Entries Tagged as 'Legal'


I’ll open by underscoring this is my personal opinion.

I’ve read and watched a number of individuals come forward about being sexually harassed in the past — and I think that’s a great travesty that people would take advantage of another based on their position, social status, wealth, or power — but let’s wake up here… that is how the world has operated (and we’ve all turned blind eyes for years, decades, millenniums), so let’s ratchet down the (false) indignation and work for a newer world order where harassment is a thing of the past.

I see this as an issue were we need not only looks at who did what — but when it was done.

Yes, the standards 10, 20, 30, 40, 50… years ago were very different than it is today.  And the way things were done might be appalling by today’s standards, but none the less that’s how they were done and we all knew it (don’t even try to pretend you thought all those stories of the “casting couch” and “sexitaries” was just locker-room banter… you knew it was true, and simply chose to do nothing about it).

Here on MLK day I’ve decided to share my thoughts — though let’s not pretend like MLK was a saint… he too was a sinner. He too (seemingly) had issues with equal rights for all (you didn’t hear him mention women, you didn’t hear him mention races other than white and black, you didn’t hear him mention gays).  The one thing Dr King did do: he opened up dialog which started to move this country forward from a long period of stagnation.

My feeling is actions which happened many years ago need to be looked at in the light of the prevailing time… those people need to be admonished at minimum, but if they didn’t cross what was the norm at the time that needs to be the end of it.  We just need to make sure that we update our image of the past and those personalities to include that they failed to treat everyone with the respect they deserved, and failed to take a stand to end harassment.

However, when similar things are happening now, or within the past several years — that’s different.  Clearly these events are transgressions that go far beyond the accepted norms.  Not only do we need to admonish these individuals, but we need to take action to insure that they and the industries they are in change.  That change needs to occur sooner, not later.

Should they be fired — yes — if they don’t have the courage and integrity to resign.

But should individuals who committed transgressions many, many years back when times were different be fired — that’s a little more complex; we need to look at the individual now, appraise what changes have been made to their life, and if they are still that same person.  If they are — then they’re out; however, if they’ve made change… we can give them a little time under the microscope before we make our final decision.

I’m all for zero tolerance, but zero tolerance never seems to be that (just check when the local school’s sports hero crosses the zero tolerance line, there always seems to be tolerance for at least a second chance — so something else we need to be honest with ourselves about — rarely do we really have zero tolerance, it’s just a catch phrase).

Personally I abhor harassment of any kind, I abhor those who feel they are better than others and can get away with it, I abhor those who help hide it and punish the victims… but this is a problem where we have to start to resolve today, and not get carried away with witch-hunt after witch-hunt of “dark” figures from out past.

Deep Throat

I watched a documentary called Inside Deep Throat — and I found it far more interesting than I think I ever found the movie.

The documentary talks about the changes occurring on the sexual landscape of America… while the sixties might have been referred to as the sexual revolution, it was really the early seventies where the battle of sexual expression was waged.

The movie was a landmark in many respects — but it’s success really had little to do with the quality of the movie, but rather the legal battles it caused — even though a presidential (appointed by Richard M Nixon) commission had already recommended that laws controlling pornography be repealed since they were largely unenforceable and that pornography caused no real risk to adults.

Watergate was only one of Nixon’s lies.

Sure the movie broke a great deal of new ground in film in general and porno specifically… but what it really broke was political and social stigma.

The trial in New York City (Judge Tyler ruled the file “obscene”) and an article in The New York Times catapulted the movie to the most profitable movie ever — $600 million US for a movie that originally cost only $25,000 to make.

The movie was eventually outlawed in 23 states; and the FBI harassed the director, producer, financiers, and theater owners.

Nixon’s four appointed Supreme Court Justices gave censorship a leg up; initially the feminist movement and the “protect our children” radicals supported the ban on expressive file; but steadily community standards changed possibly because of the VCR (and later DVD) and individuals began to demand their freedom of expression.

