Elonis vs US: SCotUS should have provided guidance to lower courts

by Carole McNall

I rarely agree with Supreme Court Justice Clarence Thomas. But in his dissent in Elonis v. U.S., decided June 1, I found this pair of lines that had me nodding “yes:”

“Our job is to decide questions, not create them. Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule – any clear rule.”

The clear rule the Court doesn’t really provide is the answer to this question: If someone posts comments online that appear to be “true threats,” does he have to intend his comments as threats to be convicted of violating federal law? Continue reading

Guns, knives, pit bulls and the new Gallup poll

CATEGORY: GunsThis morning I walked past a man about my age, sixty, who was wearing camouflage and a fatigue-style cap. He had two Bowie knives on his belt and was walking a ferocious-looking pit bull that had to weigh eighty pounds.

My immediate thought was, “Who’s this guy and what’s he afraid of?”

Who knows? Maybe he’s got good reason to be afraid. Maybe he’s in witness protection and the Mafia just put his home address up on their Facebook page. Or he just started a Salman Rushdie fan club. Or he’s a disguised federal prosecutor from Texas.

But I doubt it. I suspect he’s an extreme example of a surprisingly large group of people who are paranoid, perhaps not in clinical psychological terms, but in a not-quite-right sort of way. He’s obviously afraid of something, and whatever it is might show up at any minute on a quiet residential street in a nice small town like Bloomington, Indiana.

I’ve spent much of my life around poor and poorly educated white people and have met many folks who remind me of this guy. I’ve had them proudly pull handguns out from under their car seats and when I asked why they needed guns in their cars, the generic answer is they want to be ready in case somebody “messes with them.”

Who are the somebodies that’re going to mess with them, I always wonder?

I’ve asked that, too.

Sometimes the answer is enemies of the U.S. It’s hard to see how Muslims, or Russians, or Mexican cartels are going to mount an attack in the U.S., especially in central Indiana, but it’s always possible I suppose. No doubt those Bowie knives will scare a Spetsnaz or mujahedeen with an AK-47 right back to whatever unpronounceable place they came from.

Sometimes the answer is the government. However, most of the paranoid people I know are right-wingers. If the government helicopters ever do come, it’s far more likely they will have Christian crosses on the side and be coming not for righties, but rather for lefties like me. The great victory of the Nixon Youth has proven not to be a successful ideology that won most Americans over to their way of thinking, but rather a concerted and successful plan to infiltrate and take over the U.S. military. Motto: If we can’t convince ‘em, we can still kill ‘em.

Sometimes it’s their neighbors who might mess with them. This isn’t so silly a fear. According to the FBI, there are over a million violent crimes per year in the U.S. That means on average, a citizen has a one in 300 chance of being assaulted, raped or murdered each year, which says that one in four people will be assaulted, raped or murdered in their lifetimes. Now, of course, most of the people being assaulted tend to be young minority men in urban areas, not college-educated white people who live in the suburbs. But the man with the pit bull didn’t look well-to-do, and it’s entirely possible he lives in one of those neighborhoods.

Sometimes it’s people of color who will invade their homes in the night. According to hot-off-the-shelf Gallup data, 43% of Americans own and keep a gun in the home (I’m one of them.) Of these, 67% own one for self-protection (I’m not one of them.) Obviously, there’s a real fear here. Perhaps In Cold Blood scared the shit out an entire generation. It’s hard to say how real the perceived home invasion threat is. There are no reliable statistics on how many occur each year. Violent home invasions are probably relatively rare. But they happen and they are horrible. When they do happen, it’s usually to the poor and vulnerable. My mother was the victim of a violent home invasion by a man of color.

So the guy with the knives could be afraid of lots of things. Mujahedeen. The government. Neighbors. Strangers that come in the night.

Or not. I suspect President Obama had it right back in 2008. What people like the man I saw walking his dog really have to fear is that the world is leaving them behind. They lack the skills and education to catch up. The world economy is messing with them, it ain’t gonna stop, and they should be afraid. They can’t easily buy cheap protection against economic trends, so they arm themselves in the ways they can. They cling to defenses they know against threats they don’t.

