You are Fined Twenty Dollars for Violation of the Verbal Morality Statute.

June 12, 2012

Creating a well-timed and well-phrased barrage of expletives has been around since the beginning of time and those who have mastered the art should be revered as national treasures (George Carlin, rest in peace). Middleborough, Massachusetts does not share this sentiment. Frustrated malcontent Mimi Duphily was fed up with young hooligans dropping the F-bomb near her auto parts store. So she did what any twat rational, intelligent human being would do- Persuade the city council to permit local police to issue fines to individuals cursing in public.

Source 1. Source 2.

The current Middleborough ordinance is based on a previous ordinance criminalizing profanity which is rarely, if ever, enforced. Profanity was bundled with a bunch of other “anti-social” behaviors that are now decriminalized. So instead of being charged with a crime, a person who “verbally accosts” someone in public will receive a $20 fine. At first blush this appears mired in abject stupidity because, well, it is. But the denizens of Middleborough are not alone. In fact, it seems states have always been trying to punish naughty words- both civilly and criminally. Typically, the government will try to stamp out profanity by slapping a fine on some poor schmuck for violating a statute or local ordinance that was enacted before women gained the right to vote and hasn’t been enforced for years if it ever was to begin with.

In 1942, the United States Supreme Court held that “fighting words”— words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace” — are not protected by the First Amendment. Chaplinsky v. New Hampshire, 15 U.S. 568 (1942). Then in 1971, the Nine limited Chaplinsky by explaining that wearing a jacket that said “Fuck the Draft” was a “simple public display” as opposed to a direct insult or intent to incite harm. Cohen v. California, 403 U.S. 15 (1971). In the wake of Cohen and related cases (notably, Street v. New York, 394 U.S. 576 (1969)-the flag burning case) the 1970’s through 1990s saw a smattering of cases testing Cohen with little or no success.

By and large, ordinances punishing profanity are nearly always struck down as overbroad, vague, and punishing constitutionally protected speech. See e.g., City of Baton Rouge v. Ewing, 308 So.2d 776 (La., 1975)(Motion to quash charge for using ‘indecent, vile, and profane language’ granted based on the ground that the ordinance was an unconstitutional violation of the First Amendment); and State v. Authelet, 120 R.I. 42, 385 A.2d 642 (R.I., 1978)(Acquittal for person convicted of profanity statute because under fighting words doctrine profanity was not directed at arresting officer). More recently, Michigan tried it in 2002 in People v. Boomer,655 N.W.2d 255 (Mich. App. 2002). A local sheriff ticketed a guy for violating a profanity statute enacted in 1897 that criminalized the use of profane language in front of women and children. The Court of Appeals threw out the conviction and overturned the law, stating that “allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” The court went on to note that it would be “difficult to conceive of a statute that would be more vague.”

Abject stupidity aside, the Middleborough city council’s decision is problematic not only because it is extremely vague but also because the ticketing officer is given the discretion to determine the gravity of the profanity. Does the officer’s discretion extend to loud music? “I wasn’t cussing officer; it was Jay-Z, why don’t you send him the ticket?” What about holding a sign that reads, “Fuck you, you fucking fuck” (preferably in front of Mimi Duphily’s store)? The council would have done well to read Cohen ([a statute that] reflects an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression), and Street, (“We cannot say that [burning the American Flag on a street corner] was so inherently inflammatory as to come within that small class of ‘fighting words’ which are ‘likely to provoke the average person to retaliation, and thereby cause a breach of the peace”). I am waiting on bated breath to see if this ordinance is actually enforced and I can’t help but wonder what the budget of the city attorney’s office is these days.

But the good news is that now we have a name for the fine-issuing machine in Demolition Man- let’s call it the Duphily.


Iowa bar faces discrimination claim over bar-dancing policy

April 30, 2012

By J. DeVoy

An admittedly portly University of Iowa undergrad, Jordan Ramos, is accusing a local nightclub for refusing to let her dance on the bar.  Simultaneously, if she had danced on the bar, fallen and been injured – she would almost certainly have sued the bar anyway.  Either way, it is a frivolous claim.  And, hopefully, a victory for the establishment, the Union Bar, on a motion to dismiss in either circumstance.

Jordan Ramos was denied the opportunity to stand atop a bar platform and dance for onlookers.  In Las Vegas, nightclubs hire go-go dancers for this specific purpose.  In Iowa City, the bars apparently take what they can get and even allow walk-ons.  Ramos was denied the opportunity to scale the bar and dance atop it in March.  When she returned to the bar in April, she once again was denied access to a dancing platform:

“[A bouncer] said, ‘You’re not pretty enough and you’re pregnant.’ I said, ‘I can tell you with 100 percent certainty that I am not pregnant.’ He then looked at my stomach and said, ‘You obviously are.’ They knew I was not pregnant; it was there way of calling me fat without having to actually say it,” Ramos said. (source)

Surely no woman inside a nightclub has ever lied; nor has pregnancy ever been the subject of untruth.

