Blawg Review #247

“I have decided to stick with love. Hate is too great a burden to bear.”

Welcome to the Martin Luther King, Jr. Day edition of Blawg Review. This is the third Blawg Review hosted by those of us in the public defense field (BR #91 and BR#143 being the others). It is an honor to represent the essence of Dr. King’s message on this day, even in the insular world of blawgs and blawging.

There is no discernible method to this week’s Blawg Review madness. As is the case with these specific themed editions, it is difficult to fit the square peg of varied blawg posts into the round hole of the topic. So the posts are sort of loosely grouped around some worthy quotes of Dr. King, but don’t look for guidance as to their unifying theme in the quotes themselves. Instead, read the Review as a free flowing conversation I’m having with myself (and you). It’ll make the experience less painful.

Before we get to the meat of the Review, a few stories revolving around Dr. King and his memory:

James Bain spent 35 years in Florida’s prisons for a crime. A crime he did not commit. And now, he has been invited to ring the Liberty Bell in Philadelphia on Martin Luther King Day:

“It’s fitting that he has been chosen to ring the Liberty Bell,” said Seth Miller, executive director of the Innocence Project of Florida. “For 35 years of wrongful incarceration, Jamie exhibited the strength and perseverance that is the embodiment of the struggle for liberty which was central to Dr. Martin Luther King Jr.’s mission.”

Speaking of Dr. King himself, it is no secret that aside from being one of the nation’s foremost “freedom fighters”, he was also viewed very suspiciously by many: white supremacists, segregationists and even the FBI.

J. Edgar Hoover was damn near obsessed with Dr. King. The FBI is reputed to have a  massive dossier on Dr. King, only 200 or so pages of which are public. Now, Sen. Kerry of MA is spearheading efforts to make public the remaining 16,000 or so pages on Dr. King in the FBI files:

The bill calls for creating a Martin Luther King Records Collection at the National Archives that would include all government records related to King. The bill also would create a five-member independent review board that would identify and make public all documents from agencies including the FBI.

As always, I will update this post throughout the day on Monday to reflect the many MLK related posts around the blawgosphere, so keep coming back! If Twitter’s your thing, you can get in on the act there, too.

“Life’s most persistent and urgent question is, ‘What are you doing for others?”

help as you can

This powerful quote attributed to Dr. King is versatile and can serve many purposes. It can remind us to be better people, to engage in public service and to help others who are not as fortunate. Never has that been more important than this week, with the devastation in Haiti. With so many dead and so many more lives destroyed, we must put into action Dr. King’s quote in its most literal sense and do something for those in Haiti.

As with most readers of Blawg Review, we here at this blawg are lawyers and so don’t possess those skills that are immediately necessary in a relief effort like that currently underway. But there are still things that are needed, and needed now, as the lack of resources and relief is already leading to violence. Google has set up this page with information about the relief effort, ways to help and donate and other tools. Take a minute out of your day and do something for someone else.

“Of all the forms of inequality, injustice in health care is the most shocking and inhumane”

The topic that has dominated the national consciousness for the last few months has been health care reform. Universal health-care, single-payer, opt-in, opt-out, triple lindy, oh my. The long, tortured saga of HCR took an interesting turn this week with the suddenly tight congressional race in Mass to pick a successor for Ted Kennedy. Martha Coakley, the Democrat and AG of Mass., is suddenly facing stiff competition from Scott Brown, a Republican. By some accounts, a Republican win would result in a loss of one Dem seat, reducing their number to 59 and thus spelling a death-knell for HCR. Others, however, don’t see it this way.

What the story has done, however, has brought some national attention to Coakley’s record as a prosecutor, specifically in her dealing with the Amirault/Fells Acre sex abuse cases. Balko writes again, mystified by the justifications offered in support of Coakley’s witch hunts. Walter Olson provides us with a video of John Stossel investigating the Fells Acre prosecutions and convictions (be sure to see Stossel’s reaction at the 6:07 mark):

Speaking of Attorneys General, whimsical CT law blogger Ryan McKeen stirred up a hornet’s nest this week when he asked if current Secretary of State and Gubernatorial Attorney General candidate Susan Bysiewicz was actually qualified for the position (the answer: it depends). In a rather refreshing and surprising move, SOTS Bysiewicz chose to respond with a post on Ryan’s blog.

“Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity”

We live in the Facebook and Twitter era, where everything is open and everything you write could, ostensibly, belong to everyone but you. Some, like Twitter, go about it openly, and others, like Facebook, sneak it up on you like the mother-in-law that arrives for a week and stays forever.

