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Posts Tagged ‘Constitution’

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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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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Ill-timed (and ill-conceived) statement may lead to ethics complaint

I’m no stranger to saying dumb things without thinking. Mine usually come in the form of trying to make a joke too soon, as opposed to today’s story. Let me switch from snark to outrage.

An unbelievably tragic situation in California has bizarrely led to the threat of an ethics complaint against Sacramento lawyer Nabil Samaan. In short, after a bitter custody battle, it appears Mourad “Moni” Samaan and his 2-year-old daughter, Madeline, died in a murder-suicide from carbon monoxide poisoning. As of August 21, police are officially still investigating the cause of death, but murder-suicide is the prevailing theory. This occurred shortly after a court awarded the child’s mother, Marcia Fay, full custody of Madeline.

Marcos Breton at the Sacramento Bee said it best:

It doesn’t matter if husband and wife are bickering and fundamentally divided.

It doesn’t matter if the court system is a terrible arbiter for family disputes.

It doesn’t matter if one side is right and one side is wrong or both sides are right and both sides are wrong.

It doesn’t matter if you feel cheated and betrayed.

There is no justification for taking the life of a child – for taking any life.

One would hope that this is an axiomatic concept in this day and age. Perhaps Samaan was angry at the court system or his ex-wife. What would possibly lead to what he did? It’s a mystery to me, but apparently it’s not to to Samaan’s brother, Nabil Samaan, who had this to say:

I think he did the right thing. I’m proud of my brother and now he’s in a better place. He’s at peace. His daughter’s at peace. She’ll have one name now, and we can move on. And hopefully the court will learn a little thing about justice.

I take issue with words like “right” and “peace” in this instance, but the Center for Judicial Excellence has taken it a few steps further by stating they intend to file an ethics complaint against Nabil Samaan over his statement.

I have to say that, while such statements certainly “shock the conscience,” I’m not sure I see where disbarment would come in. He didn’t say anything that specifically affects an ongoing case in which he is counsel, and he could plausibly claim that his statement is protected by the First Amendment (it’s always the statements we deplore that test First Amendment protections.) It is also entirely possible that he spoke mostly out of grief or shock. I am not aware of any specific rule of attorney conduct that says a lawyer cannot be a complete and total jerk (hypothetically, of course). If there were such a rule, I suspect a great many lawyers would be in trouble.

That said, it’s not like there will not be any repercussions for the guy. I leave the final thought on the matter to ethics attorney Jerome Fiskin, who had this to say: “What kind of people search out an attorney who, um … yeah.”

Could not have said it better myself.

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NOTE: I seem to be writing about ethics a fair amount, so I decided to create a new category for ethics. Now I have to go back and edit all my earlier ethics-related posts. Ugh.

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In praise of Austin’s cleverly snarky jurists

The Honorable Sam Sparks

It is unwise to anger Judge Sam Sparks

Law is a conservative profession, in that it is rarely given to huge leaps of fancy or whimsy. English common law has given us a system based on precedent, where the challenges and disputes of the present are resolved using the solutions of the past. Innovation comes slowly, and the writing tends to be both precise and ponderous. No one reads legal briefs or law journals for the lulz.

Every so often, though, a judge comes along who challenges the notion of a staid, unflappable jurist. Today, I take a moment to salute the Honorable Sam Sparks, U.S. District Judge for the Western District of Texas, Austin Division. (Full disclosure: I am licensed to practice in the Western District of Texas, I think, but I do not have any cases in Judge Sparks’ court and do not intend to file any. Therefore, there is really no need for full disclosure. Never mind.)

Lawyers who practice in federal court in Austin generally know that Judge Sparks does not abide tomfoolery in his courtroom. Despite conventional wisdom, every so often lawyers who should really know better decide to bring questionable motions in his court, and his responses and resulting orders ought to be forever recorded in the annals of legal history.

Above the Law, as with so many stories, has a good overview of some Sparks gems. In 2004 he compared bickering lawyers to kindergarteners, and in 2007 he issued an order in rhyming couplets, complete with this conclusion:

There will be a hearing with pablum to eat

And a very cool cell where you can meet

AND WORK OUT YOUR INFANTILE PROBLEM WITH THE DEPOSITION.

