21 July 2010

A Round Tuit (38)

A Round Tuit

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.

Janet Jackson's Wardrobe Malfunction

The Federal Communications Commission (FCC) is one of the many alphabet soup bureaucracies which have been created over the years, ostensibly to regulate one thing and in time coming to over-regulate others. The FCC's mandate was to license radio and television stations because broadcast spectrum was a limited public resource; a glance at the Commission's website shows that they have their fingers in many pies these days, including such non-scarce resources as internet access. Over the years, in an ongoing effort to maintain its authority as broadcasting has lost ground to non-broadcast technologies, the FCC has drifted away from "scarcity" as the basis of its authority and toward "pervasiveness" of various communications, something I discussed back in the olden days when I used to write about substantive matters on this blog (see here and here).

One of the FCC's chief occupations has been to act as "morality police" to cleanse the airwaves of colorful language. For the kids, you know. Its authority to do so has been upheld many times, starting with the FCC v. Pacifica Foundation decision, but the weaknesses in that authority have become more apparent of late. This past week, Lyle Denniston reported, the Commission's quixotic effort to root-out "fleeting" expletives in broadcasts received a much-deserved beat-down from the Second Circuit in a decision which may herald the end times of the Pacifica ruling:
In a 32-page opinion that makes liberal use of the actual four-letter versions of the ”F-Word” and ”S-Word” and variations of them, the Circuit Court said the FCC’s six-year-old ban is unconstitutionally vague, because it is littered with exceptions that make it unclear to broadcasters what is allowed and what is not. The case is Fox Television Stations, et al., v. FCC (lead Circuit Court docket is 06-1760). With “massive fines” and free speech rights vitally at stake, the Court said, the broadcast industry is taking the option of censoring itself — including its news programs — to avoid violating the policy.

The Circuit Court looked back, quite skeptically, at the Supreme Court’s 1978 Supreme Court ruling that first upheld FCC authority to regulate “indecent” radio or TV broadcasts (FCC v. Pacifica Foundation), and noted that broadcasters and the FCC are still in dispute about just how much authority the Commission has under that ruling. But the Circuit Court said it need not resolve that dispute, since it found that the current policy adopted in 2005 simply fails a traditional First Amendment test for vagueness.


Noting that the Supreme Court had considered such changing circumstances in deciding to give cable TV full, rather than qualified, First Amendment protection from government regulation, the Circuit Court said it could “think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television” in light of the parental control technology now available.
Mike Masnick noted the odd path this case has taken to reach this point:
Initially the same appeals court found that the FCC's rules were "arbitrary and capricious," but chose not to tackle the First Amendment questions. The Supreme Court actually reversed that ruling, saying that the FCC has the right to make its own rules -- arbitrary and capricious or not. However, it also did not investigate the First Amendment questions.

So, the case went back to the Second Circuit, which has once again smacked down the FCC, saying that even if the rules aren't arbitrary and capricious, they do violate the First Amendment and create a real "chilling effect."


The decision is quite interesting, in that it notes that one of the reasons why the FCC was allowed to fine indecency on TV and radio was the "pervasiveness" of those media, but that in today's internet-connected world, it makes less and less sense, since people who don't hear cursing on TV will almost certainly hear it online or elsewhere. On top of that, it notes that technology has given new power to parents to block access to "mature" content, such that the FCC might not have to watch over everything so carefully anymore.

Furthermore, it focuses on the "vagueness doctrine," in noting that if a rule against certain types of speech is too vague, it can create a real chilling effect on speech, as people don't know where the boundaries are located.
Jon Katz aptly called the Second Circuit's decision "absolutely and wonderfully stunning." I couldn't agree more. Matthew Lasar called it a "body blow" to the FCC's "fleeting f-bomb insanity":
After years of enduring inconsistent, illogical, and often plainly stupid indecency decisions from the Federal Communications Commission, the broadcasting industry has found a champion in the Second Circuit Court of Appeals. Reviewing the FCC's sanctions against Fox Television for airing several instances of the f-bomb and s-word said on the fly, the court has unanimously declared the agency's "fleeting expletive" policy to be "unconstitutionally" and "impermissibly vague" and in plain violation of the First Amendment.

"Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose," the justices declared. "Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech."


What's striking about this decision is that it comes very close to challenging Pacifica itself, questioning the decision's assumptions that broadcast indecency should be regulated because of its "pervasiveness" and ability to reach children.

"The same cannot be said today," the justices noted. "The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus." In addition, practically every technology now has ample software allowing parents to limit its accessibility to children. "In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978."


If these policies are allowed to stand, the court concludes, broadcasters will decline "to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC's fines."

In other words, they will censor themselves to avoid being censored by the government. "This chill reaches speech at the heart of the First Amendment."

This decision is arguably a victory for anyone who believes in freedom of expression. We can't put it better than Andrew Schwartzman of the Media Access Project. "The score for today's game is First Amendment one, censorship zero," MAP declared in a press statement.
While this may indeed be called "a victory for anyone who believes in freedom of expression", Kevin Underhill put it more succinctly, terming Fox Television Stations "[g]ood news for expletive users"; he cautioned, however, that only "fleeting" expletives are likely to receive a free pass (for now):
This may go back up to the Supreme Court, of course, but for now, there should be no punishment for letting a fleeting expletive escape into the world. Sustained and/or intentional expletive use or other such bullshit, however, of the kind that certain dickheads might be tempted to experiment with, would probably still get you fined.
Enjoying the ruling with a few choice expletives uttered in the non-scarce environs of the blogosphere, Gideon nonetheless remained wary of this brave new world:
I’m all for this decision right now, but if I’m ever subjected to Janet Jackson’s nipple again, I might sing a different tune. I still wake up with a cold sweat in the middle of the night and see tassels floating before my eyes.
Gideon, my friend, this section's header picture is especially for you.

Eugene Volokh considered the FCC's prospects if this matter reaches the Supreme Court again:
If the Solicitor General asks the Supreme Court to hear the case (as the Bush Administration’s Solicitor General did in the earlier phase of the case, which involved an administrative law challenge to the indecency restrictions rather than a First Amendment challenge), I think the Court will likely say yes. And if that’s so, the Court may revisit the question that Justice Thomas flagged in the previous phase of the case — whether broadcast radio and television should continue to be treated as less constitutionally protected than other media (including cable television and the Internet).
Mike Sacks also focused-on Justice Thomas' earlier comments:
Justice Thomas concurred in last year’s conservative majority, expressing his willingness to strike down the regulation on constitutional grounds even though he did not believe it to be impermissibly arbitrary or capricious under the Administrative Procedure Act. Thomas advocated for overturning precedents that gave less First Amendment protection to broadcast speech than otherwise given to utterances in printed media or cable television. ”Red Lion and Pacifica,” he wrote, “were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”


What seems certain from last year’s vote is that the Supreme Court, should it grant certiorari in this case, will affirm the Second Circuit’s judgment. If the four liberals–Stevens, Souter, Breyer, and Ginsburg–would have invalidated the policy on administrative law grounds, they would likely strike it down on constitutional grounds as well. And Thomas would surely provide a fifth vote, given his concurrence. Because no other member of the Court’s Fox majority joined Thomas’s concurrence, I question whether Roberts, Scalia, or Alito will side with the dissenters on the constitutional question, though I fall back on conventional wisdom in thinking that Kennedy is up for grabs.
I don't know if Vice-President Biden would call this development a "big fucking deal"; all I know is that he could do so without anyone having to worry about the FCC's morality police coming to call afterward. All in all, that's a very welcome thing indeed.


While I was heartened to see the FCC rebuked as it was, government censorship isn't the only challenge the First Amendment faces these days. "Congress shall make no law... abridging the freedom of speech, or of the press...." To my mind, this goes beyond the sort of meddling associated with either censorship or direct control; I'm concerned about entanglement of government with the free press as well. Once government is a significant voice in any market, it tends to quickly become the loudest voice. We don't need to wonder what things would be like if government decided to "lend a hand" to the formerly-free press; we can look at the financial, automotive, and insurance industries to know how that story would end.

