonable copyright holder could have believed that [they] were protected by copyright.” The court in that case held that a DMCA notice and take down was defective and that the sender was liable for material misrepresentation. § 512(f) FTW.
Conclusion
In short, while this is not legal advice, I’d say that if you want to reproduce a cease and desist letter as an act of self-defense or criticism, you should feel comfortable that the fair use defense will back you up.
And if you are the author of a cease and desist letter, don’t write anything that you don’t want the entire world to see.
Bottom line, no court has ever held I DECLARE CONFIDENTIALITY to be valid, nor has any court supported the “DON’T MAKE FUN OF ME BECAUSE COPYRIGHT” position – but an undisturbed case, relying on mountains of precedent, refutes it.
Short version of the story: Lena Dunham wrote a book in which she arguably wrote about doing some sketchy shit with her little sister. Truth Revolt wrote about it. The quotes from the book back up the Truth Revolt article. Dunham got all snippy about it. (source)
Its not stupid that she did it. She was a child. Ok. I can live with that. Its not even stupid that she wrote about it. Respect to her. (Ok, not really, book sounds like a piece of shit) But, what the monkeys-eating-their-own-feces-fuck was she thinking in authorizing a law firm to make a stink about it? Stupid. Well, unless they had a meeting and said “hey, Lena, want us to totally fiddle-fuck you by making you look like an asshole? Well then, have we got a plan for you!” If that happened, then GENIUS!
This article constitutes confidential legal communication and may not be published in any manner.
If you don’t know what the deal is with prior restraint, here, watch:
There. Simple. Right?
THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!
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!
MARK IT ZERO!”
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
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, 443 S.W.3d 87 at n.7 (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).
Alternate cites:
Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7 (Tex 2014) Kinney v. Barnes, 42 Media L. Rep. 2390 at n.7 (Tex. 2014)
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.
This is a pretty familiar story line. A businessman wants to open a strip club. Some members of the local community decide that they do not want that kind of thing in their town. The resistance is usually faith-based (which is where the wheels really come off). I fail to understand how anyone can believe in a supreme being, who created all of heaven and earth, but would be upset at some boobies.
The City this time is Destin, Florida. As reported in their local paper, it seems that the driving force behind the attempt to keep the strip club out of town was “ a vocal group of citizens determined to keep an adult entertainment establishment away from a nearby neighborhood and church.” (source)
The strip club sued, under the theory that the city’s attempts to drive them out of town was a violation of their First Amendment rights. And, after spending $300,000 in attorneys’ fees, the city finally backed down – and paid the strip club owner $2.1 million for his First Amendment rights. There will be no strip club, so the zealots can be happy. But, the money to pay the settlement comes out of the City of Destin’s taxpayers’ pockets.
Dollars to cover the buyout will come from the city’s $5.2 million unassigned fund balance, putting a serious dent in reserves accumulated over the years to use in emergencies. (source)
So almost half of the city’s reserve fund gone. I wonder if the churches will give up some of their tax exempt status to help replenish the fund.
Congratulations to First Amendment Lawyer, Gary Edinger, who was lead counsel for the strip club in this case.
It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements. But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01. (I am proud to have represented Mr. VanVoorhis, the blogger in this case).
Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:
770.01 Notice condition precedent to action or prosecution for libel or slander.
Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory
Florida’s appellate courts have interpreted this very strictly. Essentially, the statute doesn’t let you sue someone (as long as they are covered by the statute) unless you meet its conditions. It has a tendency to relieve courts of the burden of at least some frivolous defamation litigation, because the statute requires a defamation plaintiff to focus his attention on what, precisely, he finds to be defamatory and to articulate his concerns in writing. Theoretically, we must presume that such an exercise generates at least some self-reflection by parties and attorneys who might otherwise file unsupportable SLAPP suits.
The fact that 770.01 applies to newspapers and periodicals has never been challenged. When the legislature added “other medium” to the statute in 1976, I think it was being forward-thinking in trying to make the statute broad enough to embrace new media that might come into being. I always felt that “other medium” was clear enough. The Internet is a “medium,” so why shouldn’t 770.01 protect bloggers? We raised that issue at the trial court in this case, and the court gave us a pretty succinct ruling in our favor. (Trial Court Order).
