Citizens United v. FEC

“[I]f speech can be prohibited because, in the view of the Government, it leads to ‘moral decay’ or does not serve ‘public ends,’ then there is no limit to the Government’s censorship power.”

Justice Antonin Scalia, concurring in Citizens United v. FEC (2010).

Not much more to say…

Loose Lips Sink Ships

There’s and old saying; I’m sure you’ve heard it. “Loose lips sink ships.” It an old adage about keeping your mouth shut so the enemy can’t find you, and destroy you. As a criminal defense attorney I am amazed at the number of people who find it compelling to talk to law enforcement about their cases with the hopes of them “dropping the charges.” And with the recent developments of Tiger Woods and his refusal to speak with law enforcement about his accident, I am amazed at the number of “legal experts” who are going on the record saying that Tiger should have spoken with the police. WHAT?! Are you serious? A legal expert said that?  Yeah, maybe a prosecutor! Every prosecutor loves a confession.  It makes their job so much easier! (Not that it wasn’t easy enough to begin with).

Anyway, my law partner recently watched these so called “legal experts” and was appalled by their “come hither and tell me your secrets” attitude.  It kind of reminds me of Kaa, the snake, in Jungle Book, hypnotizing young Mowgli saying “trusssst in meeee…” as he slowly wraps himself around him, to crush him and eat him. However, she was greatly with impressed with the Today Show’s legal reporter Dan Abrams for sticking up for the Constitution and the Right to Remain Silent. So much in fact, she drafted an email to the show:

Dear TODAY:

As a criminal defense lawyer, I am shocked and dismayed to see the parade of so-called legal experts declaring that Tiger Woods made the wrong decision by choosing not to talk to police about the accident at his home.  With the exception of Dan Abrams (go Dan!), I have not heard anyone assert the very important fact that Tiger and every other individual in America have the absolute right NOT to talk to authorities.  In thirteen years of criminal practice, I have never seen a situation where making a statement to police led to anything positive.  Law enforcement leads the general public to believe that they will not file or will drop the charges “if you just explain.”  This is far from true. Rather, if they didn’t have enough evidence to charge you before, you just gave it to them by talking.  I wish more of my clients would follow Tiger’s example and exercise their constitutional right to remain silent!

Lia Fazzone, Esq.

Way to go Lia!

So, what can we learn from all of this? It used to be patriotic to keep your mouth shut.  So, just follow Uncle Sam’s advice:

Chinese Agencies in Conflict Over World of Warcraft

This story was first brought to my attention by Scott and Randy at The Instance podcast. (Love the show by the way).  If i had the subscription to the New York Times that I am in dire need for, I would have ran across the story myself.  However, admittedly, I am a HUGE World of Warcraft fan and was pleased to get the story information from The Instance. Let’s not forget this story originates from the New York Times.  The dispute is between two Chinese Governmental agencies and which one will gain the power to regulate the World of Warcraft, one of the 10 most popular online games in China.

According to the New York Times story:

On Monday, the Chinese General Administration of Press and Publication ordered the Shanghai-based operator of World of Warcraft, NetEase, to shut down its servers for World of Warcraft. The agency said that it had rejected the company’s application to become the new host of the game’s four million Chinese players.

But by Wednesday, the Ministry of Culture had struck back.

“In regards to the World of Warcraft incident, the General Administration of Press and Publication has clearly overstepped its authority,” a ministry official, Li Xiong, was quoted as saying in the Economic Information Daily, a newspaper in Beijing. “They do not have the authority to penalize online gaming.”

The ministry said it had that authority. And it said NetEase was perfectly free to offer the game on computers in China. The matter now appears destined for settlement by the State Council, the Chinese government’s cabinet.

Last June, Blizzard Entertainment dropped the previous operator of the game’s Chinese franchise in favor of NetEase. NetEase shut the game down while it reapplied for permission from the Ministry of Culture and the publication agency. The ministry swiftly approved the game, while the publications agency lagged. In September, after the State Council issued a statement reaffirming the ministry’s authority over games already online, NetEase restarted World of Warcraft — and drew the publication agency’s wrath.

As Randy stated so simply, this scenario is the equivalent of an NFL team changing ownership and no longer being allowed to participate in the NFL.

Read the entire story here.

Rapper sentenced for posting rap lyrics on a web site

The headline on this Orlando Sentinel story reads: “Man’s rap song called a threat to cops, so he’s in jail for 2 years.”

