UNDERDOG - JON KATZ, Criminal Defense in and beyond the Capital Beltway.

Sometimes courts wrongly underprotect students' First Amendment rights. Of course, as to private schools, the First Amendment is not even implicated to those who run such schools.

Sometimes courts get it right, as with last week’s denial of a dismissal to a civil defendant/ high school principal for disciplining a student for posting a Facebook page with more than unflattering comments about one of the teachers at the school. Evans v. Bayer, __ F.Supp.2d _ (S.D. FL, Feb. 12, 2010).  

In Evans, high school student Evans never used school property to produce nor display the Facebook page, and actually had the Facebook page removed before the school administration ever saw it.

Suffice it to say, last Friday, a federal magistrate judge made an excellent decision to refuse dismissal of this suit, in which Evans seeks relief against principal Bayer. Here are links to this case:

- The court order denying full dismissal of the case.  

- Evans’s court complaint in the case.

- Bayer’s failed motion to dismiss the case.   

- Evans’s opposition to Bayer’s opposition motion. Jon Katz

ADDENDUM I: Thanks to a listserv member for circulating an article on this Evans case.

ADDENDUM II: Following is some particularly noteworthy language from the foregoing Evan case:

When I have a lengthy jury trial scheduled, I ask the potential jurors (where lawyer-directed jury voir dire is permitted) and ask the judge to ask the potential jurors (where lawyer-directed voir dire is not permitted) how they feel about being away from their daily routine to sit on the jury. Many potential jurors have very sincerely said that they feel it is an important duty that they welcome and accept. Numerous others want out, and now.

My multi-day (and multi-week) jury trials have been particularly interesting and of particular consequence, as opposed to a dry and annoying trial to decide which millionaire receives the lion’s share of the late parents’ estate. Furthermore, in today’s economically-depressed, job-depressed, job-stressed, and job-risky climate, watch out all the more for potential jurors freaking out about their job security and lost pay and profits (for those who own their own businesses or work on commission or get paid per job) who will not be well-focused on the trial, will throw wrenches in the engine of the jury deliberations, and will outright screw parties to the trial.

Thanks to a listserv member for providing this link that illustrates this problem in detail, stemming from a civil trial where the jurors rebelled so terribly that both sides ultimately agreed to dismiss the jury and let the judge decide the case.

Even when the economy improves, it remains critical for lawyers, judges and the court system to look out fully for the needs of jurors. Unless a juror has a secure government job where assignments do not mount up and get backlogged while on the jury, and unless a juror is retired or independently wealthy and loves the jury experience, watch out for jurors who get preoccupied about all the things they cannot get done while serving on the jury, including checking in on children in daycare; engaging in job hunting; checking frequently with their offices and customers; transporting children and other family members to doctors and back home; checking in with their significant other, particularly if trying to work out a falling out; taking regular breaks for smoking, snacks and the bathroom; and getting outside in the sun to escape the commonly stuffy, windowless, and often depressing courtrooms where many jurors can get traumatized by hearing, seeing and experiencing the deeply traumatic human drama often covered in the most minute and sometimes annoying and excruciating detail in the courtroom.

The least that lawyers can do to accommodate jurors is to be fully prepared and to present their evidence, testimony, cross examination, and opening and closing arguments sensitively and with an eye towards making their cases interesting, persuasive and relevant to the jurors, and with an eye towards helping the jurors remember the most important facts, figures and concepts in the trial, where for many if not all jurors, they are being fed information, facts, figures, allegations, and noise at a dizzying pace.

For more on the jurors’ perspective, see SunWolf’s books on jury dynamics.

For those interested, here are some local D.C.-area events I recently learned about; thanks to the listserv member who circulated this information. The common thread with all is that Ralph Nader will be speaking. I will try to go to tonight's Howard Zinn tribute, in case you will be there. I have not read much of Zinn's writings, but Amy Goodman has always been particularly interesting every time I have seen her in person, and she has the makings of an effective trial lawyer.

Monday, February 15

6:00 pm  - Ralph Nader, Amy Goodman, Bernice Johnson Reagon, David Zirin, Rich Rubenstein, to speak at the Howard Zinn Tribute 

Busboys and Poets Restaurant, 2021 14th St NW Washington DC 20009, (202) 387-7638

Tuesday, February 16

11am - Ralph Nader on "Peace and Justice Strategies: Can Some Super-Rich Save Us?"

Montgomery College, Rockville Campus Performing Arts Center, Rockville, MD

Wednesday, February 175:30pm - Ralph Nader and Bruce Fein on "The Decline and Fall of the Rule of Law: Corporate Control and the American Empire."

