How to cite to Walter Sobchak

If you don’t know what the deal is with prior restraint, here, watch:

There. Simple. Right?

THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!

I wish I could just submit that clip to the next judge who even considers granting one. Just hold up a chromebook with that on it, play it, drop it on the floor, and walk out.

Dudeists have known this since 1998, and even most Dudeists were a bit late to the party.

I suppose that should not complain about misguided souls trying to get prior restraints.

If they stopped, I might actually have to find a less enjoyable way to make a living than being able to stand there with my arm around the Constitution, channelling Walter Sobchak. There is not much more career-choice-affirming than that.

Nevertheless, one after the other, they keep on coming — defamation plaintiffs who think that they’ve found the magic bullet that gets them a prior restraint. Hell, sometimes they even convince judges to grant them – which is even more awesome, because it then gets me a chance to get an appellate decision slapping it down.

In fact, I secretly hope that I will lose every prior restraint argument before the trial court. In 99% of those cases, the judge should look at the plaintiff and say “are you out of your fucking mind? Your motion is denied. THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”

Well what fun is that? I guess it would be fun as all hell if the judge actually did that.

But, when they get slapped down for being dumb, it helps get the word around to other judges who haven’t heard about this new thing called The First Amendment. I Each time a judge gets reversed for granting a prior restraint – which is exactly every fucking time unless the speech is about secret troop movements, it could help the next dumbass who managed to get elected to the bench. It could also help lawyers with this other new thing called “client control.”

I, myself, represent an occasional defamation plaintiff or two. Plaintiff’s side cases can be fun. But, they always start with the discussion about prior restraint.

The conversation that goes sorta like this:

Client: “I want a preliminary injunction in my defamation case.”

Me: “Wrong country, dude.”

Client: “Come on, at least try”

Me: “FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT! So, no. No. No. No. I’m not even gonna fucking try. You know why? Because it is stupid. Stupid. Stupid. Stupid. I may not be the smartest lawyer in the world, but I’m not stupid enough to seek a prior restraint. You want an injunction, go hire another lawyer who is willing to look like an idiot and waste your money. After he gets his ass handed to him, come back and I’ll handle your case competently, not like the fuckwit that you finally arrive at after you get to the bottom of the barrel, and then dig your way through the wood to the other fucking side of the barrel, now shut the fuck up about an injunction or get out of my fucking office and take your retainer check with you!

MARK IT ZERO!”

Client: “Ok, ok… just take it easy, man.”

Me: “I’m perfectly calm, dude.”

Client: “Just take it easy.”

Me: “Calmer than you are.”

Now on the other hand, when I get a defense case where there is a prior restraint? Then I get all happy. The first draft of my opposition inevitably has the Walter Sobchak quote in it. But, it always gets taken out. Citing to a fictional character just doesn’t seem like the right call when you’re making a serious point.

The Big Lehrmann

Not anymore.

Friends, Americans, Dudeists: We have arrived. Justice Debra H. Lehrmann of the Texas Supreme Court gave footnote 7 in Kinney v. Barnes, 57 Tex. Sup. J. 1428 (Tex. 2014).

The U.S. Supreme Court has long recognized that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” … This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture(7). (citations and other footnotes omitted)

And that “7” brings us to this… get a handkerchief, because you’re gonna weep.

The Big Lebowski (PolyGram Filmed Entertainment & Working Title Films 1998) (“For your information, the Supreme Court has roundly rejected prior restraint.”).

Now, of course, The Big Lehrmann (as she shall now be known) can get away with citing it that way. But, I can’t see a trial court in Muskegon, Des Moines, or even Los Angeleez going for that. But, The Big Lehrmann now gives us the respectability and acceptance that Constantine once gave to the early Christians.

So now, I’ll tell you how to cite this. And before you trot out the bluebook, fuck the bluebook.

The next time you are arguing against a prior restraint, this is how you cite to the wisdom of Sobchak:

Kinney v. Barnes, 443 S.W.3d 87 at n.7 (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

Alternate cites:

Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7 (Tex 2014)
Kinney v. Barnes, 42 Media L. Rep. 2390 at n.7 (Tex. 2014)

This affects all of us man.

Our basic freedoms!

—-

UPDATE: I personally use the “small caps” option when citing. But, wordpress does not seem to have that option.

Related: The post that inspired this one, How to cite to Buzz Lightyear.

Fourth Circuit Delivers First Amendment Ass-Kicking

This is not a Star Trek order.  There are no pithy jokes here.  There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”

Cooksey v. Futrell, et al., Case No. 12-2084, 2013 WL 3215240 at *1 (4th Cir. June 27, 2013).

Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet.  This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains.  This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important.  Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying.  But, it works.

Cooksey’s backstory is remarkable, but surprisingly common among health advocates.  A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009.  His dietitians advised him to eat a diet high in carbohydrates.  Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates.  His blood sugar normalized and he was able to stop using insulin.  With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.

Paying it forward, Cooksey opened his blog, diabetes-warrior.net, in early 2010.  Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice.  The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes.  During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.

Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public.  In July 2012, Cooksey attended a nutritional seminar for diabetics.  The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead.  An attendee at the seminar was so “””offended””” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics.  Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:

a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.

Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.

The Board contacted Cooksey.  It told him that he would need to change his website.  It also told him that it was statutorily entitled to get an injunction against him.  Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.