I do wonder if Ramos and any lawyer pursuing the claim will be sanctioned by a court if it is filed.  The story raises a serious question as to whether she knows she had no claim against the bar:

Ramos approached the Human Rights Commission in Iowa City, but the organization told her they could not do an investigation because size discrimination is not illegal by law, Ramos said. (source)

If Ramos tells her attorney about the commission’s finding and he/she was aware of it at the time of filing suit, there’s a good argument for sanctions against Ramos and even her attorney.  Even if filed pro se, Ramos’ action will force the bar to mount a defense and research why weight discrimination by a private company (even one offering a place of public accommodation) is not unlawful in Iowa – a few thousand dollars that can and should stay in the venue’s hands.

Who emboldened Ramos to do this stupid shit?  Certainly not a lawyer, who like the Human Rights Commission would have done some research and seen that Iowa law does not outlaw size discrimination.  No, it was a social work professor – someone who, true to the maxim, could not do social work, and thus opted to teach it instead:

A social work professor at the University of Iowa told Ramos to return to the bar.

“She told my friends and I to go back and see if the same thing happens and to try to get them to say aloud ‘I am not allowing you up because of your size,’” Ramos said. (source)

Sorry, dipshit; being “othered” is not a cause of action.  This subthread to the story is another vignette justifying my intense dislike for social workers along with teachers as the scylla and charybdis of useless public sector jobs, leading hundreds of millions of dollars in public funds to a useless demise.

Every few years one of these disputes arise, and yet “face policies” persist.  There are several reasons for this, the first being that state laws cannot reasonably adapt to subjective categories of discrimination such as “size” the way they can to objective standards like race, national origin and religion – making it difficult, if not impossible, to outlaw these other forms of discrimination.  Additionally, they work.  Why do people wait for hours and pay hundreds of dollars to get into Marquee, XS or Haze?  Is it because they’re letting John and Jane Q Public in the door with flip-flops, unflattering clothing and an unseemly gait? Hint: No.  Keeping out average people is a way to maintain exclusivity and charge supracompetitive prices for an utterly forgettable experience, converting admission to the venue into intangible social capital.

Unfortunately, the outcome of drunken people dancing on elevated surfaces normally is injury.  While the bar may or may not be liable for the injuries dancers suffer from their activities, it’s easier to avoid litigation that will cost far more than this motion to dismiss to find out the contours of this responsibility.  There are a number of facts that point in both directions, such as bouncers regulating who may or may not dance, as well as the provision of flat surfaces amenable to dancing (and the accepted practice of patrons doing so).  While an imperfect policy, the bouncers did what they could: Screening for people who appeared to have the litheness and balance to dance without causing themselves injury.

Under California law, the venue’s actions arguably would be expressive conduct – the setting, enforcement and expression of a policy put in place for patron safety and bar profitability under Cal. Code of Civil Procedure § 425.16.  A suit based on Ramos’ claims could face dismissal under California’s anti-SLAPP statute, and leave the aggrieved student to pay the bar’s legal fees – as she should.  Iowa, however, has no anti-SLAPP statute at all.

As for Ms. Ramos, perhaps she should go to the gym before the courthouse.  The world is not a nice place, and not every ugly duckling matures into a graceful swan.  I do not complain about “discrimination” at the hands of bodybuilding competitions because I’d be laughed off the stage in spite of the time I spend in the gym.  Her disappointment in life – and I believe there will be lots of it, given her seemingly hypersensitive leap to litigation in this instance – is not actionable.

EDIT: Re-reading the articles, I see there is no claim that a lawsuit has been filed, no reference to a case, and no docket number provided.  Apparently there is no active litigation.  So – why is this news?


Are Topless Photos Worth $50,000,000?

April 18, 2012

The lawyer for Sheriff’s Deputy Krystal Rice seems to think so.  Click here and here to see for yourself.

Nutshell version:  while a cadet, a superior officer convinces her to let him take risque photos, which he promises will only be used for official business in investigating sexual predators.  While she should have been tipped off when he claimed he was storing them on a 3 1/2″ floppy disk in 2004, not 1994, she nevertheless consented.  Lo, and behold! He shared the photos and hit on her.  She claims defamation of character, IIED, and some nebulous respondeat superior breach of duty claim.  Umm, who blew the Title VII sexual harassment deadline?  Or, heck, how about a 1983 claim? I see no immunity defense, so that should have been pleaded.

