TGIS: Thank God It's Schadenfreude! (259)

This week's joy in the misfortune of others comes courtesy of Bild (via Deadspin) (from Thursday, February 25; link good at time of posting):

A switched-off mobile phone spelt the end of speed skater Patrick Beckert’s Olympic dream.

....

As an Olympic substitute he would have been able to take the place of Italy’s injured athlete Enrico Fabris in the 1,000-metre event.

But at the crucial moment the 19-year-old couldn’t be contacted because his mobile was switched off!

....

Beckert was substitute number four. The three other athletes were also unreachable.

[Previous TGIS]

A Round Tuit (20)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

It was revealed late last week that a school district in Pennsylvania had used surveillance software installed on school-issued laptop computers to photograph students at home. After the parents of one of the students filed a class action lawsuit against the district, the condemnation of the school administrators' actions was swift and, for blogospheric commentary, strangely uniform. Usually, one would be hard-pressed to find many controversies wherein everyone seems in general agreement about who's at fault; in this instance, however, you'd need to dig pretty deeply into the discussion to find more than a half-hearted defense of the school district's actions. Ars Technica provided a concise overview of the allegations of the lawsuit:

According to the complaint, the school in question (Harriton High School) had issued laptops equipped with built-in webcams to every student so that they could have "24/7 access to school based resources" and the ability to work seamlessly between school and home when it comes to research and projects. In November of 2009, however, Robbins was disciplined by the Assistant Principal of his school, Lindy Matsko, for engaging in "improper behavior" in his home. At that time, Matsko cited a photograph from the built-in webcam on the laptop.

Robbins' father Michael supposedly confirmed with Matsko that the school has the ability to remotely activate the webcam "at any time it chose to view and capture whatever images were in front of the webcam." Needless to say, Robbins' parents were outraged at this development, as neither the school nor the district had told parents about this capability. As a result, the Robbins have filed a class-action lawsuit against the district, charging it with interception of electronic communications under the ECPA, theft of intellectual property under the CFAA, violations of the Stored Communications Act, violations of the Civil Rights Act, invasions of privacy, and violations of the Pennsylvania wiretapping and electronic surveillance act.

On behalf of the Above the Law blog, Kashmir Hill named Robbins v. Lower Merion School District the "Lawsuit of the Day", noting that "The school district was not just monitoring their webcams — it was allegedly tracking all of their activity on the computers (although the webcam watching is the most disturbing aspect).... Meanwhile, we’re considering a sticker to cover the camera on our own employer-purchased laptop." Eugene Volokh's initial thoughts on the suit's allegations, before further details of the surveillance program surfaced, were typical of many others':

If this was indeed done, and if it was done without adequately notifying the students and their parents, this was clearly tortious, likely a violation of the Fourth Amendment, and possibly a statutory violation as well (though I haven’t looked closely at the statutory details). It is also appalling — school officials spying on children in their parents’ homes without the children’s and parents’ permission. Who thinks up such things?

Orin Kerr also weighed-in with a preliminary assessment. With the plaintiff's and school's conflicting factual allegations, Kerr assumed (for purposes of analysis) that the school's were true; though he dismissed the claims that federal or state wiretap laws had been violated, described the Stored Communications Act cause of action as "frivolous", and suggested that the absence of an economic loss by the student precluded a Computer Fraud and Abuse Act claim, he concluded that a Fourth Amendment claim would stand, albeit not as a class action:

My tentative bottom line: The schools violated the Fourth Amendment rights of students when they actually turned the cameras on when the computers were at home.

....

The Fourth Amendment issues here... [strike] me as the most serious. Let me break down the issues in two steps:

a) This case is brought as a class action, but the Fourth Amendment issues here don’t work as a class action. Any “search” here didn’t occur until the camera was turned on, which according to the school occurred when the laptop was thought to be lost or stolen. That means no search occurred under the Fourth Amendment for students who had laptops that were not turned on. See United States v. Karo, 468 U.S. 705 (1984) (“The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. . . . It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.”).

b) Taking the photograph inside the home seems pretty clearly to be a search under Karo. The school might try to justify this under the special needs exception: The school issued the laptop and could search it to investigate misconduct under New Jersey v. TLO. The problem with this argument is that the school didn’t search the laptops: They searched the home where the laptop happen to be present.

Also discussing the inapplicability of wiretap laws to the allegations in this matter was Julian Sanchez. Sanchez noted that the case, wherein pictures or video were recorded without sound, highlights a "strange gap" in surveillance laws:

The trouble is that courts considering similar claims in the past have held that federal electronic surveillance law does not cover silent video surveillance—or rather, the criminal wiretap statutes don’t.

That leads to a strange asymmetry in a couple of different ways. First, intelligence surveillance covered by the Foreign Intelligence Surveillance Act does include silent video monitoring. Second, it seems to provide less protection for a type of monitoring that is arguably still more intrusive. If officials had turned on the laptop’s microphone, that would fall under ECPA’s prohibition on intercepts of “oral communications.” And if the student had been engaged in a video chat using software like Skype, that would clearly constitute an “electronic communication,” even if the audio were not intercepted. But at least in the cases I’m familiar with, the courts have declined to apply that label to surreptitiously recorded silent video—which one might think would be the most invasive of all, given that the target is completely unaware of being observed by anybody.

After the Robbins suit was filed and publicized, the district quickly abandoned the surveillance program and scrambled to defend its actions:

The District is dedicated to protecting and promoting student privacy. The laptops do contain a security feature intended to track lost, stolen and missing laptops. This feature has been deactivated effective today.

....

• How did the security feature work?

Upon a report of a suspected lost, stolen or missing laptop, the feature was activated by the District's security and technology departments. The tracking-security feature was limited to taking a still image of the operator and the operator's screen. This feature has only been used for the limited purpose of locating a lost, stolen or missing laptop. The District has not used the tracking feature or web cam for any other purpose or in any other manner whatsoever.

• Do you anticipate reactivating the tracking-security feature?

Not without express written notification to all students and families.

We regret if this situation has caused any concern or inconvenience among our students and families. We are reviewing the matter and will provide an additional update as soon as information becomes available.

Mike Masnick provided continuing updates throughout the week as more details of the schools' surveillance program emerged. After it was revealed that the school district had not accessed students' webcams just a few times, but had instead done this forty-two times before the program was abruptly halted in the wake of the civil lawsuit, he reported that the Federal Bureau of Investigation had also become involved to determine whether federal laws had been broken. Subsequently, Masnick reported that the "drugs" which had prompted the district to discipline Robbins (and thereby revealed the surveillance capability) were in fact "Mike and Ike" candies; moreover, informal communications by one of the district's technology staff were uncovered and added gasoline to the fire:

Apparently, in various forums, blog posts and videos, one of the school's techies talked about the technology they were using and how to set it up so that the user would not realize they were being spied on. He also discussed how to prevent a laptop using this software from being "jailbroken," so users couldn't discover that their computers were being used in this manner. Other forum posts from students at the school show that they were told they could not use other computers, could not disable the cameras and could not jailbreak their laptops on the risk of expulsion.

Cory Doctorow, whose Boing Boing blog was among the first to report the surveillance program and lawsuit, confirmed that the program was both mandatory and pervasive:

• Possession of a monitored Macbook was required for classes
• Possession of an unmonitored personal computer was forbidden and would be confiscated
• Disabling the camera was impossible
• Jailbreaking a school laptop in order to secure it or monitor it against intrusion was an offense which merited expulsion

Brett Trout noted that "'epic' does not quite capture the fail" for the school district:

The Lower Merion School District has more problems on its hands than disgruntled parents and a civil lawsuit. Problems started when the Harriton High School administration remotely activated webcams on students laptop computers to spy on the students at home. The case exploded when hubris-infused Assistant Principal Lindy Matsko apparently used the remote spying scheme to accuse 15 year-old student Blake Robbins of selling drugs. Robbins has since stated the “drugs” were actually Mike & Ike candies. While admittedly not a drug-identification expert, based upon my years of varied candy experience, I feel fairly confident even I would be able to differentiate Mike & Ike candies from drugs.

While a case of a school employee spying on children is not unheard of, this is the first case I have run across where the perpetrator did not apparently appreciate the wrongness of such spying. Most surreptitious spys of underage victims at least make an attempt to keep such activity hidden from the public. In its defense, the School District is now back-pedaling wildly, denying any wrongdoing and arguing that the school official was merely trying to be “supportive.” Detectives from Montgomery County, the Montgomery County district attorney and the FBI do not seem to be buying that story. All are now investigating the matter.

Ken of the Popehat blog suggested that the Lower Merion School District matter provides us a Heinleinesque reminder that there ain't no such thing as a free lunch:

Now, we don’t have the response of the school or the district yet. But if Blake’s allegations are true — that school administrators were activating webcams remotely to observe students without their knowledge or consent, or the knowledge or consent of their parents — then the district, and some of its administrators, are in a world of hurt. In addition to the civil violations set forth in Blake’s complaint, such conduct is almost certainly criminal. Hopefully Blake’s family will refer the matter to the U.S. Attorney’s Office for their district. If school administrators sent home laptops and then spied on kids, someone — probably several people — should be going to jail. If they captured or observed kids in any state of undress, some of them need to wind up as registered sex offenders.

