The First Amendment is not a free pass to harass

December 16, 2015

Screen Shot 2015-12-15 at 8.11.29 AMA charter school in Washington DC is suing abortion protesters. (source) Why? Because Planned Parenthood is opening next to the school, so the abortion protesters have decided to focus their protests on the children, parents, and employees of the school.

Nobody ever said that abortion protesters were required to use logic.

Although one might say it is logical. The protesters hope that the parents at the school will use their political clout to demand that Planned Parenthood move, so their kids can get back to getting an education.

The school is suing for intentional infliction of emotional distress and for relief from a private nuisance. (complaint) Further, they are seeking an injunction to limit the anti-abortion folks’ right to protest.

The intentional infliction of emotional distress claim seems doomed. See Snyder v. Phelps, 562 U.S. 443 (2011). No matter how outrageous the speech is, including showing 3 year olds pictures of aborted fetuses, we can’t call that IIED. On the nuisance front, the claims might make it. But, what about the injunction? The school says that the protests go beyond merely getting the anti-abortion word out, and the court should limit the protests.

That pings my free speech Distant Early Warning Line. I have a rather expansive view of what the First Amendment protects. But, even I do not say it is limitless. Often, I get questions that try and seek out where the limits are, and my usual response to them is “that’s fucking stupid.” So.. that ought to indicate how far out the boundaries actually are, in my eyes.

With that, I present to you a case out of Florida that gives us some instruction in a case like this one. Thoma v. O’Neal, ___ So.3d ___ (Fla. 4th DCA 2015). In this case, Ms. O’Neal worked at an abortion clinic, and Thoma was a protestor. Thoma followed O’Neal to her car, followed her to her community, and then plastered her community with flyers exhorting her neighbors to ask her “to please stop assisting the abortionist with the killing of black babies.”

Ms. O’Neal sought an injunction to stop Thoma from harassing her. The trial court granted it:

the trial court explained on the record that a course of conduct constituting harassment as stalking was established by two instances: (1) the incident where the Victim saw Thoma following her in his car after leaving work, and (2) the flyer distributed by Thoma, which the trial court found “crosses the line” protected by the First Amendment. After determining the two incidents established a course of conduct showing harassment sufficient to constitute stalking, the trial court granted the injunction (Op. at 2)

Thoma appealed, and O’Neal did not file a brief in opposition. Nevertheless, the appellate court upheld the injunction. Despite the abhorrence that the Constitution and I share when it comes to injunctions against speech, neither of us are offended by this one.

One thing that could make it inoffensive would be if there happened to be a “true threat.” The court found that none existed here. However, the court still upheld the injunction on the grounds that a speaker’s First Amendment rights end at the door to your home. The 4th DCA relied upon Operation Rescue v. Women’s Health Center, Inc., 626 So. 2d 664 (Fla. 1993), which itself relied upon Frisby v. Schultz, 487 U.S. 474 (1988)

Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different. “That we are often captives outside the sanctuary of the home and subject to objectionable speech . . . does not mean we must be captives everywhere.” Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom. (Operation Rescue at 672, quoting Frisby, 487 U.S. at 484–85

The Appeals court also relied upon Rowan v. United States Post Office Department, 397 U.S. 728, 738 (1970). That case held “the right of every person ‘to be let alone’ must be placed in the scales with the right of others to communicate.” 397 U.S. at 737. (“no one has a right to press even ‘good’ ideas on an unwilling recipient. That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. The asserted right of a mailer, we repeat, stops at the outer boundary of every person’s domain“)

Because Thoma generated, mailed to the Victim, and distributed to her neighbors the flyer, which not only conveys a message he knew the Victim did not want to hear (and is a racial slur), but also clearly identifies the Victim by name and face, gives the reader her home address, and then invites the reader to dissuade the Victim from assisting in abortions, we are satisfied the flyer seeks to invade the privacy of the Victim’s home, and the trial court properly determined the flyer was generated, mailed, and distributed with the intent to harass the Victim. Thoma’s behavior with reference to the flyer and his attempt to push his message on to the Victim at her home is not protected by the First Amendment. Thus, we uphold the trial court’s finding that the Victim proved a course of conduct constituting stalking and was entitled to an injunction.