Maybe the attorney came on late and wants to stay in state court, so I’ll give the benefit of the doubt, but I’m not buying the $50m damages.

Sometimes, I think the courts should create a new defense of “Really? You really thought that? Really?”  Yes, he took advantage of her and acted inappropriately, but she should have seen this coming.


More Righthaven Fun

March 6, 2012

Whoops.


TSA Agents DO have a choice

March 6, 2012

My hatred for the TSA is well documented. Examples here, here, here, and especially here.

For those of you who say “they are just doing their jobs,” well they have a choice. They can quit, like this guy did.


Max Bretos Owes No Apology

February 20, 2012

As the world seems to be aware, the New York Knicks have a new star player named Jeremy Lin.  Not since Patrick Ewing, my fellow Hoya, joined the team have I seen such excitement over a Knickerbocker.  [Full disclosure:  I grew up in NY and I am a Knicks fan.]

Over the weekend, an ESPN writer used the phrase “chink in the armor” for a headline, and Max Bretos used the phrase in a broadcast, both about Jeremy Lin.  It turns out that Jeremy Lin is Asian, and some found this offensive  .  The headline writer was fired and Bretos suspended.  Bretos, against good judgment, has apologized.

 

No apology was necessary or should have been forthcoming from Bretos.

 

It is a race neutral phrase.  Bretos has used it before.  Bretos did not appear to have any racist intent (and the headline writer also denies racism).  The only racists are the ones condemning him.  If you punish someone for speech that is race neutral, yet you find it somehow offensive because of the subject’s race, you are the racist, not the speaker.  ESPN owes Bretos an apology.  So much for judging people on their merits; we are encouraged to judge them on race.  That’s offensive.  If Lin is a chink in the Knicks’ armor, or there is a chink in Lin’s armor, we should be free to say it.


Kids today.

November 9, 2011

Move over Florida!  Looks like Arizonans are overtaking you in the WTF department. Not content with traditional methods of imbibing alcohol, Arizona teens are soaking tampons in Vodka and shoving them in…well you get the idea.    Source.

Apparently, its a quicker high.  They’ve also discovered the beer bong in the ass is quite effective as well.  They call it “butt chugging”.

Baaaa haaaaa haaaa haaaa!!!!!!

Fucking idiots.

 

 

 

 


Nazi-named Kids Taken From Parents

October 27, 2011

Heath and Deborah Campbell named their kids Adolf Hitler Campbell, JoyceLynn Aryan Nation, Honszlynn Hinler Jeannie. They drew national attention when they asked a New Jersey ShopRite to prepare a swastika birthday cake. This, naturally, prompted the state to consider whether the Campbells were fit parents. An appeals court today held that they should not regain custody of their children. (source)

No love for nazis around here, and I certainly do not think that reproduction should be a right. The Campbells, pretty clearly by my standards, would be good candidates for forced sterilization. Not because of their political views, but just because the world population has now hit 7 billion, and the vast majority of them are incredibly stupid and causing the devolution of the species into a feces-slinging, filth wallowing sack of protoplasm — Homo Walmartus. The Campbells are a good example of this, and in a perfect world they would not have been permitted to spawn.

But, I am still deeply troubled that an existing family can be dismantled by the state at all — let alone because the parents have deeply unpopular political views. The article on the Campbells states that the court found “sufficient evidence of abuse or neglect existed because of domestic violence in the home.” (source) It seems, from reports about the family, that the home is completely screwed up beyond all recognition, but it certainly seems that they were targeted for their views. Good people may say “good, nazis suck.” But, when we make exceptions to general principles because we hate nazis, we’ve opened the door to the second exception, and from there the third, and so on.


PETA must be trolling us

October 26, 2011

Now I am convinced that PETA must be the most well-organized practical joke in the world. They are suing Sea World for violating the 13th Amendment. The theory? Keeping killer whales in captivity is slavery. (source)

If this files, I’m bringing a THIRD Amendment complaint against the U.S. Government. After all, they quarter troops in the homes of squirrels, bears, and owls every time they set up camp in the woods. Ordinances that tell worthless trash fuckheads that their dogs need to shut the fuck up? That there must be a violation of the dog’s First Amendment rights. PETA’s campaign to spay and neuter pets? If animals have constitutional rights, then that campaign starts sounding an awful lot like something that isn’t exactly popular. Of course, maybe the converse would be true — and if we can spay dogs and cats, we ought to be able to spay and neuter the non productive members of society — I’m cool with that.

You ever see those “protect your right to arm bears” bumper stickers? They aren’t just ironic, bears would have Second Amendment rights — and so would monkeys!

H/T: Venkat

Disclaimer, I do not support monkeys having weapons. Despite what Popehat has said (libelously I might add) about me — that I represent both sides in the great ape war — I am firmly with my human brethren.


