Marc Randazza reacts to the Las Vegas shooting in his most recent CNN column

October 12, 2017

 

In his latest CNN opinion column, Vegas based attorney Marc Randazza reacted to the brutal mass shooting that happened in Las Vegas on October 2, 2017. Fortunately, neither Marc Randazza, nor his family members or friends, were harmed during that tragic incident.

However, as a First Amendment attorney and the managing partner of the Randazza Legal Group — a law firm that handles cases related to Constitutional law — Randazza could not remain indifferent.

While expressing his deep sympathy and condolences to the victims and the survivors, Marc Randazza emphasized that it’s fairly important not to let terrorists plunge the nation into chaos and fear. As Mr. Randazza noted, “Let us remember that those who kill innocent victims do not do so simply because they wish them dead — terrorism is about killing a few to strike fear into many.”

Oppressing people’s freedoms and restricting the rights of regular people isn’t the best way to react to mass shootings. Marc Randazza believes that we should “Do nothing but mourn, care and investigate. Yes, at some point this event will inform decisions on how we govern ourselves. But not today.”

Find out more about Marc Randazza’s response to the Las Vegas shooting in his most recent CNN column: “The best way to respond to Las Vegas massacre.”


Jail For Laughing Protester Is An Outrage

May 10, 2017

Marc Randazza’s most recent CNN column analyzes the recent conviction of Code Pink Protestor Desiree Fairooz after the media suggested she had been arrested merely for, “laughing at Jeff Sessions” during a Congressional hearing.

There is, of course, more to the story.

See: Jail for laughing protester is an outrage

When Fairooz laughed loudly during Session’s confirmation hearing, Officer Coronado removed her, which caused Fairooz to protest loud enough to disrupt the session. Fairooz was charged with, “disorderly and disruptive conduct and parading or demonstrating on Capitol grounds.”

However, it didn’t end there: Marc Randazza notes that a jury of her peers actually convicted her of these crimes.

Marc Randazza says, “Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt they had no option but to convict.”

“[F]or Fairooz to be facing prison for her conduct is outrageous,” asserts Marc Randazza.

Marc Randazza reminds us that, “the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about.”

But why?

As Marc Randazza points out, this has nothing to do with Ms. Fairooz’s message—as he admits he often does not agree with the message of Code Pink—this is about Free Speech and the First Amendment.

For Marc Randazza, it is not the message that deserves protection, it is the speech itself.

“The wall that protects the First Amendment is not manned with pretty happy smiling thoughts and easy-to-love characters. That rampart is manned by the ugly, the impolite, the impolitic, the disturbing image, and the thoughts that you may swallow no easier than if they were made from crushed glass.”

Read the rest here.


Marc Randazza’s most recent CNN column analyzes U.C. Berkley’s decision to silence Ann Coulter

April 27, 2017

See Dear Berekely: Even Ann Coulter deserves free speech.

There has been a wave of violent outbursts against conservative speakers during the 2016 election season, including violent protestors at Berkeley driving Milo Yiannopolous off campus a few months ago.

Berekley’s reaction? When the Berkeley College Republicans invited Coulter to speak, Berkeley canceled it, citing the recent violent outbursts as the reason. Marc Randazza explains that Ann Coulter suggested disciplining the students that engaged in violence, but Berkeley decided instead to reschedule the speech on a day when no students were on campus.

This is censorship.

Marc Randazza says that some people on the left feel, “emboldened by a view that ‘we’ are right and the Right (is) wrong,” and goes on to scold the left: “Shame on the Left for tacitly condoning this culture of violent suppression of views it disagrees with.”

Marc Randazza reminds us that we don’t need a First Amendment for speech that neither challenges, nor offends, because sometimes that very challenging and offensive speech fosters growth.

Marc Randazza points out that the left used to be beacons for free speech, and credits a few well known liberals for defending Coulter’s right to speak in the column:

“Are we living in an alternate reality, one in which Bill Maher and Bernie Sanders are sticking up for Ann Coulter?

What could have caused this rip in the space-time continuum?

The so-called birthplace of the free speech movement, the University of California at Berkeley, has once again engaged in liberal censorship, this time of Ann Coulter, using the fear of violence as cover to suppress a voice it did not like.”

Read the rest here.


Randazza Resoundingly Wins First Amendment Case

February 23, 2017

marc

Once again Marc Randazza of Randazza Legal Group battled censorship in favor of wide open debate in his latest First Amendment victory.The 11th Circuit Court of appeals affirmed the anti-SLAPP win and the lower court’s decision regarding the “false advertising” claim.

The case is focused on the conflict of two doctors, Dr. Steven Novella and Dr. Edward Tobinick.

Marc Randazza represented Dr. Steven Novella, a Professor of Neurology at Yale School of Medicine and the editor of Science Based Medicine. On his website Dr. Novella writes about scientific debate in the medical community. Dr. Novella published negative opinions about Dr. Tobinick’s methods of off-label drug usage to treat Alzheimer’s disease.