The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license.  After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments.  The Board’s message was clear: Fix it – or else.  Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties.  Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”

After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech.  He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied.  The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim.  The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.”  The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.

At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions.  Many who read this blog would disagree with the outcome.  Cooksey disagreed.  And so, too, did the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court).  The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness.  The analysis is considerable, going on for many pages.  Some highlights are excerpted below:

On the question of standing:

In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).

However, this anticipated cannot just be speculative or the fruit of conjecture.  The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:

In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.

The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution.  From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.

Unfortunately, the opinion gave some daylight to the Board’s position.  If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail.  However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).

As for ripeness:

Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).

The Court then gave the Board a little more abuse for soiling its own bed.

In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.

In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits.  The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants.  If nothing else, it will buy them time.  Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage.  Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.

A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost).  While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded.  While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.

Could we just have all judges watch “The Big Lebowski?”

One more time, with feeling! — FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!

The National Judicial College should require every judge that attends to watch The Big Lebowski. Further, every state should require a person to view it before they can assume the powers of a judge. It would result in a lot less unconstitutional orders from judges who seem to not know any better when it comes to issuing prior restraint orders.

Walter Sobchak made it pretty damn clear when he shouted “FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”

I mean, ’nuff said, right?

Even if you watch The Big Lebowski, you will be infected with a bit of Dudeism, which will never hurt when you are trying to judge cases.

But, more to the point of this post, if you don’t know the first thing about prior restraint, even if you never heard of Near v. Minnesota, you’d still maybe have a little intellectual curiosity about that statement, right?

And then, Public Citizen wouldn’t have to come and make you look foolish for issuing a prior restraint. (Public Citizen Blog); Brief in Dietz v. Perez)

Deadspin Weighs in on Raanan Katz Suit

FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!

As some of you remember, Raanan Katz sued Google and others for copyright infringement this summer over a Blogger user’s publication of an “unflattering” photograph of him.  Today, popular sports blog Deadspin has the story.

Beyond the copyright suit, the Deadspin piece goes on to discuss a Florida trial court’s order in separate, concurrent litigation that Katz has brought against the same defendant as his copyright suit. 

This is a very complicated case. You know a lot of ins, a lot of outs, a lot of what-have-yous, but in particular, Deadspin addresses a decision by Florida’s 11th Judicial Circuit enjoining the defendant from writing further about Katz, since what the Defendant has written thus far is “arguably defamatory.” (source.)

As Randazza is counsel of record in the case, we provide no comment beyond a link to the appellate brief in the case.

New Jersey Supreme Court rules HOA’s political sign ban unconstitutional

The New Jersey Supreme Court recently struck down a homeowners association rule that prohibited the posting of political signs in a homeowner’s unit. (Full text here).  The court reasoned that the HOA’s complete ban of political signage violated the free speech clause of the New Jersey Constitution, which “affirmatively guarantees the right of free speech to all citizens.”

Defendant Wasim Khan lives in and owns a townhome in a common interest community managed by Mazadabrook Commons HOA. Kahn ran for a position on the local town council and posted two signs on his house advertising his candidacy: one in his window and the other on the inside of his door.  Mazdabrook informed Khan that his display of these signs was in violation of the CC&R’s, ordered him to remove them, and sent him a fine for the violation.  Mazdabrook’s regulations prohibited all signs except “For Sale” signs on residential property.

Upon move in, Mazdabrook homeowners receive a number of different documents.  The documents submitted for court review were the Public Offering Statement (POS), Declaration of Covenants and Restrictions (Declaration), and the Association’s Rules and Regulations.  The POS expressly prohibits the erection of signs, except for one “For Sale” or “For Rent” signs.  The Declaration and Rules and Regulations, however, do not prohibit the posting of all signs. Instead, the documents state that the board must give prior written approval prior to the sign’s placement.

New Jersey’s Constitution provides broader protection than the First Amendment of the U.S. Constitution, and the court stated that in order to trigger the protections of a state law, interpreting a broader constitutional right does not require a state action.  Therefore, the court applied New Jersey’s free speech protections, not the U.S. Constitution’s, to the issue.  The court stated that political speech lies “at the core” of New Jersey’s free speech protections, and therefore receives even greater scrutiny.

In analyzing whether an HOA’s restriction violates free speech rights, the New Jersey court used a three-prong test laid out in State v. Schmid, 84 N.J. 535, 563 (1980), appeal dismissed sub nom, Princeton Univ. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. ed. 2d 855 (1982).  When applied in the homeowners association setting, the test analyzes: 1) whether the primary use of the property is residential, 2) whether the association had not invited the public to use the property, and 3) whether fairness considerations weighed in favor of the restriction and against the defendant’s expressional activity.  However, the court stated that the first two factors do not weigh as heavily in this case because Khan was not a mere visitor, but an owner of the property.  Therefore, the court considered the third prong more heavily in its analysis.

The court found that an almost complete ban on residential signs, which includes political signs, is not a “minor restriction” to Khan.  Rather, it restricts his most basic rights as a political candidate and of the political process itself.  Conversely, the interference with the Association’s property is minimal—the signs were located in Khan’s window and door, where people passing by could view them and make their own analyses. While the HOA has the right to adopt reasonable time, place, and manner restrictions on the signs, the court said, it cannot impose a total ban on them.

