Wikileaks Update

March 3, 2008

I’ve gotten ahold of the Wikileaks order. (Via EFF) It is better than I could have imagined.

Judge White begins by stating the importance of the First Amendment issues in play:

The First Amendment encompasses the “right to receive information and ideas.” Kleindienst v. Mandel, 408 U.S. 753, 762 (19720 (citation omitted); see also Board of Education v. Pico, 457 U.S. 853, 867 (1982) (“the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom”) (emphasis in original).

He also recognizes the futility of his earlier injunction. Some judges would have thrown a tantrum. Not White.

Efficacy of an Injunction.

The record currently before the Court indicates that even the broad injunction issued as to Dynadot had exactly the opposite effect as was intended. The private, stolen material was transmitted over the internet via mirror websites which are maintained in different countries all over the world. Further, the press generated by this Court’s action increased public attention to the fact that such information was readily accessible online. The Court is not convinced that Plaintiffs have made an adequate showing that any restraining injunction in this case would serve its intended purpose. See Nebraska Press Association v. Stuart, 427 U.S. 539, 569 (1976). In addition, there is evidence in the record that “the cat is out of the bag” and the issuance of an injunction would therefore be ineffective to protect the professed privacy rights of the bank’s clients. See In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990); see also Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 564 (1980) (law that restricts speech must directly advance the state interest involved and may not be sustained if it provides only ineffective or remote support for that purpose.)

And even better, Judge White recognizes that while an injunction might be proper, it needs to be very narrow.

Narrowly Tailored Remedy.

At the TRO hearing, the Court was concerned that because WikiLeaks failed to appear and no interested party appeared on their behalf, the only effective remedy to stop the leaking of personal banking information was the broad remedy it made available by signing the stipulated permanent injunction between Plaintiffs and Dynadot. However, now that the Court has the full panoply of parties and the interested entities before it, the Court is concerned that an injunctive remedy, if any, that may be available to Plaintiffs should be narrowly tailored and the least restrictive means to achieve the purpose of protecting banking clients from disclosure of their personal information. For example, given sufficient evidence that the Court has jurisdiction to hear the matter and that the restriction would be constitutionally valid, the Court might fashion an injunction requiring the limited redaction of identifying information on the leaked documents. Because the Court is not convinced that the existing permanent injunction is the
least restrictive means to achieve Plaintiffs’ goals, this additional reason counsels against maintaining the permanent injunction or issuing a preliminary injunction at this time.


eAppraiseIT defamation suit dropped

February 29, 2008

I previously reported on the First American eAppraiseIT v. Crowley defamation case. (complaint here)

It appears that the plaintiff has dropped the suit. Florida Today reports:

In a court filing dated Feb. 6, eAppraiseIT said it was dismissing its suit against Crowley because it was “well satisfied” with her acknowledgment during a January deposition that she never had any personal knowledge of any incidents that would support the postings about the company. Crowley also said she never intended to suggest the company had violated any laws, according to the filing.

The company’s suit dismissal follows a judge’s refusal in June to grant an injunction barring Crowley from making, or posting comments from others, about the company on her Web site because he said the company failed to prove defamation or financial harm based on the postings. (source)

Florida Today actually got the injunction issue a bit wrong.

The injunction

The noteworthy element of this case (to me) was the fact that the plaintiff asked the court to issue an injunction prohibiting Ms. Crowley from speaking about the plaintiff until the end of discovery. The judge didn’t deny the injunction because eAppraiseIT failed to show defamation or financial harm. Although that might have been the end result, had there been a trial, the issue came down to the abject legal stupidity of asking a court to issue a prior restraint in a defamation case.

eappraiseit-injunction.jpg

No, ass hat, you don’t stop an American from speaking until you can figure out whether “she has defenses”. This isn’t Saudi Arabia.

Click here for the relevant excerpt of the preliminary injunction hearing and here for the full transcript of the hearing.

The Plaintiff asked the judge for an injunction prohibiting the Defendant from making any statements about the Plaintiff until discovery was completed. In other words, before a single statement was determined to be legally defamatory the Plaintiff wanted the Defendant’s First Amendment rights suppressed until he could complete all of his discovery.