In most part of the country today individuals are free to choose; but believe me, there are still backward places that attempt to legislate morality — oppression controlled by the radical Christian right.

Below is a summary of court cases revolving around obscenity.

1957 Roth v. US – the Supreme Court defined obscene material is that which lacks any “redeeming social importance.”  The Supreme court combined the cases wof Roth v. US and Alberts v. California.

1964 Jacobellis v. Ohio – the Supreme Court reverses a state obscenity ruling, but issues four separate opinions laying the ground work for confusions.

1966 Memoirs v. Massachusetts – the Supreme Court attempts to better define the ruling in Roth v. US.  A work had to be proved by censors to: 1) appeal to prurient interest, 2) be patently offensive, and 3) have no redeeming social value.

1973 Miller v. California – the Supreme Court reinforces that obscenity was not protect by the First Amendment and established the Miller test but acknowledged “the inherent dangers of undertaking to regulate any form of expression,” and said that “State statutes designed to regulate obscene materials must be carefully limited.” 1) whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and 3) “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

1973 Paris Adult Theatre I v. Slaton – the Supreme Court upheld a state court’s injunction against the showing of obscene films in a movie theatre restricted to consenting adults; however, the Court differentiated the case from 1969 Stanley v. Georgia.

1990 FW/PBS v. City of Dallas – the Supreme Court ruled the city ordinance attempting to regulate “expressive businesses” as unconstitutional.

1999 Free Speech Coalition v. Reno – the Ninth Circuit Court of Appeals ruled against section 2556(8) of the Child Pornography Prevention Act (CPPA)  stating 1) the statue is not content-neutral and aims to curb specific expression; 2) the statute was not in line with Supreme Court decisions which have held that states can only criminalize child pornography when the laws “limit the offense to works that visually depict explicit sexual conduct by children below a specified age” – something the CPPA failed to do; 3) no demonstrated link to harm to real children has been demonstrated; and 4) the language is too vague and over-broad, allowing for arbitrary and discriminatory enforcement.

Originally posted 2010-09-21 02:00:41.

Retail Transactions and Privacy

I purchased a couple pairs of shorts the other day (Wednesday before Thanksgiving) and to my surprise the retailer ask me if I’d like them to record my driver’s license number to make any return easier (by swiping the information into the terminal).


Last time I checked retailers were not entitled to the information on my driver’s license.

And this was particularly eerie to me because a group of my friends and I had been discussing an issue concerning the collection of personal data on consumers as part of the return process.

Of course, there’s not federal law that limits the amount of information a retail establishment can request (well — unless that transaction has to do with health care, and the HIPAA would require that you be provided with a privacy policy covering how the information could be used — but they can still ask).

To me, the moment the Patriot Act was signed American freedoms and privacy quickly started to spiral down the toilet; and I said it a decade ago and I’m still saying it — the law needs to be repealed.

I personally do not feel that retail stores are entitled to any personal information; that they should be required to honor their return policies as clearly posted; and that in order or collected and store personal information they must obtain a signed release at time of sale, and understand that they and their agents are fully and completely liable for any misuse of that information not explicitly contained in the signed release.

And while I don’t generally jump up and down about federal laws we need — we definitely need uniform consumer protection across this country.

Some states have a patchwork of laws that partially protect consumer privacy; but even in those states business have abused the laws because consumers don’t have a clear, consistent understanding of them — and I’ll point out that with more and more consumer transactions involving interstate commerce, only a federal law would really be able to insure consumer privacy.

Originally posted 2012-11-24 12:00:45.

Fair Use

The fact that the US Copyright Laws are in a major need of an overhaul isn’t something that only the masses of ordinary users understand; but to some extent John McCain is also painfully aware.

A little back ground.

