Earlier this year, at least one Michigan school district has joined a class action lawsuit against the social media application TikTok, its parent company, ByteDance, Inc., and other social media companies. The suit alleges that the social media conglomerates are deploying algorithms designed to create a connectivity addiction to social media sites like Tik Tok, Snapchat, Instagram, Meta, YouTube, Google, and others. 

The lawsuit alleges that the addictive algorithms are causing a mental health crisis among adolescents across the country. The suit points to a string of suicides that seemed to be correlated to the decedent student's participation and use of various social media sites. 

Here is a copy of the Master Complaint; the very first allegation contained therein states: American children are suffering an unprecendented mental health crisis fueled by Defendants' addictive and dangerous social media products. There is an impressive -and growing- roster of law firms representing the various school district plaintiffs from across the nation.

While the class action suit originated in federal court in Seattle, it has now been transferred to the Northern District of California. The multi-district litigation bears the following case caption: In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation [MDL No. 3047] 

The tort theory alleged in the case is that the social media platforms are defective to the extent that they are designed to maximize screen time. For adolescents, plaintiffs allege that this flawed design has a high potential to become addicting. The suit alleges that the addicting behavior can lead to various mental and physical harm, including death.

This phenomenon, as it pertains to adults, was detailed in the 2020 documentary The Social Dillemma. To the extent that children are perceived to be the targets of these social media companies, there will be waves of litigation to come. [Think of Joe Camel's extinction in the late 1990s.]

So far this year, the following school districts have joined the litigation:

• Cadillac Area Public Schools
• Dexter Community Schools
• Elkhart Community Schools
• Penn-Harris-Madison School Corporation
• School City of Mishawaka 
• Clarksville-Montgomery County Schools
• Concord Public Schools
• Seattle Public Schools

Surely, more school districts will join the class action law suit in the months to come. More districts from Michigan are expected to join the suit as well.

This multi-district litigation will go on for years; the stakes are high for the various communities and the social media companies. A structured settlement could cost billions of dollars. 

Jennifer Brown, the superintendent for the Cadillac Area Public Schools had this to say about her district joining the class action lawsuit:

We are seeing increases in mental health struggles with our students - anxiety, depression - and it's no secret that the research supports a direct correlation to some of the mental health challenges that we're seeing as a consequence of social media use and technology access within our youth. It is going to take a community to care enough about kids to see that the negative impacts really require more management and regulation so that kids can be kids.

We have all seen how children are drawn like gravity to the apps on a cell phone. They do not need much enticement to interact with social media; once there, most children exhibit difficulty putting the phone down. 

Earlier this year, Seattle Public Schools filed a complaint against TikTok and Snapchat asserting that those and other social media platforms purposely deliver content that is mentally and physically harmful to students. They specifically cited to the "corpse bride" diet and other harmful but viral weight-loss challenges.

Last month in NYC, state attorney general Letitia James and prosecutors from 30 other states -including Michigan Attorney General Dana Nessel- sued Meta alleging that Facebook and Instagram featured content that was addicting to children. The complaint asserts that the business model for both platforms exploits young users by deploying harmful and manipulative features designed to maximize their time and attention on the site for profit. Here is a link to the complaint; also filed in federal court in the Northern District of California. 

For their part, the social media companies, asserting a content ban, have filed motions for summary judment based on First Amendment protections. The federal judge assigned to the case found that suit is more subtle than an outright content ban. The judge denied the defendants' initial dispositive motion, holding that the plaintiffs were more concerned about the technical algorithm, not the content. 

Rather than banning specific content, the plaintiffs sought greater parental controls, easier ways to delete accounts, better age verification procedures, and the elimination of notification clustering designed to ramp up habitual use. On the heels of this law suit, many state legislatures are drafting laws proscribing certain types of emotionally disruptive content from young users.  

The Law Blogger will continue to monitor this interesting and important litigation and legislation and alert our readres to significant developments in the cases and the laws.

 Post #636

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Attorney Nicholas Somberg

This case is a throwback to the COVID days. An attorney, piqued that he was disallowed from posting a screenshot from one of his state district court proceedings in the Zoom era, filed a federal lawsuit claiming violation of his first amendment rights. 

The lawyer, Nicholas Somberg, posted the picture on his Facebook page and cast some shade on the assistant prosecutor with whom he was working in the criminal case. For their part, the prosecutor's office took great offense, and sought an order for the lawyer to show cause, asserting that photographing any of the court proceedings violated the rules of zoom court. 

In May of 2020, at the very dawn of the zoom court era, the court issued a policy whereby:

• No one may use a portable electronic device to take photographs or for audio or video recording, broadcasting, or live streaming unless the use is specifically allowed by the judge presiding over that courtroom through a written order; and 

• In areas of the courthouse outside the courtroom, no one may photograph, record, broadcast, or live stream an individual without their express prior consent. 

Although the district court did not grant the prosecutor's criminal contempt charge, it was "chagrined and troubled by the allegations." The prosecutor's office elected not to appeal the dismissal of its contempt petition. 

Somberg literally created a federal case out of his perceived snub a few weeks later when he alleged violation of his first amendment:

right to photograph, screenshot, audio/video record, broadcast, report, distribute, share, and publish photographic, audio and video recordings of public live-streamed Michigan court proceedings without threat of or an actual prosecution...

Attorney Somberg further alleged that he would seek to exercise his right to make such recordings in the future and that he does not wish to be subjected to fines or the contempt of court when doing so. 

After a few years of procedural maneuvers related to summary judgment and an interlocutory appeal to the Sixth Circuit Court of Appeals, the prosecutor, on behalf of the State of Michigan, filed a motion for summary judment which was ultimately granted by Judge Gershwin Drain.

While recognizing that the public, and members of the bar, certainly have the right to access the courts of our state, this access, "does not require an unfettered access to government information." The federal court agreed with the prosecutor that courts constitute non-public forums; the zoom court rules are content-neutral; and the prohibition of recordings is a reasonable method for assuring the proper order and decorum in the court. 

Recognizing that the plaintiff-lawyer's claim was a "right to access" claim as opposed to a "freedom of expression" claim, it granted the State of Michigan's motion and dismissed the case. Here is a link to the court's entire opinion that was issued in September. 

