Vivid Facts Win Cases

In a recent U.S. Supreme Court decision over whether the Patent and Trademark Office should have the right to ban offensive trademarks, one of the most powerful arguments cited repeatedly in the Court's opinion by Justice Alito was an appendix to an amicus brief from the Washington Redskins which listed myriad really offensive trademarks that the Patent and Trademark Office had already held could be granted registration.

These vivid facts, by example, which the Court was left to its own devices to weigh and interpret, made it obvious that any application of the offensiveness standard was arbitrary. This list also strengthened the case that it would make no sense to adopt the government's argument that registration of a trademark rendered that trademark government speech which was entitled to greater regulation than other kinds of speech.

This brief is a great illustration of an important concept in persuasive legal writing. Often, vivid facts can be as powerful in which side wins or loses a case as legal precedents and statutory interpretation arguments. Certainly, vivid facts don't always work. But, even when they don't, they will often, at least, lead to a heartfelt dissent supporting your argument because they won someone on the bench over to your client's side of the argument.

Commercial Speech Cases Aren't Very Ideological

Commercial speech cases are the focus of this Article. We find no evidence of ideological influence within the full set of those cases, in the sense of judge votes tracking ordinary policy disagreements. The results make commercial speech cases look like gun rights cases - and unlike abortion rights, establishment clause, and affirmative action cases, which are consistently ideologically charged in our models.

Via the Legal Theory Blog.

Denying The Establishment Clause

A Colorado teacher is suing his school district claiming the district's only high school "operates largely to promote the evangelical Christian ideals" of a local church that operates in the school. Robert Basevitz's lawsuit against the Fremont Re-2 School District was filed Tuesday in federal court in Denver. . . . Randy Pfaff, the pastor of The Cowboy Church at Crossroads, said he will not apologize for being in Florence High School. 

"I don't believe the Constitution was meant to keep God out of the schools. That's absolutely absurd," Pfaff told The Denver Post on Tuesday in a phone interview. "This nation was founded on Christianity."

From the Denver Post.

This case is typical of church and state separation lawsuits, and arises in one of the most conservative counties in the state that is home to one of the largest prison complexes in the country.

The striking point of the story to me is that Reverend Randy Pfaff shares the common Evangelical Christian conservative view that there is no such thing as a First Amendment establishment clause (something that the North Carolina state legislature has also futilely attempted to do), and that: "This nation was founded on Christianity", which are deeply at odds with the legal and historical reality respectively.

The First Amendment, with a free exercise clause, but not the establishment clause, however, is a very different balance of freedom of religion that the one that the United States has adopted.

This disregard for reality extends beyond law and history.  Among scientists, many have some form of religious belief, but very few, relative to the general population are Evangelical Christians, because the bridge between theology and scientific truth is particular wide for this religious group.

For better or worse, Evangelical Christianity of this type is largely an American invention.  It is almost entirely absent from Europe and probably makes up a minority of non-European, non-American Christians.

It is, however, a vital faith, suffering far less of a decline than mainstream Protestant Christianity in the United States and Europe in recent decades.

Federal Circuit Gutless

While some may think that it is a display of restraint and respect for the rule of law for a federal appellate court to honor a precedent that it then proceeds to explain is a clearly unconstitutional application of the First Amendment as the law of the First Amendment has developed since then, I personally, am inclined to think that deliberating following what is now a clearly unconstitutional precedent, and forcing the party losing on appeal to seek review en banc or from the United States Supreme Court, is merely gutless.

In this case, it involves the Federal Circuit's decision to affirm the Patent and Trademark Office's right to deny registration of a trademark because it is disparaging, supported by a 1981 precedent called In re McGinley that is clearly bad law today as the author of the Court's unanimous opinion explains in a separate opinion on the subject.

Presumably, the party losing the appeal will now take it to the next level, but there is no guaranty that the en banc Court of Appeals for the Federal Circuit, or the U.S. Supreme Court will take up the issue, or that the party winning the appeal (the United States Government) will not concede the case on its individual facts in order to keep an unconstitutional law in force.

Also, for that matter, why in the world is the Justice Department in a Democratic Presidential administration fighting this case, rather than conceding it and refusing to defend what is now a clearly unconstitutional law?

We don't have to make the business of vindicating federal constitutional rights harder than it needs to be, particularly in such a straightforward case.

Misleading Ads And Crazy Schemes

The problems are as old as time.  People making misleading statements to secure people's money, and people trying to get people's money with crazy or ill advised ventures and opportunities.  A patchwork of laws regulate this conduct, but not terribly effectively.

Who are some of the most recent offenders that have assaulted my ears and eyes?

* Recent radio advertisements for programs claiming to teach you how to fix and flip houses, and how to profit from investments in property tax liens, are grossly misleading or outright false, dramatically overestimating likely returns, and underestimating the risks and investments of time and talent that are required.  If they were selling the investments themselves, these advertisements would constitute illegal and actionable securities fraud, but because they are merely selling overpriced educational programs instead, they aren't "securities" and can get away with making these false claims (although these advertisements are still probably "deceptive trade practices" which are actionable under the Colorado Consumer Protection Act).

* Western International University, which is a for profit private educational higher educational institution targeted at working, non-traditional students, mostly in a remote education format, based in Phoenix, Arizona, is currently running a radio campaign lauding the benefits of faculty led 10 minute classes which argue that adults have trouble retaining anything longer.  I would suggest that people who can't retain information from a presentation longer than 10 minutes really shouldn't be seeking degrees at all.  It's classes are eight weeks long.

Most of the higher educational institutions that advertise on the radio are for profit institutions that, while accredited, have high tuition, low retention and graduate rates, poor rates of career success for graduates, and poor reputations.  They minimize professor pay, spend a great deal of their revenues on marketing and sales functions, generally don't have tenured faculty, and rely on federal Pell Grants and federally subsidized student loans for the bulk of the funds that they receive to bring in revenues.  Default rates on the student loans incurred at these institutions are generally much higher than public and non-profit higher educational institutions.

For example, in the 2011-2012 year, Western International University had 4,696 students enrolled (89% online), but only 98 were first time, full time students enrolled in bachelor's degree programs.  Only 21 of those were still enrolled a year later (a 78.6% dropout rate in the first year alone), and only 4% of first-time, full time students graduate in 3 years for associate degree programs or 6 years for bachelor's degree programs.  None of the 50 students who were black, Hispanic, Native American, or identified with "two or more races", or non-resident aliens graduated, 5% of white students graduated (3 out of 61), and 2 out of 12 students who declined to identify their race or ethnicity graduated.  There were no Asian or Pacific Islander students enrolled there on a first time, full time basis.  Apparently, about 10% of part-time or not first-time students earn a certificate or degree of some kind each year although the website isn't very forthcoming on this point.

Online tuition is $6,072 per year for undergraduates and $8,592 for graduate students, and is $11,112 per year for undergraduates and $15,336 a year for the small number of "ground campus" students.

Like the institution where I was a professor for a while, the College For Financial Planning, it is a sister college of the University of Phoenix and is owned by the Apollo Group (whose Horatio Alger story billionaire founder died in his 90s this week).

* College America's pitch is the abundance of big scholarships that they offer, more of less indiscriminately, which is simply a matter of offering everyone or almost everyone a scholarship and inflating its tuition by the same amount.  Like Western International University and most other for profit colleges, however, they are a very poor value.  A state college or community college is almost always a better value, and community colleges and some state colleges, like Metro in Denver, admit pretty much anyone who has completed high school or a GED and has the slightest prayer of not flunking out when faced with college level material.

* Radio campaigns (often for hair products or skin products) that claim that free offers are available only if you call in an order within the next ten minutes or half an hour, when in reality, the company has no idea when the radio ads will air and there is no such time limitation, are another scam that I despise.

* While merely misleading and not actually false, I despise advertisements in the newspaper by automobile dealers that show a huge colored print price of a vehicle than is not of various discounts from manufacturer's suggested retail price in much smaller black print that include several thousand dollars of "your cash".  I'm sorry, "your cash" is part of the price of the car.  An advertisement like that screams out to the reader that the dealer is hell bent on cheating you in your negotiations to buy the car and can't be trusted.