Comins appealed, and he took the position that the words “other medium” did not extend to the Internet, and even if it did, it would only apply to news media. (Appellant’s brief at 14-15). Comins further argued that even if it extended to the Internet, Mr. VanVoorhis was not a “media defendant,” since he was not “a journalist.”
We argued that the language “or other medium” includes the Internet, and most certainly includes blogs. (Answer Brief). In fact, we took the position that the statute should apply to everyone, media, non-media, or anyone else. (The court did not hold that broadly). However, we also argued that no matter how the court looked at the scope of 770.01, it should apply to our client, because he was a “media defendant,” despite the fact that he “only” published on a blog.
The essential point, which the appellate court agreed with, is that a “journalist” is not something you are but is rather something that you do. Mr. VanVoorhis’ blog was journalism, and thus he was considered to be a “media defendant.” In agreeing, the appellate court gave us some wonderful language supporting the proposition that bloggers serve an essential function.
[I]t is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.
There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.
…
The presuit notice requirement of section 770.01 applies to allegedly defamatory statements made in such a public medium the purpose of which is the free dissemination of news or analytical comment on matters of public concern.(Op. at 23-24)
In other words, if a blog is a legitimate news source, it is just as protected as if it were The New York Times.
But, the court did not go so far as to say that everyone gets protection under the statute, and not every blog is a member of the media. There are certainly blogs out there that have different missions, and those would not be covered.
This is a great decision for bloggers, especially those who might find themselves under the threat of a defamation suit in Florida.
As a practice note, I have often said that filing a defamation claim in Florida without sending a 770.01 notice should be per se legal malpractice. The simple exercise of sending a letter, where you articulate your legal theory, should be no great burden on any plaintiff. This case should make that clear. We certainly believed (and argued) that the defense should have prevailed on the merits. See Answer brief at 36-68. However, neither the trial court nor the appellate court ever looked at the merits — since the claims were barred completely by the plaintiff’s failure to comply with the simple exercise of sending a pre-suit letter.
Conversely, if you’re defending a blogger in Florida, do not fail to raise the 770.01 issue at the pleading stage. While it may be more satisfying to prevail on the actual merits of the case, this route is a lot easier and cheaper than a trial on the merits.
I watched her interview here . It’s moving. I’ve been following the case for years and I empathize as sometimes facts lead to conclusions which create illusion, not truth and it is here we discover the depth of trust (and fault), in ourselves and our systems.
What is justice? Truly, at what level can another human being say “this person deserves x, y or z for punishment” and call it a day? Who is satisfied? What or whom does that “justice” affect and what is its effect? Will our community be better off with someone like Amanda in jail so we are safer or are we merely seeking justice built on what we believe a victim’s life is worth because it’s socially demanded we punish those who kill?
If Amanda Knox did aid in murder, has her emotional turmoil and years already spent in prison – in the battle for her freedom – not counted as “time served in prison” if prison is defined as a place of punishment? Has her particular suffering not counted as anything at all? For the Italian court to accuse Amanda Knox of guilt after innocence, and weigh a hefty 28 year term on her is so striking I feel violated and I’m just a spectator!
Let’s face it, society places value on murders. They happen all the time. Every day. Why is the destruction of Knox’s life more important than the destruction of yesterday’s murderer? And what about tomorrow’s murderer? What is jail for? Is it a place to make another person suffer for their pain onto another or is it a holding cell to keep the rest of us safer? What factors determine when it’s both? Or is jail a place where we feel, as a society, a sense of accomplishment in that we are doing what we’re supposed to do to “bad people”? Is there hope to rehabilitate or only institutionalize?
I don’t know if Amanda is guilty or not. I do know that I find her to have suffered a good deal for the circumstances upon which she found herself. There’s a point where another human being should suffer for murder (Hitler comes to mind) and then there’s a point where another human being should be given reprieve when being played with like a pawn in a game and having clearly suffered through an aftermath of such accusation. How is 28 years more of prison time a case of justice served at this point in time?
