UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer - First Amendment

Do not let government force television to dumb itself down to a child's level.

nospam@example.com (Jon Katz) — Wed, 05 Nov 2008 00:00:00 -0500

Why listen to government/FCC-censored broadcast radio and television when we have the choice to listen to satellite and online radio and to watch cable television?

Why listen to broadcast radio and television when the FCC might still get upheld in court for heavily fining a station for broadcasting Allen Ginsberg's Howl masterpiece during prime time, or even a fleeting expletive by a winner at an awards ceremony or a successful player in a sporting event?

Yesterday's Supreme Court oral argument in the F.C.C. v. Fox Television broadcast indecency case gives insight into such justices as Chief Justice Roberts and Justice Scalia, who seem to have no problem with heavy F.C.C. fines for the use of the words f_ck and sh_t during primetime on broadcast television. Justice Ginsburg showed skepticism about permitting the F.C.C. to skewer the use of such words in such a blanket fashion, and Justice Stevens underlined how silly it is to be punishing mere words so harshly.

Of course, you need not wait for the Supreme Court to decide this case. You always can insist that your U.S. Congressmembers insert First Amendment teeth to replace the F.C.C.'s constant urination on First Amendment rights by looking for sh_t and f_ck words all over the place on the taxpayers' backs. Will you make such a move? Jon Katz.

Criminal juries may not make up the governing law.

nospam@example.com (Jon Katz) — Thu, 16 Oct 2008 00:00:00 -0400

Bill of Rights (From public domain.)

Around fourteen years ago, at the post conviction/habeas corpus stage, I won a retrial in a Maryland trial court for a man convicted of burglary for breaking into his grandmother's house with the intent to rape her, and of raping her. I then defended my client for the retrial; and ultimately reached a guilty plea agreement involving a plea to the rape count, a dismissal of the remaining count, and no prosecutorial opposition to a release from further executed incarceration time. On the day my client entered a guilty plea anew, the judge released him from any further prison time, without requiring probation.

Without question, if my client committed the crime for which he was convicted, it was heinous beyond heinous. At the same time, the circumstances that led to his jury conviction and countless thousands of other Maryland convictions flew in the face of the most basic federal Constitutional right not to be convicted without a jury finding of proof of guilt beyond a reasonable doubt.

Specifically, before 1980, countless Maryland judges (including the judge who presided at my foregoing client's original trial) -- if not all of them -- advised juries in criminal cases that the judges' instructions to the jury about the law were purely advisory and that the juries were free to disregard said instructions, on the basis of the following provision of the Maryland Declaration of Rights: "Art. 23. In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."

Read literally, the foregoing Article 23 could cut both ways. It could lead a jury to convict a defendant in contravention of the obligation under the federal Constitution that no conviction take place without proof beyond a reasonable doubt. On the flip side, read literally, Article 23 could embolden a jury to acquit/exercise jury nullification even if it concluded a crime had been committed. Keep in mind that Maryland has a particularly long and deep history of racism and segregation, thus having enabled juries all the more under Article 23 to convict based on non-white status alone and to acquit white people who committed crimes against non-white people. Keep in mind further that at least right up to the 1920's (if not later), women had no right to serve on juries in Maryland. As to non-whites serving on juries, who knows when Maryland courts stopped excluding them through the front door and back door (it seems that the U.S. Supreme Court may have waited until 1935 in the Scottsboro Men case (why did even Chief Justice Hughes refer to them as "boys", in the opening paragraph of the 1935 opinion, no less?) to prohibit systematic exclusion of non-whites from juries)?

Not until the early 1980's did Maryland's highest court put full brakes on judges' telling jurors that they could disregard the judges' instructions on the law. Stevenson v. Maryland, 289 Md. 167, 423 A.2d 558 (1980); Montgomery v. Maryland, 292 Md. 84, 437 A.2d 654 (1981).