* Multilevel marketing campaigns, often euphemized as "direct marketing" are another huge swindle.  If these industries could be regulated or taxed to the point where the industry ceased to exist entirely, the world would be a better place.

* It is amazing how many illegitimate "college preparation" counselor and test preparation and special programs advertise and make cold calls in a way designed to make them seem official or to have a prior relationship with you, when they have neither.

* "No call lists" seem to have made great inroads in stopping telemarketing, although a few persist claiming thin "prior relationships" or because they are marketing for non-profits.  In the many months before I killed my land line this month, perhaps 95% plus of calls had become junk calls, and some of the rest were robocalls (e.g. from the library reminding you of overdue books).

I have no tolerance for receiving a robocall with no one on the other side of the line when I pick up for a few moments.  It is one thing to call an automated service, and another to receive calls from them.  When I get a call like that, I immediately hang up.

* I am also offended by insincere astroturf political campaigns such as the No on 68 campaign in Colorado right now (funded by casinos to protect their turf, despite its anti-casino rhetoric), and the big dollar pro-fracking campaign of a few months ago funded by big oil companies.

Regulating these kinds of commercial and political speech and business ventures without offending the First Amendment's free speech guarantees isn't easy.  But, I do think that we could do a better job of it than we do.  Neither freedom of conscience, nor a healthy economy, require that we tolerate whole industries whose very business model depends upon deceiving and exploiting consumers and investors, although the free speed issues associated with misleading political speech are more challenging.

Graduate Student Benjamin Hayempour Shows Pattern Of Plagiarism

Benjamin Hayempour is apparently a graduate student in Oxford in radiation biology working towards a PhD and doing his best in a publish or perish academic climate to get ahead.  Unfortunately, it appears that he has engaged in serious academic misconduct while doing so. [Ed. Correction: based upon his e-mails to me, he appears to be a graduate student at the UC Berkeley Department of Engineering and UC San Francisco School of Medicine, despite indications from other online sources that he was at Oxford, perhaps a past affiliation.]

A paper that he was a co-author of from 2011 entitled “Neuroradiological advances detect abnormal neuroanatomy underlying neuropsychological impairments: the power of PET imaging,” was retracted because of "unexplained close similarity of some passages to parts of a previous publication" (i.e. possible plagiarism), and the blog Retraction Watch noted this fact in a blog post.  

Benjamin Hayempour alleges that he played only a minor almost clerical role in preparing the paper, yet, he is listed as the corresponding author for the paper and his co-author is the one who requested the retraction claiming that he was unaware of the plagiarism.

Hayempour hired inexperienced Los Angeles real estate lawyer Eyal Aharonov to write a cease and desist letter directing Retraction Watch to retract its truthful and factual coverage of the retraction notice or face a lawsuit for defamation (the legal basis for the threatened suit wasn't clear).  

This triggered the Streisand Effect, i.e. "the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely."  After learning of the groundless legal threat, readers of Retraction Watch tried to determine if any of Benjamin Hayempour's other published work showed evidence of academic misconduct or deceit on his part.

The readers of Retraction Watch found a great deal when they dug around a little more into the situation and found a lot of troubling additional facts.

(1) According to one RW reader, On his linked in profile (no longer public or since edited) Benjamin Hayempour claimed that: 

Even though he just started as graduate student, he is editor-in-chief of a journal: “Journal of Nuclear Medicine and Radiation Therapy” and is on the editorial board of three other journals: Journal of Neurological Disorders 

The Journal of Alzheimer’s Disease & Parkinsonism 

Journal of Family Medicine and Medical Research.

All of which are published by OMICS Publishing Group, which has a reputation with another RW reader as something of a hybrid of a vanity publisher and diploma mill.  While this is not illegal, it is certainly unethical morally and reflects poorly on the integrity and honesty of anyone involved in the venture.  It manifests a clear intent to blatantly deceive third parties presented with these articles about the significance of these publications.

(2) RW Readers note in the comments to the posts linked above, very similar plagiarism problems in seven other papers listing Benjamin Hayempour as an author including:

* “Biological Imaging Instrumentation…” J Nucl Med Radiat Ther. 2013 Jul 20;4(3). doi:pii: 1000157

*  “Should Antidepressants be our Choice of Treatment?”

*  “The Controversy of Conventional Psychiatric Diagnostics”

*  “Clinical Medical Physics Methods in Radiotherapeutic Cancer Treatments”

*  "Brain Disorders: Evaluation by Radiological Techniques and Nuclear Medicine of the Primitive Neuropsychiatric Disorders."

* J Psychiatry Law. 2011 Winter; 39(4): 537–566.

* "Neuromolecular Imaging Instrumentation Demonstrating Dysfunctional Brain Function in Schizophrenic Patients" (2013)

Benjamin Hayempour, rather that admitting wrongdoing as he participates in the discussion tries to argue that he believes that the many instances cited (sometimes despite several long plagiarized passages in a single paper) that his conduct was considered acceptable academic practice when writing review papers.

Eight papers in just a few years with plagiarized passages, dubious claims of editorial roles in four diploma mill journals including an "editor-in-chief" claim, a refusal to acknowledge wrongdoing when presented squarely with black and white evidence of his misconduct, and a doubtful claim that the authors of the RW blog misquoted him despite support in contemporaneous notes of a conversation about what was said all point to an obvious conclusion.

I used to be a full time associate professor in a master's degree program at the for profit "College for Financial Planning" which developed the Certified Financial Planner designation, and later became a sister college of the for profit 'University of Phoenix" system.  Not a particularly prestigious post within academia, to be sure.  

But, even in that little outpost, I would have immediately assigned an "F" grade to any paper from a student that had instances of unattributed quotation from another source of the type illustrated by Benjamin Hayempour in all eight of the papers identified by RW or its readers, and would have expelled him from the program with a negative academic dishonesty reference if I ever saw that kind of behavior repeated even a single time.  The plagiarism examples present in those works are easy and clear cases of intentional academic misconduct, not gray areas.  Any college sophomore would be expected to know better, and Hayempour's academic credentials are from schools where knowledge that this is not acceptable academic conduct is widespread.

The fact that Benjamin Hayempour felt the need to hire a lawyer to try to cover up and intimidate people who were revealing Benjamin Hayempour's academic misconduct with threats of defamation lawsuits that have no substantial justification also tends to indicate an awareness on his part of just how damaging the truth would be to his reputation.

In my opinion, Benjamin Hayempour has engaged in a widespread, intentional pattern and practice of academic misconduct and plagiarism that no reasonable graduate student at Oxford University could have possibly been unaware was improper, and certainly conduct that no one who was legitimately Editor-in-Chief of an academic journal could possibly believe was acceptable.  He did so, apparently, for the purpose of inflating is academic reputation and professional credentials.  And, in my opinion based upon this evidence, deceit is so second nature to him that he may very well be irredeemably some sort of psychopath, or just a habitual liar and con man. 

He claims ignorance, a desire to fix his past mistakes, and so on.  But, there are simply too many implausible statements in his reactions to the accusations against him, and too many blatant instances of conduct that couldn't be anything other than intentional, to make his statements believable.

The only just sanction for this kind of widespread academic misconduct, in my opinion, would be to expel him from his program at Oxford with a bad recommendation reflected on his transcript, together with a termination of any scholarships or stipends, to retract all eight of these papers and to investigate all of his other published work for similar misconduct, to revoke any professional certifications that he has obtained to date, and to advise the appropriate officials at the National Institute of Health of the academic misconduct that he engaged in when doing work funded by one of their grants.

No responsible educational institution, professional regulatory body, or employer could continue to keep him on in any capacity where integrity or honesty was required.

Neuroskeptic and others in the blogsphere have similarly noted Benjamin Hayempour's academic misconduct which otherwise might have gone unnoticed.

So, there you have the story of Benjamin Hayempour's pattern of plagiarism.