Amanda Knox presents herself very authentically. Maybe she is faking it but to imprison her for another 28 years for a crime that’s been tainted is a crime onto itself. It is way too harsh and unreasonable. Consider that killing the enemy in war constitutes as justified murder – freedom fighting we call it – but Knox’s situation demands almost three more decades of her life? From an innocent verdict to “guilty beyond a reasonable doubt”? Should this be the perfect case of “let it go”?
Life gets complicated when you discover that human beings have varied value and thus death isn’t the most atrocious thing we can do onto another. The freedom we are given should never, ever be taken lightly as that option for choice is always at risk of being taken from others. I commend Knox’s ability to stay so vigilant with her freedom at hand and it’s terrible to have freedom handed to you like a toy to jump for.
For Italy, home of the Vatican, to not be an example of forgiveness in the light of tainted investigations (and prior innocent verdict!) certainly seems in line with the church’s very own hypocritical philosophy. Italy should have risen above common human nature of reaction. Punishing Knox will do absolutely nothing to bring back the victim, show or teach a lesson that hasn’t already been shown or taught, nor will it contribute to Knox’s potential good, to which I believe Knox is capable of expressing given the opportunity.
By demanding to lock her up further, Italy has shown an example not of justice but “murder to the spirit”. Knox, if imprisoned, would be as lifeless as the victim in the sense that neither could flourish, live a life to better themselves or others and nor contribute to the world through the good that is within them because they weren’t given a chance. One loss of life is enough but when grounds are not certain, why not give benefit of the doubt and rise above human weakness? Sometimes bad things happen and while time is the best healer (and eye-opener), it’s best to move on quickly to weave those experiences into new creations. Give people a chance. Justice is a human construct and in the case of Knox, justice begs for reinterpretation.
This is not a Star Trek order. There are no pithy jokes here. There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”
Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet. This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains. This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important. Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying. But, it works.
Cooksey’s backstory is remarkable, but surprisingly common among health advocates. A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009. His dietitians advised him to eat a diet high in carbohydrates. Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates. His blood sugar normalized and he was able to stop using insulin. With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.
Paying it forward, Cooksey opened his blog, diabetes-warrior.net, in early 2010. Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice. The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes. During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.
Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public. In July 2012, Cooksey attended a nutritional seminar for diabetics. The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead. An attendee at the seminar was so “””offended””” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics. Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:
a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.
Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.
The Board contacted Cooksey. It told him that he would need to change his website. It also told him that it was statutorily entitled to get an injunction against him. Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.
The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license. After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments. The Board’s message was clear: Fix it – or else. Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties. Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”
After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech. He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied. The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim. The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.” The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.
At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions. Many who read this blog would disagree with the outcome. Cooksey disagreed. And so, too, did the United States Court of Appeals for the Fourth Circuit.
The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court). The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness. The analysis is considerable, going on for many pages. Some highlights are excerpted below:
On the question of standing:
In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).
However, this anticipated cannot just be speculative or the fruit of conjecture. The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:
In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.
The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution. From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.
Unfortunately, the opinion gave some daylight to the Board’s position. If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail. However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).
As for ripeness:
Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).
The Court then gave the Board a little more abuse for soiling its own bed.
In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.
In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits. The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants. If nothing else, it will buy them time. Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage. Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.
A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost). While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded. While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.
The 7th Circuit court of appeals Wednesday declared an outright ban on social media usage by convicted sex offenders to be a violation of the First Amendment. At the crux of the arguments is the public’s right to be protected from convicted sex offenders and the offender’s right to send and receive information – a core, fundamental concept under the First Amendment. The 7th Circuit recognized this conflict, but ruled that an outright ban on such information, even to sex offenders, violates the First Amendment. The court stated,
The state initially asserts an interest in “protecting public safety, and specifically in protecting minors from harmful online communications.” Indiana is certainly justified in shielding its children from improper sexual communication. Doe agrees, but argues the state burdens substantially more speech than necessary to serve the intended interest. Indiana naturally counters that the law’s breadth is necessary to achieve its goal.
