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Netflix is not what you might think it is

Netflix envelope

There is no need to stomp all over symbolic representations of Netflix's management

The internet was all abuzz yesterday with news of Netflix’s creation of a super PAC, called FLIXPAC, allegedly set up to promote SOPA/PIPA-type legislation.

Except it isn’t true, at least according to Netflix. Netflix is not supporting SOPA et al, it says.

You see, internet, this is why we can’t have nice things.

Politico ran a piece on April 5 with the not-terribly-earth-shattering headline “Netflix forms PAC.” It takes about thirty seconds to see that the article makes no mention whatsoever of any specific policy positions taken by said PAC. It doesn’t even call it a “super” PAC.

Fast-forward to April 9, when RT publishes “Netflix creates pro-SOPA super-PAC?” Note the use of the question mark. The article is a masterpiece of hedging:

As US lawmakers consider anti-piracy legislation, they may have found an ally in Netflix. The streaming content giant has created its own super PAC, raising claims that it will support anti-piracy measures in Washington to promote SOPA-like laws.

(Emphasis added) See the problem? It continues:

Hollywood and record industry support didn’t help Congress get SOPA and PIPA to pass the House and Senate, but now they may have a new accomplice in their continuing fight to try and push for anti-piracy legislation.

(Emphasis added) Keep reading…

The newly established agency may be able to endorse politicians by way of stuffing their pockets, which could influence even more congressmen to condone increasingly controversial bills considered in the House and Senate. Congressional records would seem to support this possibility, as they show that the lobbying expenses of Netflix rose from $20,000 in 2009 to $500,000 in 2011.

The most notorious of those bills – the Stop Online Piracy Act (SOPA) – is thought to have found initial support with Netflix CEO Reed Hastings, who reportedly expressed solidarity with SOPA’s ultimate goals in a letter to the Chamber of Commerce. However, once internet resistance to SOPA grew, Netflix hastily backtracked, insisting that the company has been “neutral” on the issue right from the start.

(Emphasis added) I think you get the idea.

This is why it is important to read an online article carefully and check the linked sources. In the case of the RT article, there are no linked sources. They don’t even link to the Politico article. That says something.

The one verifiable claim made anywhere in the quoted text, other than the simple (and innocuous by itself) fact of Netflix’s increased lobbying budget, is the CEO’s purported support of “SOPA’s ultimate goals.” Yes, Hastings did apparently send a letter expressing support for the goal of stopping internet piracy. Not to get too far from the original point of this post, but of course he would support stopping internet piracy. He makes money in part by selling streaming video. And stopping online piracy is not an inherently unworthy goal (wait for it…)

The problem with SOPA is that it goes too far and is ripe for abuse by overzealous content owners and prosecutors. It isn’t SOPA’s goals that are problematic (well, that’s arguable, but I’m generalizing), so much as SOPA’s methods.

After much public outcry, Hastings reversed any sort of overt support he might have implied for SOPA. That was a good business move. The public clearly does not care for SOPA, and Netflix has been near-catastrophically tone-deaf to the public’s needs in the recent past.

RT issued a correction of sorts earlier today.

The point here is that SOPA is bad news, but suggesting ill intent around every corner does not help the overall cause of developing a system of online copyright protection that actually makes sense. Netflix and Reed Hastings may actually love the crap out of SOPA, and this really is a ploy to help push it through Congress–but this sentence is pulled directly out of my butt, as there is no evidence of this whatsoever. So far.

I’m halfway through season 1 of both “The Wire” and “Mad Men,” so I’m glad I don’t have to give up Netflix. Yet.

Side note to Netflix: You dodged a bullet in September with your idiotic Qwikster plan. Just know that American consumers are watching you, and do not trust you. Lucky for you that you offer a good service people love. But then, Blackberry once had fifty percent of the smartphone market, and look at them now. Tread carefully.

(h/t abaldwin360)

Photo credit: Photo by author.