During the 2008 Presidential Campaign, John McCain launched a number of political advertisements on YouTube, many of those advertisements used copyrighted material (for which he had not obtained a use license for).  Those advertisements were pulled from YouTube to comply with US Copyright Law (not the McCain had much choice — YouTube was required to pull the advertisements under the DMCA — an act which McCain supported).

In mid October 2008 McCain suggested to YouTube in a letter that “VIPs” shouldn’t be bound by the same fair use rules as others.

What can you expect from an elitist… he only sees the problem for himself, not for the general public.  A man with eleven homes and thirteen cars and uncounted wealth simply doesn’t feel he can afford to pay for the use of copyrighted material when the use of that material has obvious and substantial personal gains for himself, but it’s fine that a minimum wage mother should have to pay for the use of an old tune in the background of her child’s birthday video.

When put like that it’s easy to understand why member of Congress have one of the best health care plans in the world (for life) but they don’t feel the average American should have much choice.

Or perhaps we should consider TSA treatment of the average American who is subjected to searches and harassment and humiliation while members of Congress bypass the entire process.

Wait I digress.

Maybe, though, on copyright, we’ll have a little more luck holding politicians to the exact same standards that you and I must be accountable to.

Something more akin to one of the results of the confirmation hearing for Judge Robert Bork.  It resulted in the passage of the 1988 Video Privacy Protection Act (because our member of Congress were afraid their video rental records might be revealed to the public — not because they were worried about you and me).

There are permitted uses of copyright material which do not require any license payments; it may not be required to completely scrape the existing laws; all we may well need is the statement added that when an individual is not likely to substantially profit through the use of the material, it is covered under fair use.

US Copyright Office – Fair Use

Originally posted 2010-01-20 01:00:37.

Don’t Ask – Don’t Tell

Repeal of ‘don’t ask, don’t tell’ is inevitable
By Christopher Wolf, CNN
22 September 2010

Senate Republicans successful in blocking the repeal Tuesday of “don’t ask, don’t tell,” the military’s discriminatory policy on gays and lesbians in the military, obviously did not read or simply chose to ignore a California federal judge’s ruling several weeks ago that the policy violates fundamental constitutional rights.

Given the opportunity to undo the bigotry that was written into law 17 years ago, the senators chose not to follow the lead of the House of Representatives, which voted in May to repeal the law. Instead the Senate opted to pander to socially conservative voters. For now, at least, the law remains on the books.

But the march to repeal or invalidation must and will resume. The unfairness and wastefulness of the “don’t ask, don’t tell” policy has been demonstrated repeatedly.

Twelve years ago I handled a case that by itself showed the absurdity and mean-spirited nature of the law. In 1998, I represented a highly decorated 17-year veteran of the United States Navy who had served honorably and continuously since he was 19 years old.

Out of the blue, the Navy decided to kick him out of the service because he was gay, and not based on anything he did as a sailor. (I was called into the case the night before the discharge was to take effect.)

At the time of the Navy’s decision to discharge him, he was the senior-most enlisted man aboard the United States nuclear submarine USS Chicago, the sole source of income for his mother and nearing retirement eligibility.

The “offense” triggering the Navy’s witch hunt was an e-mail the sailor had sent from his AOL account seeking donations of toys for the children of his shipmates at Christmas. (His AOL username made the Navy officials suspect the sailor might be gay, but nothing in the contents of the e-mail or anything else in the sailor’s behavior in the service justified what the Navy did.)

The Navy decided to go on a “search and destroy” mission against the service member (those are the words of the judge hearing the case), when it asked AOL to get information about the sailor to confirm he was gay.

Then-Judge Stanley Sporkin–formerly general counsel of the SEC and CIA, so no bleeding heart liberal — found that the Navy had violated federal electronic privacy law by demanding information from AOL to make its case against the sailor, and that it had violated the strictures of the “don’t ask” part of the military policy on gay and lesbian service members. He stopped the Navy from throwing out a distinguished service member in light of its illegal activity.

