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US Court of Appeals for the Third Circuit: United States v. Fullmer et. al.

We live in very contentious times. The red-state-blue-state divide is political, geographical and cultural. Debate about issues is frequently obscured by the politics of hate, by innuendo and by ad hominum attacks on those who speak out on the issues. Whether you support Rush Limbaugh or Al Gore, Sara Palin or Barack Obama, there seems to be way less common ground than in times past—and way less interest in even finding it.

Everything has become a crisis. Everything has become an issue that cannot be compromised. And everything is magnified and disseminated exponentially, courtesy of the worldwide web. Just a click away, a wonderful and dreadful thing the web: both a fountain of breaking news, information and learning and a cesspool of violence, pornography and hatred all at once.

Perhaps there’s no other tool with the power to destroy lives and reputations so easily. Bloggers can be indifferent to facts. Rumormongers can ruin lives with a well placed post. And anyone with a computer can upload their own demise on line or set in motion events that lead to the demise of others.

Somewhere between on-line beheadings and spam, we find US. v. Fullmer.

The case is about the activities of Stop Huntingdon Animal Cruelty (SHAC) and six individual defendants (referred herein collectively as “SHAC”) who were either employees, principals or in some way associated with SHAC. SHAC was formed in 1999. It has been uncompromisingly opposed to Huntingdon’s research with animals and committed to closing its laboratories. According to SHAC, Huntingdon was a purveyor of animal cruelty in the interest of science and corporate profits. Its abuses of animals were depicted in a surveillance videotape (viewer discretion advised) obtained by someone posing as a Huntingdon lab technician. When aired on British TV, it led to a spate of protests and the birth of SHAC-UK and subsequently, its US counterpart after SHAC’s relentless campaign caused Huntingdon to relocate to the states.

SHAC’s opposition to Huntingdon was not based on the actions of Gandhi or Martin Luther King. It was something new. Something born out of the cyber age. It targeted Huntingdon and companies that dealt with it, from accounting firms, bankers and realtors, to Huntingdon board members, stockholders and employees, including their wives and children. SHAC used its website as a bludgeon. Its take-no-prisoners, scorched-earth approach to its mission was incredibly effective. And frightening. As defendant Gazzola put it, “this is the most successful campaign in the history of the animal rights movement and it’s precisely because we’re pushing the limits and we’re tired of standing around holding signs and yelling at buildings and writing letters and not getting anywhere. We’re gonna do what we have to do in order to be effective and in order to save lives.”

The court’s opinion chronicles a sampling of the SHAC defendants’ activities. Its web postings included the following:

-Coordinating protests;
-Encouraging direct action (both legal and illegal, the illegal kind being both lauded and disavowed simultaneously);
-Instructing economic sabotage (including step-by-step how-to instructions as well as posting times for coordinated electronic assaults on corporate servers and fax machines);
-Listing accomplishments (such as people and places that had been attacked or acquiesced to SHAC’s demands); and
-Promoting vandalism (or at least excusing and appreciating it as a natural overflow of anti-Huntingdon outrage).

In a message to all associated with or employed by Huntingdon, defendant Harper used the backdrop of successful personal and institutional attacks to put Huntingdon and its business partners on notice of SHAC’s reach: “animal abusers …may be safe from the cops, the army, and the FBI…they are not safe from us…If no one else will treat them like the criminal scum that they are, at least we will…It is time to go beyond our fear of reprisals.”

Given the contents of the surveillance video, some might find such hard-edged tactics acceptable. But there was more. There were physical attacks and protests at board members’ homes. There were personal threats to them. To their children. Home addresses were published on the web. Phone numbers were published. Houses were flooded, windows smashed and neighbors intimidated. There was the posting of the “Top 20 Terror Tactics.” There were death threats by email and phone. And there was a state of fear that was nurtured and encouraged by SHAC.

SHAC’s web page, while always disavowing illegal activity, sympathized with its supposed unknown, more violent compatriots, and published instructions about how to avoid detection or arrest for such activity (even a cursory reading of the court’s decision is like a manifesto on modern economic warfare by cyber means—in many ways, it’s as disturbing as the Huntingdon video). Those targeted lived in abject fear for their lives, some to the point of arming themselves, others to the point of surrender, acquiescing to SHAC’s demands rather than resisting them alone.

Defendants were eventually charged and convicted of a variety of offenses, including conspiracy to violate the Animal Enterprise Protection ACT (AEPA protects those who use animals for testing from certain forms of animal-rights activity), conspiracy to commit interstate stalking as well as three substantive counts of stalking.

