July 5th, 2018

Are Democrats Losing the First Amendment?

If Democrats aren’t careful they risk surrendering a core American value to conservatives.

I don’t usually write about partisan politics, because if I did I would never stop, but in this case it deals with the First Amendment.

By way of background, it seems that liberals lost the use of the American flag as conservatives appropriated it as their own. This, no doubt, began in the 1960s when antiwar protesters started burning it.  Liberals have struggled to recover.

Stephen Colbert built an entire satiric show around the concept that waving the flag somehow meant that you were patriotic — while ignoring the values that the flag stands for.

A similar battle is now taking place regarding another potent American symbol, the national anthem.

We may now be seeing yet another version with a battle over the First Amendment. The New York Times decided, in a fit of epic stupidity, to highlight that right wing nut job conspiracy theory propagator Alex Jones hired noted First Amendment attorneys Marc Randazza and Jay Wolman to defend him in a defamation suit from the parents of Sandy Hook massacre victims.  Crackpot Jones claimed the massacre was a hoax.

This is what we lawyers like to call in legalese, logical. Because if you have a First Amendment problem you’re not going to hire a matrimonial or real estate attorney. When I was sued for defamation the first time, in the infamous Rakofsky case, I was part of a large group of lawyers who hired Randazza. There was a damn good reason for it.

But no, the Times decided to highlight the fact that Randazza also represents a Nazi in one of his other First Amendment defenses. Note to the Times, which should know better:  If you’re going to represent free speech issues you are not likely to be representing the late Mr. Rogers and his neighborhood. You will sometimes defend people out on the fringes of society, many of whom are widely detested. Benign language that the majority loves isn’t where free speech battles are fought.

This article was a follow-up to an Adam Liptak article in the Times about the First Amendment being “weaponized” by the right.

Lets be clear:   The First Amendment is not an issue of the left or the right, as all people benefit from its protections.  Those who defend the First Amendment firmly believe that an infringement upon it is an infringement upon everybody’s rights, regardless of whether you come from the left or the right. Lawyers that defend free speech are not really defending the speaker. They’re defending the constitution.

This is not to say that the Democrats are the only fools in this battle over American symbols. The Republicans, for example, have lost the Statue of Liberty as they elevate bigotry over the statue’s central message.  Why it is that Democrats have not created a flag with the torch of liberty to constantly wave remains a mystery to me. This will haunt the GOP for decades to come.  That issue was a gift to Democrats, just as surely as the burning of American flags was an inadvertent gift to Republicans.

And so, dear New York Times, don’t be so quick to make the First Amendment a battleground of partisanship, the way it has for the flag, anthem and statue. It will not end well for those who believe in free speech. And that doesn’t just mean not ending well for you as a major media outlet, but for all Americans.

 

June 14th, 2018

NY Senate Passes 2nd Bill in 2 Weeks Restricting Free Speech

Dear NY Senate:

What the heck is going on up there in Albany? Last week you passed an anti-cyberbullying bill that restricts free speech and conduct in such a way that, if ultimately signed, is guaranteed to be tossed into the trash heap by courts because it violates the First Amendment.

And this week you do it again?! This time with your Elder Abuse Bill (S.409) that makes it a crime for caregivers (including family) to post photos on social media if elderly, vulnerable seniors aren’t able to give consent.

Now I understand it might have made you feel good to pass such a bill, and you get to boast to constituents that you are doing something in Albany, but do you realize what you have really done?

For the benefit of those who voted for the bill but didn’t read it, this is what is made into a misdemeanor:

A  PERSON IS GUILTY OF UNLAWFUL POSTING OF A VULNERABLE ELDERLY PERSON ON SOCIAL MEDIA WHEN, BEING A CAREGIVER WHILE PERFORMING THEIR  DUTY  OF CARE  FOR A VULNERABLE ELDERLY PERSON, HE OR SHE POSTS AN IMAGE OR VIDEO OF SUCH PERSON ON SOCIAL MEDIA INCLUDING, BUT NOT LIMITED  TO  FACEBOOK, YOUTUBE,  TWITTER, INSTAGRAM, SNAPCHAT, TUMBLR, FLICKR AND VINE, WITHOUT SUCH PERSON’S CONSENT.

