What Version of Free Speech Do You Prefer?

I read an editorial column recently about what it called the "phenomenon" of "libel tourism" - where plaintiffs bring their defamation of character cases in the courts of England rather than in the United States, because the UK is so plaintiff-friendly in defamation cases. Defamation claims in the US are somewhat difficult to win because the 1st Amendment reflects a core value of speech and open dialogue that is willing to permit some rather horrendous falsehoods rather than to compensate every wrong. In the UK, reputation and privacy are valued above speech and openess to an extent that permits compensation where the US would not.

The question of which is more valuable (free speech or privacy) contains a bit of irony in America since there appears to be a "right of privacy" guaranteed by our Constitution, but is a less-valued Constitutional (but "fundamental") right than the right to freedom of speech. So, our right to privacy includes a lot of things (raising families, contraception, and sex partners), but does not include what would seem to be the most basic part of privacy - the right to be left alone.

Of course, one's perception on which is more valuable (free speech or privacy) would depend greatly on what side of the blog you are on. Authors/speakers want speech. Subjects of speech want privacy. But, whatever side you are on, I wonder whether the British feel less informed on important matters than we do in America. I'll bet they don't.

Another Post about Night-Time Activites

The Minnesota Supreme Court made an interesting ruling recently. It overturned a narcotics conviction because the search that uncovered the drugs was unreasonable under the 4th Amendment. Why was this search unreasonable? Because it was conducted at night.

Susan Ranae Jackson's home was raided at night, with a search warrant. But, in this case, the warrant contained no information that provided an adequate basis to conclude that the search needed to occur at night. I'm guessing that if there were some danger that evidence might disappear or that danger to the warrant-serving officers were in the affidavit supporting the warrant, things might have been different.

But, what is interesting is that the "night-time" search issue provided a basis for reversal of a conviction. The 4th Amendment says nothing about the time of day for searches, nor has the United States Supreme Court said that searches should normally be in daylight hours. All that you can read in the Constitution is that searches should not be "unreasonable". Even the "original intent" readers of the Constitution would have to concede that the use of the term "unreasonable" leaves room for courts to put a gloss of some kind on the strict language of the Constitution. But, the U.S. Supreme Court has said that searches are unreasonable when there is a objective reason to know that people would expect privacy in certain areas. I guess that applies not only to geography, but to time of day.

Night-time searches could be arguably unreasonable because of the occupant's vulnerability at night. The mid-night phone call is alarming enough -- compare that to having your door blasted open by cops while your are in your bed-time attire and maybe asleep. The Minnesota court noted that 12 of the original states, plus the First Congress prohibited night-time searches by statute (as the State of Minnesota apparently has). While I never really considered whether the cops ought to be out busting down doors at night (since they do it so often on TV), I find myself in agreement with the Minnesota court. If there is a good reason to go into a home at night, then the cops ought to be able to articulate it. If not, everyone ought to get some sleep and take care of business in the morning.

The Texas Pole Tax

You've got to hand it to the Texas Legislature. Beginning in January, Texas will collect a tax on patrons at strip clubs - $5.00 per head for each visitor. According to estimates, the tax will bring in $40 million per year.

What makes this a brilliant move is that the Legislature claims that the tax will go to help rape victims. Now, who would vote against that? But, more importantly, who is going to insure that the money actually goes to help anyone in particular. One of the sponsors of the measure actually works for an organization that stands to get a piece of the tax pie (if indeed it is doled out as adverstised). More likely, I think most would agree, the tax money collected will simply disappear in a maze of collection expenses, administrative expenses, and small payouts. I figure its just another example of method of getting legislation passed -- earmark the money for an indisputable need; make the tax small; tax people who are not likely to protest too much.

Don't expect a big bump in funding for women's issues. It's just another way to make money for your government. Of course, don't be surprised when your own vice gets taxed one day.

And You Thought Colorado was Laid-Back

Like quite a few folks, Edward Casey got a traffic ticket. He contested the ticket in Federal Heights, Colorado. He lost the case. The judge told him to take the "file" (which the judge then handed to him), and go to the Clerk's office and pay his fine. Casey had left his money in the truck, so he carried the file out to his truck, got his wallet and started back in. Apparently, it is a crime to remove a "file" from the Courthouse, so as Casey was walking back to the Courthouse, he was confronted by a Federal Heights policeman.