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Here’s a birther who doesn’t even pretend not to be racist

Meet Gordon Warren Epperly of Juneau, Alaska. He has found a novel way to challenge Obama’s place on the 2012 presidential ballot. Considering the absolute and utter smackdown that birther lawsuits took in Georgia recently, it would seem a new set of tactics is necessary (giving up and admitting it’s not only a lost cause, but also completely psychotic, is clearly out of the question) (for an excellent summary of the bloodening that the birthers endured in Georgia, check out BadFiction’s blog). How is Mr. Epperly presenting his case? Well, obviously, Barack Obama is ineligible for the office of President of the United States of America because he is black, or to use Epperson’s words, “Mulatto.” Don’t believe me? Good, that means you’re not insane.

Let’s hear Epperson tell it, shall we? (A full PDF of the complaint to the Alaska Division of Elections is here.)

[F]or an Individual to be a candidate for the office of president of the United States, the candidate must meet the qualifications set forth in the United States Constitution and one of those qualifications is that the Candidate shall be a “natural born citizen” of the United States. As Barack Hussein Obama II is of the “mulatto” race, his status of citizenship is founded upon the Fourteenth Amendment to the United States Constitution. Before the [purported] ratification of the Fourteenth Amendment, the race of “Negro” or “mulatto” had no standing to be citizens of the United States under the United States Constitution.

DredScottThere’s more, but it is worth pointing out that at this point he cites the Dred Scott decision, the 1857 Supreme Court case that held that slaves, and descendants of slaves, were ineligible for citizenship. He claims that the case “has never been distinguished (overturned).” Moving on:

As the Fourteenth Amendment is only a grant of  “Civil Rights” and not a grant of  “Political Rights,” Barack Hussein Obama II does not have any “Political Rights” under any provision of the United States Constitution to hold any Public Office of the United States government. Furthermore, there is considerable debate within the enclosed supporting documents that shows Barack Hussein Obama II was not born on the soil of the United States and that he was not subject to the jurisdiction of the United States at the time of his birth. If this is true, it would appear that Barack Hussein Obama II may not only be in want of having the status of being a “natural born Citizen,” but he may not even be a “citizen of the United States.” Being absent of proper status of Citizenship, Barack Hussein Obama II, nor his Delegates, have the qualifications to appear on the Election Ballots for the State of Alaska. (Emphasis in original)

A few observations at this point. First, he hedges quite a bit in his language, more than one might expect in a petition to a government agency. “There is considerable debate…” and “If this is true…” Not exactly the sort of forceful language one might expect in an original pleading. It is also common to use a shorthand when a name is repeated, e.g. “Barack Hussein Obama II (hereinafter “Obama”)” or something like that. I suspect he just couldn’t resist the opportunity to remind us at every turn that the president’s middle name is Hussein. At least he managed to stay away from the caps lock key.

Others have done an excellent job of putting Mr. Epperly’s arguments out of their misery, so I don’t need to waste too much ammo. If I am correctly reading his complaint (and my ability to read legal documents written in batshit can be a bit rusty), he is arguing that the Fourteenth Amendment did not actually overturn Dred Scott, and that therefore Barack Obama, and presumably anyone else of black, African-American, African, Caribbean, etc. ancestry is not a United States citizen, even if they were born here.

My legal analysis in brief: that’s crap.

Aside from that, he is rehashing many familiar tropes of the birther movement. President Obama is not “natural born” because his father was not a U.S. citizen, or because he was secretly born in Kenya, blah blah blah. This argument would have the intriguing effect of stripping U.S. citizenship from thousands of people born to citizens of other countries, despite the fact that “natural born” has been construed to mean “born on U.S. soil” for decades and longer.

In fact, any excessive amount of scrutiny of what it means to be “natural born” as it pertains to the presidency really didn’t come up at all until a black guy with a funny-sounding name got elected president. Don’t insult yourself, America, or humanity by trying to claim that racism is not a factor in all of this. Gordon Warren Epperly at least has the courtesy, and the courage, to be honest about it.

