Dan Snyder is butthurt, SLAPP suit ensues, Irony meter pegged

February 6, 2011

By Marc J. Randazza

Washington Redskins owner, Dan Snyder, seems to have awfully thin skin for a guy who owns a sports team named after a racial insult.

Snyder filed a frivolous defamation suit against the Washington City Paper (“WCP”) based upon an article “The Cranky Redskins Fan’s Guide to Dan Snyder.”

Snyder accuses the WCP of spreading “lies, half-truths, innuendo, and anti-Semitic imagery” to defame him, seeking $2 million in damages.  The amount is split between two claims, the first for defamation and the second for false light.  The “anti-semitic imagery” he complains of is a crude addition of horns, a unibrow and Anton LaVey-esque goatee to Snyder’s photograph in the WCP, which can be seen here.

No, your irony meter is not broken. It is actually reading 11. A guy who owns the Washington Redskins is complaining that someone created an allegedly racist drawing of him. And, anyone who thinks that “Washington Redskins” isn’t a bigoted term, I used to think the same thing. In law school, I was in a debate with a guy I’ll identify as “Steve B.” I was armed with my free-speech bona fides, and ready to pwn Steve in front of the whole class for being overly politically correct. With his opening shot, Steve looked at me and said “what would you think if they were called the ‘Washington Jigaboos?’ Because the way black people would feel about that is how Native Americans feel about ‘Redskins.'”

I immediately conceded. Steve was right. The debate was over.

Please re-calibrate your irony meters -- Dan Snyder, owner of the Washington *Redskins*; complains that this drawing is racist.

So, the owner of the Washington Jigaboos Redskins is pissy about someone supposedly using racist imagery.

On behalf of Native Americans, up yours, Dan Snyder. Up yours with a cactus grown in the driest part of the Navajo reservation.

But lets get back to the issue at hand:

Dave McKenna’s comprehensive compendium on Snyder’s questionable reputation, which gave rise to this lawsuit, is not the first time he offended Snyder’s sensibilities.  Snyder paints a paranoid picture of McKenna as a conspirator, evidenced in his November 24, 2010 letter to the WCP — sent less than a week after McKenna’s article hit the streets.  Because McKenna mentioned Snyder within the WCP and its blog 15 times in as many months, Snyder believed McKenna was attacking him to please his new bosses at Atalaya Capital, which acquired Creative Loafing and the WCP in August 2009. (source.)

Even so, it appears McKenna gave Snyder a fair shake.  Before McKenna’s article was published, Snyder’s wife went to the local media to defend her husband.  In an interview, she said her husband was now surrounded by ‘better people,’ and that he had ‘grown and he’s evolved.’ (source.)  The offending article even begins with the words “[w]e’ve been told a New Dan Snyder walks among us”!

Nevertheless, lets not forget that Dan Snyder is a wealthy man. He is a fabulously wealthy man. And we all know that the fabulously wealthy often believe that they are above being criticized by the rabble — and when the rabble forgets it, they need only spread their ass cheeks, let a few filthy pieces of silver fall from their milk-fed buttholes, and some swine of a lawyer will be lying underneath, mouth agape, happy to catch what might dribble from the sphincter of privilege — their oath, their ethics, and free speech be damned.

In nicer words, this is a classic SLAPP suit — not filed because it has a chance of success — but filed because the cost of defending it will be punitive enough to remind the little people that people who can afford to use helicopters as personal transportation vehicles do not like to be made fun of or criticized.

The first sign that this is a SLAPP suit? You need go no further than paragraph 1. The complaint states “Mr. Snyder is a public figure. As such, he accepts the right of the public and the press to criticize him or to express personal dislike, whether or not such expressions are justified by the facts.”


In other words, Mr. Snyder is going to need to leap over the “actual malice” standard laid down in New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, the Supreme Court held that the First Amendment required that a public official libel plaintiff must establish, through clear and convincing evidence, that the defendant acted out of “actual malice.” That doesn’t mean that the writer must have acted out of malicious intent, but rather that the defendant published his words “with knowledge that it was actually false or with reckless disregard of whether it was false or not.” Later cases expanded this to encompass defamation suits by public figures, as well as public officials. See, e.g, Curtis Publishing Company v. Butts, 388 U.S. 130 (1967); Gertz v. Robert Welch, 418 U.S. 323, 351 (1974).

Public figures can, occasionally, prevail under this standard. However, the bar is so high that unless the case is flawless, it is unlikely to go anywhere except down the “expensive to defend” highway. Snyder knows this. His attorneys know this. But Snyder is a wealthy man, and his lawyers don’t mind the taste of feces in their mouths, as long as they are licking the foul substance off of Snyder’s coins.

Lets take a look at Snyder’s claims under New York law. New York is very protective of free speech — especially where the news media is concerned. What constitutes a statement of opinion is broad, and can even embrace language that in other states may be defamation per se, such as calling another person “unprofessional.”  See Amodei v. New York State Chiropractic Association, 160 A.D.2d 279, 280 (N.Y. Sup. Ct. App. Div. 2d Dept. 1990), aff’d 571 N.E.2d 79 (N.Y. 1991); Halegoua v. Doyle, 171 Misc. 2d 986, 991 (N.Y. Sup. Ct. 1997); Wait v. Beck’s North America, Incorporated, 241 F. Supp 2d 172, 183 (N.D.N.Y. 2003). (“Statements that someone has acted unprofessionally or unethically generally are constitutionally protected statements of opinion.”).