Gaston Hall, Georgetown University Main Campus, Washington, DC

Friday, February 196pm - Ralph Nader and Kike Arnal

Discussion and signing of In the Shadow of Power. http://www.artbook.com/9788881587605.html

Busboys and Poets Restaurant, 2021 14th St NW Washington DC 20009, (202) 387-7638

Is escorting constitutionally protected? Before courts can reach that question, a definition of escorting is needed. As it turns out, the definition of an “escort” runs the gamut from a dinner and conversational companion who provides no touching nor erotic services, to massages, to private partially-nude and fully-nude stripteases, to erotic direct physical contact running from erotic massages to more than that.

For escorts who provide stripteases, they may seek some protection from U.S. Supreme Court caselaw providing some First Amendment protection for erotic/exotic dancing. City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000). However, even the foregoing Erie case provides governments with a roadmap to require exotic dancers to wear pasties and g-strings. Moreover, the U.S. Supreme Court permits governments to try to zone adult entertainment to specific locations, and such zoning laws may not be amenable to escorts who provide outcall services. Los Angeles v. Alameda Books, Inc., 535 U.S. 425  (2002).

Thanks to a colleague for recently referencing a 1988 Ninth Circuit case that gives little to no First Amendment protection for escorts against government regulation. IDK, Inc. v. County of Clark, 836 F.2d 1185 (9^th Cir. 1988). IDK’s 2-1 panel majority held:

“The county's regulation governing the licensing and operation of escort services neither reaches a substantial amount of activity protected by the freedom of expressive association nor appears vague in all possible applications. Therefore, the escort service's facial challenge fails. We emphasize that our holding does not mean that the regulation is incapable of unconstitutional application in particular situations and does not immunize the regulation from challenges to its application. Facial invalidation is "strong medicine" which should be used "sparingly and only as a last resort." Broadrick [v. Oklahoma], 413 U.S. [601] at 613 [(1973)]. We conclude that this regulation does not reach a sufficient amount of the activities protected by the Constitution to justify a dose of that medicine.”

IDK, Inc., 836 F.2d at 1198.

Dissenting Judge Reinhardt takes a better approach, concluding:

“The Clark County regulation requires that licenses be obtained for the exercise of first amendment associational rights, and gives licensing officials broad discretion to grant or withhold such licenses. However, it fails to meet the strict standards that the first amendment imposes. It is written in terms that invite arbitrary and discriminatory enforcement. It is not the least restrictive means of achieving the county's goals, and it encompasses associations that are unrelated to those goals. It is "unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct." Coates [v. Cincinnati], 402 U.S. [611] at 614 [(1971)]. For these reasons, I respectfully dissent from the majority's decision.”

IDK, Inc., 836 F.2d at 1206. Jon Katz 

For over ten years, I have written many things online about the benefits I have derived from the Trial Lawyers College. I will always be grateful for the opportunity I have had to participate at the college, and to its many participants with whom I have shared profound friendship and support to this very day.

Just as I have sung many praises about the college, I think it is important to put the college into a current perspective, particularly as to those who weigh my writings in deciding whether to attend a TLC program.

Perhaps TLC – is the acronym a mere coincidence with tender loving care? -- is an idea whose time has expired in its current form (see my discussion below about Cheng Man Ch’ing). Together with the National Criminal Defense College/Macon, the TLC helped me make myself a much better person and lawyer, but would today’s TLC have been as beneficial for me as when I attended in 1995?  

Unfortunately, as opposed to the NCDC, which for years has not been associated with any one strong personality, the TLC and Gerry Spence have been too inseparable from each other. Maybe the TLC would not have gotten off the ground and survived so long without Gerry’s heavy involvement, but the TLC could have become a much greater place had his dominance subsided to share more room with additional leaders of the TLC. Instead, sadly, the opposite happened, with staff/faculty eventually primarily coming from among TLC attendees, and with the elimination in one way or another of participation by a vast number of staffers/faculty who had not been attendees.

Of course, the NCDC is an institution, whereas one of the first things Gerry warned us of –- and I have always agreed wholeheartedly -- in 1995 was against the TLC becoming institutionalized, which by now the TLC keeps snowballing into more and more and at a dizzying speed.

Perhaps a non-institutionalized trial lawyer training ground will not survive on its own for too many years without becoming institutionalized. However, the more the TLC becomes entrenched and snowballed in institutionalization, the more the TLC becomes something much different than it was when I attended in 1995, for the worse.

There comes a time when organizations whither away once their charismatic leader is no longer with the organization. A case in point is the great t’ai chi master Cheng Man Ch’ing, who brought t’ai chi ch'uan yang style to the West and away from just the aristocracy first followed by only Chinese people.

Cheng Man Ch’ing reportedly chose a few senior students to carry on his t’ai chi school after his passing. Early on after his passing, that did not work. Instead, his senior students, and some junior students, started their own t’ai chi schools, with many doing amazing things along the way after they grew their own independent roots and spread their own wings, with many of them still teaching at their own schools to this day, over thirty years later.