If this went down the way Blake claims, the stupidity of the Lower Merion School District officials is breathtaking. That they thought they could do this legally – and that they thought it was a good idea to blithely begin to discipline kids for conduct observed secretly in their homes — speaks volumes of the entrenched cretinism in modern American academia. But the entitlement isn’t breathtaking. It’s perfectly ordinary. When the government and its officials give you something, they always expect something in return. Sometimes that something is your privacy. That’s the way it works.

Dave Wieneke offered his thoughts on a broader question about the Robbins suit — whether a civil lawsuit, which ould effectively punish the taxpayers of the locality, is a productive method for redressing these kinds of violations:

The civil courts are like an emergency break through which the people can directly access the courts, when local or distant law officials are slow to act. Some people may complain about lawsuits, but civil justice is an override that protects the people from an non-responsive state.

Law enforcement officials could have stepped forward based on potential violations of state or federal law. In fact, because of the lawsuit, the FBI is now investigating to see if a federal crime was committed.

Now that the FBI is involved, perhaps the threat of the lawsuit has done all the good it can. Not necessarily. Criminal courts often have a higher standard for conviction than a civil ruling.

But more important, criminal courts are more likely to focus on individual actors unless there was a broad criminal conspiracy. In contrast, the civil suits are more likely to focus on Lower Merion School District, which perhaps should have better considered the privacy concerns of putting webcams in homes, or better supervised their staff.

I think the civil case focuses properly on the Lower Merion School District, not individual staff. Yes, the court could find the district is liable for a widespread spying on children and their families, and the community could suffer higher taxes. That seems just. When public officials mess up, there is a public cost.

....

Sorry tax payers, like it or not, you also own a government.

Are the kids alright? Opinions varied this week, as these usually do. The generation gap broadened a bit, there was a bit of love for at least one member of the younger generation of lawyers, and juveniles' treatment by the laws and the courts was rightly questioned.

Scott Greenfield's frequently provocative writing at his Simple Justice blog generates a substantial comments traffic. Some subjects are more provocative to his commentariat than others, and his criticisms of online behavior by the "slackoisie" are particularly likely to generate some heated responses. After advice columnist Amy Alkon somehow ran afoul of a blogger (to whom Greenfield refers as the "Lord of the Flies") and his audience, she found the Amazon reviews for her latest book suddenly inundated with single-star reviews and negative, even abusive, comments. Greenfield was unimpressed with the negative campaign:

I haven't read Amy's new book. I'm still waiting for her to send me a review copy. I'm patient. But this attack by the Lord of the Flies is not merely a disgrace, but an affront to anyone who believes that ideas, people who espouse ideas and people who write them down so that they end up in a book, should be subject to the revenge of the playground when the children don't like her.

....[T]o engage in this smear campaign against Amy because they disagree with her views, and to do so in such an overt (and childish) manner for the purpose of harming her financially by faking negative reviews, rather than challenging her ideas, is total garbage.

Whether commenter "worldruler" was the Lord or one of his Flies is unclear, but he took Greenfield to task for his failure to understand "the culture of the Internet", "our customs", and "our most sacred taboos". Greenfield considered whether that was so and replied:

[The slackoisie] believe they already own the world. They have their own customs. They have their own sacred taboos. What they are doing is educating us, the dinosaurs who still stumble around until we finally collapse and die, about how they will change everything once they seize control. They, we are told, come from the culture of the internet. We are history.

Some say that this is just typical generational squabbling, as our father said of us and our grandfathers of them. It means nothing, and the children will mature when the responsibility of carrying on is placed in their hands. They will manage, as did we and our fathers before us. This is wrong. The World Ruler is right. The culture of the internet has changed the game.

....

My child commenter, the World Ruler, is wrong, yet right. There is a culture of which I am not a part. While I may know more about it then most people of a certain age, it moves so quickly and morphs in ways I would never anticipate that it's impossible to stay on top of it while watching from the outside. And I have no delusion that I'm not on the outside.

By denying this is happening, by denying this is a problem, by believing that support, encouragement and acquiescence is enough to overcome the Slackoisie, we do our children a horrible disservice. Life is not limited to what happens on a computer screen. By the time they realize that every problem they face, and they will face as many as we did, does not have a magic bullet solution that can be expressed in 140 characters of less, they will have done themselves grievous harm. We need to stop encouraging this now. It's not just a harmless prank. If we help to perpetuate this immaturity, they will never grow up and take responsibility.

Mark Bennett offered some observations on "worldruler" and his generation's expectations that online, anything goes and goes without consequences:

My own theory of this cultural divide: as we get farther and farther from the Great Depression, America’s young become more and more comfortable that their basic needs will be met without a struggle. This leaves them free to focus on entertaining themselves with anonymous comments and practical jokes.

There are no “sacred taboos” in such a world. Lying is okay in the context of a prank, so the Amazon-bombing of Amy Alkon (who may very well be a repugnant human being) seems to them a perfectly appropriate response. In this new online world, perceived transgressors are not entitled to common decency.

....

The culture clash is between those who have character in the real world, and expect others to behave with character online; and those who don’t; between those who view near-universal online anonymity as a detriment, and those who view it as a benefit.

Oddly, the same clash could be described as being between those who treat the internet as a serious extension of meatspace, and those who don’t. Everything anonymously written on the internet suddenly makes sense if it’s labeled “for entertainment purposes only.”

That’s why we need have no fear that Scott’s World Ruler and his ilk will ever actually rule the world. No matter how carefully they craft their pseudonymous online personas, those personas will not (except in rare pathological instances) help the people in the real world get elected, hired, or even laid. Should the actual people accidentally reproduce, those personas will not help them feed or protect their offspring or themselves.

Brian Tannebaum has been a regular critic of the younger generation's sense of entitlement, both in their use of social media and in the practice of law. This week, however, he had occasion to praise the efforts of one young attorney, Bret Lusskin, who's taken his professional fate into his own hands and won (at least for now) an impressive victory, successfully challenging the use of red-light cameras by a Florida municipality:

David versus Goliath.

The city will most certainly appeal, and maybe win.

But for today, Brett is the victor, and his victory may affect red light cameras across the country.

Regardless of the final outcome, I trust Brett is in a much better position today than those of you reading this from a couch, or a Starbucks, lamenting why no one thinks you're entitled to a career.

We may take the younger generation to task now and again for the manner in which they've changed — or think they've changed — things online and off in the practice of law. Rick Horowitz has written often about a much more important concern — the mistreatment of the very young by those involved in the "justice" system. This week, he discussed in considerable and compelling detail the shameful practice of his local courts in permitting the unnecessary shackling of juvenile defendants:

Shackles have no place in the courtroom, particularly in the juvenile courtroom. If we paid more than lip service to the law, I would not even need to write this post. For the law clearly states:

No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. (California Penal Code section 688.)

In this situation, it is impossible to argue — with a straight face and an honest heart, anyway — that shackles are “necessary for [the] detention” of any juvenile in the Fresno County Juvenile Court.

....

[T]he truth of the matter is that the Sheriff’s Department decides who gets shackled and who does not. Any defense attorney — which, right now in Fresno means me — who challenges this decision will find that although everyone knows the reason is “policy,” the court will then give the deputies at least an hour after a challenge to come up with an excuse why “the court deems shackles to be required” in any particular case. Tell me, judge, if the law says that shackling requires a particularized reason and that the court cannot abdicate responsibility for this decision to law enforcement, then why does it take an hour after a challenge to find out the reason for the shackles?

I’ll tell you why: because we’re lying when we say that the real reason for shackles has anything to do with an individualized case-by-case decision of the court.

....

Shackling our kids teaches them that they are criminals. Don’t be surprised that when they come to see themselves this way, they become harder to rehabilitate. We aren’t just shackling their bodies; we’re shackling their self-image.

Our kids are routinely brought in in shackles because it is the policy of the Sheriff’s Department that they be shackled. No matter how much we — the court, defense attorneys, prosecutors, probation officers — pretend otherwise, it is the Sheriff’s Department which makes the decision. And that decision is based upon policy, although the judges, prosecutors and deputies are quick to collude in the lie that it is not if and when they are challenged. (I’m sorry, judges — especially the one who “inspired” this post — but I’m calling it a lie because a lie is just what it is. And you all know it.)

Off the record and in unguarded moments, this is readily admitted. When I first started objecting, I even got statements about this on the record. The more challenges I bring, though, the more careful everyone becomes with the way they couch their explanations.

Frankly, that’s a further reason the court should be ashamed.

Where Horowitz was particularly concerned with the treatment of juveniles in his local courts, Norm Pattis commented on their treatment by the law more generally, especially the practice of many states to define many typical juvenile behaviors as sex offenses:

The Pew Research Center's Internet & American Life Project reports that 18 percent of 800 youths aged 14-17 with cellphones reported receiving "sexually suggestive" nude or semi-nude images of someone they know. I suspect the number understates the extent of sexually charged horseplay on cell phones among the nation's youth. But tell me, truly, do you really think each and everyone of these kids is a criminal, or even a sex offender?

....

It's hard to say where law enforcement stands on the issue. West Hartford Police Chief James Strillacci, speaking for the Connecticut Police Chiefs Association, said officers use their discretion in dealing with sexting. Officers are trying to protect children from the unforeseen consequences of their actions, he said.

But it is small comfort to leave discretion about whether to charge a crime, whether felony or misdemeanor, in the hands of a cop. What such discretion typically means is that the cop's kids and his friends get a pass. Those who are unpopular or unconnected stand a greater chance of falling on the wrong side of police discretion.