I once worked on a dredge in Louisiana, a mammoth crane on a barge that dug canals through the delta. The digging was done by what’s known as a clam bucket which hangs by thick wire ropes from a boom. The bucket had two inch thick steel walls and was eight feet tall and big enough to put a half-dozen men in.

One day the bucket took a big mouthful of dirt and water and snagged a muskrat. The small animal was caught by one leg, and it hung there suspended fifty feet in the air, frantically trying to push open the bucket with its other foot. Kenneth, the operator, opened the bucket and let it go. He laughed about it for weeks, the idea of a muskrat trying to outmuscle a giant machine. He’d mimic the muskrat, contorting his face and imitating the animal’s frantic efforts.

Of course, if you’re a muskrat, and some giant force from the sky suddenly grabs you in massive steel jaws, you have to bite and push, because that’s all you know to do.

If you’re poor, you buy knives and pit bulls.

Don't even LOOK at Pinterest without having your attorney present

DocumentUgh. I’m no attorney and don’t even play one on TV, but after wading through only two pages of the new terms and scribbling notations like crazy, I’m inclined to just delete my account and never intentionally click through to their website again. Unless I’m horribly mistaken, I can only come up with four possible scenarios to account for their gobbledy-gook:

  1. Product of infinite monkeys on infinite typewriters that vaguely looks like a TOS;
  2. Cobbled together by a non-attorney copy/pasting from various random sources willy-nilly, including toilet paper packages, without fully considering the ramifications;
  3. Cobbled together by a rather lackluster and sleep-deprived law student who had word salad for lunch; or
  4. Cobbled together by a brilliantly mad Eeeevil intellectual property (IP) attorney in a secret underground laboratory as part of a grand conspiracy to ensnare as many people in an IP infringement net as imaginable because retaining those services was still cheaper than buying a movie studio, a music label or a death ray. Continue reading

Celebrity lawyer Gloria Allred wants Florida to prosecute Limbaugh using forgotten statute: she's the best thing that's happened to Rush in weeks

I wonder what Rush Limbaugh will be talking about on his show this coming week? Ah, maybe this:

In a letter dated March 8, [celebrity lawyer Gloria] Allred, writing on behalf of the Women’s Equal Rights Legal Defense and Education Fund, requested that Palm Beach County State Attorney Michael McAuliffe probe whether the conservative radio personality had violated Section 836.04 of the Florida Statutes by calling Georgetown University law student Sandra Fluke the two derogatory words.

The statute stipulates that anyone who “speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity” is guilty of a misdemeanor of the first degree. Continue reading

Stuart O'Steen is not a crook

But he is Richard Nixon.

Stuart, longtime friend to S&R, is a veteran stage actor who portrays the former president in the Longmont (Colorado) Theatre Company‘s ambitious take on Frost/Nixon.

I had the great pleasure of recently seeing the production. As a politics junkie and student of American political history, particularly of the Watergate debacle, I couldn’t pass it up. And I anticipated from having seen Stuart’s remarkable performance as Robert Scott in 2009’s Terra Nova that he would surely immerse himself in this unique role as well.

My high expectations were Continue reading

Nota Bene #122: OWStanding

“When I lie on the beach there naked, which I do sometimes, and I feel the wind coming over me and I see the stars up above and I am looking into this very deep, indescribable night, it is something that escapes my vocabulary to describe. Then I think: ‘God, I have no importance. Whatever I do or don’t do, or what anybody does, is not more important than the grains of sand that I am lying on, or the coconut that I am using for my pillow.'” Who said it? Continue reading

A morality play: When Rupert Murdoch entered Parliament

Any morality play has its set-piece characters. The villain, the outraged public, the crusading representatives of order.

Democracy in the UK is very tactile. Parliament is the voice and instrument of the people. Anyone, no matter how powerful, can be summoned to answer questions before the people. These performances can destroy careers and reputations but are an adjunct to the more dull and complex process of police investigations, judicial review and eventual judgement. They permit the public to see their anger expressed.

