That’s It! You’re Fired! And no, this isn’t retaliation. Is it?

February 11, 2016

by Jay Marshall Wolman

The law and business are never as neat and clean as you might hope.  One of the toughest problems is when two things are happening around the same time and they start to implicate each other.

In law, we have the maxim “post hoc ergo propter hoc” (after this, therefore because of this) as a known logical fallacy; correlation does not imply causation.  The Fifth Circuit wrote:  “courts must not allow evidence of temporal correlation to serve as a substitute for science-based causation evidence.”  Huss v. Gayden, 571 F.3d 442, 459 (5th Cir.  2009)(relating to a claim that a medication caused cardiomyopathy).

In law, we also have a thing called a “temporal nexus”.  In Star Trek: Generations, a plot device was the “Nexus”, a temporal anomaly that permitted Captains Kirk and Picard to meet.  It is used, for example, to prove unlawful retaliation after engaging in protected activity.  See, e.g., Mickey v. Zeidler Tool and Die Co., 516 F.3d 516 (6th Cir. 2008).  A good summary of that case is here.    How can law have both?  Not easily.

Let’s say your employee, Pat, suffers an injury at work while trying to avoid a supervisor’s sexual advances and then files a workers’ compensation claim, files an OSHA complaint, files an EEOC complaint over the harassment, and seeks a reasonable accommodation.  And, let’s say Pat’s attorney also gets the idea Pat was misclassified, so FLSA claims are brought as well.  Disciplining, including firing, an employee for doing any of those things will typically constitute unlawful retaliation.  However, during the course of your investigation, you determine that Pat’s supervisor, Jan, admitted to the conduct, but that it was because Jan saw an opportunity to take advantage of Pat because Pat was going to be fired for poor performance/breaking rules/a real legitimate cause and hoped to trade sex for keeping the job.

Pat deserves to be fired.  [So does Jan.]  How do you fire Pat now without facing a host of additional charges?

Document. Document. Document.  And cross your fingers.

If Pat truly was to be fired, there should be records of whatever Pat did or didn’t do.  If there aren’t, get witness statements.  If you can’t get those, perhaps rethink firing Pat until you have new cause:  it might not be desirable to keep Pat, knowing what you know, but it may be worth the risk.  Pat also knows the jig is up, so perhaps it won’t happen again (on the flip side, Pat may feel overconfident, extra-protected in light of the retaliation claim prospects).

If you don’t have proof, change your procedures to ensure you can prove such a thing going forward.  However, you should ensure you are complying with state law privacy requirements.

If you do have proof, there are two options:  fire Pat now, and invite a temporal nexus retaliation claim, or wait to fire Pat and argue that your delay is not evidence that Pat’s misconduct wasn’t really worthy of termination (while you invoke the maxim “post hoc ergo propter hoc”).  And make sure the reason for termination is given and make it known you can prove it.

What if the misconduct happens after the employee engages in protected activity?  As Zeidler Tool demonstrates, the best thing is to hope that the misconduct isn’t immediately after the protected activity occurs.  The more time passes, the less that the temporal nexus alone will be sufficient proof of retaliation.

And, of course, review your employment policies, insurance policies, and severance agreements, as those will certainly come to bear.

 


Super Bowling for Dollars

February 5, 2016

by Jay Marshall Wolman

Yesterday, on Twitter (yes, I’m on Twitter @wolmanj), I shared an article by Mike Masnick from 2012 regarding the myth of the Big Game/Super Bowl nomenclature.  It seems the issue is still a popular one on Techdirt.

Here’s the thing–the 9th Circuit laid out a nice test for nominative fair use:

First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 306 (9th Cir. 1992).  “The Big Game” can mean any other championship.  Thus, the first test is met.  The second test is also met–it only uses two words.  Finally, so long as you are not suggesting sponsorship, it is okay to say “Come to Gary’s Olde Towne Tavern to watch the Super Bowl.”