Furthermore, the court determined that Khan did not waive his constitutional right to free speech because he purchased the home with full knowledge of the restrictions.  Because the alleged waiver of Khan’s free speech rights was not clear, he did not waive his rights by accepting the terms in the documents.  Instead, he was asked, in three different ways, to waive the right to post signs without board approval, but was not expressly told the rules that would govern the process of approval.  Therefore, this was not a knowing waiver of constitutional rights.

Recently, we analyzed a similar rule contained in HOA documents for a Nevada HOA.  Similar to Mazdabrook, the HOA documents also contained conflicting language about political signage, with the controlling rules banning all signs but “For Sale” and “For Rent” signs.  Another document stated that in order to post any other kind of sign, the homeowner would first need to get permission from the HOA’s design committee.

No caselaw on this particular issue exists in Nevada.  However, Nevada Revised Statutes 116.325 states that common interest communities may not prohibit unit occupants from displaying political signs, but can place reasonable restrictions on things such as size:

Right of units’ owners to exhibit political signs in certain areas; conditions and limitations on exercise of right.

1.  The executive board shall not and the governing documents must not prohibit a unit’s owner or an occupant of a unit from exhibiting one or more political signs within such physical portion of the common-interest community as that owner or occupant has a right to occupy and use exclusively, subject to the following conditions:

(a) All political signs exhibited must not be larger than 24 inches by 36 inches.

(b) If the unit is occupied by a tenant, the unit’s owner may not exhibit any political sign unless the tenant consents, in writing, to the exhibition of the political sign.

(c) All political signs exhibited are subject to any applicable provisions of law governing the posting of political signs.

 (d) A unit’s owner or an occupant of a unit may exhibit as many political signs as desired, but may not exhibit more than one political sign for each candidate, political party or ballot question.

2.  The provisions of this section establish the minimum rights of a unit’s owner or an occupant of a unit to exhibit political signs. The provisions of this section do not preempt any provisions of the governing documents that provide greater rights and do not require the governing documents or the executive board to impose any restrictions on the exhibition of political signs other than those established by other provisions of law.

3.  As used in this section, “political sign” means a sign that expresses support for or opposition to a candidate, political party or ballot question in any federal, state or local election or any election of an association.

Yet even in the absence of NRS 116.325, prior restraints on speech are generally considered unconstitutional, and such protections could be extended to homeowners.  The New Jersey Supreme Court did not need to address the state actor issue of HOAs because it relied entirely on the state constitution in its reasoning.  Obviously, homeowners associations are not considered to be state actors, and are generally not bound by Constitutional considerations.  However, as soon as a homeowners association attempts to enforce its CC&Rs, a state action is triggered, and the First Amendment will kick in.

The seminal case on the matter of HOAs infringing on homeowners’ fundamental rights is Shelley v. Kraemer, 334 U.S. 1 (1948).  In that case, the Supreme Court held that a state court’s enforcement of a racially restrictive covenant constituted sufficient action by the state to satisfy the Fourteenth Amendment’s “state action” requirement.  Racially restrictive covenants, like covenants that restrict free speech, infringe on a fundamental right. “Enforcement of private agreements by the judicial branch of government is state action for purposes of the Fourteenth Amendment, as the Highest Court in the land declared it to be in Shelley.” Gerber v. Longboat Harbour North Condominium, Inc., 724 F. Supp. 884, 887 (M.D. Fla. 1989), vacated in part on other grounds by 757 F. Supp. 1339 (M.D. Fla. 1991).

Of, course there is no state action inherent in the mere possibility of state court enforcement of an HOA rule. See Quail Creek Property Owners Association, Inc. v. Hunter, 538 So.2d 1288 (Fla. 2d DCA 1989) (unenforced rule prohibiting homeowners from posting signs did not trigger state action).  Therefore, if an HOA simply has the rule in its documents, no cause of action exists.  However, once an HOA crosses the line from prospective enforcement to actual enforcement with any actual legal penalties, the legal landscape changes.  See Gerber, 724 F. Supp. at 887, 724 F. Supp. 884, 887 (M.D. Fla. 1989, (holding unconstitutional a condominium rule prohibiting residents from flying the American flag except on specified holidays).  Therefore, a homeowner would not be able to make a claim against an HOA without enforcement of the rule.  This is exactly what happened in the New Jersey case—the HOA fined the defendant for posting his political signs, and the defendant was able to sue.

The New Jersey ruling applied specifically to political signs, and did not extend to other forms of home decoration.  The defendant in Mazdabrook was no stranger to litigation against the homeowners association—three years ago, he also filed a complaint against the homeowners association when he was fined for planting a climbing rose vine on his property.  In that case, the court determined that this restriction did not abridge free speech and ordered Khan to pay the HOA fines.

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

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.

Supreme Court Justice Questions the Right to Burn a Koran

by Charles Platt

On Good Morning America, Breyer compares burning a Koran to shouting “Fire!” in a crowded theater. I guess this must mean that if you do anything at all which upsets delusional wackos, you are not protected by the First Amendment. That’s good to know.

Dipshit Dines and her MacKinnonite Crusade

Sound the alarm! The pornographers are coming to get us. Or so says the ever-hysterical Gail Dines in a recent Boston Globe article about her latest book.