The court did find that the lower court’s injunction was over broad, but since it had expired, it was moot.

While this is a Florida appellate case, it ought to be instructive (especially given its reliance on U.S. Supreme Court precedent) as to where the line might lie. Mr. Thoma might have had every right to stand on the sidewalk near O’Neal’s place of work and hold up signs. But, when he decided to bring the campaign to her doorstep, that went over the line to harassment, and was properly the subject of an injunction.

So what about the school?

This is not someone’s home, so the Thoma court’s analysis would not stick to the entire pane of the glass here. However, the logic is the same. Communicating a message is one thing. But, when you take it over the line to actually impede unrelated parties from getting into a school? That just might cross the line. I think that the DC Court would be within its rights to issue a limited injunction, prohibiting the protesters only from impeding access to the school. Perhaps, the injunction could even limit protesters focusing on the school when the kids are coming, going, and outside at recess.

I’m not saying it would definitely be right if the school were actually the subject of the protests. That would be another story.

But, in this case, one has nothing to do with the other. The protesters are neither against the school, nor trying to change anything at the school, nor trying to influence the school — all they’re trying to do is harass the kids and their families, so that the parents at the school will then unwillingly join the cause of trying to stop the Planned Parenthood facility from opening.

The First Amendment does not abide extortion. The First Amendment does not give you a right to harass. It most certainly does not give you a right to harass other people so that you can conscript them into supporting your message, just so you’ll just leave them the fuck alone. That’s not the marketplace of ideas in action. “Winning” on the basis of having the stronger idea is one thing, “winning” by harassing people into backing you up is something the First Amendment need not abide.

This post originally appeared on Popehat. View it here.

Revisiting Prostitution

December 15, 2015

by Jay Marshall Wolman

My recent post on the Ninth Amendment got me thinking about Griswold v. Connecticut, and its progeny, including Lawrence v. Texas.  Although the latter explicitly stated it wasn’t ruling on prostitution, it didn’t say it wasn’t protected.

Assuming a logical thread from Griswold, the case law is that, basically, whatever two consenting adults choose to do in private is private and the government should not be intruding.  There are governmental interests in preventing abuse (based on consent or ability to consent) or preventing public sex, but other than that, how is prostitution still a crime?  The government has no interest in restraining two (or more) consenting adults from having intercourse.

States do have the ability to declare certain contracts unlawful–working for less than minimum wage, selling contraband–and otherwise set limits on commercial activity.  Thus, I would think that attempted prostitution/solicitation might still be lawfully prohibited (the two are still free to agree to have sex, so there isn’t a restraint a la sodomy prohibitions and attempted sodomy).  But, the actual sex act itself is private.  And, if violation of constitutional rights results in evidentiary suppression for 4th and 5th amendment violations, then evidence of the sex act itself should be inadmissible.  Once inadmissible, the prima facie case disappears and the charge should be dismissed.

I did say attempted prostitution/solicitation might be prohibited.  Marc previously distinguished prostitution and pornography, but I think that the First Amendment angle might be a way to go.  Producer A can hire Actors B & C to have sex for money, so long as it is expressive activity.  Can Producer A also insert himself into the scene with B & C or even with just B?  I don’t see why not–Jason Segel produced and acted in Forgetting Sarah Marshall and The Muppets.  Basically, so long as you film the encounter (or have a live audience), you can call it expressive activity.  And performers have been known to be the videographers–e.g. Blair Witch Project and some documentaries.  All that’s left is film distribution issues–so long as the John gets the recording at the end, but with a restriction that he and the prostitute will later have to agree on any viewing by a third person, then the pornography exemption could swallow any law regarding attempted (or actual) prostitution.