Everybody pretty much knows using “Super Bowl” is nominative fair use in the above context.  Yet, the NFL seems to knowingly flout this right and send improper cease-and-desist letters.  A suit by the NFL would not likely be successful and probably frivolous.  Thus, it could be fair to say that by claiming Gary’s is infringing, despite nominative fair use, the NFL would be making a blatant misrepresentation.   Gary’s could then potentially sue the NFL for violation of state mini-FTC acts which prohibit unfair and deceptive trade practices.  These acts typically provide for attorney fees upon success, sending a message beyond just a declaratory judgment.  Further, if the FTC wanted, it could probably pursue the NFL for these overreaching practices.

Just as copyright holders must consider fair use before sending a DMCA takedown notice, so too should trademark owners.  [I haven’t researched whether anyone has ever brought a state mini-FTC act claim over an improper cease-and-desist letter, so feel free to share.]


Why Are You Giving Fired Employees 21 Days to Consider Severance?

February 4, 2016

by Jay Marshall Wolman

Plenty of employers let go of an employee and give them some prefabricated separation/severance agreement, hoping to pay the now disgruntled former employee to go gentle into that goodnight.  They go online and download a model or ask their payroll company or just use what they used last time, without considering what’s in it.

From time to time, it is good to review and understand what is in these agreements.  Are you protecting against unknown workplace injury claims?  Are you ensuring that your employee won’t try to use your trade secrets against you?  Have you thought about references and nondisparagement?  Does it contain any language the EEOC might find problematic?

Beyond these issues, however, is one that pops up regularly:  the 21/7 (or, worse, 45/7) provision.  These provisions permit the former employee 21 days to review a separation agreement and, then, up to seven days to revoke it, even after they signed it.

Why on Earth would you want to drag out the process or let the employee back out?

The reason provisions like this have crept into separation agreements is because of overbroad releases.  Lawyers for employers want to make sure their client are protected from every conceivable claim an employee might bring.  So, one of the claims released is potential claims under the Age Discrimination in Employment Act (ADEA).  This act prohibits discrimination on the basis of age.  Unlike any other release, another Federal law, the Older Workers Benefit Protection Act (OWBPA), requires that, for the waiver to be effective, it must give 21 days to consider (45 days if part of a reduction in force) and 7 days to revoke.  But, the ADEA only applies to workers 40 and over.

So, when you want to fire the 23 year old, 35 year old, etc., why do you care if they waive claims under the ADEA?  They aren’t eligible to bring them in the first place.  Even with older workers, you might want to weigh the risks of an age claim (even an unsuccessful one) against the benefit of a quick resolution of the case.  For example, if you really think that a sexual harassment claim might be coming, not age, a quicker settlement helps you close the books, rather than letting the employee get second thoughts once he/she has been a few weeks out of work.  And careless negotiation over material terms may even  restart the 21 day clock with each new offer.

Just because it looks like a standard separation agreement doesn’t mean you should use it.

 

 

 


Sono Stato a Roma Ma Non Ho Visto Un Cazzo! (I was in Rome and I didn’t see dick!)

January 30, 2016

Screen Shot 2016-01-29 at 8.06.56 AMIranian president, Hassan Rouhani, visited Rome recently, and in order to avoid offending his delicate sensibilities, the Italians covered up all the dicks and tits on the statues for him. (fonte) (source)

It probably comes as no surprise to any readers that this bothers me.

Remember when John Ashcroft couldn't handle this?  How about Obama?

Remember when John Ashcroft couldn’t handle this? How about Obama?

It isn’t that I’m against thawing Iran’s relationship with the West. And, maybe that requires us to be a little sensitive — you know, like maybe don’t serve Carbonara at dinner, or don’t offer the guy a caffè corretto. But, to censor some of Italy’s most magnificent art, because this guy might be offended?

But, for all I know, he might have thought “what do these fucks think, I can’t handle the sight of a plaster dick? We stone motherfuckers to death were I come from, Mario. I can handle public executions. I can handle public whippings. What you call “gang rape,” we call “gently making love.” Motherfucker, I made it through the Shah and the Ayatollah. I can handle some stone tits.”

I dunno, or maybe he thought “aww, for FUCKS SAKE… I came all this way, hoping to fill my mental spank bank. I gotta go every fucking day where I’m lucky if I get to see a woman’s HAIR. I’m all excited to see some tits, even if they’re made of stone, and these assholes cover the shit up… and not even with a burkha, with a FUCKING BOX! Jesus, I hate these fucking people.”