The Sate of Indiana agreed that the goal of its statute was to curtail communication between convicted sex offenders and minors. However, the Court did not believe the statute was tailored in a fashion to limit such conduct, but instead cast a broader net, restricting speech that did not meet the ends of the Indiana law.
Turning to the Indiana statute, the state agrees there is nothing dangerous about Doe’s use of social media as long as he does not improperly communicate with minors. Further, there is no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress. Even the district court agreed with this sentiment, stating the law “captures considerable conduct that has nothing to do” with minors. Indiana prevents Doe from using social networking sites for fear that he might, subsequent to logging on to the website or program, engage in activity that Indiana is entitled to prevent.
I have followed cases like this one for quite sometime. The general consensus among the appeals courts is any form of “blanket prohibition” on Internet, or social media usage, will be a violation of the First Amendment. This issue has not directly been decided by the US Supreme Court, but the consensus among the circuit courts of appeal, and many state supreme courts, indicates a blanket prohibition will likely be overturned.
In Ireland, County Kerry Councillor Danny Healy-Rae proposed changing the law to allow drunk driving permits to rural inhabitants. (source)
Crazy?
Crazier still, it PASSED!
Mind you, I don’t really think it is crazy. In fact, I think that Mr. Healy-Rae is brilliant. I don’t know much about Ireland’s drunk driving laws, but I know that ours are a constitutional abomination. Lawrence Taylor’s The DUI Exception to the Constitution is a must read.
I think that we should follow Healy-Rae’s move here, in the United States. We should restore sanity to the drunk driving laws.
Despite what MADD wants us to believe, drunk driving never was the “carnage” they want us to believe in order to justify their existence and their funding.
My co-Satyriconista, Charles Platt summed it up:
State laws used to [allow] police to make a judgment call about impairment, based on their observations. But that wasn’t good enough for Candy Lightner, whose daughter had been killed by a drunk driver. In the wearying tradition of family members who want to make the death of a loved one seem more meaningful by inconveniencing everybody else, Lightner started Mothers Against Drunk Driving. The name of this brilliant campaign guaranteed its success. Who could possibly disagree with Mothers (that most sacred category of human being) who wanted to protect their children from alcohol-crazed hit-and-run maniacs? Alas, it ended up criminalizing the people whom it was supposed to protect. (source)
As Platt and Taylor remind us, there was a time when the law punished “impaired” driving. Now, it doesn’t matter if you are “impaired” or not — it matters if a breathalyzer, calibrated to the “average” person says you have a certain blood alcohol content. That measurement is garbage, since if you do not match the “average” calibration, you’re already screwed. Even so, at one time, the law said that .15 BAC was ok. Then, not enough convictions for MADD, so the limit dropped to .12, then .10, then .08, and there are pushes to get it even lower.
Blood alcohol content does not measure “impairment” – it measures BAC, and does not even do it very well. Meanwhile, as Taylor eloquently informs us, we have a swelling body of precedent creating exceptions to our most important constitutional protections, because of this paranoid fear that a drunk driver is waiting (along with a terrorist and a child molester) around every corner.
I do not advocate driving while too impaired to do so. I’ve done it. I worked my way through a few years of college by driving a taxi. I’d lease the cab for 36 hours, and sometimes I would drive for all 36 of them. Yes, I would swing in to Logan Airport and pick up some unsuspecting family after being awake and driving for 35 straight hours. If they had any idea how impaired I was, they would have jumped from the cab while I was weaving and swerving down Storrow Drive. Meanwhile, if a cop pulled me over for suspicion of driving while intoxicated, I’d blow a perfect 0.00 on the breathalyzer. If you talk on a cell phone (hands free or not) you are just as “impaired” as if you were over .10. Meanwhile, every car comes with a handsfree bluetooth hookup. Even minivans designed to be full of screaming children.