Consequently, at the habeas corpus/post conviction stage, is a Maryland convict entitled to a new trial if his or her jury was advised that it was free to disregard the judge's instructions on the law? A prosecutor might reply that the issue has been waived if the defendant did not enter a timely objection to the jury instruction at the time it was given. The defendant could reply that defense counsel was ineffective under the Constitution's Sixth and Fourteenth Amendments for failing to object to the jury instruction. The prosecutor might then reply that the defense counsel's not objecting was not ineffective if the trial took place before the foregoing early 1980's Stevenson and Montgomery cases were available to cue the trial lawyer to object. The defense might reply that those early 1980's cases retroactively changed the application of Article 23 of Maryland's Declaration of Rights, thus entitling the defendant to a retrial. Judges considering such a question would likely wonder about the floodgates to retrials that would be opened by agreeing with the latter argument (with plenty of witnesses long-dead by now). Of course, such a concern should not enter the decisionmaking process of a judge.

On October 15, 2008, a 4-3 majority of Maryland's highest court closed any such possible floodgate-opening by determining that Stevenson and Montgomery merely clarified the law, and did not change it, thus foreclosing the possibility of any retroactivity. Praised be Judges Eldridge, Bell, and Battaglia for dissenting. Maryland v. Adams, __ Md. _ (Oct. 15, 2008).

As to my client convicted of raping his grandmother, to my best recollection, he was convicted before the foregoing Stevenson and Montgomery opinions were issued. Neither the prosecutor nor post conviction hearing judge called me on that. I was not as fortunate in another county with the same post-conviction argument about a conviction rendered pre-Stevenson and Montgomery. Without judicial or gubernatorial intervention, my latter client will live out the rest of his days in prison, convicted unconstitutionally of robbery and felony murder, due to a gross violation of his rights by the trial judge having advised the jury that it was free to disregard his jury instructions. Jon Katz.

Would a Virginia bar kick out Virtus if pastie-less?

nospam@example.com (Jon Katz) — Thu, 18 Sep 2008 00:12:00 -0400

Virginia's state seal has a bared breast.

Virginia's above-displayed seal shows a half bare-breasted Virtus. under current Virginia law, if Virtus walked into a Virginia bar, she would either be required to cover up with pasties or something more modest, or to leave.

A Virginia law that took effect this year provides for the suspension or revocation of a liquor license where one finds "entertainment of an obscene nature, entertainment commonly called stripteasing, topless entertaining, or entertainment that has employees who are not clad both above and below the waist or (ii) [ ] employees who solicit the sale of alcoholic beverages. The provisions of clause (i) shall not apply to persons operating theaters, concert halls, art centers, museums, or similar establishments that are devoted primarily to the arts or theatrical performances, when the performances that are presented are expressing matters of serious literary, artistic, scientific, or political value." Va. Code § 4.1-226 (emphasis added).

What was I saying? Perhaps Virtus can avoid being forced into pasties due to her story's serious political value. Va. Code § 4.1-226(2). Did you hear that, Virginia exotic cabaret owners? Why not try overcoming this general breast ban by starting onstage dressed as Virtus, and then disrobe, to dramatize the very real and human side of Virtus? Reserve your www.eyeoftheVirtus.com domain today.

Unfortunately, a 1991 Fourth Circuit case does not buy the argument that women should be able to bare their breasts as much as men are permitted in public. United States v. Biocic, 928 F.2d 112 (4th Cir. 1991). Fortunately, the concurring judge in Biocic indicated that he only signed onto the opinion because he felt bound by precedent here. Id. at 118.

For a few months this year, numerous Virginia liquor-licensed establishments stopped requiring pasties after a federal court ruling finding Virginia's anti-nutidy statute to be unconstiuttionally vague, in violation of the First Amendment. Norfolk 302, LLC v. Vassar, 524 F. Supp. 2d 728 (E.D. Va. Nov. 21, 2007). However, as if without better things to do, Virginia's legislature passed a new law a few months later (Va. Code § 4.1-226) that better specifies what is meant by topless dancing, so as to intimidate establishment owners to require that pasties be worn. Jon Katz

ADDENDUM: Thanks to my brother lawyer Marc Randazza, for giving exposure to Virtus's bared breast.

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.