But, lets presume that he actually appreciated that the Italians decided to protect him from granite ball sacks. You never know, it might have burned his eyes. Although, if the Pope can handle this shit, at least in modern times, then I think that Mr. Rouhani can tolerate walking past a few less-than-clothed statues.

I get a case of the red ass from this from two different perspectives. On one hand, fuck Rouhani. When in Rome, you look at stone nudity. The West (except for the United States) grew out of this bullshit more than a century ago. Yes, a few hundred years ago, some blue-balled fuckhead tight asses at the Vatican either smashed off the dicks of a bunch of the statues or covered them with leaves. But, after that Taliban-esque episode, Western culture sort-of grew up a bit. At the very least, we no longer destroy our patrimony because it might make us clutch our pearls or offend an imaginary friend.

Covering the statutes, whether out of respect or by request, sends the wrong damn message.

I’m not just sticking my finger in the Italians’ eye here. Who can forget the episode when George W. Bush’s attorney general John Ashcroft lost his shit that Lady Justice had a pair of nice tits? Probably a lot less people forgot that than those who forgot that the Obama administration did the same thing. Yep, the most powerful nation in history is scared of sculpted boobs. So, we are no better.

Meanwhile, in Europe, you see tits on prime time TV, you see them everywhere. Tits. Tits. Tits. It is the Garden of Happy Boobies, everywhere, everyday. Why in the hell should that change because some guy in a dress shows up, much less a guy in a dress who represents a nation that has a somewhat spotty record on human rights? Stone women to death, just don’t make me see her tits! That might offend the prophet!

The message this sends, no matter where it is done, is precisely wrong. I think it is fucked up when Americans do it, covering up tits, whether they be on lady justice or on Joanna Angel, in the name of modesty. But, in Europe, to avoid offending a conservative Muslim leader?

No way.

Would a Western leader go to any non-western country and expect them to cover up their art? Would we go to Iran and expect them to serve bacon and booze?

We live in a world where extremists destroyed priceless cultural relics in the name of their particular brand of Islam. The Bamiyan Buddha Statues stood for 1700 years, until the Taliban blew them up in the name of Islam. Islamic extremists burned Tripoli’s Al-Saeh library to retaliate for a mere pamphlet. Daesh destroyed the Temple of Baalshamin in Palmyra. In fact, Daesh is on a rampage to destroy all cultural heritage that doesn’t meet with its approval.

It is not fair to say that Islam itself is at war with cultural patrimony. Muslim heroes died trying to save artifacts in Palmyra. And, if you go back far enough in history, it was the Muslims saving cultural heritage from the Christians when they lost their minds about this kind of thing. Nevertheless, there is a brand of Islamic extremism, which has begun to infiltrate Europe, which would be delighted to see the Vatican museums, the Louvre, and the Uffizi Gallery reduced to rubble.

This cowardly cover-up gives aid and comfort to the enemy.

I admit, covering a few statues, temporarily, is hardly the same as destroying priceless artifacts. But it is a symptom of the same disease — “erotophobia.” And if we yield to it, even in this small way, we let the camel’s nose in the tent. (This is partially the point in my latest law review article)

Personally, I’d love to wag a dick in this guy’s face for the sole purpose of insulting Iran’s fucked up sensibilities. Although, I do think we ought to be better friends with the Iranians, in general. But, that’s a rant for another day.

But, lets set aside the Randazza school of diplomatic protocol, where we just keep a bucket of dicks around to throw at these kinds of people. Lets just look at it somewhat sensibly. Would this really have offended him? If so, take him somewhere else. Take him to the Colosseum and tell him about how many people were publicly killed there. He’s the president of Iran, that would probably give him an erection more than a pair of stone tits.

We should stand against censorship and erotophobia every time they raise their heads. If we yield, even in this seemingly small and temporary way, we give credit, credence, and weight to those who say that there is “something wrong” with erotic expression. We give credence to the notion that there is something wrong with tits and cocks, and that there is nothing wrong with censorship.