Despite Snyder’s melodramatic whining about McKenna’s negative opinion of him, even incendiary and inflammatory criticism of a subject is protected rhetorical hyperbole. See Greenbelt Coop. Pub. Ass’n v. Bresler, 893 U.S. 6, 14 (1970); Gross v. N.Y. Times Co., 623 N.E.2d 1163, 1167 and 1169 (N.Y. 1993). Even heavily caustic attacks on public figures are afforded the highest level of Constitutional protection. Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988).

The second cause of action is a bit trickier.  While the language reads like a false light claim, there’s a wrinkle here: According to the Citizen Media Law Project, New York doesn’t recognize the tort of false light. Costanza v. Seinfeld, 27 Media L. Rep. 2177 (N.Y. Sup. Ct. 1999), aff’d, 719 N.Y.S.2d 29 (N.Y. App. Div. 2001); Howell v. New York Post Co., 21 Media L. Rep. 1273 (N.Y. 1993)  That leaves Snyder with the tort of defamation by implication, which remains a form of defamation and thus subject to the same attacks set forth in the preceding paragraph.

Nonetheless, as the owner of the Redskins, Snyder has access to lawyers and the money to pay for them, and can inflict quite a lot of pain onto the defendants. Furthermore, even if the WCP fends off these claims, Snyder has made it clear that anyone smaller than the WCP had better be worried — criticizing him is not without its significant costs.

Mr. Snyder has more than sufficient means to protect his reputation. We presume that defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.” (source)

Snyder appears more butthurt than genuinely wronged. Unfortunately for him, or fortunately for us all, there still is no cause of action in the United States for intentionally butthurting a rich dude. Unfortunately for us all, win or lose, Snyder and his legal team just turned blew a cold wind across the free expression fruited plain.

J. Malcom DeVoy contributed to this post. Hat tip to Johnny Utah.

As Goes Iowa…

January 5, 2011

By Chad Belville, Guest Satyriconista

Iowa, a square state in the Heartland, is one of the few states in the US that allows any two adults of legal age to marry, regardless of gender. Unlike every other state where Supreme Courts found that government should legally recognize the unions of two same-sex adults, the Iowa decision was unanimous and shot down all arguments against limiting legal recognition, including those of tradition, religious bias, and the red herring argument that removing the gender restriction of two adults to enter into a bi-lateral contract will lead to allowing persons to enter into contracts with plants, animals, or upend the entire bi-lateral nature of the marriage license and allow polygamous marriages. The decision was well-written and should be a foundation for all other states to follow.

Immediately following the decision, the usual right-wing activists vowed to reverse it and take those rights away with an amendment to the Iowa Constitution. This requires approval by both House and Senate in two consecutive sessions of the Legislature followed by a popular vote. Democrats in control of both chambers refused to bring the issue to the floor, thus maintaining the equal rights of all adult citizens.
This past November, Republicans took control of the Iowa House of Representatives, who vowed to pass a bill that could eventually send the issue to the voters. The Iowa Senate remained in control of the Democrats and the Leader of the Senate, Mike Gronstal, has vowed not to bring this discriminatory amendment for a vote. Senator Gronstal can effectively keep such an insidious vote at bay for this legislative term but what happens beyond 2012 remains a mystery. His position is that civil rights of minorities should never be subject to approval by a popular vote, and he is absolutely correct.

As more time passes, more people realize gay people are not imported from far-away lands to indoctrinate kindergarteners but instead are their friends, neighbors, and relatives. Attitudes change and the urgency to take away the legal right to not testify against a same-sex spouse fades. These right-wing wackos know that time is not on their side; they know that if they do not pass constitutional amendments right now their battles will be lost as public opinion turns against them. Massachusetts has a similar system of amendment; after passing once and failing the second time through both Houses the issue died off. The fanatics moved on to take away or prevent establishment of rights for gay couples in other states where their shrieking could be effective.

In the State of Iowa, one man really stands in their way. Senator Gronstal’s position on equality and civil rights has painted a target on his back for the social conservatives who wish to turn back time. The National Organization for Marriage will expend millions of dollars to unseat him as punishment for opposing their bigoted beliefs, regardless of whether or not they can ever succeed in passing an amendment through both Houses in consecutive sessions. They led a successful campaign to remove 3 of the 7 Justices from the bench of the Iowa Supreme Court so their threats must be taken seriously.

Over the next two years, tremendous pressure will be put on Senator Gronstal to allow a vote on the floor of the Iowa Senate. Groups that are friendly only to Ozzie and Harriet-style families but not any others will pour money into anti-gay campaigns in an attempt to roll back the rights of a very small minority for the sake of their religious purity. Iowa is a small state, and the money from outside organizations will have a serious effect on the outcome. For now, equality in marriage is the law of the land in Iowa, but it is extremely vulnerable. The old saying is that “So goes Iowa, so goes the country” which used to apply to Presidential primaries but applies here and now to the issue of equal rights in the eyes of government. I have donated directly to Senator Gronstal’s campaign and to OneIowa, the umbrella civil rights organization that is countering NOM’s campaign of bigotry. I will continue to donate all of my equal rights contributions to Iowa organizations because the battle there is so acute and my donation dollars can do the most good. While I support things like the Employment Non Discrimination Act, the outcome of national equal rights activism is not on such a tiny fulcrum as in Iowa. I am asking anyone that will listen to join me in donating to the campaign of Senator Gronstal and OneIowa where small donations WILL make a difference.