Oakland County, where this case arose, has an interesting history regarding the use of recorded court proceedings. In the old days [i.e. prior to 2010], attorneys could order DVDs of court proceedings for $25 dollars per disc. That came to a screeching halt when one of the judges became the subject of an edited montage produced and posted to the Internet by one of our former clients. 

The client, having lost legal custody of his two children, went through a platoon of lawyers, and ended up representing himself in various post-divorce custody and parenting motions. He was irreparably disgruntled by the family court system and decided to take matters into his own hands. 

His solution was to sit through various motion calls and hearings of the targeted family court judge. Next, he ordered the DVDs for those hearings. He utilized his significant technical media skills to lampoon the judge in a one minute montage hatchet job. 

When the targeted judge became aware of the litigant's unflattering roast, he successfully and permanently changed the court's policy of access to court proceedings. Now, litigants and their attorneys are monitored when they review court hearings. They must agree not to record the recordings and have to come to the court administrator's office to view recorded proceedings. 

So much for obtaining DVDs of legal proceedings and taking them back to your office at your leisure. Prior to the change, our law firm took advantage of obtaining the DVDs and posted some examples of our representation in court to our web site. Here is a link to those videos.

Recently, former president Donald Trump's legal team has sought to have television cameras introduced into his federal court proceedings in the election interference federa; case in Washington DC. That was a flat-out "No", based on the long tradition of no camera access to federal court proceedings. 

Again, these are "right to access" questions as opposed to "freedom of expression" issues. Most state court proceedings are recorded and the public has limited access to view recordings of the actual proceedings, as they occurred. In federal court, the public, and the legal professionals alike, are limited to written transcripts. 

Post #634

Clarkston Legal

As extreme sports go, Arctic Man must be a trip. To paraphrase Chief Justice John Roberts, when you put 10,000 mostly drunk people in the middle of nowhere, 8 cops are just not enough to keep the peace.

We here at the Law Blogger would add: the object of the event is to determine who can ski the fastest being pulled behind a snowmobile. Physical limitations and judgment come into play from the outset, to be sure.

Nevertheless, that was the situation in central Alaska that led to Nieves v Bartlett which has been winding its way to the SCOTUS for the past 4-years. The state troopers perhaps best set the stage in their petition for certiorari:

Every spring, thousands of extreme skiers, snowmobilers, and spectators gather in the remote Hoodoo Mountains of interior Alaska for Arctic Man, a multi-day festival centered around a high-speed ski and snowmobile race. Campers congregate at night to drink and party, and rampant alcohol use compounds safety concerns at the event.

On the last day of Arctic Man in 2014, Troopers Luis Nieves and Bryce Weight were on duty, patrolling a large outdoor party where minors appeared to be drinking alcohol. Nieves encountered respondent Russell Bartlett at the party and attempted to speak with him, but Bartlett declined to talk to Nieves. Meanwhile, Trooper Weight spotted a minor who appeared to be drinking alcohol and began speaking to him at the edge of the crowd. Bartlett marched up to Weight, loudly demanding that Weight stop talking to the minor.

Trooper Nieves asked Bartlett to identify himself and requested that he move a tapped keg inside his tent. Instead, Bartlett refused the trooper's commands exhibiting belligerent behavior toward the troopers.

In front of the troopers, Bartlett instructed the minor not to answer their questions; no parents or guardians of the boy were anywhere to be located.

Bartlett's conduct resulted in resisting arrest and disorderly person charges. When his criminal charges were dismissed, Bartlett filed suit against the troopers.

His separate civil rights law suit was filed in a federal court under 42 USC 1983; now, the case has made it all the way to the SCOTUS. Oral arguments were presented last November; a decision will be issued this spring.

This case is the latest in a series of what is known as "contempt of cop" or "retaliatory arrest" cases: an arrest based on an officer's perceived slight, with the occasional emphasis on the content of the accused's speech. The collateral civil litigation in Arctic Man claims that the subject of such an arrest was merely exercising his right to free speech under the First Amendment to the United States Constitution. To arrest someone under such circumstances, the claim goes, violates the speaker's fundamental right to free speech and thus constitutes an illegal seizure under the Constitution.

On the other hand, the petitioners, Alaska State Troopers, assert an age-old common law principle that law enforcement officers are immune from civil liability wherever probable cause to arrest exists. The troopers argue they had probable cause to arrest Bartlett on multiple charges thus, they are immune from his civil rights law suit.

The civil rights law at issue in the case, 42 USC 1983, provides a cause of action where a state actor, under the color of state law, subject a person to the deprivation of any right provided by the Constitution; in this case, the First Amendment and its attendant right to free speech.

How far can you go in your speech when interacting with a peace officer? Can you insult, challenge, disparage, offend, mischaracterize, or demean the officer?

Not to put too fine a point on it, but the precise issue argued at the SCOTUS was whether Bartlett, the declarant, had the affirmative duty in his civil lawsuit to demonstrate that the troopers lacked probable cause to make an arrest. Which party shoulders the burden of evidence production affects the trajectory of the case.

Alaska argues that under the civil rights statute, Bartlett must prove a negative [i.e. that no probable cause existed allowing the officers to intervene] or he must prove his arrest was executed pursuant to a municipal policy of retaliation.

The Troopers' reply brief frames the issue posed in this case, facing officers each and every day as they go about fulfilling their duties:

A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.

Of course, the officer must have the power to exercise his professional discretion to make an arrest in light of probable cause that a crime is being committed. Our safe society depends on this basic law enforcement power.

Against this tapestry is also the backdrop of the Roberts Court's vigorous protection of First Amendment freedom of speech, and its contrasting penchant to defer to law enforcement's discretion of how they do their job, assuming probable cause exists to intervene with the citizenry.

We here at the Law Blogger will anxiously await the Supreme Court's decision.

Post #623
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Business owners are sometimes known for the customers they refuse to serve. Old-fashioned soda counters, for example, refused to serve African American patrons for decades until the civil rights movement of the 1960s addressed, and eventually eliminated, the discriminatory practice.

Today, this issue arises when same-sex couples are refused the services or products of a business. There are a few very interesting cases percolating through the courts, including one here in Michigan.

Last month, a dispute between a cider mill in Eaton County and the City of East Lansing produced an interesting federal court ruling. A ruling that is sure to be appealed as the gay civil rights struggle pushes into new spaces.

For the past five years, the Country Mill was a crowd-pleasing participant at the East Lansing farmer's market. This season, however, the cider mill was not invited back to East Lansing when the city learned of the mill owner's anti-gay views.