Footnote: Eyal Aharonov, an incompetent rookie lawyer

Of course, it is also the story of his lawyer Eyal Aharonov's gross incompetence and professional malpractice in handling the situation.  Aharonov's bad advice and ill drafted cease and desist letter has made the situation a hundreds or thousands of times more damaging to Benjamin Hayenpour's reputation than it otherwise would have been.  Aharonov's actions have probable turned a minor hiccup in Hayenpour's career into a situation that will probably destroying Benjamin Hayenpour's career prospects for life, deny him any hope of ever becoming a doctor or a professor, and thus may cost him millions of dollars in lost income over the decades.  Aharonov's bad judgment may also expose Benjamin Hayenpour to a substantial risk of sanctions and anti-SLAPP law penalties such as the attorneys' fees incurred by people who he sues (if he does).

As a lawyer, one of your first priorities had to be to act in a way that does not call more attention to the myriad instances of misconduct that your client has committed.

Aharonov is slightly more sympathetic, as he has apparently been dumped into self-employment as a lawyer more or less right after graduating from a second rate law school (Pepperdine), and has only had a couple of years of experience without the kind of post-law school mentoring necessary to develop good judgment.  But, on the other hand, I was in more or less the same boat when I finished law school and somehow managed to avoid harming any of my clients so seriously with my own incompetence.

Still, Aharonov's mistakes were merely a product of incompetence and don't reflect all that badly on his integrity.  Most junior lawyers, with enough experience and guidance can learn not to repeat catastrophic mistakes like the one he made in this case.  And, he is probably too broke to be worth suing for malpractice at this point.  If you must screw up, it is better to screw up when you are poor, than to screw up once you have accumulated substantial wealth.

Meanwhile, I have no doubt whatsoever that the Retraction Watch blog will be fully vindicated in this dispute.

UPDATE 3/27/2014:  This post was the subject of an improper DMCA takedown notice.  More than fourteen days have passed since I was notified that a DMCA counterclaim was served and no federal lawsuit has been filed regarding this post in the appropriate forum.  Therefore, I am republishing it.  Further discussion of the takedown notice drama and comments re further plagarism by Hayepour can be found here.

UPDATE 4/06/14:  As noted in the related post, I got the official notice of the all clear in the wake of the takedown notice and my counterclaim only on April 4, 2014, more than two months after the original take down notice, although I had already restored it a week earlier, once fourteen days from acknowledgement of receipt of my counterclaim passed without incident.  Thus, the takedown and reinstatement process actually takes about nine weeks, rather than the two weeks it should take in theory, for a blogger post takedown.  Since then, there have been twists to the underlying story, in addition to the metastory told at the companion post.  The following comment was made anonymously at the metastory post and is included her because it relates to the original post:

"BTW, I though you might be interested to learn that Ayden Jacob (aka Hayempour) is still plagiarizing.

(also posted to RetractionWatch)

---------
Hayempour (now going by Ayden Jacob) is *STILL PLAGIARIZING*. I admit to being stunned, but there we go...

Ayden's new website contains the following two sentences:

"Using patented nerve monitoring technology, the surgeon gains lateral (side) access to the spinal column, avoiding any major nerves in the area between the incision and the column. The XLIF procedure does not require an anterior (front) or posterior (back) exposure, and thereby does not present the same risks of vascular and/or neural injury as traditional approaches."

(from http://www.aydenjacobmedicine.com/orthopedic-surgery.html , archived here: http://archive.is/c0lYJ )

They are copied, word-for-word, from http://www.nuvasive.com/patient-solutions/nuvasive-surgical-solutions/extreme-lateral-interbody-fusion/ (archived here: http://archive.is/6fiyx ).

There is no citation, no quotation marks, not even a link to the site he stole from.

He learned *nothing*.

3/19/2014 3:27 PM "

Benjamin Hayempour, has identified himself as "Ben Jacob" in some of his correspondence to me. So both "Ben Jacob" and "Ayden Jacob" appear to be aliases of Benjamin Hayempour.

Sister Wives Family Wins Case Decriminalizing De Facto Polygamy In Utah

Today, the family at the center of the reality TV show, "Sister Wives" has won a federal trial court case partially invalidating the criminal bigamy statute in Utah on a motion for summary judgment (the link is to the 91 page court order) in a lawsuit filed in July 2011 (the case was resolved on the pleadings and a motion for summary judgment filed in lieu of an answer, never even reaching the usual "discovery" phase of the case).

The Utah law states: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

Utah's bigamy statute prohibits not only being in two legal marriages at the same time, but also cohabitation of a married man with, for example, another woman.  The federal court judge held that the cohabitation clause of the statue of unconstitutional on its face, and that the meaning of "marry" and "purport to marry" should be limited to legal licensed marriages rather than more broadly to religious marriages that do not purport to have civil legal effect.

The introduction to the ruling summarizes the holding:

[T]he court finds the Statute facially unconstitutional and therefore strikes the phrase “or cohabits with another person” as a violation of the Free Exercise Clause of the First Amendment to the United States Constitution and as without a rational basis under the Due Process Clause of the Fourteenth Amendment, both in light of established Supreme Court precedent. . . . after striking the cohabitation provision the Statute is readily susceptible to a narrowing construction of the terms “marry” and “purports to marry” to remedy the constitutional infirmity of the remainder of the Statute.

The conclusion of the opinion continues on to explain:

[T]o save the Statute, the court adopts the interpretation of  “marry” and “purports to marry,” and the resulting narrowing construction of the Statute, offered by the dissent in State of Utah v. Holm, 2006 UT 31, ¶¶ 131-53, 137 P.3d 726, 758-66, thus allowing the Statute to remain in force as prohibiting bigamy in the literal sense—the fraudulent constitutional requirement that polygamy, as defined in the 1892 Act, be criminalized, such a conclusion would have no bearing on the constitutionality of the “cohabits” prong of the current criminal bigamy statute. Holm, 2006 UT at ¶ 153 n.13, 137 P.3d at 766 (Durham, C.J., dissenting in part) or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage.

The suit was nominally filed against Utah County Attorney Jeffrey R. Buhman (the "Defendant") who represented the state's interests in the case, albeit, lackadaisically.  The judge commented on the dismal quality of the state's defense of the motion for summary judgment in the case and its failure to support its few factual disputes with any admissible evidence, although a quick read left it unclear whether this was because the state's lawyers didn't believe in the cause, or were simply absurdly incompetent and didn't take the case seriously when they should have done so (citations omitted below):

The court was intrigued by the sheer lack of response in Defendant’s filing to Plaintiffs’ seven detailed constitutional claims. In fact, Plaintiffs pointed out that “[t]he lack of any substantive response to the instant motion puts Plaintiffs in the awkward position of replying to a non-response.” Finally, outside of the briefing schedule ordered by the  court, Defendant filed a Reply in which he, for the first time, provided academic  discussion about “social harms” arising from religious cohabitation in Utah, though no  admissible evidence was proffered with his Cross-Motion, Response, or Reply, or in oral argument on the motions held on January 17, 2013. . . . Defendant’s memorandum supporting his Cross-Motion and Response contained merely 7 pages of total Argument both in support of his own Cross-Motion for Summary Judgment and in response to Plaintiffs’ 50 pages of detailed Argument in support of their Motion for Summary Judgment on seven substantive constitutional claims. 

The Salt Lake Tribune's story features a pretty portrait of the famous family (full disclosure, I've read their book, but I have not watched the TV reality show although my wife and daughter have both seen it) and recaps some of the drama of the litigation:

At the time [that the lawsuit was filed], Utah Attorney General Mark Shurtleff [who was later dismissed from the case as an improper defendant] responded that the bigamy law is different because it involves entire families, not just consenting adults.

The lawsuit also came at a time when the Brown family faced possible prosecution from Utah County. However, nearly a year after the Brown’s filed their lawsuit, Utah County District Attorney Jeff Buhman announced that his office wouldn’t file bigamy charges against any consenting adult polygamists unless violence, abuse or fraud was involved. [The Browns later moved to Nevada, in part motivated by fear of prosecution, anyway.]

During [oral] arguments in January . . ., both sides engaged in a conversational and sometimes heated exchange with Wadduops. For much of the hearing, Wadduops zeroed in on the definition of a polygamous relationship. Posing a hypothetical question, he asked what the difference was between a polygamous relationship and an unmarried man who chooses to have intimate relationships with three women.

