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.

www.clarkstonlegal.com
info@clarkstonlegal.com

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.

www.clarkstonlegal.com
info@clarkstonlegal.com

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.

www.clarkstonlegal.com
info@clarkstonlegal.com

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.

www.clarkstonlegal.com
info@clarkstonlegal.com

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.

www.clarkstonlegal.com
info@clarkstonlegal.com

We've all seen the damage a relentless campaign of bullying can do once it takes to the Internet, especially among young students on the ubiquitous Facebook platform.  In some cases, the victims resort to suicide to escape the scathing humiliation.

The Maryland Attorney General and Facebook are teaming-up with educators to put a quick stop to cyber-bullying among students.  This pilot program consists of a dedicated channel, the Educator Escalation Channel, where designated teacher-censors flag objectionable content by transmitting a content-removal report for expedited FB processing.

The program was rolled-out by the Maryland AG in conjunction with recently-passed legislation enhancing the state's Internet harassment crime.  While these coordinated efforts advance the interest of eliminating school-originated cyber-bullying, some legal pundits warn of their potential to stifle free speech in the process.

Commenting for the WSJ's Law Blog, noted Gotham criminal defense lawyer Scott Greenfield remarked that the teacher-censorship program could, "institutionalize a process where the teachers appear capable of making a determination on the value of speech outside the realm of school."  By our calculus here at the Law Blogger, that amounts to government censorship.

Greenfield said it best in his blog post on the anti-cyber-bully initiative:

While Facebook may be a private enterprise, fully entitled to decide what content is acceptable on its platform and similarly entitled to decide that its users will no longer be allowed to write “Suzy is a poo poo head” on the wall, it’s not that simple when the censor is a state actor and the content at issue is deemed offensive not because it violates any law, but because someone is empowered to stifle speech that doesn’t comport with their vision of redeeming societal value, whatever that means.  By doing the bidding of teachers, Facebook becomes the agent of the state.  Not so private anymore.

Neither the Maryland AG nor FB admit that the censorship of objectionable posts comes from the state.  While it may emanate from a state actor [i.e. a teacher], they say it is FB, in conjunction with its published community standards, that will make the final decision.

This program illustrates the tension between our interests in stopping the school yard bully, and avoiding the government censor.  Where do you land on this calculus?  Tell us with a comment.

www.clarkstonlegal.com
info@clarkstonlegal.com

Shirley Sherrod

There is a case pending in Washington, D.C. that involves the intersection of blogging and defamation and tests D.C.'s brand new anti-SLAPP law.  SLAPP stands for "Strategic Lawsuits Against Public Participation" -these injunctive laws are designed to provide defamation defendants immediate substantive protections against meritless libel suits -suits filed solely to silence a particular voice.

We all recall when former federal employee Shirley Sherrod had a video of her public comments edited and blog-posted by the recently-deceased conservative blogger, Andrew Breitbart.  The [deceptively] edited video made Sherrod, then a USDA official, look like she was making publicly racist comments about a white farmer seeking USDA assistance to save his farm from foreclosure.

In fact, Sherrod's un-edited statement showed she was telling a story from her past to illustrate the possibility of racial reconciliation.  The truth came out too late, however, to save Sherrod's job at the USDA.  And when it finally did come out, Sherrod rejected the Obama Administration's public apology-laced offer of re-employment.

Instead, she sued Breitbart and his assistant in the District of Colombia Superior Court for defamation; the defendants removed the case to federal court.  Sherrod claimed that the video intentionally and deceptively altered her public comments, causing her loss of employment and stress that has now affected her health.

The defendant-bloggers claimed they were merely expressing a political opinion through posting the edited video and filed a motion to dismiss the suit on anti-SLAPP grounds.  The motion was denied by the trial judge and oral arguments on the appeal were heard by the United States District Court for the District of Colombia last month.

A decision in the case is expected soon.

We here at the Law Blogger await this decision to see how the D.C. anti-SLAPP legislation fares in one of the first, and certainly most high profile, cases to test the law governing free speech through blogging, and its limits, in our nation's capital.

www.clarkstonlegal.com
info@clarkstonlegal.com

"For the past 20-years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America's military."  So reads the first line of today's 8-1 SCOTUS decision in the Snyder v Phelps case.

By now, the story is familiar to all of us: Albert Snyder's son, Marine Lance Corporal Matthew Snyder, was killed in action in Iraq.  Nearby Corporal Matthew's funeral, members of the Westboro Baptist Church protested, with many members of the congregation carrying anti-gay and anti-america signs.

Albert Snyder sued in federal court (pursuant to diversity of citizenship jurisdiction - when each party is from a different state), claiming the intentional infliction of emotional distress.  A jury awarded Mr. Snyder over 12 million dollars.  The Eleventh Circuit Court of Appeals reversed the verdict on First Amendment grounds.