On appeal, defendants argued, among other things, that the convictions violated their First Amendment right to engage in civil disobedience and to voice their objections to Huntingdon’s activities. The court disagreed. While some postings on SHAC’s website were protected speech, notwithstanding it was “speech that many find offensive and uncomfortable,” other posts which “coordinate electronic civil disobedience and disseminate the personal information of individuals employed by Huntingdon and affiliated companies are more problematic.” Such communication was not protected speech and some “constituted ‘true threats.’”

As the court observed, “viewed in context, the speeches, protests, and web postings were all tools to further their effort” and were not speech protected by the First Amendment. They were crimes. Accordingly, the individual defendants received sentences ranging from one year to six years in prison.

We are left with a number of questions: Are these people heroes in the animal rights movement? Should they be applauded for putting their lives on the line for their beliefs (even belatedly, since on line, they denied personal involvement)? Are they simply zealots who did what was necessary to save animals?

Or are they thugs? Bullies? And political / business terrorists?

Those on the receiving end of their “protests” would vote for the latter category. Many who share SHAC’s views might see them as visionaries. But the question remains: What type of society are we evolving into?

Maybe the ends justify the means when it comes to animals. How about when it comes to global warming? To illegal immigration? To mandatory vaccines for H1N1? To gun control or legalizing marijuana?

Are we inexorably on a road that takes no prisoners in a winner-take-all battle over everything? Or have we already crossed the Rubicon when it comes to civil discussion and the common good?

Sometimes it looks and feels that way. Sometimes it looks and feels like we are willingly letting the common ground beneath our feet slip away, completely indifferent or oblivious to the fact that we are falling into something much more dangerous and intolerant and insidious—all in the interest of advancing THE cause.

Which, of course, says something either about our lack of powers of persuasion or our inability or unwillingness to listen to the other side. Or to lose gracefully. In the market place of ideas that is America, the wheat has always been separated from the chaff, which historically has brought out the best in America, and which hopefully, will continue to do so even as the internet has the potential to bring out the worst.

Still, we should be glad about this uniquely American problem because freedom of speech can only be abused where it exists in the first place.

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Posted In: Brave New World , Crime and Punishment , Culture War , Speech , Terrorism , The Internet , U.S. Court of Appeals

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U.S. District Court, Southern District of New York: Howard K. Stern v. Rita Cosby et. al.

When trying to understand the tenor of the times, the writing on the wall is often hidden in the small print. And depending on where you live (red state / blue state – the coast or the heartland) the fine print reads and is received differently. The fine print about homosexuality and how it is viewed is what makes the Stern case noteworthy.

Rita Cosby is a well-known TV reporter. After the death of Anna Nicole Smith, Ms. Cosby decided to write a book about her. That book, Blonde Ambition, the Untold Story Behind Anna Nichol Smith’s Death, was published on September 4, 2007, just seven months after Ms. Smith died from a prescription drug overdose.

Cosby rushed to do her book while Anna Nichol Smith was still hot news. Smith had grabbed headlines for years because of The Anna Nicole Show, because of her marriage at age 26, to 89-year-old- billionaire J. Howard Marshall III and because of the death of her son Daniel just days after Smith gave birth of her daughter Dannielynn in 2006.

While publishers were eager to run with any news about Anna Nicole, co-defendant Hatchette Book Group was not interested in Cosby’s idea for a book “unless it contained previously unreported information.” Cosby promised the book would have “a number of previously unreported explosive news items.” As part of the sales pitch, Cosby’s agent told Amy Einhorn, an editor at Hatchette, two “facts” that would seal the deal. Einhron listened, then told her colleagues she had just heard two "holy shit" items. The next day, Hatchette offered Cosby a $405,000 advance plus royalties for the book.

After the book was published, Howard Stern, former Nicole Smith lawyer, boyfriend, alleged father of her daughter for a time and confident of Ms. Smith, sued Cosby and Hatchette for libel. Hatchette and Cosby moved for summary judgment. Hatchette prevailed. Cosby, not so much.

There were 19 Statements in the book that Howard Stern claimed were libelous (they’re described at pages 10 -13 of the decision). Cosby’s motion for summary judgment was granted as to 8 of those statements. It was denied as to 11 others (see page 48 of the decision). So part of the case will go forward. For our purposes, however, we will deal with statements 1 and 2, the two "holy shit" items that closed the deal for Cosby and Hatchette.

Statement 1: “Stern and Birkhead [Nicole Smith’s boyfriend] had oral sex at a party at a private home in Los Angeles. Smith discovered them, laughed, and later remarked that Stern was gay.”

Statement 2: “Smith, in front of her nannies in the Bahamas, used to regularly watch a video of Stern and Birkhead having sex.”

Limiting our focus to Statements “1” and “2”, Cosby’s defense was that Howard Stern’s reputation through all the Anna Nicole Smith years was so bad prior to publication of her book, that he could not have been further damaged by the statements, and that he was therefore “libel proof.” The court did not agree.