Photo credit: By Louis Schultze [Public domain], via Wikimedia Commons

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A (Very) Few Thoughts on Positive Rights

Internet access fundraisingI’m not about to go into some long-winded thesis on legal theory, but I have always found the question of “positive” versus “negative” rights very interesting. Put very simply, negative rights involve the right of freedom from interference in something, e.g. freedom of speech or religion, which really means the right to speak or practice without undue government interference. Positive rights are a tougher nut to crack. These are entitlements to some service, and they are not as easily asserted or enforced.

This is also not to be confused with legal positivism, which is a different concept that you should read about on your own.

Frank Pasquale has a post at Concurring Opinions where he addresses theories of positive rights as they pertain to health care and internet access. Interesting stuff around which I am still trying to wrap my head.

Photo credit: Internet access fundraising by HowardLake, on Flickr.

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Ahlquist Case Update: RI State Rep. Peter Palumbo is a Bad Person

The case of Jessica Ahlquist, who bravely stood up against an entire town to defend the Constitution, has been a model of good citizenship (on Ahlquist’s part, at least). Many, many other people have not behaved in much of an honorable manner. Now we have her duly elected state representative, Peter Palumbo, playing to his baser political instincts (via JT Eberhard):

Peter G. Palumbo, the Democrat in the RI House from the Cranston district, has no rebukes for the Jesus-loving liars, bullies, or thugs. He has nothing negative to say about the people who felt they were above the Constitution and lied to subvert it. He did, however, have something to say about Jessica. Palumbo said, sarcastically, that she is “An evil little thing.” That may have bee said sarcastically (there is debate over whether or not that line was sarcastic, but I’m willing to give him the benefit of the doubt), but the line “I think she’s being coerced by evil people” was most assuredly not. She is not being coerced, and her cause is not evil.

He said this of the girl who sought to do right to the best of her abilities and understanding, agreeably to the Constitution, and laws of the United States. The latter half of that comes from the United States oath of office. It is a pity, though not a surprise, that Jessica is the one who feels abiding by that oath is not “evil”.

Palumbo’s email address is rep-palumbo@rilin.state.ri.us. His office phone number is (401) 785-2882. Spread the word and inundate him. Our leaders should respect the constitution, not snipe at those who have been been confirmed to have fought in its defense. Palumbo has just sided with dishonesty and bullies. We should have higher standards for our leaders, but evil men with Jesus in their hearts and a populace of the same keep these kinds of monsters in power, and they keep noble women like Jessica standing between the monsters and the Constitution those monsters are sworn to uphold.

In a moral world, this man’s career would end with this. Let’s continue to pursue a moral world.

I can’t add much of anything to that, except this little aside to Rep. Palumbo: tsk, tsk.

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Jessica Ahlquist, Portrait of a Hero

Religious liberty (which includes both freedom of and from religion) won a big victory in Rhode Island this week, with a court ruling that a prayer banner at Cranston High School violates the Establishment Clause of the First Amendment and ordering the banner’s removal. At the center of the case is 16 year-old Cranston student Jessica Ahlquist, who stood up for her (and everyone’s) constitutional rights and has endured an ongoing litany of abuse and threats in response.

It is worth noting that this case is so straightforward a law professor might balk at even using it as a hypothetical in a first-year constitutional law class. A public school, in 1963, put up a banner titled “Prayer” beginning with an invocation to a “Heavenly Father” and ending with an “Amen.” Does it get any more prayerful than that? Faced with an almost-guaranteed loss, the school board decided to roll the dice with the funding that should be used to educate children, using it instead to pay lawyers to argue that their prayer is not really a prayer. Not surprisingly, a judge who has actually read several decades’ worth of Establishment Clause jurisprudence ruled in favor of Ahlquist. Also not surprisingly (but disappointingly), the backlash has been prompt and furious. The above link to the abuse heaped on Ahlquist is not for the faint of heart, nor for anyone who wants to remain blissfully ignorant of how some people can be.