Writing in the Wall Street Journal, however, Columbia University President Lee Bollinger suggested that "Journalism Needs Government Help":
We have entered a momentous period in the history of the American press. The invention of new communications technologies—especially the Internet—is transforming the human capacity to speak, perhaps as monumentally as the invention of the printing press in the 15th century. This is facilitating the largest and fastest expansion of global economic growth in human history. Free speech and a free press are essential to a dynamic economy.

At the same time, however, the financial viability of the U.S. press has been shaken to its core. The proliferation of communications outlets has fractured the base of advertising and readers. Newsrooms have shrunk dramatically and foreign bureaus have been decimated.
Bollinger cited BBC News (producers of borderline-anti-Semitic Israeli coverage), Qatar's al-Jazeera, and China's CCTV and Xinhua News as positive examples of government-press partnerships. Roger Pilon, amongst many, many others was dubious, if not incredulous, about Bollinger's proposal that the government add the traditional media outlets to its long list of bailouts:
The argument, in essence, is this. The communications revolution has decimated media budgets. Indeed, “the proliferation of communications outlets has fractured the base of advertising and readers,” leading to shrunken newsrooms, especially in foreign bureaus. Thus the FCC and FTC are now studying the idea of enhanced public funding for journalism. Not to worry, Bollinger assures us, since “we already have a hybrid system of private enterprise and public support” – to wit, public regulation of the broadcast news industry and the Corporation for Public Broadcasting. And the most compelling example of state support not translating into official control, he continues, can be found in our public and private research universities, which receive billions of government dollars annually with no apparent problem.

Really? Try getting your hands on some of those funds, or an appointment in one of those departments, if you have reservations about global warming. Or do we need any better example than the case of Elena Kagan, now before us. When the good dean took her principled stand against admitting military recruiters to the Harvard Law School, the larger university community reminded her of the government funds that were thus put in jeopardy, and she adjusted her position accordingly.

But here comes the kicker: Like those who imagine that there’d be no art without the National Endowment for the Arts, Bollinger tells us that “trusting the market alone to provide all the news coverage we need would mean venturing into the unknown—a risky proposition with a vital public institution hanging in the balance.” Was there no news before the invention of NPR, all things considered? And back on the academic analogy, he adds, “Indeed, the most problematic funding issues in academic research come from alliances with the corporate sector. This reinforces the point that all media systems, whether advertiser-based or governmental, come with potential editorial risks.” True, but government is categorically different than private businesses, of which there is no shortage. Yet those who fail to notice that difference, or discount it, are forever drawn to government because it is, as we say, so easy to get in bed with.
Ira Stoll added:
Why, the BBC is almost as anti-Israel as Mr. Bollinger's own Middle East studies department at Columbia! Even the British are calling for privatizing the BBC. Only 41% of Brits polled support the license fee that fund the BBC, and 58% said they think there is no difference between news on the BBC and other, privately funded channels.


Do Americans really want to re-model their press along the lines of unfree countries like Qatar and Communist China, taking tax dollars from ordinary Americans working in fields that don't get government subsidies (okay, not banking, autos, green energy, or agriculture, but there must be something left, right?) and giving them to graduates of Columbia Journalism School?
At the Popehat blog, Patrick ably fisks Bollinger's misguided opinion piece:
In a past life, Lee Bollinger was a lawyer and law professor specializing in First Amendment issues. He was the author of scholarly works advocating and celebrating freedom of the press. Today, Lee Bollinger is the president of Columbia University, which collects millions of dollars from students looking for jobs as journalists.

One suspects that past life Lee Bollinger must be spinning in his grave at what present day Lee Bollinger is writing in the Wall Street Journal....

...Bollinger wants a bailout for journalism. Someone’s got to hire all of those J-school grads, and the newspapers sure aren’t doing it now.