Cosby also argued that Statements “1” and “2” which “impute homosexuality to Stern, are not defamatory...and are therefore not actionable.” Stern claimed they are defamatory per se (i.e.,the allegation alone is presumed to cause damages).

Here’s where the blue state - urban - northeast view of the world is contained in the fine print, a view that is either a great progressive step forward, an inconsequential footnote on the law of New York State, or a confirmation that the homosexual agenda has quietly vanquished one of the Judeo-Christian foundations upon which much of our culture stands.

Writing for the Court, Justice Chin concluded that “Statements 1 and 2 are defamatory, but not defamatory per se” even though the 1st and 2nd Departments of New York’s Appellate Division have held that the “false imputation of homosexuality is reasonably susceptible of a defamatory connotation.” Noting that the New York’s Court of Appeals had never ruled on the subject, Justice Chin took it upon himself to “predict what New York’s highest court would do were the issue before it.”

According to Justice Chin,

The New York Court of Appeals has held that the following four categories of statements are defamatory per se: (1) those that accuse the plaintiff of a serious crime; (2) those that ‘tend to injure another in his or her trade, business or profession’; (3) those that accuse the plaintiff of having a ‘loathsome disease’; or (4) and those that impute ‘unchastity to a woman”

The Court went on to find that whether a statement is defamatory per se depends on “the temper of the times, the current contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.”

Based on this analysis, Justice Chin framed the issue thusly:

“The question, then, is whether the New York Court of Appeals, in 2009, would hold that a statement imputing homosexuality connotes the same degree of ‘shame, obloquy, contumely, odium, contempt, ridicule, aversion ostracism, degradation of disgrace”... as statements accusing someone of serious criminal conduct, impugning a person in his or her trade or profession, implying that a person has a ‘loathsome disease’ or imputing unchastity to a woman. I conclude that it would not.” [Some Bible-toting alleged homophobes, or "breeders" as they are non-defamatorily referred to, may not agree.]

To further support his view, the Judge looked to what he sees as the “veritable sea change in social attitudes about homosexuality” including laws decriminalizing homosexual conduct, the movement to legalize gay marriage, that a Quinnipiac poll found that New York State resident support gay marriage 51 to 41 percent with 8 percent undecided and finally, that New York’s Court of Appeals “has not, in its most recent opinion touching on social attitudes toward homosexuality, given any indication that it perceives widespread disapproval of homosexuality in New York."

Justice Chin then relied on his brethren in Massachusetts for this (questionable) conclusion: “If this Court were to agree that calling someone a homosexual is defamatory per se—it would , in effect, validate that sentiment and legitimize relegating homosexuals to second class status.”

OK. Statements 1 and 2 are therefore not defamatory per se. “They are, however, susceptible to a defamatory meaning. Therefore a jury will decide whether they are defamatory.

Here’s the fine line the learned judge has drawn: It’s not defamatory to be called a homosexual. But it might be defamatory to say someone's a homosexual who also engaged in oral sex at a party in the home of another. That, apparently, is conduct that “ a reasonable jury could find...is shameful or contemptible...” (it is not clear whether the accusation of boorish party behavior offended the judge's sensibilities, or the assertiion that the sex occurred at someone else's house). Moreover, since the statement suggests that Howard Stern was having sex with a man while he was intimately involved with Anna Nicole, it implies unfaithfulness to her, and this would be “further reason for a jury to find that the Statement is defamatory.”

Accordingly, the court found that homosexuality no longer holds any opprobrium, at least in the abstract, but reckless homosexuality (with respect to time and place) that is compounded by unfaithfulness can be defamatory because faithfulness is still considered a virtue, as is not coveting your neighbor's bedroom to engage in homosexual acts.

I reserve opinion on this matter—not that there’s anything wrong with that—and leave it to other legal and culture pundits to figure out if this is good for the body politic or not.

As a footnote, it might not be defamatory to call someone a homosexual, but according to today's New York Post, you better think twice before you say someone looks like a "skank." It's not clear how this ruling would affect Judge Chin's decision, but clearly, any name callers out there should think twice before saying a homosexual looks like a skank.

To be on the safe side and pending further clarification by the courts, it's probably best to restrict all potential defamatory remarks toward commonly accepted libel-proof targets, such as Christians, far-right conservatives, global-warming deniers, "birthers" and trial lawyers.

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Posted In: Culture War , Damages , Homosexuality , Speech , U.S. District Court

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New York State Court of Claims: DePaula v. State

Like they say on TV, don’t try this at home if you’re not a professional.

Claimant is an attorney. He was a little late for Civil Court in Queens, having missed the first call of the calendar. Like many of us, he had a few cases on in court that morning. While sitting in the back of the crowded courtroom as the judge conferenced cases at the bench, his cell phone rang. Unfortunately, it was not set on vibrate. After less than a half minute of talk, he was approached by a court officer.