Casey admitted to the cop that he had the file, and as he was showing it to the cop, he was put into an arm-lock. Casey kept struggling to get in the courthouse and return the file. While the two were struggling (and the cop never said, "you're under arrest" or "stop resisting") a second cop arrives and fired her TASER at Casey. He got hit, but pulled the barbs out, and started for the Courthouse again. At this point, even more officers arrived. They tackled Casey, hand-cuffed him and repeatedly banged his head against the concrete. Finally, Casey was arrested, and charged with obstructing governmental operations - a crime that carries a $50 fine.

He sued for excessive force. A district judge dismissed the case - holding that the force used was not excessive. The 10th Circuit reversed and reinstated Casey's claim. The opinion is Casey v. City of Federal Heights, et al, No. 06-1426 (December 10, 2007).

There's something to be said for the the single-bullet practice in Mayberry.

Merry Government Approved Christmas

Christmas in Washington is about what you would expect if you thought about it. If you want to put up Christmas decorations at your office in the Pentagon, you have to fill out Government Form DD-2798 (Click on the link to read the 12-page form).

John Doe Wins a Case

The Texarkana Court of Appeals recently considered a case of first impression in Texas relating to the identity of bloggers.  The Essent PRMC Hospital filed suit against 10 "John Doe" bloggers who were apparently saying not so nice things about the hospital on a blog.  Claiming the comments to be libelous, the Hospital sought a court order requiring the blogger's ISP to disclose the identity of the bloggers so that they could be formally sued and could appear in the lawsuit.

The trial court essentially refused to enter the order requiring disclosure until the bloggers had an opportunity to appear and be heard.  Clever fellows hired a lawyer to show up in court, but they didn't come.  The lawyer did his best to defend the blogger's rights to freedom of speech, but the trial judge eventually ordered disclosure.

The Court of Appeals made a few important rulings.

First, the federal statute 47 U.S.C, Section 551 does not provide an independent discovery mechanism for disclosure of identity.  It merely provides a substantive basis for disclosure and provides the ISP a "safe-haven" if it discloses in response to a court order.  (Interestingly, the Court took the position that when the government requests disclosure, it must prove, by clear and convincing evidence that a crime has likely been committed).  Private parties need not meet this burden.

Second, the Court held that getting a disclosure order requires compliance with the Texas Rules of Civil Procedure.  It is effectively a discovery request to a third party (the ISP that is asked to disclose names is not part of the litigation), and it must meet the requirements of Texas Rule 202 or some other discovery device in order for the trial court to act.

Third, there are constitutional protections for all "speakers" on the internet.  In order to prove their right to get the identities of bloggers, a litigant must show enough evidence to survive a Motion for Summary Judgment.  In other words, merely claiming that the words are libelous is not enough.  The trial judge would have to be satisfied that if the words were indeed published, then the plaintiff would have a valid claim.

The opinion, No. 06-07-123-CV, styled In Re Does 1-10 (December 12, 2007) is the first effort I have seen by a Texas appellate court to determine the rights and obligations of bloggers, and it is worth a read.  Click on the Title of this post to read the opinion.

Got Milk?

A lawsuit has been filed in Seattle, Washington claiming that some of the nation's biggest grocers have been selling milk as "organic" when the milk does not meet the government standards for organiosity. If you go to Target, and buy "Archer Farms" milk, the suit says that you are not buying organic milk - despite the pretty package. The pictures on the carton should be more like the one on the right according to the plaintiffs in the case.

The beef (pardon the pun) is that large corporate players in the milk market say that thier farms are organic when they are really not. That makes it difficult for mom & pop dairies to compete.

In answer to the complaint, Target says that the lawsuit is an attempt to override the USDA definition of organic with the consumer's view of what is organic -- which is a pretty surprising statement. I guess Target thinks that we have to take the Government's word for everything, and that consumers are just too stupid to figure out if the Government's definition is anything approaching the common useage of the word "organic". If the lawsuit is right, and the big milk players are using 325 acres of land to maintain and milke 4,000 cows, most of us would have a hard time accepting a government definition of that production as "organic" because those 4,000 cows are not out in the pasture getting food.

Where did that old "customer is always right" thing go?

Toilet Troubles -- the Legal Kind

Dawn Herb's toilet backed up a while back, and she got understandably upset...well, she got a little more upset than some and ended up swearing "like a longshoreman" at the offending appliance.

