07 October 2009

A Round Tuit (4)

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.

October means that the two best sports in America — baseball and Supreme Court watching — finally take center stage. The Major League Baseball divisional races are now complete, playoffs begin today, and the World Series (North American world only, please) follows later this month. The first Monday in October also starts the Supreme Court's term and in the past few weeks a number of sites have offered previews of forthcoming cases. Amongst the best of these are Tony Mauro's analysis of several First Amendment matters and Lyle Denniston's post covering an important Second Amendment case, one relating to the "War on Terror", and several others appealed by the Federal government.

Mauro writes (I've added case names for clarity), "Fighting for the First Amendment often makes for odd bedfellows. In pending cases for the coming Supreme Court term, free-speech advocates find themselves on the side of corporations seeking to influence elections [Citizens United v. Federal Election Commission], creators of videos depicting animal cruelty [United States v. Stevens] and, oh, yes, bankruptcy lawyers [Milavetz, Gallop & Milavetz v. United States]. All in a day’s work." He also touches on Salazar v. Buono, which concerns a Christian cross placed as a VFW memorial on what was formerly Federal land in the Mojave Desert.

Denniston provides an excellent run-down of a number of cases the Court has agreed to hear this term. Amongst these, a couple caught my eye. McDonald v. Chicago will determine whether the decision in District of Columbia v. Heller will apply to state, local, and municipal governments as well as the Federal government and provides the Court a rarely-used opportunity, as Denniston puts it in another post, to "grow" a Constitutional right. In Samantar v. Yousuf, the Court will consider the Alien Tort Statute of 1789; Denniston writes:
The Court, faced with an increasing number of cases filed in U.S. courts under a 1789 law seeking damages for wrongs done in foreign countries, agreed to decide whether that law allows such a lawsuit only against foreign governments, or against foreign officials who took action in their official capacity. This case will draw the Justices into an examination of atrocities in the Somali government in the 1980s and 1990s. A former top official of the Somali regime, Mohamed Ali Samantar, is seeking to head off a lawsuit blaming him for torture and other atrocities in Somalia in that time. He argued in a petition (Samantar v. Yousuf, 08-1555), that the Alien Tort Statute of 1789 does not apply to foreign officials, only to governments, and that, in any event, it should not apply to a foreigner who no longer holds a government office. Samantar now lives in Virginia, and was sued there by survivors and victims of the atrocities in Somalia. Samantar fled the country when the government collapsed in 1991; since that time, Somalia has had no functioning government or central authority.
Dennis Crouch has kept track of the nearly two dozen amicus briefs filed in support of the government in the pending "business method" patents case, Bilski v. Kappos. I'll confess to reading only one of these in any depth (and "reading" is perhaps being overgenerous in my self-assessment); Crouch's capsule summaries are particularly helpful to get a sense of the variety of issues and viewpoints supporting the government's view that the patentability of "inventions" not meeting the "machine-or-transformation" test should be very limited. The one brief I spent some time with was the one filed by the Electronic Frontier Foundation (EFF). Fred von Lohmann provided a link to a .pdf of the EFF amicus brief and explained why the EFF felt compelled to join the Bilski fray:
Just over ten years ago, the Federal Circuit Court of Appeals handed down State Street Bank & Trust Co. v. Signature Financial Group, opening the doors to patents for novel methods of doing business. That ruling knocked patent law loose from its historical moorings and injected patents into business areas where they were neither needed nor wanted. The results have been nothing short of disastrous: a flood of patent applications for services like arbitration, tax-planning, legal counseling, charity fundraising, and even novel-writing.
Scott Greenfield has written before about the issues in Maryland v. Shatzer. His view, that "[o]nce a defendant has invoked his right to counsel, it remains invoked in perpetuity in the absence of an intervening event that changes the situation," is not shared by Donald Dripps and Yale Kamisar, who write:
The Edwards rule was designed to prevent the police from pestering or badgering a suspect who has asserted his right to counsel at his first meeting with the police. But two interrogations in 31 months can hardly be called “badgering” or “pestering.” Why not say that when so much time has elapsed between the first and second meetings with the police that no reasonable custodial suspect could possibly believe that he was being badgered by the police or that the police were trying to wear him down, the Edwards protection should expire? Mr. Shatzer undoubtedly will argue that there is a need for a bright-line rule in this area. Two and a half years may seem long enough, but what about two and a half weeks or two and a half days? Absent a break in custody, i.e., a substantial change in circumstances, Shatzer will maintain, the Edwards protection should remain in effect.

