From the Trenches at the Nevada Caucuses – Part 1.0

February 24, 2016

This is Part 1 of a 3-part series on the Nevada Caucuses.

1.0 I know Dirty… and I know Elections

The big news of the day is Donald Trump’s runaway victory in the Nevada Republican caucuses. Along with it, “reports” that the process was tainted, crooked, a Trump flimflam. The “sources” for these reports are almost all people griping on social media.

The Republican caucuses that I observed were either clean or they hired Penn & Teller to handle the shenanigans – because I didn’t see a damn thing happen. Maybe it was a little disorganized, but certainly nothing that suggested a dirty election.

I know a dirty election when I see one. In 2004, I was an election observer in Florida, and I saw things that you probably wouldn’t believe happened, even if I had video.

Crowds of black voters came in to vote, noting that “volunteers” had come to their neighborhoods to “help” them register to vote. After taking their registration information, these “volunteers” seemed to “forget” to send in the forms. Oopsie!

Ok, perhaps it was just an honest mistake that dozens of people came in with the same story, that a “nice volunteer” came to their house to “help them register,” and then their registration forms magically didn’t ever get submitted. The black voters, believing they were registered, would not discover the truth until election day – when it was too late to rectify the injustice. “Y’all come back in four years now,” the poll workers said with cheshire smiles and voices as sugary as sweet tea. Some might come back….but, the damage was done for that election.

And in other situations, I recall more than a few voters being told that they weren’t registered to vote, even though they personally turned in their voter registration forms on time. When I showed up by his side, all of a sudden, his name would appear.

After I apparently helped too many of them get ballots, a Republican election observer made a call, and ten minutes after the call, a white van screeched to a halt in front of the polling center, and five stocky, buzz-cut white men (one shaved bald) in red shirts barged into the polling station and demanded that I be removed from the polling place. Finally, the gang of five thugs found a corrupt deputy who ejected me from the place under threat of arrest. I was more than happy to go to jail for the cause. But, when I called the HQ, they gave me strict instructions to stand down — their concern was that if voters saw a civil rights attorney getting hauled off in cuffs, it would most scare the shit out of them, and thus likely be the best vote-suppression strategy the Republicans could hope for.

Outside the polling station, I walked over to a chair, and fell into it. I thought that battle ended before I was born. The emotion that sat on my shoulders and collapsed my whole body was shame – shame at being part of a society that still considered equal rights to be a nuisance, shame that I didn’t do more, shame that I was so naive that until Nov. 2, 2004, I truly disbelieved everyone who told me a story like this. But this time I was there. I couldn’t deny that it happened, and I couldn’t deny that what I saw was an organized effort to deny people the right to vote.

That was a dirty election.

So here in Nevada… were the caucuses really dirty? What were they like?

NEXT: Part 2.0 – Wallowing in the Democrats

This post originally appeared on Popehat. View it here.


Shouldn’t I get CLE for watching?

February 23, 2016

by Jay Marshall Wolman

As a lawyer admitted in multiple jurisdictions, I find myself having to ensure I keep up with Continuing Legal Education (CLE) requirements.  With my CIPP/US certification, I also have continuing education requirements.  Doctors have CME requirements, and other certifications and professions have their own continuing education requirements.  And some don’t.

For example, I’m admitted in New York, D.C., Massachusetts, and Connecticut.  Only one, New York, requires that I engage in continuing legal education. The rest just recommend it.  (Connecticut is in the midst of a debate as to requiring it.)

Continuing education can be a good thing.  Rather than having to retake the bar exam every 10 years, the theory of CLE is to ensure that lawyers remain up to date with developments in the law.  But the theory doesn’t work.

Here’s how I satisfy my biennial 24 hours of NY CLE requirements:  about two months before the due date, I scurry around to find the $99 special for a package of .mp3 recordings containing all mandatory hours.  Then, as I have time in the mornings or evenings, I listen to them.  It’s great to learn about developments in the uniform probate code or handling DUI cases–except that’s not what I practice.  Most of my mandatory CLE is dreck.

One time, I bought a package of all employment law CLE courses.  Not bad, but there was quite a lot of repetition among them.  And still, the package contained hours on employee benefits law, which is not what I practice.  Now, if Connecticut adopts a CLE requirement, I can only hope that the packages I buy will be dual-certified for NY and CT, else it will set me up for an even further waste of time.