But perhaps bailout’s not the best term. A “bailout” is hopefully a singular event, like a bridge loan to help a friend get back on his feet. One time only, unless you’re Chrysler. What Bollinger actually proposes is more like the farm subsidy, an ongoing, perpetual wealth transfer from taxpayers to a favored class.


Oh well, as others have pointed out, you’ll come to your senses around 2012. Under the Palin-Huckabee administration.
Patrick wondered whether a news outlet would would be willing to shine a light on government misconduct "if it was expecting a big check from a very political administration at the end of the quarter". It's an important question to ask. Truth be told, even in an age of ubiquitous personal media we still rely heavily on the traditional free press because, rightly or wrongly (hint: it's wrongly), the press have greater protection and latitude to report on government misconduct than lowly non-journalists enjoy.

This disconnect is often noted, but nowhere is it more consistently apparent than when citizens record police misconduct on their mobile phones and other devices. Authorities have frequently abused state wiretap and privacy laws to bully and prosecute those who've recorded the public misconduct committed by police and other officials acting in their official capacities. Radley Balko has written many times on this issue and pointed this past week to a USA Today editorial which effectively criticized these abuses:
This is an abuse of prosecutorial authority and a misinterpretation of state law. But it's typical of the attitude of too many prosecutors and police toward people who record their encounters with law enforcement and are usually completely within their rights to do so.

Websites that monitor these cases have posted stories from around the country of police ordering people to stop videotaping or photographing them, sometimes violently. Most of the time, the police apparently either don't understand the law or are deliberately misstating it to bully people into putting away their cameras or cellphones.

Only in Massachusetts and Illinois is it explicitly illegal to make an audio recording of people without their consent, so officials there can prosecute those who tape police encounters. Ten other states, including Maryland, have "two-party consent" laws that require both (or all) people being audiotaped to approve, but the statutes apply to "private" conversations, such as a phone call. Generally, courts and prosecutors conclude that an officer arresting someone in a public place has no expectation of privacy.


Some police departments have acknowledged reality and instructed officers to assume they'll be recorded and act accordingly. Other departments learn the hard way. Beaverton, Ore., was ordered last month to pay a $19,000 settlement to a man arrested after he videotaped his friend's arrest.

As police officers point out, videotapes can be taken out of context, or show an incomplete story. And, in some instances, police might have a legitimate need for privacy, such as when they meet with informants. But there are ways to deal with this without shutting down citizens' rights to protect themselves from abuse.
Adding to the newspaper's comments and discussing another recent incident wherein a man was bullied by police for (legitimately) photographing a traffic stop, Balko wrote:
Frankly, it’s not enough that he merely wasn’t arrested. They tried to intimidate him into giving up his rights. I’ve written this before, but if citizens can’t claim ignorance when they’re cited for breaking the law, cops can’t be be allowed to get away with trying to enforce laws that don’t exist.
Carlos Miller, whose Photography is Not a Crime site regularly chronicles police intimidation of photographers and others who record police conduct, reported that some measure of relief may be on its way:
A U.S. Congressman has introduced a resolution that would protect citizens who videotape cops in public from getting arrested on state wiretapping charges.

Edolphus Towns, a Democrat from New York, introduced the resolution on Thursday, the same day USA Today wrote a scathing editorial denouncing these types of arrests.

These types of arrests have become an epidemic throughout the country as more people are carrying some type of video-recording device on them at all times.


These arrests tend to take place in states that have two-party consent laws regarding the electronic recording of conversations. These illegal wiretapping laws were created to protect people from having their phone conversations recorded, which is normally a situation where one would have an expectation of privacy.

However, police have twisted the law in their favor to arrest people who are videotaping them in public – where nobody has an expectation of privacy.
Our First Amendment freedoms of speech and of the press represent the Founders' admonition that the government they established should not be permitted to control what we say, hear, read, or write. Sometimes government's instinct to control manifests in direct intervention, as with police persecution of bystander-photographers, and other times it is more subtle, as with financial and other entanglements between government and the press. Direct or indirect, with or without the acquiescence of the traditional media, government control in all its forms deserves nothing less than the strongest resistance we can offer.