However, it is most unlikely that a majority of the present U.S. Supreme Court will tell us that Edwards’s protection never wears out – that it has no time limits at all. The odds are high that the Court will say that no reasonable suspect could possibly believe that the police were pestering him if they had “tried again” 31 months after their first meeting with the suspect. Indeed, it would not be surprising if at least two or three members of the Supreme Court went further and urged the overruling of either Minnick or Roberson or both.
Greenfield concedes that they may be right about Shatzer's SCOTUS chances and suggests what the consequences of a decision for the government would be:
As they note, there is likely to be a few justices who would prefer to do away with the protections altogether. Sound reasoning and policy won't necessarily stand in the way of a decision stripping defendants of their protections. But if they decision goes against Shatzer, the next question is going to be a doozy.

Even assuming 31 months, more than two and a half years, is "long enough" to dissipate the invocation of counsel, what about two and a half months? Weeks? Hours? What possible rational basis can exist for drawing a line where the right runs out? What a holy mess a reversal in Shatzer will make of things, with judges reaching deep within themselves to decide on an ad hoc basis how long is too long.
For all the anticipation of what the Court will do this term and frequent criticism of what they've done in past terms, it's not often that someone takes a moment to note what the Supremes have done right. Brad Smith and Ilya Somin look to do just that, however, compiling a list of the ten best decisions from a libertarian perspective. I'm relieved to find that at least a few of their selections ring a bell, lo these many years since first-year ConLaw.

The Federal Trade Commission's newly-announced rules requiring disclosures by bloggers who post product reviews was widely-discussed this week. Ryan Singel notes that these rules will not apply to large, established sites but points out that distinguishing the pros from the amateurs is difficult when all are doing similar things using similar tools. He provides a good overview of the rules:
The rules break down roughly like this:

If a well-known dog blogger reviews dog food they bought, no disclosure is necessary. If they review free dog food acquired through a coupon spit out by the supermarket’s computer, no disclosure is necessary. But if the dog food company sends the blogger a free sample based on their review, both the company and the blogger are on the hook if any subsequent review doesn’t include that info.


But the rules leave much to interpretation.
Like Singel, Ann Althouse recognizes that the rules are exceptionally vague and the FTC lacks the resources to enforce them comprehensively (thank Heaven for small favors). She writes, however, that overbroad rules and necessarily selective enforcement are, if not the whole problem, a significant part of the problem:"The most absurd part of it is the way the FTC is trying to make it okay by assuring us that they will be selective in deciding which writers on the internet to pursue. That is, they've deliberately made a grotesquely overbroad rule, enough to sweep so many of us into technical violations, but we're supposed to feel soothed by the knowledge that government agents will decide who among us gets fined. No, no, no. Overbreath itself is a problem. And so is selective enforcement."

Australian blogger Duncan Riley calls the FTC's announcement "a sad day for democracy in America":
The ruling means that blogs are treated differently to newspapers or magazines, despite the important role new media is taking in picking up the slack as old media slowly dies off. The ruling essentially creates two classes of media: one that is beyond the standard set by the FTC, and one that is bound by it.

What I’ve yet to find is any good argument as to why old and new media should be treated differently. The rise of “payola” in blogging isn’t something that has miraculously emerged overnight, but is instead simply a sign of maturity in the sector in that it is following the lead of old media before it.


It is a sad day for democracy in America where the voice of the people is imposed with rules that the voice of those with power and money are not. Change you can believe in has become bite the hand that got you to where you are because you want to curry favor with the big end of town.
Popehat's Patrick writes, "While disclosure of freebies is good ethics for bloggers generally, I predict that the end result is going to be a muddled morass in which nobody, including the FTC itself, understands the rules, but the government moves further toward regulation of blogs. Yes, I believe in the slippery slope." That these rules are a misguided power grab by a regulatory agency seems to be the general consensus I've seen, although, to be fair, that conclusion seems so plain to me that I'm probably blind to contrary views from all but a very select few. Vague and overbroad rules, selective enforcement, sheer stupidity... there ought to be a law against this. Oh wait, there is. Eric Goldman points out that 47 USC §230 pretty clearly pre-empts the FTC's rulemaking:
47 USC 230 requires the FTC and other consumer protection agencies to fundamentally rethink their basic endorsement liability paradigms.


While an FTC enforcement action pursuant to its misguided advertiser liability theory should be an easy defense win, I don't expect we'll ever see that result. As we know, the FTC is fairly careful in selecting enforcement actions, and most defendants choose quickly settle rather than fight. Those that don't settle usually don't present the best facts to the court, and sometimes their lawyers don't even know about 47 USC 230.