Yet, as a lawyer, I continue to develop my practice.  I blog, with many pieces requiring me to learn new and burgeoning areas of the law.  Even my Third Amendment blog required me to read several new law review articles and recent caselaw.  I attend bar programs, listen to webinars, write articles, and read legal developments, many of which aren’t CLE certified.  For example, I just listened to yesterday’s legal blogging panel featuring Scott Greenfield, Keith Lee, Mark Bennett, and Brian Tannebaum; though perhaps it could get certified for NY CLE ethics and practice management, I don’t believe it is.  But a lawyer can learn a lot from it.

Lawyers who get disbarred have kept up with their CLE requirements.  Lawyers who lose malpractice cases have kept up with their CLE requirements.  Lawyers whose clients successfully argue ineffective assistance of counsel have kept up with their CLE requirements.  Opposing counsel who write inane demand letters and absurd pleadings/briefs have kept up with their CLE requirements.

Lawyers already have an ethical duty to be competent, as do those with other licenses and certifications.  Continuing education may be an effort by proxy to ensure competence, but though good in theory, it is lousy in practice.  If the goal is to protect the clients, requiring mandatory professional liability insurance is the best bet.  If the goal is to make the local bar seem more diligent, I can’t imagine who would really care if their criminal lawyer just wasted 2 hours on patent law developments.  If the goal is to perpetuate an industry of CLE providers–well, that one is successful.

 


Two Issues with the FBI & Apple

February 18, 2016

by Jay Marshall Wolman, CIPP/US

By now, practically everyone who cares has heard that Magistrate Pym has ordered Apple to help the FBI crack open an iPhone related to the San Bernadino shooting.  The order is pursuant to the All Writs Act, codified at 28 U.S.C. sec. 1651.  In short, it is a catch-all that lets courts issue whatever orders they feel like.  In response, Apple CEO Tim Cook sent a letter saying he opposed the order.  Notably, he wrote:

But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.

There’s been a lot of discussion, but little focused on two issues that deserve some attention.  First, this isn’t simply asking Apple to turn over a piece of software or asking to borrow a gadget.  They are, if Mr. Cook is to be believed, asking Apple to write new software.  Software is a creative process, a means of expression; this is why it is protected by copyright. Apple itself was instrumental in this determination.  See  Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983).  In a nutshell, the Order is tantamount to ordering Frank Gehry to design a building featuring straight lines and right angles or ordering Stephen King to write a Harry Potter/Game of Thrones cross-over (assuming, in theory, a criminal investigation that would make such desirable).  EFF briefly touched on this last year in similar circumstances.  The All Writs Act may date to 1789, but it predates the ratification of the First Amendment in 1791 and is subject to it.  The Government may not simply compel speech.  See, e.g., Knox v. SEIU , 567 U.S. 310 (2012)(“The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.”).  

Second, there’s a certain subtext in Mr. Cook’s message.  What he says is that it is too dangerous to create, not that it is unfeasible to create.  The issue faced by the FBI is that the iPhone at issue may erase all data after too many failed attempts at a brute-force passcode hack.  So, they want Apple to design a work-around that would enable them to guess all possible passcodes without bricking the phone.  The auto-erase function is a security feature; the iPhone is encrypted by default.  We rely on this as part of our daily security–heck, I’m sure the government relies on it.  We’ve all seen street magicians use incredible slight of hand–how hard would it be for one of our diplomats, officers, or defense contractors to have had a foreign spy (let’s say–North Korean) swipe their iPhone (and SIM cards) and replace it with a counterfeit.  In that scenario, the person would try their passcode 10 times, fail, wonder why, but feel secure that the iPhone wiped itself.  Yet, the real phone would be in the hands of the foreign government.  Maybe the FBI and Apple haven’t yet developed the tool that bypasses the 10-tries-and-erase feature, but a foreign intelligence agency might have.  Our own NSA might have it also, but just isn’t sharing with the FBI.  This tells me that no iPhone is actually secure.  Though there is pretty much no such thing as an unbreakable lock, such a tool might enable a brute force attack on your phone to crack it in as little as 12 hours.  That’s more than enough time before the subject realizes his phone was swapped rather than just suffering a glitch.  As much as we may want Apple to be able to recover our phones if we forget our own passcodes, we really should want them to make a phone they themselves cannot crack.

These are the issues we should be discussing, in addition to whether we generally think it right for the government to ask Apple to hand over the keys to the kingdom.


