First Amendment

The Bill of Rights. (From the public domain.)

Copyright infringement brings the risk of significant money damages and, sometimes, criminal prosecution. The First Amendment fanatic that I am, I feel very comfortable defending people accused of copyright infringement. As much as great music and great musicians are near and dear to my heart, my First Amendment concerns win out in my deciding which side I would represent for such litigation.

Here are some resources to help sharpen one's teeth in defending against copyright litigation:

- Nimmer on Copyright - With its price tag over $1500, I wonder how many people infringe on Nimmer's own copyright. By the way, the author, Melville Nimmer, successfully argued to the Supreme Court to overturn the conviction of a man who walked into a courthouse with a t-shirt proclaiming "F*ck the Draft". Cohen v. California, 403 U.S. 15 (1971).

- Here is an overview of the fair use doctrine, from the U.S. Copyright Office's website.

- Here is an apparently standard type of copyright complaint for allegedly unlawfuil Kazaa-type downloading.

- Recording Industry v. The People blog presents itself as being "[a]bout the RIAA's attempt to monopolize digital music by redefining copyright law, through the commencement of tens of thousands of extortionate lawsuits against ordinary working people."

- Pike & Fischer publishes Internet Law & Regulation. Most of its articles apparently require a subscription.

- ArsTechnica.com covers copyright infringement lawsuits.

- Here is the website of the Recording Industry Association of America. Jon Katz.

Following are some Frank Zappa quotes relevant to this blog entry:

There are more love songs than anything else. If songs could make you do something we'd all love one another. Frank Zappa responding to Tipper Gore's and friends' notion that explicit music lyrics would poison the nation's children.

I wrote a song about dental floss but did anyone's teeth get cleaner? -  Frank Zappa responding to the same notion about the correlation between music lyrics and individuals' behavior. (See Zappa's timeless Montana/Dennil Floss).

The more boring a child is, the more the parents, when showing off the child, receive adulation for being good parents — because they have a tame child-creature in their house.

I never set out to be weird. It was always other people who called me weird.

In 1985, the late Frank Zappa (who passed away from prostate cancer when he was only eight years older than I am now) implored Congress to reject censoring music and pressuring the music industry to impose ratings systems. His live testimony is transcribed here and his submitted written comments start at the bottom of the page here. (I do regret Zappa's emphasis on the gender of Tipper Gore and other Congressional spouses of the Parents Resource Music Center (PCRM) pushing for music ratings; if he wanted to emphasize any impropriety or conflict of interest involved with Congressional spouses pushing for action by the same committee on which Tipper Gore's husband Al Gore sat, for instance, he could have just referred to "spouses" and their names.) Curiously, Zappa's testimony indicates no opposition to a government requirement to reveal music lyrics in printed form, so long as they could be on a separate sheet (e.g., so as not to take away from the album/CD cover art and design) possibly printed at government expense.

Curiously, the "Filthy Fifteen" songs list that was apparently trumpeted by PCRM as a prelude to the group's Congressional testimony, included plenty of titles that sound particularly tame today.  

The above 1986 video of Frank Zappa on Crossfire shows his true dedication to the First Amendment and individual liberties. He does a good job of distilling the whole matter as boiling down to words, and the stupidity and oppressiveness of censoring those words. In the process, he responds to John Lofton's inquiry about why Zappa is not smiling with "Why should I smile when I'm sitting here with you?" The music video shown near the beginning of this Crossfire episode looks and sounds so mild as to not be of much or any strength for those seeking music ratings and more onerous censorship than that.

Now, over two decades later, we find warning labels on music and video games. We find Hillary Clinton just two years ago pushing for a ban on selling minors video games rated mature, adults-only, or rating pending, and hiring a company to review the effectiveness of industry efforts to arrive at such ratings. See Hillary Clinton's video plea here, the bill here, and CBS's William Vitka's response here, asking "Where is our Zappa?".

Fortunately, Hillary Clinton's proposed video censorship law died, but Clinton now seeks to return to the White House,and who knows what she would do there with the First Amendment? In the 1990's, Bill Clinton -- who undoubtedly will wield substantial influence in a Hillary Clinton administration -- signed into law the censorious Child Online Protection Act (1996) and Children's Internet Protection Act (1999).