“Some chicks marry chicks. Get over it.”

October 15, 2010

by Tatiana von Tauber

Nothing like the F word being appropriately used:

In Savannah we ask and we tell

September 17, 2010

By Tatiana von Tauber

It’s terribly difficult seeing the truth that sits before me.  In the #2 spot for romance and weddings in the U.S., love on the whole seems to be elusive rather than understood.


WJCL - FOX28 Savannah News

“The City of Savannah is considering extending benefits to same-sex couples.  Do you think the extension is a good idea?”

Yes: 21.1 %

No: 68.4 %

Not sure: 10.5%  (source)

Sorry to disappoint you Lady Gaga.

Applause for Mayor Bloomberg

August 17, 2010

I have nothing to add:

Transcript of his speech:

“We’ve come here to Governors Island to stand where the earliest settlers first set foot in New Amsterdam, and where the seeds of religious tolerance were first planted. We come here to see the inspiring symbol of liberty that more than 250 years later would greet millions of immigrants in this harbor. And we come here to state as strongly as ever, this is the freest city in the world. That’s what makes New York special and different and strong.

“Our doors are open to everyone. Everyone with a dream and a willingness to work hard and play by the rules. New York City was built by immigrants, and it’s sustained by immigrants — by people from more than 100 different countries speaking more than 200 different languages and professing every faith. And whether your parents were born here or you came here yesterday, you are a New Yorker.

“We may not always agree with every one of our neighbors. That’s life. And it’s part of living in such a diverse and dense city. But we also recognize that part of being a New Yorker is living with your neighbors in mutual respect and tolerance. It was exactly that spirit of openness and acceptance that was attacked on 9/11, 2001.

“On that day, 3,000 people were killed because some murderous fanatics didn’t want us to enjoy the freedoms to profess our own faiths, to speak our own minds, to follow our own dreams, and to live our own lives. Of all our precious freedoms, the most important may be the freedom to worship as we wish. And it is a freedom that even here — in a city that is rooted in Dutch tolerance — was hard-won over many years.

“In the mid-1650s, the small Jewish community living in lower Manhattan petitioned Dutch governor Peter Stuyvesant for the right to build a synagogue, and they were turned down. In 1657, when Stuyvesant also prohibited Quakers from holding meetings, a group of non-Quakers in Queens signed the Flushing Remonstrance, a petition in defense of the right of Quakers and others to freely practice their religion. It was perhaps the first formal political petition for religious freedom in the American colonies, and the organizer was thrown in jail and then banished from New Amsterdam.

“In the 1700s, even as religious freedom took hold in America, Catholics in New York were effectively prohibited from practicing their religion, and priests could be arrested. Largely as a result, the first Catholic parish in New York City was not established until the 1780s, St. Peter’s on Barclay Street, which still stands just one block north of the World Trade Center site, and one block south of the proposed mosque and community center.

“This morning, the city’s Landmark Preservation Commission unanimously voted to extend — not to extend — landmark status to the building on Park Place where the mosque and community center are planned. The decision was based solely on the fact that there was little architectural significance to the building. But with or without landmark designation, there is nothing in the law that would prevent the owners from opening a mosque within the existing building.

“The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.

“Whatever you may think of the proposed mosque and community center, lost in the heat of the debate has been a basic question: Should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion? That may happen in other countries, but we should never allow it to happen here.

“This nation was founded on the principle that the government must never choose between religions or favor one over another. The World Trade Center site will forever hold a special place in our city, in our hearts. But we would be untrue to the best part of ourselves and who we are as New Yorkers and Americans if we said no to a mosque in lower Manhattan.

“Let us not forget that Muslims were among those murdered on 9/11, and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies’ hands if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists, and we should not stand for that.

“For that reason, I believe that this is an important test of the separation of church and state as we may see in our lifetimes, as important a test. And it is critically important that we get it right.

“On Sept. 11, 2001, thousands of first responders heroically rushed to the scene and saved tens of thousands of lives. More than 400 of those first responders did not make it out alive. In rushing into those burning buildings, not one of them asked, ‘What God do you pray to?’ (Bloomberg’s voice cracks here a little as he gets choked up.) ‘What beliefs do you hold?’

“The attack was an act of war, and our first responders defended not only our city, but our country and our constitution. We do not honor their lives by denying the very constitutional rights they died protecting. We honor their lives by defending those rights and the freedoms that the terrorists attacked. (emphasis added)

“Of course, it is fair to ask the organizers of the mosque to show some special sensitivity to the situation, and in fact their plan envisions reaching beyond their walls and building an interfaith community. But doing so, it is my hope that the mosque will help to bring our city even closer together, and help repudiate the false and repugnant idea that the attacks of 9/11 were in any ways consistent with Islam.

“Muslims are as much a part of our city and our country as the people of any faith. And they are as welcome to worship in lower Manhattan as any other group. In fact, they have been worshipping at the site for better, the better part of a year, as is their right. The local community board in lower Manhattan voted overwhelmingly to support the proposal. And if it moves forward, I expect the community center and mosque will add to the life and vitality of the neighborhood and the entire city.