Justice Scalia Pardoned

February 15, 2016

by Jay Marshall Wolman

From time to time, I read the blog “A Public Defender” by the pseudonymous Gideon.  Today, in the wake of Justice Scalia’s death, he decided to post a dyslogy highlighting the concurrence in Herrera v. Collins.  Gideon summarizes it as follows:

In other words, in Scalia’s opinion, our Constitution would let stand the execution of an innocent man who has received all the due process our society deems adequate and there is nothing that Federal courts can or should do to stop such an execution.

An anonymous commenter also highlighted Justice Scalia’s dissent in In re: Davis:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

Gideon and the anonymous commenter appear to paint Justice Scalia as having been indifferent to the lives of the actually innocent.  He was not:  as the majority in Herrera wrote, with which Justice Scalia concurred:

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. …This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution–not to correct errors of fact….This is not to say that our habeas jurisprudence casts a blind eye towards innocence. …[T]his body of our habeas jurisprudence makes clear that a claim of “actual innocence” is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits….Executive clemency has provided the “fail safe” in our criminal justice system. … It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after discovered evidence establishing their innocence….Our federal habeas cases have treated claims of “actual innocence,” not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive. History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.

The question for Justice Scalia (and the Court) was not whether we should execute those who may be actually innocent, but only whether the judiciary, through the Great Writ, could stop an execution in its tracks to adjudicate whether a person proven guilty beyond a reasonable doubt is actually innocent.  His opinion was one of law–that the writ of habeas corpus was not the proper vehicle.

What Gideon overlooks is the sentence that immediately followed the one he highlighted in bold print:

With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.

It must not be forgotten that the judiciary is not judge, jury, and executioner–the latter is reserved to the executive branch, the branch that possesses the powers of clemency and pardon, a branch that is accountable to the people and the political process.  If an innocent person is put to death, it is not the fault of the judiciary, but rather the executive who turned a blind eye to evidence of actual innocence and the polity who elected that executive.  And, it has been 23 years since Herrera–if Congress felt the Supreme Court unfairly foreclosed a judicial remedy in the case of actual innocence, why hasn’t there been a law creating a judicial pathway, such as an amendment to Fed.R.Crim.P. 33(b)(1) eliminating the deadline to seek a new trial?  When Lily Ledbetter was found to have brought her claim for unequal pay too late, Congress immediately responded.

Justice Scalia wrote what the law is, and those condemning him should show how he was wrong about the extent of the writ of habeas corpus, which by and large they do not. And, those condemning him should be condemning executives and legislatures that do not make it easy for someone to prove actual innocence.  If you care about innocents being executed, focus your energies on those pulling the trigger–the executives.  Convince them not to carry out the execution.  Campaign against those who would execute those you believe are actually innocent.  Blaming a judge for interpreting the bounds of existing law doesn’t make the convict any less dead.

 


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

February 11, 2016

by Jay Marshall Wolman

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

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

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

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

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

Document. Document. Document.  And cross your fingers.

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

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

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

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

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

 


The Moroz Family – From the Soviet Union to the Liberal Gulag

February 9, 2016
A case of overreaction

A case of overreaction

It is said that if you are a young conservative you have no heart, and if you are an old liberal, you have no brain.

As a 46 year old Liberal, I take offense at half of that, but I would not wish to stop anyone from saying it.

Unfortunately, I feel like an endangered species – the Liberal who embraces dissent and debate. As a Liberal, I have always valued education – as I look at places of education as places where we manufacture Liberals — by educating people. To me, wide open and robust debate and the revelation of knowledge will inevitably drive one to the Liberal view – but to get there, we must tolerate views with which we disagree.

I realize that this may not always be the case. But, I have sufficient confidence in my views that I enjoy seeing them challenged, confronted, and either torn down, reconstructed, or galvanized in the fire of intellectually rigorous discussion. If they can not survive this crucible, then they merit their place on the trash heap.

Unfortunately, my view of places of learning as the font from which free speech flows is showing its rust and stretch marks. Now that people (I guess) who are of my like views are largely in charge of education, the prevailing view is to end the debate. Declare victory. The discussion is closed.

A burning example comes to us from Philadelphia, within a stone’s throw of Independence Hall and the Liberty Bell. There, Michael Moroz is the son of Soviet immigrants. I interviewed Michael’s mother, who told me that they left there because they wanted their son to be able to grow up with freedom. Freedom to speak his mind without concern that saying the wrong thing would mean that the state would come down on him. She believed our marketing materials for “The American Way.”

She now believes that America did not come as advertised.

Michael is a high school student at Central High School in Philadelphia, and is also the managing editor of his high school newspaper, “The Centralizer.” He recently wrote an article called “A Case of Overreaction,” which criticized the Black Lives Matter movement.