Dr. Tobinick didn’t start the debate but filed a lawsuit against Dr. Novella for defamation. Also, he claimed that because the website hosted ads, the case was transformed into commercial speech. This case had a huge impact on publishers, but Marc Randazza successfully SLAPPed all legal claims and protected Dr. Novella’s right to free speech and debate.

Find more details on the Pissed Consumer blog.


Two Issues with the FBI & Apple

February 18, 2016

by Jay Marshall Wolman, CIPP/US

By now, practically everyone who cares has heard that Magistrate Pym has ordered Apple to help the FBI crack open an iPhone related to the San Bernadino shooting.  The order is pursuant to the All Writs Act, codified at 28 U.S.C. sec. 1651.  In short, it is a catch-all that lets courts issue whatever orders they feel like.  In response, Apple CEO Tim Cook sent a letter saying he opposed the order.  Notably, he wrote:

But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.

There’s been a lot of discussion, but little focused on two issues that deserve some attention.  First, this isn’t simply asking Apple to turn over a piece of software or asking to borrow a gadget.  They are, if Mr. Cook is to be believed, asking Apple to write new software.  Software is a creative process, a means of expression; this is why it is protected by copyright. Apple itself was instrumental in this determination.  See  Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983).  In a nutshell, the Order is tantamount to ordering Frank Gehry to design a building featuring straight lines and right angles or ordering Stephen King to write a Harry Potter/Game of Thrones cross-over (assuming, in theory, a criminal investigation that would make such desirable).  EFF briefly touched on this last year in similar circumstances.  The All Writs Act may date to 1789, but it predates the ratification of the First Amendment in 1791 and is subject to it.  The Government may not simply compel speech.  See, e.g., Knox v. SEIU , 567 U.S. 310 (2012)(“The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.”).  

Second, there’s a certain subtext in Mr. Cook’s message.  What he says is that it is too dangerous to create, not that it is unfeasible to create.  The issue faced by the FBI is that the iPhone at issue may erase all data after too many failed attempts at a brute-force passcode hack.  So, they want Apple to design a work-around that would enable them to guess all possible passcodes without bricking the phone.  The auto-erase function is a security feature; the iPhone is encrypted by default.  We rely on this as part of our daily security–heck, I’m sure the government relies on it.  We’ve all seen street magicians use incredible slight of hand–how hard would it be for one of our diplomats, officers, or defense contractors to have had a foreign spy (let’s say–North Korean) swipe their iPhone (and SIM cards) and replace it with a counterfeit.  In that scenario, the person would try their passcode 10 times, fail, wonder why, but feel secure that the iPhone wiped itself.  Yet, the real phone would be in the hands of the foreign government.  Maybe the FBI and Apple haven’t yet developed the tool that bypasses the 10-tries-and-erase feature, but a foreign intelligence agency might have.  Our own NSA might have it also, but just isn’t sharing with the FBI.  This tells me that no iPhone is actually secure.  Though there is pretty much no such thing as an unbreakable lock, such a tool might enable a brute force attack on your phone to crack it in as little as 12 hours.  That’s more than enough time before the subject realizes his phone was swapped rather than just suffering a glitch.  As much as we may want Apple to be able to recover our phones if we forget our own passcodes, we really should want them to make a phone they themselves cannot crack.

These are the issues we should be discussing, in addition to whether we generally think it right for the government to ask Apple to hand over the keys to the kingdom.


Revisiting Prostitution

December 15, 2015

by Jay Marshall Wolman

My recent post on the Ninth Amendment got me thinking about Griswold v. Connecticut, and its progeny, including Lawrence v. Texas.  Although the latter explicitly stated it wasn’t ruling on prostitution, it didn’t say it wasn’t protected.

Assuming a logical thread from Griswold, the case law is that, basically, whatever two consenting adults choose to do in private is private and the government should not be intruding.  There are governmental interests in preventing abuse (based on consent or ability to consent) or preventing public sex, but other than that, how is prostitution still a crime?  The government has no interest in restraining two (or more) consenting adults from having intercourse.

States do have the ability to declare certain contracts unlawful–working for less than minimum wage, selling contraband–and otherwise set limits on commercial activity.  Thus, I would think that attempted prostitution/solicitation might still be lawfully prohibited (the two are still free to agree to have sex, so there isn’t a restraint a la sodomy prohibitions and attempted sodomy).  But, the actual sex act itself is private.  And, if violation of constitutional rights results in evidentiary suppression for 4th and 5th amendment violations, then evidence of the sex act itself should be inadmissible.  Once inadmissible, the prima facie case disappears and the charge should be dismissed.