Rather than admonish Mr. DePaula, the officer confiscated his phone. As irritating as that may have been, he also advised the busy barrister that he could “get the phone back at about 1:00 PM” when court was in recess. Apparently, they really take the turn-off-your-cell-phone rules seriously in Civil Queens.

There is some discrepancy about what happened next: Attorney DePaula says that while he waited for his case to be called, the officer walked toward him. The officer claims that after he took the phone and was attending to his courtroom duties, DePaula was “staring at him” before he walked over. Both sides agree that when the officer approached, he told DePaula “you should know better.” In response, the attorney admits saying, “You’re just being a prick ” (by which he meant to convey that the officer was a “contemptible, disagreeable, obnoxious person”), while the officer claimed Depaula said, “in a loud nasty tone: ‘You know something, you’re a prick’” (which he treated as a “disruption” of the court proceedings taking place), whereupon DePaula was asked, but refused, to leave the courtroom. Both do agree, however, that DePaula was immediately arrested, handcuffed, removed from the courtroom and confined in a security office in the courthouse, giving new meaning to the term call waiting.

After fifteen or twenty minutes handcuffed incommunicado in the cooler, the officer returned. The cuffs were removed, the cell phone returned and a summons for disorderly conduct was issued. DePaula pleaded not guilty, went to trial on the discon charge, and was acquitted. He then sued in the Court of Claims for False Arrest and Malicious Prosecution.

According to the Court of Claims, “the elements of a false arrest cause of action are: (1) the defendant intended to confine claimant; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged.” When there’s an arrest without warrant, the burden shifts to the defendant to “establish that the arrest was privileged,” thus validating a charge of disorderly conduct under Penal Law §240.20 (3). As it turns out, the court officer had a wrong number, and the arrest was held not to be privileged.

As the court politely put it, “however reprehensible the utterance Mr. DePaula chose to make, in a courtroom and addressed to a Court Officer, the statement alone did not, as a matter of law, amount to disorderly conduct. The law is well settled that the mere use of 'abusive or obscene language' in a public place does not constitute a violation of Penal law §240.20 (3),” as the Court of Appeals has already held. As for the claim of malicious prosecution, the court did not find the requisite “actual malice” and so dismissed that count. A hearing on damages was scheduled to follow.

It’s reassuring to know that the breakdown of civility in our society has transcended the streets, giving us all the right to speak our mind to whomever we want wherever we are, even within the hallowed halls of justice. That’s probably a good thing legally (and maybe it’s an inroad of sorts into the constraints of political correctness), but culturally it may leave something to be desired.

Still, if you’re going to speak your mind, be prepared to put in the time. Your rights often come at a cost. And sometimes, especially when it involves going to court, the cost is billed by the hour. Which is why such bold speech is probably best left to the professionals.

Just ask Mr. DePaula. But ask him nicely.

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Posted In: Crime and Punishment , Culture War , It's My Right! , New York State Courts , Speech

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U.S. Supreme Court: Pleasant Grove City, Utah v. Summum

Hard to evaluate this decision. For now, score one for the like-minded. Five or ten years from now, the score could change dramatically, and so too could the way we look at this decision.

Pioneer Park is in Pleasant Grove City Utah. There are a variety of permanent monuments and displays in the park, just as there are in Central Park, the Boston Commons and Grant Park in Chicago. Cities everywhere put up monuments, either with their money or with privately donated funds. So here’s the question: Once a city puts a monument in its park, must it put up other monuments if they are donated, paid for and inoffensive? And where exactly on the free speech scale do monuments fall?

The short answers are that cities do not have to put up other monuments, and there are no free speech issues involved. Because monuments are a form of “government speech” and therefore, “not subject to scrutiny under the Free Speech Clause” of the Constitution.

Pioneer Park already had 15 permanent displays, 11 of which were donated at no cost to the City. Included among its stone and granite collection was a Ten Commandments monument given to it by the Fraternal Order of Eagles in 1971.

Along comes Summum, a religious organization based in Salt Lake City that dates back to ancient 1975. Its president twice asked Pleasant Grove City permission to erect a stone monument which would contain “the seven Aphorisms of SUMMUM.” According to Summum theology,

the Seven Aphorisms were inscribed on the original tablets handed down by God to Moses on Mount Sinai...Because Moses believed that the Israelites were not ready to receive the Aphorisms, he shared them only with a select group of people [apparently the early progenitors of the Summumites]. In the Summum Exodus account, Moses then destroyed the original tablets, traveled back to Mount Sinai, and returned with a second set of tablets containing the Ten Commandments.