The case made news at the time. The decision was a courageous one and against the conventional wisdom that Congress had accommodated gays and lesbians just fine with “don’t ask, don’t tell” and it was not up to civilians to tell the military how to operate.

Sporkin wrote in his opinion that “It is self-evident that a person’s sexual orientation does not affect that individual’s performance in the workplace. At this point in history, our society should not be deprived of the many accomplishments provided by the people who happen to be gay.”

He said the court “cannot understand why the Navy would seek to discharge an officer who has served his country in a distinguished manner just because he might be gay” and that the case “vividly underscores the folly of a policy that systematically excludes a whole class of persons who have served this country proudly and in the highest tradition of excellence.”

He acknowledged that the case specifically did not reach any of the constitutional issues underscoring the “don’t ask, don’t tell, don’t pursue” policy, but he felt compelled to note that “the defenses mounted against gays in the military have been tried before in our nation’s history — against blacks and women.” Sporkin concluded: “Surely, it is time to move beyond this vestige of discrimination and misconception of gay men and women.”

Twelve years later, a successor of Sporkin’s on the federal bench in California decided just that — that it is time to eliminate discrimination, as a matter of constitutional law. In the meantime, scores of qualified and committed service members have been ousted based solely on a policy whose foundation is unconstitutional bigotry.

They did not have a Sporkin to take up their cause of justice. They will never get their careers back, or purge the trauma of being labeled second-class citizens, and neither will our country be able to recover their valuable lost service.

Although the Senate stopped repeal of “don’t ask, don’t tell” in its tracks yesterday, the California ruling will work its way through the appellate process. In the end, this will turn around and the day will come when gay and lesbian service members and their allies can say we were right all along, and just as in the days of segregation, the country was wrong.

Repeal of ‘don’t ask, don’t tell’ is inevitable on CNN

Originally posted 2010-09-25 02:00:31.

As Kagan Joins, Federal Courts’ Roles Rise In Importance

by Ron Elving

This weekend, Elena Kagan was sworn into the elite club of 112 who have served on the U.S. Supreme Court. The moment was duly noted across all news media, in large part because Kagan is just the fourth woman in the club.

But journalists also pounce on new appointments to the High Court in part to correct our perennial neglect of the judicial system. By far the preponderance of political journalism spilling out of Washington is devoted to the White House and Capitol Hill. As a rule, we pay attention to the courts when they interfere with something the other branches are trying to do.

This summer, federal judges have once again been horning in on issues of great interest and high stakes. Gay marriage. Immigration. The health care law. The post-BP moratorium on deepwater drilling. Each of these decisions will be reviewed by federal courts of appeal and ultimately by the U.S. Supreme Court.

But for that reason alone they will be generating news, inflaming public opinion and determining the direction of our politics, economics and culture.

Although most of the federal judiciary labors in lofty obscurity, at moments such as these one man or woman in a black robe can make an incalculable difference. Governors and senators and others in public life can only dream of such moments of influence.

Consider that on one day last week, one federal judge in San Francisco issued an opinion that invalidated the best known voter initiative of recent years: Proposition 8 on the 2008 California ballot, which overturned the state’s recognition of gay marriage.

Presenting extensive findings of fact from the trial before him, U.S. District Court Judge Vaughn Walker noted that defenders of Proposition 8 had scarcely attempted to refute these findings. In fact, the Prop 8 defense in its entirety was so cursory as to suggest its attorneys scarcely thought the trial court level was important. Their eye was on the friendlier venues of the U.S. Court of Appeals for the 9th Circuit and the U.S. Supreme Court.

But if liberals and libertarians were heartened by Walker, they were equally gratified one week earlier by the ruling of U.S. District Court Judge Susan Bolton, who kicked out the key pillars of an Arizona law attempting to crack down on illegal immigration. Bolton found fault in that law’s provisions allowing state and local officials to question the immigration status of people they deemed suspicious — for whatever reason. The requirement that residents who ran afoul of such suspicion produce papers proving their immigration status was also spiked by the judge.