More Righthaven Fun – Urgent Appeal

October 17, 2011

Since my firm is handling this litigation, I will keep my comments somewhat neutral.

Our old friend, Righthaven was ordered to pay $34,000 to a guy they wrongly sued. Righthaven didn’t pay. Righthaven begged the court to excuse it from paying. The Court told it to pay or it post a bond for that amount. Righthaven filed an “urgent” motion with the 9th Circuit Court of Appeals. (here)

We, naturally, opposed the urgent motion. Opposition here.

I need not comment where others have done such a good job.

Ken at Popehat gives us an homage to “A Few Good Men,” with Oh, Well, If It’s An URGENT Motion, That’s TOTALLY Different.

Steve Green at Vegas Inc. provides a less opinionated, but very informative article. Righthaven facing fraudulent transfer claim.

We jump back over to the opinionated side of the coin with Mike Masnick, over at Techdirt, and his Righthaven Still Trying To Avoid Paying Any Legal Fees Of Those It Illegally Sued.


Can Connecticut take porn from its prisoners? Should it?

October 17, 2011

Many concerns come to mind when someone thinks about spending time in prison.  First and foremost, there is always the risk of being shanked with a very, very sharp toothbrush.  For the financial criminals, there is the distinct shame of being bested by Bernie Madoff in a game of badminton.  This is to say nothing for the fable of being made someone’s bitch. But what about a lack of porn?

Connecticut’s prisons were very tolerant of pornography in its prisons until recently. (source.)  Now that the Connecticut prisons are pulling the plug on this entertainment, the inmates are threatening to sue.  This is not isolated to the Northeast, either, as a Michigan man filed suit over a guard’s refusal to provide him with pornography, claiming the guard’s action violated his constitutional rights. (source.)

Not to put too dull of an edge on it, but prisons can basically do what they please to inmates. Correctional facilities have staked out the lowest standard of review available under law.  Prisons can enact policies that run counter to prisoners’ First Amendment rights as long as the regulations are rationally related to a legitimate penological interest, a standard that has consistently led to judicial affirmation of anti-pornography policies in the big house. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); Smith v. Dept. of Corrections, 219 Or. App. 192, 198, 182 P.3d 250 (2008).  In contrast, the next-lowest standard of review – and generally the lowest for non-prisoners – is rational basis review, where a government action must be rationally related to a legitimate governmental interest to be constitutional (and intended as such – no post hoc analysis is allowed).

Courts review a prison’s limitation on the inmates’ First Amendment rights by using the three-prong reasonableness test enunciated in Thornburgh:

  1. whether the governmental objective underlying the regulations at issue is legitimate and neutral, and whether the regulations are rationally related to that objective;
  2. whether there are alternative means of exercising the right that remain open to prison inmates at de minimis cost to penological interests; and
  3. the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison

490 U.S. at 414-18 (citing Turner v. Safley, 482 U.S. 78, 85 (1987)); Owen v. Wille, 117 F.3d 1235, 1237 (11th Cir. 1997).

As seem in prong 3, rehabilitation interests of prisoners are not all that may be, or is, considered when evaluating these policies.  Courts have found that preventing the harassment of employees who work in the prison is a valid justification for a limitation on sexually explicit materials among inmates. See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999).

The reach of these policies has been broad. In Washington v. Werholtz, 2008 WL 4998689 (Kan. App. 2008), the Kansas appellate court upheld a policy that banned all sexually explicit material, which included any display, actual or simulated, or description of a variety of acts, including intercourse and masturbation.  While such a policy will cover Larry Flynt’s oeuvre, it will also ban trashy romance novels and some important works of fiction, such as L’ Histoire d’ O.

As long ago as 1989, Iowa grappled with this issue, which made its way into the New York Times.  Under Iowa’s policy, only inmates who had been psychologically screened and approved to view the material – with prisoners whom prison psychologists believed would be obsessed with the material being denied access to it. (source.)  The policy drew a bizarre distinction between how various forms of pornography were treated; inmates who could view porn were allowed to keep “soft-core” content in their cells, while hardcore content was only viewable in a well-supervised reading room.  One then-inmate complained that the reading room was impossible to enjoy under this policy, as the guards filed through the area as if it were a freeway – denying him any privacy in which to evaluate the materials.

In 2006, Indiana instituted a similar policy.  The Indiana Commissioner of the Department of Corrections previously explained that state’s pornography prohibition as something in the interest of both inmates and facility employees.  The Commissioner’s explanation appeals to stay at home moms everywhere, exempting medical and anthropological instances of nudity, but adopts an “I know it when I see it” definition of pornography. (source.)  Ultimately, Indiana’s restrictions amount to subjective, content-based limitations determined by what individuals find stimulating, as opposed to some objective standard by which the content can be evaluated, such as penetration. (Id.)