My personal favorite story out of his courtroom comes from recent news and involves litigation over Texas’ new ultrasound-before-abortion law. The Center for Reproductive Rights filed a lawsuit in federal court in June seeking to block the new law from taking effect (read the original complaint). The defendants in the case are the individuals and agencies that will be charged with enforcing the new law: David Lakey, M.D., Commissioner of the Texas Department of State Health Services; Mari Robinson, Executive Director of the Texas Medical Board; and David Escamilla, County Attorney for Travis County. Seems pretty straightforward–group opposes a new law, so sues the state officials in charge of enacting it–and uncontroversial, at least procedurally, right?

Oh, silly, silly reader(s)….

Have you forgotten that this is Texas?

Not content to allow this lawsuit to proceed in the same fashion as any other lawsuit filed in America, the two sponsors of the bill, Sen. Dan Patrick, R-Houston, and Rep. Sid Miller, R-Stephenville, asked leave of the court to file amicus briefs supporting the law. On August 9, 2011, Judge Sparks said no (PDF):

Both parties in this case are well-represented by competent and diligent counsel, and neither they nor this Court needs assistance from Senator Patrick or Representative Miller–particularly when much of their “assistance” is nothing more than thinly-veiled rhetoric. This is a federal lawsuit about the constitutionality of a statute, not a soapbox for politicians or a sounding board for public opinion. The Court is confident counsel in this case can protect their clients’ interests all by themselves.

Judge Sparks did not even have to make that rhyme to make it sting. A mere three days later, on August 12, he similarly rejected an attempt by other Texas legislators to intervene in the case (PDF):

[C]ounsel for the parties are more than capable of advocating for their clients’ positions without outside input. This is especially true where, as here, that input comes in the form of, among other things, commentary by legislators on “the clear legislative intent of H.B. 15′s severability clause.”

If the severability clause is as clear as the Representatives indicate, their interpretive assistance will not be required. And if it is not, it would be unhelpful, if not improper, for the Court to look to statements made by a subset of the Legislature, in a document prepared for the purposes of litigation, to determine legislative intent. (Citations omitted)

Thankfully, that put an end to the chicanery, and the case has been able to proceed according to normal court procedures. Just kidding! San Antonio attorney Allan Parker, president of the Justice Foundation (I’m not linking to them) also requested leave to intervene in the case, and he decided to do a little show and tell with his motion (specifically a picture of a “first-trimester aborted child” according to his own list of exhibits.) On August 23, Judge Sparks took his polite gloves off and went right to it (PDF, of course):

The Court has already turned down two extremely tempting offers to transform this case from a boring old federal lawsuit into an exciting, politically-charged media circus. As any competent attorney could have predicted, the Court declines the latest invitation as well.

However, the Court is forced to conclude Allan E. Parker, Jr., the attorney whose signature appears on this motion, is anything but competent. A competent attorney would not have filed this motion in the first place; if he did, he certainly would not have attached exhibits that are both highly prejudicial and legally irrelevant; and if he foolishly did both things, he surely would not be so unprofessional as to file such exhibits unsealed. A competent attorney who did these things would be deliberately disrespecting this Court and knowingly shirking his professional responsibilties, offenses for which he would be lucky to retain his bar card, much less an intact bank balance.

House of detention, photo by Jascha Hoste

Not pictured: the actual holding cell at the federal courthouse (photo by Jascha Hoste)

I have no involvement in this case at all, and yet my stomach did a few lurches reading that part of the order because I can imagine the horror of having a federal judge that mad at me, and the possible implications of that. Yes, Judge Sparks called the man incompetent, and he did it a lot. Moral of the story: if you come into Judge Sparks’ courtroom with weak arguments that he has already dismissed, you will not leave with your dignity. You might not leave with your bar card. You might not leave as financially whole as when you arrived. You might not leave at all.

Okay, that last part was an exaggeration. You’ll get to leave eventually.