First off, while the First Amendment says that Congress “shall make no law…abridging the freedom of speech,” and the amendment applies to the states, there are still some very limited exceptions to it. But this just isn’t one of them.

The First Amendment is no defense to conspiracy discussions about committing a crime, or defamation, or inciting imminent lawless action, or obscenity or copyright.

I don’t see posting pictures of elderly Ma or Pa on that list. For this bill, if signed, to pass constitutional muster, the Supreme Court would have to create a wholly new category of restricted speech. Do you think they will do that? Or more importantly, did you even analyze that?

My guess is no since this bill passed 61-0, and there are more than a few lawyers in the Senate.

So, let’s say, on disabled Ma’s birthday you (a caregiver) hold a party for her, even though she can only semi-appreciate it. Then you share those party photos on Facebook for your friends and non-attending family members. Guilty of a misdemeanor.

You should note that the bill doesn’t clearly say when the photos had to be taken. It’s a crime if just three conditions are met: that the subject of the picture is a “vulnerable elderly person,” that the person sharing it is a caregiver, and that the sharing is “without such person’s consent.”

So let’s say that on Veteran’s Day you share a photo of your disabled WW II father for whom you sometimes care. He’s 20 years old in that long-ago-taken pic and in uniform. You are proud of his service (as was he) as part of the Greatest Generation. Guilty of a misdemeanor.

And the same is true for sharing any other photo for such people taken during their lifetimes: From childhood, parties, weddings (including their own), vacations, anything you can think of.

Since New York has about 20 million people, do you appreciate the scale of how many misdemeanors are being created for sharing a photo of a disable loved one? Even if the Supreme Court did create a new category of restricted speech for this, the bill is both vague and over broad.

If this was a new category of restricted speech — you can’t post photos of incapacitated people without their consent — then the slippery slope also says it is OK to criminalize the posting of photos of other incapacitated people. Like kids. How many kid pictures are shared on social media?

The justification for this bill is that the posting of photos of disabled elderly people has become a problem:

Recent media reports have highlighted occurrences of a caretaker
taking unauthorized photographs or video recordings of a vulnerable
elderly person, sometimes in compromised positions. The photographs
are then posted on social media networks, or sent through multimedia
messages. Such action, dehumanize individuals and create an
environment that perpetuates a disrespectful and/or potentially
abusive attitude. Caretakers are required to provide care and services
in an environment that all individuals are treated as human beings.

How big is this problem that you think it justifies a change in the First Amendment that affects millions of people sharing loving photos of their elderly parents?

 

June 12th, 2018

NY Senate and Cyberbullying, Part 2

Last week I saw a tweet come into my feed from the NY Senate about the 56-0 passing of a cyberbullying bill. I quickly knocked out a post ripping it for two reasons: The complete lack of a definition and the fact that it violated the First Amendment.

That post was picked up by Scott Greenfield.  Then Greenfield’s post was seen by Tim Cushing at Techdirt. Which in turn was seen by Eugene Volokh. A little old school blogging as people added thoughts.

Now I have more to add: The first being a semi-correction that includes some  additional criticism of the Senate. But the second is some actual praise.

First, as Volokh pointed out, the bill was an amendment to the Education Law, and the Education Law has an existing definition of cyberbullying that is defined elsewhere. The first of the Senate’s failings was the lack of a reference to that definition section.

That lack of a reference, Greenfield points out today in likewise doing a second post on the subject, threw us both off as this isn’t the way New York usually drafts its statutes. As Greenfield notes:

Had it been the Senate’s intent to borrow the definition from another section of the Education Law to create its new crime, and, indeed, to establish the basic elements of the offense as would be minimally necessary for a crime to pass constitutional muster, there should have been a reference in the new crime to the definition upon which it relies. This is how New York laws are drafted, how a criminal offense is framed as to contain the bare minimum required to establish the elements of the offense.

