An Open Letter to Journalists

March 7, 2014

Dear Members of the Media,

I sincerely appreciate all of your hard work in bringing us the news of the day. In this day and age, there is a lot of burgeoning information and it is cumbersome to sift through all of it to provide summaries to the masses. However, there is one thing you do not do that is incredibly frustrating–provide citations.

In reporting on a new science publication, you do not always provide a citation so that the interested reader can learn more. Worse, you rarely identify bill numbers, session laws, or case name/citations when reporting legal news. As a privacy attorney, I found the recent Massachusetts “upskirting” issue might warrant attention. It would have been helpful if you cited the case as Comm. v. Robertson, SJC-11353 (Mar. 5, 2014), even better if you provided a link: . Or, when the legislature promptly acted to outlaw the actions taken by Mr. Robertson, it would have been nice if you cited Acts of 2014, Chapter 23 (or H. 3934):

As a journalist, I am assuming you read the primary source, so that way I can trust your reporting, correct? So, since you have the primary source, please make it easier for us and let us know how we can find it, too. Because, if you don’t share, it might turn out that you missed the real story. Let me spell it out for you–Massachusetts just made many previously lawful and proper hidden security cameras potentially unlawful.

According to the new law, it is now unlawful to secretly record images of fully clothed breasts, buttocks and genitals. Full stop. Your nanny thinks she’s alone, but you have a nanny-cam. Sorry, you probably just broke the law. You want to know which of the neighborhood kids have been going into your backyard when you aren’t home and stomping your daisies? That’s double the punishment.

Bad reporting of bad reactionary legislative lawyering. At least the reporting can be easily fixed.

Thank you.

Jay M. Wolman

David McKee, Are you a Tool?

September 5, 2012

I don’t know, but I think you might be learning a thing or two about the Streisand Effect.

Apparently, Dennis Laurion did not like Dr. McKee’s bedside manner, reviewing him thusly:

When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!

Case was dismissed as being pure opinion, but reinstated on appeal.   It is now before the Minnesota Supreme Court.  Regardless of the outcome, gajillions more have seen the negative review.  Lawyers should counsel their clients on the potential of the Streisand Effect when handling cases such as this.


Massachusetts court strikes down ordinance limiting permits for adult businesses

March 27, 2012

By Laura Tucker

A U.S. District Court in Mendon, Mass., granted summary judgment in favor of Showtime Entertainment, allowing the company a special permit to open a live nude dancing venue and invalidating an ordinance that gave the zoning board too broad of authority to deny permits to similar businesses.

In its order, the court reasoned that even if the establishment would have an adverse secondary effect on the community, the court is still “bound by long-standing principles of constitutional law that narrowly constrain” the regulation of activities that are protected by the First Amendment.

The Mendon city ordinance at issue in the case prohibited the operation of an adult entertainment venue absent a special permit from the Mendon zoning board. The ordinance stated that the board “may” issue a special permit for adult businesses, provided that the business did not fall under certain categories.

The board granted Showtime’s application, but determined that the venue would increase the risk of crime in the town and required that Showtime meet certain conditions prior to operation—notably that it limit its hours of operation from 4 p.m. to 1 a.m. and that it provide various parking, security, safety, and noise reduction measures, as well as prohibiting the venue to sell alcohol.

According to the adverse secondary effects doctrine, government officials may limit adult businesses if they are concerned that the business will have negative secondary effects associated with them—higher crime, for example. The doctrine has sometimes been broadly applied by courts, and many First Amendment advocates are critical of its implications.

Section 5.01(f) governs when the board should not grant a special permit for adult businesses, but, according to Showtime, whose reasoning the court adopted, it did not explicitly state when a permit should be granted because it used the word “may” instead of a more definite “must.” The court analogized to a similar Massachusetts case in which the court invalidated an earlier version of the statute for virtually the same reason. Thus, the court held, the ordinance allowed for broad authority in denying such permits, in violation of the First Amendment.

The town argued, however, that the statute did, in fact, state when a special permit could be granted: when the conditions under which the permit should not be granted were absent. The court rejected this reasoning, stating that the statute did not affirmatively state under what circumstances an adult entertainment venue could operate. Furthermore, the court said the town offered no reason to show that the word “may” should be construed as “must.”

The court’s reasoning included a good reliance on authority from Massachusetts cases, and provides a great upholding of the First Amendment, notwithstanding the town’s reliance on the secondary effects doctrine. Even though the court clearly shows its disapproval for such businesses in the second paragraph of the opinion (“the Court is entirely sympathetic to the concerns of the people of Mendon, as reflected in the actions of their public officials, that such an establishment is likely to have a deleterious effect on the community in a variety of ways”), it still did the right thing by invalidating the ordinance.

Fourth Circuit: You don’t have to choose between girls and booze

March 9, 2011

By Randazza & DeVoy

In this recently released opinion from the Fourth Circuit, Gentlemen’s Clubs have won an important victory in their ability to serve alcohol as well as T’n’A on premises.  The decision in Miller (Defendant-Appellant) v. Legend Night Club (Plaintiff-Appellee), Case No. 09-1540, released today, holds that a Maryland Statute that restricts the activities allowed at an alcohol-serving establishment is unconstitutionally overbroad.