This, of course, is just an initial musing, and not a law review article or appellate brief.  But, critiques are welcome.  How am I wrong on either privacy or 1st amendment (with subsequent contractual) grounds?


Good First Amendment Case – Biro v. Conde Nast

December 15, 2015
Well done, Judge Lohier.  Brennan smiles upon you.

Well done, Judge Lohier. Brennan smiles upon you.

Peter Biro was the subject of a 2010 article in The New Yorker. Biro sued the publisher and other defendants who allegedly republished statements from the original article. Since Biro was deemed to be a limited purpose public figure, the court dismissed the claims against him because he did not allege sufficient facts to plausibly support an eventual finding of actual malice. The Second Circuit affirmed the dismissal in Biro v. Conde Nast.

The facts of the case really don’t matter for the purposes of this post. For all I know, Mr. Biro got a really raw deal, and the defendants really did defame him. So, for the sake of this article (and the comments, please) lets give him that benefit of the doubt. Nevertheless, he’s done us all a good service by causing the 2d Circuit to issue this opinion – because we need opinions like this.

Because there are censorious asshats, and they find attorneys.

Often defamation complaints are really just complaints of aggravated butthurt. Some asshat with money decides to sue over some perceived slight, and that asshat with money manages to find a slimy lawyer willing to take some of that money.

When it comes to defamation, it is not a simple matter of (False Statement) + (Angry Plaintiff) = Defamation. When a plaintiff alleging defamation is a public figure, he or she must show that the allegedly false statements were made with actual malice – that is, knowing falsity, or a reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 779 N.E.2d 167, 171 (N.Y. 2002). Such public figures can include limited-purpose public figures who “have thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). It is not necessary for a plaintiff to be a household name to be a public figure, either; he or she may be a limited-purpose public figure within a certain community for the same public figure standards to apply. Huggins v. Moore, 726 N.E.2d 456, 460 (N.Y. 1999). It is not even necessary for a public figure to seek the limelight to be held to this standard – it is possible to be a public figure by mere circumstance, rather than concerted effort. See Gertz, 418 U.S. at 345 (“it may be possible for someone to become a public figure through no purposeful action of his own”).

What’s so great about this Biro case? It is the first case out of the 2d Circuit to confirm the new standard for a defamation case to get past a motion to dismiss. Ever since the Iqbal/Twombly standard came into being, complaints have to at least plead plausible facts on their face. Naked assertions or conclusory allegations are not enough. Therefore, a public figure can’t just say “this guy said something about me, it is false, and he said the falsehood with actual malice.” It requires more. It requires at least an allegation, anchored to provable facts, that the defendant made the statement with knowing falsity or a reckless disregard for the truth.

malice must be alleged plausibly in accordance with Rule 8. Our sister circuits that have considered the issue agree. See, e.g., Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir. 2013) (“States of mind may be pleaded generally, but a plaintiff still must point to details sufficient to render a claim plausible.”); Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012) (“[M]alice must still be alleged in accordance with Rule 8—a ‘plausible’ claim for relief must be articulated.”); Schatz v. Republican State Leadership Comm., 669 F.3d 50,58 (1st Cir. 2012) (“[T]o make out a plausible malice claim, a plaintiff must still lay out enough facts from which malice might reasonably be inferred . . .”).

This doesn’t stack the deck insurmountably high against the legitimate plaintiff either.

For example, a plaintiff may allege that “a story [was] fabricated by the defendant” if the defendant provides no source for the allegedly defamatory statements or if the purported source denies giving the information. St. Amant v. Thompson, 390 U.S. 727, 732 (1968). Or the plaintiff may point to the fact that the allegedly defamatory statements were “based wholly on an unverified anonymous telephone call” or were published despite “obvious [specified] reasons to doubt the veracity of the informant or the accuracy of his reports” or despite the “inherently improbable” nature of the statements themselves. Id.

