UNDERDOG - Criminal / Drunk Driving Lawyer for Maryland, Virginia, DC - First Amendment

Sarah Palin and Tipper Gore, meet Frank Zappa.

nospam@example.com (Jon Katz) — Wed, 03 Sep 2008 00:00:00 -0400

Both dominant political parties in the United States have too many candidates and officeholders who do not hesitate to promote censorship. Some deny it is censorship, but a stinkbomb remains a stinkbomb even if Madison Avenue calls it a biscuit.

Frank Zappa did an excellent job taking on Tipper Gore and her bipartisan group's push to force ratings on music -- with the silent if not vocal complicity of Al -- and GOP veep candidate Sarah Palin (any relation to Michael Palin from Monty Python?) veered towards library book banning when a smalltown mayor. As Time reports: "[Palin's mayoral opponent] Stein says that as mayor, Palin continued to inject religious beliefs into her policy at times. 'She asked the library how she could go about banning books,' he says, because some voters thought they had inappropriate language in them. 'The librarian was aghast.' That woman, Mary Ellen Baker, couldn't be reached for comment, but news reports from the time show that Palin had threatened to fire Baker for not giving 'full support' to the mayor."

Of course, both sets of presidential and veep candidates carry on the shameful history of remaining silent while convention protestors' get pushed far away from the earshot and eyesight of conventiongoers and whlle police abuse demonstrators and suspected demonstrators left and right, as I have blogged about during the last few days. Jon Katz

The limits on libel suits.

nospam@example.com (Jon Katz) — Fri, 29 Aug 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

Earlier this month, the Fourth Circuit affirmed summary judgment for the defendants in a libel case against a radio announcer (and his company) who had brusquely uncomplimentary words about the company's actions in Iraq while on contract at Abu Ghraib for such actions as conducting interrogations on behalf of the United States government. Caci Premier Tech., Inc. v. Rhodes, 2008 U.S. App. LEXIS 16576 (4th Cir., Aug. 5, 2008).

In affirming summary judgment, the Fourth Circuit said: "To survive summary judgment, CACI must have forecast clear and convincing evidence that Rhodes made the statement with a high degree of subjective awareness of its probable falsity. In light of the evidence suggesting CACI's involvement in other abuses at Abu Ghraib and the credible sources identifying a contractor as the perpetrator of the child rape, the record does not support a finding, by clear and convincing evidence, that Rhodes levied the accusation recklessly. It is the absence of sufficient evidence of Rhodes's state of mind, and not any testament to the actual veracity or justifiability of her statement, that makes summary judgment appropriate here." Jon Katz.

Obama and McCain: Protect the convention demonstrators' rights.

nospam@example.com (Jon Katz) — Tue, 26 Aug 2008 08:00:00 -0400

An August 26, 2008, video of demonstrators in Denver, including the police blocking the exit of hundreds of people on a city block (near the last third of the video), including plenty of non-demonstrators who just happened to be present. Where was the mainstream media when this was happening?

In recent years, no matter who runs for the Tweedledum/Tweedledee Democratic/Republican tickets, the presidential nomination conventions, campaign stops, and inaugural coronations are surrounded by assaults on the First Amendment right to demonstrate. (If you disagree with the brothers Tweedledum/Tweedledee reference, are Obama and McCain more materially the same than they are different? Yes, I am voting for Obama to have a less oppressive and less militaristic government than McCain would bring and maintain, but Obama will heavily support business as usual with the military-industrial-government complex; the failed and oppressive drug war that runs roughshod on the Constitution; the legalized murder of the capital punishment system; the oppressiveness of the PATRIOT Act, and countless other government assaults on civil liberties and democracy. Does the two-party-dominated system sufficiently support a truly democratic and just society? I think not.)

Typically, and currently in Denver, convention demonstrators are kept blocks away from the convention site, nullifying the very purpose of their demonstrations. The same is sure to happen at the Republican convention. Also typically, presidential coronations, I mean inaugurations, lately have been examples of Soviet-style clampdowns on protestors and well-choreographed sanitized inaugural parades.

Certainly official clampdowns on and intimidation of demonstrators in the United States go far beyond presidential politics. As I have witnessed firsthand, police have a repeated habit of taking repeated close-up photos and videos of demonstrators at large demonstrations against presidential policies in Washington, D.C.; the police purport merely to be gathering evidence, but I have trouble believing that their actions are not also calculated to intimidate. During the April 16, 2000, weekend anti-World Bank/IMF protests, when I spent an entire Saturday defending arrested demonstrators at their bond hearings in the District of Columbia Superior Court, on my way to the nearby federal courthouse, I challenged a couple of police officers on an eerily mainly deserted street whether there was any purpose for their being dressed all in black with boots other than to intimidate; they did not answer. On the Friday late afternoon after the September 11, 2001, massacres, I saw military vehicles rolling down K Street a few blocks from my law school (granted, probably not intended to intimidate demonstrators, but a reminder of how much the United States is not safe from martial law government and martial law tactics). In the early Nineties on one of the many protest weekends -- most weekends in Washington are booked with one or many demonstrations, running from tame flag-waving events to strong opposition to one or many government policies and actions -- I saw a fatigue-wearing soldier on the street corner in front of the Treasury Department. During the September 2007 anti-Gulf War II demonstration in Lafayette Park, I saw cops not only at the ready to use force if ordered to do so, but also roaming in the crowd of peaceful demonstrators on the road that for years always has been closed to traffic in front of the presidential palace.