Among the conduct prohibited by Maryland Code Article 2B, §§ 10-405(c) and (d) is allowing patrons to caress or fondle employees’ breasts and buttocks, permitting “any employee or person to wear or use any device or covering exposed to view, which simulates the breast, genitals, anus, pubic hair or any portion of it,” the “display of the pubic hair, anus, vulva or genitals,” and so forth.  Violation of any of these provisions results in an establishment having its alcohol license revoked. Md. Code Article 2B, § 10-405(b).  Prince George’s County was added to the list of counties to which these provisions would apply, effectively ending the adult club industry in that area, which is fortuitously close to Washington, D.C.

Plaintiffs originally sought a declaration that the statute was unconstitutional.  In April of 2009, the District of Maryland held that the statute was unconstitutionally overbroad, and could not readily be limited.  The court also found that the statute’s grandfathering provision, which allowed strip clubs to continue operating and serving alcohol so long as they had been doing so since 1981, violated the Equal Protection Clause.  As much as “cougarism” is the in thing these days, hopefully these longstanding establishments would have hired new talent throughout their existences.

At the appellate level, the Appellants argued that the statute was appropriate under the secondary effects doctrine.  Rather than seeking to curtail nudity and erotic entertainment, the Appellants claimed that they were concerned about the deleterious social effects associated with alcohol-fueled adult entertainment.  For those who aren’t First Amendment attorneys, this is the equivalent of facilely shrieking “think of the children” in the face of everything you dislike.

The Fourth Circuit subjected the relevant statute to intermediate scrutiny, requiring that the  Appellants show that the law materially advances a substantial or important interest by redressing past harms or avoiding future ones.  The Circuit panel’s analysis of this standard was driven by the fact that the Appellants could not provide any evidence of harmful secondary effects arising from alcohol served at gentlemen’s clubs in Prince George’s County.

While such restrictions are surprisingly common around the country, they generally apply specifically to strip clubs and similar institutions.  The statute at issue in Miller did not, and its prohibitions, broadly written, applied to every institution in the state that sold alcohol.  Consequently, a wide breadth of protected behavior would have been trapped within the statute’s ambit.  Simulated sex during dinner theater would result in the venue’s alcohol license being suspended.  Virtually any bar that allowed a bachelorette party in its doors would be put out of business by the statute, and the same would go double for bachelor’s parties.  While nobody seriously questions that these events are protected by the First Amendment, Maryland’s law would have stripped any venue permitting them to occur on their premises of their alcohol license.

Furthermore, the Appellants’ argument that the statute would only be applied to adult entertainment venues found no traction in the Fourth Circuit.  Not only was the statute silent on this issue, but Appellants presented no way to read the statute so it would apply only to those establishments.  The state’s brief history of only enforcing the statute against adult entertainment businesses was not sufficient to show the statute had a limited construction.

Because the financial remedy for the harm caused by enforcing this provision would not be adequate to compensate adult club owners, the Fourth Circuit held that the District Court properly entered a permanent injunction against the statute’s enforcement.  The Circuit wrote that: “Regarding the third requirement for injunctive relief, the threatened injury to Plaintiffs easily outweighs whatever burden the injunction may impose. At a minimum, each Plain- tiff faces a loss of its license coupled with a loss of valuable business opportunities.”  The imposition of this injunction imposed no burden on the state of Maryland and furthered the public interest of protecting constitutional rights, even at the expense of crybabies.

Maryland could amend its statutes to circumvent this decision.  Because it already declined to do so in 2007 when the case was originally pending, though, it seems unlikely to do so again.  As a result, the alcohol distribution rights of adult entertainment venues in Maryland are safe for now.  One cannot doubt, however, that some Palinite will agitate against this constitutional protection in the near future.

Likely Backlash Against Assange’s Self-Righteous Crusade

December 17, 2010

by Charles Platt

I’m getting an uneasy feeling when I watch Julian Assange using pretentious phrases such as “my philosophy” and “my work.” (See his latest interview, here.) It’s the same feeling I had when I saw the World Trade Center going down. A feeling that I am watching a golden opportunity for people in power to take away some of my freedoms.

Assange’s self-righteous crusade is sufficiently defiant, and is being done in such a pompous style, some kind of retaliation seems inevitable. Already the UN is on record as wanting to “harmonize” efforts to regulate the Internet, in response to Wikileaks. (See this news item.)

I am old enough to remember how publishers got rid of US laws regarding pornography. They fought a carefully executed, incremental campaign. Freedoms tend to be won this way, slowly but relentlessly, in small steps. Media whores who make grand gestures are not useful in this process. They just provide more fuel for backlash.

We enjoy freedoms online because resourceful groups such as ACLU and EFF fought and won test cases. How unfortunate it would be to see those freedoms squashed because of a prima-donna whose “philosophy” and “work” have been of negligible value so far. It’s important to remember that he is really just another content aggregator, and the material that he has revealed has not been of critical significance. Certainly not important enough to justify a battle that we are likely to lose.