So when Facebook CEO Mark Zuckerberg tries to backtrack and plead that Facebook is merely keeping up with the times rather than forging a path ahead on the dilution of privacy, it is only natural for people to snicker.

Homelessness is another issue that deserves attention in this country. What with the economy in the crapper, growing numbers of people going in and out of jail and a distinct lack of resources for those who need them, the population of those who call the streets their home is rising. This week brings us two distinct takes on the problem of homelessness.

First you get to hear a podcast by Bob Ambrogi and J. Craig Williams as they interview the founder of the Homeless Court Program and executive director of the National Law Center on Homelessness and Poverty. Second, we have proposed legislation in Florida, via the 13th juror, that seeks to make attacks against the homeless a hate crime:

Senate and House committees approved legislation that would make prejudice-driven attacks against the homeless a hate crime, meaning longer jail sentences for offenders. The issue will get more consideration during the legislative session, which starts March 2.

Florida has led the nation for four consecutive years in violent attacks against the homeless with 30 such incidents in 2008.

Brian Cuban has an interesting and lengthy post discussing whether the obviously stupid comment above is actually protected by the First Amendment and reminds us all (specially the younger among us) of the dangers of posting thoughtless comments on the everlasting internets:

This is certainly hate speech.  Did Rachel break any laws?  Interesting question. If Rachel had simply tweeted to the Twitter universe I would argue that no laws were broken and she had 1st Amendment protection for her speech.

Rachel however tweeted to another individual with a Twitter account. This adds a different type of context and new questions.  Was there any further act between Rachel and this person in furtherance of her desire to “Kill Jews” such as meeting to discuss it?  If the answer is yes,  there is an argument that laws regarding solicitation and conspiracy would come into play.  Did the individual respond with any tweet?  I do not know. What if this individual tweeted back, “Lets do it! Meet you in 5 Minutes!” ( I have no reason to believe this person tweeted anything back at all-it is a hypothetical).

What if the desire to “Kill Jews” was re-tweeted to someone who took Rachel seriously and actually committed a murder?  These are the problems of “Hate 2.0? that have not yet been addressed by our courts.  The  new laws of “imminence” in a viral world.

Some of the curmudgeonly among us are still struggling to adapt to this new-fangled internet and cell phone technology. Some have already recognized the dangers of texting, sexting and drive (not all at the same time and certainly not the latter two) and are mounting a mad MADD-esque campaign against it.

Still others are fighting that old technology: bad humor, and many, many more just don’t know a good joke when they see it. It seems that any combination of the words “bomb” and “plane” is enough to get you in a lot of trouble, especially if you’re on a plane, regardless if those words are surrounded by others like “Gilligan’s Island”, “Lovey”, and a very interesting question about why headhunters don’t eat members of their own family.

Taking sincere ignorance and conscientious stupidity to an entirely new level are two stories: a new “blasphemy law” in Ireland, which makes it a crime to, well, blaspheme; and the dogged pursuit by prosecutors of journalism students assisting in innocence investigations in Chicago.

Of particular importance to the conscientiously stupid among us who choose to operate blogs is this post at Internet Cases on a recent “Ripoff Report” case:

Even though Section 230 didn’t form the basis of the court’s decision in favor of Ripoff Report, the notion of a website operator “acting in concert” with its users is intriguing. Clearly the policy of Section 230 is to place some distance, legally speaking, between site operator and producer of user-generated content. And the whole idea behind the requirement in copyright law that infringement must arise from a volitional act and not an automatic action of the system is a first cousin to this issue. See, e.g., Religious Tech. Center v. Netcom, 907 F.Supp. 1361, 1370 (N.D. Cal. 1995) (“[T]here should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party”).

For the web to continue to develop, we are going to need this continued protection of the intermediary.

In that vein, the Electronic Frontier Foundation offers a list of a dozen important trends in law, technology and business that might play a significant role in shaping online rights in 2010 and Eric Goldman offers a backward looking list of most important developments of the past year. While we’re on lists, don’t miss Lowering the Bar’s annual honors.

Another area of law that is underdeveloped, but will need some quick articulation is the intersection of the 4th Amendment and virtual file storage (aka “cloud computing”):

Coulliard wraps up with a suggested framework for applying the Fourth Amendment to “the cloud” that is very much in line with my own thinking. Treat digital assets on third-party sites not as transactions (like phone numbers dialed), but in the same way you would treat physical assets kept in an apartment or storage locker:

[T]he service provider has a copy of the keys to a user’s cloud “storage unit,” much like a landlord or storage locker owner has keys to a tenant’s space, a bank has the keys to a safe deposit box, and a postal carrier has the keys to a mailbox. Yet that does not give law enforcement the authority to use those third parties as a means to enter a private space.