Will this really be the end of it? Perhaps. Or, could it go further? At what point will we do this for other leaders? Guys who are rich enough that we want to keep in their good graces? (UPDATE: Yes, apparently so) Muslim day at the museum? What about other belief systems? What about when there is a group of feminists visiting? Do you think that a Smith College women’s studies class could walk through an art museum in a few years without some professor who looks like Benny Hill with tits squealing “can we get some muscle over here?????” to get the statues smashed to bits, lest they “trigger” some little snowflake?

No, we need to resist this kind of thing… and I mean everyone, everywhere, every fucking time.

If the Italians were really concerned about this, the best way to deal with it would be to, perhaps, give him a “trigger warning” like every other little precious delicate snowflake wants.

“Hassan, we’re now going to see some art. You might not be used to seeing tits, but this is some of the best stuff we have to offer. Welcome to our culture. If that concerns you, you’re more than welcome to wait in the car. Either that, or might I interest you in this cordial invitation to go fuck yourself?”

Or how about take him to the museum, but blindfold him? That would be appropriate.

If you can’t handle seeing art, then cover your own eyes. The rest of us will just keep on being free grown ups.

This post originally appeared on Popehat. View it here.


Sen. Cruz is an Unnaturally Born Citizen

January 28, 2016

by Jay Marshall Wolman

Despair thy charm,
And let the angel whom thou still hast served
Tell thee, Macduff was from his mother’s womb
Untimely ripped.
-Macbeth, Act V, Scene 8
There’s been a lot of talk lately over whether Senator Cruz is eligible to the office of President.  The Constitution requires that the President be a “natural born” citizen.  Article II, Sec. 1, Cl. 5.  Folks have made a lot of originalist/textualist type arguments to help understand this clause.
I want to weigh in from a similar perspective, but one that I think can help frame the discussion.  Two former Solicitors General basically referred first to English statutes in effect at the time of the Revolution and then the Naturalization Act of 1790 to support their understanding that foreign born subjects of citizens are naturally born.  The problem, though, is that does not tell us what the term meant in 1787 under the common law.
If English statutes were imported, the Naturalization Act of 1790 would have been unnecessary.  Presumably, the Framers, the same folks who wrote the Constitution three years earlier, thought it necessary as those born abroad would not otherwise be citizens from birth. OK, so if Ted Cruz was born in Canada in 1788, he would not have been a citizen from birth.  Similarly, we can imagine a scenario where a xenophobic Congress never adopts any naturalization laws.  In that case, when Ted Cruz was born in 1970, there didn’t have to be laws on the books that would have made him a citizen, let alone from birth, and everyone would agree he would not be eligible to the office of President. [More realistically, immigration laws can contain sunset provisions, so we can imagine that citizenship to those born abroad could sunset the day before he was born and emergency legislation enacted the day after restoring the provision.  During that one sunsetted day, Mr. Cruz would not have been an American.]
The question then becomes, can Congress enact a law that makes someone Constitutionally eligible if they otherwise would not be?  Let’s look at the whole clause:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
Congress also has the power to “fix the standard of weights and measures”.  Art. I, Sec. 8, Cl. 4.  Can Congress redefine the word “year” (a measure of time) as something other than 365 (1/4) days to make it so, perhaps, you might not be eligible until the Earth goes around the sun 70 times rather than 35?  It can redefine the word for any purpose, except a Constitutional one.  That would require an Amendment as it would alter the meaning of the word “Year” from what it was in 1787.  So why is “natural born” any different?
If you believe Congress can pass a law that changes the meaning of the Constitution (without express authority to do so, such as the ability to add a state, thus altering the meaning of “within the United States”), then Sen. Cruz is eligible.  Otherwise, no.

Death to Section 2(a)! Hail Coleman, Connell, MacMull, and The Slants!

January 24, 2016
If they are not your favorite band, they should be. (Unless you hate freedom and America)

If they are not your favorite band, they should be. (Unless you hate freedom and America)

Last month, the U.S. Court of Appeals for the Federal Circuit decided In re Tam, 2015 U.S. App. LEXIS 22593 (Fed. Cir. Dec. 22, 2015). In it, the Federal Circuit made a sweeping pronouncement that the First Amendment applies to trademark registrations, and that a long-criticized prohibition on “disparaging” trademarks could no longer stand. The portion of the trademark act that fell was Section 2(a) of the Lanham Act, 15 U.S.C.S. § 1052(a).