Ahlquist’s supporters, of whom there are refreshingly many, are conducting a college scholarship fundraiser for her to make her future brighter than her present. Contributions will go to a fund set up by the American Humanist Association (of which I am a proud member). I encourage my reader(s) to stand in support of this brave young person. The world needs more people like her.

Related link: Ruling (PDF), Ahlquist v. City of Cranston, et al

Photo: linked from here.

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Celebrating a Year of Censorship and Attempted Censorship!

This monkey wonders why people are such asshats to one another...The always-intriguing and entertaining Popehat has put out his nominees for the “Censorious Asshat of the Year,” and the field is indeed proud. I am of course reblogging this for reas0ns, but I invite my reader(s) to take a look at the whole list and marvel at the human capacity for inanity.

To those who would use our hallowed legal system to try to quiet the voices of  those who would dare to hurt their fee-fees, intentionally or not, I simply have this to say:

Photo credit: The Thinker… by law_keven on Flickr.

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Washington court rules county “dangerous dog” policy unconstitutional, sort of

Working Like a DogExaminer.com (always a font of questionable journalism) ran a story last week about an appellate court in Pierce County, Washington that ruled the county’s “dangerous dog” policy to be unconstitutional. In fact, the headline reads “Dangerous dog policy in Pierce County deemed unconstitutional.” If only the story were that simple.

Now, I would be the first to welcome a bit of constitutional scrutiny of our dangerous dog laws. I’ve represented dog owners in dangerous dog proceedings, and I hope it doesn’t seem like too much of a pun to say they are frequently not much better than kangaroo courts. State, county, and municipal laws set out standards for how a determination of “dangerousness” is made, a hearing is scheduled, a judge or a panel of officials hear evidence from the dog owner, the victim, and others, and a finding of “dangerousness” almost always results. Because, at the end of the day, it is usually an injured person versus a dog, and the human almost always has more political clout.

Of course, I’m generalizing, but this has been my experience.

Now then, back to the constitutional question. The case in question involved a Great Pyrenees and a Pomeranian. I’d rather not get into the details of how that turned out, but suffice it to say the Great Pyrenees was the one on trial. The dog’s owner had to pay a fee to the county simply to obtain a hearing on the decision, made without her input at all, that her dog was dangerous.

The court in Washington did not rule that the county’s policy vis a vis the dogs themselves is unconstitutional. They ruled that the practice of charging fees to the dog owners to challenge determinations made by the county animal control authority to be unconstitutional. In short, if you live in Pierce County and you wanted to have an actual hearing on whether or not your dog is “dangerous,” you have to pay the county $250. That’s the fee for an “informal” hearing. For a “formal” hearing, you need $500. If you couldn’t afford the fee, the county could declare your dog dangerous, and you couldn’t do a thing about it. A “dangerous dog” designation could obligate you to obtain extra insurance, keep the dog confined at all times, or lose the dog entirely.

Charging a three-figure fee just to have a day in court, quite frankly, is crap, so the Court of Appeals did the right thing.

As for the policy towards the dogs themselves, unless and until the law starts to view dogs as something more than just chattel with teeth, it won’t be improving any time soon.

Photo credit: Working Like a Dog by KM Photography.., on Flickr.

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A Wisconsin professor had best make peace with his dear and fluffy lord

I have one viable claim to hipsterdom: I was into “Firefly” before it was cool.

I watched the show obsessively in the fall of 2002. I evangelized for it. I yelled at people who dared to doubt its awesomeness. I wrote letters to Fox urging them to give the show a fair shake. I mourned–O, how I mourned!–when the show came to its ignominious end (oddly enough, by showing the very first episode last).

Several years later, when the DVD allowed the multitudes of people who either didn’t know about the show in 2002 or had better things to do on a Friday night in 2002 and couldn’t work a VCR to discover the show anew, I was there to say “I told you so.” When a surge of popular support and demand led to the 2005 release of Serenity, the feature film follow-up to the TV series, I was out front to see it, to marvel at the power of fans, and (SPOILERS AHEAD) to mourn Book and Wash.