On July 14, 2008, I wrote about the public indifference -- but likely complicity if not downright participation -- ordinarily shown by presidential candidates and other high-profile politicians towards First Amendment violations against demonstrators protesting those politicians. Do McCain and Obama approve of such clampdowns? Will they voice their opinion on this matter, whatever are their opinions? Will they speak out for greater protection of demonstrators at their conventions, campaign stops, inauguration, and beyond? I am not holding my breath, including because their very discussion of the issue acknowledges the severe problem, and, in their silence, perhaps they hope the issue will stay off most voters' radars. Do not let them do it. Jon Katz.

ADDENDUM: Thanks to a fellow listserv member for posting the above-displayed video.

Praised be the freedom of public photography.

nospam@example.com (Jon Katz) — Sun, 17 Aug 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

Congratulations to Philip-Lorca diCorcia for having obtained the dismissal last March of a lawsuit seeking damages for his having photographed the plaintiff when both were on Manhattan sidewalks. This New York Times article gives a detailed rundown. Jon Katz.

Come visit my new digs.

nospam@example.com (Jon Katz) — Sun, 27 Jul 2008 00:00:00 -0400

On July 24, I wrote of the July 28, 2008, opening of my new law firm, Jon Katz, P.C.

The move was completed this weekend, and my new law firm's doors are open, at 8720 Georgia Avenue, Suite 703, Silver Spring, MD 20910, (301) 495-7755 and fax (301) 578-7733. My work will remain unchanged, except for now being solo -- with the same and expanded staff -- where before I partnered with Jay Marks, who primarily practices immigration law.

My new firm is just three blocks from my old one, in downtown Silver Spring. If you are in the neighborhood, I will be delighted if you stop by to say hello and to show you the office.

Fortunately, through the beauty of technology, I will be as easy to find as ever. As provided in the partnership agreement for my former law firm, anybody calling the former firm's main phone number will receive a message telling of the whereabouts of me and my former law partner Jay Marks. By agreement, I have taken the website and Underdog blog with me. People emailing me at my old e-address will have their email forwarded to my new one. My web sitehost is in the process of getting my new email address up and running this weekend, and to have automatic edits updating my website to reflect my new law firm's name and address.

Recently I spoke with another local lawyer who, upon learning that my split with Jay is an amicable one, remarked at such fortune, and about the ugly partnership split he underwent a few years ago. In any event, it is critical that law partners enter a comprehensive and well-written partnership agreement. It is an essential pre-nuptial agreement, and Jay and I had one drafted by a get-things-done business lawyer that served us well in navigating an easy roadmap to our split.

Jay and I had ten very good years together. Early on, we each expected to be spending substantial time advocating for injury victims, but then, to our delight, found we could be successful doing what we love doing most in law practice, which is criminal defense for me and immigration for Jay. Jay and I go back to 1969, when we first met at a mutual friend's birthday party in Monroe, Connecticut. The bonds we forged do not simply disappear with the birth of our new law firms. Going into practice with Jay made it less scary than if I had started solo. Eventually we both learned that we each can do good and do well as solo practitioners. We have been encouraging each other on the road to ongoing success, and will continue doing so.

What will come of the Viacom v. YouTube suit?

nospam@example.com (Jon Katz) — Tue, 27 May 2008 00:00:00 -0400

Computer hard drive. (Image from Pacific Northwest Laboratory's website).

Even my most well-heeled litigation clients set a ceiling on the money they are willing to spend for litigation fees and expenses. One thing that interests me in the pending Viacom, et al. v. YouTube, et al. (S.D.N.Y. 1:07-cv-02103) copyright infringement litigation is the higher quantums of litigation funds being spent by those litigants than by my litigation clients and the extent to which those funds are being spent wisely or not.

Ordinarily, a huge publicly-traded corporation will hire a heavily-staffed law firm or team of lawyers to pursue its high-stakes civil litigation, in part out of anticipation that the opponent will do the same and in part because the selected law firm may already be doing a big chunk of the corporation's legal work. A critical challenge is for those corporations to justify the resulting huge litigation price tags to shareholders. Litigants hiring my law firm know that on the one hand my price tag will not need to cover huge overhead expenses, but that on the other hand if a big team of lawyers and assistants is needed, they either will need to look elsewhere or have me as part of a team of lawyers from more than one law firm.