Apparently, the Country Mill is a popular and picturesque destination for weddings. Problems arose during the 2016 season, however, when the owner of the mill, Steve Tennes, refused to host a lesbian wedding.

One of the betrothed posted a complaint on Facebook, precipitating a wide-ranging discussion about Tennes' Catholic religious views on the ubiquitous social media platform. For his part, Tennes took the bait and posted his religious-based opposition to same-sex marriage.

Eventually, after email exchanges between Tennes and East Lansing, the Country Mill posted the following policy statement regarding wedding ceremonies at the cider mill:

This past fall our family farm stopped booking future wedding ceremonies at our orchard until we could devote the appropriate time to review our policies and how we respectfully communicate and express our beliefs. The Country Mill engages in expressing its purpose and beliefs through the operation of its business and it intentionally communicates messages that promote its owners’ beliefs and declines to communicate messages that violate those beliefs. The Country Mill family and its staff have and will continue to participate in hosting the ceremonies held at our orchard. It remains our deeply held religious belief that marriage is the union of one man and one woman and Country Mill has the First Amendment Right to express and act upon its beliefs. For this reason, Country Mill reserves the right to deny a request for services that would require it to communicate, engage in, or host expression that violates the owners’ sincerely held religious beliefs and conscience. Furthermore, it remains our religious belief that all people should be treated with respect and dignity regardless of their beliefs and background. We appreciate the tolerance offered to us specifically regarding our participation in hosting wedding ceremonies at our family farm. 

When his sixth annual application to sell produce at the farmer's market in East Lansing was denied, Tennes filed a lawsuit in the United States District Court for the Western District of Michigan claiming First Amendment violations and several state law transgressions. The Country Mill immediately sought to enjoin the denial of the application, and sought court permission to participate in the market this fall.

The offending ordinance, promulgated in typical college-town fashion back in 1972, states:

It is hereby declared to be contrary to the public policy of the City of East Lansing for any person to deny any other person the enjoyment of his/her civil rights or for any person to discriminate against any other person in the exercise of his/her civil rights or to harass any person because of religion, race, color, national origin, age, height, weight, disability, sex, marital status, sexual orientation, gender identity or expression, student status, or because of the use by an individual of adaptive devices or aids. 

The Country Mill claims that this ordinance was then hastily amended to include the following language:

VENDORS WILL EMBODY THE SPIRT OF THE MARKET BY: Multiple factors that affect the success of every vendor are considered. . . . m. Complying with the City of East Lansing’s Civil Rights ordinances and the public policy against discrimination contained in Chapter 22 of the East Lansing City Code while at the ELFM and as a general business practice. 

Country Mill's application was denied in March in a written communication to Mr. Tennes citing the above ordinance language. In the federal lawsuit, Tennes claims that the denial was in direct retaliation of his lawful exercise of his First Amendment rights.

Federal Judge Paul Maloney agreed, granting the cider mill's motion for injunctive relief and holding that East Lansing cannot deny the cider mill's application based on constitutionally protected First Amendment activity. In granting the injunction, the court felt Tennes would prevail on the merits of his protected speech-based activity and was troubled by how East Lansing singled-out Tennes' application and how it specifically instructed its committee to handle the application.

We will monitor this case to see what happens next. Perhaps the city will appeal the ruling from last week, but only time will tell.

In July, we posted about a case scheduled for argument at the SCOTUS in the upcoming term involving this issue. A cake shop owner refused to provide his wares to a same-sex couple based on his sincerely-held beliefs about same-sex marriage.

These type of same-sex discrimination cases are becoming more common. So common that we here at the Law Blogger have to ask: does the owner of a private business have the right to decline service to a customer based solely on that customer's sexual preference?

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Post# 605

Photo courtesy of the NYT

We've been tracking this sad but interesting case for over a year. The case involves a series of texts [literally thousands] a teenager sent to her friend who was contemplating suicide; the decedent was on-the-fence, but the young girl's texts put him over the edge.

Michelle Carter was sentenced to 15-month county jail term yesterday in Massachusetts for involuntary manslaughter of her friend, Conrad Roy. In June, she was convicted following a bench trial.

Ms. Carter was found to be "virtually present" when Roy committed suicide through carbon monoxide poisoning. She encouraged him -some would say badgered him- to complete the act by sending a series of text messages to his cell phone.

Last year, her defense lawyer moved to quash the indictment; this maneuver went all the way to the Massachusetts Superior Court. The High Court made the following ruling:

It is important to articulate what this case is not about. It is not about a person seeking to ameliorate the anguish of someone coping with a terminal illness and questioning the value of life. Nor is it about a person offering support, comfort, and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her life. These situations are easily distinguishable from the present case, in which the grand jury heard evidence suggesting a systematic campaign of coercion on which the virtually present defendant embarked — captured and preserved through her text messages — that targeted the equivocating young victim’s insecurities and acted to subvert his willpower in favor of her own. On the specific facts of this case, there was sufficient evidence to support a probable cause finding that the defendant’s command to the victim in the final moments of his life to follow through on his suicide attempt was a direct, causal link to his death.

Rather than take the matter before a jury, Ms. Carter's lawyers opted for a bench trial; a trial where the judge makes all the findings of fact.

Of course, her conviction and sentence will be appealed. Carter's lawyers assert that the lack of a state law banning assisted suicide and the First Amendment to the U. S. Constitution form the basis of their appeal.

Prosecutors sought a lengthily prison term. They asserted that Carter wanted the attention that she thought would come from being the grieving girlfriend.

Some legal experts applaud the relatively light sentence, pointing to the teen aged angst and drama constantly swirling about the Internet. This was an electronic communication crime involving two very young and emotionally challenged individuals.

Both victim and perpetrator struggled with mental illness in this case. The judge apparently sentenced Carter to local confinement -rather than to the state penitentiary- in order for her to be close to her family support network.

One the one hand, Carter was very far away from the decedent on the night he took his own life. On the other hand, when he got out of his truck during the act, texting Carter all the while, she called him and talked him back into the truck.

We will let you know if Carter's appeal gets any traction. What a sad case.