Odds n Ends Shop

I'm as tired of writing about the Anti-Counterfeiting Trade Agreement (ACTA) as you are tired of reading about it. Unfortunately, bureaucrats and businesses around the world tirelessly continue to bargain-away our rights and freedoms under a veil of secrecy; fortunately though, bloggers like Michael Geist continue just as tirelessly to report, analyze, and criticize their machinations. This past week, Geist discussed the changes in the most-recently-leaked version of the ACTA:
[T]he simmering fight between the U.S. and the E.U. on ACTA is now being played out in the open. During the first two years of negotations, both sides were at pains to indicate that there was no consensus on transparency and the treaty would not change their domestic rules. Over the past four months, the dynamic on both transparency and substance has changed.


At the conclusion of the latest round of negotiations in Lucerne, the U.S. did not achieve its goals for the talks and refused to agree to the release of an updated text.


The transparency fight is really cover for the bigger fight - the substance of the treaty. A review of the latest text reveals that virtually every major area of disagreement (there are still many) comes down to the U.S. on one side and the E.U. on the other.


By far the biggest source of disagreement remains scope of the agreement, with the U.S. (supported by Australia, Canada, New Zealand, and Singapore) pushing for an agreement limited to trademark and copyright, while the E.U. and Switzerland seeking to extend it to all intellectual property. Of particular importance to the E.U. is the inclusion of geographical indications and industrial designs, with de Gucht calling the issue a "red line" issue and questioning the value of the treaty if they are not included. If they are included, many countries will be forced to make significant changes to their domestic laws, since many do not have criminal or civil enforcement or border measures dealing with the issue. In other words, satisfying the E.U. on the issue may require reneging on earlier commitments to leave domestic laws largely untouched. However, failure to satisfy the E.U. may ultimately kill the agreement altogether. Moreover, with the same U.S. companies that urged the government to negotiate ACTA, now warning against extending it too far, adopting the E.U. position risks alienating some of ACTA's biggest supporters. The issue of scope is one that will ultimately require one side to cave or otherwise leave ACTA in limbo for the foreseeable future.
Andrew Moshirnia discussed the substance of the changed "Injunctions" section in leaked draft and the lack of transparency in the negotiations process:
When you won’t show me what is behind the curtain, I want nothing more than to rend draped velvet. But if you just pull the fabric back and show me the fantastipotamus, I’ll quickly grow bored.

The trade representatives crafting ACTA feigned that they understood this basic equation (openness + politics = mundane disinterest) when they finally released a draft of the long secret agreement a few months back. Granted, this release came after a series of leaks exposed the noxious text. But I thought there was a glimmer of hope that US negotiators might provide some of the transparency our current administration had promised.

No such luck. The resumption of secrecy was all but announced when trade representatives would only show the text to the EU Parliament in camera, with the MEP’s forbidden to share the information with the public.


[The Injunctions section] suggests that injunctions may be served directly to ISP intermediaries, resulting in the cessation of internet access. That is, rather than serving and trying the accused pirate, the rights holders would target the risk adverse ISPs. Although it is likely that courts would not order a digital execution without hearing something from the accused, it is likely that ISPs would want to avoid the matter entirely by simply acceding to the right holder’s demands....

Supporters of ACTA will claim that this doomsday interpretation is farfetched. I think that the track record of the entertainment industry and the clear push for a three strikes option counsel against that attack.
From time-to-time, there's a flurry of legal blogging about the ethically-questionable conduct of some non-lawyer marketers and the lawyers who hire them; after each flurry the furor inevitably dies-down before, just as predictably, business-as-usual in the less-professional end of the legal profession causes it to once again flare. This week, the casus belli was provided by legal marketer Sparta Townson, who does her marketeering under the modest moniker "Internet Guru Girl". Townson recently left spam comments on behalf of several attorneys on Jaime Spencer's Austin Criminal Defense Lawyer blog; Spencer not only called her on this but called the attorneys who hired her, to advise them that they'd outsourced their ethics along with their marketing:
All comments came with the obligatory URL from a backlink bot. I received 30 to 40 identical comments to different posts in the space of just over an hour.