“Firefly” lives on in many ways, even if Joss Whedon’s subsequent projects haven’t been quite as compelling (although I am a big Dr. Horrible fan). The career of Summer Glau as the go-to strange, smart, unsettlingly hot guest actress on various shows (most recently “Alphas”) is but one of the testaments of “Firefly.” It has also left a lasting impact on my vocabulary (“shiny”) and left us many, many excellent quotes.

And that’s where I am no longer content to say that haters gotta hate.

That’s where the tribulations of University of Wisconsin-Stout theater professor James Miller enter the picture. Professor Miller’s tale threatens so many of the things I hold dear in life: satire, snark, free expression, generous use of move and TV quotes, pushing both buttons and envelopes, and so forth. To understand Professor James Miller, though, you must first understand Captain Malcolm Reynolds.

Captain Malcolm Reynolds, or “Mal” to those who know him (he doesn’t really have friends per se) is a fictional character portrayed by actor Nathan Fillion, but not a soul has seen an episode of “Firefly” and not wanted to hang out with Mal. He fought on the losing side of a mid-26th-century civil war waged across an entire solar system. Afterwards, he bought a spaceship (a Firefly-class cruiser) and travels the ‘Verse. If you have a job, he and his crew will take it. They don’t much care what it is.

Malcolm Reynolds, via io9 (Fair Use applies)

I'm shaking in my shoes. How about you? (via io9)

Mal left us with quite a few classics of television philosophy before they took the sky from him. Chief among those is this exchange with a new passenger on his ship:

Simon: I’m trying to put this as delicately as I can…how do I know you won’t kill me in my sleep?
Mal: You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.

See, it’s an expression of honor. Mal wants Simon to know that, even though Mal doesn’t like Simon, Simon is part of his crew. As such, Mal will protect him, fight for him, and never, ever betray him. (Part of the story is that Simon has a hefty price on his head as a fugitive from the government, and has to stay hidden and on the run. Simon is extremely nonviolent. Mal offers him safe haven.)

Not everyone sees the quote that way, of course. Specifically, Lisa Walter, UW-Stout’s chief of police/director of parking services, found a poster on Professor Miller’s office door displaying that Malcolm Reynolds quote to be unacceptably threatening for an academic environment. So she took it down, and then notified Professor Miller. She told him that “it is unacceptable to have postings such as this that refer to killing.” She further warned him that future postings in a similar vein could lead to a charge of disorderly conduct.

Seriously.

I was not able to locate any examples of UW-Stout faculty or staff getting into criminal trouble for being a Roberta Flack fan, but it is possible that it could happen using Chief Walters’ standard.

Professor Miller, not being one to go quietly, put up a new poster stating his thoughts on the dangers of fascism and its possible effects on the skull and brain. Of course, UW-Stout administration, having spent the past several years developing an immunity to irony, found this poster comparably objectionable, somehow concluding that Professor Miller was encouraging fascist violence.

The matter went up the chain of command, all the way to the university chancellor. Surely the highest echelons of university power could see this for the overblown clusterf*** that it was, and cooler heads could prevail, right?

Via The Daily Caller (Fair Use applies)

Apparently this is an actual call to arms or something (via The Daily Caller)

If you think that’s where this story is going, you must be new to my blog. I deal in stupid stuff.

Chancellor Charles W. Sorensen had this to say:

[W]e…have the responsibility to promote a campus environment that is free from threats of any kind—both direct and implied. It was our belief, after consultation with UW System legal counsel, that the posters in question constituted an implied threat of violence.  That is why they were removed.

This was not an act of censorship.  This was an act of sensitivity to and care for our shared community, and was intended to maintain a campus climate in which everyone can feel welcome, safe and secure.