“Political controversies come and go, but our values and our traditions endure, and there is no neighborhood in this city that is off-limits to God’s love and mercy, as the religious leaders here with us can attest.”


August 16, 2010

Eat a pail of feces, bigots!

It looks like the uneducated peckerwoods supporters of Proposition 8 are seriously considering throwing in the towel. They fear that they will lose 5-4 at the Supreme Court. That and they realize that if you have a court case, you can’t just expect to argue “well, gays are ummm, bad, mmmkay?” and expect to win.

So rather than risk allowing the 31 states with bigotry amendments “go down in flames” (their words, not mine), they might not appeal at all — and just let the Prop. 8 decision stand. (source)

Checkmate, and ha-ha fuck you, bigots.

“Show Me Your Papers!” – Not new law…

April 29, 2010

by: Jonathon C.A. Blevins

The sky is not falling…

The new AZ law requiring law enforcement to inquire as to the legal status of its population is a hot button issue. The reason the issue is so hot is that the law is targeted at illegal immigrants, undocumented workers, aliens, or whatever politically correct noun is currently popular. I will concede the facts surrounding the passage of the law are unpalatable. However, the law is probably consitutional. Further, the request for “your papers” is similar to a request for “your driver’s license or ID.” (The analysis assumes the law will require LEOs to inquire to EVERYONE about legal status).

I cannot postulate on the status of AZ law. But, I am familiar with the law of the State of Florida. Thus, I will provide analysis of the AZ law as if it were passed by the FL legislature. Hopefully, the readers can ascertain that the below is an analysis of the law and not a pro/con law enforcement argument. Regardless of your feeling regarding LEOs, the status of the law is, well, the status of the law.

Law enforcement is allowed to inquire into the legal status of the population provided LEOs follow certain procedures. If LEOs do not  follow the procedures, the remedy is suppression of evidence and/or release of detainee.

So long as LEOs do not use the legal status inquiry as a basis for any of the following, the Fourth Amendment will not be triggered. If the sole basis for detention or arrest is to inquire about legal status, it is clear that all evidence from the detention would be suppressed.

Florida recognizes three levels of police-citizen encounters or “lawful police contact”:

1. Consensual encounter

2. Investigatory stop / detention

3. Arrest

Popple v. State, 626 So.2d 185, 186 (Fla. 1993).

In a consensual encounter LEO is allowed to approach any individual and inquire about any topic, including proof of identification. The test for a consensual encounter is whether a reasonable person would think he/she was free to leave. Whether a person is free to leave is a test of factors: the number of officers, tone/language used by LEO, display of weapon, blocked path, lights/sirens, whether the officer ordered anything (not an exclusive list). During a consensual encounter, LEO is allowed to ask for ID/DL/Proof of legal status.

The LEO is allowed to approach an individual at any location and ask any question. The responses to questions are not subject to Miranda and the answers may be used against the individual. Further, the LEO can search the individual with consent. The key to a consensual encounter is the individual sets the parameters for the encounter. The individual may refuse to answer any question posed by the LEO. The individual may walk away from the LEO and refuse to produce an ID. During a consensual encounter, the LEO is at the mercy of the individual’s consent.

An investigatory detention/traffic stop (aka Terry stop)  the parameters are narrower. The encounters must be supported by reasonable, articulable facts that create a reasonable suspicion the individual has committed, is committing or is about to commit a crime. The totality of the circumstances will determine whether the LEO acted reasonably in detaining an individual.

If the LEO is able to articulate facts that lead to a reasonable detention of the individual, LEO can ask for ID. However, unlike a consensual encounter, the individual does not have the right to refuse. Thus, the individual will be compelled to answer investigatory questions. The questions are not always subject to Miranda. In fact, in a DUI case, the LEO is explicitly allowed to ask questions about the charge without reading Miranda.

LEO are permitted to detain a suspect as long as necessary to effectuate the purpose of the stop/detention.  It is a reasonableness test. So, if the LEO has a reasonable suspicion of criminal activity, the individual will be reasonably detained and compelled to produce ID/DL/Proof of legal status.

The arrest is the most obvious type of LEO-citizen encounter. If the individual is formally arrested and questioned, the individual must be provided Miranda warnings. The individual is not free to leave. The LEO may formally arrest someone if probable cause is established. Probable cause lies somewhere between reasonable suspicion and proof beyond a reasonable doubt that a crime was committed, is being committed, or is about to be committed. Even if the person invokes Miranda, the individual will be compelled to produce ID/DL/Proof of legal status…at the time of arrest or at booking.

The analysis above is not mind blowing. In fact, the analysis is basic. The fact that the analysis is so basic is what astounds me about the outcry against the AZ law. If LEO follow the above parameters, no Fourth Amendment violation will occur. The request for production of ID/DL/Proof of legal status will not run afoul of  precedent or the basic reading of the Fourth Amendment.

As for FL, in order to get a DL, you must produce proof of identify, social security and residence .    Thus, if the LEO asks for ID, you are producing proof of citizenship…guess what? No Fourth Amendment violation!

If LEO does not follow the above parameters and the specific caselaw of the jurisdiction, the remedy is suppression of evidence and/or release of detainee. The “show your papers” hysteria assumes we live in a country run by law enforcement. For the law to truly be abused, the SAO, defense bar and judiciary would have to be in collusion.