To Dines, it is not coincidental that pornography has grown increasingly brutal in its treatment of women as the likes of House Speaker Nancy Pelosi, Secretary of State Hillary Clinton, and Supreme Court nominee Elena Kagan have underscored the real-world gains of women in the fields of politics, law, business, and medicine. Among other things, she says, “Pornography is a backlash against women’s advancement.’’ (source)

Yeah, that’s it. The moment that I heard about Elena Kagan’s nomination, I just had this incredible desire to jack off watching Belladonna suck dick. I mean, how else is a real man to react to this uppity behavior?

Dines tries to make her quest seem like mere criticism and education, but she has a control-freak’s sinister side.

Having viewed countless images as part of her research, Dines says there should be legislation that would define pornography as a violation of women’s civil rights and would entitle women to sue the industry for harm done to them. (source)

And it would all of a sudden make her research actually relevant and useful to a tribe of worthless lawyers who went from graduating from a womens’ studies program to law school to stewing in their own bitterness that nobody wants to pay them $200,000 per year to whine about how much they hate men.

Arguments like this have earned her — along with threats, hate mail, and vitriolic broadsides from the pornography industry — the inevitable accusation that she favors censorship (Dines says she does not) and that she is an anti-sex prude. At that, she just rolls her eyes.

“If I was criticizing McDonald’s, you wouldn’t accuse me of being against eating,’’ she says. “I’m against the commodification and industrialization of a human desire. I’m not against sex. Pornography does not equal sex, and sex does not equal pornography.’’ (source)

If she wants to criticize pornography, I’m all for it. She doesn’t just want to criticize it though. She wants to smear her grubby nasty hands all over our laws so that they fit her Victorian / Comstockian social agenda. If she was criticizing McDonalds, nobody would care. If she came up with her own diet program and wanted the government to help her take away your choice of what you got to eat for lunch — then THAT would be an accurate analogy.

Zealot’s censorship attempt backfires (the best $40.96 I ever spent).

Tina Harden of Longwood, Flori-duh decided that four books in the Lake Mary public library did not meet her standards of morality. The Cecily von Ziegesar books Reckless, The It Girl, Notorious, and Don’t You Forget About Me apparently clashed with Ms. Harden’s view of what other people ought to read. So she refused to return them from the library.

“If I turn them in, they will be put back into circulation and they’ll be available for more young girls to read,” said the mother of three, who keeps the four books hidden in a closet. “Some material is inappropriate for minors.”

Harden said she doesn’t want them banned, but she does want the library to put a warning label on the four titles — one in the Gossip Girl series by Cecily von Ziegesar, and three in a spin-off series called It Girl — and make them unavailable to minors. (source)

The Seminole County Library agreed to reshelve them in the adult reading section, but refused to make them unavailable to minors. Jane Peterson, the county’s library services manager said “If we denied access to this particular title, it would be censoring.” (source)

That’s not good enough for Harden, who said that as a taxpayer she should have a say in which books land on the libraries’ shelves. “They’re supposed to be public servants,” she said.
(source)

Unfortunately, Harden’s view of what a “public servant” is supposed to do is a bit skewed.

I used to live in Lake Mary, and I was unfortunately not very surprised that this story took place there. There is a mormon temple right around the corner from this library. My former homeowners association’s treasurer (who claimed that he had a “bachelor’s degree in law” put up a confederate flag to welcome a black family to the neighborhood. That said, Seminole County isn’t all white trash, and they deserve access to books just like the rest of us.

So I called the library and told them that I would pay to replace the books. They were most grateful.

After my check went out, I received the following email from the library:

Ms Harden will be returning the books to the Northwest Branch today. We have also already received several donations of the books. We appreciate you offering to give a donation but since she is returning the books I wanted to let you know that you do not have to send us a check.

Of course, they can keep my $40.96.

Nice work, Harden, you nitwit… now, not only did you fail miserably, but more people than ever before will now have access to the books.

Free Speech Coalition v. Holder —- 18 U.S.C. § 2257 Delendum Est!

Let's hear it for the FSC

The Free Speech Coalition has filed its long-awaited complaint seeking to have 18 U.S.C. § 2257 declared unconstitutional.

The Background – The War on Sex

Social conservatives on both the right and left take great delight in attempting to carve out an erotic speech exception to the First Amendment. The far right thinks that their imaginary friend knows what is best for us – and that is that we shouldn’t have access to erotic materials. The far left is just as bad – believing that they know how to bring us to utopia, and banning erotica is a cobblestone in that road. Neither have any respect for the First Amendment. (For a great discussion of the issue of erophobia, see Dr. Marty Klein, America’s War on Sex).

For the most part, these efforts have not been successful. Outright bans on adult entertainment are unconstitutional. Attempts by misguided left-leaning paternalists to create private causes of action engineered to drive erotica out of business have been no more successful. See, e.g., American Booksellers Ass’n. v. Hudnut, 771 F.2d 323 (7th Cir. 1985).

However, when Congress passed 18 U.S.C. § 2257, it inaugurated a new, creative, and somewhat scary “third front” in the war on sexual expression. Forged in the fires of the Meese Commission, Section 2257 attempted to drive adult entertainment out of business by simply making it too burdensome to produce it.

What is Section 2257?

