Free Speech

Free Speech Potpourri: Begging Might Not Be Speech, But Flashing Your ‘Headlights’ Certainly Is!

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We’ve got two unrelated First Amendment issues floating around today that I’m mashing into one post, because it is my right to do so.

We all know that money is speech. How we got to the point where money is worth just as much speech as talking is a manner of some contention (see Jeff Toobin’s New Yorker piece and Tom Goldstein’s response), but the question is what other things that don’t involve people saying anything can also be construed as “speech.”

Now Mitt Romney will tell you that money is speech and “corporations are people, my friend.” Fair enough. But I’m not sure he’d defend the free speech rights of people who don’t have any money so they’re asking for it on the streets of Chicago.

And I have no idea how he’d respond if you asked him if cars are people that can flash each other under the protection of the First Amendment….

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New York Lawmakers Want to Ban Anonymous Commenting. I Wish I Were Kidding.

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A large portion of the strenuous life of bloggers consists of cruising various news sites, looking for some tidbit ridiculous interesting enough to merit a couple hundred words. You do this long enough, and you wind up getting picky pretty quickly. So, last night, when I clicked over to Wired, it was surprising in and of itself that when I saw the following story I literally just stared at the screen, slack jawed, for close to a minute.

That’s how ridiculous this proposed legislation coming out of New York is. The only thing I can say is that if this bill somehow managed to become law, the Above the Law commentariat would not be happy at all…

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When Will We Stop Punishing Children for Being Children?

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I really, really hate being the one to defend stupid teenagers who get expelled from school. The ones who are kicked out for cursing online or for other forms of bullying.

Because I was a teenager once — not even that long ago — and I still clearly remember what it feels like to be on the receiving end of horrid teenage evilness. But somehow, I can’t help myself.

So here you go. Keep reading to see why the ACLU is doing the right thing by defending three eighth-grade girls who were expelled for talking about killing people on Facebook…

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Texas Couple Wins Massive Defamation Verdict Against (No Longer) Anonymous Commenters

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We’ve covered the trials and tribulations — and occasional dishonorable public unveiling — of anonymous internet commenters before. And we have learned that just because someone comments anonymously does not mean no one can find out their identity.

A Texas couple, a day spa owner and a prominent attorney, won a large defamation suit against would-be anonymous commenters last week, showing once again that your secret identity is never as secret as you might hope.

The couple may not be billionaires, but after the massive defamation verdict, which stemmed from untrue criminal accusations made online, they might feel compelled to start rocking out to a milli, a milli, a milli, a milli…

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Morning Docket: 04.18.12

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* Since you’re so funny, crack some jokes about this one, Obama. Senate Republicans will be filing an amicus brief in support of a challenge to the constitutionality of the President’s recess appointments. [New York Times]

* Thanks to this Third Circuit ruling, you can rest easy knowing that you can rely on the First Amendment to protect your homemade sex tapes from all of those strict porn record-keeping and labeling requirements… for now. [Reuters]

* Due to Kelley Drye’s EEOC settlement, the New York State Bar Association is asking firms to end mandatory retirement policies. Because old folks need to make bank till they croak. [Thomson Reuters News & Insight]

* The ABA’s Commission on Ethics 20/20 has decided to ditch its proposal to allow limited nonlawyer ownership of law firms. Cue tears and temper tantrums from the likes of Jacoby & Meyers. [Am Law Daily]

* “If I believe that Chris Armstrong is a radical homosexual activist, I have a constitutional right to express that opinion.” Yeah, yeah, yeah. Tell that to the judge who dismissed your suit, Shirvell. [Detroit Free Press]

* Presenting “her royal hotness”: apparently Pippa Middleton has been seen cavorting around France with gun-toting lawyer Romain Rabillard, of Shearman & Sterling. [Daily Mail]

Quote of the Day: That Doesn’t Exactly Make Sense, Either

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Half of it’s nonsense, and the other half is more nonsense.

– Tony Abbatangelo, referring to blog comments in the course of responding to a defamation suit filed against his client, an anonymous internet commenter known only as “Lawyer.”

(What are the salacious comments that “Lawyer” is being sued over? Find out, after the jump.)

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Bad News for Anonymous Commenting

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Boo. Boo. BOO.

Joe Lieberman, the Senator from Connecticut who has evolved into a cartoon-level villain on the left, is at it again. The Daily Kos reports that Lieberman is proposing to gut Section 230 of the Communications Decency Act. For you commenters who don’t know what Section 230 is, I have neither the time nor the inclination to explain it to people who benefit from the freedom that it provides and then question the manner in which it provides it.

Seriously though, if Lieberman has his way, websites could be held responsible for the filthy, disgusting, misogynist, racist, and often quite funny comments left on their posts. This could lead sites to crack down on or eliminate anonymous commenting.