I did say attempted prostitution/solicitation might be prohibited.  Marc previously distinguished prostitution and pornography, but I think that the First Amendment angle might be a way to go.  Producer A can hire Actors B & C to have sex for money, so long as it is expressive activity.  Can Producer A also insert himself into the scene with B & C or even with just B?  I don’t see why not–Jason Segel produced and acted in Forgetting Sarah Marshall and The Muppets.  Basically, so long as you film the encounter (or have a live audience), you can call it expressive activity.  And performers have been known to be the videographers–e.g. Blair Witch Project and some documentaries.  All that’s left is film distribution issues–so long as the John gets the recording at the end, but with a restriction that he and the prostitute will later have to agree on any viewing by a third person, then the pornography exemption could swallow any law regarding attempted (or actual) prostitution.

This, of course, is just an initial musing, and not a law review article or appellate brief.  But, critiques are welcome.  How am I wrong on either privacy or 1st amendment (with subsequent contractual) grounds?

 


Wait a Cotton Pickin’ Minute: Free Speech and Employment

November 2, 2015

by Jay Marshall Wolman

As an employment lawyer who works for a 1st Amendment firm, I try to keep up with developments in both areas.  Sometimes, they overlap, as they did in my Twitter feed recently.  (Blatant self-promotion, feel free to follow me @wolmanj ).

In Trusz v.UBS Realty Investors, LLC, the Connecticut Supreme Court was asked to consider how it should evaluate statements by employees and retaliation claims.  As noted by the court in Trusz, Connecticut employees (private, as well as public) have broad free speech rights under the Connecticut constitution:

This court previously has held that because, unlike the first amendment to the federal constitution: (1) article first, § 4, of the Connecticut constitution includes language protecting free speech ‘‘on all subjects’’; (2) article first, § 5, of the Connecticut constitution uses the word ‘‘ever,’’ thereby providing ‘‘additional emphasis to the force of the provision’’; (internal quotation marks omitted) State v. Linares, 232 Conn. 345, 381, 655 A.2d 737 (1995); and (3) article first, § 14, of the Connecticut constitution provides a right to seek redress for grievances by way of ‘‘remonstrance,’’ and therefore ‘‘sets forth free speech rights more emphatically than its federal counterpart’’; (internal quotation marks omitted) State v. Linares, supra, 381; these textual differences ‘‘warrant an interpretation separate and distinct from that of the first amendment.’’ (Internal quotation marks omitted.)Id. The text of article first, § 4, of the Connecticut constitution providing that citizens of this state are free to speak ‘‘on all subjects, being responsible for the abuse of that liberty’’; (emphasis added); is particularly relevant in the present case. This broad and encompassing language supports the conclusion that the state constitution protects employee speech in the public workplace on the widest possible range of topics, as long as the speech does not undermine the employer’s legitimate interest in maintaining discipline, harmony and efficiency in the workplace.

Daniel Schwartz, over at Connecticut Employment Law Blog, has a terrific analysis of the decision itself.  The Trusz case came after the Garcetti case, which addressed public employee rights and held, as Dan summarizes, “workplace speech that relates to an employee’s official duties is not protected.”  Trusz ignored that limit and the money quote is:

If an employee’s job related speech reflects a mere policy difference with the employer, it is not protected. It is only when the employee’s speech is on a matter of public concern and implicates an employer’s official dishonesty…other serious wrongdoing, or threats to health and safety that the speech trumps the employer’s right to control its own employees and policies.

Not all speech is treated equally.  It must be of public concern and implicate dishonesty, wrongdoing, or threats arising from the employer.  Other speech remains unprotected.  Of course, this really only matters for Connecticut; the rest of the country is unaffected and public employees are governed by Garcetti.

The other matter that was prominently featured in my feed was the firing of Ericka Escalante by Isagenix.  Ms. Escalante posted a photograph of herself picking cotton with the caption “Our inner Nigger came out today”.  As I grew up watching Looney Tunes, I was well familiar with the term “cotton pickin'”, though apparently there is a distinction:  cotton pickin’ itself is not racist, but calling someone a “cotton picker” is.  Isagenix, as a private employer, was fully within its right to terminate Ms. Escalante for her off-the-clock speech on a matter not of public concern. (Also, Isagenix should be commended for paying interns and avoiding the scrutiny of unpaid internships.)

Still, an employer like Isagenix should be sure it conducts a proper investigation, especially if it is a Connecticut employer.  What if the subtext were that Latino interns were treated or paid worse than African-American interns, and Ms. Escalante’s posting was a complaint that, were she African-American, she would be treated better?  Would the racist nature (use of “Nigger” and cotton picker imagery) override her complaint about racism in the workplace (a matter of public concern and serious wrongdoing)?  (Additionally, if it is on behalf of a group of employees, might it also be protected by section 7 of the NLRA?)  Here, there do not appear to be those issues, but employers should still satisfy themselves that they are not facing a suit merely by doing what internet denizens demand or, at least, weigh the risks.