It never occurred to Turk or me that there would be a New York law devoid of a definition or elements which would leave it to us to go searching the laws to figure out whether there was some definition, something to establish the elements of the offense, lurking in the darkness somewhere else. You don’t do that. You don’t create a crime and omit either the definition or an express reference back to the section setting forth the definition upon which the legislators relied.

This failure of form, hoping for an implicit reference to the definitions section that exists elsewhere, is the lesser of the two problems. Because that existing definition is so chock full of vagaries as to render it unconstitutional as a criminal statute. These are the provisions (as originally made into law for school administrative purposes, not criminal purposes):

the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that
(a) has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being; or
(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or
(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or
(d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.
Acts of harassment and bullying shall include, but not be limited to, those acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. For the purposes of this definition the term “threats, intimidation or abuse” shall include verbal and non-verbal actions.

So let’s say that Student A passes Student B in the hall. A smiles at B. Then A texts to B, “I’ll see you on the playground at lunch!”

Are they friends? Enemies? Was A flirting with B? Threatening B? Does A simply want to hang out with B? Should B be afraid? Enthralled? Bored to tears?

Would this conduct and speech “reasonably be expected to cause a student to fear for his or her physical safety?”

Would this conduct and speech, unreasonably and substantially interfere with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being?

Who the hell knows?

And if you can’t figure out whether something is a crime or not, then the law is vague. And it is likewise over broad as it will sweep up into its net perfectly innocent conduct and speech.

But there is another part to this posting. And that part is praise.

The praise is not for the bill, but for the Senate’s use of Twitter to quickly and cheaply disseminate information in an easily accessible form to the public.

For all the howling and caterwauling about how bad Twitter is, filled with bots, trolls, and those who think they will somehow “win” arguments and “own” their opponent, the one thing it is particularly good at is the rapid dissemination of information by public bodies.

That is how I easily found the bill’s Senate passage, and that is what allows us to publicly debate it’s merits.

So. The bill itself gets an F, but the Senate’s information distribution gets an A+.

 

 

June 4th, 2018

New York’s New and Improved (?) “Anti-Cyberbullying” Bill

It’s known in the New York Senate as Bill S2318. And it passed the Senate unanimously yesterday, by a vote of 56-0. Must be pretty good, huh? Unanimous!!!

It’s an anti-cyberbullying bill and who would ever want to be against something like that! I mean, bullying is bad, cyber or not, right?

Just one teensy little problem seems to have escaped the drafters, however. This “cyber-bullying” that they wish to make a misdemeanor has a flaw. I’m almost embarrassed to mention it, but here goes.

Cyber-bullying doesn’t seem to have a definition.

Here’s the entire pertinent text:

 S 12-A. CYBERBULLYING. 
1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
A.  MINOR SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL UNDER THE AGE OF EIGHTEEN.
B. PERSON SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL.

2. ANY PERSON WHO KNOWINGLY ENGAGES IN A REPEATED COURSE OF  CYBERBUL-BULLYING OF A MINOR SHALL BE GUILTY OF AN UNCLASSIFIED MISDEMEANOR PUNISHABLE  BY  A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT NOT TO EXCEED ONE YEAR, OR BY BOTH SUCH FINE  AND  IMPRISONMENT.

There is, of course, lots of conduct that we can all agree is bullying, right?  A kid gets taunted by classmates for his less-than-personal personality, and it’s a no-brainer, right?

Well, almost right. I mean, friends do this kind of stuff to their good buddies after all.  It isn’t just for enemies.

But still, let’s say it is an “enemy” of sorts — two kids that actually hate each other. How do they know where the line in the sand is located as to what is legitimate and what isn’t?

So if Kid A wants to say that Kid B’s support of Trump is “idiotic” or “moronic,” or that Kid B seems to be a clueless asshat for believing what s/he believes, would that conduct, if done online, be cyber-bullying? How about if it didn’t involve politics at all, and was purely personal?