Post #602
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Who knew that former Oakland County Circuit Judge Mark Goldsmith, now on the federal bench in Detroit, would play the central role in the presidential vote recount litigation that has burned a quick hole into the federal and state courts here in Michigan over the past few weeks. Judge Goldsmith has flip-flopped on the vote count; first mandating a re-count, then ordering it to stop after his initial decision became the subject of a ruling by the United States Sixth Circuit Court of Appeals.

We noted, as it was happening, that independent candidate Jill Stein ran cover for the Clinton campaign by filing for vote recounts in Wisconsin, Michigan and Pennsylvania. Yesterday, Stein's lawyers argued to Judge Goldsmith in federal court that the 10,704 vote margin in Trump's favor featured a host of serious but unspecified irregularities, especially in the Detroit precincts.

The Michigan Republican Party, in the media, and the Michigan Attorney General, in the courts, characterized the Stein-sponsored litigation as an expensive futile partisan publicity stunt. Republican Attorney General Bill Schuette was having none of this; the AG intervened in the federal suit filed by Stein with a pair of heavy-duty legal eagles: former Michigan Solicitor General John Bursch and Chief Legal Counsel Matthew Schneider, former legal counsel in the Bush 43 White House.

Here are the basic mechanics of the vote re-count litigation. Jill Stein, in her capacity as a presidential candidate, and Louis Novak, in his capacity as a Michigan voter, filed a timely petition with the Michigan State Board of Canvassers seeking a state-wide vote recount. President-elect Trump filed objections to the petition and the Board of Canvassers deadlocked on the recount at 4 votes each.

State law provides, in the event of a deadlock by the Board, for the recount to commence. Trump promptly appealed to the Michigan Court of Appeals, with an application to bypass the intermediate appellate court and go straight to the Michigan Supreme Court.

On the pretext of having the will of Michigan's voters usurped by Congress pursuant to applicable federal election laws, Stein filed a lawsuit in the United States District Court for the Eastern District of Michigan seeking an injunction forcing the Board of Canvassers to execute the re-count. Citing the Bush v Gore SCOTUS decision, Judge Goldsmith found that Stein had demonstrated a likelihood of success on the merits of their claim that further delay of the voter re-count would violate her fundamental constitutional right to a presidential vote under the First and Fourteenth Amendments. He ordered the recount to commence.

This ruling was appealed in real time to the United States Sixth Circuit Court of Appeals which upheld Judge Goldsmith's initial injunction, but commented that it would expect the lower court to entertain properly filed motions once the Michigan Court of Appeals subsequently addressed the state voting law issues.

The Michigan Court of Appeals concluded that Stein could not demonstrate that she was aggrieved as a candidate by either fraud or mistake. With this ruling in hand, the Michigan Attorney General filed an emergency petition in federal court and the TRO was dismissed.

Presently, the recount has been halted and, unless the Michigan Supreme Court reverses the Court of Appeals [unlikely] the matter has been concluded.

Whew! This case certainly demonstrates how swiftly our courts can operate given issues of sufficient gravity.

Post #569

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In the "anything goes" world of Internet publishing, Gawker Media has staked out a sizable claim for itself for 13-years by aggressively pursuing celebrities in order to place them in a less-than-flattering light.

Last year this case pitting a media outlet's First Amendment right versus a celebrity's right to privacy caught our eye. Hulk Hogan, the ring name for retired "wrestler" Terry Bollea, sued the digital media outlet in a defamation suit alleging that posting a sexual encounter between Bollea and his friend's wife invaded his privacy.

On Friday, a 6-person south-Florida jury awarded the Hulkster a cool $115 in damages, only to be followed-up yesterday with an additional $25 million in punitive damages for the sex tape post. Not to be daunted, Gawker has vowed to appeal the verdict and soon will be angling to avoid posting an appeal bond that could cost every dime of $50 million.

This case featured a vile yet salacious act, recorded under dubious circumstances, blasted onto our news feeds by gutter journalism on steroids. After the verdicts were announced, media outlets showed some concern that a poorly defined right to privacy could trump a media outlet's right to free speech.

There is a notion that if a huge defamation verdict like this one withstands appeal, it will have a chilling effect on the media, including the more traditional media. The Gawker defamation case seems to have created a notion, even if temporarily, that one's right to free speech can be abused and that media outlets can be punished when doing so.

This is one of the cases that we will track on appeal over here at the Law Blogger. We will be sure to keep you posted.

Post Script - June 10, 2016
The Hulkster's judgment will indeed bring down Gawker as we know it today. Gawker has filed for bankruptcy and is for sale; its founder says he and his staff of writers will simply migrate to another platform to continue their craft.

Post #531

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Not a gang, just family.

The good news from Cincinnati is that Juggalos are not gang members. Whew; now I can get a good night sleep.

Juggalos are followers of the Farmington Hills-originated rap duo, Insane Clown Posse. Think: hard-core, off-color drug-addled rap version of Jimmy Buffet's "parrotheads".

The band and its followers are making headlines again from a lawsuit that is grinding along in the federal court system. A small group of Juggalos appealed the dismissal of their federal civil rights lawsuit and the United States Sixth Circuit Court of Appeals reversed the dismissal and remanded the case back to Detroit for further proceedings.

The beef arose in 2011 when a much-publicized FBI report characterized Juggalos as a loosely-organized hybrid gang; whatever that means. The Sixth Circuit's opinion states that, "Juggalos are easily spotted because they display, on person or property, insignia representative of the band."  [Yes, in fact, they do  r-e-p-r-e-s-e-n-t, and the "insignia" most commonly displayed is a crazy man running with a hatchet, pictured above.]

The rap group's devotees cried foul in the wake of the FBI report, claiming their civil liberties were impinged through such heavy-handed law enforcement tactics. Juggalos are not a gang, they proclaim, just one big happy sloppy family.

The Sixth Circuit's opinion details the specific transgressions claimed by each of the six plaintiffs, two of whom claim their ICP-themed tattoos caused them grief with the U.S. Army because of their perceived association with a gang on the "government gang list."  Accordingly, plaintiffs claim violations to their First and Fifth Amendment rights under the United States Constitution.

In reversing the federal court in Detroit, the Sixth Circuit held that Juggalos did have proper standing to sue in the federal court under the Administrative Procedure Act and the Declaratory Judgment Act. The appellate ruling, however, also directed the lower court to now consider the governments claim-based motion to dismiss the case.

So this litigation will be around for awhile. If you are a Juggalo, it certainly does not hurt to have Michigan's largest law firm, Miller Canfield, representing your interests along with the ACLU.