So the Ten Commandments were the next best thing. This isn’t exactly the Biblical account, but then the Summumites have an absolute right to believe whatever they want. They just don’t have an absolute right to say it in stone. And now, for the Summumites, history repeats itself as Pleasant Grove City, like Moses before it, also rejected the Seven Aphorisms. In response, the Summumites sued (which may be an eighth aphorism—someone should look into this) insisting the City must accept and place their monument in the park, particularly since it was going to be Summum simoleons that were footing the bill.

The lower court sided with Pleasant Grove City and affirmed its right to reject the Summum offer. The Court of Appeals reversed and held that if you take one view set in stone, you must take the other. Pleasant Grove appealed and the nation’s high court took a look at the statues.

According to the court, “if petitioners were engaging in their own expressive conduct” when they choose or don’t choose a particular statue, “then the Free Speech Clause has no application. The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” And, the court said, “Permanent monuments displayed on public property typically represent government speech.” The high court went on to describe how governments have “long used monuments to speak to the public.” Whether the statue is of George Washington, Robert E. Lee or Pancho Villa, these monuments communicate government messages. They are a “means of expression” and the local or national government has a right to pick and choose which monuments say best what they want to say most.

Maybe it’s time to take a hard look at the monuments that surround us and to listen close to what governments are saying now and what they were saying in the past. It may be a clue to the times we live in and what sort of statues we can expect to see in the future. While we might agree with Pleasant Grove’s decision to forgo the Seven Aphorisms for the Ten Commandments, who knows what our governments will be saying in stone ten years from now under their nearly absolute right to free government speech.

And finally, given the nature of monumental government speech, what exactly are the pigeons trying to tell us?

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Posted In: Politics , Speech , U.S. Supreme Court

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Supreme Court, New York County: Sugarman v. Equinox Holdings, Inc.

For all the Gym-rats out there who prefer the health club to the basement or your building's own work-out room, rider beware.

Plaintiff Stuart Sugarman is a Spin Class enthusiast. His indoor cycling regimen brought him regularly to the Equinox Gym in the Wall Street area downtown. For the uninitiated, and if we take Mr. Sugarman at his word, spinners customarily like to cheer and shout during the class to pump up their psyche along with their sprocket. It was during one of these classes that Sugarman’s cheering got under the skin of fellow spinner Christopher Carter. Apparently, Mr. Carter was either having a bad day or he thought it bad form by the whooping Mr. Sugarman to disturb his peddling peace.

Carter first took it directly to Sugarman by yelling and cursing at him. When that diplomatic approach failed to dampen Sugarman’s enthusiasm, Carter dismounted and complained to the instructor about the boisterous biker. The instructor declined to intervene. This was followed by more yelling and cursing by Carter (who must have thought the first round of peace talks was too insubstantial to be effective), which was followed by even more enthusiastic cheering and shouting by Sugarman. Having apparently concluded that their conflict was at a stalemate, Carter “got off his bike again and ‘picked up the front of plaintiff’s cycle with plaintiff upon the unit and pushed him into the wall of the classroom leaving a hole in the sheetrock,’” injuring Sugarman’s back and neck and leaving him prone in the no-spin zone.

Sugarman sued and filed criminal charges against Carter. In the criminal case, Carter coasted and beat the rap. His civil case for damages is still pending. The same can no longer be said about the case of negligence against the Equinox Health Club.

Equinox moved for summary judgment to dismiss Sugarman’s case, claiming, among other things, that Equinox could not be held responsible for Carter’s violent outburst. Sugarman opposed. According to Sugarman the club failed to intercede at the argument stage and failed to remove Carter when he showed aggressive tendencies just before his “spin rage” occurred. It also failed to call the cops or EMS and was otherwise negligent in the way it ran the club, as demonstrated by Carter’s cycle sneak attack. But there in lies the rub.

In an unusually lengthy and involved decision, the court dismissed the case against Equinox. In order to hold the club responsible for Carter’s assault, it had to have notice that he had criminal tendencies, a pattern of criminal behavior or what the court considered a clue that an attack was imminent. The problem with making such a finding, however, was that plaintiff himself never feared for his safety or was ever intimidated by Carter, as demonstrated by Sugarman’s remonstrative good cheer in response to Carter’s vituperations. As the court observed, “Plaintiff’s own testimony fails to establish that even plaintiff foresaw the alleged assault by Mr. Carter.” So how could the club be responsible?

The court went on to find that “verbal tirades” don’t put the club on notice of a potential physical assault, that “heated words” without more don’t put the club on notice and that the exchange of jeers for cheers never rose to the level of dispute or argument, which might have created liability for the gym. According to the court, nothing that happened between Sugarman and Carter gave warning of the impending attack (which is a stretch in New York, since merely looking at someone the wrong way can get you killed). Under the circumstances, Equinox was not liable.

As for not calling the police or EMS at Sugarman’s request, the court observed the general rule that, “from time immemorial our courts have held that there is no legal responsibility to do so.” Well that’s a relief.