Section 2257 is a law that requires any “producer” of “actual sexually explicit” content to keep age verification records pertaining to anyone appearing in that content. Explained that simply, Section 2257 seems quite reasonable. If you are going to produce pornography, make sure that the talent is over the age of 18, and be able to prove it.

If only it were that simple.

It isn’t just about pornography

First, lets take a look at what kind of images are regulated by Section 2257. In order to fall under Section 2257, the images must be of “actual sexually explicit conduct.” (hereinafter, ASEC). What does ASEC include? As articulated by the Sixth Circuit, ASEC includes: “sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(i) (2006). It also includes images of bestiality, masturbation, sadistic or masochistic abuse, and “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(ii)-(v) (2006).

See? Already things are getting a little muddy. Any reasonable person would have to agree that “genital-genital intercourse” is a relatively clear term. But, what does “sadistic or masochistic abuse” mean? The law contains virtually no guidance in that department. A photograph of dripping candle wax on someone’s leg could qualify as “sadistic or masochistic abuse,” as could any number of other activities that don’t come close to any definition of “pornography.” Remember, the supposed goal of this statute is to keep children out of pornography..

How about “lascivious exhibition of the genitals or pubic area of any person”??? Go ahead, try to actually define those terms. I’ll wait….

Who is to determine whether the “pubic area” of a person is in a state of “lascivious exhibition” in any given photograph or video? Under this statute, most Victoria’s Secret catalogs, Sports Illustrated swimsuit issues, and any number of seemingly “innocent” images could be swept up in the anti-porn dragnet. That would be just fine with the erophobes. It is not just fine as far as the Constitution is concerned.

What Records?

Now that we have figured out what kind of images or depictions trigger responsibility to keep Section 2257 records, let’s look at what that responsibility means:

Under § 2257, a producer of sexually explicit images must inspect the talent’s government-issued photo identification to ascertain her (or his) date of birth. See 18 U.S.C. § 2257(b)(1) (2006); 28 C.F.R.§ 75.2(a)(1). Not such a big deal… but the government couldn’t be happy with that.

Section 2257 also requires that the producer copy the ID and keep it in a file. The producer must also record any stage names or aliases the talent has used in the past, and record and index all places where the image is published and keep all that information in a file where it is not co-mingled with any other records of any kind. See 18 U.S.C. § 2257(b) (2006); 28 C.F.R. § 75.2(a), (d), (e). Also, the way the regulations are written, it makes the adult entertainment industry into the one industry that is either protected from outsourcing, or at the least, the entertainment equivalent of the minuteman brigade. (Link)

Accordingly, if a producer of First Amendment protected adult material puts anything in an entertainer’s file that is not specifically required by 2257, it could mean that the producer is off to jail.

This isn’t the worst of it…

Fourth Amendment? What Fourth Amendment?

Once the producer creates these records, indexes them, and cross-references them, that isn’t the end of the line. The producer must then list a “2257 statement,” listing the date of production, and an address where the records may be inspected during regular business hours – and those hours must be at least 20 hours per week. 18 U.S.C. § 2257(e) (2006); 28 C.F.R. § 75.6(a), (b). There are more technical requirements as well, including that the statement must be in 12 point font, printed in a color that contrasts with the background, and must be prominently displayed. 28 C.F.R. § 75.6(e) (2006).
The Attorney General, or any designated agent may now come knock on the producer’s door for a “2257 inspection.” By law, they are not allowed to give any advance notice. No warrant. No probable cause. No reasonable suspicion. Once every four months, for no reason at all, FBI agents get to show up at the producer’s door for an inspection – and they can come more often if there is a reasonable suspicion that a violation has occurred. 18 U.S.C. § 2257(c) (2006); 28 C.F.R. § 75.5(b), (c), (d) (2006).

If you blow the requirements – five years in jail. That’s not for having underage performers, mind you. If your paperwork is not in order you are staring down the barrel of a five year jail sentence.

With this as a backdrop, the Free Speech Coalition is fighting back. The statute and its administrative regulations are clearly unconstitutional, clearly intended to burden free expression, and don’t do a damn thing to prevent child pornography from being produced.

Lets wish the FSC the best of luck.

2257 delendum est!

“Why I do it” — An Erotic Documentarian’s Viewpoint

by Tony Comstock
Special Guest to the Legal Satyricon

In a world that seems awash in sexualized imagery, why is it that so little of this imagery speaks to the common pleasurable reality of sex? We’ve been producing the “Real People, Real Life, Real Sex” erotic documentary series for some time now, and I’ve heard the same kinds of questions dozens, perhaps even hundreds of times from people who know and love our work, from therapists and counselors, from people in pain about their sexuality, and from people enjoying their sexuality as part of full and wholesome lives. Over and over, I am asked, “Why are films like ours, films that depict sex in a way that is joyous and cinematic, almost nonexistent?” “Why are art films that contain explicit sex always so downbeat?” “Why does pornography look and feel so different from the other sorts of visual images we see?” “How does what we do — and do not — see in cinema affect our understanding of our own sexuality?”

I’d like to say the answer is that I have a special insight into the human sexual condition as it relates to cinema, but it’s a little more complicated than that. To truly understand why sex on film looks the way it does, one needs to look at the history of sexual imagery in cinema, the history of obscenity laws, and the business and technology of image making. Once you have that background, you can explore how cinematic images actually work, and how that relates to cinematic depictions of sexuality. I have spent many years investigating that background, and the more I learn, the more I am driven to make the films that we produce.