The same rationale should apply to the cloud. In some circumstances, such as search engine queries, the third party is clearly an interested party to the communication. But when content data, passwords, or URLs are maintained by a service provider in a relationship more akin to that of landlord-tenant, such as private Google accounts, any such data that the provider is not directly interested in should not be understood to be open to search via consent or a waiver of Fourth Amendment protection.

Of all the stupidity on display for us, nothing is more infuriating than the arrogant stupidity of cops who protect their own. A damning report from New York alleges that cops gave their fellow “brothers” big breaks in DUI cases, even supposedly “botching” the investigations:

Attorney Harold Dee, a former New York City traffic judge, suggested that police intentionally botch their cases against fellow cops.

“They’re all in the brotherhood, so I don’t imagine all of the prosecuting cops are going to show up,” Dee said. “It’s the famous blue wall. If they do show up, they’re going to ‘dump,’ say, ‘I didn’t see this or that.’ “

And finally, an in-depth explanation of why Jon Stewart failed to dent John Yoo’s armor this past week (video here).

“I submit that an individual who breaks the law that conscience tells him is unjust and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law”

a profile in courage

The Supreme Court has been in the news a lot this week, here in these United States. Starting on Monday with a thrillingly academic sidetrack on the meaning of the word “orthogonal” during oral argument in a case revisiting Melendez-Diaz, to Tuesday’s riveting argument and subsequent analysis of the right of the Federal government to civilly commit “high-risk” sex offenders past the expiration of their sentence in US v. Comstock, attention on the Court reached a fever pitch on Thursday first with its affirming a ban on the broadcast of the “Prop 8” trial in California and then its spontaneous written opinion on that subject.

Orin Kerr notes an odd similarity between the two cases Ted Olson and David Boies have simultaneously been involved in. The blawgosphere was atwitter with commentary on the broadcasting itself and then on the opinion of SCOTUS.

Elsewhere, the Third Circuit rejected an “internet ban” as a condition of a sex offender’s probation; a Texas forensic psychologist artificially inflated inmates’ IQ scores to make them eligible for the death penalty; there is a growing (heh, get it?) momentum toward marijuana sanity; Jeff Gamso (whose is the absolute must-read blog of the last 6 months) writes poetically about the bullshit science that infests our courts and leads to dubious convictions; and Mark Edwards at Co-Op explores the idea of acceptable deviance – in other words the gap between the law and norms:

Roscoe Pound observed more than a century ago that in “all cases of divergence between the standard of common law and the standard of the public, it goes without saying that the latter will prevail in the end.”  I suppose if one sentence could sum up my research agenda, that would be it (let us not pause to consider that my research agenda is therefore over one hundred years old).  Interestingly, it’s not necessary that the law change under those circumstances; rather, enforcement practices come, eventually, to reflect the standard of the public — what we usually now call norms.  I’ve called those gaps between law and norms ‘parameters of acceptable deviance’ or PADs.  Behavior within them is formally illegal but socially acceptable, and generally does trigger either a formal enforcement response or social sanctions.  Behavior outside of them may be either formally legal or illegal.  Behavior that is both formally illegal and socially unacceptable usually triggers a formal enforcement response; behavior that is formally legal but socially unacceptable usually triggers social sanctions.

The inimitable CharonQC wrote from the other side of the pond about the first non-jury trial in the UK in 400 years and then wasted half an hour out of his day to do a podcast with yours truly. Also from the original motherland, a report recommending sweeping reforms to their incarceration policy. Finally, in keeping with Dr. King’s motto of passive resistance and non-violence, here are some tips on how to get jurors to like you and in the “little ditty” department, here’s one from a “recovering lawyer” in honor of Conan O’Brien.

If you want more, check out Colin Samuels’ weekly Round Tuit collection of posts from around the ‘sphere (from which I’ve shamelessly lifted some links).

“Cowardice asks the question, ‘Is it safe?’ Expediency asks the question, ‘Is it politic?’ But conscience asks the question, ‘Is it right?’ And there comes a time when one must take a position that is neither safe, nor politic, nor popular but because conscience tells one it is right.”

Here is a collection of MLK posts from around the blawgosphere:

“Injustice anywhere is a threat to justice everywhere”

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

2 thoughts on “Blawg Review #247

  1. Pingback: Blawg Review from Gideon… Martin Luther King Day « Charon QC

  2. Pingback: Blawg Review #325.3 » Defending People

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