Nevertheless, Juggalos beware. This was merely a [small] procedural victory. For his part, the local cop on the beat will always view you a part of a crime gang.

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For the past two years, conservative legislators have been proposing a tricky piece of legislation in response to the marriage equality civil rights movement. The First Amendment Defense Act, which has across-the-board Republican support, would, among other things, bar the federal government from taking any discriminatory action against those who oppose same-sex marriage on religious grounds.

For example, if this bill was enacted, someone like Kim Davis could have used it as a shield in her federal court contempt proceedings when she refused to issue a marriage license to same-sex couples. Essentially, this proposed law would negate the anti-discrimination laws that are already on the books and it would use federal tax dollars to do so.

The scope of the proposed legislation would also include protections for private companies. This increases the potential for discrimination against gays and lesbians in the work force.

Although this bill has no real chance of passing Congress -even if it did, President Obama would veto the measure- there are state versions out there already on the books in Indiana and Arkansas. The swift passage of marriage equality in state legislatures across the country, and via the SCOTUS in two recent landmark decisions, does not mean same-sex marriage is now accepted in the traditional households of the nation.

To be sure, there will be struggles ahead for gays and lesbians relative to their new-found marriage equality. We here at the Law Blogger have predicted that the Obergefell decision, while a good start, has merely signaled a new-era where the entrenched opposition to marriage equality will rear its head in the workplaces, schools and governments throughout the land.

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Victorious Samantha Elauf

The SCOTUS issued another opinion, this time from Justice Antonin Scalia, strengthening religious rights in the workplace. In EEOC v Abercrombie & Fitch, the High Court reversed a 10th Circuit Court of Appeals' ruling that favored an employer's right to uphold a corporate dress code; in this case, it was Abercrombie's "no head wear" policy.

The case involves the intersection of fashion, commerce and the freedom of religious expression under the First Amendment. Samantha Elauf, a Muslim teenager back in 2008, applied to an A&F store in Tulsa, Oklahoma.  Although she fared well in her interview, she was not hired because of the store's no head-wear dress code.

The offending garment was the applicant's hijab. A&F fosters the "Ivy League preppie look" thus, there is no room for a hijab, caps, scarfs, or head wear of any kind.  At the SCOTUS, Abercrombie argued that no religious discrimination occurred because it had no "actual knowledge" that Ms. Elauf wore her hijab for religious reasons; she was silent on the subject during her interview.

The EEOC, along with the Council on American-Islamic Relations, took up Elauf's case and won a jury verdict of $20,000 in damages for Ms. Elauf.  A&F successfully appealed to the 10th Circuit Court of Appeals, which reversed the jury verdict, persuaded as it was by A&F's argument that the applicant did not specifically request special religious accommodation for her hijab.

Justice Scalia's decision was aptly summarized in Amy Howe's "Plain English" post for SCOTUSBlog:

The Court reasoned that the federal law at issue in this case, Title VII of the Civil Rights Act of 1964, bars employers from refusing to hire someone “because of” her religion, which includes religious observances. And in the context of this law, the Court continued, the phrase “because of” requires only that “an individual’s actual religious practice . . . not be a motivating factor” behind the failure to hire her. There is no requirement that the employer actually know that there could be “a conflict between an applicant’s religious practice and a work rule.” Indeed, the Court emphasizes, although other antidiscrimination statutes do explicitly require knowledge, Title VII does not. Therefore, reading the statute to include a knowledge requirement would “ask us to add words to the law to produce what is thought to be a desirable result.” And that, the Court made clear, “is Congress’s province.” 

Similarly, Abercrombie's argument-in-the-alternative that its dress code applied to all employees was rejected by the SCOTUS.  The Court's ruling states that the civil rights act does not require employers to be neutral but rather, that they provide an applicant's or employee's religious practices "favored treatment."

In the workplace, this means that employment practices that are otherwise neutral must now "give way to a need for an accommodation."  Business groups have already taken issue with the ruling on the basis that it puts employers behind the eight ball with a confusing standard that forces the employer to guess at an applicant's religious practices.  Also, business groups fear the opinion opens the door to litigation, making employers vulnerable within the context of the "favored treatment" workplace.

We here at the Law Blogger wonder which religious practices are going to surface in the inevitable cases spawned by this decision. No doubt, there will be some interesting ones, you just wait and see...

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From a moral and legal perspective, adultery is never a good idea. This is especially the case when the "other woman" is your best friend's wife.

Back in 2006, a prehistoric era on the Internet timeline, ex-wrestler Hulk Hogan, aka Terry Bollea, exercised the poor judgment of cuckholding his best friend, the radio personality known as Bubba-the-Love-Sponge Clem. Apparently, the encounter was covertly recorded by Clem's wife, Heather.  Fast forward to 2012, and the sex tape wound-up in the hands of Gawker.

The snarky website posted a 40-second excerpt of the tryst, claiming an anonymous source and disavowing payment for the video. Hulk, of course, took issue and sued, enjoining Gawker to remove the post; he is seeking $100 million in damages from the site.

The lawsuit, Terry Bollea vs Gawker, has bounced between federal court and the Pinellas County Circuit Court, with appeals in both courts, over the past three years. Now, however, the case threatens to undo the otherwise financially healthy alternative media site as it heads to a jury trial next month in St. Petersburg, Florida.

Initially, the complaint alleged invasion of privacy, intentional infliction of emotional distress, publication of private facts, misappropriation of Hulk's publicity rights, and in an amended complaint, infringement of copyright.

Hulk's lawyers got started in federal court where his several requests for a preliminary injunction to take down the video were denied by the federal judge assigned to the case. In an obvious attempt to defeat diversity jurisdiction -the only way into federal court without raising a federal question- Hogan dismissed his federal suit with an appeal pending before the 11th Circuit, and re-filed in state court, belatedly naming Heather, his former lover and best friend's wife, as a defendant. As a Floridian, her presence in the lawsuit defeats the diversity jurisdiction of the federal court.

This procedural maneuver worked to the extent that a county circuit judge granted Hogan's request for a preliminary injunction [although reversed by a Florida appeals court], denied Gawker's motion for summary disposition, and where the case now heads to trial in the Hulkster's own back yard. In reversing the trial court's injunction, the Florida appeals court relied on the rationale set forth in the federal judge's opinion denying that same request.

