In the present case, the parties agree that a fundamental right is not implicated . . . . (source)

With all due respect to the attorneys quoted in the piece, the story is a load of shit.  It paints the picture that you can and will be sued for posting anything negative about anyone or anything.  We understand that there is only so much space available for a story, but this one was so halfway done, that we question the article’s intent.  Newspapers are losing their grip on the dissemination of information, as blogs and citizen journalists deliver information to the masses.  It almost seems like the L.A. Times was trying to scare us all from encroaching on their turf – and that it must have consciously failed to complete the story.

The article quotes our friend Professor Eric Goldman, of Santa Clara University, as saying that someone can be sued for saying “My dentist stinks.”  Conveniently, this is the end of the quote – convenient because it supports the message behind the piece, i.e., don’t be mean to people and hurt their feelings by writing unkind things about them.  We’re sure that, if the entirety of Professor Goldman’s input were published, he would have gone on to state, unequivocally, that “My dentist stinks” would never carry the day in court.  In fact, in California, bringing such a frivolous suit would leave the plaintiff paying everyone’s attorneys’ fees, after getting hit with a special motion to strike pursuant to the state’s anti-SLAPP statute.  We’ve never seen Goldman shill for the “fraidy cat” contingent, and we bet our entire publication’s credibility that he didn’t do so this time.

Let’s break it down LS style, in case someone out there is now afraid to complain about how much her dentist stinks on yelp after reading the article.  There are two ways the statement “My dentist stinks” can be interpreted:

First is figuratively, i.e., “stinks” being an expression of opinion about the quality of service provided by the speaker’s dentist.  Such statements are not actionable.  Period.  This is an expression of an opinion.  People should not be afraid to express their opinions for fear of being sued.  Such a result would be a horrible manipulation of the justice system in the United States and an assault on the free speech principles that the Framers tried to make inviolate.

Although it’s absurd, let’s look for a moment at the literal meaning as well, i.e., “stinks” being a description of the odor that the speaker’s dentist has.  Again, at bottom, this is an expression of opinion.  The whole idea of which scents are good and which ones are bad is wholly subjective.  Stating that you think a particular person or thing “stinks” is merely a classification of your individual preference for another odor over the one associated with the described person or thing.  So, even using the literal meaning, the statement “My dentist stinks” can only be interpreted as a statement of opinion.  Accordingly, such a statement can never be used to support a legitimate lawsuit.

Even suggesting that the speaker’s dentist could sue is a dangerous thing.  Let’s assume that said dentist has a larger war chest than the speaker (probably true – if the speaker had any real funds, he would have gone to a better dentist in the first place).  Mr. Shitty Dentist will bring his lawsuit, because he read in the L.A. Times that it was a viable claim (far be it from his bottom-feeding attorney to try to talk him out of it), and the poor complaining patient is forced to hire his own attorney to defend his right to express his opinion.  Chances are, our defendant can’t really afford to litigate the thing to completion.  So what’s left?  Consent judgment.  Retraction.  What do you think the next patient who gets a bad filling will do?  Are you getting the idea that anti-SLAPP statutes are becoming more and more important?  Unfortunately, The L.A. Times fails to mention that a federal anti-SLAPP bill has been introduced in the House, or that it’s picking up sponsors, but really could use a stronger push from the public.

In case you’re not familiar, a Strategic Lawsuit Against Public Participation or “SLAPP” suit is the name given to the frivolous lawsuit brought by our dentist, not for the purpose of vindicating any real right, but instead designed to silence his critics and make an example out of them.  The unfortunate reality is, without some mechanism to prevent it, a moneyed plaintiff can afford to hire an ethically challenged attorney to bury the defendant in paperwork and discovery requests long before the merits of his case are decided.  As more and more people are given a voice on the Internet to express their opinion, the SLAPP suit is becoming a favorite tactic of companies and wealthy individuals who want to privatize censorship.  An anti-SLAPP statute is designed to prevent this abuse of the legal system, giving a financially disadvantaged SLAPP defendant a fighting chance of quickly dismissing the suit and recovering his attorneys’ fees incurred in so doing.

Bottom Line: the free exchange of ideas should not be prevented because a couple of people *might* get their feelings hurt.  If people end up keeping their complaints to themselves based on a fear that there is a lawsuit lurking in response to every email or discussion board rant, the marketplace of ideas will be forever diminished.  Unfortunately, for every hundred people who read the L.A. Times’ article, ten or twelve may keep their criticisms to themselves and thereby reinforce the power of the politeness police.

L.A. Times Reader

If you have something to say, and you are afraid of being sued, ask a lawyer for a pre-publication review of your comments.  Many lawyers provide this service cheaply, or sometimes free of charge.

Press for anti-SLAPP legislation.  First Amendment Bad Ass Congressman Steve Cohen (D-TN) has introduced a federal version of California’s successful anti-SLAPP statute.  Contact your representative and let them know you think this is a good idea.