And as for the claim that Equinox negligently hired an instructor who failed to intervene before words turned to action, the same lack of notice that these exchanges were about to erupt into violence applies to the instructor, which means Equinox is off the hook on this theory as well.

No matter how you spin this case, Sugarman is not left with much to shout about. We’ll see if Carter steers clear of liability when he rides into court, or whether the ebullient Mr. Surgarman will finally get to salute Carter with a Bronx Cheer of victory.

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Posted In: Damages , Evidence , Injuries , New York State Courts , Speech , Strange but True

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U.S. Court of Appeals for the Sixth Circuit: Phelps-Roper v. Strickland

Here’s the good news: Common decency still has a recongnized place in America, notwithstanding indicators to the contrary.

Topeka Kansas-based Westboro Baptist Church cannot protest at funerals in Ohio. These are the lovely people who believe God is punishing America for the sin of homosexuality by killing Americans, including soldiers. These “church” members believe that “protesting at funerals is an effective way to convey the message of their church.” To make them even more effective messengers, their preferred venues are funerals of soldiers where, as we’ve seen on TV, they share such inspirational messages as “God Hates Fags,” “Thank God for Dead Soldiers” and “Thank God for 9/11.”

Ohio law proscribes protests at funerals. It’s been the law since 1957 with two amendments since. The original law regulated picketing at funerals and funeral processions. The amendments put time limits on protests (from one hour before to one hour after the funeral), specified a 300 foot buffer zone for permitted protests and expanded the definition of “protest” to include “other protest activities.”

Plaintiff, the charming Shirley Phelps-Roper, contended that she wanted to protest at Ohio funerals in the future and that the law violated her Constitutional right to free speech. She had been protesting at funerals for quite some time making a name for herself and for her church along the way.

While the District Court struck down that part of the statute that prohibited protests at “funeral processions” (since it created a “floating buffer zone” which was Constitutionally overbroad) it upheld the rest of the law. So too did the Court of Appeals. It found that the Funeral Protest Provision was content-neutral (no one could protest at funerals, not just the loving members of Westboro Baptist); it served an important governmental interest—balancing the First Amendment rights of protestors with the rights of funeral attendees to grieve, memorialize and gather in honor of the deceased, and; the funeral protest provision is narrowly tailored—300 feet away and no protests from one hour before to one hour after. As the court noted, there are other ways for these protestors to get their message out and “Phelps-Roper is not entitled to her best means of communication.”

Here’s the really sick part: Ms. Phelps-Roper “does not claim that funeral protests are [even] her most effective channels of communication” or that “mourners at a funeral are...her primary audience.” For her, a “funeral is the occasion of her speech, not its audience.”

Well isn’t that special.

Solidiers die and at the moment of heart-breaking grief and remembrance, Phelps-Roper sees her chance for 15 minutes of fame by reviling the dead with hate-filled venomous speech. Pathetic. But still protected. Partly.

Maybe Westboro Baptist would be better off knowing what God loves rather than what it claims God hates. After all, the Bible says we should “comfort all who mourn,” and that those who do so will be called “oaks of righteousness.” Those who do what Phelps-Roper and her “church” do are more like poison oak. And if they really believe what's written in the Bible, they will have to answer for spreading it in God's name.

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Posted In: Culture War , Homosexuality , It's My Right! , Religion , Speech , Strange but True , U.S. Court of Appeals

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New Jersey Supreme Court: Culter v. Dorn

As they say in Jersey, “You talkin' to me?”

That question had to be in Jason Culter’s mind every time he heard comments in the office about “those dirty Jews.” Every time he was referred to as “the Jew.” Every time he was asked by his boss “where [his] big Jew… nose was?” And the time his coworker suggested that we should “get rid of all those dirty Jews.”

And what if all those folks making the comments were armed. Do you call the police?

You don’t if you’re a cop.

And you don’t if the people making the comments were also cops and coworkers.

This was the work environment at the Haddonfield New Jersey Police Department. Not exactly Jersey’s Finest.

Culter was reluctant to make waves and thought he was thick-skinned enough to ignore it all, but a few threatening incidents and comments too many put him over the top. He brought an action under New Jersey’s Law Against Discrimination (LAD) claiming he was subjected to a hostile work environment because he was Jewish. In its defense, the police department claimed Culter was a willing participant in all the fun and that it was all just harmless police department chop busting. The judges were not amused and seemed not to get the joke.

According to the court, “The LAD’s promise of a discrimination-free workplace” extends to matters of faith. “Antagonistic, degrading, or demeaning conduct in the workplace that is directed at or about one’s religious faith, or ancestry, can be discriminatory and can amount to an unlawful hostile environment.” The Haddenfiled precinct was such a place.