In dismissing the request, the judge held:

Injunctive relief is unavailable to redress a past harm or to restrain an actual or threatened defamation. That’s Rodriguez v. Ram Systems, Inc., 466 So.2d 412…Animal Rights Fdn. of Florida, Incl, v. Siegel, 867 So.2d 451…Demby v. English, 667 So.2d 350, and it says, quote “It is a well established rule that equity will not enjoin either an actual or a threatened defamation.(source)

Your injunction asks me to enjoin something that the district courts of appeal tell me that I can’t do.

With that, the Plaintiff seems to have flailed a bit, asking to orally amend the motion. The court was un-moved.

[Y]ou have to tell me by pleading what you’re asking for, and what you asked for is not permissible under the law of this state, and therefore I deny it. You can file whatever you want to in the future, but what you filed here is not permitted under the law of the state, aside from the First Amendment. So I deny it. Thank you.(source)

Accordingly, the reason that the injunction was denied is that the request was so far beyond what is constitutionally permissible that no competent judge would have granted it — not because the plaintiff couldn’t show defamation or financial harm.

eAppraiseIT sought a clearly unsupportable injunction that, if granted, would have been the judicial equivalent of using the American Flag as toilet tissue. Judge Moxley wisely declined to soil himself or the flag in this manner. (Judges are not eligible for the First Amendment Bad Ass award, but Moxley certainly gets an honorable mention).

Why was the suit really dropped?

I’m not buying the official statement:

… eAppraiseIT said it was dismissing its suit against Crowley because it was “well satisfied” with her acknowledgment during a January deposition that she never had any personal knowledge of any incidents that would support the postings about the company. Crowley also said she never intended to suggest the company had violated any laws, according to the filing.

From what I have read, the suit was doomed from the start. However, the plaintiff was able to drag Ms. Crowley through this litigation for however many months, and thus the damage was done. Ms. Crowley had to pay thousands of dollars in legal bills, her speech was chilled, and anyone else who thought of speaking negatively of eAppraiseIT gave pause to that decision lest they also find themselves the subject of an unsupportable lawsuit.

The “well satisfied” language seems to be a bit of backpedaling. My suspicion is that eAppraiseIT finally figured out that it couldn’t show defamation or financial harm in the case at all — and thus its suit was about to become a far greater liability than any negative comments published on the internet.


Vermont Family Court and Blogger Rights

February 15, 2008

Family law scares me. Too much hate and negativity for my sensitive soul. However, it seems that if you turn over enough stones in any area of law, you’ll find an interesting First Amendment and/or intellectual property issue.

In Garrido v. Krasnansky, the husband, William Krasnansky let off some steam by writing a semi-fictional blog about his marriage and his divorce. He supplements it with passages from his ex-wife’s private diary.

The judge initially “ordered Mr. Krasnansky to take down “any and all Internet postings” about his wife and their marriage pending a hearing next month. (source)

That was clearly an unlawful prior restraint.

The judge, in a commendable act of humility, reversed himself in part. See Order. In his order, the judge notes that Krasnansky’s blog was certainly mean-spirited. But, he notes (as I wish most judges would):

The fact that speech is offensive, profane, irritating or even vexatious does not remove it from First Amendment protection. State v. Allcock, 177 Vt. 467, 469 (2004). (source)

Accordingly, he lifted the portion of his prior order that enjoined Mr. Krasnansky from writing about his ex wife.

However, he recognized the wife’s property interest in the diary’s contents. The judge interestingly notes that copyright law is beyond his jurisdiction, since this is a family court and not a federal court. Nevertheless, he asserts jurisdiction over the diary as a piece of marital property and allows his injunction to stand with respect to reproduction of this piece of property.


Abercrombie Obscenity Flap

February 6, 2008

Virginia is not my least favorite state. It doesn’t even make the top five. Imagine that, home of Liberty University, Jerry Falwell, and Regent University and it… hmmm, okay, it makes the top five – especially after last week’s Abercrombie flap.

Before we get into talking about that, lets take a look at the Virginia state flag:


See that? That isn’t side-boob, that’s full on wardrobe malfunction nipple. Underneath in latin, “Thus always to Tyrants.” This is what Brutus said when he killed Caesar and what John Wilkes Booth said after he killed President Lincoln.

I just want to make sure I’m right here… everyone check with me. Is this really boobie?

virginia-boobie-alert.jpg

Awright, got your irony gun set to “kill?” Good, come with me to Virginia Beach…

Let’s get one thing straight, I despise Abercrombie & Fitch almost as much as I despise Kansas. If hitler were alive today, I believe that the SS would be swathed in Abercrombie from head to toe. It is “Gap for the Master Race.” See here and here.