I strongly disagree with these policies.  While I have not been incarcerated in prison, I question the harmful effects pornography can have on its inmates, and am deeply troubled by the broad sweep that these policies can have – swallowing up non-explicit materials that have considerable value.  While prison exists to deny agency to its inmates, one cannot help but wonder if these policies beg the question about pornography’s supposed harmfulness.  In fact, research shows that more porn = less rape.  While there are other covariants at play, as everyone who has read Freakonomics knows, the results of isolating pornography and analyzing the porn-rape relationship have been in porn’s favor.  Beyond rape, the gratification of pornography may replace or inhibit other criminal or undesired activities as well.  In short, the premises that prison guards’ penological interests rest upon – that porn is bad and makes people do bad things – are beginning to be proven as bullshit.

When I debated the Indiana commissioner on Fox News, his rationale was to “promote public safety in Indiana.” Give me a break. Is Mary Homemaker “safer” because a convict doesn’t have a porn mag? He also stated that he wanted to see his prisoners devote their time to more constructive pursuits. This being Fox, I didn’t get a chance to cross examine him, but I presume he didn’t mean ass-raping one another. The biggest load of bullshit he slung was the meme that prisons need to ban porn because they want to promote a non-harassing environment for prison guards.

Seriously? You want to be a prison guard, but you can’t handle the sight of a guy reading Hustler? I got news for you if you’re “offended” by the sight of a guy jacking it to porn — you can’t handle being a security guard at a candy store, let alone being a prison guard.

The rationale for these bans clearly has nothing to do with “safety,” and it has nothing to do with the feminist-imposed “hostile work environment” bullshit. It has to do with an erotophobic attitude, fostered by superstition, and then fertilized with the crap of cheap political points.

Nonetheless, prisons have erected a high wall around themselves, their guards, and their asinine policies.  In a way, it is logically consistent for an enterprise that exists largely as a consequence of unjust and counterproductive policies such as the war on drugs to have special legal protection allowing it to further screw the people entrusted to its care. See Thornburgh, 490 U.S. at 407 (describing moden prison administration as an “inordinately difficult undertaking”).  As such, challenged to these policies, however well deserved and meritorious they are, seldom succeed.


This is COLUMBUS DAY!!!

October 7, 2011
Pick another day, Crybabies!!!!

Pick another day, Crybabies!!!!

This is COLUMBUS DAY.

I’d like to invite anyone whose name ends with a vowel (Persians excluded) to raise their hands, extend their middle fingers, and flip off the Native Americans, the hippies, and everyone else in the International Association of Crybabies who has a piss and a moan about Christopher Columbus.

This is not “indigenous people’s day,” it is not “la dia de la raza” and it isn’t frigging “wear a beret, listen to Joni Mitchell, and wear patchoulli day.”

To the “Native Americans” who have a beef with Columbus Day — suck it. First off, it isn’t as though you sprang from the goddamned earth in Foxwoods. You’re immigrants too. You just wandered across ice to get here. We took boats. You were here first? I give a fuck? In fact, you’re at best the third wave of “Indians” to get here. What happened to the other two? You fuckers killed them. So get off your high horses or whatever you were riding before the Spanish brought horses here.

There was a war. You lost. That’s how it works. That’s why the Celts wound up living in Ireland, Scotland, and every shitty rain-soaked crag in which they could cling to life — because they lost wars. That’s why nobody speaks Gaulish or whatever Vercingetorix spoke. They lost the damn war.

Sorry you crybaby fucks. That’s what happens when you LOSE A WAR. Trust me, the Italians know how you feel. We suck at wars. We used to be awesome at them. That ended some time around 400 A.D. Since then, the Italians are the Chicago Cubs of warfare. (But you’re the Padres)

Tons of us came here to get away from the consequences of being really shitty at fighting wars. It worked out for us. We gave the world the thermometer, barometer, piano, electric battery, nitroglycerin, eyeglasses, the radio, and The Telephone.

We turned ghettoes into neighborhoods where people would kill to have a studio apartment. (Yes, I know that is the Gays’ job now, but it used to be ours) We taught the mayonnaise-faces what good food tastes like. We gave America 39 Medal of Honor recipients. We gave America Filippo Mazzei, John Basilone, Frank Sinatra, Tony Bennett, Lawrence Ferlinghetti, Bruce Springsteen, Vince Lombardi, and Gino the Ginny. You know what their middle names are? “Fuckin” that’s what.

We gave America its NAME for chrissakes.

You know what America gave us in exchange? A holiday. Good enough for us.