So a quote identifying all the reasons why a fictional character won’t kill you, along with an obviously-stylized bit of satirical protest, constitutes “an implied threat of violence”? Is the administration honestly worried that Professor Miller might come to school with a gun and only shoot people who are similarly armed, awake, and facing him? Or that he might don a helmet and beat stick figures with a baton? Have universities become so teacuppish that students cannot handle this level of non-threats?

I weep for the future. I weep for the students of UW-Stout who have to get an education and plan for a future in such a colossally cowardly institution. I weep for the cancellation of “Firefly” (and no, Fox, I am never letting that go, dammit.)

I end with the remainder of that exchange between Mal and Simon:

Simon: Are you always this sentimental?
Mal: I had a good day.
Simon: You had the Alliance on you, criminals and savages… half the people on the ship have been shot or wounded including yourself, and you’re harboring known fugitives.
Mal: We’re still flying.
Simon: That’s not much.
Mal: It’s enough.

Extra reading on this topic:
College professor threatened with criminal charges for Firefly quote, io9, September 26, 2011
I Swear By My Pretty Floral Bonnet, I Will Censor You, Popehat, September 26, 2011
Chancellor Charles W. Sorensen Vigilant Against Threat of Satire, Figurative Speech, Hurt Feelings, Popehat, September 28, 2011
Banned posters rile ‘Firefly’ TV show fans against UW-Stout, Pioneer Press, September 29, 2011

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Defamation roundup, August 13, 2011

Here are a few bits of news on the defamation lawsuit beat:

1. Thomas Cooley Law School, who sued two lawyers and some anonymous bloggers over comments made online about the school, has been sued by those same lawyers for alleged fraud in the reporting of graduate employment statistics:

Cooley filed a lawsuit (PDF) against Kurzon Strauss last month in response to solicitations the firms posted on Craigslist and JD Underground that included a draft of a purported class action complaint contending that Cooley incorrectly reported its graduates’ job placements. David Anziska told the ABA Journal at the time that the firm intended to countersue Cooley as well as the school’s lawyers at Miller Canfield.

Cooley has also been in the news for a creative re-imagining of law school rankings and for planning an expansion to a new campus in Florida.

2. Proving that the defamation Streisand effect extends beyond the legal profession, a doctor in Minnesota is appealing a court ruling that says comments posted online that are critical of his bedside manner do not constitute defamation:

Amusingly, part of the reason that Dr. McKee is apparently filing the appeal is because he claims that the same guy started writing a bunch more critical messages about him online after the ruling came out. However, the guy, Dennis Laurion, insists that he hasn’t posted anything since the lawsuit began, and suggests that perhaps all of those anti-McKee posts came about because of the negative publicity associated with the lawsuit. Specifically, he notes that “there was an influx of Internet chatter about McKee after a link to a story about McKee appeared on the high-traffic website reddit.com.” So what next? Will Dr. McKee try to sue a bunch of Reddit posters too? I’m sure that will go over well…

3. Finally, the story of a Philadelphia attorney who, after seeing a 2007 article about himself on the internet in 2009, sued quite a few people for defamation and various other claims. The lawsuit was dismissed as untimely, but the lawyer kept on suing, adding as defendants the lawyers who got the case originally dismissed. It is an interesting case.

Photo by Ralf Peter Reimann. Used under a Creative Commons license.

Justice isn't always pretty. (Photo by Ralf Peter Reimann. Used under a Creative Commons license.)

Obviously defamation law is of interest to me, as is the notion that it can be used to bully people into silence on the internet. I can honestly say that I do not know all the facts in any of these cases, since I only have access to what is on the internet. That’s the thing, though–if no one is allowed to comment on a matter of public interest until they have all the facts, then there would be no public discussion of any kind, ever. I strongly believe that, in almost all circumstances, the proper response to allegedly defamatory speech is more speech. As Justice Brandeis wrote in his concurrence in Whitney v. California:

If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.