The court found that Culter met the threshold for demonstrating a religion-based discriminatory work environment. It also found that the standard of proof to demonstrate a religion-based hostile environment was no different than what was required to show a sexually or racially-based hostile workplace. Hatred and job-related abuse of authority come in all shapes and sizes, but it’s all equally unacceptable.

Given the times we live in, one has to wonder what the members of the Haddonfield Police Department were thinking. Or does anti-Semitism make you both reckless and clueless. These cops would have been better off if they followed there own advice and remained silent. After all, the original “Miranda” warning comes from an old Jewish book (Proverbs 17:28) which says this: “Even a fool is thought wise if he keeps silent, and discerning if he holds his tongue.” Alas, such was not the case here, and before the New Jersey Supreme Court, the Haddonfield Police Department didn’t have a prayer.

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Posted In: Employment Discrimination , Injuries , Other State Courts , Religion , Speech

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U.S. Circuit Court of Appeals for the Eleventh Circuit: Frazier v.Winn

In the 70's TV show Welcome Back Kotter, Juan Epstein always had a note for his teacher. And every note was “signed Epstein’s Mother.” That won’t cut it in Florida public Schools where the state Pledge Law requires public school students from K to 12 to recite the pledge at the beginning of each day. The only way to be excused from this obligation is by an authentic written request from the student’s parent. Once you submit a note, you can exercise your right to remain silent during the pledge, but the law still requires you to respectfully stand at attention.

Cameron Frazier thought he was old enough to take a stand on sitting out the pledge. The high-school junior challenged the statute claiming the Pledge Law violated his First Amendment rights. The court’s answer to his objection was basically “Sit Down!”

Mr. Fraizier claimed the statute “robbed him of his right to make an independent decision.” The court disagreed. While it overturned that part of the statute that requires students to stand if they opted out of the pledge (the constitutional right to sit during the pledge was long ago established), it determined that the Pledge Law is “largely a parental-rights statute.” Accordingly, it concluded that “the State’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech.” The only way out of the pledge for Cameron Frazier was a real note, signed Frazier’s mother.

Depending how you score this, it’s either one against the rights of free speech, or one for the rights of parents. Funny how age and circumstance can affect your view of what is and isn’t constitutional. Now if only the courts would rule on our children's right to opt out of cleaning their rooms or taking out the garbage...

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Culture War , It's My Right! , Speech

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U.S. District Court for the Northern District of California: Michael Savage v. Council on American-Islamic Relations, Inc. et. al.

The Savage Nation is Dr. Michael Savage. The Bronx-born broadcaster has one of the most popular radio talk shows in the country. His brand of libertarianism and conservatism are dished up in flaming doses of Truth-Gone-Wild. Some would call his advocacy the scorched-earth approach; others would say he wields facts like a bludgeon without regard to consequences or sensibilities. Whatever your view, he is no wallflower and no stranger to controversy. He infuriates, elucidates and inundates all at once.

After railing against Islamic extremism, Mahmoud Ahmadinejad and certain aspects of the Koran, efforts were made by the Council on American-Islamic Relations (CAIR) to boycott his show and have him removed from the air. Moreover, CAIR aired excerpts from Savage Nation broadcasts on its website to rally opposition to his program. Savage would have none of it. He filed suit against CARE for racketeering and for copyright infringement.

Unfortunately for the good doctor, “fair use” allows critics to appropriate portions of his speech to make their point. Such use is not copyright infringement. As for Savage’s racketeering claim—that CAIR is not a civil rights group at all, but a political organization and front for terrorist groups—the court found the pleadings insufficient to support the claim and dismissed with leave for Savage to re-plead and try again.

Has CAIR been unfairly maligned? Has Savage? Has a raw nerve been struck? Or is it Truth that’s taking a beating? When it comes to debates involving terrorism, free speech, talk radio, Islam and the right to criticize, Truth is the first victim. Truth is always the first victim in important debates, whether they’re about abortion, global warming or the war on terror. Thankfully, Truth is also the last thing standing when all is said and done and the fog of battle lifts.

Savage battles over Truth are good for the nation. They draw us into the controversy, make us examine the facts and choose sides by reaching our own conclusions. That’s the privilege and responsibility of citizens who live in a free society. That, and serving jury duty.

And that’s the Truth.

11/17/08 Addendum: CAIR sued Savage for nearly $200,000 in legal fees after this action was dismissed. The court determined that while Savage’s claim was initially defective, the allegations he made about CAIR were not frivolous. So for CAIR, "No soup for you!" And no legal fees.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Culture War , Religion , Speech , Terrorism , U.S. District Court , War on Terror

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New York Supreme Court: Smith v. Walsh-Smith

It's a brave new world and YouTube is at the cutting edge. From the same computer you download directions or songs for your iPod, you can upload and stream videos to a worldwide audience. Now that's power! And possible trouble. Tricia Walsh-Smith is a case in point.