As far as their scantily clad ad campaigns? Just stupid. I’m not offended by them, but if I want porn, I can find it. Shock advertising is just silly. Nevertheless, we live in a free country. I exercise my right to refuse to shop at Abercrombie every day. Obviously, I am in the minority and my point of view is losing in the marketplace of ideas.

We live in a free country. That is the price I pay.

The Virginia Beach police didn’t get that “free country memo.”

Some parents in Virginia Beach shrieked “what about the children?” when Abercrombie revealed its latest ad campaign – more of the same faux-sepia semi-nude Caucasians.

One of the posters showed three shirtless young men, one with his upper buttocks revealed. The second one revealed a woman’s breast — with all but the nipples. (source)

The police showed up at the store, issued a warning, and when the warning was not heeded, they handed the manager a citation and confiscated the posters as “obscene material.”

One problem, even if they were legally obscene, police officers don’t get to make that decision.

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

  1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

Was the police response to the store an overreaction? Yes, according to legal experts. Though local laws can vary, courts require that the image show sexual activity or a “lewd display” of genitals, says Lawrence Walters, an Orlando, Fla., lawyer and First Amendment specialist.

“There is not a chance any jury in America would find the photo obscene under these standards,” he said. (source)

My axe to grind du jour is the fact that the officers on duty decided that it was their prerogative to apply the Miller test, circumvent the courts, and engage in unlawful prior restraint. Issuing the citation was foolish. However, it was at least proper procedure. Seizing First Amendment protected materials? That was not just foolish, but down right scary.

Fortunately, the amount of ridicule heaped upon Virginia Beach for this foolishness resulted in an immediate reversal of their position. The charges have been dropped.

Okay, Virginia is no longer in the top five.


Just when you thought that Kansas was nutty

February 5, 2008

Just when you thought that Kansas was the nuttiest fruitcake in the Union, along comes Ohio with its new sex offender registration law. Now, a conviction for pandering obscenity is considered to be a “Tier 1” offense requiring that an adult remain on the registered sex offender rolls for 15 years. See Ohio Rev. Code, Chap. 2907.32; Ohio Rev. Code, Chap. 2950.

I am not certain how I feel about sex offender registration. One theory behind it is that we need to be informed so that we can protect ourselves and our families from incorrigible and dangerous criminals. Fair enough. On the other hand, these laws seem to be more punitive than protective in nature. Nevertheless, I am not currently of the opinion that sex offender registration laws are necessarily evil.

On the other hand, requiring someone convicted of an obscenity charge to register as a Tier 1 sex offender?

Other Tier 1 offenses requiring registration include soliciting a child to have sex, or actually having sex with one; voyeurism; date rape, or having sex with someone who is incapable of giving consent; softcore child porn; enticing or stalking a child with the intention of having sex with it; or attempting, abetting or conspiring to do any of those things. (source)

I have no problem with sex offender registration for the offenses above. I would want to know if an actual rapist moved into my community.

But what purpose does a law serve that requires someone to bear the scarlet letter for 15 years — for the offense of selling a “dirty movie”?

One guess…


In Anti-Gambling Craze, First Amendment is Collateral Damage

January 31, 2008

We (okay, I) usually think of the uneducated red states as the anti-freedom bloc. But, the Blue states are doing their part to make sure that Dixie and Utah aren’t the only places where personal liberty is no longer a right. Massachusetts governor Deval Patrick is working on a nanny state anti-gambling law. That one particularly galls me as a native Masshole.

But Washington (the state, not the slum) has taken the lead in stomping on the First Amendment in its zeal to prohibit online gambling.

According to this editorial, a man in Bellingham, WA launched a website about gambling. Mind you, there was no gambling on the website, but state officials still said that the site was illegal.

It’s what the feds would call ‘aiding and abetting,’ ” says the director of the state’s gambling commission, Rick Day. “Telling people how to gamble online, where to do it, giving a link to it — that’s all obviously enabling something that is illegal.” (source)

Looks like Deborah Taylor Tate is going to have to share her ass-hat of the week award with Rick Day.


BidZirk Case a Victory For Free Speech

October 29, 2007

It doesn’t get much better than this (If you like Free Speech) File this under “when will they learn?”