And Mr. Biro? I don’t know, maybe he was really defamed. But, he didn’t allege any facts that, if proven, would have shown that the defendant knew that the facts were false, or that the defendant royally screwed up in publishing them. Maybe Biro was a dick who shouldn’t have sued, or maybe he just had a lawyer who didn’t know how to write a defamation complaint. I take no position on that, because I don’t care. What I do care about is that Mr. Biro has now unwittingly made us all a little more free — especially if you live in the 2d Circuit.

[UPDATE] – Via Twitter, someone asked a good question: “How could one overcome the malice requirement if a reporter shields their sources, or just claims an “inside source”?” I think this warrants an update:

1. Often, the actual malice requirement won’t matter. For example, when a case is brought over words that are not actually defamatory. But, a reporter can never simply say “I had a good source, but it is confidential, therefore no actual malice.” The reporter will need to decide between protecting his source and protecting his own liability.

But, that doesn’t always have to be a rock-and-a-hard-place decision.

A recent 1st Circuit case gives us some insight into how you can deal with that. See Pan Am Sys. v. Atl. Northeast Rails & Ports, Inc., 2015 U.S. App. LEXIS 17687, *4 (1st Cir. 2015)

Worried that a fight over the fault element might require them to divulge confidential sources and threaten their First-Amendment interests, defendants proposed — and the district court accepted — having the parties do discovery on all issues except fault, followed by summary judgment on those issues, followed by discovery on fault if needed. See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597-98 (1st Cir. 1980) (discussing how bifurcated discovery like this can protect a defendant’s journalistic sources).

Although one won’t always have such an enlightened judge, this is a reasonable means to protect sources — figure out everything that does not require revealing sources. Then, if that’s the last question to answer in order to resolve the case, you make the decision then.

This post originally appeared on Popehat. View it here.

Happy 5/6 Bill of Rights Day

December 15, 2015

by Jay Marshall Wolman

We here at the Legal Satyricon are big fans of the Bill of Rights.

Over at the Runt Piglet Squeals, the official blog of the Third Amendment Lawyers Association, I have a post  discussing the less commonly understood history of the proposal and ratification of the Bill of Rights.  The tl;dr version:  it was originally 12 articles and numbers 3-12 became amendments 1-10 of the U.S. Constitution on Dec. 15, 1791.  (Article 2 became the 27th Amendment on May 7, 1992, yes, 1992.)

One thing I noted in that post is that, if another 27 states ratified Article the First, the Congressional Apportionment Amendment, we would have about 6,400 members of Congress.

Originally submitted with the rest, Article the First reads:

After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

By my rough math, with about 319 million people in the United States, that is about 6,380 representatives (319m/50k).  However, since it is by state, we would really need to divvy up the population of each state by 50k and add.  So, I’m approximating.  (There’s also some neat math where you need at least 1 per 40k but no more than 1 per 50k.)

Other than debate being interminable, it might not be a bad idea to have 6,000 more representatives.  They would clearly be more responsive and have more opportunity for oversight.  On the other hand, it might be more governmental bloat.  Debates would need to be limited significantly.  But managing that many members would likely also promote greater sub-factionalizations; there would be more opportunities for a centrist party to arise and for governing coalitions to be built, ones that might vary from time to time.

There are those who maintain that when Kentucky entered the union and ratified the entirety of the bill of rights, Article the First became law, assuming that if 3/4 of the states results in a fraction, you round down if under .5 rather than always rounding up.  Eugene LaVergne also contended he discovered that Connecticut actually ratified all 12 in 1790, but the ratification was misfiled and never transmitted (thus the 3/4 threshold was reached before Kentucky was admitted even with rounding up).  Mr. LaVergne even brought suit, but was shot down.  The district court judge even wrote, at Footnote 2 “I recall that when I was practicing, Mr. LaVergne was always a very competent and professional adversary; however, this case is of a different ilk.”  LaVergne v. Bryson, 2011 U.S. Dist. LEXIS 144955 (D.N.J. Dec. 16, 2011).  He was again denied at the Third Circuit.  See Lavergne v. Bryson, 497 Fed. Appx. 219, 2012 U.S. App. LEXIS 19754, 2012 WL 4127268 (3d Cir. N.J. 2012).  Mr. LaVergne was found to lack standing and the issue was otherwise deemed a nonjusticiable political question.  A petition for a writ of certiorari was denied by the Supreme Court.  LaVergne v. Blank, 133 S. Ct. 1275, 185 L. Ed. 2d 185, 2013 U.S. LEXIS 1161 (U.S., Feb. 19, 2013).