Of course, I was delighted. I have long railed against Section 2(a). My first (losing) fight against this provision was in 2007. See Billman, Jeffrey, The F Bomb, Orlando Weekly, Jun. 7, 2007. And, once CNN gave me some column space, I used a lot of it to write about this issue. (Marc J. Randazza, Decision on Asian-American band’s name is wrong and Why Redskins decision is wrong.

So when this decision came in, I jumped for joy. That said, it was a huge pain in my ass. I had just sent off my law review article on the subject to the printer, with all the final edits completed. I had a whole section criticizing Section 2(a) jurisprudence, and unflatteringly comparing U.S. law to recent European decisions. Then, In re Tam came out, and I had to rush to update it. Thank goodness that the Federal Circuit didn’t wait one more day to release the decision.

Ron Coleman

Ron Coleman

But, of course, this was a small price to pay for the delight of seeing our First Amendment rights protected, and seeing the personal victory for the lawyers in the case – Ron Coleman, John Connell, and Joel MacMull – First Amendment Bad Asses of 2015, as far as I am concerned.

However, the decision seemed to leave an important fight for another day. But, a recent missive by the Department of Justice might have brought us that day.

John Connell

John Connell

Section 2(a) does not only prohibit “disparaging” marks. Section 2(a) has some restrictions in it that remain – some of them reasonable, even. Section 2(a) bars registration of marks that deceptively suggest a connection with persons, institutions, beliefs, or national symbols. Since the function of a trademark is to distinguish a mark owner’s goods and services from those of other producers or suppliers, these prohibitions make perfect sense. There is no commercial rationale to permit false advertising in a trademark.

The First Amendment Lawyers Association provided an amicus brief to the In re Tam Court, in which it argued that § 2(a)’s prohibition on “immoral and scandalous” trademarks should also die along with the prohibition on “disparaging” trademarks. However, since that specific issue was not presented squarely before the Court, the Court declined to explicitly expand its ruling to include all of § 2(a).

Joel Mac Mull

Joel Mac Mull

Despite this urging, In re Tam left this most problematic portion of Section 2(a) standing, if just barely. It is not that the court approved of this clearly unconstitutional provision. Far from it. The Court simply recognized that this particular portion of the Act was not being challenged in this particular case. Nevertheless, in Footnote 1 of the decision, the Court augured the downfall of this provision as well.

We limit our holding in this case to the constitutionality of the § 2(a) disparagement provision. Recognizing, however, that other portions of § 2 may likewise constitute government regulation of expression based on message, such as the exclusions of immoral or scandalous marks, we leave to future panels the consideration of the § 2 provisions other than the disparagement provision at issue here. To be clear, we overrule In re McGinley, 660 F.2d 481 (C.C.P.A. 1981), and other precedent insofar as they could be argued to prevent a future panel from considering the constitutionality of other portions of § 2 in light of the present decision.

And with that, the most offensive portion of 2(a) remained intact.

But it was like a billiard ball hanging on the edge of the pocket. One tap, and it would fall in. However, just like when you play pool, sometimes the ball hangs there for a second, and then falls in on its own. That just happened. In a letter brief issued Thursday, the Department of Justice conceded that § 2(a) was no longer enforceable in light of In re Tam.

We do not believe that given the breadth of the Court’s Tam decision and in view of the totality of the Court’s reasoning there, that there is any longer a reasonable basis in this Court’s law for treating them differently…
The reasoning of Tam requires the invalidation of § 2(a)’s prohibition against registering scandalous and immoral Trademarks as well.”(source)

Before we call the game over, the Department of Justice hints that it may appeal the In re Tam decision. Should that happen, the Supreme Court outcome would be anything but preordained. However, the In re Tam decision seems to be on solid constitutional grounds. I am optimistic that if the government does decide to appeal, that it will not be overturned. That said, I think I would be naïve if I said it would be a 9-0 decision.

Certainly, I find both prohibitions to be offensive under the First Amendment, but I can at least emotionally (if not Constitutionally) get on board with the government wanting to put its fingers on the scales of justice when it comes to opposing racism. But, as the In re Tam case shows us, when the government tries to do that, it usually does so with all the grace and logic of a Chris Farley character. Nevertheless, give them credit for good intentions.