I didn’t particularly agree with the article, but I found it to be well written and well presented. It was originally printed alongside an article that supported the BLM movement. Two opposing points of view, presented to the reader – who is left to decide which is more persuasive. This was the marketplace of ideas in action.

But, the Regressive Left does not want debate. The Regressive Left does not want, nor tolerate, a marketplace of ideas. The Regressive Left leaves no room for dissent. The Regressive Left does not want a free press, just public relations for them. You’re either with them, or you’re “a racist.”

Michael’s fellow students took to social media to try and convict him, all in one movement, of his treasonous thoughtcrimes. They posted that someone ought to shoot him. There were calls that he must be “dealt with.” One wrote that “[he thinks] his white privilege will keep him from getting ‘popped.’” Even an alumnus proudly wrote, “Black students at Central will handle their business.”

Michael’s fellow editors then censored his article, “If an article comes across as insensitive, and the Central community would rather have it taken down because of this, then the article will be taken down.” Remember, only Moroz’s article was censored for being “insensitive.” Meanwhile, the counterpoint – the “politically correct” perspective was not. Enter the state — administrators backed the decision. (source)

One would expect that the principal would clamp down on threats of violence against a student in his care. After all, if we condone censorship in the name of “sensitivity”, then certainly we would do the same when calling for the boy’s safety to be compromised. One would perhaps expect the Principal to even call for a “safe space” for a minority view like Michael’s to be able to flourish – even if only to be rejected.

Instead, the principal seems to have sided with the censors, although three of the students issuing specific threats were, ultimately, disciplined. (source) The student paper’s faculty advisor promoted someone else to serve alongside Michael as managing editor and then stripped him of the right to access the paper’s accounts. Moroz claims his faculty advisor admitted to diminishing his authority because the paper was “receiving email requests from media.”

Moroz’ parents left the Soviet Union because they did not want to have their son grow up in a country that suppressed and intimidated disfavored political views. They moved to America – Philadelphia no less – so that they could live in a country where dissent and diversity of thought would be welcomed.

Moroz got a little trip into the mentality that his parents sought to escape. He had the wrong politics, and thus he was subject to harassment, intimidation, and a different set of rules than if he would just be a good boy and get in line with the favored viewpoint.

Of course, in Soviet Russia, hyperbole rhetoricals you. And here, the KGB did not kick down his door and whisk Michael off to the Lubyanka building. Nobody froze to death in a gulag. So, I’m not in a state of panic for him. But, this is how it begins. We don’t wake up one day, and overnight, you’re not allowed to have a dissenting viewpoint.

No, first they come for the conservative students, and maybe you don’t speak up because you’re not a conservative student… Michael was subjected to a hail of abuse and genuine threats, with those who should have protected him complicit, even if they were not active participants. (Although, I would say that every adult should have stood up to protect him).

I wouldn’t be half as outraged if Michael simply suffered social ostracism for not conforming to his peers’ prevailing views. Sometimes, thinking a little different than everyone else means you have to take a little shit. But, that’s when the adults are supposed to step in and act like referees – keeping the game fair (at least as long as Roger Goodell isn’t involved).

But, when the administration condones it, even tacitly, something is damned wrong. When the rules for one side of the debate permit censorship in the name of “sensitivity,” but the other side of the debate is licensed to speak, something is terribly wrong. When a student gets death threats for an article in a student newspaper, and every single teacher in that motherfucking school was not standing next to him, supporting him, then the place should be razed to the fucking ground, and every teacher in the place marched out into the fields to grow rice until they drop from exhaustion. Fuck them.

That school “license[d] one side of a debate to fight freestyle, while requiring the other to follow Marquess of Queensberry rules.” See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) That’s not how we do it. At least, that’s not how we are suppose to do it.

Imagine if Michael had written a piece supporting gay marriage, transgender rights, racial equality, or some other happy liberal view, and he found himself attacked and threatened by bigots of the opposite view. Would the result have been the same? I think not.

The school should have protected him the same as if he were supporting gay marriage and he received threats for that view. Give him the same shield as if he were promoting racial equality, and racists threatened him. There is no hope for any of us if we teach that 1817 year old that if he does not get in line with the politically approved doctrine, that we adults condone death threats and violent harassment.

Michael’s entire faculty should have stood up, unequivocally, for his freedom of expression – even if they despised his views. There should have been no question that the trash that threatened him lost all moral authority when they opposed him through intimidation. The entire faculty should have stood up for him.

But that didn’t happen.