I don't want to look a gift horse in the mouth, but why stop at lessening the penalties associated with sexting between consenting minors. Why not decriminalize it altoghter. It shouldn't be a crime to be be curious.

Lyle Denniston explained that a recent ruling by the Washington Supreme Court has raised the stakes (or at least heightened anticipation) for the U.S. Supreme Court's current-term consideration of the McDonald v. Chicago Second Amendment matter:

Washington’s state supreme court, deciding an issue that the U.S. Supreme Court will soon face, ruled on Thursday that state and local governments must obey the federal Constitution’s Second Amendment — protecting an individual right to have a gun. “This right,” the state Court ruled over two Justices’ protest, ”is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice.”

....

While the majority said it was not settling on a specific standard for judging the constitutionality of a particular state or local gun control law, it did refuse at this point to embrace the toughest test — that is. finding any such law invalid unless it could satisfy “strict scrutiny.” It adopted a mixed level looking partly to history and tradition as it upheld a state law limiting gun rights of children under age eighteen. The level-of-scrutiny question is one that the Supreme Court may or may not decide when it rules this Term on McDonald v. Chicago (08-1521).


The question of whether the Second Amendment is a restriction on state and local gun control laws is directly at issue in the McDonald case, now set for oral argument before the Supreme Court on March 2. At this point, it is not clear whether the Court, even if it extends the Amendment’s reach, will establish a test for judging when a state or local law violates the personal right to a gun.

Whether Justice Antonin Scalia will participate in that decision was a matter of speculation by a couple of bloggers this week, who considered Scalia's prior comments concerning the applicability of the Second Amendment to the states. Writing at The Wall Street Journal's law blog, Amir Efrati wondered whether Scalia would "flip-flop" on a previous opinion he described in print:

In his 1997 book, “A Matter of Interpretation,” Scalia wrote that he viewed “the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms.”

Yet, he added, “properly understood, it is no limitation upon arms control by the states.”

Now a claim to the contrary—that the Second Amendment does limit arms control by the states—is being decided.

Does Scalia still believe what he wrote? Through a court spokeswoman, Scalia declined to comment to WSJ.

Damon Root felt that Efrati's framing of Scalia's choice was "imprecise":

[W]hat actually matters is Scalia’s view of incorporation under the 14th Amendment. That’s where things get interesting. As the legal scholars Ilya Shapiro and Josh Blackman note... Scalia has yet to vote in favor of incorporating a right against the states via the 14th Amendment’s Due Process Clause. In fact, he’s been a sharp and persistent critic of the Court’s incorporation jurisprudence (so have many other conservative legal theorists and activists).

But does that mean Scalia will have to “flip-flop” in order to apply the Second Amendment to the states? Not if he follows the text and history of the Privileges or Immunities Clause. Although it was notoriously gutted by the Court in the 1873 Slaughterhouse Cases, the Privileges or Immunities Clause was specifically designed to protect individual rights from abusive state and local governments—including the right of armed self-defense.

Justice Scalia's informal views on prospective legal topics enjoyed some widespread discussion recently when Eric Turkewitz published Scalia's response to his brother, a screenwriter, concerning the legality of a hypothetical secession scenario; this week, Turkewitz returned from vacation to see the furor his post has caused and noted that other justices had also responded, although not to the substance of the question. In a follow-on post, Turkewitz highlighted one aspect of Scalia's response — that judicial resolution of the issue was unlikely because "it [is] difficult to envision who the parties to this lawsuit might be" — and suggested a possibility:

Well, let me take a crack at envisioning it: The United States is not party to the action for secession. Rather it is State v. State. Because if one state quits the union the others are saddled with the quitter's share of the national debt. The other states, being unhappy about Maine (or Texas, Vermont, South Carolina, etc.) shirking its obligations, sue the departing state for its share.

And they bring that suit in the Supreme Court since the court has original jurisdiction to hear matters "between two or more states." There isn't any need for years worth of lower court legal wrangling, which is a nice bonus when writing a comedy for the big screen.

In fact, it's this "It's the money, stupid" plot line that my brother was using when he wrote to the justices, presaging the conservative Tea Party movement by three years. The set-up in the story, in a nutshell, has three University of Maine stoners in a midnight stupor in desperate need of a political science paper for the next day. They write up a manifesto on the vast sums of money that Mainers owe due to the rapidly escalating irresponsibility in Washington, and then urge Maine to join Canada. Manifesto, of course, is the charitable word for rant. The rant hits the college rag. The local paper picks it up on a slow news day, it strikes a chord with many and people press their state government to address the issue, which ultimately goes to a state-wide referendum as the political farce takes off.

....

But wait!, I hear you say regarding the legalities. If a state has left the union then the suit is no longer "between two or more states." An exiting state would most assuredly claim that the high court doesn't have jurisdiction to hear the matter. Lack of jurisdiction is a common defense in suits, and a court must do an analysis to determine its merit when raised.

And therein lies the issue of how secession can land before the Supremes; the court must resolve a jurisdictional issue. In order for the court to resolve the merits of the money suit they must first decide whether or not the exiting state has legally left. If the state has legally left, the court can't hear the case because it is not between "two or more states."

It makes sense to me, but then the silver-tongued Turkewitz could probably sell ice to eskimos or carry coals to Newcastle. He's probably waiting right now for Justice Scalia's response, which should arrive any moment, tied to a brick thrown through Turk's window.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Zazzle.com, TheWho.com, and Paris Odds n Ends Thrift Store.

I am not a Frankenstein. I'm a Fronkensteen.

Dr. Frederick Frankenstein: What a filthy job.
Igor: Could be worse.
Frankenstein: How?
Igor: Could be raining.

Young Frankenstein (1974)

These days, practicing law, at least in some larger firms, is a filthy job... with rain. Jordan Furlong has long been amongst the more astute observers of the skewed economics and broken business models of many BigLaw firms and this week he hosts Blawg Review #252 at the Law Firm Web Strategy Blog. Furlong likens the themes of the classic monster novel Frankenstein to many practitioners' reservations about new technologies:

Frankenstein explores our love-hate relationship with the things we create and with our ability to do so, a theme that has surfaced repeatedly in popular fiction ever since. As technological advances accelerated over the last 60 years, so have the fictional expressions of that theme. A similar arc can be detected in the legal profession — the more sophisticated and powerful technology becomes in the law, the more upset many lawyers become about the rise of the machines and the threats they pose, taking away lawyers’ work, robbing the law of its humanity, and even replacing lawyers altogether.

Highlights of this week's edition of the carnival of legal blogging include the fiscal challenges prospective jurors face, the dangers of sharing too much via e-mail and outsourcing, and invasions of privacy by social media sites.

The South Florida Lawyers blog will host Blawg Review #253 next Monday.

TGIS: Thank God It's Schadenfreude! (258)

This week's joy in the misfortune of others comes courtesy of CNN (from Thursday, February 18; link good at time of posting):

A man on Jazz Air, a regional airline in Canada that also serves U.S. cities, was reportedly kicked off a plane earlier this month because of his strong body odor.

"People were just mumbling and staring at him," said a woman who sat near the man, according to The Guardian, a newspaper in Charlottetown, Prince Edward Island, where the flight originated on February 6. It was a very uncomfortable situation, she added.

Another passenger described the smell as "brutal."

Jazz Air spokeswoman Manon Stuart confirmed that a passenger was "deplaned" from the flight, but she could not provide specific information about the person involved or the reason why he was asked to leave because of privacy issues.

"As an airline, the safety and comfort of our passengers and crew are our top priorities. Therefore, any situation that compromises either their safety or comfort is taken seriously, and in such circumstances, the crew will act in the best interest of the majority of our passengers," Stuart said.

[Previous TGIS]

A Round Tuit (19)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

The detention of prisoners captured during the "War on Terror", the legal classification of those prisoners, and the authority of the courts to limit executive authority as exercised in connection with those detentions has been a frequent topic for legal debate both here and abroad. So it was again this week. The ongoing detentions at Guantanamo Bay, Cuba have been tested several times by American courts, most notably by the Supreme Court in the Boumediene decision; each time, the detainees have been generally successful in challenging the government's authority to hold them as so-called "enemy combatants" either without trial or with only a trial before a military tribunal. As Lyle Denniston wrote this week, the latest Constitutional question raised by our Guantanamo policies has reached the SCOTUS' doorstep:

The question, simply put, is this: When does the judicial power to decide the legal fate of military detainees end so that, thereafter, their fates rest within the discretion of the Executive Branch (with or without action by Congress)? That question has permeated the case of Kiyemba v. Obama (08-1234) — the first direct test of Boumediene set to be heard by the Court — at least from the time it was granted last October. Sometimes, though, that case has seemed to focus on whether a federal judge could order a detainee transferred to live, perhaps temporarily, inside the U.S. But Friday’s order by the Justices, calling for new briefs, brought it front and center again.

The Court’s order directed lawyers on both sides to submit new papers by next Friday afternoon discussing “the effect, if any,” of recent developments involving potential resettlement of the seven Chinese Muslim Uighur detainees still involved in the Kiyemba case. That translates into the question of whether the Court should go on to hear and decide the case (now set for argument on March 23), or put an end to it without a ruling.

Already, the two sides in the case have telegraphed what likely will be the main point of their new briefs. The Uighurs’ lawyers have contended that recent developments do not remove the need for the Court to decide the case; the federal government’s lawyers have argued that those same developments show that the case has changed so greatly that it should simply be dismissed without a ruling.

