Fallout from the "Bong Hits for Jesus"

The public school in Saginaw, Michigan has a school project that they call "Classroom City". Students are assigned the task of developing a product for sale, and the school then becomes a small "city" where these products are offered, and the kids are competing for the "class room city" dollars that are the medium of exchange. Of course, the administrators have to approve of the product being sold. That all sounds like an interesting exercise in economics and such.

Joel Curry, a 5th grader at the Handley School wanted to sell candy cane tree ornaments made of pipe-cleaners, and wanted to attach a card to the product explaining why the candy cane was representative of a variety of Christian messages. The school banned the explanatory card. Joel brought suit, and lost in Curry v. Saginaw City School District.

The 6th Circuit held that the principal's decision to prohibit the Christian message on the product was within the principal's discretion. The principal thought that other students and parents might be offended by the product. Moreover, the principal thought that because the product was being sold at the Classroom City project, others might conclude that the candy cane ornaments and the accompanying card had the express approval of the school, and that the school favored Christianity over other religions.

Now, I'm not sure that I can fault the 6th Circuit's analysis of the Constitutional problems presented by Joel's candy cane and card. But, I do wonder when the populace got so sensitive to a 5th grader's class project that they thought lives would be ruined if the kid put a message on his product that inspired him, if no one else. The Classroom City project was designed to simulate the marketplace...so if the marketplace was offended or didn't like the product, I guess that young Joel would have learned that business and religion don't mix well. What Joel learned, though, is that freedom is a bit illusory in Saginaw, Michigan, and that the heavy hand of government falls on 5th graders just like it does on everyone else.

Say Thank You to Amazon.com

Last summer, a grand jury in Wisconsin sent a subpoena to Amazon.com asking it to disclose the identity of used book buyers who supposedly bought books from a guy that the government was investigating for tax evasion. According to the opinion just recently unsealed (In Re: Grand Jury Subpoena to Amazon.com dated August 7, 2006, 2007 U.S. Dist. Lexis 86563), one of the prolific used book dealers on Amazon was a fellow who sold 24,000 books onlineand didn't report the income. None of the buyers (Amazon's on-line customers) was suspected of any wrongdoing. Nor was Amazon accused of doing anything wrong. The government wanted to talk to the customers to build their case against the used bookseller.

Amazon fought the subpoena, contending that the disclosure of the reading habits or preferences of anyone was simply none of the government's business. And, the Magistrate Judge agreed. The subpoena, he said, "...permits the government to peek into the reading habits of specific individuals without their prior knowledge or permitssion". And, "it is an unsettling and un-American scenario to envision federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else."

United States Magistrate Judge Stephen L. Crocker, of the Western District of Wisconsin deserves praise for this opinion, and decision. And, I applaud Amazon.com for sticking up for its customers - which it clearly did not have to do. I can certainly envision an on-line vendor quietly supplying lists like this, and letting customers wonder how the feds got the information. Not Amazon -- they stood up for their customers.

The 5th Circuit Affirms Punitive Damages without any Compensatory Damages

In Abner v. The Kansas City Southern Railroad Co., the 5th Circuit reviewed a case under Title VII for employment discrimination. The facts are pretty bad for the Railroad...lots of "n-word" references in the evidence, along with KKK references and pictures of a noose. The jury found that the Plaintiffs were subjected to a "hostile working environment", but did not award any compensatory damages. In other words, the Plaintiffs didn't lose a job, lose a raise or promotion, or fail to receive some other benefit because of the color of their skin. But, the jury was outraged by the conduct (apparently) because it awarded each Plaintiff $125,000 in punitive damages.

The general reaction from lawyers about such an award would be that it could not stand. Punitive damages, generally, are not permissible unless there are compensatory damages. But, to my surprise, the 5th Circuit followed other circuits that have held that Title VII permits punitive damages without compensatory damages. The only prerequisite is that there be a Constitutional violation.

The reason this is permitted is two-fold. First, there is a high threshold for liability (a plaintiff must show "malice" or "conscious indifference"). Second, there is a cap on punitive damages - a system that insures that the punitive award won't be so high as to implicate due process concerns. From a plaintiff's viewpoint, this is a welcome reading of the law -- but one that I believe is highly influenced by the horrible facts. Less egregious actions in the workplace would probably not be so convincing to the 5th Circuit. From a defense standpoint, it is probably a case that is limited to its facts. I don't see any of the Circuits as likely to "binge" on punitive damages just because of this case.

Don Imus on the Golf Channel?

I was more than a little surprised to learn that an "anchor-person" on the Golf Channel was recently suspended for making untoward remarks during a golf match. KellyTilghman (who I've never heard of) was working with a more famous golfer (Nick Faldo) at the Mercedes-Benz Championship. Faldo said something about whether any of the younger players were capable of challenging Tiger Woods as the World's Number 1 player in golf. Faldo then suggested that maybe they shoudl just "gang up for a while". At which point Tilghman said, "Lynch him in a back alley". That's the only context that is reported in the news now, and I didn't see the broadcast.

One surprising thing is the Kelly is a female golfer, and my stereotype for racist remarks does not usually include females at all. The other surprising thing is that the amount of press for this remark does not seem to resemble the public outcry when Don Imus make a very tacky remark about a girl's basketball team.

Tiger Woods almost immediately remarked (through his people) that the remark "unequivocally" had no "ill intent". Al Sharpton felt otherwise, and has made his feelings known. But, other than a few remote comments on the Web, this one has been under the radar. I would have thought that golf and women's basketball were on about the same plane of public interest, but I guess not. Or maybe racist and feminine-phobic is worse than just racist.

Steroids and Alger Hiss

Your Congress has fallen back into the very bad habit of calling people before them to testify...the sole purpose of which is to HOPE that they lie so that they can be charged with perjury. Ask your father or grandfather who Alger Hiss is. He was a rock-star political guy during the Red Scare, and a not-too-well-known writer/reporter said that Alger Hiss was a communist. There was no crime that he could be charged with, so he was called before Congress to say, under oath, whether he was a Communist or not. The end result of his emphatic denial before Congress was two trials for perjury (one hung jury and one conviction). Now, all this kept the media not only employed, but very busy. In the end, though, the public got nothin'.

So it goes with Roger Clemens and Andy Petitte, and probably a later string of players. The whole point of Congressional hearings can only be to have these fellows hopefully lie before Congress so that they can be charged with perjury. The public hearings will allow the Congresspeople put on their indignant faces and publicly wonder how a baseball player could have ever made more money and received more public attention than an elected representative. The later trial will diminish these athletes in the public eye, I'm sure. But, I wonder whether the marketplace will do that by itself -- without the horrendous expenditure of public funds and energy.

If I've made myself clear in this post, it is apparent that these are not the only times that this method has been used to puff up the collective congressional chest. Other examples?