Addressing the remaining presidential candidate front runners, John McCain's hands already are dirtied when it comes to the First Amendment. For instance, he introduced the Children's Internet Protection Act, and he was not too concerned about First Amendment rights in pushing for campaign reform. As to Barack Obama, I am still trying to make sense of the harm and good he has done and will do for the First Amendment. 

Considering the foregoing efforts to censor music and video games, what comes next? Censoring books? (What am I saying? Books have been banned for decades and long before that.)  

I miss Frank Zappa. Jon Katz. 

Technical difficulties interfered with my including the following addendum to my blog entry this morning about the 4-3 Virginia Supreme Court decision upholding Jeremy Jaynes's nine-year spam sentence:

In the face of this wrongly-decided Jaynes opinion, I offer the following spam humor. I found the CompuServe court opinion that explains, at footnote 1, how Monty Python's spam skit led to the coinage of the "spam" phrase for unsolicited bulk email. This Wikipedia article discusses the subject further. Monty Python's spam skit is as funny today as ever, and is here and above on YouTube. Jon Katz.

 Image from Library of Congress's website.

Recently I learned that a legal affairs writer suggested, on the Maryland Daily Record's blog, that I might have been among Maryland's top 2007 legal newsmakers in terms of having "the greatest impact — positive or negative — on Maryland law or the Maryland legal community", for my defense of the First Amendment in Snyder v. Phelps, et al. In this litigation, and as detailed here, I defended the Westboro Baptist Church and its pastor against counts of defamation (count dismissed on summary judgment), intentional infliction of emotional distress and invasion of privacy for church members' very strong messages (quite the understatement) while picketing on a street in Westminster, Maryland, before the funeral proceedings for a soldier killed in Iraq. 

I did not know how much of a grain of salt to take with the suggestion that I might be one of Maryland's top 2007 legal newsmakers. On the one hand, the rigor of the list is brought into question by the writer's inclusion of Paul Minnich alongside my name, even though it was two of his co-counsel who were the only lawyers at trial for the plaintiff and at the depositions; perhaps mistaken identity took hold, possibly all the more from the parties having been subjected to a gag order throughout the trial. On the other hand, I am more than happy for the recognition, to the extent that it recognizes my ongoing fight for robust First Amendment rights, so that perhaps others will be influenced to join the same fight. The irony is not lost on me that during my fight for the First Amendment in this case, all lawyers were gagged from speaking with the press about the case, until after the jury returned its verdict. Jon Katz.

ADDENDUM - Pending before the Maryland federal trial court in the Westboro Baptist case are timely-filed post-trial defense motions including a motion to reduce the jury verdict, and a motion to stay the judgment pending appeal.

This posting follows up on my November 30, 2007, discussion of the highly subjective nature of lawyer rankings on the one hand, but my welcoming recognition in rankings and the media, nevertheless. The Washington, D.C., area, is an incredibly competitive market for providing legal services. Such free publicity helps us avoid spending much on marketing, and to focus our time on serving our clients and our revenue on quality support staff.

In that regard, Super Lawyers recently added me to its Maryland criminal defense attorneys list. Fewer than fifty other Maryland criminal defense lawyers also are on the list, plus seventeen more for drunk driving and white collar criminal defense (which I also handle). Super Lawyers seeks advertising revenue from its ranked lawyers for display ads; our firm has never paid Super Lawyers a dime, so we have no display ad.

Concerning the Maryland listing, Super Lawyers explains: "Maryland Super Lawyers is published in January in a special advertising section in Baltimore magazine, which reaches 194,000 readers, and in Maryland Super Lawyers magazine, which is delivered to more than 25,000 readers, including Maryland lawyers, the lead corporate counsel of Russell 3000 companies and the ABA-approved law school libraries. Super Lawyers names the top 5 percent of Maryland lawyers, as chosen by their peers and through the independent research of Law & Politics. 2007 Maryland Super Lawyers based on the survey of more than 21,000 attorneys across the state."

Super Lawyers' selection process does not sound very rigorous. Scott at Simple Justice heavily pans the Super Lawyers list and the AVVO list.