And you know what? America didn’t even give it to us, we took it. You know why? Because at the turn of the last century, Italians and other Catholic immigrants weren’t exactly what you would call “welcome” here. Yes, they used to lynch Italians too. So, the Catholics and Italians started organizations like the Knights of Columbus as a way to band together against the bigotry they encountered. They thought that by choosing Christopher Columbus as their symbol, it would show that if an Italian “discovered” America, then as Italians, they belonged here.

So you assholes can run your little left-wing crybaby agenda on any one of the 364 other days. I don’t give a damn if you managed to get every crap stained woodstock love child, fucking Peruvian flute band, and liberal academic to weep with you as you look at the pollution on the highway. This is our holiday, and you can kiss my ass if you have a problem with it.

Don’t get me wrong. I generally have nothing but love for my Native American brothers and sisters. (although obviously not on October 12) I think that they got a crappy deal. I’m with them when they get pissed off at the completely racist Cleveland Indians logo, and I don’t think you should call a team “The Redskins” if you wouldn’t call it “The Jigaboos” (yes, its the same damn thing). I think that America DOES owe the Native Americans a little something — and it ought to be something better than the right to build casinos. We owe them respect, help, and dammit, we ought to put a hell of a lot of effort into preserving their cultures.

Shaddap about Columbus Day or I'll give you somethin' to really cry about!

This guy is actually SICILIAN.

But you know what, Tonto? If you have a beef, its with the British, the French, the Spanish, and the white-bread assholes who kicked your asses. Lord Jeffrey Amherst gave you the smallpox infected blankets, not Al Pacino. You picked a fight with the wrong people, because the Italians never did jack shit to you. So get the fuck off my holiday.

Personally, I don’t know why we’re all down on the Conquistadors anyhow. Leonidas killed 20,000 ill-equipped, poorly trained, forced-to-fight losers and we call him a hero for the ages. A couple hundred Spaniards kick the crap out of an entire empire of human sacrificing, child-raping, savage nutbags who make Jerry Falwell look sane, and we think it was an awful sin?

Columbus sailed the ocean blue in 1492 and then your lives started to suck. Boo hoo frigging hoo. The Conquistadors followed Columbus and took all the gold. Yeah that sucks. If the Mayans had seen the Spanish Inquisition, they’d have called it amateur hour. I got news for you, your lives sucked before Columbus got here.

You know what else sucks? When you screw with our holiday.

So here’s the deal. Take out the calendar. No, not that stupid Mayan one that is going to be worthless next year, the REAL calendar.

You want a holiday? Be my guest. Pick any day on the calendar except October 31, February 14, March 17, January 1, or July 4. I don’t even care if you want Christmas, but picking THAT will be a marketing nightmare.

You know which day would be an awesome Indigenous People’s Day? How about the Friday after Thanksgiving? Most of us have the day off anyhow. The pilgrims wouldn’t have survived without your help. So, the day after Thanksgiving, as we’re all resting up and glad that we have four days in a row off, we can thank you. Thank you for saving the Pilgrims’ asses. Thank you for basketball, and chewing gum, and chocolate. Thank you for potatoes and tomatoes. Thank you for the windtalkers. Thank you for really cool art. Thank you for whatever the hell else you did that was worthwhile. Thank you for not stabbing every person in a Cleveland Indians shirt. Thank you for not setting off bombs at Redskins games. Thank you for being pretty damn cool about one of the most royal screw jobs in the history of mankind.

But most of all, thank you for quitting your damn bitching about Columbus Day.


Toilet Law School Files Feces Defamation Suit

September 30, 2011

Thomas M. Cooley Law School Diplomas - Take One!


By Marc J. Randazza

I’m not much of a prestige whore, but I’m not blind to the reality that Thomas M. Cooley Law School is a standalone punchline within the legal profession.  I’m familiar with its absurdly large class sizes, its questionable practice of culling the bottom few percent of its students each year to ensure high enough bar passage rates to maintain its tenuous grasp on ABA accreditation, and its bizarre self-ranking system that places an inordinate emphasis on library seating capacity.  After all, “[t]o study, a student needs a place to sit”! (source at xiv.)  Also, if the NFL based its draft selections on US News-style rankings – if they applied to football programs – only 30% of NFL quarterbacks would be on a roster!  Think that sounds like Bullshit?  It’s a major rationale for Cooley’s student recruiting.  Still confused?  Welcome to Cooley Law.

Cooley is an abysmal institution. And, as a blind squirrel eventually finds a nut, and a broken clock is right twice a day, Cooley does accidentally drop decent lawyers into the system on occasion. However, the general public’s esteem for lawyers would improve above cockroaches and approach Nigerian e-mail scammers if this dump were to close its doors — at all four(!) campuses.

And as evidence that Cooley really is the Righthaven of law schools — I present to you this lawsuit it filed against four critical John Doe defendants is even worse.