Philip J. Smith keeps a blog http://www.jackwhispers.blogspot.com upon which he comments on tech issues (and occasionally sports). One of his articles discussed an Ebay auction listing company, BidZirk (with which I guess he had a bad experience). Smith discussed Bidzirk, his interactions with its president, Daniel Schmidt, and his negative opinions regarding all bid listing companies.

BidZirk decided to counter the negative publicity with that favorite tool of all petty little crybabies – the defamation suit. For good measure, BidZirk and Schmidt threw in a count for invasion of privacy – based upon the fact that Smith linked to an external website with a picture of Schmidt (and his fiancee Jill Patterson). BidZirk also sued for trademark infringement because Smith used the BidZirk name in his blog entry (yes, discussing BidZirk). Read the rest of this entry »


Prior Restraint – TV Station May Air Broadcast

October 12, 2007

Oct. 12, 2007 · An Orlando television station cannot be restricted from airing a broadcast discussing documents belonging to a political consultant, a Florida appeals court ruled Oct. 4

Previously plagued by an election-law scandal, Orlando-based political consultant Douglas Guetzloe got a Florida court to bar Orlando TV station WKMG from airing any broadcasts covering 80 boxes of documents of which he had recently lost possession. The restraint was later modified to prohibit only reports regarding Guetzloe’s medical documents and communications with attorneys that may have been in the boxes.

Guetzloe had kept the documents in a self-storage unit and when he failed to pay his rent, the owner auctioned the papers off for $10. The purchaser’s identity is unknown, according to court records, but the television station acquired the documents from that third party. Guetzloe said the boxes contain medical documents as well as communications with his attorney and were auctioned off in error.

Guetzloe is a “significant player in Orlando and Central Florida politics,” who was found guilty of one election-related violation and is under investigation for others, said WKMG attorney Jack Kirschenbaum.

WKMG appealed the trial court’s prior restraint and the Florida District Court of Appeal in Daytona Beach overruled the judge’s order.

“At the time the order was entered, we were not sure what was in all the boxes — we still aren’t,” Kirschenbaum said. “There were two categories of records we were prohibited from broadcasting the contents of; one was medical records, which we had no intent to broadcast, and the other was attorney-client records. We are not certain we even have either of those two.”

The court noted that a prior restraint is presumed unconstitutional and rejected Guetzloe’s arguments that his privacy interest in his personal papers met the “heavy burden” in allowing the censorship. Guetzloe had argued that he would have an actionable invasion of privacy claim because of the nature of the medical and attorney-client records. (source)


Injunctions vs. Free Speech? Ever heard of the Constitution?

September 18, 2007

First American eAppraiseIT v.Crowley is the latest assault on free speech in Florida. The defendant in that case publishes a website called Mortgage Fraud Watch List.

From the Defendant’s website:

MFWL is a database of addresses, submitted by real estate professionals from all 50 states, where a sale or refinance transaction has suspicious activity. Mortgage transactions involving these addresses should be scrutinized to insure the accuracy and honesty of all data submitted as part of the loan process. MFWL will direct all potential fraud reports from our members and non members to proper authorities for investigation.

The Plaintiff doesn’t like what the Plaintiff allegedly said about him on that site, so he sued for defamation.

It seems on its face that the suit is unsupportable, but I’ll need to review the pleadings to definitively say so. I will publish an update after I get them in hand (and eat humble pie if my instincts are wrong). (The full transcript of the hearing is here, but I excerpt it below).

Whatever the merits of the case in chief, the Plaintiff’s motion for a preliminary injunction was completely unsupportable.

The Plaintiff asked the judge for an injunction prohibiting the Defendant from making any statements about the Plaintiff until discovery was completed. In other words, before a single statement was determined to be legally defamatory (whether it is or not) the Plaintiff wanted the Defendant’s First Amendment rights suppressed until he could complete all of his discovery – which could take months.

In dismissing the request, the judge held: Read the rest of this entry »


Daytona Grand Shoots for the Supreme Court

September 14, 2007

DAYTONA BEACH — Attorneys for Lollipops Gentlemen’s Club said Thursday they will take their fight against the city’s anti-nudity ordinance to the U.S. Supreme Court.

At the same time, police are gearing up to crack down on strippers and their managers who break city ordinances.