Tricia married Philip Smith, a man 25 years her senior. Philip started out as a theater usher and ended up president of the Shubert Organization, "the largest theater owner and operator in the United States." Notwithstanding his success, Mr. Smith is a very private man. Apparently, Mrs. Walsh-Smith had issues about the terms of their prenuptial agreement and about her husband's unwillingness to invest $250,000 in her theatrical production. Without his money, the show would not go on. These issues ripened into heated arguments, flying crockery and threats by the missus to malign Mr. Smith in the New York Post. True to her word, the Post got the dirt on Mr. S. As a result, he filed for divorce on the grounds of cruel and inhuman treatment.

She sued him back. She also availed herself to some self-help. Not satisfied that she was mustering the necessary leverage to obtain a favorable outcome or an out-of-court settlement to her liking, the angry wife took her beef to the internet. Having come to appreciate the value of a good production, she brought a film crew into the marital apartment, added music and subtitles, and trashed her husband on video. She then posted it on YouTube, which turned out to be her big break. The video was an "overnight sensation" and has been viewed more than three million times.

Fame has its cost, however. It is no easy task to prove cruel and inhuman treatment in divorce court, but Mrs. Walsh-Smith's internet histrionics gave Mr. Smith all the proof he needed. As the court stated, "He has been publically humiliated and embarrassed to an unprecedented extent." Mrs. Walsh-Smith claimed "she had no other option" because of her finances. The judge was not moved, noting that other spouses have been similarly challenged without resorting to the internet, and concluded that "it is hard to say defendant had no other choice when no one else before her had ever exercised that choice." Accordingly, the court granted Mr. Smith his divorce. As for Mrs. Smith, she might have gone where no woman has gone before, but she owes YouTube the credit for the outcome in her divorce.

YouTube is power: Become famous (or infamous) overnight. Jump start a career. Or attack your enemies (or your spouse) on a global scale from the convenience of your home. It might seem like a handy tool to advance your interests, but we are learning it comes with responsibilities. You can't use the internet as a weapon to humiliate or embarrass people with impunity. (In an unrelated but similar case, a Florida judge required two teens who had thrown a large drink at the drive-thru cashier—an activity its purveyors call "fire in the hole"—to post a groveling apology on YouTube after they first posted their own home-made video of their mean-spirited carbonated assault.) We'll see what new and inspiring or insipid ways the internet will be used tomorrow, and just how creative the courts will have to become to deal with it.

Until then, post at your own risk.

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Posted In: Brave New World , Damages , New York State Courts , Speech , The Internet

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U.S. District Court, Eastern District of New York: Fowler v. Zondervan;
Fowler v. Thomas Nelson

In the King James Bible, 1 Corinthians 6:9-10 says this:

“Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God.”

The New International Version (NIV) translates the same verse this way:

“Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God.”

Bradley LaShawn Fowler, who is gay, does not appreciate the translations which identify homosexuals among the sinners who will not inherit the Kingdom of God. So he did what any offended individual has a right to do: He sued the publishers of the Bible. Referring to this translation as a “malicious conspiracy” Fowler claims it has destroyed relationships with his family and caused him all sorts of mental anguish including loss of self esteem and bewilderment. He is seeking $70 million dollars in damages in the two lawsuits.

It used to be that if you didn’t like what the Bible said, you either ignored it or disparaged it. But times have changed. There seems to be a movement to silence those with whom we disagree and the courts are often the vehicle used to accomplish the task. If, as Mr. Fowler hopes, one man can censor the Bible’s reference to homosexuality (one wonders if Mr. Fowler will be filing separate actions over Romans 1:26-27 and Leviticus 20:13), then liars, adulterers, thieves, drunks and other aggrieved readers may well follow suit. Who knows, if Fowler’s lawsuits are permitted to proceed, he may cause a revival as other potential litigants search the scriptures for verses that offend their sensibilities, only to find their salvation.

We used to cherish the market place of ideas where we battled each other with thoughts and words and trusted that the most worthy and profound ideas would rise to the top, persuade us of their value and elevate our society. That is what made America great. We let every one have his say, no matter how absurd, no matter how silly, no matter how divisive. Juxtaposed against the profound, the wise and the loving, the former ideas just couldn’t withstand scrutiny or analysis and in the end were rejected. Now, it seems, we have lost some of our confidence in our fellow citizen's ability to choose wisely, and instead look to the courts to shut the mouths of the other side and to claim that our right to be free of offense is greater than the freedom to speak we claim to cherish.

There’s something offensive about all this that can make you want to scream. Which is, after all, our right.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Culture War , Homosexuality , Religion , Speech , Strange but True , U.S. District Court

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