If it is ended, the practical — and legal — effect could well be that federal judges not only will not have the last word on the Uighurs’ plea for release, but also may lose that authority for most if not all of the remaining prisoners at Guantanamo. Release, as a real-world possibility, would then depend upon what arrangements, if any, the Executive can make with other countries to accept detainees — and the outcomes will have little or nothing to do with whether the detainees were entitled, as a legal matter, to be released.

The treatment of those in American custody has often been questioned and criticized; while some of that criticism may be simply ammunition for larger criticisms of the American-led war efforts, several incidents in particular — including some questionable "extraordinary renditions" and the scandal at the Abu Ghraib facility in Iraq — have made closer scrutiny more necessary. Whether British national Binyam Mohamed's case is one in which torture occurred remains an open question, but the decision of the British courts to expose heretofore confidential evidence about his detention has rattled the British and American intelligence officials. Charon QC reported the initial decision and its subsequent revision, which relaxed some particularly damning language concerning MI5's knowledge of the conditions of Mohamed's treatment (their participation is not alleged). In his always-excellent "Rive Gauche" post, Charon framed the issue thusly:

The legal issue is clear. Do we abide by international law, the European Convention on Human Rights, our own domestic human rights laws or not? The moral issue, which causes the greatest difficulty for many is…should we when those who would do us harm disregard it? Reading comments from members of the public on Times coverage of the issue reveals many who regard Shami Chakrabarti, Lord Bingham, the Supreme Court, the Court of Appeal and a host of human rights lawyers as a thorn in the side of ‘good governance’ and some even go so far as to suggest that our courts are pro-Taleban and lackeys of the left-wing.

There are, whether we like it or not, many in this country who would happily allow our military and intelligence services to use ‘whatever means are necessary’ to destroy terrorism and if that includes torturing a few people to exact information which will save the majority, so be it.

Orin Kerr mentioned a recent case wherein a rather routine-sounding traffic stop and a series of ambiguous questions raised Fourth Amendment issues. In the incident, the officer asked six times for consent to search the motorist's vehicle, each time it seems using differently-worded questions. Despite these variations, five times the driver, Williams, denied his consent; it seems that these denials were not clear enough for the officer, as he repeatedly pressed Williams for a "yes or no" answer. The sixth time he was asked, "Do you mind if I look?" Considering his previous refusals, it's safe to surmise that Williams did mind — that is, he did not want his vehicle searched; pressed for a yes or no answer, he answered "yes". Despite the wording of his question, the officer took that answer as consent to the search and removed Williams from his vehicle.

Because video of the incident enabled the court to know the precise wording used by the officer, it was held that Williams' answer did not constitute clear and convincing evidence of his free and voluntary consent to the search: "The officer had not asked 'may I search' but rather 'would you mind if I look?' Answering 'yes' to the latter meant that appellant did mind." Scott Greenfield highlighted two aspects of the case — first, that the video evidence was necessary to overcome the officer's faulty memory of (charitable view) or faulty testimony about (uncharitable view) the traffic stop, and second, that the court arrived at its conclusion only with difficulty, having more-or-less ignored the five prior denials of consent to focus on the final exchange:

My impression is that Orin see this decision as a curiosity, a decision of interest. I see it as a brutal reminder of the failure of testimonial evidence by police officers at suppression hearings. What distinguished this case was that the officer's words were captured on video.

....

Aside from the rarest of instances, where an officer takes the stand and testifies to an exchange that actually involves the potential for a real exchange, there is no question that can be asked that will elicit anything other than the officer's conclusory testimony.

The only way to challenge this testimony is to put the defendant on the stand for a swearing contest. The hope, if you can call it that, is that a judge might be inclined to believe that defense counsel wouldn't be so foolish as to expose his client to cross-examination unless it was worth it, that the testimony is true. While this can happen, it's still a long shot. A very long shot. Few judges will take the chance of siding against the cops. They almost always go with the odds.

....

It's heartening to read about the decision, where the court parsed the language to recognize that the vagaries of a question fail to satisfy the requirement of demonstrating free and voluntary consent. It might have been more heartening had the court never reached the 6th attempt by the officer to obtain consent, the 5 prior failures to give it being more than sufficient to demonstrate that the defendant did not wish to consent, and that the continued pressure by the cop to get him to submit to the shield vitiated any possibility of free and voluntary consent. But I will take a good decision as it comes, even if it could have been better.

Despite his inability or unwillingness to understand Williams' denials of consent to his search, at least the officer in that case bothered to ask. Jeff Neuburger discussed a case pending in the federal courts in Philadelphia which may establish the FBI's right to receive individuals' mobile phone location data from service providers without demonstrating the degree of probable cause required by the Fourth Amendment or allowing notification of the those individuals:

The many millions of cell phone users in the U.S. may not realize that their phones are giving away their location about every 7 seconds when they receive and return a “ping” from the nearest cell phone tower. A single “ping” indicates that the cell phone is within about a three-mile radius from the tower, but in metropolitan areas in which cell phone tower signals overlap, triangulation of these pings from multiple towers can narrow that down to about fifty feet.

Not only are subscribers likely unaware that this data is being generated in the first place, they are also unlikely to be aware when their data is actually obtained by law enforcement authorities. Unlike a law enforcement search of a home or office where police officers show up in person and serve a warrant on the occupant, a warrant or other order seeking the turnover of cellular subscriber data is served on the carrier, which has no obligation to notify the subscriber that such a demand has been made. On the contrary, such orders and requests often include a gag order prohibiting disclosure and the proceedings by which they were granted are often sealed from public access.

If the Fourth Amendment seems to be on shaky ground this week, things aren't looking brighter for the Fifth Amendment, at least in Summit County, Ohio. Paul Kennedy reported the application of a questionable law in that County:

Upset that motorists suspected of driving while intoxicated weren't cooperating with police and providing incriminating evidence (i.e. blowing into the state's breath test machine), Summit County (OH) Prosecutor Sherri Walsh authored a bill making a crime for a motorist to refuse the breath test.

Vitaly Simin became the first person prosecuted for and convicted of tampering with evidence because he refused to blow. He was sentenced to three years in prison for that and his sixth DWI conviction.

....

Refusing a breath test is not tampering with evidence. The evidence of Mr. Simin's intoxication consists of the officer's observation of Mr. Simin's driving, the smell of alcohol on his breath, his admission to drinking, any other observations that might be consistent with intoxication and how he did on any police coordination exercises that were administered. Mr. Simin's alcohol concentration is only evidence if he a breath or blood sample is taken and tested -- if there was no test, there is no evidence of his alcohol concentration. If there is no evidence, there is nothing with which to tamper.

Discussing the same case, Dane Johnson was similarly dismissive:

Am I missing something here? How is refusing a breath test tampering with a government document? Doesn't it seem that you would have to actually alter, change, destroy, or manipulate a document in order to tamper it? Even more basic, wouldn't there have to be a document already in existence or one that you fraudulently made to alter or tamper with?

....

Since when did our Constitution require us to aid in a police investigation? Is the Fifth Amendment to the United States Constitution still around? Funny, I thought we were all protected in our right to remain silent and not aid the Government in convicting us.

Taking a break from fighting the good fight to think about fighting the good fight, Gideon mused about Boykin v. Alabama, which required evidence on the record that guilty pleas are intelligently and voluntarily made; he discussed one question in the typical "canvass" used by trial courts to satisfy the Boykin requirement:

[A]s part of the plea canvass, a judge will routinely ask defendants the following question: “Are you satisfied with your attorney’s representation of you?” This question, to me, is distinctly different from the practice book requirement that the defendant be aware that he is entitled to the effective assistance of counsel. The latter is directed at informing the defendant that if he proceeds to trial, he will have available an attorney to conduct the trial for him.

The question of satisfaction, on the other hand, seems to have no basis in any Constitutional requirement....

You can imagine the gamut of responses to this question: A perfunctory “yes”; a begruding or resigned “yes”; a hesitant “yes”; some hemming and hawing followed by “yes” and the rare “no”.

....

Which brings me to my question(s): What, exactly, is the point of this question? It certainly cannot be to prevent any future habeas corpus litigation alleging ineffective assistance of counsel. The administration of a Boykin canvass hardly precludes future arguments that the plea was not voluntary. I’ve seen prosecutors attempt to question habeas petitioners whether they answered the question in question in the affirmative, as if it were evidence of a lack of [ineffective assistance of counsel]. But they are not serious arguments and don’t hold much weight in the eyes of even the most pro-state judges.

Jamison Koehler also had some thoughts about how treatment of guilty pleas varies from one court to another, describing the differing approaches he witnessed from two local judges:

It’s no coincidence that the law requires that the guilty plea – a waiver of the defendant’s constitutional right to a trial – be knowing, intelligent and voluntary. The defendant needs to make an educated, considered decision. He or she needs to be comfortable with a decision that may affect him or her for the rest of the defendant’s life. At the very least, from a purely practical standpoint, the defendant who is not comfortable with the decision may balk during sentencing or attempt to withdraw the guilty plea later.

So this judge gives the defendant’s attorney plenty of time to work with the defendant in arriving at the right decision. And there is no sense of irritation or annoyance when the defendant decides to exercise his or her right to trial.