Law enforcement officers are not the final decision makers regarding arrest and detention. Yes, LEO make the temporary decision whether to arrest an individual. Yes, LEO can ruin your day. Yes, there are abusive LEOs in the world…the opposite is also true. 

However, a dutiful and responsible State Attorney (or similar state prosecuting agency) will analyze the case for 1) likelihood of conviction and 2) lack of potential suppression issues. If either of those two elements are not met, the ASA may want to think hard about whether to file the case. If the ASA is not diligent, it is the defense attorney’s responsibility to  file appropriate motions. Then it is the judge’s job to decide whether the law was followed. The process is not perfect and the process is slow…but it is our process.

The above process is afforded to EVERY case in the Union. The system will provide redress for abusive policies and abusive laws. The same process will be provided to every person required to produce ID/DL/Proof of legal status to LEO. The idea that the “show me your papers” law will disassemble the process is without merit.

The “scary” issue of being forced to carry your papers everywhere is ridiculous. WE ALREADY CARRY OUR PAPERS. You are required to carry your papers to drive, to vote, to write a check, to set up cable, etc. We carry an ID everywhere…what is new?

This is much ado about nothing…at least much ado about nothing new…

Immigrant Equality under the Law

April 23, 2010

While freely acknowledging my lack of formal legal qualifications, I believe I am correct in thinking that equality under the law is–well, kind of a basic concept.

How, then, does our esteemed president (who never shrinks from making arrogant judgmental assertions on topics far outside his constitutional authority) suggest that the Arizona bill to criminalize illegal immigration under state law is a violation of civil rights?

If he is correct, then all immigration laws violate civil rights, and should be abolished.

As an immigrant myself, I went through all kinds of shit to become a naturalized citizen. I am therefore displeased to see any group of people violating the law with impunity and then receiving special favors. Back when I was a mere visitor to this nation, it never remotely occurred to me that I could remain here illegally, and then demand to remain here permanently, and receive free services in the meantime. It was inconceivable.

The repatriation of illegal immigrants has been dismissed as “impossible” (as if practicality trumps law!) because of the sheer numbers involved. Yet if you do the math, estimating the number of people that can be carried on buses and trains, the entire problem could be resolved within 5 years. The fact that people have not done the math suggests to me that they do not want to do the math–for reasons which I find incomprehensible.

If immigration laws are in some sense unjust or inappropriate, let them be revised. In the meantime, let them be enforced like any other laws–equally. And if the Federal Government lacks the will to do so, let the states perform that duty.

The Bare Breasted Truth

April 15, 2010

Satyriconista, Tatiana von Tauber

By Tatiana von Tauber   

Envision spending a nice sunny Saturday downtown when suddenly a crowd of women come at you – topless! Do you gasp? Quickly grab your children and cover their eyes? Do you think, WTF, laugh or grab your camera? Portland, Maine had plenty of diversified reactions to just such an event.   

About two dozen women participated in a march on Congress Street to bring attention to breast equality: women can go topless too and in Maine it’s legal.  Of course this half-naked public and free event sparked a lot of onlookers and unsurprisingly, amateur photographers yet the coordinator of the march, Ty MacDowell, 20, was upset about its progression:   

“I’m amazed,” she said, and “enraged (at) the fact that there’s a wall of men watching…”   

“A lot of people were taking pictures without even asking,” she said. “Even if you’re somewhere where people are fully clothed, you should ask.”   

Hold on a minute here.  Ask for permission?  In a public place there is no privacy and besides, what exactly is the point of a partial nude protest march?   

Attention, right? Bare breasts make people look but according to MacDowell,   

“The point of the march was that a topless woman out in public should attract no more attention than a man walking around without a shirt on”.   

That’s rather an ambitious “should” but youth is drenched in potential.  Here’s a lesson from science:  There are very distinct biological differences between the male and female brain. For example, according to Dr. Louann Brizendine, author of The Female Brain*:   

1. Women use about 20,000 words per day versus men’s 7,000.   

2. Men think about sex once a minute and women once every couple of days! (yeah, that is depressing for both sides)   

3. Men have 2.5 times more brain area for sexual thoughts than women.   

4. Women need their amygdala – the brain’s worrying and critical thinking system – “turned off” to ironically become turned on or sex will either be faked or a raincheck.   

There are just some things that are too difficult to change when they are deeply etched into social perception or nature’s biology. The results of the bare breasted protest barely registered on the feminist Richter scale. A 24-woman march just isn’t good enough breast coverage.   

I agree with MacDowell’s idealistic intent. Topless women should attract no more attention than men. However, in reality this courageous 20-something just learned one of women’s hard lessons: when there are bare breasts, there will be a wall of men, paparazzi picture taking and objectification; therefore, what should be isn’t.   

One step to change such realities is to simply expand our views of the opposite sex while we come to deeper understandings of our own. Brizendine’s books The Female Brain and The Male Brain are a good beginning towards understanding why men and women do what they do and hence what’s possible to change and what seems enslaved to hardwiring.  In the process maybe bare breasts in public might become less taboo.  I don’t exactly recommend topless outside seating but it would be nice if America could ease up on the stigma associated to public display of those dangerous female nipples.