In affirming the 11th Circuit, the High Court stressed the particular set of facts, as developed by the parties to the dispute.  Key among those facts were that the church protesters advised the police of their planned protest in advance, and obeyed all the restrictions (i.e. staying 1000 feet away from the funeral) placed upon their gathering.

The lone dissenting justice, Samuel Alito, characterized the speech as a "vicious verbal assault" that did not merit First Amendment protection.

Only the hardened zealots among us would condone the disruption of the funerals of our nation's soldiers by protesting against gays in the military with such cheap attention-grabbing tactics.  Justice Oliver Wendell Holmes perhaps said it best:

If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought we hate.

Chief Justice Roberts ultimately concluded, along with seven other justices, that the church members were legally allowed to be proximate to the funeral and say what they had to say.  The following excerpt from Roberts' decision perhaps best captures the spirit of Justice Holmes in the sanctity we place on freedom of speech:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible….Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and– as it did here– inflict great pain.

Even particularly controversial, virulent and inflammatory free speech remains free; regardless of content.  In upholding the First Amendment in Snyder, the first case sited by Chief Justice Roberts was to the seminal case of Hustler Magazine, Inc vs Jerry Falwell.  That case, from the early 1970s, pitted the evangelical preacher against America's iconoclastic pornographer.

In order to be truly free, the content of our speech simply cannot be regulated by government.  There cannot be a "heckler's veto".

This case belongs to the progeny of the flag burning case from the 1990s and the Nazi march through Skokie, IL from the 1980s.  Each of those forms of controversial speech was protected back in its day; this is just the latest incarnation.

For the scholars among our readers, the oral arguments for this case are at this link.  Definately worth the hour to listen; you get a real feel as to the judicial persona of the various justices.

On Monday, I was scheduled for admission to the bar of the U.S. Supreme Court; a very formal proceeding.  So first thing Monday morning, I made my way past the security checkpoints of the storied courthouse on the far-side of the Hill, and into Room G-32 (they have an entire suite of offices devoted to bar admissions).

There were only four attorneys slated for individual admission on the Court's docket that day; the last day of the 2009-2010 term.  Good news for us admittees; the Court was issuing 4 opinions so the entire bench would be present for the admission ceremony.

In another piece of extraordinary luck, we were seated in the front row of the courtroom for the day's proceedings.  I actually had a better seat than Nina Totenberg from NPR and Bill Mears of CNN; both were present to hear the opinions read from the bench.

The high-point from that session was Chief Justice John Roberts reading the 6-3 majority opinion in the case of Humanitarian Law Project v Holder; followed by Justice Stephen Breyer reading his dissent (joined by Justices Ginsberg and Sotomayor).  Dissents rarely are read from the bench in the High Court's chamber; this one signaled a strong warning from the Court's liberal wing that the government had gone too far by criminalizing free speech in the name of national security.

This case (actually two cases) involved application of a 1996 federal law banning "material support" to known foreign terrorist organizations black-listed by the Secretary of State.  The terrorist groups in these cases were not Al Qaeda or the Taliban but rather, dissident groups from Turkey and Sri Lanka.

The actions sought to be criminalized in the Holder cases would ordinarily receive First Amendment protection as a form of "pure political speech".  For example, teaching members of the foreign groups how to petition bodies like the United Nations, or hiring an attorney to resolve disputes in a US courthouse.

The federal government has utilized the "material support" law as an effective courtroom weapon in our protracted war on terror.  Justice Roberts emphasized, however, that the Court's holding was narrow and did not criminalize pure speech; just conduct in aid of known terrorist groups.

Prior to Humanitarian Law Project, the Court's terrorist cases were limited to constitutional issues surrounding detainees.  This case, the only "terrorist" case to be decided this term, moved the terrorist jurisprudence outside the detention centers and into our streets; into the heart of our right to free speech.  In so doing, the High Court's decision in this case affects each and every one of us as free thinking individuals.

When the cases were argued before the Court back in February, it was Solicitor General Elena Kagan, subsequently nominated by President Obama to occupy a seat on that very Court, who vigorously defended the law and its effectiveness in combating terror here in the homeland.  She prevailed in the forum where, presumably in October, she will become a mainstay.

The Holder decision evidences the Court's traditional and continuing deference to the political branches (Congress and the Executive) in matters of national security.  In the 21st Century, perhaps like no other time in our history, national security matters are everywhere; even in our own backyards.

After the Holder opinions were read, the Chief Justice turned to the administrative motions of the day, calling my long-time college friend and fellow-attorney, Barak Romanek, to the podium to move for my admission.  Thankfully, his motion was granted and I was duly admitted to the bar of the SCOTUS with a friendly nod from the Chief Justice.

www.clarkstonlegal.com
info@clarkstonlegal.com