As one of the trial team for Leland Wolf, we worked hard and focused our attacks against Righthaven, seeking relief from the U.S. District Court in Colorado to put an end to Righthaven’s infestation here.

The argument was simple: Righthaven did not have the rights to sue as it claimed to have had. After countless hours of research and briefing, two court appearances, Jay DeVoy, Marc Randazza and I were able to take the wind out of Righthaven’s sails. For now, this Opinion closes the door on approximately 35 other pending cases Righthaven has in Colorado.

To quote from the first paragraph of Judge Kane’s opinion (you really don’t have to read much further, but it’s fun to):

The issue presented in this case, whether a party with a bare right to sue has standing to institute an action for infringement under federal copyright law, is one of first impression in the Tenth Circuit. After considering the parties’ written and oral arguments and analyzing the constitutional underpinnings of federal copyright law, the legislative history of the 1909 and 1976 Copyright Acts, and the meager precedent available from analogous situations in other Circuits, I hold that the answer to that question is a forceful, yet qualified, “no” …

 As it has done on countless other occasions, undoubtedly, Righthaven will appeal this recent opinion and see how the 10^th Circuit Court of Appeals deals with the argument.  This battle isn’t over. And just like the zombies at the end of a “B” movie, Righthaven might just come back to life. And when it does, we will be ready for it!

Read the opinion here!

According to the Associated Press,

Unanimous votes by the Arizona House and Senate sent the bill to Gov. Jan Brewer, who signed it Tuesday night. It took effect immediately. Without specifically mentioning the Tucson shooting, the law prohibits protests at or near funeral sites.

The Westboro Baptist Church has made strides in its attempts to gain recognition for its cause, primarily by picketing military funerals to draw attention to its view that the deaths are God’s punishment for the nation’s tolerance of homosexuality. It plans to picket Thursday’s funeral for Christina Taylor Green because “God sent the shooter to deal with idolatrous America.”

I’ve mentioned this group in the past and one of my students wrote extensively on the subject. (Student Blawg – What Price Freedom of Speech).

I understand the issues here, but I don’t think that chipping away at one’s fundamental liberties is the proper response.  I don’t think it sends the right message to people.  Just because you don’t like, or want to hear, the message of the speaker at a certain location, doesn’t mean you pass a law to prohibit it. Make a special note here, the WBC was not singled out in the law.  So, the law applies to any person protesting under these circumstances. I’m still looking for a copy of the law itself, and will bring you more when I find it.

Generally, The Arizona legislation is modeled on an Ohio law that was upheld by the 6th U.S. Circuit Court of Appeals. The four-paragraph Arizona bill makes it a misdemeanor punishable by up to six months in jail to picket or conduct other protest activities within 300 feet of a funeral or burial service — about the length of a football field. The prohibition applies from one hour before the event to one hour after.

This will all boil down to whether this is a reasonable time, place and manner restriction on the location of the speech, since it doesn’t ban the speech in its entirety and is essentially content neutral. Our courts will decide…

Source

This ruling opens up the flood gates of abuse by law enforcement, such as unfettered warrantless searches of e-mails, documents and contacts your IPhone or Blackberry.  Not to mention, that tablet and laptop computer you’re toting around.

The ruling involves the 2007 arrest of Gregory Diaz, who purchased drugs from a police informant. Investigators later looked through Diaz’s phone and found text messages that implicated him in a drug deal.  Diaz appealed his conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. The court disagreed, comparing Diaz cell phone to personal effects like clothing, which can be searched by arresting officers.

“The cell phone was an item (of personal property) on (Diaz’s) person at the time of his arrest and during the administrative processing at the police station,” the justices wrote. “Because the cell phone was immediately associated with defendant’s person, (police were) entitled to inspect its contents without a warrant.”

What a bunch of junk. When are the courts going to stand up for the 4^th Amendment instead of chipping away at it?  Generally, the 4^th Amendment protects one from unreasonable searches and seizures without a warrant.  The CA Supremes here didn’t even carve out an exception to the warrant requirement, such as exigency or a crime in progress.  So, where does that leave us?  That makes this ruling the RULE, not the exception.