*The Male Brain is Brizendine’s newest release I’ll comment on in the future

Garcetti v. Ceballos potentially subsumes public employees’ First Amendment rights

March 30, 2010

By J. DeVoy

Public employees in political jobs often walk a difficult line when they speak about current affairs.  Historically, this speech was protected by the Pickering-Connick test, established in Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983).  Under that test, courts engaged in a two-step inquiry: First, whether the employee’s speech was a matter of public concern based on its content, form and context, and Second, if the speech was a matter of public concern, if the public employer had an adequate justification for treating the employee differently from any other member of the general public.

In 2006, the United States Supreme Court added a new threshold inquiry to this analysis.  In Garcetti v. Ceballos, 547 U.S. 410 (2006), a five-justice majority held that a prosecutor who criticized the circumstances under which a warrant was issued made his statements as a public employee.  As a consequence, the Supreme Court found that his statements were not protected by the First Amendment, and his civil liberties were not violated when the office passed him over for a promotion as a consequence of them.

At the time of this decision, there was considerable concern that this would limit the free speech of government employees.  In Kennedy’s majority opinion, the court addressed this concern, which Souter raised in his dissent.  The majority found it very unlikely that public entities would create positions with excessively broad job descriptions that would effectively muzzle employees.  The court noted that an employee’s actual responsibilities were at issue, which could depart significantly from his or her job description; a task’s mere inclusion in a job description is “neither necessary nor sufficient” to show it was entailed in the employee’s actual job duties.

A Different Problem Arises

While the issue of overbroad job descriptions has not come to pass, a new problem may be brewing in the circuit courts.  There seems to be wide discrepancy in how Garcetti has been applied to subsequent cases, emanating from the Fifth Circuit.  While the Supreme Court engaged in a probing analysis of public employees’ job duties, the Fifth Circuit has taken a more mechanistic view of this inquiry, and repeatedly held that statements relevant to job duties are made as state employees, rather than as private citizens.

In Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008), the Circuit Court held that the defendant’s statements about the University of Texas Health Science Center in Houston’s inadequate response to a child pornography investigation were statements made as an employee because they related to her job duties.  In particular, the court stated:

Activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection.

Davis, 518 F.3d at 313.  The defendant’s statements about the pay for vice presidents in the Health Science Center, statements to the FBI about child pornography on the computers and general concerns about racial discrimination by the Health Science Center were held to be speech made as a private citizen.

Similarly, in Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), a systems analyst’s complaints about racial discrimination in the Texas Lottery Commission were held to be made as a private citizen.  Although this discrimination arose in the course of Charles’s employment, addressing racial equality was not within the purview of his duties as an analyst.  Therefore his statements were made as a private citizen and afforded certain First Amendment protections by the court.

Not every statement made by these employees was snared in a net preventing free speech, but the Fifth Circuit did not analyze the statements it found to be made as public employees beyond acknowledging that they related to work duties.  These statements may have significant value and otherwise be protected under the Pickering-Connick test, but cannot even reach that point.  Simply because the statements relate to work duties, the Fifth Circuit considers them to be statements made within the scope of public employment, rather than speech by a private citizen.

Other Circuits have engaged in more aggressive inquiries about when a speaker makes statements pursuant to their official duties, rather than whether or not the statements were related to their job duties.  Just because an individual makes a statement related to his or her job and the duties within it does not mean he or she is speaking pursuant to those duties.  In Bivens v. Trent, 592 F.3d 555 (7th Cir. 2010), the Seventh Circuit addressed this very concern and acknowledged the ambiguity surrounding statements relating to job duties made to third parties, but held that reports to supervisors, required as part of Bivens’ job duties, were made pursuant to them.  In Fuerst v. Clarke, 454 F.3d 770 (7th Cir. 2006) the Seventh Circuit declined to find a sheriff’s statements, though relating to his job duties, were made pursuant to them when he spoke in his capacity as a union representative.

Implications for Public Employees

Though the doomsday scenario prophesied by the Garcetti dissents has not come to pass, the Fifth Circuit’s jurisprudence paints a bleak picture of the future for other reasons.  The language of the Davis opinion, quoted above, “activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection,” misses the point of Garcetti and does not square with the holdings of other jurisdictions, such as the Seventh Circuit.

Actions undertaken in the course of performing job duties are distinct from activities arising pursuant to official duties.  As the Seventh Circuit has read the law, speech made pursuant to job duties is essentially required by it.  This is not the case for speech made during the performance of job duties, which case law shows can be quite broad – especially in the case of policy-setting positions, where political statements and criticism can easily relate back to the speaker’s job duties and be denied First Amendment protection.

Therefore, there is a need to more clearly delineate between speech made relating to job duties and pursuant to them.  If the two are treated the same, as is the case in the Fifth Circuit, then virtually all criticism and communication about one’s job will be silenced.  There will be no need for the Pickering-Connick test under this regime, as those who talk frankly about their job duties will never be able to reach it and prove the public import of their speech.

This is a problem for many reasons.  First, it stifles individual freedom of expression.  Second, it interferes with the ability of government employees to identify what’s wrong in their line of work, potentially improving government operations for all and ensuring that finite tax dollars are better allocated.  This is a serious issue for public employees who wish to freely discuss things related to their job duties – but not pursuant to them – in an effort to seek advice or share information here or on racier websites, such as JDUnderground or AutoAdmit.