Because it appears fundamentally inconsistent with 47 USC 230, I hope the FTC will reconsider its basic liability approach here.
I like that last sentence a lot. FTC, doesn't it sound so much nicer when a law professor tells you to get your figurative head out of your proverbial ass?

I will, of course, attempt to comply with any applicable FTC rules. I will append something like the following to any post which recommends or reviews any product or service:
The asshats at the Federal Trade Commission (FTC) require that I, as a non-professional blogger rather than an employee of a mainstream media site, advise you of any financial interests I hold or consideration I have received which may have affected the impartiality of the foregoing product or service recommendation or review. Though these rules appear to have been promulgated by crack-addicted monkeys unfamiliar with the United States' Constitution and laws, I am nonetheless obliged to pretend that these FTC rules are worth the paper they're printed on. If I don't, the terrorists win.

As such, you are hereby advised that the products or services I've mentioned in this post may have been provided to me at no charge. The foregoing does not apply to any lunches or lunch-related items, because there ain't no such thing as a free lunch. Some portion of my meager assets may be attributable directly or indirectly to the companies, organizations, or individuals producing, marketing, or providing the goods or services I've mentioned in this post. I can't really say for certain.

In part this is because my wife handles the money in our family; mostly though, it's because the FTC rules are vague and overbroad. Who knows what I might have a financial interest in? I certainly don't. Like many of you, I pay taxes and thus have an indistinct and involuntary financial interest in General Motors, Chrysler, AIG, a bunch of deadbeats' houses, and every bank I see which doesn't have "blood" or "sperm" in its name. Moreover, as a political science major, I have a poor understanding of the economic forces which directly or indirectly influence my financial interests.

I have some retirement savings which are invested in mutual funds which in turn own shares in a number of companies. I have little or no knowledge which companies these may be from one day to the next. I'm not sure that the fund managers know, either. As these investments consistently decline in value, if by chance one of the companies owned by the funds in which I own shares produced or performed the products or services I mentioned in this post and that mention was a positive one, please advise me and I will promptly change it.

The FTC rules are wrong on so many levels that one hardly knows where to begin criticizing them. Professor Eric Goldman, an authority on the applications of 47 USC §230, has advised that the FTC's rulemaking is probably pre-empted by that statute and is therefore unenforceable. He very politely advised the FTC to reconsider its basic liability approach, but as of the date of this post, they have not yet done so. This may or may not be because they are a gaggle of bureaucratic jobsworths who understand little about the real world and care even less.

You should note, however, that Professor Goldman has hosted meetings of the Bay Area Blawgers group for the past several years. At these meetings, for which I did not pay anything other than attention, I consumed two-thirds of a cold cuts sandwich and drank two sodas and a bottle of water. On two occasions, Professor Goldman gave me merchandise — two ballpoint pens and a slinky — emblazoned with the logo of his law school. Thus, my recommendation of his views on this whole FTC rules thing is probably suspect. I gave the slinky to my daughter, so you should also take anything she says about Professor Goldman with a grain of salt. I'm sorry to spring this on you so late in this notice; it's probably best if you go back to the start and reread it so that we're all square.

In this post and elsewhere, anything I say could be bought-and-paid-for by greedy corporations bent on world domination, be completely self-serving, or be affected by forces beyond my control, like Chuck Norris. You have no reasonable basis to trust any recommendations I offer because you probably "know" me only through this blog and if you know me independently of it, you know or should know that I'm generally full of shit.

You should assume that the products or services I mention were given to me free of charge with the explicit understanding that in exchange I would attempt to dupe you about their value or effectiveness. You should assume that the recommendations or reviews in this post are influenced by something the FTC thinks you should know about. You should assume that the products or services I've recommended will make you look fat. You should make your own damn decisions and take responsibility for them.
All that's left now is to figure a way to condense all that into fewer than 140 characters for Twitter purposes.

The recent Eighth Circuit case Cook v. City of Bella Villa is a pretty appalling one, both in terms of the facts of the case and the court's decision. No one has covered this case better than Mike Cernovich. In the Section 1983 Blog, he summarizes the facts:
Edward Locke is the chief of police of Bella Villa, Missouri. For reasons not immediately clear, Locke remains police chief even though several women have accused him of sexual assault. Indeed, Cook v. City of Bella Villa, was the second published Eighth Circuit Court of Appeals opinion involving claims of sexual assault against Locke. See also, Schmidt v. City of Bella Villa, 557 F.3d 564 (8th Cir. 2009) (Locke required woman to unbutton her pants so Locke could take multiple pictures of a tattoo located near her public area).