I let her clients know that if this little ole, rarely updated, and less frequently read blog was getting hit, that there were probably some of the bigger blogs on the block being targeted as well. And that some blogging lawyers don’t start with a “Hey, did you know what your SEO person is doing?” phone call… they just lash out with the name of the offending lawyer in the title of the post.

Sparta had already heard from at least one unhappy client by the time I spoke with her, but was not at all sympathetic to my plight. She asked if my blog was open or closed, and told me that since it was open, my comment section was fair game. What I got from the conversation was that she would damn well put whatever idiotic comments she wanted on my blog, and happily associate her client’s names to them, as often as she pleased, and that there was nothing I could do about it. Open blog, therefore the fault was mine.
Mark Bennett had recently come across Townson when she proposed to develop a costly web site for the non-profit Harris County Criminal Lawyers Association ("between $10,000 and $11,000 for the development of a website for a nonprofit professional organization with an annual budget around $100,000, and then $500 a month for maintenance," he noted); instead of blogging about that, however, he focused-on Spencer's experience:
Outsource marketing = outsource reputation. When Sparta posts (or, probably more accurately, has some contractor overseas post) a spam comment on Jamie's blog, that spam comment appears to come from the lawyer who is paying the bill. That makes the lawyer look bad (see, e.g.), and does not enhance her reputation. Sparta, though, is a saleswoman. She doesn't have the same ethical responsibilities as the lawyers she is rooking serving, and she doesn't seem to care much that she may be demolishing her clients' reputations.
In another post, Bennett discussed the entitlement claimed by Townson and other legal marketers to spam open comments:
Is Townson right? If a blog has “open” (not moderated) comments, is it fair game for the spammers?


Townson can’t make her own rules. She can choose not to to engage in offensive conduct, or to do so and risk the sanction.


Nobody gets to tell Jamie what to do on his blog. The so-called experts who want to spam with impunity can call it “bullying” when Jamie lays down the sanction of his choice for breaking his rules, but even if they had a web presence worth a damn, I doubt that Jamie would care.

Who makes the rules? Those who, like Jamie, are writing the content that people want to read (and link to) make the rules.
Popehat's Ken discussed this latest chapter in an ongoing saga:
Unsophisticated attorneys buy into the sizzle that “professional marketers” are selling — they believe that marketers will use sophisticated, legitimate, and benign methods to improve their search engine rankings. Little do they know that marketers frequently employ bots, or low-paid net jockeys on the Subcontinent, to flood legal (and non-legal blogs) with spam comments in a highly offensive, and usually fruitless, attempt to build their clients’ web presence.

And so, credulous and careless attorneys who have outsourced their marketing — and hence their reputation — suddenly find that their names are associated not so much with legal excellence, but with the same marketing technique favored by cut-rate porn sites and the multitude of pills that make your dick hard.... No blogger likes spam. No reader likes spam. So the attorney whose marketer has resorted to spam has generated hostility and contempt for dubious (if any) gain.


Lawyers who hire comment spammers ought to know better. There are plenty of hints that the profession of “legal marketing” is shot through with bumblers and scam artists and uber-spammers. Take, for example, the fact that these people often spam to find clients. So it’s a mystery to me why people don’t expect their outside marketers to spam unless specifically told not to. It’s a mystery why customers of “legal marketing experts” don’t educate themselves and realize that comment spam doesn’t work — which is why only crooks and morons use it.

Unfortunately... too few lawyers are sensible.
As for Townson, this dust-up seems to be amongst the least of her legal troubles; just this past Saturday, The Paris News (via Scott Greenfield) reported a defamation suit in which Townson is the defendant:
Townson started a blog about Dr. John D. Liming, “aka Dr. Sliming.” She also posted comments on several other sites. According to court documents, Townson said Liming had to leave several practices. She also accused him of drinking while practicing medicine, theft and lying.
It's noteworthy that in upholding an injunction issued in the matter, an appeals court found that "Townson does not deny making defamatory per se statements about Liming". Attorneys, know thy legal marketer.