Bolton, like Walker, knew well how every word she put to paper would be scrutinized, analyzed and politicized. No doubt the same could be said for other judges bringing a more conservative viewpoint to bear on equally significant issues in recent days.

First of these was federal District Court Judge Martin Feldman of Houston, who spiked the administration’s six-month moratorium on oil-and-gas drilling in the Gulf of Mexico. The administration may well have thought the argument for shutting down new explorations in the Gulf was open and shut in the wake of the BP Deepwater Horizon debacle. But if the shutdown was a no-brainer for environmentalists and industry critics, business folks in the Gulf states seemed to see it primarily as a short-term job killer and a long-term cloud over the economic future of the region.

Liberals were swift to note that Judge Feldman had a portfolio of stock holdings in the oil and gas sector, one that might well suffer in the event of a long-term slowdown in Gulf energy production. They also noted that the relevant federal appeals court, the 5th Circuit in New Orleans, was dominated by judges with business interests much like Feldman’s.

But the judge’s ruling stands, and is likely to stand longer than the Obama administration stands behind its six-month moratorium.

Similarly, in the same week as the Prop 8 ruling, supporters of the Obama health care law were incensed that U.S. District Judge Henry Hudson in Richmond had approved Virginia’s standing to sue the federal government over the enforcement of provisions in that law. Defenders of the new health law had hoped that Hudson might uphold the historic principle of federal pre-eminence, a central issue since the founding of the Republic.

Many have noted the symbolic power of having this challenge emanate from Richmond, the capital of the Confederacy in the 1860s and the epicenter of “massive resistance” to the school integration decision of the Supreme Court in the 1950s. State’s rights may be a heading in a history textbook for some parts of the country, but they remain a mainstay of current events in the South.

Talk of nullification — the asserted right of states to ignore federal laws as they choose — has re-emerged as President Obama has pursued an activist agenda. In Texas and Tennessee, candidates for statewide office have allowed references to secession to enter their campaign vocabularies.

While no one expects another Civil War, we are clearly heading into the most significant round of state-federal confrontations we have seen since the 1960s. And that struggle has already been joined in courtrooms around the country, where it will largely be fought.

Small wonder then that Republicans in the Senate have made resistance to the judicial nominees of the new president such a salient element of their mission in these past 18 months.

To be sure, the president has seen both his nominees to the Supreme Court approved with little suspense. But the Senate has yet to allow a vote on most of the 85 nominees he has sent up for federal judgeships at the district and appeals court levels.

Same old partisan story? Not quite. The last five presidents, three of them Republicans, have seen four out of five of their appointments confirmed.

Democrats under Majority Leader Harry Reid have not been willing to call the minority’s bluff on this tactic by demanding real-time filibusters with all-night sessions and cots in the lobbies. No one wants the delay, the drama or the indignity.

But as the number of Democrats in the Senate shrinks in the November election, those who remain will need to reconsider what means are necessary to install their president’s choices in the increasingly powerful job of judge.

Original Story on NPR.org

Originally posted 2010-08-21 02:00:48.

Voting Advice With Your Paycheck

A Canton, Ohio McDonald’s franchisee (Paul Siegfried) took it on himself to include an insert in his employee’s paychecks suggesting that his employees vote for three Republican candidates, also on the note was:

If the right people are elected we will be able to continue with raises and benefits at or above our present levels. If others are elected we will not.

Sounds a little intimidating / threatening… I guess this business owner didn’t feel that election laws applied to him.

It’s really a travesty that any American wouldn’t know that it’s illegal for an employer to in any way try and influence his employees to vote for or against a given candidate or measure in an election… and even if you didn’t know it’s illegal, it’s certainly immoral.

Personally I hope Mr Siegfried finds himself in jail as an example to others who simply do not feel the law applies to them… and if I were McDonald’s I think a little more than a statement saying that their franchisee doesn’t speak for them is in order, particularly since it was on a piece of stationary bearing the McDonald’s logo.