Because that’s not the way things are handled anymore. We have “safe spaces.” But not for conservatives. We have a culture where victimhood is currency, and the crybaby is king. We have an intellectual environment where if you dissent from Liberal orthodoxy, you are a sexist, a racist, you’re mansplaining, whitesplaining, or simply worthy of being killed… or at least threatened. After all, you’re wrong, and “they” know it. What use is there for debate or dissent? Let the letter writing campaign begin, because the victims will now be the victors, and to the victors go the spoils.

And funny enough, those who would threaten Michael or tacitly condone the threats are also the first who would screech for remedial racism in the name of “diversity.” Meanwhile, they want anything but “diversity.” There will be one way of thinking. There will be purity of philosophy. You must follow the approved orthodoxy or things can go very badly for you.

That is not what education is about. That is not what America is about.

Mr. Moroz, I promise you, not all of us adhere to this view. We didn’t sell your parents a bill of goods. Its just that somewhere along the way, after they got here, we changed and fucked it all up. Some of us want to change it back, and I think there is still time.

This post originally appeared on Popehat. View it here.


Why we need “White History Month” Too

February 9, 2016
You're missing the point

You’re missing the point

Easy answer:

We do not need “White History Month.”

“White Pride” is not the same as “Black Pride.”

I’m really sick of hearing this garbage, as we hear every February. And remember, I’m the guy who keeps screaming that political correctness and identity politics are out of control. So hopefully that keeps at least one person’s attention here.

Let me explain this to you, if you’re genuinely confused. If you’re just a dick or a white supremacist, you can just jump down to the comments and call me names now. I’m neither getting through to you, nor trying.

Race is a political construct. You know who invented “blackness?” Slave traders. There was no concept of “Black” as an identity before slavery. But, in a world that wanted slaves, but the concept of slavery being completely fucked up, there had to be a way to justify it. It didn’t take genius to say, “lets just enslave people who look really different from us.”

“African American” is an “ethnicity” created by the institution of slavery, and then perpetrated by Jim Crow.

Let me explain this to you in Italian terms:

Before there was an Italian nation, Prince Metternich of Austria made remarked that Italy was just “a geographical expression”. When he said that in 1847, there was no “Italian” identity.  “We” identified with our town or province.  “We” were not a unified people, “we” did not speak the same language.  “Italians” had not all been under the same flag since ancient Rome.

A more aspirational quote came from Massimo d’Azeglio.  After unification in 1861, he said “we have made Italy; now we must make Italians.”  At that time, only 2-3% of the population spoke “Italian,” and even the King and Cavour barely spoke it – speaking regional languages instead.

Although Metternich intended his comment to be dismissive of Italian unity, he was in large part correct.  Someone from Palermo had little in common with someone from Torino. There was no common language, and “Italian” was no more an ethnicity than “Balkan.”  To make “Italians,” it was necessary to forge a unified identity.

Strangely enough, this happened in Italian America even before it really happened in Italy.  Immigrants, arriving here from “the old country” were all looked at as “Italians” by the existing Americans.  In my home town, the “Italian” immigrants (mostly from Sicily) referred to anyone who was not like us as ‘medegani – Americans.  This artificial divide helped forge an “Italian” identity in America – in some ways making d’Azeglio’s dream a reality in Little Italy before it was a reality in Italy itself.

Similarly, but at the same time, really differently, Africans wound up in America from a mishmash of different places, traditions, languages, and ethnic groups. But, unlike the Italians, who didn’t have their languages beaten out of them, didn’t have their families forcibly broken up, and didn’t have the choice to go back where they came from taken from them, the “Blacks” wound up mixing together — forming a “Black” ethnicity.

Now I really chuckle when I hear other Italian Americans say “yeah, well the Italians got treated like shit too.” Fine, yes, they lynched some Italians in New Orleans, and Sacco and Vanzetti were innocent, and went to the chair because they were Italians. If you think that puts Italians at the same level of getting-fucked-over and being the subject of generations of disrespect as the Blacks, you’re out of your lasagna-slinging mind. At least “we” can go back to our ancestral town, if we’re one of the Italians who bother to give a shit where our grandparents came from (and fucking shame on you if you’re Italian and you don’t know).

Meanwhile, the furthest back most African American families are going to trace there heritage is to some bill of sale in Savannah.

Point being, this is a “new” ethnicity, and even once Black America gained its freedom, at about the same time that Italy became a thing, it then found itself under the thumb of 100 years of Jim Crow and capitalism-cum-racism. So, while (for example) the Jews suffered under multiple attempts at genocide, they could reach back to 3,000 years of history and tradition to keep their shit together. Meanwhile, “Black History,” almost didn’t exist.