What’s the moral here?  Don’t have your cell phone in your pocket when you’re arrested.  Stick it in the trunk along with your gym bag; that seems to be the only place where the 4^th Amendment maintains a little dignity.

Read the opinion here!

MSNBC Link

The Court stated:

Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection…. It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve…. [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call–unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement….

Applying the Fourth Amendment sets the first legal precedent of its sort and could prevent the government from any further attempts to snoop civilian e-mail without a warrant.

Read the opinion here!

Did this violate his First Amendment right of free speech?

Mr. Lampley’s 1^st amendment rights were violated because:

1.  The 1^st amendment states:  “Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief. The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government.” (websource Cornell University.

2.  The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more on unprotected and less protected categories of speech see advocacy of illegal action, fighting words, commercial speech and obscenity. The right to free speech includes other mediums of expression that communicate a message.  The level of protection speech receives also depends on the forum in which it takes place”.( websource Cornell University)

Therefore, when the judge had Danny Lampley put in jail for not reciting the “Pledge of Allegiance he violated Mr. Lampley’s 1^st amendment rights.  However, a judge can demand respect in his courtroom and he can dictate how he would like his court room to be ran.  If a lawyer is either conducting business or just visiting any court room, he or she should always show respect to the judge by following his instructions; and if the lawyer does not want to follow the instructions he or she should give an explanation as to why they do not have to follow the judge’s instructions.
http://www.opposingviews.com/i/mississippi-lawyer-arrested-for-not-saying-pledge-of-allegiance

Protesting at Military funerals.  Was this what our founding fathers had in mind when they wrote our first amendment rights?  The Supreme Court is hearing a case about whether protesting at a funeral is protected by the first amendment.  Pastor Fred Phelps of the Westboro Baptist Church and his congregation believe that American casualties of the Iraq and Afghanistan wars are God’s way of punishing America for upholding rights of homosexuals.  Matthew Snyder, a Marine Corp lance corporal was killed in Iraq in 2006; when his family had a funeral for him, members of Westboro Baptist Church picketed at his funeral.  Their signs said things like “God Hates America” and they blame his death on what they call “the sins of America” and of his divorced parents.  (There is no indication that Matthew Snyder was gay, the church just feels that his death is part of the plan for God to punish America.)  Phelps was sued by Albert Snyder, Matthew Snyder’s father, for intentional infliction of emotional distress; Snyder won the case initially but it was overturned at the U.S. Court of Appeals, and now it is before the Supreme Court.  Peaceful protests have long been part of the landscape of America; will the Wesboro Baptist Church’s protests be protected?

The Court must now decide the issue of right to free speech versus right of privacy.  The American Civil Liberties Union has sided with Phelps, stating that the protesters were not on private property, so their free speech should not be restricted.  The ACLU believes that protecting our 1st amendment rights at any cost is the main priority.  If the Supreme Court is able to restrict the 1st amendment rights, then it is open to question what other rights they will be able to restrict.  The 1st amendment is the most basic of our rights as American citizens and if those are able to be compromised, then so is the meaning of what it is to be American.

The Veterans of Foreign Wars are behind Mr. Snyder, the VFW feels that bereaved families have a right to grieve in private.  Most people agree that Pastor Phelps’s message is hateful and disrespectful, and his delivery method is even worse.  Will the Supreme Court be able to rule in favor of Snyder while still upholding free speech?  And if the Court rules in favor of Phelps and his church will it serve as a justification for people to hate and bully homosexuals as in the instance of Tyler Clementi who jumped off of the George Washington Bridge after his roommate at Rutgers posted a video on the Internet of him kissing another man?  Should the U.S. government protect free speech at all costs?  These are the questions that the Supreme Court will have to answer.

Sources:
http://www.time.com/time/nation/article/0,8599,2024062,00.html

http://www.usatoday.com/news/nation/2010-08-30-1Afuneralprotests_CV_N.htm?csp=obinsite

http://www.ydr.com/premium/ci_16298120

http://en.wikipedia.org/wiki/Westboro_Baptist_Church#Funeral_pickets

http://dailycollegian.com/2010/10/12/rutgers%E2%80%99-student%E2%80%99s-death-sparks-shock-outrage/

In October of this year TSA was able to implement the new pat-downs or body scans.  Not everyone will need to do these.  There is much criticism over these new pat-downs and body scans and that is due to people feeling like their privacy is being invaded.  Not to mention, the delay associated with the search is making lines at the airport much longer then they have typically been.