After a series of increasingly heated exchanges, Assistant Utah Attorney General Jerrold Jensen replied that a polygamous relationship is different because it was defined by people representing themselves as married.

"I think it’s the representation that they make to the world," Jensen said.

Waddoups also drilled Turley. During that conversation, Turley argued that Utah has a unique bigamy statute because it makes it illegal for married people to cohabitate with adults who aren’t their legal spouse.

"Other states focus on multiple marriage licenses," he said.

One can imagine the state making a motion to reconsider the ruling so that they can present a more competent briefing.  But, if the state cannot clean up the record in the trial court, on appeal to the 10th Circuit in Denver, if the state appeals, the state may be hard pressed to prevail without any favorable facts in the record, and in the face of being barred from asserting arguments not first made to the trial court.

Not that I envy an attorney trying to defend the case.  It is been somewhat astonishing how long Utah's very broad statute has survived in the face of similar challenges in the past (most recently in the face of a divided Utah Supreme Court in 2006 in the Holm case) and the law has evolved greatly in recent years as a result of gay rights litigation.  But, the Assistant Attorney General representing the Defendant in the case did more to hurt his case than to help it in oral arguments in the case, establishing in some cases a religious basis of discriminatory selective enforcement that might have been hard to establish otherwise.

Importantly, the ruling does not require the state of Utah to legally recognize polygamous marriages.  It doesn't even require anyone to refrain from discriminating against people who are in de facto polygamous households.  Instead, it merely prohibits the state of Utah from criminally prosecuting people for being part of this kind of household simply because it is polygamous and not because of other abuses that are present in the family.  The holding follows fairly naturally from other precedents holding that sex between consenting adults may not generally be criminalized such as Lawrence.

The Court's analysis is thoughtful, historically well informed, thorough and well worth the read.  Particularly notable is the Court's discussion of how a policy of selective enforcement of the bigamy statute actually has the practical effect of placing a barrier in the way of prosecuting families where there are other stand alone violations of criminal laws, undermining the argument that the cohabitation clause validly serves the purpose of protecting family members of these families from exploitation.

Incidentally, Judge Clark Wadduops was appointed by Republican George W. Bush with the support of Utah's two conservative Republican U.S. Senators and was confirmed on September 26, 2008, a little more than a month before President Obama was elected.  He earned his undergraduate degree at Brigham Young University had a legal career concluding as a partner in a firm where he was commercial litigator and as a registered lobbyist.  He is hardly a man that central casting would pick to be the man to decriminalize polygamy in Utah.

Norwood, Colorado Is Pro-Rape

In Norwood, Colorado, a small town near Telluride, the locals think that boys who rape other boys are heroes that they buy T-shirts to support, and boys who get raped by the peers and their families who report the incidents to the authorities should be persecuted. 

The three upperclassmen boys who committed the rapes as part of a wrestling team hazing ritual plea bargained down to misdemeanors and were only prosecuted at all because the event took place in Denver rather than on the Western Slope.

No joke.  People in small town America have a lot of really perverse and hateful morals that Norwood, Colorado typifies.  It is hard to express just how evil the people of Norwood are in words.  Jocks who commit crimes are evil squared.  These boys deserved several years in prison each.  I don't want monsters like these boys walking my streets.

Even more disturbing is that the adult coach for the team, Robert Harris, knew that two of his sons were involved and dismissed his sons' acts as acceptable conduct:

Two of the attackers were sons of Robert Harris, the wrestling coach, who was president of the school board. . . .

In February 2012, the boy [who was attacked] rode the bus to Denver as the team manager, in charge of videotaping the older high school students at the meet. After the coaches and wrestlers left the bus to weigh in, three older and bigger boys pinned the younger boy down, bound him with the tape, pulled down his pants and assaulted him, according to the principal. His parents were at a hotel, awaiting the start of the meet. . . .

Just before the meet started, the principal's older son heard the attackers laughing about the assault on his brother and told his father.

"I was shocked beyond belief, and I was mad," the father said. "I do believe I was madder than I have ever been. You're trying to protect your kids, and then something like this happens."

The father sought out his son, who told him what had happened. He then confronted Harris, the head coach, who at first said nothing had occurred, according to the father. In subsequent conversations, Harris said: "This happens 1,000 times a day around the U.S.," the principal recalled.

According to the source story at Bloomberg:

[O]ne of the accused students pleaded guilty to sexual contact without consent; the other two pleaded guilty to third-degree assault. They received varied sentences that included probation, community service and restitution of about $2,500 apiece.

The principal’s contract was up for renewal. After extensive negotiations involving lawyers from both sides, the board renewed his contract and put him on paid leave while it reached a settlement.

The principal was offered another job in a town 200 miles away that pays half his previous salary. The family moved and he enrolled his children in a new school.

Harris was reappointed Norwood’s wrestling coach. He was given a letter of reprimand for leaving students unsupervised on the bus, Crews told police.

Apparently, however, at some point, Bobby Harris was replaced by Dirk Hardman as the head coach for the school's team.

The Daniels Fund awarded a scholarship to Brent Robert Harris in 2012, which was announced the same week that two of his younger brothers were arrested in Denver, charged with multiple serious felonies, and then freed on a $25,000 bond each.  He went on to attend the Colorado School of Mines. 

Earlier this year, Talon Harris, another of the four sons, who was one of the rapists (consistent with the TTH t-shirt language for the shirts made to support the rapists "TTH being the first initials of the three rapists" also here), was back at the state wrestling competition at the scene of the crime from the previous year, near Pepsi Center again and came in third place statewide in division 2A.

A couple of months later his brother Hayden Harris, also one of the rapists, won a third place finish in a different state competition on behalf of the "Norwood Wrestling Club".  Hayden appears to be the one who pleaded guilty to the sex offense as opposed to the third degree assault charge and may have deserved this status, although we may never know if that was what really happened.  He may have claimed the most culpability when it became clear that charges would be pressed, because as the youngest of the three rapists he faced the least serious consequences if convicted of all charges.

Why Harris, Sr. (he goes by "Bobby" rather than Robert; picture on page three) wasn't charged with crimes like failing to report child abuse himself and removed as a coach is a mystery (he resigned from the school board a few days after the charges were filed by the Denver District Attorney's office).  He is a true monster who is just half a step removed from the pedophiles who make child pornography.  In any sane community, he would be utterly disgraced and run out of town with his rapist sons, and Harris Construction, the business of which he is a proprietor, would wither.  But, that isn't what people do in Norwood.  (A report on his race for the school board position in 2007 is reported here and provides some background information on the adults involved in this incident.)

Also high on the list of Norwood monsters is Jessica Bicknase, the mother of the third rapist, who made t-shirts supporting the boys instead of taking her son to the woodshed.  Presumably, Timothy Armintrout, the third rapist (as reported by Grand Junction, Colorado's KREX Channel 5 and by Denver's KDVR Fox 31), is her son.  Mr. Armintrout was also back at the scene of the crime outside the Pepsi Center earlier this year competing in the state finals for division 2A wrestling with Norwood wrestling teammate and fellow rapist Talon Harris.  Their pictures can be found here.

(It probably bears mentioning that I believe that the secrecy imposed on juvenile justice proceedings is a very bad policy that harms the public in multiple ways.  The potential future victims of these three rapists need to know to be afraid of them if they encounter them in the future.  These perpetrators in particular, having escaped a criminal justice punishment commensurate with their very serious forcible rape crimes, also clearly deserve, at the very least, to have their reputations tarnished for the rest of their lives as a result of their actions.  It is appalling that their conditions of probation have not even required each of them to give up wrestling competitions, given the circumstances.  The leniency afforded to these three boys and their father and the school superintendent in this case is stunning.)

David Crews who is the superintendent of schools and imposed a mere one day, in school suspension on the boys that didn't take the conduct seriously, also deserves serious scorn (although the fact that two of the boys were the children of his boss didn't make it easy for him to do the right thing).