On the other hand, the prohibition on “immoral and scandalous” trademarks was nothing more than a neo-Comstock attempt to legislate morality and to suppress sexual speech in order to serve illegitimate goals. One of my favorite law review articles ever was by Steve Russell, writing about the Communications Decency Act. He wrote:

By trying to regulate obscenity and indecency on the Internet, you have reduced the level of expression allowed consenting adults to that of the most anal retentive blueballed fuckhead U.S. attorney in the country. (source)

Every time I got a Section 2(a) rejection under the immoral and scandalous clause, I heard those words in my head, replacing “U.S. Attorney” with “trademark examiner.” Today, perhaps, those examiners can go listen to Louie Louie, see if they find naughty words in it, and go whine to the FBI about it.

Some may feel this is a narrow decision regarding trademark rights, and those who don’t own any trademarks may not think this is a big deal, especially if they won’t be applying for any “immoral or scandalous” registrations. If you feel this way, you would be precisely wrong.

Every American should be celebrating this news. When the government decides to suppress First Amendment rights, no matter how narrow that suppression might be, we all have a little less liberty. When the courts recognize the expansive nature of those rights, we are all more free. It’s refreshing to see that the Department of Justice decided to yield to the In re Tam decision — even if it turns out to be temporary, rather than pathologically defending an unconstitutional law in the name of one very narrow definition of morality.

My delight at this development is both personal and professional. Professionally, I have been banging my head against Section 2(a) for most of my career. When I speak on the subject, I proudly announce that I have lost more 2(a) administrative appeals than I can remember. It isn’t that I’m proud of losing – but I’m proud of my clients for being willing to take up the fight, even in light of the fact that until In re Tam, it was a hard uphill battle, with the entire weight of the appellate decisions just brushing off the First Amendment as if it were an annoying little gnat.

I’m looking at YOU, In re Fox, 702 F.3d 633 (Fed. Cir. 2012) In re Mavety Media Grp. Ltd., 33 F.3d 1367 (Fed. Cir. 1994) and Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559 (5th Cir. 2005). If you read these cases, it will make you pretty sad that appellate judges can have such little reverence for the First Amendment, and such intellectual laziness in light of their own preconceived notions about morality. But, In re Tam restores all faith!

Those of us who believe in the First Amendment always believed that these decisions were wrong, but unfortunately, the government would exhaust each and every client before getting to the Federal Circuit to challenge it. Besides, how many times can you push that rock up the mountain before you just ask whether it is worth it?

But, finally, there was a client who didn’t give up and who thought it was worth it — Simon Shiao Tam and the Slants (your new favorite band).

Therefore, I think that we all need to slap a few people on the back here. First, the Slants and Simon Shiao Tam for having the conviction to keep fighting this case to the appellate court. And just as much, Ron Coleman and Joel MacMull – the lawyers who handled the case. These lawyers did an incredible job – and they did it pro bono.

Because of them, your First Amendment rights are broader, more robust, and more protected today than they were just over a month ago. I have the privilege of calling Ron and Joel my friends. But, even if I did not know them, I would demand that all readers hoist them on their shoulders for what they’ve done for us. Fighting a First Amendment fight, for free, against some very poor odds is what I call “heroic.”

And if the government does appeal the In re Tam case to the Supreme Court, they’re going to have the bigger guns, unlimited funds, and at least a few of the justices already in their pockets.

Well, that doesn’t concern me.

I like the good guys’ chances, with First Amendment Bad Asses like Ron, John, and Joel fighting for us.

____

If you find the issue of morality and intellectual property rights of interest, I’d be delighted if you downloaded and read my law review article on the subject. See Marc J. Randazza Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights (January 16, 2016). Nevada Law Journal, Vol. 16, No. 1, 2016. This issue is only a part of the article, as it deals with morality and IP rights on a global scale. If you do read it, download it rather than just reading in your browser. (It gets the numbers up)

This post originally appeared on Popehat. View it here.