I have been a photographer my entire adult life. I believe passionately in the power of the moving image to help us understand who we are as human beings. I’ve documented unspeakable suffering, violence, and death. For that, I’ve been called a courageous witness.

In bearing witness to sex, I sometimes get called other, less charitable names. Sometimes this hurts my feelings. Sometimes it makes me feel like quitting.

I bear witness to the sex act because I believe that depictions of truly joyous and wholesome sex — depictions that represent the overwhelmingly positive and important role that our sexuality plays in our humanity — are all but absent from the cinematic landscape. Moreover, in an age where it is easier than ever to see sexually explicit imagery, it is harder than ever to find imagery that reflects the common reality of sex: that sex is nice; that sex is normal; that sex is good.

I’d like to share a comment left on my blog about three years ago. As you might imagine, doing this work and demanding that it be taken seriously can sometimes be a struggle. But when I despair, I go back and read this:

I have issues with sex. I’m a sexual abuse survivor. Anyone who’s been sexually abused comes into sexuality with a handbag and two trunks of emotional baggage.

When we were trying to conceive there was a blatant point to having sex: having a baby. That made it okay. After all, society couldn’t look down it’s nose at a married couple — young, still facing fertility problems, trying to have a child.

And then when the child is born, you get the excuse of body recuperation. And if your child is sick, you get a bonus 6 month reprieve. However, there does come a point where sexuality, motherhood, couplehood, and life clash. I’m tired. Sex requires energy. So does doing the dishes. But sex requires an emotional investment, something I’m not ready to make, something I feel inferior making. So the dishes it is. And laundry for good character.

I feel conflicted by sexual imagery. I sometimes like what I see. I sometimes like it a lot. But sometimes it scares me. I’m not pretty like Eva Longoria. I’m not thin or have shiny hair. I don’t have nice breasts. Mine are saggy and droopy and currently nourish the body of a very rotund 9 month old. They serve a purpose, and purposeful breasts aren’t sexy — to me anyway. And besides, they don’t LOOK like the breasts I see on TV. Perfect, sculpted breasts. Breasts that boys like. And bodies. Don’t get me started on the bodies.

What we see isn’t real. It’s said over and over. I know there are 50 people off-set creating the magic. What they’re feeling isn’t real. What they’re doing isn’t real. And it makes me wonder if what I’m doing is okay. Emotionally un-investing myself in my relationship. Because really, I can’t ask family about sex. I can’t ring my mother-in-law up and ask her if she ever felt this way when looking at her naked body. Or ask her if she felt hung up on emotional issues when her husband’s hand touched her bottom.

Abuse survivors bring guilt into the game as well. Not only do we have more bodily hang-ups, failed relationships and mental problems, but we have guilt about sexuality. About wanting sex. About feeling GOOD about sex.

Today though, something struck me in just in the right spot. I had one of Oprah’s famed “a-ha” moments. A link took me to www.comstockfilms.com. Dubbed: “Real People, Real Life, Real Sex” the site explores sexuality for real. In a documentary style, we meet and enjoy the couple and then venture into the velvety movement of their bodies.

I must say. I was stunned. I’m not a fan of porn. I am disgusted by a lot of what is sold to men. The fairytale behind that isn’t charming, in my opinion. But watching these clips I thought, wow. Oh my goodness. So THIS is sex. For real. And I loved the charming banter of the couples. I feel grown up right now. Like a real adult. I’ve confronted one of my demons — enjoying a sexual experience — and I can actively admit that I enjoyed it. Which is probably a lot more information that you’ve wanted to hear from the mother of a child who doesn’t do a lot of sleeping. If you’ve got the time and the inclination I encourage you to take a step into the realm of Comstock films. It’s the first step I’ve taken to embracing that humans are allowed to be sexual beings. – Jen P.

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Award-winning filmmaker Tony Comstock frequently lectures on the legal and business realities that shape and too often warp the sexual imagery we see. Drawing on examples from Hollywood’s history of self-censorship, landmark obscenity cases, and the collision of technology and image-making, Comstock offers an expanded framework for understanding of how what we do and do not see in cinema effects our understanding of our own sexuality.

University of Massachusetts Liberals Against the First Amendment

I am usually very proud to be a graduate of the University of Massachusetts.

Not today.

AMHERST, Mass., April 16, 2009—Multiple First Amendment violations have rocked the University of Massachusetts Amherst campus in recent days. UMass has done nothing about the videotaped theft of and, later, the student government’s official censorship of The Minuteman, a conservative campus newspaper that mocked a student government official. Worse, last night, when a student senator offered a bill to reverse the unconstitutional censorship of The Minuteman, the Senate’s speaker had the UMass police throw him out (video of this incident is expected soon). These assaults on free speech came in the wake of last month’s disgraceful episode in which a speech by columnist Don Feder was shouted down by hecklers while UMass police officers did nothing. (source)

What caused the tiff? The UMass conservative organization, the Silent Majority, publishes a newspaper called “The Minuteman.” The most recent issue of The Minuteman exposed some financial irresponsibility in another student organization, Bridges (an organization that is supposed to spend its funds to tutor minority students), and mocked the organization and its director. The Expose appears on the first page of this document.