The result is that, instead of clients being rushed into a hasty, ill-considered decision and then leaving the courtroom regretful and angry at the whole system, the defendants who leave this judge’s courtroom do so with an understanding of what they did and a comfort level with the decision they just made. Many of them smile and thank the judge after pleading guilty, even as the sheriff is putting on the handcuffs and taking them into custody. They’ve been heard.

The concept of a greatly-broadened or even universal right to a public defender in criminal matters has been discussed in the legal blogosphere from time-to-time. This past week, Norm Pattis evangelized the concept of universal public defense and announced the start of a new blog to champion the idea:

It started as an inspiration and has metamorphosed into a conviction: If the state is to be represented in each and every criminal prosecution by prosecutors, experts and investigators wholly funded, then why aren't defendants? We've begun a journey toward the goal of equal justice for all by assuring that indigents have the right to a defense. Why not a public defender, or, at the very least, a state paid defender for all accused of a crime?

Sure, it sounds like a hare-brained idea at first blush. After all, services for the indigent are scarcely funded. But as a goal, no American should be required to face the state armed solely with resources he or she can muster. Lawmakers hell-bent on criminalizing their own shadows ought to be compelled to ante up for both sides of the aisle.

Mark Bennett was generally supportive of the idea, albeit not for precisely the same reasons:

My issue with the criminal justice system is a different one than asymmetry.

The system now requires society to pay for due process only for those who are indigent. Those who are not indigent are forced to pay for their own due process (in the form of a lawyer). Those with plenty of money do fine, and the working poor get screwed. But they are all presumed innocent.

Why should the (presumptively) innocent, whether wealthy or working-poor, have to dig into their own pockets to defend against charges that are (presumptively) false?

Scott Greenfield cautioned about the collateral effects of a universal public defender program, advising that (depending on the degree of universality) such a change would either eliminate orjeopardize the existence of the private criminal defense bar and would leave criminal defense effectively subject to the budgetary and political whims of "the Man":

[T]his Utopian ideal, free criminal defense for all, may not be the panacea desired. Just as the defense provided poor people falls short of that which the wealthy purchase now, for reasons wholly outside the control of their lawyers, it smacks of a race to mediocrity for all. Too many defendants, too much need, not enough money, would plague the system. Price control over the costs would chase many away from the practice, from lawyers to experts who won't work for state dictated rates. Just because a bureaucrat thinks that $27 an hour is plenty doesn't mean the rest of us have to go with the program.

More than that, I fear giving the government this much control over the criminal defense bar. Some will sign up because it's welfare for lawyers, diminishing the need for lawyers to perform their best to satisfy their client's needs. When clients don't pay, lawyers don't perform. It happens.

If the criminal defense bar becomes dependent on the government for its livelihood, we likewise become dependent on the government for our existence. One day, somebody gets it into their heads that they don't like us anymore and, poof, we're done. One bad Supreme Court decision and Gideon is toast. A vital private bar, beyond the reach of the government, must continue to exist if we're going to be positioned to fight for the accused. If our children's next meal depends on government largesse, we have sold our independence for good. We're just another cog in the government wheel.

Put us on the government payroll and we work for the Man. Do we really want to serve the Man? Not me. I serve my client, no one else.

Current public defender Gideon noted that a greatly-expanded defender program would need to be well-funded, something which many states' defender programs are not:

Of course, the application of Gideon has been uneven over the years. Some states have strong public defender systems and some provide counsel in a piecemeal, arbitrary and haphazard manner. Much has been written, and continues to be written, about the state of indigent defense.

Without adequate funding, the reality of Gideon’s promise will fall far short of the ideal. Of course, public defenders aren’t the only players in the game: there is the private defense attorney, who existed long before Gideon provided a way for me to have a job. People with some income are free to hire such an attorney and will always continue to be so.

....

There are three classes of criminal defendants: the very poor, the rich and those in between. The first two we need not worry about: they will always have counsel and will always have the resources to fight their prosecutions.

....

Which brings us to the one category that would really benefit from some modification of the public defender system: the poor-by-everyone-elses-standards-but-not-poor-enough-to-get-a-pd.

This is the class of defendants who make a little too much to fall below the artificially low income threshold and don’t make nearly enough to realistically hire a lawyer and fund the tools of an adequate defense. It is these people that we need to be worried about. Several times have I expressed disgust at the indigency cutoff and the arbitrary enforcement of these “guidelines”. What might get you counsel in one court, county or state may not get you counsel in another. There needs to be an honest and serious rethinking of the guidelines.

Greenfieldagreed but remained unconvinced:

While moving the bar of indigency upward would alter the calculus somewhat, and rid us of the assumption that poor means dirt poor, and anyone who isn't dirt poor is wealthy enough to afford to pay for a criminal defense, it reduces the number of people who fall into the no-man's-land of criminal defense but does not eliminate the problem. People who are solidly middle class, maybe even upper middle class, really aren't equipped to handle a serious criminal defense.

....

My best guess is that such a system will virtually eliminate the existence of a private criminal defense bar. For the vast majority of private criminal defense lawyers, who aren't the short list for the prosecuted rich, the choice will be sign up or find some other way to earn a living. There simply won't be enough regular retained criminal cases for them to maintain a practice. At that point, the government will control the purse strings of, say, 98% of the criminal defense bar.

Speaking only as a naïve observer without any particular relevant experience with these issues, I wonder whether a middle approach is worth considering. Gideon's suggestion that disposable income be considered when determining eligibility for public defense is a reasonable one. We need to set reasonable threshholds to begin with and ensure that those threshholds keep pace with economic reality over time. Similarly, some consideration of the true costs of an effective private criminal defense must be made, probably on a case-by-case basis, to ensure that more complex matters are not treated the same as routine criminal offenses. I don't agree with Mark Bennett's suggestion that the legal presumptions about a defendant's innocence require a fundamental change in the way criminal defense is funded, nor do I think that reasonable income threshholds need to be jettisoned in favor of a truly universal system like that envisioned by Norm Pattis.

The primary problems with the current approach seem to be that eligibility threshholds are often unfair and unreasonable ones, established at artificially low levels to skew criminal matters in the state's favor, to better control budget demands, or simply because establishing more reasonable threshholds is not a political priority; rather than adopting a fundamentally different approach, addressing those problems seems like a more palatable first step. The private criminal defense bar needs to remain vital in the overall system, both for its independence from state control and to provide a genuine alternative for all criminal defendants and I wonder whether something like fee-shifting could ensure that the costs of private defense do not penalize those defendants who successfully challenge their charges. Perhaps where the costs of a private defense are borne by a defendant, these should be reimbursed to some degree by the state when the result of the trial is something less than a conviction.

As I said, I'm naïve, and on this topic at least I can't wait to find out just how much so.

One of the more interesting topics discussed this week was the legality of secession. Eugene Volokh played the part of South Carolina, starting the whole secession crisis by addressing the question whether the legality of secession was "settled" by the surrender of the Confederate army at Appomattox in 1865:

In principle, I agree that some sufficiently grave threats to liberty or security may justify secession — if we’re talking about historical locales, think Philadelphia 1776 or Yorktown 1781 — but we’re extremely far from that, especially reckoning the liberty, security, wealth, and greatness costs of disunion. Today, secession is politically a total nonstarter, and for very good reasons.

....

And beyond that, even if there is some precedent of some sort properly set by the Civil War (and I continue to disagree that there is), any such precedent can’t tell us much about consensual secession. The talk I occasionally hear of secession (again, talk that I think is not really serious) is not about departure in the face of military opposition — it’s about creating a political sentiment in some place in favor of seceding, and a political sentiment in the rest of the country in favor of allowing the secession. The results of a bloody civil war tell us nothing about the propriety of a Velvet Divorce.

Appomattox might well have a continuing effect (as does Philadephia) on the psyche of today’s Americans, and of future Americans. Its immediate effect also deeply influenced the economic structure of the nation, and the political structure of the nation’s political institutions; I suspect this also makes future secession less likely.

But that’s not a “settlement” of the secession question for the centuries. And there can be and should be no such settlement.

Ilya Somin, co-Conspirator at The Volokh Conspiracy (and never has that blog title seemed so appropriate as with this topic), agreed in principle and suggested a moral element to the legitimacy issue:

...I don’t think that secession is either clearly unconstitutional or always morally wrong. I agree with Eugene that secession at this particular moment in American history is probably both infeasible and likely to cause more harm than good. I don’t think, however, that that will necessary remain true indefinitely.

....

Not all secession movements are defensible. As I see it, their merits depend crucially on the nature of the regime they are seeking to secede from and the quality of the one they are likely to establish. For this reason, I am one of the relatively few Americans sympathetic to the general idea of secession who also believes that the Confederate secession effort of 1861 was utterly indefensible. The Confederates seceded for the deeply unjust purpose of defending and perpetuating slavery, a point that I discuss in detail here and here. For that reason, among others, their defeat and the resulting abolition of slavery was a far better outcome than a Confederate victory would have been.

Justice Antonin Scalia, for one, disagrees. Eric Turkewitz has the proof, courtesy of his brother Dan, a screenwriter:

Back in 2006 he started working on a political farce that had Maine seceding from the United States and joining Canada.

Bro was well ahead of the tea partiers in contemplating impending problems as we racked up massive debt. This doesn't get him an agent or a foot in the door of Hollywood to get his screenplays made into films -- it isn't what you write, but who you know -- but it does make him a prophet of sorts.