Don’t we have a right to call each other schmucks?

The lack of an adequate definition is an obvious problem, and one that is already known to New York because our top court struck down such a bill in 2014 in People v. Marquan M. — and that bill actually attempted a definition:

  1. “any act of communicating … by mechanical or electronic means,”
    • “including posting statements on the internet or through a computer or email network,”
    • “disseminating embarrassing or sexually explicit photographs;”
    • “disseminating private, personal, false or sexual information,”
    • “or sending hate mail,”
  2. ”with no legitimate private, personal, or public purpose,”
  3. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

How, exactly, is a person to know if their conduct/speech is a problem if there’s no definition? We lawyers like to call such statutes vague or overbroad. They either don’t tell you exactly what conduct is criminal (vague) or they word the statute so broadly it sweeps perfectly constitutional conduct into its orbit of criminal conduct.

And now we have version 2.0 of a bill with no definition, and this is supposed to be better than version 1.0?

Since the matter was covered by Eugene Volokh back in 2014 when its first iteration was deep-sixed by the Court of Appeals, I feel no need to re-write what he already tapped out on his keyboard. You can read it here:  New York’s highest court strikes down cyber-bullying law

It was likewise covered by Scott Greenfield:  NY Court of Appeals Holds Cyberbullying Law Unconstitutional

And there’s a Syracuse Law Review article on the subject.  And the NY Civil Liberties Union.

And, for the legislators that might not want to read the works of lawyers, there’s even a Wikipedia entry for the case.

There is no point passing version 2.0 of a law that will one day be ruled unconstitutional.

I know it may look good to constituents to say  “We are trying to do something!”, but it would be nicer to see at least a couple of folks say, “I’m not going to waste the taxpayer’s money with a bill that most surely will end out on the trash heap.

Updated 6/12/18: NY Senate and Cyber-Bullying, Part 2

 

 

April 12th, 2018

Did CUNY Law Just Commit Suicide?

Was it smart for a CUNY Law student to try to stop Prof. Josh Blackman from speaking by yelling “Fuck the law?” Did this student’s friends and classmates think it wise trying to shut down a speech on, of all things, free speech?

Is this what they learn at CUNY Law? That if you don’t like the arguments or positions of another you scream and yell and have a tantrum?

Does anyone think this is good training for lawyers?

What would a judge think of such lawyers? What would clients think?

Is their training so shoddy that they don’t grasp there are differences of opinion on how a law or the constitution is read? Do they understand that certain things are inherently subject to interpretation, such as “unreasonable” search and seizure or “cruel and unusual” punishments?

Do they really think that the way to “beat” a conservative legal theorist is to holler?

Is their education so deficient that they don’t understand the long-term debate between those that think (loosely) that the Constitution is a living breathing document to be interpreted with the times and those that think it shouldn’t?

Do they understand that reasonable people can disagree on interpretations without name-calling? Do they not know that liberal icon Notorious R.B.G. was great friends with liberal boogeyman Antonin Scalia? Do they not know that sometimes liberals actually fall in love with conservatives and marry?

Why are they afraid of words?  Shouldn’t people secure in their ideas welcome the opportunity to openly debate? Are they afraid that in the marketplace of ideas they are unable to sell what they have? Do they understand that when they yell and scream others assume that they can’t win a debate?

How can someone get to law school not knowing that if you disagree with what a laws says, that the law can be changed? Have any of then ever tried?

Do they think that trying to shout down Josh Blackman will somehow change the law?

Are they so foolish that they don’t understand that the First Amendment is not a liberal thing, or a conservative thing, but an American thing?

Are they so clueless they don’t grasp that if one of them was stupidly arrested for holding a stupid sign calling Josh Blackman stupid names, that it would be the same Josh Blackman defending their right to display their stupidity to the world?

Have they never heard the saying, “I disapprove of what you say, but will defend to the death your right to say it?”