If Mr. LaVergne is right about Connecticut’s ratification, it also means that Congress probably overpaid itself when it violated Article 2.  But, it’s a bit late to claw that back.  It also means that pretty much every law was unlawfully enacted since 1791.  Personally, I’d love to see a better case brought, just to watch what happens.





She’s/He’s Got The Jack, Do You Got a Case?

December 12, 2015
If I am ever general counsel for Taco Corp, these will be the kinds of things I guess I will have to deal with.

If I am ever general counsel for Taco Corp, these will be the kinds of things I guess I will have to deal with.

A guy went on Tinder, picked up a woman, and got herpes from her. Yeah? Why is that news? Well, the guy sued her for giving her the as-of-today incurable disease. (source) The woman knew that she had herpes, but she lied to the guy about her condition. She claims that she only thought it would be contagious during an outbreak. He is now suing her for giving him the virus.

Does he have a case? Probably.

People do bad things to one another with their genitalia. In one case I reviewed, a wife accused a husband of intentionally infecting her with an STD. Adam M. v. Christina B., 2013 Alas. LEXIS 73 (Alaska June 5, 2013). This guy went around and tried to give HIV to thousands of people — on purpose. But, lets set aside the extreme example of the Lord Jeffrey Amherst school of sexually transmitted disease transmission. That’s easy. You give someone a disease, with the specific intent of giving them the disease, you’re probably going to jail, and you’re definitely going to be subject to tort liability.

If I were to ever put this issue on a torts exam, (and if I ever teach torts, I probably would) I wouldn’t use the Tinder story. I’d probably use this AC/DC story: The AC/DC song, “The Jack” is a very thinly veiled story about a venereal disease carrier. Bon Scott had Gonorrhea, and he knew it, but he had unprotected sex with a woman just the same. Well then, she had sex with Phil Rudd (AC/DC’s drummer), and she unknowingly passed it along to him. But, given the rapid succession of partners, she thought that she caught it from Rudd, so she sent him her $35 doctor’s visit bill. At the next show, Scott then brought her on stage and told her that it was he who actually owed her the $35. (source) The story doesn’t continue to tell us if Phil Rudd then got it from the unnamed woman (lets call her “Jackeline”), but for the sake of lawsplaining, lets presume he did.

Who owes whom?

Well, Bon Scott is right, he is likely liable to Jackeline. He had a venereal disease, yet he had unprotected sex with her, apparently without warning her so that she could either take precautions or assume the risk. Some might even call it “rape” if Scott had sex with Jackeline under false pretenses, but I’m not buying or selling that theory. Nevertheless, “you broke it, you buy it” works for The Jack too.

But, what about Phil Rudd? Jackeline gave it to him, right? Is she liable? Probably not. But what about Scott being liable to Rudd?

Normally, to be liable for transmitting an STD to someone else, you have to have actual or constructive knowledge that you’re infected. Rossiter v. Evans, 2009 Iowa App. LEXIS 1720 (Iowa Ct. App. Dec. 30, 2009); McPherson v. McPherson, 712 A.2d 1043, 1046 (Me. 1998); Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989).

Ok, but what about this constructive knowledge? What does that mean? “Actual knowledge” means you “actually know.” “Constructive knowledge” means you know, or you should have known.