Rupert Murdoch’s role before his questioning was clear: he is the villain of this set-piece. He was there to be a subject of the collective outrage of British society and to hold himself to account.

Yet you don’t get to be an 80-year-old media tycoon without understanding that a story is made in the telling. Continue reading

Hold Rupert Murdoch to account. But go no further.

A goodly number of Murdoch’s newspapers run at a loss.  This isn’t because he’s a bad businessman, it’s because of the industry.  His competitors are doing worse.

However, Murdoch loves newspapers and news.  Whatever else his failings, it’s rare to have a newspaper owner who actually loves the medium.  So even though these companies lose money for him (and, in revenue terms, are a tiny proportion of an empire that is mainly about entertainment and media) he keeps them alive and well financed.

Say that the clusterfuck over the infractions of a small number of his newspapers (assuming this goes beyond just News of the World) results in him divesting of news entirely.  Firstly, who’d buy them?  Secondly, what happens if this leads to the final destruction of actual daily newspapers?  Continue reading

Supreme Court ruling on video games only an assault on bad parenting

by Tom Shortell

The Supreme Court ruled Monday it’s unconstitutional to ban the sale of violent video games to children, striking a severe blow to lazy parents across the nation.

In a 7-2 decision that cast aside typical alliances of the court, the court ruled that video games as a medium are protected under the First Amendment as free speech. The decision struck down a 2005 California law that forbid the sale of games “that depicts ‘killing, maiming, dismembering, or sexually assaulting an image of a human being’ in a way that appeals to a deviant or morbid interest of minors” to anyone under the age of 18. Continue reading

Righthaven LLC may have wrong approach, but news companies need to protect content

by Jane Briggs-Bunting

Stephens Media and its erstwhile partner, Righthaven LLC, lost a significant copyright battle in both Nevada and likely Colorado when a Nevada judge ruled Tuesday that Righthaven did not have standing to sue alleged copyright infringers who had reproduced articles and other content from the Las Vegas Review-Journal.

It’s yet another push by news media to try to get paid for republication of news content reproduced by aggregators, bloggers and others, with or without credit. And bloggers and folks from groups like the Electronic Frontier Foundation (EFF) are fighting back, dubbing Righthaven nothing more than a “Copyright Troll.”

Continue reading

Dr. Death avoids suicide, chooses natural causes

by Jane Briggs-Bunting

Jack Kevorkian (aka Dr. Death) died early Friday in a Michigan hospital from complication of pulmonary thrombosis, not suicide. He was 83. He was frail and failing, weighing around 75 lbs.

It was breaking news on Detroit’s local TV stations and within minutes spread to the national media.

Physician-assisted suicide’s most prominent advocate died, in a hospital where he was being treated, of natural causes. Curious that. He was a long time proponent of the right to die and ended up doing prison time, eight years, when one of his patients decided he did not want to commit suicide in the middle of the procedure that Kevorkian, against his then-lawyer’s advice, was videotaping. Kevorkian gave the tape to CBS’s 60 Minutes, and the local prosecutor was finally successful in getting a conviction. In all, he helped 130 people to commit suicide. Continue reading

RIP, Dr. Death

Dr. Jack Kevorkian has died at the age of 83.

Kevorkian, who claimed he had helped about 130 people to kill themselves between 1990 and 1999, died at William Beaumont hospital in Michigan, close friend Mayer Morganroth said.

Nicknamed Dr Death, Kevorkian came to prominence in 1990 when he used his homemade “suicide machine” in his rusted Volkswagen van to inject lethal drugs into an Alzheimer’s disease patient who sought his help.