Nearby, a cop - who was one of Dawn's neighbors - heard her outburst, and instead of "protecting and serving" came to her house and arrested her for using obscene language that causes "public inconvenience, annoyance or harm" - a violation of the law of Scranton, PA.

Dawn is being defended in the case by the ACLU. The ACLU lawyer very eloquently argued that "The laws cannot require us to speak eloquently, in good taste or an inoffensive fashion. We are allowed to speack colorfully..."

Apparently unable to avoid the "potty mouth" puns, the lawyer also argued that "We're allowed to swear at each other. It doesn't mean we should, but we are allowed to, and the government and the law cannot stick its nose into these private matters".

Surely, he didn't mean that.

I should note, this post does not contain a picture of Dawn - to my knowledge

Pledge of Allegiance and In God We Trust

The 9th Court of Appeals heard arguments last week in the new Newdow cases. Michael Newdow, who shamed America with his Supreme Court arguments seeking to delete "under God" from the Pledge of Allegiance, has revised his case so that his own standing to contest the phrase cannot be doubted. He has upped the ante by adding a claim that our money should not contain the phrase "In God We Trust". The District Court has already handed Newdow a win, holding the Pledge unconstitutional. A different District judge rejected the "In God We Trust" claim.

Obviously, the 9th Circuit will posture these cases for the Supreme Court to hear again. And, while I'm tempted to say that this is a petty fight that generates more work than its resolution warrants, I'm going to come down on the side of saying this is worth debating in the courts. The decision will tell us something about what kind of country we are -- regardless of the result.

Christmas Carols - A Timely Topic

I was reading one well-respected blog, and read with interest, a post on Christmas carols. Click here to be inspired. So, I thought I would add my own favorite carol. Written during the Civil War, the carol always seems to come to mind when the world is in a mess, and Christmas rolls around.

Christmas Bells
(The original poem, complete with all seven stanzas)

"I heard the bells on Christmas Day
Their old familiar carols play,
And wild and sweet
The words repeat
Of peace on earth, good-will to men!

And thought how, as the day had come,
The belfries of all Christendom
Had rolled along
The unbroken song
Of peace on earth, good-will to men!

Till, ringing, singing on its way,
The world revolved from night to day,
A voice, a chime
A chant sublime
Of peace on earth, good-will to men!

Then from each black accursed mouth
The cannon thundered in the South,
And with the sound
The carols drowned
Of peace on earth, good-will to men!

It was as if an earthquake rent
The hearth-stones of a continent,
And made forlorn
The households born
Of peace on earth, good-will to men!

And in despair I bowed my head;
"There is no peace on earth," I said;
"For hate is strong,
And mocks the song
Of peace on earth, good-will to men!"

Then pealed the bells more loud and deep:
"God is not dead; nor doth he sleep!
The Wrong shall fail,
The Right prevail,
With peace on earth, good-will to men!"

Buffaloes down $2.85 Million (or approx. 57 Million Nickels)

The University of Colorado settled the case that I mentioned here. The settlement not only includes the payment of money, but also includes voluntary Title IX monitoring of the University in the future.

The comments of the University spokesperson contained all the right things, but did not comment on one interesting tidbit. When the case was in the trial court, the Federal District Judge not only found the claims to be meritless, but ordered the plaintiffs to pay the university's legal fees. That was reversed by the appeals court. So, if the University is now making a substantial payment, and saying conciliatory things, one should not get the idea that the University played nice in court during the litigation.

Honestly, you get (allegedly) raped by a recruit, you ask for compensation, and the University seeks to tag you with fees for such a preposterous request?

Investigating the Church

The chairman of the Senate Finance Committee recently began an investigation of at least 6 "Mega-Church" operations asserting that he was simply making sure that these tax-exempt organizations were complying with the law. (Click on the title to read the NPR news report) And, while it may seem that these churches have expended funds on things that are not intuitively connected to ministry, I wonder why the politicians have chosen only to investigate churches.

Churches are not the only institutions that enjoy tax-exempt status. Nor are they the only tax-exempt organizations that spend money on things that would not be intuitively related to their tax-exempt missions. Is the Senate asking how much tax-exempt hosptials are paying their executives? Or how much true "charity" health-care they are providing? Is anyone wondering how tax-exempt universities are paying salaries for football coaches? Or why a college education at a tax-exempt organization is far beyond the means of many Americans?