I know we all can agree that we want it to be safe for us to travel by plane, but at what cost?  It wasn’t an easy decision for TSA to make in changing how they do their security checks; they had to get approval all the way up to the white house and give reasons for the change.  A lot of people seem to think that pat-downs are going above and beyond a reasonable search.  Some people feel as if they have been assaulted.

TSA already uses a method called profiling;  “behavioral and country-of-origin profiling” to be exact. This method is how they determine whom to subject to secondary screenings.  The pat-downs really only occur about 1 in every 100 passengers.  Usually, pat-downs would be done when someone refuses to go through the body scan.  They also occur randomly, or if the airport doesn’t have a scan machine.

No one is exempt from these new security checks, including kids and elderly.  Subjecting children to pat down searches raises concern to some that their children are being touched on parts of their body that they have never been touched before.  Critics argue, on the other hand, that it’s just as easy to use a child to bring a bomb on a plane as it is an adult.  One has to wonder if they are doing these new security checks on your body, then what more are they doing with your bags.

Advocates argue that while these new security measures may seem like they are taking away our rights to privacy, they are here for the point of making our country safer. You don’t hear much if any about bombs being smuggled in on a person traveling from the U.S. to another country.  The reason for this is because their security is so high there and the punishment is so harsh that it detours people from even trying.

So, what can we make of all this?  Well, it may be as simple as more people resorting to other ways we use to travel — car, train or even bus.  Leaving airlines with no ticket holders can lead airlines bankrupted and many would loose their jobs. But that is unlikely. Efficiency and speed dictate the airlines will be here to stay, and with it the enhanced invasions. Security has it’s price in one way or another.

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According to the Aspen Daily News, District Attorney Martin Beeson said that he stands by recent comments he made in October 2010 criticizing public defenders, as lawyers throughout Colorado condemned his statements.

These comments stem from a meeting he had recently with Pitkin County commissioners concerning his office’s 2011 budget. Beeson criticized local public defenders for some overzealous courtroom tactics, accusing them of unethical behavior and abuse of the system, wasting taxpayer resources, filing meritless motions clogging courtrooms, and unnecessarily using up tremendous resources at taxpayers’ expense.

Beeson told the Aspen Daily News, “Public defenders are not defenders of the public. They are not serving the public good. They are taxpayer-funded attorneys for criminals.” According to the News, he said that Public Defenders “are government-funded defense attorneys and should be called just that, government-funded defense attorneys.”

Who is this guy? He is clearly not anyone who gives a damn about equal justice for all. I guess he skipped over the part of the Constitution that imposes due process. Remember that?  Thou shall not be deprived of life, liberty or property without due process of law?  I guess he expects the accused to just lie down and roll over.

Talk Left commentator, Jeralyn stated in an article “The Worst Prosecutor Comment of the Week” of October 22, 2010, states that “… Someone needs to clue Beeson in to the purpose of the Bill of Rights… The framers of the Constitution understood mistakes happen, and it is better that a guilty person go free than an innocent person be convicted.”

SOURCE

I have to appreciate the comments of my friend and colleague, Tina Fang for sticking up for her office, who has to deal with this clown on a daily basis. According to the News, she said his characterization of their work “demonstrates why, now more than ever, the public defender’s office must heed its mission to ensure that indigent people accused of crimes in this valley are provided the highest and most zealous level of representation money can’t buy.”

The head of the Colorado Public Defenders System, Defender Douglas K. Wilson, said via e-mail: “It is sad, and scary that Mr. Beeson does not believe in the same principles.”

Doug Wilson went on record with the News criticizing Beeson.  “The men and women that work for the [state public defender] work for the poor with little financial reward because they believe in the protections set forth in the Constitution by our founding fathers.”