Harris, Crews and the school district all ought to be sued for civil rights violations, at the very least.  David Crews is still the superintendent of schools despite committing a serious crime when he failed to report this incident to the police, but Harris is no longer on the board of the Norwood Public Schools whose mission statement, ironically is to "provide a safe learning environment and build respectful individuals", something that the district clearly isn't anywhere near achieving. 

It isn't clear if CHSAA, the governing body of high school sports in the state, took any action in response to this incident.  The incident wasn't mentioned in either of the reports prepared by their wrestling division after the state championship that year, although in fairness, the incident may not yet have been reported to anyone at CHSAA at the time.

This isn't just an anomaly.  It's Western Slope culture.  Consider this story from a year and a half ago from the judicial district that includes Norwood:

The man who was the Republican District Attorney for the 7th Judicial District in Colorado (Delta, Gunnison, Hinsdale, Montrose, Ouray and San Miguel counties, basically the Western Slope to the south of Grand Junction and North of Silverton) when he was arrested in September 2010, Myrl Serra, has pleaded guilty to "criminal extortion and unlawful sexual contact involving three women," felonies punishable by up to twelve years in prison and requiring registration on the sex offender's registry. Sentencing is set for January 19, 2012.

The criminal extortion charges allege that he demanded "sexual favors from women in his office." The sexual contact charges were supported by preliminary hearing testimony in which "one of the women testified that Serra cornered her inside his office in April 2010, grabbed one of her breasts and forced her to touch his genitals." 

These kinds of Western Slope values (and similar ones about mixed race families and children) are the reason that my wife and I moved from Grand Junction to Denver in 1999 after having lived there for three years, and we have never regretted it.

If I had stayed at the firm where I worked at the time in Grand Junction, I probably would have been on the defense team defending these creeps if they had been sued, since we handled Western Slope claims for the governmental equivalent of an insurance defense funds for local governments in that territory.  We were defending litigation involving a similar, but far less egregious case involving conservative, small town Western slope perverts in public office while I was working there.

Incidentally, Telluride's paper reported the story in May of 2012 (via Randy Cassingham's blog).  Some of the details added in his account are that:

Despite legal requirements to report the incident, the school's superintendent admits officials did not do so; the boy's parents called police when he got home and told them what happened. With that, the three boys were suspended from school — for one day. School officials also "discussed" whether the victim should have been suspended too. . . .

In an editorial titled Do the Right Thing, the Telluride Watch newspaper noted that "it is widely acknowledged that similar incidents, clearly crossing any reasonable line, have occurred in Norwood in the recent past, making it impossible to shrug this one off -- extreme as it evidently was -- as an isolated incident."

I call that escalation. When school officials didn't do anything about it, they tacitly agreed with what was going on -- and naturally it got worse.

But here's where it gets really ugly. The CBS station in Denver reported (and the Watch reprinted, here), that the alleged victim's father is a school official. Worse, Norwood School Board President Robert Harris doubles as head wrestling coach at Norwood schools, and has four sons on the team!

In the same story, the paper notes that at a meeting to discuss the case, 70 people showed up, and "The crowd seemed to be separated by an unseen cultural divide wider than Gurley Gulch, which separates the Hitchin’ Post from Two Candles, Norwood eating and drinking establishments patronized by conservative and liberal members of the community, respectively." . . .

The newspaper reports (here) that "A receptionist for Norwood School District attorney Darryl Farrington was instructed to not put a reporter's message through to his voicemail," and that "In addition to Norwood, Farrington lists Telluride, Ridgway and Ouray districts among his clients." 

At the time, the CBS news report noted that this was considered normal in Norwood's sports programs (something also confirmed by the Telluride newspaper):

“After the incident at State Wrestling, we are now hearing about a number of other “taping incidents” from past years- a possible culture of hazing. The district is now investigation the new claims that have bubbled up,” said Dave Crews in a statement.

A Western Slope NBC affiliate reported on the surreal parents meeting held at the school on the day that the DA charged the Norwood rapists.  It's hard to believe how many really bad parents can be concentrated into a town that has a population of under five hundred.  Denver Post affiliate 9News also reported on the story.

Prior to this incident, the Norwood Public Schools were mostly known for another act of small minded and backward small town ignorance in a 2005 book banning incident by previous superintendent Bob Conder (confirmed here by a TV news station)

But, the Denver Post didn't think it was newsworthy until Bloomberg picked it up and never did any reporting of their own, even though the Denver police prosecuted the case in the Denver courts, and the story was covered by more than one Denver TV station.  As the Bloomberg story illustrates, it is amazing how much of a story can be developed from a little headline if you make the effort to sleuth out enough of the facts.

Does NC Prop 1 Violate The First Amendment?

North Carolina Proposition One


On Tuesday (May 8, 2012), North Carolina voters approved Proposition One, a state constitutional amendment, effective January 1, 2013 with about 60% of the vote.  It says: "Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state."


Proposition One is discussed in a law review article styled paper by Eichner, et al., four University of North Carolina law professors, but the paper addresses its potential unintended implications in other areas of private law (family law, domestic violence laws, estate planning, powers of attorney, domestic partner benefits for employees), rather than its constitutionality.


Some reading broader than just a ban on same sex marriage must be intended, because same sex marriage was banned in North Carolina before this measure was adopted. The primary purpose appears to be to ban "civil unions" which are marriages between people of the same sex in all but name, affording essentially the same legal rights and responsibilities, and perhaps also to ban "domestic partnerships" between same sex couples that afford some, but not all, of the legal rights and responsibilities of marriage. But, the wording is anything but clear on precisely what effect it has because the phrase "domestic legal union" is not well defined in either plain English usage or legal practice and precedent. It is certainly susceptible to broader or narrower legal meanings.


If one reads broadly the term "domestic legal union," in the Proposition, which the North Carolina law school professors note "has never been used before in North Carolina, or interpreted in North Carolina courts," a meaning of "legally recognized allocation of rights and responsibilities in household affairs," it prohibits giving validity or recognition to a great many intrahousehold and intrafamily legal arrangements beyond the civil unions and domestic partnerships for homosexual couples that the measure was really primarily targeted at prohibiting.


Is This An Unconstitutional Limit On The Freedom Of Association and Privacy Rights?


One of the most interesting questions that this very broad language raises is whether it violates the First Amendment right to freedom of association, which applies in North Carolina and every other state via incorporation through the Fourteenth Amendment to the United States Constitution.


The First Amendment, which was adopted in 1791 (two years after the original U.S. Constitution that is now in force), says: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances."


The establishment and free exercise clauses and the freedoms of speech and of the press get most of the attention.  But, "the right of the people peaceably to assemble," often called the freedom of association, is part of the First Amendment as well and like the other rights set forth in the Bill of Rights, has been interpreted broadly over the last two centuries (and particularly in the late 20th century and early 21st century).


Read broadly, Proposition One prohibits, or at least legally burdens, many ways people may peaceably assemble with each other without a very particularized state interest holding that these arrangements are contrary to public policy.  Even if there is no constitutional right to recognize "marriage" per se, between anyone other than one man and one woman, this broader prohibition might abroad First Amendment rights to freedom of association.


The constitutionality of this kind of limitation is informed by privacy/freedom of association cases like Lawrence which held that it was unconstitutional to criminalize consensual sodomy between adults conducted in private, and Griswold, which held that access to contraceptives cannot be limited to married couples.  The line of cases that invalidated the notion that the legal rights of a child may not hinge on legitimacy, except in the most narrow of circumstances, and the case of Loving v. Virginia holding that miscegenation laws are unconstitutional, are also relevant.


Other Federal Constitutional Theories That Could Invalidate Proposition One


Equal Protection


Of course, freedom of association is not the only federal constitutional theory upon which this state constitutional amendment can be challenged.  Equal protection considerations under the Fourteenth Amendment to the United States Constitution, such as those articulated in Romer v. Evans and reiterated in the recent holding of the United States Court of Appeals for the 9th Circuit, provide that citizens initiatives may not be used to make a specific class of people strangers to the law who are not entitled even to seek legislative relief for themselves on an equal basis with other people.