All Constitutional issues aside, there is a more immediate point to this, that Justice Brandeis could not have understood: lawyers cannot control the internet. Scott Greenfiled nails it:

Neither bluster nor averment is going to bend the internet to our overwhelmingly mighty lawyer will.  I know, it’s hard to fathom that the world doesn’t shake when we threaten or act, but the internet is a different animal from anything we’ve ever before known.

As lawyers, it’s time to come to grips with some hard realities that now exist and appear likely to be the norm going forward.  First, we are subject to ridicule online just like Babs Streisand.  Expect that every swing of your big lawyerly muscle is going to be rebroadcast in unkind terms by a lot of people who carry weight on the internet that lawyers can only dream of.

Second, expect that our claims and allegations will be subject to scrutiny far beyond our wildest dreams, and there’s a darn good chance that if there’s a flaw, any flaw, even the slightest, it’s going to be magnified beyond your wildest imagination and become a testament to your incompetence.

And third, and most importantly, regardless of all else, the internet is populated some very smart and some very crazy folks.  If the former don’t get you, the latter will.

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When “best interest of the child” meets the First Amendment

A Pennsylvania man has started a free speech debate, of sorts.

A bitter, divorced Pennsylvania man’s blog has triggered a free-speech debate, officials say.

Doylestown resident Anthony Morelli created his blog, ThePsychoExWife.com, in 2007 as a way to blow off steam about his ex-wife, The Philadelphia Inquirer reported Sunday.

But then his ex-wife, Allison Morelli, found out about the Web site and became very upset, calling it “heartbreaking” and potentially harmful to their 9- and 12-year-old sons.

At a June 6 custody hearing, Bucks County Court Judge Diane Gibbons ordered Anthony Morelli to take down the Web site and banned him from mentioning his ex-wife “on any public media” or saying anything about his children online “other than ‘happy birthday’ or other significant school events.”

At that point, Mr. Morelli did not stop posting, and the judge ordered that the site be taken down. Did this violate Mr. Morelli’s free speech rights? Many people believe it did, to the point that a campaign has begun to bring his website back:

We are asking for help in this defense because it is an issue that faces any parent that is divorced. Imagine a judge telling you that you cannot talk about your children on “any public media” – which would include things like Facebook updates, Twitter, or your personal blog – or you will lose custody.  Imagine the far-reaching consequences for bloggers everywhere if orders such as this one are left unchallenged?  There goes your online support group.  There goes your Facebook and Twitter updates.  Your website, personal OR commercial – ordered gone under threat of incarceration and having your beloved children removed from your custody.  This order flies in the face of our civil rights, and your civil rights, too! Imagine trying to protect your children from abuse and a judge telling you that you must hide the abuse and protect the abuser by not allowing you to talk about the abuse in public, we can’t let this stand.

While you're busy blogging, your children might be lost in a cornfield!

This does not appear to be a question of defamation, in that I don’t think the mother is specifically charging that statements on the blog were untrue, but rather that they would be harmful to the parties’ children if the children saw them. Most states, Pennsylvania included, follow the “best interest of the child” doctrine when determining child custody and orders relating to parenting. The question is, does the best interest of the children trump the father’s First Amendment rights?

I am very hesitant to support curtailing anyone’s freedom of speech and expression based on the extremely fuzzy “best interest” standards. In my experience, though, judges often place “best interests” above any rights of the parents, basic common sense, and the laws of gravity. Since I cannot directly review the blog in question, all I can say is that it seems to have contained some rather unpleasant stuff (just as anything at the forefront of a free speech debate does). I can see how the contents of the blog would be relevant to an ongoing custody case, since the nature of the parents’ relationship affects the children  on a daily basis. I can see a judge exercising some sort of review to make sure neither parent is defaming the other (in any medium, really). To issue a blanket injunction against most forms of communication with (or about) the children, though, does not sit well.

The blog seems petty, to me at least. Even if his ex-wife is a psycho, he is taking the low road. The point is that the low road ought to be his to take if he wants.

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