The case is interesting not for its salaciousness -although this post will certainly get more clicks than average due to the content- but because it pits the post-modern concept of privacy against the ever-more intrusive lens of the digital media.

Although Gawker's founder, Nick Denton, has publicly decried that a significant damage award will rent his company asunder, we here at the Law Blogger like his chances; if not at trial, certainly on appeal. The trial will feature folks living in and around Hulk Hogan's neighborhood, making fact findings in a case pitting the local hero against a media outlet from New York City.

On the other hand, Gawker did not get the scoop on this sex tape; it's existence was much commented about in the celebrity media. Also, while Hulk cries "privacy", he's published a book with references to his affairs and sexploits, and has made numerous public statements about these topics while basking in the public spotlight.  Again, we like Gawker's chances.

Most of these media cases settle privately for an undisclosed settlement. In this case, the Hulkster is too pissed to settle; he's a wrestler scorned so, get some cover and get ready for the rumble.

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SCOTUS issued a decision we've been tracking since it was argued before the High Court in December. Elonis v United States involved threats made by a former carnival worker via Facebook against his ex-wife, local law enforcement and others.

Anthony Elonis adopted the rap handle Tone Dougie, spreading his violent rap lyrics across his social network and drawing the attention of federal authorities. His eventual prosecution and jury conviction have raised the issue of free speech under the First Amendment within the context of the Internet and its ubiquitous social networks.

A 1939 federal law prohibits communicating threats that go across state lines. Elonis issued communications through his FB account, in the form of Emminem-style rap lyrics, that referenced his desire to kill his former spouse, injure his co-workers, blow-up kindergartners, and slit the throat of the FBI agent dispatched to investigate the offending posts.

Elonis' legal team says the statements were therapeutic, made in response to his ex-wife leaving him and taking his children. As such, his lawyers asserted Elonis was cloaked with the protection afforded by the First Amendment's free speech clause.

The United States Attorney, on the other hand, asserted that the FB posts were clear threats and that alone is sufficient to support a conviction under the threat law, regardless of Elonis' state of mind; his mens rea. The jury conviction was therefore properly established by the simple showing that threats had been made, according to federal prosecutors.

Without even addressing the First Amendment claim raised in the briefs and at oral argument, Chief Justice John Roberts vacated the jury conviction, remanding the case to the Third Circuit for further proceedings and leaving Mr. Elonis' fate less than clear. The 7-2 decision focused on the standard of proof relative to the threats that were made, holding that mere negligence -the failure to appreciate a legal risk- was insufficient to support a criminal conviction.

If the Third Circuit orders a new trial, which is now possible due to the remand, Elonis could avail himself of a convincing double jeopardy argument. Alternatively, the Third Circuit could apply a new theory of mens rea posited by Justice Samuel Alito; that a reckless mens rea, rather than ordinary negligence, is required for a conviction under the interstate threat law.

As SCOTUS watchers, we here at the Law Blogger often see the High Court doing everything possible to avoid constitutional pronouncements. Here, the Roberts Court obviously avoided addressing what many legal scholars see as the root legal issue in cases like these: is a federal law that prohibits speech in the form of a threat, transmitted electronically and thus through interstate commerce, unconstitutional on its face.

Or does the intent of the threat maker matter and if so, what is the standard of proof of such evil intent. The question remains unanswered.

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Levitt: self-described "bad ass" attorney.

In charge of our law firm's marketing efforts over the past decade, it was with professional interest and some amusement that I monitored the seemingly coordinated if irreverent campaigns of fellow attorney Todd Levitt.

Originally from Oakland County, Todd moved to his beloved Mt. Pleasant and developed a great gig over the past few years by becoming the "go to" lawyer for Central Michigan University students charged with drug and alcohol crimes.

Promoting himself as a middle-aged snowboard-riding nutty adjunct professor, and Saul Goldberg-style lawyer, Todd sure looked like he was having fun in and around the haunts of his alma mater. About a year ago, just as he was taking his game to the next level with a self-crafted lawyer reality tv show, "In Todd We Trust", he suffered a backlash from within the heart of the campus he calls home.

Apparently, homie's antics caught the attention [and ire] of a fellow CMU professor whose son, a student at the university, had the technological chops to develop a mock twitter account called Todd Levitt 2.0.  Todd did not like being the subject of satire and a brawl broke out in the twittersphere.

Then Levitt sued in the Isabella County Circuit Court on theories of  defamation, false light, intentional infliction of emotional distress, and interference with a business relationship; all standard tort theories designed to cover such a mess.  A few weeks ago, the circuit court ruled against Levitt, finding that the CMU student's parody Twitter account of the lawyer was speech protected by the First Amendment.

We here at the Law Blogger agree wholeheartedly with this result.  As a self-promoter of the first order, Todd became a public figure around CMU over these past several years.  The court correctly held that statements made about such a figure, even if untrue, are nevertheless protected by the cloak of "parody" and satire.

Seeing opportunity within his defamation case, Levitt has apparently vowed to appeal what he sees as, "a case of first impression that needs to go to a higher court."  Well, as every litigant has a right to appeal the final order of a trial court, we wish him the best of luck with all that.

As a barometer of local public opinion regarding our colleague, take a look at these 17 comments posted to CMU's announcement about his reality tv show.

Like any self-respecting self-promoting lawyer, this guy is not giving up; this guy is not going away [see the post script, below]. That is what still remains great about our free society.

We predict, however, that the Isabella County Circuit Court's order granting the defendant-student's motion for summary disposition will be affirmed on appeal.  So Todd, we have to ask you about the old Hollywood adage: is there no such thing as bad publicity?

04/03/2015 Post Script:

We have received some additional information from Mr. Levitt regarding his law suit and have adjusted our view of his chances and his characterization of the defamation case as one of first impression.  According to Mr. Levitt, the n'er-do-wells that parodied his twitter site did so for two months without any indication whatsoever that the site was a parody.

Todd says it was a 100% identify theft situation  -not to rip him off financially- but to embarrass and harass him and his family.  Identity theft in the social media context.

If he offered some proof of that dynamic in the circuit court, that changes the playing field and we agree with him that the Court of Appeals will take, or should take, a close hard look.

Here's another thing we've come to recognize about Todd's case: we sure would not want this to happen to us and if it did, we'd sue too.