You should have known you have The Jack? The Supreme Court of Vermont addressed this in Endres v. Endres, 968 A.2d 336 (Vt. 2008). “A plaintiff will rarely be able to show that a defendant had actual knowledge of his or her infection.” Therefore, constructive knowledge is enough. In California, there was a rejected argument that a defendant must have actual knowledge of the STD. John B. v. Superior Court, 38 Cal. 4th 1177, 45 Cal. Rptr. 3d 316, 137 P.3d 153 (2006) The court ruled “We are not persuaded that California should be the first jurisdiction in the country to limit liability for the negligent transmission of HIV only to those who have actual knowledge they are HIV positive.”

But, how far does this “constructive knowledge” go? Should Jackeline be liable to Rudd because she should have known she would catch something? I’d imagine that if someone is promiscuous enough that they’re not even sure who gave them an STD, they are on some kind of constructive notice that they picked something up somewhere along the way, no?


In Doe v. Johnson, 817 F. Supp. 1382 (W.D. Mich. 1993). A woman claimed that she got HIV from Magic Johnson. She claimed that he should have known he had it, and should have disclosed his sexual history to her prior to having sex with her. After all, his list is legendary. Nevertheless, the court did not find that such a duty existed.

I find that imposition of a duty to disclose a “high risk” lifestyle prior to sexual conduct, which theoretically puts a sex partner “at risk,” would open a door better left closed. Doe v. Johnson, 817 F. Supp. 1382, 1393 (W.D. Mich. 1993)

McPherson v. McPherson, 712 A.2d 1043 (Me. 1998) dealt with a less famous party, but similar issues. In that case, a married defendant had an extra-marital affair, contracted HPV, and then gave it to his wife. Since Mr. McPherson never tested positive for HPV and never experienced any symptoms of HPV, he was on neither actual nor constructive notice of his infection. Thus, he was not liable to his ex-wife.

And more recently, a Florida Appellate court tossed out an argument that a high-risk fucker should be liable to the fuckee for any transmission of an STD. Kohl v. Kohl, 149 So. 3d 127 (Fla. 4th DCA 2014). In that case, like McPherson, Mr. Kohl was accused by his wife of sleeping around, but this time with hookers and escorts. Id at 131. This still was not enough constructive knowledge.

Therefore, unless something changes, “constructive knowledge” in this context means “constructive knowledge that you have a disease” not constructive knowledge that you’ve done things that someone would reasonably extrapolate makes you high-risk.

So Scott owes Jackeline, for sure. Jackeline does not owe Rudd. But, what about Scott owing Rudd, if he got an Scott’s Jack from Jackeline? I have never seen a case where the plaintiff is seeking compensation for an STD that he contracted from a girl, who didn’t know she had it, from the guy that gave it to her. But, under normal tort principles, such a case might be successful. If you bang someone, and you know you have a communicable disease, and you give it to them, then you should be liable for the reasonably foreseeable results of that bangage, right?

So, if the result is that you give the STD not only to Jackeline, but to your eskimo brother, that’s a reasonably foreseeable occurrence.

This post originally appeared on Popehat. View it here.

The Man in the High Castle in Albany and The First Amendment

December 11, 2015

The Man in the High Castle is a piece of alternative history fiction, which imagines an alternate future in which fascist forces won World War II. The Nazis occupy the eastern part of the United States, while the Japanese take up residence in the west. The Italians are non-existent in the series. You would think that they would get Rhode Island, Connecticut, and New Jersey… but I digress.

So there is an alternate future in which America loses its civil liberties and fascist forces occupy it. There is a surveillance state. Political dissent is not tolerated. Hmm… add in a butterfly ballot and some hanging chads and its… well, I digress again.

Suffice to say, this alternate future provokes the imagination. What lessons does it teach us? There is something for everyone in it. Stand up to fascism? Defend the homeland? We should all be armed?

But, in a day and age when Americans flee both left and right to avoid thought, it just couldn’t be without some controversy. Someone had to complain that it invaded their “safe space.” THEY’RE FEELS!!! THIS IS ARE COUNTRY!!!