What I see is that the larger organizations in society have lost some sense of responsibility to the people that they are supposed to serve. I am supporting a great number of institutions that are not contributing to the tax roll because they supposedly perform functions that society greatly needs and wants to encourage. But, if I attempt to use those services, I pay not just a market rate, but often a rate that is terribly expensive. If I go to the charity hospital, for example, and choose to pay cash -- my bill will be at least double what Blue Cross would have to pay to have that service performed on ME.

So, go ahead, Sen. Grassely, and look at how the churches spend their money. But, would you mind checking on some of the other organizations that don't pay taxes? At least at church, I give my money voluntarily. I don't have as much choice at some of the other "charity" organizations.

Hip Hop Rights

I was surprised to learn that quite a few communities have ordinances that ban low-slung pants. One of them -- Pine Lawn, Missouri (which is close to Washington Park, Illinois) has penalties ranging from a $100 fine, with a higher fine and penalties for the parents of the kid with the low-ridin' jeans.

It's one thing to wonder why any governmental body would spend its time on this issue, but it's even harder to verbalize why the ordinance might be wrong. Although some lawyer will eventually write the petition to challenge the ordinance, it will have to assert that low-ridin' jeans are an expression of identity, or that the ordinance is an arbitrary regulation infringing on a life, liberty or property interest.


Of course, the response will be equally interesting. The government will claim that this is some reasonable regulation relating to health, safety and welfare. And, the cops will likely chime in to say that baggy pants allow people to hide weapons. What a waste of time.

Rules, We Don't Need No Stinkin' Rules

I'm not just being cynical by saying that the government makes rules that it does not bother to honor. In a recent 8th Circuit case, the Court held that a state court need not either follow federal law, nor follow its own handbook for employees.

Larry McKlintic sued his employer - the 36th District Court - because it did not honor its own Family and Medical Leave Act policy. The policy was set out in the employee handbook, but the 8th Circuit said that the state was immune from suit under the 11th Amendment, and was not obligated to follow its handbook as a contractual matter.

How does a court decide that courts do not need to follow rules that every other person in the country must follow? Were I a small business owner in the 8th Circuit area, I would have a hard time showing respect for the court system.

Sleep Tight...and at Night

Next Month, the Cancer research arm of the World Health Organization is going to declare that working at night is a "probable" cause of cancer. The theoretical link between night work and cancer was once described as "wacky", but it is doubtful that the "wacky" label would have deterred the WHO anyway. And, if the WHO says the link is probable, then the American Cancer Association is going to adopt that stance.

The science says that one of two things is going on. It could be that sleep deprivation weakens the immune system so that it can't fight off the growth of cancer cells (or any other deadly disease). Not exactly earth-shattering and sounds more like a correlation than a cause & effect. Second, though, the cancer folks say that night work upsets the body's production of melatonin - which both induces sleepy feelings, and suppresses tumor growth.

For lawyers, none of us will probably live long enough to see the wave of litigation by wait staff, bar tenders, shift workers and health care folks who got cancer because they worked at night. With the science just now being published, and little alternative that is safer for the necessary work, the template for liability is simply not present. But, when the worker's comp agencies start making awards for night-shift cancer, you might as well start running commercials (which ironically are more prevalent at night).

On the good news side, Texans were apparently prescient when they agreed to allow the issuance of bonds to look for a cure for cancer. Add night-shift cancer to the list...although I would expect the cure to be "Go to Bed, Dang it".

The Legislature is "at Work"

Your House Speaker has put "top men" to work on issues that he thinks will come up in the next legislative session. Here is what they are working on:

1. The House Business and Industry Committee and the Insurance Committee have been given a joint charge to study the impact of the Entergy v. Summers decision on the worker's compensation systems as a whole. This broad charge should give the committees leeway to consider issues such as the level of worker's comp benefits,contractual issues between owners, general contractors, and subcontractors and the scope of the comp bar.

2. The House Civil Practices Committee is charged with studying the impact of HB 4, with particular emphasis on job creation, judicial efficiency, medical access, and medical liability insurance rates; the effect on the tort system of "meritless" litigation and whether additional sanctions are needed to discourage such litigation; the effect of multiple plaintiff litigation other than asbestos / silica litigation; and whether liability protections for health care providers in emergency or charitable care situations are "adequate".

We should, I suppose, be encouraged by the "charge" given by the Speaker to his minions.