a public defender

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Tomorrow SCOTUS will hear argument in Fox v. FCC, “the F word case”. This has nothing to do with criminal law and everything to do with stupidity on part of the FCC. It stems from three uses of fuck and shit. One was by Bono, who said his award was “really, really, fucking brilliant”, another by Cher who told her critics to “go fuck themselves” and finally, by that veritable starlet Nicole Ritchie, who complained about having to get “shit out of a Prada purse”, which, apparently is “not so fucking simple”.

[As you can tell, we at 'a public defender' are not shy about using the most versatile word in the English language.]

The FCC, in its Victorian wisdom, has decided that no matter the context, the word always evokes a sexual connotation. Fucking stupid. Which means, apparently, that someone is copulating with someone named “stupid”. What the sex.

For more coverage, see Scott and if you’re really inclined, Adam Liptak’s NYT piece.

We’ll see if the Justices agree and at 11am tomorrow we will read whether the Justice engaged in profanity.

Unless, of course, you agree with one friend of this blog who pointed out to me on Friday that they already have [for those of you who are too fornicating lazy to click on that link, the friend was referring to McCleskey v. Kemp].

The blawgosphere is up in arms about the 2nd Circuit’s decision today in Doninger v. Niehoff, a.k.a., the “douchebag” case (get the witty title? ;))

I have not been inclined to follow this case very closely and I will admit that I made up my mind early on, stemming from some archaic sense of discipline and respect and other such nonsense. Reading the blog posts today, however, I wondered if I was wrong. So I decided to do the only sensible thing and read media reports the decision.

What I also found in the blawgosphere was a mis-reporting of the facts. Perhaps they thought they were the MSM for a day.

So let’s look at the facts, as found by the District Court and adopted by the 2nd Circuit:

1. Jamfest was some sort of band-off, which was scheduled for April 28.
2. At a student council meeting on April 24, the students were made aware that, for reasons that are unimportant, the date or venue needed to be changed yet again.
3. That morning, four students, including the plaintiff, met in the computer lab, accessed someone’s e-mail account and sent out a mass e-mail to students, asking them to contact administration to urge them to hold Jamfest as scheduled.
4. Both defendants received an influx of e-mails and telephone messages. One of them, who was away for the day on school business, had to be called back to deal with the situation.
5. Later that day, the principal spoke with Avery in a hallway and advised Avery that she was disappointed that the student council had resorted to mass e-mails rather than going to her or the superintendent to resolve the issue.
6. The principal also expressed disappointment that the e-mail contained incorrect information, because the administration was open to moving Jamfest to another location.
7. Avery apparently agreed to send out a corrective e-mail. That never happened.
8. That night, the infamous blog post appeared, which stated that “jamfest is canceled due to douchebags in central office” and exhorted students to write and “piss her off more”.
9. Lots of students took up that request and wrote and wrote.
10. The very next day, the student council and the administration decided that Jamfest would be rescheduled for June 8.
11. Despite this resolution, the administrators continued to receive e-mails and calls about rescheduling.
12. On May 7, the post in question was discovered by the son of the superintendent.
13. The principal concluded that concluded that Avery’s conduct had failed to display the civility and good citizenship expected of class officers.
14. They declined to endorse her nomination for Senior Class secretary, though she was permitted to remain as a representative in the Student council.

I know I write almost exclusively about criminal law, but I have spent the past hour reading 7 posts at Volokh on the application of the First Amendment and the issue is just too fascinating not to share. It reads like a law school hypothetical. The entire thread of posts is collected here (oldest to most recent).

Here’s the skinny:

Elaine owns Elane photography. She is, among other things, a wedding photographer. A lesbian couple approaches her and asks her to photograph their commitment ceremony. She responds, saying that she photographs only “traditional” ceremonies. They ask what “traditional” means. She responds that she does not photograph gay ceremonies. Somehow it ends up in front of the New Mexico Human Rights Commission, who fines her and orders her to pay legal fees.

The question is: Is her refusal to photograph this “non-traditional” ceremony protected by the First Amendment?

Several key points:

• Same-sex couples are apparently a “protected class” under New Mexico law.
• Is there a distinction between her refusing to be hired by same-sex couples or refusing to be hired by anyone to photograph same-sex couples?
• Is that indeed a key distinction in this case?
• If she refuses to photograph same-sex couples because of her religious beliefs, does that entitle her to an exemption from the anti-discrimination law?
• Why the hell didn’t the couple just go to another photographer?
• Why is she turning down perfectly good business?

The comments to these posts are very…interesting…to put it mildly.

I know nothing about First Amendment law and even less about First Amendment law, but it seems to me that there is a significant distinction between someone refusing to be hired by a same-sex couple because they are a same-sex couple and refusing to be hired by a same-sex couple to create/produce something they don’t believe in.

I do think that if you are a business, holding yourself out to be a business, then you should be unable to discriminate based on the customer’s race, sex, sexual orientation, etc.., but you should be able to refuse to accept work because you find the product you are asked to create to be objectionable.

For example: If I am a photographer and a same-sex couple asks me to photograph a same-sex commitment ceremony, I should be able to refuse that job because I am deeply against same-sex ceremonies, but not because the couple asking me to photograph that ceremony is a same-sex couple.

But then i think about it and it gets more complicated. What if a same-sex couple asks me to photograph an inter-racial marriage? Can I still validly refuse because I don’t think people of different races should marry? Is that still not discrimination? If so, is it still protected by the First Amendment?

I told you it was interesting.

Image courtesy amanky. License details here.

Scott Henson, over at the always interesting Grits for Breakfast, has been following this story out of Bexar County in Texas (original post and follow up), which chronicles the efforts of the Texas AG, on behalf of Bexar County probation director Bill Fitzgerald to out anonymous blog commenters at a probation officers’ employee blog .

As part of an ongoing feud with his employees over whether the department will unionize, Bexar County probation director Bill Fitzgerald is seeking the identities of anonymous employee blog commenters on a relatively new blog called Bexar Me the Pain.

This is indeed very troubling, not only for those employees targeted, but for what kind of precedent it could set if the “outing” were permitted. Everyone seems to be pretty clear that the comments would be covered by the guarantee of Free Speech under the First Amendment [Note that (as far as I can tell) the AG is seeking the "outing" of the commenters and not the author of the blog.]

Scott asks:

I also wonder what Greg Abbott, the Texas Attorney General, thinks about his minions trying to out anonymous blog commenters, not because they libeled anyone but simply to expose them to possible retaliation? Why would Abbott allow his attorneys to bully Bexar probation officers this way?

And would Google have just turned the information over if plaintiffs’ attorneys hadn’t filed a motion to quash? I’ve wondered about this in the context of Texas Youth Commission commenters on Grits, and this makes me more curious than ever what information Google/Blogger keeps on IP addresses of anonymous blog commenters and under what circumstances they release the information?

Here [pdf] are all the pleadings in this lawsuit, but they total 270 some pages, so here’s the Motion to Quash, which should give you a basic idea of what it is all about. Grits’ coverage of the lawsuit is here and here.