Amazon bought some subway ads displaying the flags of the fictional Japanese and Nazi puppet regimes. Entire subway cars appeared as you might imagine them if The Man in the High Castle were a work of non-fiction. There is a red, white, and blue “rising sun” flag, and a stars and stripes that replaces the 50 stars with one big fascist looking eagle.

It makes you think.... NO, NOT THAT!  NOT THINKZ!

It makes you think…. NO, NOT THAT! NOT THINKZ!

It made me say “it kinda makes you think, doesn’t it?”

That’s the point.

It makes you think.

It is supposed to make you think.

It makes you think “what if we had not prevailed in World War II” Or, at the very least, it makes you think “what the hell is going on here?” Then, maybe you ask someone in the subway “what is all this?” You think. You talk. You have now entered the marketplace of ideas. Look around. There is some scary stuff for sale here. The good news is that there is other stuff that you might like.

Go ahead. Pick it up. Smell it. Leaf through the pages. You can even taste some of it if you like. Then decide.

Well, that is until the FEELINGS show up like the bat-winged pterodactyls that buzz my car every time I break 120 mph on Interstate 15 on my way back to Las Vegas. Then everything gets all twisted. I start to lose control…

Some people complained that it was “inappropriate” to put symbols of these defeated regimes on display.

New York Mayor Bill de Blasio urged Amazon to pull the “offensive” ads, and Assemblyman Dov Hikind, a Brooklyn democrat, even called for a boycott against the Seattle company.

“While these ads technically may be within MTA guidelines, they’re irresponsible and offensive to World War II and Holocaust survivors, their families, and countless other New Yorkers,” de Blasio said in a statement. “Amazon should take them down.” (source)

What? Too soon?

Irresponsible? What does that mean?




The veins bulge from my temples. I grip the wheel with my left hand and swat the bats away with my right. THE FEELTYDACTYLS DESCEND!

In all seriousness, I realize that there are Holocaust survivors left in New York City, and I could not fault them if a few had an anxiety attack upon seeing a Nazi-esque eagle on the American flag. I can’t imagine they like walking past the German consulate. I bet they get worked up at a lot of things that don’t set me off. So, I see that side of it. But, I’m not about to call to ban Mel Brooks movies, The History Channel, nor heavy metal bands using umlauts in their band names.

Further, if there’s one group of people who should want us to consider what might have been had we not fought the Nazis hard enough, I’d say it is the Holocaust survivors. You can’t have “never again,” if you neglect to think about what “again” might look like.

“Offensive” to veterans? I very much doubt that the greatest of “the greatest generation” are as soft skinned as today’s college students. World War II vets ought to point to these ads and say “you see what might have happened, had I not given up those years of my life fighting?”

These guys jumped out of planes into Normandy, or fought hand to hand with the Japanese at Iwo Jima, and Bill DeBlasio thinks “they might be offended?” These are people who have seen real offensiveness. These are not children who whine for “safe spaces” when confronted with opposing viewpoints. These are World War II veterans, not Amherst College students.

You want “offensive?”

I have offensive for you.

I guess I spoke too early when I said the Italians were not part of “The Man in the High Castle,” because governor Cuomo seems to be acting the part of Mussolini. He demanded that the ads come down or he would “order” that they be ripped out. (source) The least he could have done was play Gabriele D’Annunzio. At least that would have been a bit more interesting, what with all the crazy sex and poetry and stuff.

Instead, Governor Cuomo ordered that First Amendment protected expression, expression that might even border on political speech, be suppressed because someone might take offense.

How’s your irony meter working?

If you’re offended at anything, it ought to be at what Governor Cuomo did.

Just unpack it for a moment. Amazon made a series that is supposed to make us imagine a world where we don’t have our basic freedoms. Ads about the series might “offend” a handful of people, so the governor simply decrees “this speech shall end.” No due process. No nothing. Just “that offends me, so suppress it.” That’s called prior restraint.