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This was the question posed to the SCOTUS at yesterday's oral argument in the case of EEOC v Abercrombie & Fitch. The case involves the intersection of fashion, commerce and the freedom of religious expression under the First Amendment.

The case involves a Muslim woman, Samantha Elauf, who applied to an A&F store in Tulsa, Oklahoma 7-years ago when she was a teenager.  Although she fared well in her interview, she was not hired because of the store's no head-wear dress code.

The offending garment was the applicant's hijab. A&F fosters the "Ivy League preppie look" thus, there is no room for a hijab, caps, scarfs, or headwear of any kind.

The EEOC, along with the Council on American-Islamic Relations, took up Elauf's case and won a jury verdict of $20,000 in damages for Ms. Elauf.  A&F successfully appealed to the 10th Circuit Court of Appeals, which reversed the jury verdict, persuaded as it was by A&F's argument that the applicant did not specifically request special religious accommodation for her hijab.

Yesterday, it was oral argument at the SCOTUS with a decision expected in June. The justices exposed the appellate lawyers on both sides to rigorous questions.

Much of the argument was based on the mechanics and standards involved in addressing an applicant's private religious beliefs within the context of the employment application process.  The Justices debated among themselves about how this "awkward" conversation between employer and applicant is supposed to take place:

Employer: "So, do you plan to wear your hijab to work everyday?"

Applicant: "Well, yes actually, it is required in my religion." 

So what is a store like A&F to do when it sees an assortment of applicants, some with perhaps more stringent religious practices than others? Does our religious freedom trump a store's reasonable policies for employee dress code?

If similar recent SCOTUS decisions are to guide us, then we must take note of the unanimous decision in Holt v Hobbs (2015) which held that a Muslim prison inmate could grow his beard for religious reasons despite the prison policy of no facial hair.  That case, however, is not on all fours with this one to the extent that the offending policy in Holt was a government policy; this case involves private commerce without any government policy.

We predict that this case will result in a 5-4 decision, possibly a plurality with most of the Justices writing separately, that favors the store owner's well-reasoned employment policies.    

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Former Assistant Attorney General Andrew Shirvell

Prosecutors are generally serious-minded individuals dedicated to law enforcement. This is especially true at Michigan's Department of the Attorney General. As such, you would not expect an Assistant Attorney General to maintain a blog; particularly a hate-blog showcasing a petulant homophobic obsession.

Yet this is what occurred some 5-years ago when former Assistant Attorney General Andrew Shirvell got a notion lodged in his craw that he was going to construct and maintain a blog solely devoted to trashing the openly-gay former University of Michigan Student Assembly President Chris Armstrong. None of the components to this story felt right at the time and sure enough, trouble followed for everyone involved.

Fast forward a half-decade and now we have a very significant 33-page published Michigan Court of Appeals' decision holding that Shirvell's blog and Facebook rants were not protected speech under the First Amendment. Although we are not fans of this individual as demonstrated by this 2012 post, this ruling does give us pause over here at the Law Blogger.

Before addressing the merits of the Court of Appeals decision, a brief review of the facts is in order. Shirvell's virulent anti-gay blog and frequent over-the-top public appearances got on the AG's radar real fast; Shirvell was "irrevocably undermined" within the AG's office. He was fired for conduct unbecoming of a state employee; he looked the part of a fool -a caricature bigot- on national television shows; he was successfully sued by Armstrong for millions; and he was denied his requested unemployment benefits.

Yet, here's the catch: he sued the state in administrative hearings that were appealed to the Ingham County Circuit Court where his First Amendment protected speech claims prevailed within the context of his request for unemployment benefits.

The important question raised in Shirvell's lawsuit against Michigan is whether, as a private citizen, he had a First Amendment right to say the things he did, even while employed by the State of Michigan as an assistant prosecutor. Does it matter in our First Amendment jurisprudence that, when this idiot mounted his soap box for the media circus he created, he was designated by the media as a representative of the Michigan Attorney General?

To the Michigan Court of Appeals, it mattered that Shirvell's speech disrupted the stated mission of the AG's office and that his conduct and speech eroded the trust the public places in the AG.  The Court of Appeals conducted a tour de force of our First Amendment jurisprudence in holding:

Here, Shirvell engaged in conduct that irreconcilably linked his speech with his employer. Specifically, Shirvell sat for televised interviews to defend his speech where he was identified as an assistant attorney general. Importantly, Shirvell agreed to the interviews despite having knowledge that he could be asked about his position as an assistant attorney general. During his first locally-televised interview, Shirvell was identified as an assistant attorney general and was asked questions about his position within the Department. Nevertheless, Shirvell subsequently agreed to two additional interviews with CNN and Comedy Central where he was again identified as an assistant attorney general and asked about his position with the Department. Although Shirvell refused to answer questions about his position, he was inextricably linked to the Department. In agreeing to the public interviews, Shirvell took deliberate steps that linked his speech to his employer.

For his part, in explaining the reasons for firing this "front line grunt", former Attorney General Mike Cox focused on Shirvell's pattern of escalating inappropriate behavior and minimized and separated the content of his blog. Cox recognized that public employees are at liberty to engage in free speech after the work day has been completed.  The former AG saw this guy as a misdemeanant-stalker who should have been charged as such by the Washtenaw County prosecutor.

We will see whether Shirvell will seek further review of the sordid mess he has created by filing an application for leave to the Michigan Supreme Court; nothing has been filed yet and the deadline fast approaches.

The funny thing about the First Amendment is that the strangest cases present the most difficult test to our rights of free speech.  Shirvell asserts that his former position with the AG's office put a "heckler's veto" into effect, crimping his free speech; he asserts that he has a right not to be fired, even considering what he did and said.

Although Shirvell has far exceeded his 15-minutes of fame, we here at the Law Blogger see the value in a full analysis of the issues he presents and would look forward to a well-reasoned opinion from the Michigan Supreme Court.  We wonder whether they will take his case.

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Only one hour of oral argument has been allotted by the Supreme Court this morning in a case testing the limits of free expression on the Internet. A federal law proscribes the transmission of threats across state lines; Anthony Elonis was charged with violating that law when, after his wife filed for divorce on the same day he was fired from his job, he posted a torrent of violent rap "lyrics" on Facebook describing how he would kill her.