Naturally, those who climbed up out of the Cooley garbage disposal, only to find themselves with a mortgage-sized chunk of non-dischargable debt and the indelible resume stain of a Cooley law degree, were a bit pissed at the school.  So, a number of people – presumably alumni, former students, or even current ones – began posting at a blog titled “THOMAS M. COOLEY LAW SCHOOL SCAM.”  This is the basis for Cooley’s lawsuit.

If the four defendants had asked me for pre-publication review, I would have advised them against making some of their statements without presenting supporting evidence.  But that poses an even larger issue for Cooley: What if the people it’s suing for claiming the law school’s employees conceal their identities, and are on the take from financial institutions, are correct?  Is Cooley ready for discovery relating to the alleged investigation of “serious Title IV violations”?

Plain and simple, this is a SLAPP suit.  If Cooley were in California, Oregon, Texas, or DC, the Doe defendants would be looking at a healthy payday from Cooley, and would have pro bono representation lined up around the block.  Alternatively, if Rep. Steve Cohen had his way in enacting a federal anti-SLAPP statute, the defendants would have that protection at home.  But because this action is pending in Michigan, the defendants have no such recourse.  Hopefully they won’t have to retain Cooley grads to defend them!

It’s out of character for me to dump on law schools and their graduates out of prestige concerns.  But Cooley truly is on a level all its own in embodying all that is wrong with legal education.  At the very beginning of its Complaint, Cooley brags about having the largest enrollment and four campuses, as if this is a mark of accomplishment.  Harvard and Georgetown have large law school enrollments – but they also send many of their students, and likely the preponderance of them, onto gainful employment – or employment period.  

Can Cooley say that more than half of its graduates in any given year are employed in the law, or at all?  If someone is accusing your nationally mocked law school of being a scam, perhaps bringing a lawsuit over such allegations isn’t the best way to disprove them.  The louder one screams about something, the more likely it is to be the truth – and allegations of “lur[ing]” students to a school so they may be “prey[ed]” upon isn’t something that should be dignified, let alone potentially substantiated, with a lawsuit — if it’s untrue.

Even if the allegations against Cooley are false — so what?  They’re anonymous comments on a blog that are not going to be heralded as being immutable reality.  If the comments are true, then this is the dumbest thing Cooley could ever do.  Considering how many members of Cooley’s faculty are school alumni, though, is it any surprise nobody advised the school otherwise?  

This lawsuit is a heinous crime against free expression.  May an even worse pox than the one currently afflicting it befall that institution for turning the courts into an instrument to beat down free speech and censor the reality that everyone – including many jobless and hopeless Cooley alumni – knows to be true: Cooley sucks.

Read the Complaint.


Sarah Palin Threatens a SLAPP Suit. Stupid? You Betcha!

September 29, 2011

By Marc Randazza

Sarah Palin always seems to be talking about families.  Despite bashing that door open, she takes such umbrage when anyone mentions her own.  So, When writer Joe McGinniss starts digging for facts and sources to complete his book “The Rogue: Searching for the Real Sarah Palin,” what does Sarah do?  She lawyers up and threatens to sue… you betcha!

If this strikes you as unseemly – a former governor and vice presidential candidate who clings to whatever relevance she has left by making noise about seeking the presidency and touting her unfortunately named family, threatening to sue for investigative journalism about her background – then congratulations: You’re not a mendacious piece of shit.

The United States Constitution is quite clear on this issue: Public figures must prove actual malice (i.e., knowing falsity or a reckless disregard for the truth) to prevail in a defamation action. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).  This is a particularly applicable when the public figure is also a politician, and the speech addresses matters of public concern – namely someone’s fitness for office and prior conduct when wielding (and abusing) executive power. See Boos v. Barry, 485 U.S. 312 (1988); Connick v. Myers, 461 U.S. 138 (1983).  This kind of political speech is the most highly protected by the constitution and the very lifeblood of a functioning democracy. Consider this quote from the “God Hates Fags” case.

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011), citing Tex. v. Johnson, 491 U.S. 397, 414 (1989).

If the Constitution provides such strong protection for the Westboro Baptist Church spewing its stupidity and hate, is there any doubt about reporting on a politician’s fitness for office? Of course, but there is no need to invoke the highest ambitions of the Constitution and the lofty rhetoric that accompanies them.  Sarah Palin is a bully, and not a very smart one, so we’ll keep this in terms she and any her attorney can understand.  Her legal threats can be debased by the law within Alaska’s boundaries, without having to look outside the state – to Russia or elsewhere.