One might think that this was performance art — that maybe Cuomo was trying to give us a taste in the real world of what it might be like if we had a dictator ruling over us, with no First Amendment to protect our freedom of expression. The ads are inarguably First Amendment protected expression, and aublic officials do not have the right to try and squelch free expression by using coercive threats. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64–72 (1963). When a government official tries to stifle free expression of ideas that he disfavors, either through actual legal coercion or simply through threatening the use of government power, he violates the first Amendment. See American Family Association, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002).

See also Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003) (per curiam): “the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive … . What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.”

If there is anything offensive about this story, it isn’t that someone at Amazon’s ad department had poor taste, it is that Governor Cuomo gave us just a little taste of what it would be like if we really lived in the “High Castle” world, and I for one, don’t like it one bit.

This post originally appeared on Popehat. View it here.

Revolution Number 9

December 11, 2015

by Jay Marshall Wolman

As previously discussed, reader Angie NK asked for a post about the Ninth Amendment.  I digressed to the Fourth Amendment as I had some thoughts already percolating on it.  [Side note:  turns out people still actually make and sell percolators.]

But, ask and thou shalt receive.  The Ninth Amendment reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So, what does this mean?  It is a savings clause.  James Madison explained the purpose during the introduction of those clauses that might become part of a bill of rights:

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

There is a principle of legal interpretation known as “Expressio unius est exclusio alterius”.  It means that the listing of items in a law or contract is to the exclusion of all others.  If the law permits you to buy apples and milk from store X, it means only apples and milk.  However, laws and contracts frequently intend that the list is non-exhaustive, using phrases such as “including, but not limited to”.  This is in direct contrast to the Tenth Amendment, which endorses expressio unius…, stating:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That is, these, and only these, powers are conferred to the federal government, as opposed to preserving all natural and fundamental rights including, but not limited to, those specified in the Bill of Rights.

Thus, in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991), the Sixth Circuit found that the 9th Amendment didn’t confer specific rights.  You don’t base claims independently on the 9th amendment.  The Supreme Court addressed the 9th Amendment in Roe v. Wade, 410 U.S. 113 (1973) speaking to a right to privacy:

whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

Justice Douglas’s concurrence to the companion Doe v. Bolton, 410 U.S. 179, 209 (1973) further emphasized “The Ninth Amendment obviously does not create federally enforceable rights.”  See also Jenkins v. Comm’r of Internal Revenue, 483 F.3d 90, 92 (2d Cir. 2007) (“The Ninth Amendment is not an independent source of individual rights; rather, it provides a ‘rule of construction’ that we apply in certain cases.”); Strandberg v. Helena, 791 F.2d 744, 748 (9th Cir. 1986)(denying Ninth Amendment claim under 42 U.S.C. sec. 1983 because the right claimed was not an enumerated right).

It does not create rights, but it does ensure that any rights not listed in the Bill of Rights are still rights.  Hence, in reviewing substantive due process claims for fundamental rights analysis under the 5th and 14th Amendment, it is important to keep in mind that there are fundamental rights, like the right to marry, the right to travel, that are not enumerated.  Yet, restrictions on those rights may not occur without due process, because they share the same foundation as other fundamental rights:  speech, religion, keeping and bearing arms, freedom from quartering, freedom from unreasonable searches and seizures, freedom from self incrimination, etc.

As a result, I do not plan to create a Ninth Amendment Lawyers Association, as it would lack focus.  However, perhaps a symposium might be in order.

That said, in thinking about it more, it serves as a reminder that all of the enumerated rights should be deemed fundamental rights.  The Bill of Rights memorialized the ones most important to the Framers, but these natural rights are all bundled.  To that end, I would suggest that the Ninth Amendment should be read in such a way that the Fourteenth Amendment incorporates all of the enumerated rights.  If they are so fundamental that they cannot be denied without due process under the 5th Amendment, then they cannot be so denied under the 14th.


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