The wording of Proposition One may escape equal protection considerations on the theory that it disadvantages far more domestic arrangements than gay marriage and gay marriage lite, making gays uniquely strangers to the law as the Romer v. Evans proposition in Colorado did.  But, the more that Proposition One does not abridge equal protection considerations, the more it runs up against freedom of association, privacy, full faith and credit and impairment of obligations of contracts concerns. 


Full Faith and Credit


There are also questions about the extent to which this broader language constitutes a violation of the Full Faith and Credit clause of the original 1789 constitution (Article IV, Section 1), that requires states to recognize the legal acts of other states, beyond the limited exemption that DOMA, the Defense of Marriage Act, authorizes to allow states to ignore full fledged same sex marriages from other states.  This is an exception whose constitutional validity is itself the subject of challenge, although with less of an anticipated chance of success than the challenge to its provisions related to federal non-recognition of same sex marriages that are valid under state law, because Article IV, Section 1 provides that "congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."  This clause provides a fig leaf of express delegation of authority to Congress to enact the full faith and credit provisions of DOMA.

Laws Impairing Contracts

And, with respect to arrangements already in place when Proposition One takes effect, there is a fair question as to whether this measure constitutes a law that is invalid because it is a law "impairing  the obligations of contracts," something prohibited by the original 1789 Constitution in Article II, Section 10.

Federalism and Private Law

Buried in the debate over Proposition One is a reality of modern American federalism.  In practice, it is quite difficult to delegate the regulation of private law, governing the non-governmental interactions of non-governmental actors, to state and local governments.  We learned that the first time as a nation from almost ninety years of trying to manage existing in a federal union where different states could adopt differing rules on the private law issue of the permissibility of slavery and indentured servitude.

We are continuing to face those issues in areas like private sector and state and local union-management relations, medical marijuana, and gay rights.  In practice, federal constitutional and statutory law in a system where Congress has near plenary power backed by the Supremacy of federal law, and interstate and international transactions and migrations of private parties, mean that it is quite challenging for states to adopt different private law rules on matters of great practical importance for long periods of  time without creating a pitched internal legal mess that is rarely sustainable.  If all else fails, and Congress clearly lacks the authority to regulate some matter within the scope of state law authority, it can and has in the past, simply bribed them to adopt uniform rules, something it has a track record of doing with success.  In American politics, state and local government greed usually trumps state sovereignty.

Countries like Germany and Canada addressed this issue by placing much more authority over private law matters in the central government than the U.S. Constitution does (at least on its face) and leaving state and local governments with authority mostly to provide public services and administer central government blessed private laws.


But, while the American system of federalism doesn't require uniformity (and on some issues it manages to tolerate differences that the European Union finds to be essential to the functioning of its union of multiple sovereigns), it is not a system of federalism capable of accommodating extremely different legal and governmental arrangements in different constituent states. 


Even the modest challenges involved in Louisiana having a legal system rooted in French civil law, while the rest of the nation has a legal system rooted in English common law, have largely been overcome simply by forcing Louisiana to operate a hybrid system in which many core common law legal principles that are foreign to the French civil law system apply anyway, for reasons more bureaucratic than substantive.


American innovation is a bit like innovation within a franchise system or big business.  A little local color can be tolerated, but wholesale deviation from the master plan, a plan that in practice goes far beyond what is stated in the U.S. Constitution, simply does not work very well.  And, when the master plan is shifted on a national level, in pretty short order, the rest of the nation usually shifts with it in almost every state where the issues involved have any salience.

10th Circuit Upholds and Narrowly Interprets Stolen Valor Act

The United States Court of Appeals for the 10th Circuit, based in Denver, has upheld the constitutionality of the Stolen Valor Act, which makes it a misdemeanor to make false statements made about the military honors one has obtained.

It did so by first clarifying that the statute is being interpreted narrowly, in an effort to preserve its constitutionality. As construed, it applies only to statements made knowing that the statement is false with an intent to deceive, and only to statements that are actually meant to be actual statements of factual matter as opposed to statements not calculated to be taken literally such as "satirical, rhetorical, theatrical, literary, ironic, or hyperbolic statements." Thus, as interpreted by the 10th Circuit, "only outright lies—not ideas, opinions, artistic statements, or unwitting misstatements of fact—are punishable under the Act." But the Stolen Valor Act removes the requirement found in fraud or defamation statutes that have been previously upheld as constitutional in the face of First Amendment challenges that "the lie induced reliance or caused discrete harm."

The 10th Circuit reasoned that there is no general constitutional protection for knowingly made false statements of fact under the First Amendment, even though there are some instances where such statements are insulated from liability because they would have the effect of chilling some other form of protected speech. But, given their construction of the statute, the 10th Circuit concluded that this particular subset of knowingly false statements of fact made with an intent to deceive about their factual truth related to the military decorations that one has received does not chill legitimate protected speech and by its narrow content scope implicitly excluudes all sorts of false statements that would involve only immaterial statements of fact.

The 10th Circuit notes, quoting the brief of a law professor who blogs at a site in the sidebar:

Since New York Times, Garrison, and Gertz, courts have
extended the “false statements of fact” exception to cover many categories of false-speech statutes, including laws punishing fraud, false-light invasion of privacy, intentional infliction of emotional distress through false statements, trade libel, perjury, unsworn false statements of fact made to governmental officials, impersonation of a governmental official, false claims regarding university degrees and professional licenses, falsehoods in connection with political campaigns, falsehoods likely to provoke public panic, and falsehoods that are likely to lead to physical harm. See Brief for Eugene Volokh & James Weinstein Amici Curiae Supporting Petitioner at 3–11, United States v. Alvarez, No. 11-210 (U.S. Dec. 7, 2011); Brief for Eugene Volokh Amicus Curiae Supporting Plaintiff at 1, United States v. Strandlof, No. 09-cr-00497 (D. Colo. Jan. 15, 2010).

An even better set of constitutional laws to which the Stolen Valor Act is analogous, are those criminalizing certain kinds of trademark and servicemark violations. Military honors and decorations are essentially trademarks that designate the quality of a soldier just as a servicemark can be used to distinguish the quality of a particular individual's personal services, that belongs to the United States government. And, there is no good reason why it should be possible to sanction someone criminally for falsely using a private servicemark without an individualized showing of reliance or harm, but it should not be possible to do the same thing when the servicemark is granted by the U.S. government (the laws criminalizing claims that one has degrees that one does not have are also quite analogous in this regard when a state university is involved). The argument that the United States government has something in the nature of an intellectual property right in decorations and honors that it issues is a natural and reasonable one.

Coming close to this analysis, the 10th Circuit notes the line of cases establishing that "Congress has made it a crime to falsely purport to speak on behalf of the government" and that Congress has taken "steps to protect the intellectual property associated with medal designs[.]"

The 10th Circuit three judge panel ruling was made with one judge dissenting. The dissenting judge argued that an injury must exist to criminalize false statements of fact and unlike the majority (which also did not believe that injury was a constitutional requirement, citing many counterexamples) did not feel that this could be established on a generalized basis for this class of statements as the majority.

In my view, the 10th Circuit in this case has it exactly right on the merits, making a subtle, but easy to apply in practice rule that is not prone to slippery slope constructions that would erode free speech rights. Indeed, I wouldn't be at all surprised to see the U.S. Supreme Court affirm the 10th Circuit in this very case and use this case to overrule contrary federal court authority.

The 10th Circuit ruling creates a circuit split between it and the 9th Circuit, with several other cases going both ways in the appellate pipeline in other circuits. The final word will almost surely come from the U.S. Supreme Court sooner or later. And, the very clean facts of the underlying offense and careful reasoning of the 10th Circuit in its opinion in this particular case make it an attractive one for a U.S. Supreme Court interested in affirming that 10th Circuit position that the Stolen Valor Act is constitutional and quite possibly doing so in a unanimous ruling.

Second Circuit Rejects Hot News Doctrine In New York State Case

Thwarted in their efforts to use copyright law to legally prohibit others from referencing the content that they produce, some newspapers and news services have been attempting to reinvigorate the common law "hot news" doctrine to make their publications truly "exclusive" for a little while at least.