Alaska is no stranger to the public figure doctrine. Lowell v. Hayes, 117 P.3d 745, 751 (Alaska 2005); Mt. Juneau Enters., Inc. v. Juneau Empire, 891 P.2d 829, 834-35 (Alaska 1995).  In Lowell, the plaintiff sought declaratory relief determining that the defendant had defamed him, arguing that the actual malice standard would not apply to such an action — as it had only been used in actual defamation claims in the past.  The Alaska Supreme Court soundly rejected this argument. Lowell, 117 P.3d at 757.

In Mount Juneau, the Alaska Supreme Court adopted the test used to determine whether a plaintiff is a public figure in Gertz v. Robert Welch, Incorporated, 418 U.S. 323, 345, 351 (1974).  The Mount Juneau court articulated its criteria thusly:

For the most part those who attain this [public figure] status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

[…]

[The public figure] designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby become a public figure for a limited range of issues.

So let’s go down the checklist.  Roles of especial prominence in the affairs of society?  Former governor, former vice presidential candidate, and on-again, off-again presidential hopeful. Check.  Occupy positions of “such persuasive power and influence” that she is a public figure for all purposes?  I can escape her state, but cannot avoid her on television, in the bookstore or in the hackneyed catchphrases of soccer moms.  Sadly, that’s power – and the worst kind. Check.  Thrusting (heh) herself to the forefront of public controversies? CHECK CHECK CHECKITY CHECK.  That’s exactly what got her here – and now that she can’t get her and her idiot kids to relinquish the spotlight, she thinks she can sue it away.  Not quite, Sarah.

Whether by the designs of others or her own half-witted ambition, Palin is undoubtedly a public figure under Alaska law.  And while the speech promulgated by McGinniss and other investigators is of interest to everyone, it is of particular interest to the poor souls known as Alaskans, as so much of Palin’s scrutinized past relates to her mismanagement of the state.

This is to say nothing of the Streisand Effect, though that ship likely has sailed.  If there is anything we don’t know about Sarah Palin, we’re going to find out, as she carries the burden of proving the statements about her are false. Mt. Juneau, 891 P.2d at 835; see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 11-17 (1990).  If Palin cannot prove that the statements she objects to in the book are false, she’s going to have a lot of problems trying to tamp them down in the future – and, indeed, her failed defamation crusade may open new investigations and speculation about the half-term former governess.

Indeed, even under Alaska’s laws, Palin has a steep hill to climb:

Actual malice involves a subjective inquiry into a speaker’s intent — specifically, whether he knew that his defamatory statement was false or recklessly disregarded the possibility of its falsity.  A plaintiff must prove by clear and convincing evidence that the declarant acted with knowledge of the statement’s falsity or in reckless disregard of the statement’s truth or falsity.  To show that a declarant recklessly disregarded the truth or falsity of published material, a plaintiff must show that the declarant entertained serious doubts as to the truth of the publication.  A defendant’s failure to make a prior investigation into the accuracy of published statements does not, by itself, constitute actual malice.  Neither does a defendant’s incorrect usage of a key term or word whose meaning is reasonably disputed.  Thus, the actual malice standard is a difficult one to satisfy.

Lowell, 117 P.3d at 751 (internal quotations and citations omitted).

In short, it looks like Palin’s threatened litigation is about as viable as her presidential campaign.  But, God bless her misguided heart, don’t let that stop her.  If Alaska had an anti-SLAPP statute, I would not merely refrain from discouraging this litigation, I’d dare Palin to bring it.


University Pig Decides She Will Not Tolerate a Challenge to her Authoritah

September 26, 2011

A professor at University of Wiconsin – Stout, put up a poster from the sci fi series, Firefly. The poster had some macho shit on it about where and when the character would kill one of his enemies. Some worthless fuckhead in the school’s administration (Lisa Walter, the chief of police) lost her shit, and hadthe cops come tear down the poster.

Miller was contacted by Lisa Walter, the chief of police/director of parking services, and informed that “it is unacceptable to have postings such as this that refer to killing.” She also warned the astounded professor that any future such posts would be removed and would cause him to be charged with disorderly conduct. (source)

So the professor put up this poster in its place:

And so Chief Walter said “ok, point taken,” and gave the professor back his original poster, and everyone learned a nice lesson about the First Amendment.

NAH, Just kidding.

Chief Walter decided that disobedience of her authoritah would not be tolerated, so she sent cops back to the professor’s classroom to tear down that poster too.

with Chief Walter claiming this time that the problem was that the poster “depicts violence and mentions violence or death.” She went on to say that “it is believed that this posting also has a reasonable expectation that it will cause a material and/or substantial disruption of school activities and/or be constituted as a threat.” Seriously. (source)

As if the Victim Studies departments on college campuses had not done enough damage to free expression, here come the TSA agent rejects. Fortunately, the Foundation for Individual Rights in Education is on the case.