YouTube.com makes available not only the opportunity for subscribers to upload home videos to the Internet, but to upload pretty much any video to the Internet. YouTube apparently is diligent in removing video uploads when the owner of the copied material claims copyright infringement. However, YouTube apparently does not remove such videos before receiving a complaint. (On the flip side, it seems that YouTube has a more proactive system to prevent nudity from reaching web viewers, which makes one wonder whether YouTube has software to check for nudity or has someone checking each video before it can be uploaded, and the extent to which YouTube has the capacity to block copyrighted works more proactively, while it is clear that nudity is easier to spot on the screen than a copyright violation.)

Last year, Viacom and co-plaintiffs sued YouTube for its involvement in having copyright-infringed works uploaded to YouTube. After various back-and-forth procedural moves, YouTube filed its Answer to the now-amended Complaint last Friday, which is over fourteen months after the lawsuit was filed. This blog entry is meant briefly to introduce this litigation and to provide some of the following links. So many millions of people and businesses download and upload at YouTube -- and set up their own webpages there -- that the results of this litigation might have a tremendous impact on them. Here are some links relevant to this Viacom v. YouTube lawsuit:

- Here is the Associated Press's May 27, 2008, overview of the case.

- Amended Complaint and 1800-page exhibit thereto, listing over 17,000 allegedly infringed copyrighted works that were uploaded to and available on YouTube.

- Defendants' Answer to the Amended Complaint.

- The case docket.

- Larry Dignan at ZDNet has been covering this litigation since its inception. His views of the lawsuit are fully unvarnished: "Google [which now owns YouTube] stands for all that enables the Internet. Viacom is evil–or at least misguided." A huge gap exists between evil and misguided, of course. Jon Katz

ADDENDUM: In a related development, this website covers the Football Association Premier League, Ltd., et al. v. YouTube, et al. (S.D.N.Y. 07-civ.-3582) class action lawsuit that is listed as a related case to the foregoing Viacom v. YouTube lawsuit, and was filed two months thereafter. The two cases have some material overlap. Here are some of the key filings in the Football Association civil action:

- The case docket; Amended Complaint; Answer to the Amended Complaint; and Order appointing interim class counsel.

When the Recording industry sues for copyright infringement.

nospam@example.com (Jon Katz) — Sun, 23 Mar 2008 00:00:00 -0400

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.

Have love songs made everyone love one another?

nospam@example.com (Jon Katz) — Tue, 11 Mar 2008 00:00:00 -0400

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.

Of Monty Python, Hormel, and unsolicited bulk email.

nospam@example.com (Jon Katz) — Mon, 03 Mar 2008 12:00:00 -0500

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.

Wikileaks.org is back.

nospam@example.com (Jon Katz) — Sat, 01 Mar 2008 19:00:00 -0500

Computer hard drive. (Image from Pacific Northwest Laboratory's website).

Following up on my February 24 blog entry, my closer reading shows that the permanend injunction issued for the Wikileaks case plaintiffs was by consent of one of the defendants, but not by Wikileaks. Also, my closer reading shows that the February 15 permanent injunction led to the disconnection of Wikileaks's domain name, rather than a disconnection of the sitehost used by Wikileaks. Thanks to Windypundit for reviewing this issue and for alerting me to the latter matter.

Wisely, on February 29, the trial judge reversed the above-described permanent injunction. Wikileaks.org is back at present. The next court hearing in this case is May 16, 2008. The order reversing the permanent injunction is here. The docket entries through March 2, 2008, are here.

Thanks to Reporters Committee for Freedom of the Press for listing an update on this case. Jon Katz.

Wikileaks continues at .cx domain.

nospam@example.com (Jon Katz) — Sat, 23 Feb 2008 19:00:00 -0500

Computer hard drive. (Image from Pacific Northwest Laboratory's website).

On February 15, 2008, a federal trial judge in San Francisco ordered that wikileaks.org be closed. Although wikileaks.org no longer functions -- after its sitehost apparently carried out the judge's order to close down the site -- wikileaks.cx (.cx is the Christmas Island domain) appears to be a mirror of wikileaks.org, operating with full force. After the injunction was ordered, Wikileaks vowed to defy the judge's injunction order.

This permanent injunction order against Wikileaks (the case docket is here) apparently came about just nineteen days after a lawsuit was filed against Wikileaks. That sounds like too short a time period to give the defendants a fair chance to receive and review the lawsuit (the injunction motion is here), to hire counsel, and to be heard. Hopefully Wikileaks will obtain an attorney to try to overturn this court order that was issued when the defendants were unrepresented.

ADDENDUM: Thanks to Windypundit for correctly pointing out that Wikileaks.org was made inactive not by a sitehost, but by its domain registrar Dynadot. As of March 1, 2008, the site is running again.

Jon Katz.

Who is Maryland's 2007 legal newsmaker?

nospam@example.com (Jon Katz) — Wed, 23 Jan 2008 00:00:00 -0500

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.