If all such instances of speech are considered part of the speaker’s work duties, employees will be left with an unenviable decision: speak freely and risk employer retaliation, or say nothing and suffer in silence.  Beyond the constitutional expectations of free speech that we all enjoy, preserving First Amendment protections for such speech helps those who best know how to improve public employers’ efficiency and efficacy to be heard.

H/T: Andrew Rima, my brilliant moot court partner, who helped me wade through this issue for the 2009 National First Amendment Moot Court Competition.

Genetics, IQ and the judicial double standard

March 4, 2010

By J. DeVoy

Emergent research is raising a serious question about the heritability of IQ, suggesting that most of it is, in fact, genetic.  High IQ is associated with the prevalence of certain SNPs – groupings of nucleotides in an individual’s genetic code – which cannot be caused by normal life functions like exercise, eating a healthy diet, or even studying really hard.  Other studies have shown that in-group IQ remains relatively constant over life, indicating that things like education and reading can’t enhance IQ, but merely reflect one’s innate genetic gifts.

Courts, however, have been facing these realities long before now.  In Atkins v. Virginia, the Supreme Court held that it was unconstitutional to execute someone with a severe mental disability — a condition inherently reflecting low IQ.  Similarly, in Griggs v. Duke Power Co., the Supreme Court banned the power company’s use of IQ tests in assigning employees to certain tasks and positions.  Turning to anecdote, I witnessed a sentencing hearing while volunteering for my home district’s Federal Public Defender where the AFPD asked for leniency because the defendant, pleading guilty to child pornography charges, had a shockingly low IQ (below 80).

IQ is used as a one-way street: It excuse the actions of people who cannot function in society without committing crime and harming others, and that is all.  Pointing out low IQ as a reason for individual failure, though, is career suicide — the concept may as well not even exist in those circumstances.  If IQ shows that someone may be smarter than his or her peers, then IQ is just a “social construct”*, as personal success can only be attributed to that ugly “p” word, “privilege.”

While extreme cases like Atkins may warrant heightened protection of individual rights – it is the death penalty, after all – low IQ, like ugliness, is not a protected condition.  Yet, in cases where defendants are incapable of apprehending the wrong of their actions, and even less likely to learn from them, society’s urge to punish them is almost nil.  For instance, an Italian court reduced the sentence of a man who showed he was genetically prone to crime.  Is this bizarro world?  If violence is genetically innate for someone, it makes sense to detain them even longer, probably even forever. Rehabilitation sure as hell isn’t going to happen.

Inasmuch as it is impossible to change one’s genes, it is impossible to expect these people to change hard-wired genetic traits.  Low IQ is not an excuse for criminal conduct, but instead an excellent predictor of it.

While it would be inhuman to punish the low IQ simply for having low IQ, courts and society need to embrace a consistent approach.  Using IQ as an excuse when convenient, while decrying it as a social ill at all other times, is unworkable.  When IQ is a factor in an individual’s criminal conduct, courts and counsel should realize that the likelihood of rehabilitation generally is low.  Though the defendant may not reoffend, that consideration will arise from how strongly his or her law-abiding habits are ingrained as constant behaviors, something ascertainable only on a case-by-case basis.  This consideration does not make low-IQ individuals bad people, and may even make the incarceration experience more sensitive to their unique situation.  This point cannot be reached, though, until courts acknowledge the immutable, unchangeable nature of IQ, and stop allowing it to exist merely as an excuse for criminal conduct.

*g, the general factor of intelligence, is a composite of all other forms of intelligence and a mathematical construct.

Flori-duh’s bigoted adoption law on the ropes

January 28, 2010

Another Florida judge has issued a ruling that the state’s law that bans adoptions by homosexuals is unconstitutional and unenforceable:

Describing the state statute as unconstitutional on its face, Miami-Dade Circuit Judge Maria Sampedro-Iglesia finalized the boy’s adoption by attorney Vanessa Alenier, 34, earlier this month, the newspaper reports. She and her longtime partner, Melanie Leon, 31, have raised the boy, who is a relative of Alenier’s, from infancy with her extended family’s blessing after he was removed from his original home by child welfare workers.

“There is no rational connection between sexual orientation and what is or is not in the best interest of a child,” says Miami-Dade Circuit Judge Maria Sampedro-Iglesia in a written order. “The child is happy and thriving” in Alenier’s care and “the only way to give this child permanency … is to allow him to be adopted” by her. (source)

More coverage from the Miami New Times.

Surge in Avatar names suggests few have read Freakonomics

January 18, 2010

By J. DeVoy

Parents are rushing to name their children after today’s latest flash-in-the-pan pop sensation, Avatar.  Unfortunately, it’ll bite them squarely in the ass in two decades.  From UK’s The Sun:

Choices include Neytiri – after the film’s Na’vi warrior-princess – and giant flying creature Toruk.

To well-read or even vaguely aware people who haven’t seen the movie, these names are painfully derivative.  Neytiri — eerily similar to Nefertiti, Egyptian Queen — will be today’s equivalent of Britney, Stacey or Jenna in 2030.  As for Toruk, these parents are naming their children after a giant flying creature, which should be enough of an indictment on their likely parenting skills.  But Toruk is also a letter transposition away from being Turok, the protagonist of an unremarkable video game franchise about killing dinosaurs.  The real lesson: Unforgivably lazy writing can still net millions of dollars in revenue.