Flying in the face of the First Amendment, in mid-2006, the Committee on Attorney Advertising appointed by the New Jersey Supreme Court, concluded in its Advertising Opinion 39 that: "[A]dvertisements describing attorneys as 'Super Lawyers,' 'Best Lawyers in America,' or similar comparative titles, violate the prohibition against advertisements that are inherently comparative in nature, RPC [Rule of Professional Conduct] 7.1(a)(3), or that are likely to create an unjustified expectation about results, RPC 7.1(a)(2)."

The latest developments that I could find on this New Jersey matter are from mid-2007, as follows in reverse chronological order. If you have more recent information, please send it my way:

- Law.com provided an update on the then-pending court controversy on June 19, 2007.

- The Federal Trade Commission filed an amicus/friend-of-the-court brief opposing Opinion 39, and providing a useful chart on how the different states treat comparative lawyer advertising. This is particularly noteworthy when considering that the FTC is not always a friend of the First Amendment, including its active role to regulate cigarette advertisements (with Congress banning cigarette television commercials in 1970).

- Curiously, an official May 2007 announcement from the New Jersey State Bar Association mentioned that its new treasurer had been included in the Super Lawyers list.

- In January 2007, the Maryland Daily Record reported that the large Venable law firm decided not to be included in that year's Maryland Super Lawyers list: "The [New Jersey] ethics panel decision is, of course, not binding on lawyers in other states, but Venable decided it 'should be given some consideration,' firm counsel G. Stewart Webb Jr. said. New Jersey's lawyer advertising rules are based on the model rules followed by other states, he pointed out. 'We basically decided prudence dictated we should not participate in the survey while the issues were still out there,' Webb said." Even though a final court decision on New Jersey Advertising Opinion 39 still seems pending, ten months later, on November 29, 2007, Venable issued a press release entitled "14 Venable Lawyers Named to Washingtonian Magazine’s 2007 List of D.C.-Area’s Top Attorneys," which is a list that has included me twice in a row since 2004. It does not appear that touting a Washingtonian top lawyer listing would be any more permissible under Opinion 39 than touting a Super Lawyer or Best Lawyer listing. Is this a matter of changed policy at Venable, or a case of one hand not following or controlling what the other hand is doing?

- Super Lawyers' online position on the matter is here.

Commentary and information from 2006 on New Jersey Advertising Opinion 39 follows, in chronological order:

- Law.com provided extensive coverage of the story on July 25, 2006.

- The Associated Press reported in August 2006 that the New Jersey Supreme Court stayed Advertising Opinion 39 pending litigation over the matter.

- On August 1, 2006, Law.com provided information about the lawyers hired by Super Lawyers and the Best Lawyers directories against Advertising Opinion 39.

- On September 15, 2006, the New York Times covered the story.

- On November 17, 2006, Law.com reported on the New Jersey Attorney General's backing Opinion 39, but also supporting flexibility on lawyer advertising.

So it goes. Jon Katz.

My law practice includes criminal and civil representation of those in the adult entertainment industry. In that context, I learned from a fellow listserv member that a Georgia adult video store in September 2007 won a partial federal court victory by winning the right to be grandfathered under an otherwise much more stringent legal scheme for regulating adult entertainment businesses. Augusta Video v. Augusta-Richmond County, No. 06-16053 (11th Cir. Sept. 6, 2007) (unpublished).

In some respects, this case's appellate holding relies on the grandfathering zoning provisions of Georgia law that do not apply to every state. At the same time, the opinion addresses some issues that repeatedly arise in adult zoning cases nationwide, including the Constitutional requirement for limiting discretion to government officials who issue operating and zoning permits for adult entertainment businesses. 

Adult entertainment litigation typically involves First Amendment issues that go to the heart of everyone's First Amendment rights, and not merely to the rights of those in the adult entertainment industry. Jon Katz

Bill of Rights. (From the public domain.)

On November 19, 2007, the United States Court of Appeals for the Seventh Circuit limited the government's authority to ban alcohol in strip clubs. The case is , Eric Joelner Fish, Inc. v. Village of Washington Park, __ F.3d _ (7th Cir. Nov. 19, 2007).

Thanks to my friend Marc Randazza for linking to fellow First Amendment Lawyers Association member Cari Wiggins' discussion of this Eric Joelner Fish case. Jon Katz.