A ruling released yesterday in the case Barclays Capital, Inc. v. theflyonthewall.com, Inc., from the United States Court of Appeals for the Second Circuit, in which the trial court had issued an injunction protecting Wall Street analyst newsletters based upon the doctrine, dealt a serious blow to that theory.

The core holding of the case is that:

We conclude that under principles that are well established in this Circuit, the plaintiffs' claim against the defendant for "hot news" misappropriation of the plaintiff financial firms'recommendations to clients and prospective clients as to trading in corporate securities is preempted by federal copyright law.

The ruling does not hold that the "hot news" tort is unconstitutional, or even that it is always pre-empted by copyright law, although the analysis does give the First Amendment considerations weight in determining the scope of copyright pre-emption of the doctrine. But, it does dramatically narrow the class of "hot news" cases that are not pre-empted by copyright law from what the leading "hot news" precedent in the Second Circuit, National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), had been understood to provide. It distinguishes and greatly narrows NBA, rather than overruling it.

Since the NBA case is the leading precedent in any United States Court of Appeals Circuit holding that the "hot news" doctrine is neither unconstitutional nor fully pre-empted by federal copyright law, the ruling deals a serious blow to the litigation strategy of traditional media outlets seeking to use the doctrine to restrain online news reporting that used traditional media sources.

Some central stated motives for the broader reading of pre-emption doctrines were both (1) the lack of protection afforded the underlying facts that suing media outlets reported, which were historical facts or financial market data, and (2) the concern that media outlets that are targets of "hot news" suits are often Internet based media ventures with sources in many states who would be unfairly subject to state law versions of the common law doctrine that differed materially from state to state, undermining the policy of uniformity that the federal copyright laws were intended to establish.

The blow this ruling presents to litigation strategies designed to give one media outlet exclusive intellectual property rights to a story is particularly great given the surprisingly blog friendly rulings that courts gave to websites republishing substantial parts of newspaper stories on the web under the copyright law's fair use doctrine, sometimes finding that it applied even in verbatim reprints of medium sized news stories or entire news photographs when other favorable conditions (like the limited negative impact a republisher was likely to have on the market for the original work).

Righthaven Suffers Potential Death Blow To Business Model

In a post yesterday, Technology and Marketing Law professor Eric Goldman summarizes a judge's June 14, 2011 order dealing a major defeat to Righthaven, a Internet copyright violation litigation company with the parent companies of the Denver Post and Las Vegas Review-Journal as major clients that has employed a very aggressive litigation strategy against bloggers who quote newspaper reports in their posts. 

An ongoing dispute over a cease and desist letter sent by Righthaven on behalf of the owner of the Denver Post to Colorado Pols, asserting rights in excess of those legally available to the newspapers under copyright law and largely complied with by the Colorado Pols blog to the detriment of the newspapers has earned Righthaven infamy in Colorado's political blogosphere.

The judge found that Righthaven didn't own the copyrights it claimed to be suing under its contract with the media company, and according to Goldman that judge ruled "that Righthaven can't fix the existing contract defect for the existing litigation because standing is measured when the complaint is filed. This could lead to dismissal of all pending Review-Journal litigation and, depending on the exact wording of the MediaNews contract, possibly the Denver Post litigation as well."

The ruling is a blow to Righthaven's entire business model:

"If Righthaven can't get this opinion reversed on appeal and other judges defer to this opinion on the standing question (which I think it likely), Righthaven may be back at square one with its entire business. Thus, I assume Righthaven will appeal this decision. However, this is a pretty well-constructed opinion, so Righthaven will have an uphill battle overturning it on appeal."

The judge also severely criticized Righthaven's litigation conduct and is likely to impose sanctions:

* the judge rejects Righthaven's basic substantive argument as "flagrantly false—to the point that the claim is disingenuous, if not outright deceitful."
* . . . "the Court believes that Righthaven has made multiple inaccurate and likely dishonest statements to the Court."
* the judge then goes on to lambaste Righthaven for not identifying [Las Vegas Review-Journal Owner] Stephens Media as an interested party in the lawsuit, calling that omission "brazen" and "egregious."

[As the order explains: "not only did Righthaven fail to identify Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this District. Accordingly, the Court orders Righthaven to show cause, in writing, no later than two (2) weeks from the date of this order, why it should not be sanctioned for this flagrant misrepresentation to the Court."]

The judge requires Righthaven to explain why the judge should not order sanctions. Given the tenor of this opinion, it seems like a sanctions order is inevitable. The opinion also hints that Democratic Underground may get its attorneys' fees. All told, this case is probably going to cost Righthaven dearly. And after a ruling like this, Righthaven's entire enterprise is on the ropes.

Since standing goes to the subject-matter jurisdiction of the federal courts in which Righthaven has already obtained judgments and settlements resulting from federal court litigation, it is not impossible that litigation to set aside those ruling and even to obtain restitution of the settlements paid based on litigation premised on misrepresentations to the Courts by Righthaven could be brought successfully if this judge's order survives attempts to set it aside on appeal.

The Electronic Frontier Foundation, which provided a legal defense to the Democratic Underground also noted that:

"The Court permitted Democratic Underground's counterclaim to continue against Stephens Media -- the publisher of the Review Journal -- allowing Democratic Underground to show that it did nothing wrong in allowing a user to post a five-sentence excerpt of a 50-sentence article."

More details are found in my diary at Colorado Pols on the subject and the comments therein.

Dex v. Seattle

Dex, a distributor of phone books is challenging a Seattle ordinance allowing people to put themselves on a "no phone book" list, as a violation of its First Amendment rights in a suit filed November 15.

I have about eight phone books in a cabinet in my house that almost never get used for anything. My children show no interest in learning how to use one, my wife doesn't like the small print. I use one half a dozen times a year, and don't use three-quarters of the phone books I receive at all. I'm a phone book advertiser myself, but increasingly even they are pitching the Internet component of their business, rather than the paper copy element.

Opt-out laws, in general, have been upheld against constitutional challenge in multiple cases cited in the link above to a post by Venkat Balasubramani at Eric Goldman's blog including Rowan v. United States Post Office, 39 U.S. 728 (1970)(indecent junk mail); State of Mo. v. American Blast Fax, Inc., 323 F.3d 649 (8th Cir. 2003)(junk faxes); FTC v. Mainstream Marketing Services, 345 F. 3d 850 (10th Cir. 2003) (no call list).

The main constitutional objections raised by the Yellow Book companies to the statute are that:

- the statute singles out yellow pages from all other types of unsolicited pamphlets, without reference to the harms sought to be remedied;
- the City made exceptions to satisfy local business interests, such as business associations;
- the ordinance also contains a licensing scheme which is at best highly suspect;
- the statute compels the yellow pages publishers to publish an unwanted message (in the form of opt-out notices and messaging on the cover)
- the statute charges the yellow pages companies to dispose of the books even though the unwanted or discarded books are recycled or disposed of by the recipients;
- yellow pages companies already employ opt-out mechanisms and have no interest in delivering yellow pages to recipients who do not want them (there's no indication that the opt-out system set up by the City will be more effective).

The objection to a statute that involves yellow pages being a content based restriction that favors local interests isn't particularly strong, because the content basis ties into the resident choice to be on the opt-out list, and any flaws in it could probably be easily remedied with an improved definition (e.g. printed material of 150 pages or more with commercial content not expressly requested by the resident, not distributed by an organization of which the resident is a member, and not delivered by the U.S.P.S.).

Any problem with the requirement of a $100 license fee, the reporting requirement (to list the number of yellow pages distributed), or the unwanted message also seems doubtful, particularly to the extent that any defect in the definition of yellow pages is cured. All sorts of businesses are required to make disclosures about laws that have an impact on them, the reporting requirement is no more onerous than constitutional requirements applied to every periodical distributor, and the license fee is not out of line with business privilege licenses that apply to all businesses (and could be made a part of a general business privilege license by requiring the fee and disclosure of yellow book distributions to all business license holders). Allowing licenses of regulated businesses that don't comply to have their licenses yanked also seems constitutional.

No of the prior law on opt out has ever suggested that a private opt-out option makes it constitutionally impermissible to have a legally required opt-out option, and there is good reason to think that a government administered one would work beter.