Originally posted 2010-11-01 02:00:29.

Limited liability resulting from the Deepwater Horizon incident?

Right away after the explosion of the Deepwater Horizon Swiss company Transocean Ltd moved to have their liability for damages limited to the cost of the “sunken ship” ($27 million) citing an 1851 law that says the owner of a sunken vessel is liable only for its value after the accident.

Transocean expects to receive $560 million in insurance, so subtracting what they consider their maximum liability they’d just about meet their three year revenue projection under the BP contract.


Many of the judges are recusing themselves from hearing cases involving the oil spill; but I’d say if a federal judge in Houston makes a ruling we’ve certainly found a judge that can no longer recuse himeself (though he might be a candidate for impeachment)… my guess is Transocean will not get their ruling quickly, and likely will not get a ruling they like ever.

Transocean CEO Steven Newman told investors in addition that its contract with BP holds BP entirely responsible for all damages and liability from the spill.

I guess Newman isn’t totally confident of the petition filed in federal court, or his contractual liability limits so he’s working both ends… and is probably worried that a review will show negligence on his company’s part — which could cause a judge to throw out any and all liability limits.

BP, Halliburton, and Transocean are each responsible, and each of them should (and hopefully will) be held accountable for this mess — and their massive profits will be used to undo the damage their greed has caused.

As I’ve said before — make the problem expensive enough for them to allow to continue; and any future problem much more expensive for them to clean up — and we won’t have to worry much about the spill continuing… or ever happening again (just take highest quarter’s profits from the last year, divide by 90 — and that’s the daily fine).

Originally posted 2010-06-16 02:00:17.

Voter ID Requirements

Since roughly 1750 the phrase “taxation without representation” has been used in the country as a rallying phrase for action.

In the Revolutionary War, it reflected on the British Crown taxing citizens in the colonies without providing them any voice in Parliament.

In Washington DC it became the motto of citizens pointing out that they had no representation in the House of Representatives of the Senate (and was a slogan used on Washington DC license plates — you may recall President Bill Clinton having those put on the White House limosines, and President George W Bush having them removed).

Now my questions is… if the states who have implements “tough” new voter identification requirements (even though voter fraud has never been shown to be a substantial issue) disenfranchise American citizens from their Constitutional right to vote; should they be required to pay taxes?

People who choose not to vote are one thing; but people who are denied their right to vote is entirely another…

I fear another messy election is going to be on us in 2012, much as it was in 2000 — perhaps it’s time for the United States to use international observers to insure that elections are conducted in a way that insures they comply with not only the letter of the law, but the intent of the law.

Originally posted 2011-11-06 02:00:59.

eBay & PayPal – Poster Children for Everything Wrong With Corporate America

Several years ago eBay was won litigation in California over whether or not they were an “auction house” — eBay asserted they were a venue, not an auction house.  Why did eBay care?  Well, in California an auction house must stand behind the authenticity of the items it auctions.

While I have no problem with eBay calling themselves a venue — I do have a problem with them continuing to use the word “auction” all over their site.  You’re either a venue or an auction site… one or the other; oh that’s right, you’re a big company and don’t seem to have any problem skirting the law — you’ve got money, you probably feel you don’t have to play by the same rules.

And then there’s PayPal — clearly a financial institution, and clearly should be subject to all the regulations of financial institutions…

Oh yeah, they’re owned by eBay — they have money…

And to make it worse, eBay / PayPal are monopolies.

I’m tired of big companies that feel they need not care about the letter or the intent of the law; that feel they are free to confuse and mislead consumers; that are greedy and have no heart or soul.

I talk with my money, and I don’t spend my money at places I don’t support… each of you need to make your own minds up and decide what the cost of supporting tyranny in the world really is — or is it just something you talk about?

Originally posted 2008-11-06 12:00:21.