If you think I’m going down so somebody can make a walrus joke about the wrong person, you’ve got another thing coming….

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Why the F*** Was This High School Student Expelled for Tweeting the F-Word?

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Every so often we hear a new story about a student getting suspended / expelled / paddled for some nonsense offense. These days, the disciplinary problems usually are are a result of some alleged electronic misconduct.

A debate usually follows, where people question the legality and general appropriateness of several issues: was the student punished for something he did at school or at home? Was he or she making some kind of threat, whether serious or sarcastic? How much should a school insert itself into its students’ private lives?

Whatever side of those questions you fall on, at least they are valid points to raise. But what about the student who is expelled for a 2:30 a.m. tweet from his home — a tweet that was simply a juvenile exploration on the word “f***”?

You have to be f***ing kidding me.…

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When Anonymous Commenting Goes Real Wrong

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People always ask the Above the Law editors, “What kinds of people leave such horrible comments on your website?” And we always say, “Regular people, the ones you work with or socialize with.”

Most internet commenters are regular people who, under the Invisibility Cloak of cyberspace, feel free to say whatever disgusting/ridiculous/illogical thing that pops into their heads.

Lest anyone think the phenomenon is unique to our website, please think again. For better or worse, trolling is an inevitable part of online media. Most of the time, it’s best to just ignore it. Once a while, however, anonymous online commenting may signify something larger and more pernicious.

Case in point: our inbox was flooded over the weekend with the emerging scandal of a prosecommenter (yeah, you read that right) in New Orleans. This is what happens when a federal prosecutor takes his case to the interwebs instead of the court. Bad times…

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The Practice: A Lawyer to Emulate — Marc Randazza

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And so last week I wrote about mentors, questioning whether today’s young lawyers considered them crucial to professional and personal development. I questioned whether the high calling of being a lawyer has today been reduced solely to a desire for cash, and as such, nothing more than the hope to be “first” on Google and have a “game changing” web presence.

Which brings me to what you can call “Part II” of last week’s mentoring post, and an example of a lawyer to emulate.

There are certain lawyers that bring to mind a one- or two-word description. David Boies — Bush / Gore, Morris Dees — Civil Rights, Clarence Darrow — Criminal Defense, and when I hear “First Amendment,” I think Marc Randazza.

When I hear “first page of Google,” I can’t name one lawyer, and if I can, it’s not a lawyer that matters, except maybe to a bunch of lawyers looking to be the next internet sensation. Being an internet sensation as a lawyer is no different than having been a yellow pages sensation in the previous generation. Ever seen an obituary of a lawyer that said: “She was respected for her two-page, multicolored ads that were placed ahead of all other lawyers in the yellow pages”?

Marc Randazza isn’t an internet sensation. He’s only got about 275 followers on Twitter (and is therefore clearly on his way out of the profession if you ask any social media expert), but Marc Randazza matters.

Would you like to matter in this profession? Will you ever do anything important — anything that causes others to think of you as “that” lawyer for “that” type of case or issue? Or are you just hoping to win that stupid lawsuit against your law school for forcing you to go there because they promised you a job? Or maybe you’ve just bought in to the lie that to survive as a lawyer, you must vomit all over the internet with whatever your marketer tells you is the latest trick to game Google?

And before the commentariat’s collective head explodes, yes, Marc Randazza is my lawyer. I’m in the group currently being sued by Joseph Rakofsky….

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Justice Scalia at Wesleyan: Now With Photos and Video

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Protesting Justice Scalia at Wesleyan.

Yesterday I wrote about Justice Antonin Scalia delivering the distinguished Hugo Black Lecture at Wesleyan University. In my write-up of Justice Scalia’s remarks, I alluded to campus protests held immediately prior to the speech. These protests, by a group calling itself the “Scalia Welcoming Committee,” were styled “Occupy Scalia” (a somewhat unfortunate moniker, in my view.)

I took some photographs and video footage of the protestors. Check these people out….

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Justice Scalia Goes to Wesleyan

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Justice Scalia speaking last night at Wesleyan University.

Last night, Justice Antonin Scalia delivered the prestigious Hugo Black Lecture at Wesleyan University, speaking in the university’s Memorial Chapel before a packed house. Wesleyan is an uber-liberal school — the basis for the movie PCU, about a very Politically Correct University — and Justice Scalia’s visit was preceded by campus protests (dubbed “Occupy Scalia”). But I was pleasantly surprised by how respectful and appreciative the audience was of Justice Scalia’s deeply thoughtful and persuasive remarks; the protests during his speech were minor and clustered near the end.

I trekked up to Middletown from New York City to attend the lecture. What did Justice Scalia have to say? And what did the protests entail?

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