The next page of The Minuteman contained the following content:

‘STUDENT BRIDGES’, Our Jackass of the Month

• The only thing more horrifically large than their bloated 172K FY2009 budget is the bloated backside of
their responsibility-averse Director, Vanessa Snow.

• The only thing more wasteful than the careless way they manage their budget were the amount of
uneaten tacos and burritos they left at Taco Bell.

• They spent more money on food, drinks, hotels, and rental cars in Fiscal Year 2008 than Eliot Spitzer
spent on high-class hookers. (Well, almost)

• They failed to show any tangible quantitative achievements in their program during Fiscal Year 2008, yet
had the arrogant audacity to request a $50,000 larger budget when most student groups’ overall budget
allocations are less than $5,000.

• They, in essence, take your Student Activities Fee money to discriminatorily tutor poor minority students
without showing any tangible results.

• Under the guise of “building bridges to education opportunities” and acting as a “community service
organization,” the only servicing this group of corrupt bureaucrats-in-training does is at the salad bar at
Salsarengue, where it spent a preposterously indefensible $5000 in Fiscal Year 2008, thus literally making
Director Snow’s ass its own (rather large) budgetary line item for Fiscal Year 2009

• Given all the time this clumsy group of freeloading Leftists spends at restaurants in Holyoke, it is no
wonder that their obesity rate is higher than their mentored students’ high school graduation rate ‘STUDENT BRIDGES’, Our Jackass of the Month (source)

The Bridges crew wasn’t too pleased about this, so they engaged in a pretty time-honored UMass tradition: They stole all of the copies of the newspaper that they didn’t want others to read. The UMass student government association responded by calling for the conservative group’s funding to be cut unless they purchased an advertisement in the campus’ main newspaper, The Collegian, apologizing for the above statements. (source)

Despite the fact that the measure violated the First Amendment in two different ways, it still passed. The resolution passed, and when a student senator attempted to introduce his own measure repealing the clearly unconstitutional measure, he was escorted from the senate floor by campus police.

FIRE, the Foundation for Individual Rights in Education is on the case. They issued this letter to the UMass chancellor.

Sadly, I can report that none of this surprises me. While I got a fantastic education at UMass, I can say with great authority that the political correctness crowd runs the place. Any criticism of an organization like Bridges will certainly be met the same way.

I am certainly no fan of the campus right-wing crowd. Nevertheless, my beliefs are strong enough that they can stand in opposition to theirs… and if they can’t, then the marketplace of ideas will have spoken. It is a shame that Vanessa Snow and the Student Government Association don’t feel the same way about theirs.

I’m about as leftie as they come. Hell, my poor wife had to carry our daughter for an extra four days due to obligations I had to the Obama legal team. My liberal bona fides are pretty well established.

But, I’m not a free speech advocate only when it is my ox being gored. Well, yes I am… when free speech is under attack, it is always my ox being gored… whether that is the free speech of adult entertainment companies, protestors against the war in iraq, or the KKK.

Any “liberal” who doesn’t stand up for the Minuteman has no right to complain the next time it is liberal-valued free speech under attack.

Short Url: http://bit.ly/Qy6bf

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Technorati :  First Amendment, political correctness, prior restraint

Holy Crap!

Carlos Miller reports:

In what should send a frightening chill down the spine of every blogger, writer, journalist and First Amendment advocate in the United States, Phoenix police raided the home of a blogger who has been highly critical of the department. (source)

Read the whole thing. Then be grateful that you don’t live in Phoenix.

Patriot Act’s National Security Letter Gag Provisions Choke on First Amendment Grounds

The Second Circuit Court of Appeals struck down one of the most constitutionally repugnant provisions of the PATRIOT Act — the portions of the Act that place recipients of so-called “national security letters” (NSLs) under a permanent, unreviewed, lifetime gag order. See Doe v. Mukasey, __ F.3d __ (2d. Cir. 2008).

Through NSLs the FBI can compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website. The provision also allows the FBI to forbid or “gag” anyone who receives an NSL from telling anyone about the record demand. Since the Patriot Act was authorized in 2001, further relaxing restrictions on the FBI’s use of the power, the number of NSLs issued has seen an astronomical increase. The Justice Department’s Inspector General has reported that between 2003 and 2006, the FBI issued nearly 200,000 NSLs. The inspector General has also found serious FBI abuses of the NSL power. (source)

Doe v. Mukasey deals with an internet service provider challenging the NSL provisions, but NSLs have also been used against librarians and the internet archive.

The service provider received an NSL requiring disclosure of information pertaining to one of its customers along with an order that neither the contents of, nor the very existence of, the letter could be revealed. The service provider claimed that the gag order constituted an unlawful prior restraint. Prior restraints are “the most serious and the least tolerable infringement on First Amendment rights,” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). “Any prior restraint on expression comes to [a court] with a heavy presumption against its constitutional validity,” Organization for a Better Austin v. Keefe, 402 U.S. 15, 419 (1971).

The Second Circuit held that the gag orders were unconstitutional, but only to the extent that they were issued without proper judicial review. As the PATRIOT Act was written and passed, it allowed law enforcement to simply claim that there was a national security interest without specificity and without oversight. In other words “we just wanna” was good enough.