Later, when a female FBI agent interviewed him about the posts, he posted similar comments about the agent.  The United States cried "foul" and charged him under the federal law that criminalizes the interstate transmission of, "any threat to kidnap any person, or any threat to injure the person of another."  Elonis was jury convicted and is doing 44-months in federal prison.

Elonis' appellate lawyers' comparisons to Eminem [he used some Slim Shady lyrics] will not doubt get the justices attention.  Comparisons to the famous rapper were made in Elonis' appellate briefs filed with the High Court.

The SCOTUS, in granting certiorari, instructed the parties to address the meaning of the federal statute at issue.  This suggests that it may be able to decide this case without fully addressing the scope of the First Amendment.

On the other hand, Elonis' lawyers are touting this case as the Internet case of the century; the Internet as a megaphone for "Everyman".  Whenever it can, the SCOTUS will attempt to avoid sweeping pronouncements of constitutional law.

The NYT Magazine had this to say about the case in the Sunday paper:

The central question for the Supreme Court will be whose point of view -the speaker's or the listener's- matters.  In essence, the court will have to decide what matters more: one person's freedom to express violent rage, or another person's freedom to live without the burden of fear?

In the recent past, the SCOTUS has held that "true threats" against harming an individual may be proscribed by statute.  In this case, the High Court has to sort through what it means to "communicate" via the Internet; and what constitutes the intent to communicate an illegal threat of harm to another.

There will be plenty of lawyers dancing on the head of that pin this morning in the chamber of the SCOTUS.  For our part, we here at the Law Blogger will watch for and report to you the decision.

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By: Timothy P. Flynn

In law school back in the mid-1980s, I recall taking Constitutional Law with Professor Patrick Keenan [RIP] at the University of Detroit School of Law.  The class was one of the few that I looked forward to attending because of the dynamic subject matter and law professor.

One of the segments of the class was the First Amendment, and its free speech component.  The casebook profiled a series of cases in the chapter on the First Amendment that I had actually heard about in the media.

Yesterday, the SCOTUS granted certiorari in Elonis vs United States, a case destined for the constitutional law casebooks.  The roots of the case go back half a decade to a divorce court in Pennsylvania.

In 2009, Anthony Elonis, distraught over his contentious divorce proceedings, having lost his amusement park job, and perhaps considering himself "washed-up" at only 27, began to express his frustration on the Internet.  And when you are frustrated on the Internet, you probably turn to Facebook as the platform to express your views.  Elonis authored a series of posts on FB that mused about killing his ex-wife and others.  He also posted rap lyrics with such themes, insisting on FB, however, that he meant no harm.

In the end, convicted of a federal crime involving the electronic transmission of a threat across state lines, the man did nearly 4-years in the federal penitentiary.  His appeal of the conviction will now be decided by the highest court in the land.

Legal blogger Maureen Johnston of the SCOTUSblog framed the issue in her "Petiton of the Day" post:

Whether, consistent with the First Amendment and Virginia v Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

The Virginia v Black case held that a Virginia statute that outlawed cross-burning was overbroad to the extent that some cross-burning may not be performed in a threatening manner.  Really?  The SCOTUS decision to grant certiorari is even more puzzling considering their rejection last year of a petition involving a litigant that posted YouTube death threats to the judge in his child custody case.

Various lower courts have utilized different standards to assess the intent behind such threats.  Elonis asserts in his petition that the "reasonable person" standard is improper in the case of social media due to the high potential for misinterpretation by viewers that do not know the declarant.  Elonis argues that his subjective intent -merely to express his frustration, not to threaten- is the standard by which he should be judged relative to the charged federal offense.

Therefore, sometime next year, SCOTUS will decide the constitutionality of 18 USC 875(c).  We will track this case and report back.

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We started this blog with the Oakland Press in March 2009.  Five years and 400 posts later, we realize how lucky we are to have support from our host, the Oakland Press, demonstrating that the First Amendment is alive and well.

Some of the topics we've been luck to follow over the past half-decade has been the rapid progression of the same-sex marriage civil rights litigation.  Another hot topic has been the gradual decriminalization, and even legalization, of marijuana; in some states and for some purposes.

Judges and attorneys are always fair game, as are our legislators and law enforcement.  These groups of professionals intersect at our legal system.

The goal of this blog is to shed some light, however small, on a portion of what goes on in this system.   We shift through local, county, state and national legal news feeds for the material we hope you find relevant, informative; occasionally even entertaining.

This blog is approaching 300k page views.  In our digital era, we get between 15 seconds to one minute of your time; we want to make it count.

Let us know how we're doing; leave a comment.

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Genesee Circuit Judge Archie Hayman

This case began in a crowded diner in Flint, MI during a murder trial in the spring of 2012.  The impaneled jury was taken from Genesee Circuit Judge Archie Hayman's courtroom by a clerk to the diner for lunch during the trial.

Local attorney Anthony Lubkin, who was not associated with Judge Hayman's case, was seated nearby; he uttered words like "guilty" and "not guilty" during his lunch conversation.  The clerk that had the brilliant foresight to take the jury en mass, to the crowded lunch spot, recognized the lawyer and engaged him, requesting that he not speak with the members of the jury entrusted to his care.

Not the shirking violet, Lubkin is alleged to have stated:  "What, I can't say the word 'guilty'?  What if I say the word 'innocent'?"  When Judge Hayman heard what had occurred at the diner, he conducted a criminal contempt hearing, characterized Lubkin as a "smart alec", and concluded that Attorney Lubkin:

...willfully and deliberately made a statement before this jury that could interfere with the functioning of the Court.

Following the attorney's contempt conviction, the case went briefly and mildly viral among the law blogs, even getting some love from David Lat's Above the Law.

The Michigan Court of Appeals was not having it, however.  In reversing Judge Hayman's contempt finding earlier this month, the appellate court held that Attorney Lubkin's First Amendment right to speak in a public place prevailed over the factually weak case handed to the county prosecutor by the circumstances of Judge Hayman's perhaps well-meaning, but errant court clerk.

Aside from the obvious lesson here about our cherished right to free speech in a public place, the more subtle lesson is for the law clerks out there.  Clerks: no good deed goes unpunished.  So, when you take charge of a jury, do not parade them around town but rather, keep the logistics simple.

Ordering carry-out would have been far less dramatic and would have got the job done nicely.  In the case of this clerk, his boss certainly did not need the additional attention that his gaff caused.

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