Another favourite is Pandora, name of the blockbuster flick’s fictional planet.  Pandora is tipped as top choice among US fans, with UK parents set to follow.

Meanwhile, in the real world, Pandora still carries erotic overtones; indeed, it is the name that launched a thousand strip clubs.

That parents chose these names is unsurprising; unorthodox names are often the symptom, not the cause of an inadequate upbringing.  That same upbringing, however, is the harbinger of future failure.  The sheer number of people being born with these names is also unsurprising, as low-IQ people have more children than those with higher IQs.  The same lack of future-time orientation that led to them having a large family also inhibits their ability to give their children sensible names from media with more staying power like Lord of the Rings or The Bible.

Maybe in the future when Neytiris and Toruks run society, Johns and Marks will suffer the consequences.  And maybe hell will freeze.

Shame on Maine

November 4, 2009

Maine’s citizens have voted to repeal the civil rights of their neighbors. Shame on Maine.

I wonder how this vote squares with the Maine Constitution. Article I in the Maine Constitution states that ‘no person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person’s civil rights or be discriminated against.’

Jesus and His Blasphemous Nails

September 30, 2009
Jesus Does His Nails by artist Dana Ellyn

Jesus Does His Nails by artist Dana Ellyn

By Tatiana von Tauber

Today is Blasphemy Day and its objective is to “open up all religious beliefs to the same level of free inquiry, discussion and criticism to which all other areas of academic interest are subjective” according to Center for Inquiry, the host of the Blasphemy Day Artist Showcase exhibition. Meet Dana Ellyn. She’s the showcase artist and she’s getting lots of attention she doesn’t want for a painting which was spurred by creativity and a theme.

“I don’t want to be the poster child for atheism. It is a fact that I don’t believe in god or practice any religion – but that is not what defines me or my art.”

The attention Ellyn is getting is on her Jesus Does His Nails painting and the religious community is angry. CNN interviewed her last night. Pharyngula picked her up as did Politics Daily. Bill Donohue is mad and a slew of religious folks have been sending her hate mail. That’s nothing new in the controversial world of art and free speech. However, I got an inside scoop to some questions a pastor who’s a self announced “fundamental Christian” asked Ellyn. The question which poked me hardest served as an example of the crux of the problem with intolerance and that is simply blatant assumption:

“What would you say to someone like me, a Fundamentalist Christian, who has a hard time believing your statement that your “point is not to offend” after viewing paintings like “Jesus Does His Nails“, “Silly Rabbit, Myths Are For Kids” and “Bottled at the Source“? It would seem, in my opinion, the offensiveness is not only intended, but is quite possibly the objective of such pieces. Your response?”

Dana Ellyn was kinder than I would have been because if Ellyn really wanted to insult, she as many others, could find truly insulting and offensive imagery to blast at the religious community.  What Ellyn has is provocative art and that’s one of art’s purposes. Ellyn said she’s never consciously and intently sat down at an easel to paint something that would purposefully offend. What Dana Ellyn does – as many or most artists do – is she sits down at an easel with intent to provoke human emotion in order to ignite discussion, thought, critical thinking, or simple pondering. As Ellyn states,

“I hope they (art pieces) foster open-minded discussions. And perhaps induce a giggle or two along the way.” (Personally, I love her take on motherhood. Hook me up, please!)

To be fair, as I always try, of course the religious minded have the right to speak their mind too. That’s what freedom of speech is about – everyone having a voice. However, when speaking one’s mind turns into crazy forms of verbal harassment with blatant lack of tolerance as seen in the many comments on this article, one has to wonder what sunday school or God his behavior and ethics are modeled after when he attacks with things like Dana Ellyn must be stopped and punished. To Ellyn, that’s no longer simply a heated difference of opinion; it’s conscious – and proud – intent of wishing someone bad via punishment and full censorship for what is ultimately subjective expression. Ellyn views her art – as explained referencing to her piece Bottled At the Source (Dive Wine)- “as a literal depiction of what I had read – realizing that people may be offended but my inspiration for the piece was solely rooted in the desire to ‘illustrate’ the written words which explained the communion.”

Freedom of voice and expression are natural birthrights, yet those rights require self-responsibility. The responsibility some feel is in those who make controversial statements or art and that’s a thin line but really, the responsibility rests on those who interpret what is ultimately one subjective view in a sea of billions. Clearly, it’s a self-made problem.

Ellyn’s paintings hardly seem something to fear and yet, so many do -not the paintings of course but their message which shakes faith just a bit if not a lot. That’s not new in the ways of confronting firm ideology over generations but if Dana Ellyn’s few religious themes provoke people to ask her questions, then she’s initiated some discussion while expressing her freedom of expression. When those very people twist things on her and, as the pastor example shows, basically spell out for her what she thinks and intends – aka assumption- then it feeds the fear of “losing my religion” .

Dana Ellyn’s paintings are fresh interpretations of myth and reality and the absurdity which surrounds us daily. She plays with her inner child and together they paint a “new world” to adults who take themselves, their ideas and their God too seriously and literally. Lighten up. It’s only a painting and Jesus is only what one makes him to be and nothing more. Diversity demands tolerance. Tolerance requires freedom of expression and freedom of expression is what Americans advocate.  Some do, anyway.


Here’s the CNN article, which slants a bit in Ellyn’s favor.  It’s a good article.