Are they so daft that they fail to understand the magnitude of difference between interpreting what an existing law is, and advocating for what one hopes it should be?

More to the point, perhaps, but if these students are unable to tell the difference between interpreting the law and advocating for changes in the law, why are they in law school? What firm would ever hire them if they can’t grasp such a concept? Why would any firm trust a client to them? What client could possibly want them?

How could such lawyers, hell-bent on trying to shout down the opposition, ever argue a point of law in court? Indeed, how could they even handle a residential closing? A contract? A transaction of any kind?

And this is a public interest law school? What public interest group would want lawyers so terrified of their opponents that they feel the need to shout them down?

Have you ever met a client, lawyer or judge who felt such behavior was persuasive to make a point? Have any friends or family ever thought that shouting someone down was persuasive argument?

Which is more likely to occur, that these people will be disappointed as lawyers, or that they will be disappointing to clients?
———-

Elsewhere:

Organized Heckling at CUNY School of Law of Prof. Josh Blackman Talk on Free Speech (Volokh @ Reason)

…The protest, I think, shows a narrow-mindedness on the students’ part, and an unwillingness to listen to substantive argument. But the heckling, which seems like an organized attempt to keep Blackman from speaking, is something much worse — something that universities ought to punish, and that I would think many universities would indeed punish, at least in other situations….

Josh Blackman And The Guy Who Wanted To Hear (Greenfield @ Simple Justice)

…It was a talk about free speech on campus. Josh was invited. Some students, however, didn’t want him to speak and instead wanted him to know he was unwelcome.

The best answer to “why Josh” seems to be that these students were knee-jerk antagonistic to anyone, any idea, that wasn’t theirs. Children do this, which makes it all the more ironic that when they were finally shut down by an administrator, one protester responded, “we’re not children. You can’t talk to us like that.” Children say that, too….

The Disgrace at CUNY Law School (Hawyard @ Powerline):

…Prof. Blackman was greeted with a protest that was off the chart even on the usual scale of infantile campus protests. Go see his own full account and pictures of the event at his website. Among other offenses, Blackman had written that the Trump Administration was legally correct to rescind DACA because it exceeded the President’s authority. But Blackman supports enacting DACA through proper congressional legislation. This was apparently not sufficient for “law” students at CUNY Law….

“F*ck the law” – CUNY Law students attempt shout-down of conservative law prof (Jacobson @ Legal Insurrection)

…Blackman was invited to speak by the Federalist Society Chapter at the City University of New York (CUNY) Law School. That did not sit well with some progressive law school activists, who tried to shut down and shout-down the event…

CUNY students call law prof ‘racist’ for supporting free speech (Sabes @ Campus Reform)

…Blackman told Campus Reform that he was “shocked” by the disruption, saying this was the first time he was protested.

“I had hoped they would protest before my speech, and ask me tough questions afterwards,” he said. “Instead, they decided to heckle and interrupt me. At the time, I had no idea if or when they would stop heckling. Fortunately, it did not last the entire time.”…

“Stop debating”: CUNY Law students disrupt speaker and his critic (Harris @ FIRE)

…As you can see from the video, Blackman abandoned his planned remarks about free speech and instead tried to engage the protesters on their substantive criticisms of him, such as his writings about DACA. He explained that he actually supports the DREAM Act and would have voted for it in Congress, but that he believes the DACA policy — which President Obama adopted after Congress failed to pass the DREAM Act — was “not consistent with the rule of law.” He cited this (over jeers and interruptions) as an example of how one can “support something as a matter of policy, but find that the law does not permit it. And then the answer is to change the law.”

That sounds like the premise of an interesting debate, but the protesters would have none of it. Instead, they shouted out that he was “gaslighting” them and “lying to [him]self” — apparently, they already understood his views better than he did, so there was no need for any intellectual engagement. When an administrator intervened to remind the group that they had to let Blackman speak, they asked her, “Why are you bringing racists into your school” and (before Blackman had spoken more than a few prefatory words) “Why are you not providing support for students affected by this hate speech?”…