Beware of Good Intentions When it Comes to Censorship

January 21, 2016
Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

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

Censorship often comes along with a side order of good intentions — or at least that is in the marketing materials for the proposed censorship. You want a world without racism? Lets ban racist speech! But, the problem is that censorship almost always turns into a tool to seize or maintain a grip on power. (What We Risk When We Ban Racist Speech)

A Kentucky legislator recently proposed a narrow restriction on free expression — and it seems that it came from reasonable and logical intentions. Unfortunately, when you consider this idea while keeping the First Amendment in mind, the implications are no longer acceptable. They are intolerable.

Representative John Carney introduced a bill to prohibit anyone who witnesses “an event that could reasonably result in a series of physical injury” from publishing information about that event on the internet for at least an hour if their posting could identify potential victims.

I see where he is coming from. Do you want to hear about your loved one being killed in a car accident from Facebook? Do you want to wake up from an accident and find your traumatic and personal experience all over Twitter? I get it. In short, we have significant social media privacy issue – and the United States seems to be forgetting all about privacy issues as we steam forward into the Internet’s adolescence.

What the East German Stasi used to do to its citizens, we all now do to each other. We all live under constant crowdsourced surveillance, and instantaneous broadcasts of traumatic events are commonplace. As a policy consideration, I am happy that someone is at least willing to take a shot at changing this. But, despite the good intentions behind the bill, I can’t get behind it. A law like this can not likely withstand First Amendment scrutiny.

A law like this is what is known as a “prior restraint” – a rule that attempts to prevent speech from occurring. As Justice Blackstone eloquently wrote: The liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications…” Or, as Walter Sobchak shouted, “THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!” Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998). See also, How to Cite to Walter Sobchak.

That rejection is rounder than you can spin me like a record. Rounder than Ken’s noggin.

It has been that way since Near vs. Minnesota. So, you’ve had 85 years to get with the program.

Prior Restraints are permissible under the U.S. Constitution. However, they are restricted to situations with which there is an immediate, clear and present danger that something awful will happen if the speech gets out there.

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. Near v. Minnesota, 283 U.S. 697 (1931).

For example, if Popehat found out about a troop movement in Afghanistan and wanted to publish that information, thus essentially broadcasting a secret mission to the enemy, the government could likely get a Prior Restraint. This would keep that information from being published until after it no longer causes harm to the operation, but it would have to dissolve once the necessity for it passed.

We certainly don’t want to lose a war because we are afraid of delaying a news article by twenty- four hours. On the other hand, we do not allow Prior Restraints simply to protect feelings or privacy.

I can philosophically agree with Representative Carney’s proposal. I get it. But, how do we think that such a prior restraint would be used in the future — when someone wants to use it to seize or wield power in an undemocratic manner? I’m not sure either, but I think that when we see a possible prior restraint, we should consider that to be a “nuclear option.” We don’t need to ask ourselves how bad the damage will be. Unleashing a prior restraint is damage in itself.

I’m not saying that I wouldn’t be able to agree to any future notions of new justifications for prior restraints. In fact, a recent 7th Circuit decision raises some interesting issues. I’m not even 100% committed to the long-settled notion that equity can not enjoin libel — as it is at least worth discussing whether that still makes sense in 2016 (even if only to reject any change – but lets not be lazy in the name of absolutism). (UPDATE: “equity can not enjoin libel” means that you can’t get a court order stopping someone from defaming you before a trial on the merits of the defamation claim — and sometimes, not even afterward).

But, we need to recognize that prior restraints are very dangerous, very sticky, very dirty, and very difficult to manage effectively. Any time you think about unleashing one, you need to have a very clear discussion about what it could mean, once you let that gimp out of the basement.

In this particular situation, I would very much like to see Carney’s vision come to pass. I would love it if every time you fucking dipshits drive past a car accident, you just look at the road ahead of you and keep driving. I’d love it if society got to a point of civilization that nobody whipped out a cell phone to take a picture of someone lying on the ground after an accident.

But, do I want to live in a place where we can’t photograph the police murdering citizens? Do I want to live in a place where we can’t immediately broadcast genuinely newsworthy events? Do I want to live in a place where the cops can arrest me for publishing a picture?

Fortunately, Carney realized that too, and withdrew the proposed bill after catching hell for it. Good. The intention might have been noble, but the medicine was too damn dangerous to take.

This post originally appeared on Popehat. View it here.


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