So, on a lark, he wrote to each of the 10 Supreme Court justices (including O'Connor) with this request:

I'm a screenwriter in New York City, and am writing to see if you might be willing to assist me in a project that involves a unique constitutional issue.

My latest screenplay is a comedy about Maine seceding from the United States and joining Canada. There are parts of the story that deal with the legality of such an event and, of course, a big showdown in the Supreme Court is part of the story.

At the moment my story is a 12 page treatment. As an architect turned screenwriter, it is fair to say that I come up a bit short in the art of Supreme Court advocacy. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts. I'm sure you'll find the story very entertaining.

I told Dan he was nuts. I told him his letter would be placed in the circular file. And then Scalia wrote back. Personally. Explicitly rejecting the right to secede:

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

Another hypothetical also caught my eye this week. Criminal defense blogger Blonde Justice has occasionally been asked, hypothetically, how she would feel if someone she'd successfully defended later committed murder; she wrote that that hypothetical's hypothetical no more for her:

Personally, this client was always nice to me - he was always a respectful, kind client. And he was always accompanied by his girlfriend. She was very pretty and nice, and just seemed to have it more "together" than he did. If I relayed an instruction or a court date to her, I knew the message would get through or that my client would show up.

Throughout the case, I wondered if she knew how bad his criminal past was. But, finally we had the hearing, and she sat in the audience through the whole thing as my client's whole criminal history was reviewed in great detail. We won, and at the end, when we walked out, she thanked me profusely and was very appreciatively, and didn't seem the least bit shocked or confused at what she had heard.

I heard recently from a former colleague that the client's girlfriend had been found dead, and that my former client had been arrested for her murder....

So, how do I feel? I feel sad. The client's girlfriend seemed like a nice person. I don't like it when people die, especially nice people. I feel disturbed. I guess even though I have represented a few people who have previously been convicted of murder or manslaughter (including this client), I still imagine that it takes a different kind of person to be able to kill someone, and that somehow I could recognize such a person. That seems silly, I knew he had previously been convicted to killing someone (I never asked him whether he did it, or whether he felt that he had been falsely convicted, or anything like that), so it would be a fair assumption that he was capable of killing someone - but I guess that's just a false assumption that most people have - that if we met a murderer, we would know. That every murderer would look like Charles Manson with a forehead tattoo or something.

Do I feel responsible? Nah, not really. It's hard to say whether I'd feel differently if my case had been responsible for him being released from jail, and that, but for my defense, he would have been in jail or prison and unable to kill his girlfriend.

Well, that's all, folks. Yes, I know that this week's post is a bit more abbreviated than usual, but it's not my fault; you need to blame ABC for moving Lost to Tuesdays, when I used to write these. What I need now is a counterpart Colin, perhaps composed entirely of intelligent black smoke, who exists in an alternate reality wherein Lost is still on Wednesdays. Polar bears and enigmatic numbers are strictly optional.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Law Offices of David Jacquot, Wikipedia, and Paris Odds n Ends Thrift Store.

The Host with the Most

It takes a small army of people to mount a successful Winter Olympics (and even more when Mother Nature is uncooperative) or to host a successful Winter Olympics-themed Blawg Review. While their hometown manages the former, the attorneys of Clark Wilson LLP accomplish the latter with Blawg Review #251, hosted this week at their Canadian Trademark Blog.

For those of us who cannot experience the Winter Olympics because we are pitifully unathletic, are unable to travel to Vancouver this month, or are are obliged to watch NBC, whose Olympics coverage does not actually show Olympics events, this week's Blawg Review gives us a sense of what we're missing. Highlights include the sights of Vancouver and the sites where local cannabis is easily procured, the infrastructure investments for the games and the litigation these have spawned, and the "green" Olympics and the green the Olympics organizers expect in exchange for advertising use of Olympics-related terms.

The group bloggers at the Law Firm Web Strategy Blog will host next week's Blawg Review.

TGIS: Thank God It's Schadenfreude! (257)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Saturday, February 6; link good at time of posting):

Communication skills were clearly lacking in a woman who police said tried to rob two Memphis credit unions.

....

A teller couldn't understand the would-be robber's mumbled commands in her first attempt Tuesday. Police said the woman threw a holdup note at the teller, then ran from the building.

A few hours later at another credit union, a teller asked a woman several times if she needed help as the woman fumbled in her purse, then handed over a note. When she also pulled a gun, the teller left.

The woman ran outside, tripped and fell, dropped her gun - then got into a car and left.

[Previous TGIS]

A Round Tuit (18)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Was it because a legal technology conference took place in New York or a legal marketing conference took place in Seattle? Both? Neither? Whatever it was, this week seemed to have more than its share of debate about the character of new legal blogging and of legal marketing more generally. There were of course hurt feelings, accusations of bullying, and calls for civil discourse (meaning, unfortunately, an absence of criticism during periods of self-promotion).

In recent months, Thomson Reuters' FindLaw division has drawn fire from several bloggers for its use of questionable content and sloppily-written posts, packaged under names identical or similar to more established legal blogs, as marketing vehicles for their clients. No one has been more vocal than Eric Turkewitz, whose respected New York Personal Injury Law Blog acquired a less-respected counterpart in FindLaw's identically-named advertising pseudo-blog. Even before his experience with FindLaw's commercial blogging efforts, he was somewhat ambivalent about even more benign lawyer promotion programs. One such program, SuperLawyers, was the subject of a memorable post from last year after he was somewhat surprised to discover his name amongst the great and good; while vaguely proud of the recognition, Turkewitz was critical of the award's opaque selection criteria and processes. As he noted this week, Thomson Reuters' recent acquisition of SuperLawyers makes it unlikely that Turkewitz needs to worry about being selected again:

You see, folks, FindLaw will want it's big-paying customers to be included in the SuperLawyer listings. And since SuperLawyers thrives on the very expensive magazine ads that supplement its listings, and FindLaw has an existing catalogue of lawyers willing to spend heavily on marketing, those lawyers are real important. Some B-law grad was whispering the magic word "synergy" into the ears of the powers-that-be.

So while the purchase by Thomson West would seem at first blush to bolster the credibility of SuperLawyers, the company actually runs smack into an inherent conflict of interest that gums up the works. While it tries to build an objective rating system with SuperLawyers it is also taking big money for the FindLaw listings. And that is a big problem if you want to claim objectivity in ratings.

Over at Bob Ambrogi's Law Sites, he writes that Thomson West intends to build a Chinese Wall of sorts between the companies.

....

Will it operate independently? Ask yourself this: Do you trust any company that would exploit a dead child for ad copy on a faux-blog?

FindLaw's credibility is currently around zilch. And that means that everything that comes near it will be adversely affected. Thomson West will try to build up the SuperLawyer's brand, which already suffers from credibility problems. But as long as they keep FindLaw's dreck-blogs, they will run into continuing problems. And that is in addition to the conflict and credibility issues.

Perhaps Turkewitz needn't be so concerned that Thomson Reuters' FindLaw will taint and exploit the SuperLawyers awards; as Gabe Acevedo reported, at the LegalTech conference Thomson Reuters' people seemed surprised to hear of the acquisition, offering Acevedo only blank stares and runaround. When Thomson Reuters found its public relations legs, it confirmed to him that SuperLawyers' independence within the organization would be guaranteed. Acevedo remained a bit dubious:

Well, I guess now I can sleep soundly at night again now that that piece of the puzzle has been solved. SuperLawyers, whose purpose is to recognize some of the top lawyers in their respective fields, will continue to operate as an independent entity, with the minor exception that it will now be owned by a major corporation that markets its products and services directly to lawyers. An interesting acquisition indeed...

Many of us who began blogging in a less commercial era wonder that attorneys will pay thousands upon thousands of dollars annually to entities like FindLaw for what is essentially a rudimentary website and something which could be built and hosted for nothing. Still, we can understand that it may be worth paying a premium for something which looks more professional; paying a million dollars for something which makes you a laughingstock, however, just makes you a... well, a MoFo. Kashmir Hill wasn't alone when she wondered what Morrison & Foerster were thinking when they rolled-out their expensive new website recently:

Morrison & Foerster has fully embraced the moniker MoFo. And now the firm appears to be embracing a WTF theme for its website.

MoFo rolled out the new website recently. Tipsters say the new site took years and many dollars to create. The design budget is rumored to be $1 million. (We’ve asked the firm to comment on the cost, but it has not responded.)

The site, however, doesn’t look like a million bucks.

Some of the site's graphics need to be seen to be truly enjoyed, if not fully understood. A series of puzzles are intended to illustrate the strengths and values of the firm; unfortunately, many are a bit too open to interpretation. A Rubik's Cube and a "man at work" icon are intended to illustrate "acuity and diligence"; as Hill noted, "we'll solve your puzzles and clean up your shit" seemed a more apt solution. Another page invites visitors to click on a series of twenty-five reasons why prospective clients should select the firm. Strangely, the designer selected a gunshot noise to accompany each click, producing an overall effect which "feels like being in a drive-by shooting." All in all, it makes me happier with the aged design of Infamy or Praise, which is based on a free template offered by Blogger and has changed very little since I began this blog many years ago.