Still, it's not just the non-lawyer marketers whose ethics are a bit shaky; Eric Turkewitz — who coined the "outsource your marketing, outsource your ethics" phrase — noted this past week that self-promoters like one of actress Lindsay Lohan's recent series of defense attorneys need to mind their step as well. He discussed the comments made to People magazine by Stuart Goldberg, a Chicago attorney with whom Lohan consulted:
I really don’t get it sometimes. A client goes to a lawyer with a legal problem. The lawyer declines the case. And then the lawyer yaps to the press?!? Are you kidding me?


Why the hell is this Stuart Goldberg, apparently a Chicago criminal defense lawyer, talking about what he heard or saw in the confidence of his practice? And why would any future client ever trust him to keep a secret?

The People article has him giving a great deal of information about his supposed-confidential meeting with Lohan at her home.


That is no way for a lawyer to act, unless Lohan agreed to let him yap to the press, which seems rather unlikely.
Scott Greenfield added his thoughts:
Taking a quick look at Goldberg's website , one thing is immediately clear. He's not shy. This is a guy who craves attention. From his self-published novel (with video intro!) to his opening website video. No, this is not a shy. self-deprecating lawyer. This is a lawyer who wants recognition.


Is it possible that Lohan told Goldberg that he's free to discuss her confidences with the media? It is, though it's hardly likely. Is it possible that Goldberg is a set-up, offering impressions to the media as part of a campaign to humanize LiLo and explain her inappropriate reaction to the court. It is, and that's more likely, but still not very likely.

We live in an age of celebrity, where people want desperately to become someone that others know exist. Some will do anything, from mind-numbingly stupid tricks on Youtube that risk their life, to crimes for the notoriety, to feigning a child in a blow-up flying saucer. Anything to get in the media. Anything.

Was that why Stuart Goldberg talked? He got his name in in People Magazine and TMZ . He's all over the internet. His beauty shot on his website now appears to have legs. Is he now the best known, most prominent criminal defense lawyer in Chicago, for having been LiLo's transitory choice for counsel? After all, he must be something special if LiLo gave him a look.

For a lawyer to disclose confidences to promote himself, for sheer self-aggrandizement, is a disgrace.
Finally, a late-breaking score in a match we've been following here and elsewhere for some time: obfuscation defeated substance 13-6 yesterday at Senate Judiciary Committee stadium in Washington, D.C. (where it's grandstanding-room-only but there's always space for one more straw man). Take my peanuts and Cracker Jacks... I don't care if I ever go back.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Telegraph.co.uk, All Things Digital, and Paris Odds n Ends Thrift Store.


Patrick said...

Unfortunately the House resolution decrying the arrest of photographers by police is just a "sense of the House" puff piece. It protects no one.

It doesn't preempt overbroad state wiretap laws, and carries no force of law itself. It's merely a nice gesture.

Unknown said...

Unfortunately true. Perhaps by "some measure of relief", I'm being more optimistic than is warranted under the circumstances. Still, a resolution is a small start and often provides some traction for further discussions and lobbying.

Patrick said...

I think you just did more by linking to Miller than anyone in Congress will do this year. You're a hero Colin!

Of course I own the Graber case on the intarwebz (Google him!) so I have a tiny bit of personal investment in the matter. I'm sure your mom considers you a hero as well.

Our two dominant searches are for "Dora the Explorer" and "Anthony Graber". Every time we get a hit for Dora, a little piece of me dies.

shg said...

Whenever I think of Dora the Explorer, I think of Popehat. I can't help it. I just do.

Unknown said...

It certainly beats mine. "Snarge" is one of the main search terms which finds me. You write one post about the bloody goop left over from a bird strike on a jetliner and four or five years later, everyone beats a path to your virtual door.