Others read:

Column: Rap lyrics shouldn’t add to rap sheet

First Amendment Lawyers Say Jailing Rapper for ‘Kill Me a Cop …

Full Coverage: Lakeland man gets 2 years in prison for rap song lyrics

Column: Rap lyrics shouldn’t add to rap sheet

Lakeland man gets 2 years in prison for rap song lyrics

Man goes to prison over his rap song’s lyrics

Just to name a few…

Believe it or not, good ‘ol Polk County Florida has arrested and sentenced a man to jail for speaking his mind and expressing his First Amendment rights! Or, to put it in the terms of a close (and beautiful) public defender friend of mine, “WTF? This is ridiculous – punishment for ‘bad thoughts.’ Jesus.”  Gotta love her!

Antavio Johnson’s song, “Kill Me A Cop,” was posted on the Myspace.com page of an unofficial record label in February. It was online for about two weeks before a Polk County gang detective discovered it and began investigating, according to the Polk County Sheriff’s Office.  Johnson’s friends and family say he was frustrated with the Lakeland police a few years ago when he recorded a violent rap song that called officers by name and threatened to shoot them.  Those words, they say, were meant only as a creative outlet and not intended to be made public or acted out.

Last month, Antavio Johnson pleaded no contest to two counts of corruption by threat of public servant in exchange for two years in prison.

Needless to say, the case has disturbed the minds of First Amendment advocates everywhere.  My close friend, and First Amendment guru, Larry Walters didn’t think the lyrics were reason enough to charge and convict Johnson.

“Wanting to kill cops is not a prosecutable offense,” Walters said, adding that the lyrics made conditional threats and were not made directly to the officers named. “Even if this would cross the line, this is a song. We live in a free country.”

The ACLU has chimed in as well.

“We don’t punish for bad thoughts in America,” said Howard Simon, executive director of the Florida chapter of the American Civil Liberties Union. “Our Constitution forces us to make a distinction between ugly and hostile thoughts and words, and credible threats of violence.”

The Polk County sheriff’s detective found Johnson’s rap song, Kill Me a Cop, on the Internet social networking site. Johnson’s lyrics were a rant against the Lakeland Police Department, mentioning the jailing of one of his friends.

“Im’ma kill me a cop one day,” he raps, “cause I’m tired of ‘em playin’ with my life.”

The song mentions an officer by name, saying, “Get my timing wrong, Im’ma be puttin’ one in his dome.” And in another verse, it repeats those words with the name of a female SWAT officer. (Source)

In my research on this case, I discovered that famed rapper Ice-T wrote a song called Cop Killer back in 1990, which was distributed by a major record label. In that song, Ice-T mentioned the LA Chief of Police and the killing of LA Police Officers. (source). But he was never arrested (although Warner Bros. declined to distribute the song on the feature CD). And as we all know, Ice-T went on to much success in Hollywood.

Source

GOP – OOPS!

I’m not sure if any of you paid enough attention to political ads last year to notice that the GOP of Ohio was running an ad for then Presidential Candidate John McCain which featured the hit song from Jackson Browne “Running on Empty” during his presidential campaign.  Well, apparently the GOP didn’t get permission from Browne to use the song in any of its advertisements. And Browne sued.

However, recently, according to the Associated Press, Jackson Browne has settled the lawsuit and received an apology from Sen. John McCain and the Republican Party over use of his song. The settlement includes a pledge by the GOP not to use any musicians’ work without proper permission in future campaigns, a statement that Browne said he hoped would benefit other artists. Personally, I am happy to see that Browne is looking out for the industry as a whole, especially in an age where piracy and copyright violations are a common theme. These artist work their hearts out and deserve all the credit in the word.  It kills the art when others take advantage of these musicians (or filmmakers, or photographers) just to benefit themselves. I think this could have turned out to be a brutal predicament for the GOP but for Browne’s professionalism and decorum.

Read the story here.

Tennessee man charged in ‘virtual pornography’ case

A Tennessee man faces charges of aggravated sexual exploitation of a minor. There were pictures of three different girls’ faces on adult bodies. One of the pictures appears to be Miley Cyrus, Disney star. The other two pictures are of local girls, a 10 and 12 year old. None of the pictures featured an actual child’s body. Investigators do not believe that the man had any contact with any of these girls. Officials say, having children’s faces on pictures of adult bodies indicate “simulated sexual activity”. This situation is very similar to State v. Zidell, 940 A.2d 255 (2008). The defendant in this case did the same as the Tennessee man who is being charged with virtual pornography. He took pictures of minors and placed their faces on images adult bodies. The New Hampshire Supreme court determined this was not child pornography because the minors were not victimized during the creation of these pictures. The defendant told the police that the sexually explicit “photographs were only his ‘personal fantasy’ and that they were not real.”