While a bad online impression can be costly and embarrassing for a large firm like MoFo, it's hardly going to sink the firm. The stakes for many solo and small firm practitioners online can be greater. While they aren't spending a million dollars on their sites, what they do spend on designers, marketers, and — ugh — ghost writers has a more pronounced effect on their bottom lines. It's understandable that increasingly-desperate attorneys would turn to marketers, buy into their sales pitches, and expect immediate benefits. A number of those folks have found that maintaining an online presence is hardly as carefree as their marketing consultants have led them to believe. Some of those who were told that legal blogging was marketing gold have been dismayed at the criticism their unabashed self-promotion has attracted from more established and reputable legal bloggers; when criticized, a few responded angrily, others thoughtfully, some not at all, and a few quickly folded their tents and left as quickly as they arrived. Scott Greenfield welcomed these newcomers to the legal blogosphere, but with a word of advice — the marketers have lied to you:

The choir is busy singing the praises of blawging and social media. Create a blawg and find happiness and success, goes the refrain. Write well and they will come. No one talks about the dark side.

....

Write something and someone may disagree with you, and do so publicly on their blawg. Promote yourself and someone may knock you off your marketing pedestal and make you look like a fool. Or worse. None of the cheerleaders mention that there is no guarantee that you will find love or adoration online. None mention that you may well find yourself the butt of a thousand eyeballs if your well-written blawg post is not well-received.

....

I get it. I understand why you're here. But I didn't promise to leave you alone to promote yourself unmolested. Whoever sold you on the idea but neglected to define "conversation" is responsible. Maybe you're responsible. Maybe you're thoughts would be best kept rattling around inside your head rather than oozing out of your keyboard onto a public blawg.

Rachel Humphrey Fleet was one of these newcomers; after her first post was criticized by Greenfield, she expressed her disenchantment with him particularly and blogging generally in the comments to his post and deleted her blog entirely. Discussing that dust-up, Mark Draughn offered some tongue-in-cheek advice to newbies about "surviving Scott Greenfield" and some perspective on the generation gap between legal blogging veterans and newcomers to the medium. While he suggested that times have changed somewhat — the newer bloggers tend to have a less confrontational and combative style of writing — and seemed to imply that some of the gap may not be reconcilable, Draughn provided a number of very reasonable suggestions for addressing, resolving, and avoiding conflicts online. Jamison Koehler is a relative newcomer who has quickly found his way, drawing both praise and criticism from established voices online. Koehler has demonstrated a willingness to respond to his critics thoughtfully and has made one of the more rational and measured defenses of marketing-aware legal blogging. This week, he offers other newcomers the benefit of his recent experience:

Unlike lawyers with more established practices, I personally do not feel that I have the luxury of blogging for the sake of blogging. Just like many other lawyers who are opening up a new firm, I find myself needing to devote every waking moment to the building of that practice. If I cannot justify use of my time on blog as a marketing device, it is hard to justify use of this time at all, no matter how much I might enjoy it.

I understand this may be short-sighted. It means that, in order to attract the type of people who might employ my services, I need to focus on local issues affecting criminal practice in D.C. And it may mean, as Greenfield warns, that my blog will remain an “orphan” in the blawgosphere, one of the thousands out there that nobody reads.

....

I may need to revisit all of this in the future. In the meantime, while my combined website/blog has not brought in a whole lot of new clients, the business it has generated has in fact been the difference between success and failure for my firm. If I need to add a few key search terms to a title or post to draw in more readers, that’s what I will do. And if it means I need to sit on the sidelines of the blawgosphere for a while, that is fine too.

With the LegalTech conference recently concluded in New York, Avvo ran its own conference in Seattle. Lisa Kennelly rounded-up a number of interviews LexBlog conducted with some of the more prominent names at the conference. One name not on that list was Sonny Cohen, a marketing consultant. Cohen objected to the criticism of the Avvo conference by Scott Greenfield and Brian Tannebaum (both of whom Avvo had invited to present but declined), which was displayed on an #avvo hashtag-produced "twitterfall". Cohen didn't appreciate the distraction and expressed that on Twitter and his blog:

Ironically, the essence of what these two harassers were saying was not incorrect. In fact, they had some great points about abuse of social media, thoughtless blogging and even the alleged “social media gurus” (SMG) who industrialize the process of building real human networks. However, as one who was present, what was clear was there was a mis-match between their sterotype of the interests of the attendees and the reality of what people were focused on learning and being taught. The flamers were flinging mud but they had the wrong target.

In the end, the rogue Tweeters were not effective but simply annoying, prompting @kaitlinjanusz to respond, “no one wants to hire attorneys who are malicious to other attorneys via social media. The avvocating conference is wonderful.” I, too, elected to offer my two cents, observing with some tongue in cheek, “Most diminished brand of the day: @ScottGreenfield. Forget it. I’m not referring any of my criminal friends for you to defend. #avvo.” After a few more insults directed at the conference organizers, the attendees and me, the squabblers went away – hopefully to do some legal business and not editorialize by remote.

Mark Bennett, for one, was amused by Cohen's outburst:

Cohen’s post, and his Twitter response to Scott, were overwrought and self-important to the point of narcissism. It’s Twitter; if someone says something you don’t want to hear, you can block it. Brian and Scott didn’t even know that Avvo was displaying the timeline on the podium. (Had they known, they would have had a lot more fun with it.)

Saving for another day modern Homo Internetus’s tendency to throw around heavy words like “harassment” in response to the slightest criticism: are narcissism and hysteria prerequisites for a job as an internet marketer?

The last word was, as it should be, Greenfield's:

The Avvo guys get it. Authentic doesn't mean blow kisses or smoke. That's not how lawyers roll, unless their brains have been consumed by the self-promotion endorphins caused by starvation and desperation, and they think that it will endear them to someone who will throw them some crappy case so they can pay the phone bill for another month.

....

To his credit, [Cohen] packed more into one little twit than any I've ever seen before. Unfortunately, it was also the singular most bizarre and disturbing demonstration of a failed grasp of reality that has come out of any marketer. Or in Sonny's case, a man who wanted to be a lawyer marketer but didn't hitch his mule to the wagon when he was still young enough to grasp that the day's of marketing laundry detergent as "new and improved" were enough to make a living.

I felt badly for Sonny. In one twit, he branded himself as wholly disconnected from the very marketing niche that he paid good money to learn.

....

While there's certainly a strong element of narcissism in Sonny's view, he's more Willy Loman than Slackoisie. He's fighting for the last vestige of dignity, having made the critical mistake of revealing himself to the legal world as someone so far outside, so utterly disconnected, that he thought the marketing was more important than the lawyers. After such a fundamental error, the likelihood that any lawyer would entrust his reputation and license in the hands of such a fool was essentially nonexistent. Sonny had killed any chance of moving into legal marketing with a single twit, and he had nothing left to lose.

I feel badly for Sonny. As we get older, it becomes increasingly difficult to keep pace with change. Blink and the world can pass you by, as happened to Sonny. That has to be a horrible feeling, knowing that there's a Brave New World out there and you're not a part of it. The arrogance of youth is only surpassed by the hubris of age.

Sonny has no future in legal marketing. He doesn't "get" lawyers, what distinguishes selling a professional from selling laundry detergent. He clearly doesn't understand the internet, from twitter to blogs, having made such a horrendous error to start his downward spiral and to compound it by challenging the blawgosphere to salve his hurt marketer's pride.

But if you've got new and improved laundry detergent to sell, I bet Sonny is your man.

For all the legal talent out on the streets in a challenging economy, it can be surprisingly tough to find good help these days. Anticipating personnel needs at the high court, Mike Sacks is pre-gaming a couple of prospective vacancies at the SCOTUS, one (Justice Stevens) more likely than that other (Justice Ginsburg). His picks are Judge Diane Wood for the former position and Judge Leah Ward Sears, Neal Katyal, or Harold Koh for the latter. My own choice for Supreme Court robes is currently retired and was, sadly, recently censured. Kevin Underhill discussed former Los Angeles County Judge Brett Klein this week:

Last year, Los Angeles County Judge Brett Klein was presented with a proposed class-action settlement in which the plaintiffs' attorney would get $125,000, but class members would get only a $10 gift card, usable only at the store that allegedly violated the law in the first place. That is an example of the much-maligned "coupon settlement," in which a defendant can end up profiting from breaking the law because a consumer must buy something from the defendant to redeem the coupon. These can sometimes be okay, but Judge Klein didn't think this settlement was fair.

....

In a ruling that caught my eye when it came out last year, he ordered that the attorney also be paid in $10 gift cards, just like the people he represented. Under Klein's order, Neil Fineman was to receive 12,500 gift cards that he could put toward the purchase of any merchandise he liked, as long as he liked the women's clothing at Windsor Fashions.

That seemed like justice to me. But it turns out that someone (it's not clear who) filed a complaint with the state Commission on Judicial Performance over this incident. On February 2, the Commission censured Judge Klein (who has since retired), rather than, as the person who alerted me to the story suggested, giving him a medal.

....

Klein, who had been on the bench for nearly 20 years, stipulated to the result, possibly because he had retired anyway and so need not care. Lost in all this, of course, is the issue of the settlement itself, which as approved still requires the allegedly wronged consumers to go spend more money at the defendant's store in order to benefit from the settlement. Klein may have gone about this the wrong way, but his gift-card-fee requirement is still a great idea.

The Department of Justice is also hiring. As Walter Olson noted, however, they seem to have included some boilerplate equal opportunity notices where these may not be entirely advisable — the listing encouraged the "mentally retarded" to apply for a Trial Attorney position. David Lat also noticed that listing and observed:

In light of massive law-firm layoffs and the relative stability of government employment, high demand for federal jobs is unsurprising. You have to be a positively brilliant lawyer to land a government gig these days.