Duh

Duh

African Americans are descendants of the most fucked over group of people that history has ever recorded. Because I can’t think of any other group of people who were so thoroughly detached from their ancestry, then kept as chattel, and molded into an ethnicity by people who didn’t treat them as human beings.

And meanwhile, your Czech-descended, or Irish-descended ass is worried about whether you need a little bit of “White Pride?”

There is no “White” — ok? “White” is actually a collection of ethnicities, all of which have their own history, their own languages, and their own trail and identity they can pick up. The most downtrodden Pole is still not wondering if anyone knows that Poland gave anything to civilization. We’ve all heard of Copernicus, we all know about Galileo, Nikolai Tesla is practically a folk hero. Anyone “White” who thinks they need “White Pride” or “White History Month” is forgetting that they’re something other than “White.”

And, if you only identify as “White” and not the underlying whatever-you-came-from, then shame on you, or your parents, or grandparents, or whoever decided to let go of the thread of your identity. Nobody cut that on you. Nobody forcibly severed you from that connection. Nobody created your identity. You either still have it, or you gave it up.

You’re not oppressed this month. You may have had a shitty life. Your parents may have too. You may even come from five generations of imbeciles and losers, but that is hardly the same as the black experience. Yes, at some point, Black people have to take responsibility for themselves and stop complaining that white people caused all their problems.

That’s not what Black History Month is about. Black History Month is about recognizing that there is this unique group of people here, who happen to be 13% of the population. They happen to have done at least 13% of the work in bringing America to where it is today. They also happen to have brought much more to the table than great basketball players and collard greens. The fact that some of us don’t know that is something worth dealing with and fixing. Further, its not such a bad thing if the black community has a month to be a little bit more proud, since on average, most months in black history have been really really shitty months.

So please shut up about Black history month (well, at least if it bothers you). Black history month is not “unfair.” Black history month is not racist.

Go enjoy it, show a little respect, and if you’re not careful, you might learn something.

This post originally appeared on Popehat. View it here.


Super Bowling for Dollars

February 5, 2016

by Jay Marshall Wolman

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

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

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

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

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

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


Fair Use and Cleaned Up Batman Porn

February 4, 2016

Holy rusty trombone Batman! They took out all the sex scenes! Holy rusty trombone Batman! They took out all the sex scenes!

For those who have ever had dirty thoughts about their favorite movie character, chances are there’s a porn parody to make all their naughty Hollywood dreams come true. Come on, you don’t have some version of “Anna” from Frozen in your spank bank? Whatever… Princess Leia… Teletubbies? Mr. Rogers? Don’t make me keep going. ADMIT IT!

Well, anyway, the porn industry leaves no market un-served when it comes to Rule 34.

We’re talking about actual plot-driven pornos with feature scripts, long set hours, and highly-paid actors and actresses. These porn parodies are produced by some of the most popular porn production companies and (I think) are protected under the fair use doctrine. There are rational arguments to the contrary, but thus far, I am not aware of any major movie studio that has brought a copyright infringement claim against a porn parody.

But, bizarrely enough, someone is has reversed the polarity on the batteries in this particular gyrating bead-filled sex toy by taking porn parodies, and editing out all the sex scenes, so what you have left is a porn parody without the porn.

Yes, Really.

Which begs the question, “Is a clean version of Batman XXX: A Porn Parody fair use?”

I think not.

In Clean Flicks of Colorado v. Soderbergh, Clean Flicks took commercial films and edited out the “sex, nudity, profanity, and gory violence” in original Hollywood movies, and created new tapes of the edited versions. The newly edited versions were then sold or rented to their customers. The movie studios claimed that these “clean” versions were copyright infringement.

In response to the studios’ counterclaim, Clean Flicks asserted they were “fair use” of the studios’ copyrighted works.

Section 107 of the Copyright Act provides “fair use” of a copyrighted work, such as reproducing the work for the purpose of criticism, comment, news reporting, teaching, scholarship, or research is not copyright infringement.

In evaluating whether a particular use is fair, we look to 17 U.S.C. § 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

With regard to the first factor, Clean Flicks argued it was merely criticizing the objectionable content commonly found in current movies by providing more socially acceptable alternatives. The Court deemed this argument was “inconsequential to copyright law” and held it was not the Court’s job to “determine the social value of copyrighted works.” The Court then considered whether Clean Flicks’ use could be considered “transformative,” meaning whether the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The work was not transformative because Clean Flicks added nothing new to the movies and merely deleted scenes and dialogue from them. The use was also for commercial gain, and the Court consequently concluded the first and second factors weighed in favor of the studios.