He had been hospitalised since last month with pneumonia and kidney problems, Morganroth said. An official cause of death had not been determined, but Morganroth said it was likely to have been pulmonary thrombosis. Continue reading

Trouble in Murdochland

Rupert Murdoch probably thought that, at 80, he could ride off into the sunset and leave News Corporation in good hands—those of his trusty assistant, Robert Thompson, and his son James, who is being moved to the US from the UK to become the firm’s number three. Murdoch has built one of the most remarkable media empires around through a combination of brashness and acumen rarely encountered in the past couple of decades. (Unfortunately, he’s also created Fox News, a true force for evil and that bane of American politics, but that’s another discussion.)

But things are not going so smoothly here in the UK, and it may have ramifications for how the organization develops going forward, and indeed whether it will survive in its current form. Because the long-simmering scandal over phone-tapping by reporters for one of the Murdoch stable of newspapers here, News of the World, now looks set to explode, and it’s not clear the damage can be contained.
Continue reading

In Defense of "Jesus Glasses"

Jesus Glassesby James Corbett

The facts of my case are fairly simple. Chad Farnan, a 15-year-old self-described Christian fundamentalist student in my Advanced Placement European History class, sued me for a “pattern” of statements unconstitutionally hostile to religion. His claim was based on hours of illegal and surreptitious recordings.

In my attorney’s opinion, the law was on our side, so he advised me to seek a summary judgment. I now believe that was a critical error because when a defendant requests a summary judgment rather than a jury trial, the law requires that all the facts presented by the plaintiff be accepted as truthful. No fact may be disputed, only the law. My attorney believed a fair application of the Lemon test would turn in my favor, but the test fails in a case such as mine both as a matter of law and of logic. Had I gone to court, I could easily have demonstrated that Chad and his mother are Continue reading

Anti-gay protests protected by U.S. high court

by Jane Briggs-Bunting

By an overwhelming majority of 8-1, the “Super Supremes” ruled today to protect the free speech protests of Westboro Baptist Church members who have been picketing at the funerals of dead soldiers.

It was a stunning victory for free speech and the First Amendment and really endorses earlier U.S. Supreme Court rulings that even reprehensible speech is protected by the U.S. Constitution. It’s one of the bedrock principles the country was founded on. Continue reading

Savannah bans Girl Scouts' cookie sales at founder's historic home

by Jane Briggs-Bunting

In the “you’ve got to be kidding department,” Savannah, Georgia area Girl Scouts and brownies can no longer sell their cookies in front of the Juliette Gordon Low Home. Low was the founder of the Girl Scouts of America.

Why? Because under a Savannah ordinance, the cookie sale is considered street peddling, a violation. The ordinance reads: “Sec. 4-1001. To be used for public purpose only. No person shall use the streets, sidewalks, lanes or squares of the city for private purposes of any sort. They shall be used only as public ways and for the public purposes for which they are intended.”

Continue reading

Moral bankruptcy leading states to financial bankruptcy

How mind-bogglingly crazy is it that several states—including my own New York—are considering bankruptcy?

Of course, states don’t qualify for bankruptcy, but a move is afoot in Congress to create a kind of bankruptcy-like status for states.

Bankruptcy for states would raise huge issues of sovereignty. It would throw the municipal bond market into chaos. It would just downright look bad, undercutting what little public faith remains in government. There are all sorts of reasons why this could be hugely problematic.

But worst of all, it would be a loud-and-clear admission by lawmakers that they can’t get their fucking acts together and behave responsibly.

Has it really come to this? Continue reading

The (jail)birds and the bees

by Lisa Barnard

I worry about how I’ll manage if I have kids—you know, where’s the best place to raise them, how to choose their schools, how the hell to keep such tiny people alive when I can’t even water a bamboo plant twice a week. The usual. Also, how to answer the tough life questions kids throw at you. The birds and the bees is a topic I particularly dread—I can’t exactly envision a reasonable, informative, non-awkward way to explain sex to your kid. I just can’t.

But over the holidays, an anecdote shared by my Uncle Paul gave me inspiration. He thought I should know how my grandpa explained it all to him back in the day so that I’d at least have that approach as an option. I thought I’d pass it along to you, too, in case you want to keep our tradition alive. Continue reading