The U.S. 11th Circuit Court of Appeals refused Wednesday to give Lollipops a rehearing in a case in which the court upheld the city’s nudity ordinance, overturning an earlier lower court judge’s ruling that it was unconstitutional.

“We’ve already prepared a jurisdictional brief for the U.S. Supreme Court,” said Brett Hartley, one of the attorneys representing Lollipops.

Assistant City Attorney Marie Hartman, who has handled the case for the city, said city lawyers are ready to take the fight to the country’s highest court. (source and complete article)

This case is the result of a battle that has been waging for years in Daytona Beach.

The City of Daytona is generally populated by very live-and-let-live libertarian types. A lot of bikers came down for Bike Week, and never went home. That has created a social environment that may never attract much in the way of ballet or cappuccino, but if you want a nice cold beer, warm sun, and people who believe in keeping out of their neighbor’s business, Daytona is the place.

Unfortunately, the City is run by censorship minded lunatics. Determined to “clean up” Daytona, the City passed an overly restrictive adult entertainment ordinance with no regard for how much of the First Amendment it tore asunder in the process. The adult nightclubs fought back, and Judge Antoon issued one of the most articulate and well-reasoned First Amendment opinions that I have ever read. See Daytona Grand I.

Daytona appealed, and the 11th Circuit turned its own precedent and that of the Supreme Court on its head in Daytona Grand II.

The Petition for Certiorari is being drafted at this moment, and I’m not sure if I am excited or scared. The current Supreme Court has been extremely conservative and results-oriented. I can’t possibly imagine that the Plaintiffs will go into the Supreme Court any better than down 0-4. However, their attorneys are pretty damn brilliant, and the City of Daytona’s… well, lets just say that I have never been impressed with them.

Daytona Grand… the Constitution is in your hands….


Greektown v. City of Detroit – Adult Entertainment Prior Restraint Smackdown

August 8, 2007

The Eastern District of Michigan declared the adult use provisions of the Detroit Zoning Code unconstitutional because all adult businesses have to be approved by discretionary processes which lack constitutionally-mandated time limits.

Read the rest of this entry »


You can both videotape and publicize police abuse – Jean v. Mass. State Police

July 6, 2007

Mary Jean, who the 1st Circuit described as “a local political activist in Worcester, Massachusetts” publishes a a website critical of Worcester County District Attorney John Conte (www.conte2006.com). Coincidentally (insert sarcastic sneer here), she wound up the focus of an investigation for the illegal publication of a videotape of police misconduct. Fortunately, she lives in a free state.

Read the rest of this entry »


Army Shuts Down Soldier Blogs

May 8, 2007

I am not entirely convinced of the correcntess of either side of the debate on this issue. Wired reports here:

The U.S. Army has ordered soldiers to stop posting to blogs or sending personal e-mail messages, without first clearing the content with a superior officer, Wired News has learned. The directive, issued April 19, is the sharpest restriction on troops’ online activities since the start of the Iraq war. And it could mean the end of military blogs, observers say.

Yes, this is prior restraint. However, once you join the military, you also accept that most of your Constitutional rights are secondary to your mission and your orders.

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).

I don’t agree with a lot of Near’s dicta, but on this one I can’t find much umbrage in my otherwise absolutist stance on the First Amendment.

On the other hand, the regulation does appear to go a bit too far when applied to civilians.

Active-duty troops aren’t the only ones affected by the new guidelines. Civilians working for the military, Army contractors — even soldiers’ families — are all subject to the directive as well.

But, while the regulations may apply to a broad swath of people, not everybody affected can actually read them. In a Kafka-esque turn, the guidelines are kept on the military’s restricted Army Knowledge Online intranet. Many Army contractors — and many family members — don’t have access to the site. Even those able to get in are finding their access is blocked to that particular file.

“Even though it is supposedly rewritten to include rules for contractors (i.e., me) I am not allowed to download it,” e-mails Perry Jeffries, an Iraq war veteran now working as a contractor to the Armed Services Blood Program.

If the information arrives in a citizen’s hands, even if they could review the regulations, I would be very uncomfortable with civilians being required to have any writing on military issues pre-screened by the military. The fact that their writing is governed by regulations that they are not authorized to review is properly described as “Kafka-esque.”

In my minid, the jury is still out on these regulations. Thought provoking comments are invited.