Based on the Clean Flicks case, I think that merely deleting scenes from a copyrighted film is not transformative, because there is no new expression, meaning, or message in the Batman XXX sans the XXX. I usually explain it like this — you get copyright by breathing life into something with your creative efforts. If you make new life using other people’s works, then that is probably fair use. But, this doesn’t seem to pass my “God blowing life into dust” test.

Looking at the quantitative and qualitative amount of the copyrighted material used, also favored the studios in the Clean Flicks case because the copies were almost identical to the originals, and used the entire original – except the naughty bits.

With regard to the most important factor in the fair use analysis, the effect on the market for the original, Clean Flicks trotted out the common infringer mantra, “but we’re helping you!” Clean Flicks argued that their infringement actually benefited the studios because Clean Flicks purchased a copy of the original work for each edited copy made, and consumers who otherwise would not have purchased the original films were purchasing the edited versions.

The Court stated, “The argument . . . ignores the intrinsic value of the right to control the content of the copyrighted work in the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public . . . is a question of what audience the copyright owner wants to reach.” Ultimately, the Court held that public distribution of edited versions of the studios’ films for the purpose of eliminating objectionable content did not constitute fair use.

In our porn parody scenario, the infringement seems even more clear. In Clean Flicks, at least they were buying a film, thus not depriving the copyright owner of a sale. However, in this situation, someone bought the video and now is distributing it for free – with the sex scenes taken out.

Who would want to watch a porn movie with no porn in it, you ask? Well, the original Batman XXX is actually a pretty great movie — playing up the 1960s campiness of the original Batman series. Sort of like how Tina Fey is actually a better Sarah Palin than the original Sarah, the Batman XXX is a refined, superior, interpretation of the original. And then there’s the bang scenes.

But, Youtube doesn’t allow bang scenes… so, here’s the non-fappable version… at least until someone DMCAs it.

This post originally appeared on Popehat. View it here.


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

February 4, 2016

by Jay Marshall Wolman

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

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

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

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

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

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

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

 

 

 


PORN! PORN! PORN! WEB PAGES OF DEATH!

February 2, 2016
From Pages of Death 1962

From Pages of Death 1962

And round and round the censorship wheel goes.

Utah State Senator Todd Weiler is just the latest to try and shape the marketplace of ideas to his own superstitious views of morality. Weiler proposed S.C.R. 9, seeking to have pornography declared a public health hazard. The resolution is hilarious – or would be, if it did not take aim at our most important civil liberties, in the name of promoting a narrow view of morality. (A favorite target of mine)

This resolution:
` recognizes that pornography is a public health hazard leading to a broad spectrum of individual and public health impacts and societal harms; and
` recognizes the need for education, prevention, research, and policy change at the community and societal level in order to address the pornography epidemic that is harming the citizens of Utah and the nation.

Pause for a moment as you recall that Utahns consume more online pornography than any other Americans. (source) After the laugh track plays, you might want to be just a little concerned.

Weiler’s theories are not exactly novel. In the late 1800s, Anthony Comstock convinced Congress to pass an Act for the “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use”. This later came to be called “The Comstock Law.” Comstock devoted his life to defending the world from the plague of “immorality,” from contraceptives to works of art. Comstock went after all forms of sexual education, nude paintings by French modern artists, and even masterpieces like George Bernard Shaw’s play “Mrs. Warren’s Profession” and James Joyce’s Ulysses. Before we laugh at the memory of the uptight Victorian moralizer, we should remember that Comstock boasted that he had convicted more than 3,000 people and destroyed “160 tons of obscene literature.” 3,000 lives ruined because it chafed someone’s narrow view of “morality.”

The Comstock Laws began to crumble as the light of the First Amendment began to shine on them. In a landmark decision, United States v. One Book Called “Ulysses,” judge Woolsey wrote “If one does not wish to associate with such folk as Joyce describes, that is one’s own choice. In order to avoid indirect contact with them one may not wish to read ‘Ulysses’; that is quite understandable.”

Dickhead

Dickhead

Unfortunately, this did not exorcise Comstock’s ghost. He continued to haunt freedom of expression – with anti-pornography propaganda becoming the stuff of today’s comedy. The Oregon Historical Society just uncovered a campy Reefer Madness – style video, “Pages of Death,” telling the fantastic tale of Paul Halliday, who “hung out reading pornography at Baker’s Variety Store until he couldn’t stand it any longer and murdered a girl in a whipped up frenzy of smut inspired rage” (source) It ends with a call to action, imploring parents that the next victim of a sex-crazed pornography consumer could be their little girl.