The most interesting challenged provision is that one that provides for "a 'recovery fee' designed to recoup recycling costs ($0.14 per book and $148.00 per ton of yellow pages)." Similar costs are imposed on tire companies and oil change companies, and it is hard to see how this fee is materially different from a constitutional perspective. Arguably, this makes the content discrimination claim stronger, but one alternative would be to apply the fee of $148.00 per ton to all unsolicited paper (something on the order of 40,000 to 200,000 pages) distributed (for profit or in excess of a certain number of pages or both) outside the U.S. Postal System (where federal pre-emption probably applies). While this fee would be a notable burden on yellow page companies, it would still be a modest part of their total production costs, would be very modest when applied to other door to door flier distributors.

On the whole, the Seattle law seems either constitutional or easily remedied, sensible, and worth considering duplicated in Denver once constitutional concerns are resolved in Seattle's case.

Ivory Coast Type Election Issues In Cincinnati

Hamilton County, Ohio, whose principal city is Cincinnati, is faced with an election law issue pertaining to an open, elected partisan juvenile court judgeship election dispute upon which the Ohio Supreme Court and Ohio Secretary of State have ruled one way (don't count the ballots), but a federal district court judge, Chief Judge Susan J. Dlott of the U.S. District Court for the Southern District of Ohio has reached a contrary result.

What is the Board of Elections member (the Board itself is split two to two and does not agree) to do? The officials in question now face a contempt of court hearing today, which puts the officials at risk of personally going to jail or being fined, for failing to honor a federal court order that is contrary to a state court order.

Generally, elections are matters of state law. But, if a federal constitutional right or federal statute is implicated, federal law supersedes state law. And, while the 11th Amendment prevents state governments from having to deal with cases in federal trial courts, state and local government officials in suits not seeking money damages and arising under federal law, and suits against governmental entities distinct from state governments are not subject to that limitations. Doctrines that one learns when studying the federal courts generally provide that a final ruling of either a federal court or state court is binding on the parties who may not then forum shop for another judge with a more favorable outlook on the case. In particular, a federal trial court may not generally sit as an appellate body with regard to a state court ruling in a civil matter. But, since the law in this federal v. state jurisdiction area is so complex, even in cases arising out of purely state office elections (which are far simpler than cases arising out of federal elections, like Bush v. Gore, where a host of special constitutional rules apply), judicial rulings are sometimes hard to predict in this cases and judges come to different conclusions in the face of hot partisan conflict that often sees judges and elections officials lining up along the lines that their political histories would suggest, despite their duties to enforce the laws impartially.

Republican John Williams leads Democrat Tracie Hunter by 23 votes in the official count, but the parties disagree on how to handle 849 provisional ballots that were not counted.

The ballots were set aside on Election Day because poll workers believed they were cast at the wrong precinct.

Dlott, however, has said 149 of those ballots were cast at the wrong precinct because of poll worker error and should be counted. Many may have been cast at the wrong table even though voters cast their ballot in the right building.

The [federal] judge said failing to count ballots that were disregarded through no fault of the voter would violate the 14th Amendment’s requirement that all citizens receive equal protection under the law.

Partisan, Personal and Federalism Issues Involved

There is a partisan dimension to this struggle as there is in most election law cases.

The Board of Elections is split two posts for Republicans, two for Democrats, split evenly by design.

The Ohio Secretary of State is an elected Republican and favors the Ohio Supreme Court position that lets the Republican judge win. Six of the seven officially non-partisan elected justices on the Ohio Supreme Court were nominated by the Republican party and known to have Republican affinities.

The Democrats on the Board, however, would like a recount, as the federal judge, who was appointed by President Clinton, a Democrat, in 1995 when Democrat John Glenn and Republican Mike DeWine were U.S. Senators from Ohio, has ordered. Dayton native Dlott is married to Stanley M. Chesley (a trial lawyer more familiar to me than almost any lawyer in Denver by name, despite the fact that I haven't lived in the area for a copule of decades), lives in the most expensive single-family home ever listed in Greater Cincinnati, shows dogs, and has won praise for her racial sensitivity and even handed management and resolution of complex cases.

The Secretary of State is (by design) normally a partisan tie breaker for county boards of election, in this case on the issue of whether the federal court ruling should be appealed to the 6th Circuit Court of Appeals. If the 6th Circuit overules the trial judge, the conflict between the courts no longer exists, but, should the United States Court of Appeal for the 6th Circuit (which is neither particular conservative nor particularly liberal as federal appellate courts go in the United States at the moment) affirm the trial court's ruling (in which she is entitled to considerable deferrence in a number of respects), its authority vis-a-vis the Ohio Supreme Court's ruling is just as ambiguous as the trial court's ruling. Only the U.S. Supreme Court has clear jurisdiction over both the state and the federal judges in this case.

The case also pits concerns about federal involvement in state and local government operations against concerns about fairness in elections in a system controlled by political allies of the aggrieved candidate. Stereotypically (for modern times), it is the Republicans who are pressing a state's rights argument in this case, and the Democrats who are pressing for federal involvement in the interest of civil rights.

There is also a perceived racial element to the contest. Hamilton County is 70% white and 25% African-American, with the African-American population predominantly in Cincinnati, the central city, ahd the white population disproportionately in suburban Hamilton County. Democrat Tracie Hunter, a former public defender and guardian ad litem, who is also a pastor and radio personality is an African-American woman, while Republican John Williams, a former prosecutor campaigning with a tough on crime agenda in a court where most of the defendants are African-American juveniles and African-American parents, is a white man whose website prominently displays white Hamilton county suburbanites in the background, in a county just on the border between Northern leaning Ohio and Southern leaning border state Kentucky.

To be perfectly honest, if I had been forced to vote in that election, I wouldn't have been terribly happy with either of my choices. Both candidates are partisans seeking a post that demands neutrality and evenhandedness.

Voters were very evenly split in the race, and usually, in this kind of situation, where a significant number of provisional ballots are at issue, a recount will favor a Democrat. It wouldn't be surprising for an apparently heavy handed or partial ruling to lead to a riot in Cincinnati.

The Stakes

This all sounds like a very technical issue of civil procedure and election law, with valid legal considerations on both sides of the case.

The outcome of this case won't directly affect anyone who doesn't do have a connection to Hamilton County Juvenile Court, a county where 99.7% of the population of the United States doesn't live, and with which 95%+ of the population of Hamilton County will never have any business. It has one other judge in addition to the position at stake in this election, and the Juvenile Court's rulings are very important to those who are before the court, and who in making child custody decisions and juvenile delinquency sentencing decisions has immense discretion.

Life will go on with either resolution of the matter, so long as it is resolved, and there is really no room for compromise. Neither candidate has shown any basis for a do over of the election, only one can be elected for a long term to the only judgeship on the court, and the judicial ideologies and the personal experiences that the candidates bring to the court are very different. Either way, unhappen litigants can try to appeal rulings without a proper legal basis.

Cote D'Ivoire Compared

But, while this particular case in Ohio won't change the world, an extremely similar legal issue in Cote D'Ivoire's 2010 Presidential election, in West Africa, in a country only a little larger in size and area than Ohio (it has 20.6 million people up by a third in the last decade alone, while Ohio has about 11.5 million although probably a similar number of adults of voting age; it has 124,502 square miles, while Ohio has 44,825 square miles; both have strong regional and ethnic partisan divides), in which a Board of Elections and independent election observers came to one conclusion on the outcome of a contested election dispute arising out of vote counting concerns (in favor of the contesting candidate Alassane Ouattara), while the Constitutional Court of the country came to a contrary determination (in favor of the incumbent President Laurent Gbagbo).

The election dispute in Cote D'Ivoire has brought that country to the brink of civil war, despite the absence of a complicated mix of federal courts. Scores or hundreds of people have died already in the several week old dispute. The international community has sided with the challenger (in part on the merits, and in part because the incumbent has manipulated the electoral process in undemocratic ways that were to be put behind the country in free and fair elections in 2010), while the incumbent appears to have practical control of most instruments of state power in the country.

UPDATE: The 6th Circuit has entered a stay in the case. All the original source documents you could ever want can be found here.