Put an over-stressed mother behind the wheel of a minivan full of screaming kids, yakking on her cell phone or the same mother, after a restful night’s sleep and three glasses of wine at dinner, and I guarantee you, you’re more likely to be killed by her in the first scenario.
Drunk driving laws have very little (if anything) to do with safety. They are about cheap political points. How do you say no to a grieving father shrieking “STOP THE DEATH ON OUR HIGHWAYS!” You can’t, not if you want to get re-elected in the age of 24 hour news.
But… half kidding, but half serious, why not have an alcohol permit?
You get your license. You drive for a few years. After you drive for 5 years, you get to go to the DMV and take a test. You drink until your BAC measures .10. Then, you drive an obstacle course. Make the test rigorous. Maybe even require you to come back a few times. You pass? You get a .10 permit. Crank it up every year or so until you are actually “impaired.” If you can show that you can drive, consistently, with a .20 BAC, then fine, drive with a .20 BAC.
But, along with that permit, you must buy a purple flashing light that goes on your roof. And, you must drive at 25% lower than the speed limit.
That way, the people who cower in terror at the boogeyman of the drunk driver, can see the “drunk” driver coming a mile away. They can pull over and let him pass if they are really afraid. Or, since he’s going so slowly, pass him.
Either that, or return the law to the state that it was in when it made sense — driving “while impaired” is illegal. Driving “while having measurable alcohol in your system” is not longer illegal. MADD goes out of business. We get rid of the DUI exception to the Constitution. Everyone wins.
Denham Springs, Louisiana resident Sarah Childs was in a dispute with her neighbors. So she exercised her First Amendment rights and created a special holiday message just for them.
The neighbors were not happy about this and complained. A lot. And Miss Sarah fought back. Source.
I’ve composed this Christmas poem just for her.
‘Twas the month before Christmas and all through the ‘hood
The neighbors all gossiped that Sarah’s no good.
Angry and tired her response did not linger
A Holiday light show comprised of a finger.
“Outrageous! Offensive! How dare she!” They whined
They called the cops and so she was fined.
She took down the show and felt quite dejected
Until the ACLU interjected.
The attack on free speech is a thing that’s quite shitty
So Sarah fought back and they sued the city.
The cops and the mayor remained so undaunted
that Miss Sarah’s steps from then on were haunted.
“I know what we’ll do!” Said the city with glee.
“We’ll make her sorry! You wait and see!”
A citation here and a ticket there
So much to the point that it’s hard not to care.
A wonderful plan was retaliation
Until they got nailed for a rights violation.
The lights went back up this time on the double
And this for poor Sarah was nothing but trouble.
The neighbors began to snivel and wail
This time they tried to throw her in jail!
The lights came down alas one more time,
It seemed all was lost- those fiends! That slime!
But the judge took her side and told the city to suck it
That First Amendment-ain’t no way you can duck it.
And all through the town her message rang true,
“Happy Christmas to all and to all a fuck you!”
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.
I used to have neighbors in Flori-duh, whose argument (to me anyhow) against gay marriage was “what am I supposed to tell my kids?”
Louis CK had a funny reply to that.
“It doesn’t have ANY effect on your life. What do you care? People try to talk about it like it’s a social issue. Like when you see someone stand up on a talk show and say ‘How am I supposed to explain to my child that two men are getting married?’ I dunno, it’s your shitty kid, you fuckin’ tell ’em. Why is that anyone else’s problem? Two guys are in LOVE but they can’t get married because YOU don’t want to talk to your ugly child for five fuckin’ minutes?”
The issue came up with my daughter, yesterday. Age 4.
She asked what I was reading. I told her, “an article about a Supreme Court case” – 5 questions later, and it was time to make something up, or just tell her, and see if she got it.
I brought up one couple we know who are legally married (and happen to be my son’s “godfathers”). I told her “they are married, like mama and daddy, because they love each other.”
“Oh” she said.
I then told her about our cousin and his boyfriend of 25 years – who we also refer to as “cousin.” I said “they love each other just as much, but they are not allowed to get married, because they live in Las Vegas, which is in Nevada.”
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