Or not. If you’ve applied to the U.S. Department of Justice without success, ask yourself: Do I have a normal or above-normal IQ?

If you do, you might be… overqualified.

Even the British are having hiring issues. Charon QC reported that an opening on the country's new Supreme Court has prompted "intrigue, jealousy, rejection, skulduggery and mysterious goings on":

[Reporter] Frances Gibb says, rightly in my view, that this is ‘an unedifying story, reflecting poorly on the selection of one of the country’s top judges’.. and she notes whether the idea of winding appointments to the judiciary from the ranks of academics and practising lawyers – which I think would probably be a good thing – is a sham. Jonathan Sumption QC appears to have been treated in a rather shoddy way – but perhaps that is ‘how things are done’ in the shadows of the establishment? I can’t believe so…and it certainly should not be so.

Extraordinary goings on?

After a local television weatherman referred on-air to a locality's nine inches of snowfall as "[t]he biggest amount I could find — almost as big as me", a YouTube video of the gaffe quickly made the rounds. Nearly as quickly, the station issued DMCA takedown notices to spare its presenter and itself further embarrassment. In yet another demonstration of the Streisand Effect, the station's disingenuous takedown efforts generated even more publicity and, this week, attracted a bit of attention in the blogosphere. Mike Masnick took the station to task:

[T]he station, WHDH, has been aggressively issuing DMCA takedowns over the video (who knows how long the video above will stay up), even though it's almost certainly fair use, and courts have found that those sending takedowns need to take fair use into account.

....

The DMCA allows copyright holders to shoot first and not care later. And that's a problem, because it can put a serious crimp on public discussion (which raises some serious First Amendment questions). Yes, in this case, it's just an off-color joke, but in many other cases it could be much more important speech.

Discussing the fair use justifications for the posted video, Justin Silverman also noted that:

The DMCA's notice-and-takedown mechanism puts the onus on the individual who posted the material to send a counter-notice asking that the material be put back up and usually raising some defense to copyright infringement, such as fair use. In this case there's a fairly strong argument that the 27-second clip of Bouchard is fair. The amount of the original broadcast used is very small, the purpose of the clip is to spur public discussion, and there is arguably no effect on WHDH's news market. It's likely WHDH either didn't consider fair use before ordering the clip's takedown, or it simply didn't care.

Either way, this lack of concern for fair use is common: A music publisher tried to silence a critical podcast. A blogger sought to block an advocacy ad. Opponents of same-sex marriage looked to remove an unflattering YouTube clip. These and other "Takedown Hall of Shame" inductees likely think that it is difficult to punish a copyright holder for failing to consider fair use (it's hard to prove), and probably take comfort in the fact that many ordinary Internet users lack the knowledge, time, or resources necessary to challenge the takedown.

A couple of legal bloggers discussed ethical concerns this week. The Namby Pamby offered an ethics exam, inviting his readers to discuss the ethical implications of breaking wind in a vacationing partner's office, amongst other concerns. In a slightly more serious vein, Robert Guest discussed how he lost two clients in thirty minutes and why this was a good thing, ethically speaking:

I met Client A yesterday for a brief consultation, and another I discussed the case with Client B via phone last week. They both dutifully appeared this morning in my office about 15 minutes apart and became (briefly) clients of Guest Law Firm PC.
I told each to meet me in the courtroom. I arrived in court and was reading the State's file on Client A when I realized I had just signed up two co defendants. Not only that, but the classic MPRE red flag two-people-in-the-same-car possession co defendants.

....

I quickly explained the situation to my soon to be ex clients and told them I would refund any payment and forever keep our conversations private. If they wanted a referral I would be glad to assist, but I could not take either case. 1.06 does allow representation of conflicted parties if the parties are made aware and consent. I didn't go that route....

....

Dropping two cases in one docket was bound to generate some debate among the lawyers present. One attorney advised I could keep one client and add a disclaimer to the contract. I dissented. I felt keeping either case was improper, even with consent of the parties.

I believe that having discussed the case with both parties I would have an unfair advantage should this case go to trial and/or should one party implicate the other. I believe this met the definition of "materially affected" in (2). In a co defendant possession case the classic defense is- "The drugs belong to X, not me." There is simply no way to disclaim/notify your way out of that scenario. It's a conflict, withdraw and move on.

A prosecutor in the courtroom agreed with my decision and stated that "You can always get two more clients, but if you lose your ticket (law license) you won't get anymore clients." That's a great line, I'm going to borrow that.

Terry Harrington was wrongfully convicted, owing to prosecutorial misconduct, and was freed largely through the efforts of his prison barber, Anne Danaher. Though he promised to share the wealth with her if he "struck the jackpot" when his conviction was overturned, neither he nor his attorneys have paid anything of their settlement money to her. Though their reasons for not doing so may be legally defensible, they are not morally defensible, as Norm Pattis wrote:

[Danaher] started spending her free time tracking down witnesses. She met Harrington's appellate lawyer. She even found undisclosed police reports that pointed to another suspect. She learned that prosecutors never disclosed this material to Harrington's trial lawyer. And she learned about a payment made to a key witness for the state. She took what she learned to a Waterloo lawyer named Mary Kennedy. Kennedy, too, believed in Harrington.

Danaher spent nine years of uncompensated time working on the Harrington case, eventually accumulating 27 boxes of material. Last week, Harrington's lawyers informed Danaher that she shouldn't expect a dime for the work she did on the case.

....

"Oh, but the Rules of Professional Conduct prohibit lawyers from entering partnerships with non-lawyers," the lawyers may chortle in high-minded glee. "We can't cut her in on our share without running afoul of the rules."

It's not that simple. The lawyers did not form a partnership with Danaher. However, Danaher and the lawyers were on the same side. Both were seeking justice, right? Both were on the side of the little guy, railroaded and left for dead by corrupt government officials, right? Justice was done, right? Well why not let the financial benefits that come with this particular incarnation of justice flow in Danaher's direction as well? Nothing prevents the lawyers from recognizing her contribution from their share of the winnings. I mean, isn't this the same firm loosely associated with a Trial Lawyer's College that routinely shakes down attendees for all the cash it can muster to make sure that "people's lawyers" can get adequate training to fight evil? People's investigators have to eat, too.

Terry Harrington's lawyers did a good thing for their client. They fought hard and well, and they won a huge settlement for men horribly wronged. But the hardwork the lawyers did would not have been possible without Anne Danaher. Refusing to honor her contribution is small and petty. It makes the lawyers look like money-grubbing hypocrites.

Mike Cernovich agreed:

Ms. Danaher is justifiably upset. Those of us who spend zero hours helping free innocent people from death row - Hey, we got bills to pay, right? - will no doubt remind Ms. Danaher that virtue is its own reward.

Like the rest of us, she wants to do the right thing. Like the rest of us, she has her own bills. An hour spent working on behalf of someone for free is an money taken from our own lives. Ms. Danaher is a woman of humble means. Unlike many of the lawyers reading this blog, she can little afford to work for free.

Why do those of us who have so much deny money to those who have so little? Are we no different from the banksters on Wall Street? How can anyone who keeps millions for himself and refuses thousands to the humble woman who made those millions possible ever blog about the evils of large corporations? How can Harrington's lawyers decry greed when they themselves are keeping money that exists only because Ms. Danaher gives a dam?

Does inequity like this make you want to advocate, teach, advise or practice the duty, necessity or propriety of controlling, conducting, seizing or overthrowing the government? If so, be glad if you're not in South Carolina, because there'd be paperwork to be done first. State law there requires that "subversive organizations" and the n'er do wells who support them register with the state, paying five dollars for processing of their form. Popehat's Patrick lamented that the oath he swore upon joining the bar precludes him from filling out that form, but he encourages others to do so:

[T]he First Amendment protects you from criminal prosecution should you merely fill out the form and send your five dollars.

In its ironic way, it may be the best five dollars you ever spent. If ever an American government needed to be overthrown, it was the government of South Carolina.

Kevin Underhill walked us through the statute, noting that South Carolina's definition of "subversive" is so broad that major political parties would be covered and that all this nonsense is pretty rich when one recalls that South Carolina was the first state to secede from the union and fired the shots which started the Civil War:

Let's just make this easier -- everybody in the United States must give the South Carolina Secretary of State all information which he may request from you at the times he may prescribe. Okay? Great. Then we will at last be safe. (Don't forget your $5 filing fee, which will help out the state budget by bringing in $1,500,000,000 this year.)

I guess somebody did see a problem down the road with this, because section 23-29-30 expressly provides that "[n]othing in this chapter shall be construed to authorize, require or establish censorship or to limit in any way or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect." Well, that's a relief -- although they left out the right to assemble. Oops!

Maybe somebody else has pointed this out already, but could it be more ironic that this utterly stupid legislation was enacted by South Carolina, which was the first state to secede from the Union and the one that actually opened hostilities? I hope the legislature doesn't insist that South Carolina schools teach children about the Civil War, because if they are at all sympathetic to the Confederacy in doing that, and of course they are, then I think that makes the government of South Carolina a "subversive organization." South Carolina government, please fill out this idiotic form of yours and return it to yourself immediately along with your $5 filing fee.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., AdClassix.com, The RiseSmart Blog, and Paris Odds n Ends Thrift Store.