It will be interesting to find out the outcome of this case because, in 2002, The U.S. Supreme Court ruled that “virtual child pornography,” where no children were actually harmed, is protected speech and does not constitute a crime. In Ashcroft v. Free Speech Coalition, the US Supreme Court declared as unconstitutionally overbroad the comparable United States Statute, the Child Pornography Prevention Act of 1996, 18 U.S.C.A. §2251, et. seq., (CPPA). It found that the language of the United States Statute prohibiting depictions, including pictorial depictions of non but simulated minors or using non-minors who looked like minors as being beyond the ambit and power of the United States Congress, as constrained by the First Amendment to the United States Constitution. The word “Depict” means: (1) to represent by or as if by painting; portray; delineate. (2) To represent or characterize in words; describe.” Webster’s New Universal Unabridged Dictionary, 1996, Page 534. Clearly, the use of the word “depict” is to include virtual representations – characterizations, paintings, and portrayals. The Colorado statute uses similar definitions to that employed by the CPPA. The Colorado Statute similarly prohibits depictions and includes simulations. It does not limit itself to the use of actual photographs of children. It is equivocally overbroad.

(Source)

Vermont Proposes Changing Laws on “sexting”

This article is an importnt addition to the my recent posts. (See, Girl Posts Nude Pics of Self and is Charged with Child Porn, Teens Sue Prosecutor over Racy Cell phone pics,and the Hypocracy of Law) It completes the circle in the variuos arguments for and against this conduct.

State legislators in Vermont are moving to decriminalize the practice known as “sexting.” “Sexting” is the sending of “erotic” (i use that term loosely) images taken with your cell phone and sent to another’s cell phone.  When this is done between individuals who are under tha age of 18, the images, in the eyes of the law, become child pornogrpahy. Vermont legislators, unwilling to force teens to go through life as registered sex offenders because they foolishly used their cell phones and computers to exchange revealing photos of themselves with friends, feel that a change in the law is necessary.

As  most states’ laws are written, no distinction exists between pedophiles who possess sexually explicit images of minors and underage teens who consensually exchange images of themselves. As more minors are being prosecuted as adults and being branded sex offenders for life, Vermont is among the first to consider legislation to separate what teens do among themselves from adult crimes.

The proposed legislation in Vermont would decriminalize consensual sexting between kids who are between 13 and 18 years old.

Clearly, this opens the flood gates of debate.

Read the story here.

Girl posts nude pics, is charged with kid porn

Well, it looks like this is going to be a trend across the country. Not sure what the trend is; prosecuting kids for expressing themselves, or just kids expressing themselves.  In any event, the debate will be good and many of the laws will be challenged.

The most recent case stems from a 14-year-old New Jersey girl who has been accused of child pornography after posting nearly 30 explicit nude pictures of herself on MySpace.com. (Source)

Just look at my other recent posts below…

Ohio college removes sculpture showing sex act

Ok, this will be tought provoking.

Is it art or is it offensive?

If it’s art, and offensive, should it be censored?

The piece by artist James Parlin, called “The Middle School Science Teacher Makes a Decision He’ll Live to Regret,” had been part of an exhibit at Bowling Green State University’s Firelands campus. The campus’ interim dean removed the sculpture last week. The sculpture depicts a girl and a teacher engaging in a sex act.

The National Coalition Against Censorship, based in New York City, condemned the university’s actions, saying it raised serious free-speech concerns. On its blog, the coalition said removing the sculpture was “an unacceptable violation of the academic freedom to openly discuss ideas and social problems in a public university.”

According to the AP story,

The university issued a statement saying it “strongly supports the right of free speech and artistic expression. However, we also have a responsibility to not expose the children and families we invite to our campus to inappropriate material.”

The coalition said the university could have taken steps short of removing the sculpture, such as posting signs for parents or closing the gallery during children’s productions at the theater next door.

Source

Teens sue prosecutor over racy cell-phone pics

The Associated Press is reporting that three Pennsylvania teenagers are suing a prosecutor who wants to charge them with child pornography over racy cell-phone pictures of themselves.

The ACLU joined in the fight for the three girls suing Wyoming County District Attorney George Skumanick Jr. from filing charges. Two of the girls are 13-year-olds who were shown in their bras and say they were having innocent fun when a friend took their photo. Another picture shows a 16-year-old girl with a towel around her waist. The teens say the photos are protected speech, not pornography. (Source)

Is it true that teens finding more ways to express themselves? Expression? Isn’t that what we adults call constitutionally protected speech? Are we saying that teens don’t have the same constitutional rights as adults do to express themselves? Shouldn’t a teenager have the same right to expression? Or, do we follow the thoughts of Candice Kelsey, a teacher from California and author of Generation MySpace: Helping Your Teen Survive Online Adolescence, that “Adolescents are not known for thinking things through – that’s a generational constant.” (Source).

This is certainly bound to create debate. I’ve also written on this subject on more than one occasion, and actually been written about on the subject. See: The Hypocracy of Law, A Model Prisoner, and Kids for Sale.