I agree! What kind of archaic attitude do you need to have to believe that the citizens of your country, state, or county are not entitled to due process and the right to be innocent until proven guilty; or that the government better have enough evidence to convict you beyond all reasonable doubt? It is the DA’s obligation to prove beyond a reasonable doubt to guarantee the protection of the innocent.

SOURCE

In retaliation to the report published in the Aspen Daily News, Martin Beeson refused to apologize for his statements about the public defenders, claiming that he was misquoted, and backed up his initial statement with a Guest Opinion article ‘The Truth Hurts’ which was published in The Aspen Times on November 1, 2010. Beeson writes “The presumption of innocence and the right to counsel are simply smoke screens thrown up by those who have a vested and pecuniary interest in protecting their dirty little secret. …It is the prosecutor who represents you, the people. It is the defense attorney who represents the interests of the perpetrator who has forever devastated the life of the victim… …The truth is that prosecutors and law enforcement officers live with the pain of victims of crime. Defense attorneys do not.  …the only apologies needed are from those defense attorneys who routinely re-victimize the good and decent people of our communities who have suffered devastating and life-altering experiences at the hands of their clients.”

SOURCE

Tom Silverman fired back at Beeson, stating that “Martin’s latest responses are so misguided, contradictory, and poorly grounded in law or fact that it begs for a response.”

“I remember cases in which the defense ‘frustrated’ the DA’s efforts to convict the innocent. The literal statement of the DA characterizes these people as ‘criminals’.”

“… Every warrantless arrest is presumed illegal. Most arrests are warrantless. Every statement to the police is subject to scrutiny regarding its voluntariness and compliance with constitutional warnings. Every case involves the obligation of the prosecution to provide exculpatory evidence, reports, and statements of witnesses to the defense. … Ethical conduct by the defense is to ensure the defendant’s rights are provided and protected. Failure to file motions is, in my opinion, a bigger problem than the filing of frivolous ones. Cynically believing that pecuniary interest of attorneys is the issue shows a fundamental misunderstanding of defense motives.”

SOURCE

Beeson’s unremitting statements are affirmation that his interests are not in support of due process of law, but more likely politically motivated tactics to instill fear in the public, as a push to move his political aspirations forward.

But not everyone is happy with the idea of the bill. While at a hearing on digital trade issues Oregon Democrat Senator Ron Wyden, said he would block the bill from passing through the full Senate.  “Deploying this statute to combat online copyright infringement seems almost like using a bunker-busting cluster bomb, when what you need is a precision-guided missile… If you don’t think this thing through carefully the collateral damage would be American innovation, American jobs, and a secure Internet.”

With only a few more days in the session this year it means the bill will need to pass soon or sponsors of the bill will have to reintroduce it next session. Some of the sponsors of the bill include Vermont Democratic Senator Patrick Leahy and Utah Republican Senator Orrin Hatch. They say it is much needed to combat copyright and trademark infringement online.

“The internet needs to be free – not lawless.” Leahy stated.

Similarly Hatch said in a statement, “The Internet serves as the glue of international commerce in today’s global economy. But it’s also been turned into a tool for online thieves to sell counterfeit and pirated goods, making hundreds of millions of dollars off of stolen American intellectual property.”

But when is protecting American intellectual property and preventing thieves from stealing millions of dollars infringing on American’s First Amendment rights? And if it does which is more important?…

Critics of the bill say it will amount to too much censorship and even if a website has infringing material it also has content that should be protected by free-speech rights. The Center for Democracy and Technology says it could lead to fragmentation of the Internet.  The EFF, Electronic Freedom Foundation, has labeled the bill as an “Internet censorship” bill.

President and CEO of the Computer and Communications Industry Association, Ed Black, says, “The significance and implications of the legislation I don’t think have been well thought through. Sadly, it’s an example of what not to do in an important, complicated digital ecosystem.”

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This seems to be a solid theme recently with many groups flexing their respective first amendment rights on various topics.  This is a free society, and with it comes the scrutiny of behavior and the right to counter point.

(and – as a bonus – you get to go to the U.S. Supreme Court when your local school board suspends the student with the “Fuck This Guy” signs.)

I can’t take any credit for any comments associated with these posts…