This week, we have a different case (h/t Mike Johnson), involving two attorneys who may have just done something really dumb, or may have had the misfortune of doing something kind of dumb with a judge fresh off of his Allan Parker-fueled disdain for shenanigans in his courtroom. Either way, the hammer dropped on attorneys Jonathan L. Woods and Travis Barton, who have been invited ordered to attend Judge Sparks’ “kindergarten party” on September 1 in his courtroom, covering topics such as how to properly plan and schedule depositions and how not to waste a federal court’s time for being “unable to practice law at the level of a first-year law student.”

Courts have a pretty specific purpose, and they have limited resources to achieve that purpose. The purpose is to resolve disputes, and to do so as efficiently as possible. Many Austin lawyers have horror stories about Judge Sparks (and no, I’m not telling any here),  but I applaud the effort to keep idiocy out of the courtroom, and to do it with some flair. I salute Judge Sparks and his brand of don’t-*******-with-me-in-my-courtroom jurisprudence.

That said, I know full well that if I ever argued a case in his courtroom, he would eat me for breakfast and use my bones for toothpicks at lunch. And I’m okay with that.

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“‘Wacky’ does not a successful libel lawsuit make.”

From the Wikimedia Commons

Did the astronauts of Apollo 17 take this photo, or was it Photoshopped using 1972-era technology? (Hint: the first option is correct.)

From the annals of silly lawsuit history comes the case of Bill Kaysing versus Jim Lovell, circa 1997. A handy timeline of the case is here.

You may Know Jim Lovell as the commander of the 1970 Apollo 13 mission, who was later played by Tom Hanks in the movie of the same name.

Bill Kaysing was a purveyor of moon hoax theories, and is often credited as starting the moon landing conspiracy movement. He was the author of books like We Never Went to the Moon: America’s Thirty Billion Dollar Swindle.

In 1996, after an encounter with Kaysing and some correspondence, Lovell was quoted in an article by Rafer Guzmán in Metro, a weekly Silicon Valley-area newspaper:

Speaking from his office in Illinois, Lovell said of Kaysing: “The guy is wacky. His position makes me feel angry. We spent a lot of time getting ready to go to the moon. We spent a lot of money, we took great risks, and it’s something everybody in this country should be proud of. His problem is, he saw that movie Capricorn One and now he thinks that’s really the way it goes.”

Eager to defend his legacy of bravely standing up to mountains of peer-reviewed scientific evidence, sued Lovell for libel on August 29, 1996, specifically for calling him “wacky.”

Keep in mind that truth is a defense to defamation.

Kaysing, who wrote a book called We Never Went to the Moon, filed what amounts to a nuisance suit against the astronaut last year following a Metro article in which Lovell called the writer “wacky.” Legal experts who were contacted agree that calling someone “wacky” does not a successful libel suit make. If anything, Kaysing’s wild accusation that Lovell is a liar who participated in a government conspiracy to fool the public is more harsh than being called wacky. (Source)

I don’t see how one can argue that calling a person “wacky” is anything other than a statement of opinion. I also don’t see how it is any worse than what Kaysing said about Lovell in the same article:

Kaysing considers Lovell almost a comedian. “He’s essentially a sort of comic Manchurian Candidate,” he says. “He’s been either brainwashed, hypnotized, programmed or whatever to present this spurious story of having gone to the moon.”

Is it defamatory to say someone has been brainwashed? Not particularly. Nor is it defamatory to call someone “wacky.” Fortunately a judge agreed and dismissed the suit on September 25, 1997.

It makes for a fun example of the limits of using the courts to fix your public image. If someone says you are wacky, demonstrate how they are wrong (if you can), or determine if you really are wacky and try to fix it. If you are a conspiracy theorist, public opprobrium from an establishment figure like an astronaut ought to boost your image among the conspiracy-minded. Unless someone has said something blatantly and demonstrably false that has harmed you, don’t ask the courts to fix it for you. Even then, it’s a tough row to hoe.

Bill Kaysing passed away in 2005. Since a deceased person has no cause of action for defamation, let me just say this: the guy was wacky. Wacky, wacky, wacky. He was also absurd, bugged out, crazy, daft, deranged, dotty, foolish, harebrained, idiotic, loony, nutty, odd, and silly. (Yes, I borrowed Eric Turkewitz’s thesaurus).

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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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