Clearly Comstock and “Pages of Death” peek at us from behind “conservative” positions. But, the very theories that they espoused came back, yet again, in the 1980s, when feminist academics began to ironically resurrect the Comstock laws. I say “ironically” because the Comstock laws were used not only to punish smut, but to punish distribution of intormation about birth control, abortion, and prevention of sexually transmitted diseases.

But with no sense of irony, the Left picked up the torch of the Right and in Indianapolis, they passed a law that said that the mere existence of pornography (as they defined it) was a civil rights violation. Fortunately, the First Amendment did not permit these laws to remain on the books, at least not in the United States. In American Booksellers v. Hudnut, a court threw them out as clearly content-based restrictions on First Amendment protected content, writing “the First Amendment means that government has no power to restrict expression because of its message [or] its ideas.”

When John Ashcroft came into office, his justice department was tasked with “cleaning up” pornography, and it dutifully complied — prosecuting, and jailing, Americans for no worse crime than producing movies that the government did not like. The crime was “obscenity,” which is the only crime you can commit without your conduct being illegal. All books and films are presumptively First Amendment protected. That protection is only stripped away if a jury watches the film and determines that it appeals to the prurient interest, that it describes sex in a patently offensive way, and “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Once the jury makes that determination, then the work is no longer protected – but the American who made it or sold it is carted off to prison.

And now, we have this “obscene” tradition being taken up by Senator Weiler – again from the conservative side of things. His proposed law sounds almost as if it were lifted right from Pages of Death. It blames pornography for stunted brain development, emotional and medical illnesses, deviant arousal, harmful sexual behaviors and even biological addiction. He did leave out “and it will definitely make you murder little girls,” but if you read the resolution enough, you can hear that in the background.

Even if you don’t enjoy pornography — even if you despise it — this should trouble you. If you think not, remember that when the government tries to interfere in the marketplace of ideas, we all lose.

Remember the Indianapolis ordinance discussed above? Its proponents were rabid feminists, Catharine MacKinnon and Andrea Dworkin. They saw it defeated in court here in the United States, but they also pressed for such laws in Canada, where they remain on the books. However, rather than ending hardcore pornography north of the border, they have primarily been used to suppress gay material. This was a far cry from the mission these feminist moralizers sought to promote. And if you think you don’t like “obscene,” material, you need only look at 18 U.S.C. § 1462, which provides that even talking about abortion is , technically “obscene.” (Although no conviction under that would ever stand).

The lesson from that is to be careful when you call for, or even acquiesce to, restrictions on free expression. You never know when that will backfire on your point of view.

In Abrams v. United States, Justice Oliver Wendell Holmes wrote a passage that ultimately became the cornerstone of a liberty-based view toward free speech, and which became the dominant theory in First Amendment jurisprudence. In Abrams, Holmes gave us “the marketplace of ideas.” And what a brilliant theory it was.

Holmes noted that if someone was completely confident in the belief that they were right, then it would seem logical that they would want to suppress dissenting views. “If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.” Those who wish to wipe out pornography have no doubt that they are right, but they are precisely wrong.

Holmes, on the other hand, was right when he wrote: “[T]he ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market…That, at any rate, is the theory of our Constitution.”

Weiler’s proposal is directly at odds with our theory of the Constitution. It belongs in that discredited junk pile of ideas right on top of the rotting pages of Comstock and MaCKinnon’s warmed over dreck, as it even lacks the campy humor of “Pages of Death.”

Update: I am informed by a commenter that the “Utahns are more porny” study is bunk. And, it seems that it is bunk. Does that change the article any? I think not. But, let us not rest our tale on bullshit.

This post originally appeared on Popehat. View it here.


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

January 30, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

No way.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This post originally appeared on Popehat. View it here.


Sen. Cruz is an Unnaturally Born Citizen

January 28, 2016

by Jay Marshall Wolman

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

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

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

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

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

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

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

Ron Coleman

Ron Coleman

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

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

John Connell

John Connell

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

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

Joel Mac Mull

Joel Mac Mull

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Well, that doesn’t concern me.

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

____

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

This post originally appeared on Popehat. View it here.


Beware of Good Intentions When it Comes to Censorship

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This post originally appeared on Popehat. View it here.