Australian study shows that strip clubs are safer than churches

April 21, 2010

The New South Wales Bureau of Crime Statistics and Research showed that you are statistically more likely to be a victim of a crime at church than in a strip club.

Places of worship also took the lead in sexual offences (16), theft from motor vehicles (33), resisting arrest (7) and liquor offences (10).

Harassment and threatening behaviour at places of worship (30) was over 50percent more than at places of adult entertainment (13). (source)

Worst. Oral argument. Ever.

April 20, 2010

By J. DeVoy

Oral arguments are strange things.  With enough practice, they can be sharp and flawless tools of advocacy, but trying to use them too soon can lead to disaster.  I had a case of the latter during a moot court practice last year.  Eager to enhance my argument, I tried to go completely without notes for my second or third practice.  I also had the added challenge of appearing before my coach and two faculty practice judges.

I brought my legal pad just to be safe.  I had no intention of needing or using it, but thought that having a hedge against total failure would be a good idea.  It was an exciting argument about designated protest areas, personal preferences being doled out by public employees, and secondary effects of government actions that restricted free speech.

My teammate and I were representing the Petitioner, the local government that promulgated this rule.  He went first.  I went over my argument in my head as he spoke, trying to pay attention to the questions the judges were asking.  He, too, was trying to practice without notes for the first time.

Thirteen minutes elapsed and it was my turn to shine.  I took my pad up with me to the podium, addressed the court and began.  It went well for about a minute until I started arguing a different government speech issue regarding employees and political statements.  Whoops.

I caught myself as quickly as I could and turned to my notepad.  The first page had nothing to do with my argument.  “No big deal,” I thought, flipping to the second page, showing no signs that anything was amiss.  Still nothing.  Another flip of the page, this time faster, and still no argument.  I did this again and again, hoping against hope to see the word “Petitioner” emblazoned on the top of any of them.  I brought the wrong pad.  Instead of my legal pad with notes for moot court, I had brought my “idea” pad, which contained so many things utterly useless for my argument.  The beginnings of a screenplay about a Ph.D. student who has his life ruined after discovering and trying to publicize his findings that IQ is 100% genetic.  Ideas for underserved ice cream flavors, such as “Pomegranate Mango” and “Gin.”  People on whom I sought revenge for minor slights both real and imagined.  An analysis on the relative merits of putting Rachel Starr on the front of my annual winter holiday card to family members and whether doing so would constitute fair use.  Not a word about secondary effects.

Inspiration needed to come, and fast, as the time window for looking deliberately contemplative had long expired.  I hoped to summon the advocacy skills of Johnny Cochran, Andrew Rima or Marc Randazza.  All that came to mind were parole hearings, specifically John Lovitz’s in Trapped in Paradise and Charles Manson’s from 1992.  I had no option but to work with what I had.

“Counsel, how are the secondary effects of public safety at all relevant in this case and not an ad hoc justification for the City’s actions?” Asked the judge.

“Well, people are like dinosaurs on the ground, constantly living in fear of the Pterodactyl, which could fly.  It could fly and rain death and pain upon them at any time because other dinosaurs could not, and only the most heavily armored, like the Stegosaurus, could even fathom protecting themselves.  But the public, like the dinosaurs that had brains the size of chestnuts, cannot fathom anything, and it is up to government to do the thinking.  Here, the city wanted to reverse the equities and make the people like the Pterodactyl, taking wing and flying high, high above their collective problems, namely the inevitable bloody clash of protesters and counter-protesters.”  What was I even saying?

“Counselor…what?”  She seemed genuinely confused.  But, I might have been on the way to dazzling her beyond understanding what was happening.

We reach an impasse here, your honor, moving pawn four, er, bishop four to seven.  All the oceans’ contents, if they were the city’s tears, they would not be enough to express the remorse of the city in taking this action.  But it was necessary because public safety in the face of potential rioting is part and parcel of other restrictions this court has affirmed for the sake of public welfare under the secondary effects doctrine, including petty crime and prostitution.  Surely this is as valid, affecting the welfare of the person, as constitutionally permissible restrictions designed to maintain property values based solely on the secondary effects of otherwise permissible speech.”  I was beginning to believe myself and even find my legs.  Alas, it was not to be.

“Bishop…Chess? Dinosaurs? What are you talking about, how does this relate to the regulation of a protest on public property?”  She just wasn’t letting up.  Not that I was giving her any reason to, but this was disheartening.

I decided to stun the bench in a final desperate effort.  “Your Honor, this is about decency, basic human decency, and the right of the state to enforce it when it can limit violence even if it means limiting speech.  This is about what’s right!”  With that, I made a dramatic hand motion that flung my pad at the bench, where it struck with a thud.  The tribunal clearly was rattled.  To this day, I can only imagine the mortified look on my teammate’s face as it happened.

“Counselor, what is the meaning of this?” The lead judge asked, barely below a scream.  “WHAT IS THIS?!”

Defeated, I paused to muster all the aloofness I was capable of and said, “the Aristocrats.”

H/T: Derangement and Description, for giving me an idea I never would have thought of otherwise.

P.S. – None of this actually happened.