This article was originally posted on The Legal Satyricon

Enough 1790′s background; let’s talk 2010.  If you’re a redneck (this is not necessarily a requirement, but it helps), and you decide to publish a “newspaper” (not sure what else to call it) that describes your political ideas, don’t get all uppity if the local KFC won’t let you put it on the take-one-free rack, between the Auto Trader and the Keels and Wheels.  It’s not a constitutional issue.

The scary part of this story is that you have to wade two thirds of the way into this Fox News article before they reveal that little tid bit to the reader who isn’t in the know.  How many of those readers have the kind of attention span necessary to make it that far?  More than likely, the majority start seeing red after reading the headline, and three sentences in, they’re sputtering some nonsense about “they’re ruinin’ are country” and clicking over to something more soothing.  Gold star for journalistic integrity to Fox News on this one!

This article was originally posted on The Legal Satyricon

Critics complain that this gives unwanted access to evil corporations, who will use gathered information to exploit their consumers.  This week four U.S. Senators, including asshat Al Franken, have put their displeasure with the social networking giant onto paper and mailed it to Facebook founder Mark Zuckerberg.

No doubt these idiots are only responding to angry phone calls from their constituents, but how many votes would they really lose by explaining that this really isn’t the kind of thing the federal government should be getting involved in?  Not everything that someone can gripe about should be the subject of a congressional investigation.  If you don’t like the way Facebook treats its users, you don’t have to be a member.

This article was originally published on The Legal Satyricon.

While education may be the right medicine (if you believe that there’s some disease), that decision is for the teens and their parents to make — not some jackass, let’s-think-outside-the-box DA who thinks he somehow knows what’s best.  As much as I hate the ACLU for politically motivated meddling in the other direction, for once I’m glad they’re helping these families file a civil rights claim against Mr. Skumanick.  (Read that complaint here.)

This article was originally posted on The Legal Satyricon

A classic example is when officials, employed by U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Patrol (CBP), search your possessions upon entry into the United States from a foreign country.  Mechanically, the presumption is raised that you consent to the search by entering the United States.  If you don’t want to be searched, don’t come in.  Ostensibly, the goal is to prevent certain items from being smuggled into the country — drugs, explosives, etc. — or, in the words of our Department of Homeland Security (DHS), "to combat transnational crime and terrorism . . .  (source)."  That all seems reasonable, but a hardcore civil libertarian would likely quote Benjamin Franklin in opposition: "Anyone who trades liberty for security deserves neither liberty nor security (source)."

Hang on there, Benji — an act of "terrorism" in your day was dumping some Lipton in the harbor.  It’s pretty hard to uphold the standard of the Founders in the face of more modern concerns (e.g., dirty bombs, heroin, anthrax), but try we must.  Unfortunately, it seems like our government doesn’t try very hard sometimes, as demonstrated recently by DHS, which is responsible for controlling ICE and CBP.

In the face of these more modern threats, coupled with advances in technology that make it possible to transport large amounts of data, ICE and CBP have in recent years begun detaining and searching digital media — e.g., laptops, portable hard drives, thumb drives, CDs, DVDs, iPods, yadda, yadda, yadda.  What are they looking for, you ask?  Answer:

Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity—such as possession of child pornography and trademark or copyright infringement. (source)

Terrorist plans — I get it.  IP infringement — I don’t.  Child porn — really?  Gotta throw that one in, so that anyone who makes a stink will look like a pedophile, I guess.

Come on, people.  Get mad.  They’re insulting your intelligence here.  DHS is charged with protecting the security of the homeland, not carrying out the marching orders of the MPAA or RIAA, all without the procedural protections of a warrant.  We’re not just talking about rifling through my dirty underwear anymore, looking for that kilo of cocaine.  You’re potentially reading my emails, skimming my privileged work product, or ogling the naughty pictures I took of my wife while we were having sexy time — all without a lick of probable cause that I’ve done anything illegal.  Not Cool.

So the question remains: How do you authorize customs officials to look for the really bad stuff (e.g., shoe bomb schematics), and, at the same time, protect the stuff that they should need a warrant to view?

To quiet concerns about potential violations of privacy, DHS issued directives this week to ICE and CBP, supposedly ordering those agencies to behave.  The new directives contain a number of "safeguards" that are designed "strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders (source)."  They read like a bunch of false measures (to me, anyway).  A few examples:

• Providing a leaflet to travelers, whose digital media has been detained, explaining any available administrative recourse
• Hanging signs around borders and ports of entry, informing that digital media is subject to search and potential detention
• Requiring approval of a supervisor to extend a detention of digital media beyond thirty days
• Allowing only a supervisor to copy information from detained digital media
• Directing a customs officer to consult with local counsel or the U.S. Attorney’s Office, if a traveler asserts that the information contained in the digital media is subject to attorney-client privilege

You can read the entire "Privacy Impact Statement" here.

I don’t know what the right answer is to the question posed above, but I do know that I expect my government to respect the notion of freedom that this nation was founded upon.  We left Britain, at least in part, because the police could stop anyone on the street at any time and demand to see their papers.  The Fourth Amendment was carefully crafted to prevent this type of abuse in the United States.  @DHS:  ur doin’ it wrong.

This story was originally published on The Legal Satyricon.

This story was originally published on The Legal Satyricon.