The Second Circuit didn’t go so far as to strike the entire NSL provision from the books, but it did require that anyone seeking an NSL and a gag order would need to confront that “heavy presumption against its constitutional validity,” and explain to a court why it needed such a draconian device.

To recapitulate our conclusions, we (1) construe subsection 2709(c) to permit a nondisclosure requirement only when senior FBI officials certify that disclosure may result in an enumerated harm that is related to “an authorized investigation to protect against international terrorism or clandestine intelligence activities,” (2) construe subsections 3511(b)(2) and (b)(3) to place on the Government the burden to show that a good reason exists to expect that disclosure of receipt of an NSL will risk an enumerated harm, (3) construe subsections 3511(b)(2) and (b)(3) to mean that the Government satisfies its burden when it makes an adequate demonstration as to why disclosure in a particular case may result in an enumerated harm, (4) rule that subsections 2709(c) and 3511(b) are unconstitutional to the extent that they impose a nondisclosure requirement without placing on the Government the burden of initiating judicial review of that requirement, and (5) rule that subsections 3511(b)(2) and (b)(3) are unconstitutional to the extent that, upon such review, a governmental official’s certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations is treated as conclusive. (Op. at 48)

More importantly, the Second Circuit imposed judicial review requirements including requirements for prompt judicial review.

We would deem it to be within our judicial authority to conform subsection 2709(c) to First Amendment requirements, by limiting the duration of the nondisclosure requirement, absent a ruling favorable to the Government upon judicial review, to the 10-day period in which the NSL recipient decides whether to contest the nondisclosure requirement, the 30-day period in which the Government considers whether to seek judicial review, and a further period of 60 days in which a court must adjudicate the merits, unless special circumstances warrant additional time. See Thirty-Seven Photographs, 402 U.S. at 373-74 (imposing time limits to satisfy constitutional requirements). If the NSL recipient declines timely to precipitate government-initiated judicial review, the nondisclosure requirement would continue, subject to the recipient’s existing opportunities for annual challenges to the nondisclosure requirement provided by subsection 3511(b). If such 16 an annual challenge is made, the standards and burden of proof that we have specified for an initial challenge would apply, although the Government would not be obliged to initiate judicial review. (Op. at 49-51)

The Second Circuit appears to have performed a bit of CPR on the Constitution after the Bush Administration’s attempted murder. Let us hope that this is a trend which will continue.

Boston (T) Party — Judge Puts Gag Order on MIT Students in MBTA Hack Presentation

A federal judge granted the Massachusetts Bay Transit Authority’s (MBTA) motion for an injunction preventing three MIT students from giving a presentation about how they had hacked the fare card system used by the MBTA’s subway turnstiles. (source) The MBTA’s complaint is here.

The students were scheduled to give a presentation today at the Defcon hacker conference in Las Vegas on the multiple methods they used to hack into the CharlieCard, an RFID device that the MBTA uses to keep track of fares on the “T”. The presentation, available here, here, here, and here, seems to demonstrate some very simple security breaches that should prove to be quite embarrassing to the MBTA.

The MBTA apparently filed suit after the MIT students refused to provide them an advance copy of their full vulnerability report (discussed below).

U.S. District Judge Douglas Woodlock on Saturday ordered the students not to provide “program, information, software code, or command that would assist another in any material way to circumvent or otherwise attack the security of the Fare Media System.” Woodlock granted the MBTA’s request after a hastily convened hearing in Massachusetts that took place at 8 a.m. PDT on Saturday. (source)

However, as WIRED reports, “the restraining order would have little effect in suppressing the information at this point since the speakers’ slides were on the conference CD-ROM, which had already been distributed to conference attendees Friday morning.” (source)

To add to the irony, WIRED reports:

Among the documents the MBTA filed with its declaration to the court today is a vulnerability assessment report (.pdf) that the three students gave the MBTA about the flaws in its system. The document is dated August 8, the day the MBTA filed its lawsuit against the students, and is essentially the information the students declined to give the MBTA before it filed its lawsuit.

Ironically, the document reveals more about the vulnerability in the MBTA system than the slides that the restraining order sought to suppress contain. The vulnerability assessment report is now available for anyone to download from the Massachusetts court’s electronic records system. (source)

In defense of the MBTA, they did not ask for a permanent injunction, but just one that would survive until the MBTA could address the security flaws that the MIT students raised in their presentation and vulnerability report. On the other hand, the flaws seem to be quite basic, and some of them simply the result of laziness and/or bad employee behavior. This seems, to me, to be more about the MBTA trying to avoid being embarrassed than trying to avoid widespread destruction of the already crumbling Boston subway system. And that, dear readers, isn’t something a federal judge should support.

It seems kind of funny that the MBTA is so freaked out at this in the first place. It appears that you need quite a setup and quite a lot of pre-existing skills and knowledge to exploit this new RFID system. I have the presentation and the vulnerability report, and I doubt that it would be worth my time or effort to try and duplicate the MIT students’ findings.

On the other hand, when I was a kid and the MBTA used tokens, it was common knowledge that French 10 Centimes coins worked in all the subway turnstiles. I, like all my friends, came back from Europe with rolls of the coins, which were virtually worthless as currency, but worked just fine for subway trips. I wonder why the MBTA didn’t seek an injunction banning the importation of suspicious amounts of Dix Centimes coins?