Locke stopped a motorist who was allegedly swerving over the center line for “three miles.” The female motorist claimed the police made a false factual statement. She also challenged Locke’s epistemology: She noted that noted that Locke had just pulled out from behind a bend in the road, a mere one-hundred yards behind. Thus, it would have been impossible for him to have seen her swerving.

Locke demanded that the woman “blow into his hand.” She refused. He arrested her. Then it gets creepy.
thrust his knee between [Diane's] legs, and while Diane was still leaning on the hood of the patrol car, Chief Locke began to paw and stroke her, beginning at Diane’s waist and moving down to her buttocks. Diane testified Chief Locke was “rubbing down [her] butt onto and around [her] inner/outer thighs, [and then] around the front.” ... Diane claims Chief Locke then slid his hands under her sweater and began “working his hands up from [her] waist up to [her] sides towards [her] breasts.”
Slip op. at *5.

Michael Cook, the motorist’s husband, was in Diane's car during the assault:
When Chief Locke began moving his hands underneath Diane’s shirt toward her breast area, Michael exited the vehicle. Michael stated, “Yo, dude, what’s the problem? You can’t be touching her that away.” When Michael made those comments, he was standing beside the car. Chief Locke told Michael that Chief Locke would talk to Michael in a minute. Michael remained where he was, smoking a cigarette. Chief Locke then walked Diane to where Michael was standing. Michael took one step toward Chief Locke. Chief Locke told Michael to “[g]et back in the fucking car” and, at the same time, Chief Locke tasered Michael. Michael never saw the taser.
Slip op. at *26 (Arnold, J., dissenting). Michael sued Locke, alleging (among other claims) that using of a Taser without any notice was an unreasonable use of force. The trial court granted summary judgment in favor of Locke. Shockingly, a split panel of the Eighth Circuit Court of Appeals affirmed.
As Cernovich notes, Locke's conduct was nothing less than criminal sexual assault; the Eighth Circuit has now allowed the Tasering of anyone who tries to stop a police officer in the course of such an assault. At his Crime & Federalism blog, Cernovich points out that under the criminal laws of the State of Missouri (where the incident occurred) and the facts of the case, Locke's actions vis-à-vis Michael Cook constituted third-degree assault:
Some will say say, "But constitutional law is different from criminal law." That's true on its face, but also glosses over how constitutional law - at least in Section 1983 cases - is made. The Constitution states that the use of force must be reasonable. The Constitution doesn't contain an Appendix of Definitions. The Constitution does not define "reasonable."

Judges must determine, on a case-by-case basis, what conduct is reasonable. One way to judge reasonableness is to look towards criminal and civil laws. If every state in the union has classified assault as a crime, isn't it reasonable to infer that assault is unreasonable conduct?
There's no good segue from assault and sexual assault by a police officer to trademark law, and I won't bother to attempt one here.

Kevin Goldberg discusses a recent trademark decision at the Federal district level which denied former NFL great Jim Brown's Lanham Act unfair competition claims against Electronic Arts, makers of the "Madden" series of video games. Goldberg writes, "The judge re-affirmed that the First Amendment does generally apply to these types of video games. It disagreed with the arguments made by Brown – and by others suing video game makers or seeking to regulate their often sexual or violent content – that these games (and other similar commercial enterprises) should be entitled to less than full First Amendment protection. Au contraire, said the judge, the implicitly creative nature of EA’s games merits full First Amendment protection."

Michael Masnick noted a worthwhile article by Kimberly Isbell. Isbell's article suggests that the Lanham Act should be updated to better address some of the challenges raised by developments in our internet-connected world. Masnick isn't entirely convinced; he writes, "While having more clearly defined lines may seem like a good idea, it also provides less flexibility, and more of an opportunity to fence in fair use, rather than letting it adapt as necessary." He notes that his reservations are due in part to recent discussions he's had with copyright guru William Patry. Patry made his home this week at the Volokh Conspiracy blog, guest-posting on, amongst other copyright topics, the role of morality in copyright law. For Patry, "copyright is an economic right, not a moral right and does not raise moral issues." He suggests that "we do not need strong copyright laws or weak copyright laws, but only effective copyright laws, with effective being judged by whether the copyright laws serve their purpose," and concluded that "life plus 70 is inefficient because it wildly exceeds necessary incentives and has negative impacts on the creation of other works."

UPDATE: The best "B-level-blogger" in existence, Ron Coleman of Likelihood of Confusion, deserves credit for seeing the FTC train wreck coming nearly three years ago. I will gladly add this information to my lengthy notice above and recommend anything he does if he'll send me some valuable merchandise free-of-charge.

1 comment:

mojo said...

It's easy to tell the FTC to take a flying leap. Change the name and find an off-shore hosting service.