I imagine everyone who has benefitted from the TLC is very grateful to Gerry Spence –- who remains the TLC’s board chair but no longer its president -- but there is no monolithic path from here for TLC alums.

By now, plenty of government and corporate decisionmakers grew up when privacy rights were already much more nostalgia than anything else. Too many people under forty have endured school metal detectors; rampant observation cameras in retail outlets and restaurants, and on the streets (only thirty years ago, such technology was too cumbersome and expensive to be rampant); limited privacy on the Internet; reverse tracking of their movements through their cellphone and GPS usage; and rampant drug testing even to obtain a job as a store cashier.

Even twenty years ago, I listened in deep discomfort as a then-recent college graduate told me that to participate in team sports, she was required not only to provide a urine test(s), but to be observed totally naked when providing the urine sample, lest she be hiding someone else's urine somewhere. She seemed to have very much accepted that this is the way life is, as if to do in Rome what Romans do; but this was not always the way things were, and if our society is to have democratic protections, we should be participating in the making of society’s rules and norms from the get-go.  

Counter the foregoing college athlete's acquiescence to drug testing against the American soldier who faced court-martial proceedings for refusing to be observed giving a urine sample. She had no problem giving a sample, but was unwilling to be watched, unclothed, while emitting human waste. Her response about her ability to deal with incarceration over her refusal was that she had a stack of National Geographics waiting to be read, anyway. (Beware that civilian jails likely will only allow reading material that is purchased from the commissary or mailed from the publisher or distributor).

Enter Colorado parolee Chad M. Thomas, who allegedly and unsuccessfully tried to fool the mandatory parolee urine testing by arriving with a Whizzinator, which at once is a male organ prosthetic available in various flesh tones, plus a contraption to keep clean urine (obtained from drug-free people) heated to body temperature. Were drug testing for parolees, probationers and pretrial supervisees private, the prosthetic part of the Whizzinator would have been unnecessary. Instead, Mr. Thomas’s parole agent apparently felt there was monkey business amiss. Unfortunately for Mr. Thomas, he allegedly offered the parole agent a bribe to let him use and discard the Whizzinator, which elevated the problem from a potential return to prison for a parole violation, to a felony charge of bribery.

Had Mr. Thomas merely provided his own urine sample -– even if it would test dirty –- while armed with a lawyer to advocate that he was back on the road with drug education (of course, said advocacy is not always provided from public funds for indigent defendants until closer in time to the parole violation hearing), his situation would not be so dire.

Dr. Phil exposes the unreliability of eyewitness testimony here. Just click the video link listed below the headline EYEWITNESS EXPERIMENT, and read in this link how, after seeing a video of a "suspect", "40 percent of [Dr. Phil's] audience chose suspect number 3. Dr. Phil inform[ed] his audience that anyone who voted chose an innocent man because the real perpetrator was not in the lineup."

And there I was assuming that Dr. Phil's show was just about fluff. That is what happens when I make assumptions about television shows without even having broadcast and cable television at home for the last three blissful years.

Thanks to a fellow lsitserv member for this link.  

Another Super Bowl comes today that I will not watch. I think I last watched around 1992. Of course, by my not watching, I miss television's efforts to avoid a repeat of nipple-gate and to be more lenient in running controversial commercials; and miss any further explanation of the roots of "Who Dat", including whether the phrase is or is not racially demeaning.

The problem about Soviet Olympic sports was that the Soviet government apparently poured so much money into its athletes as to make them hardly resemble amateurs any longer. A big problem about professional football, baseball and basketball in the United States is that it is overly commercialized to make watching on television a substantial irritant.

I still enjoy watching sports, particularly a good lacrosse game and some of the televised daring non-ball sports, including wild obstacle courses. I still appreciate the awesome athletic abilities of many athletes. As my nearly four-year-old boy gets older, I likely will be watching more live and televised games, if he wishes. My wife is not big on sports, so we have enjoyed this break from sports together.

Watching sports was more fun for me before I got bothered by my college years that professional football, baseball, basketball, and more are segregated based on gender; before I realized how rampant is drug testing throughout professional and amateur sports, which was not nearly as rampant in my younger days, it seems; and before people had to pass through metal detectors to get into a stadium. I have great memories seeing the Yankees, Knicks, Lakers, and Bruins in their home stadiums. Later, the Yankees put doo-doo on their games by prohibiting people from leaving their seats during the national anthem, or maybe that was the case even when I attended in the late 1970's, without my knowing it.

A few years ago, the local National Lawyers Guild chapter arranged for an outing at Camden Yards. When I stated my concerns about gender segregation and drug testing to a particularly excited member -- who is an avowed communist, to boot -- he focused me on the fun of the Orioles game. Sure, I had fun when I went to a game at Camden Yards. That was not enough to overcome my concerns about returning, and I did not.

Because I may be watching more professional sports in the future, this blog entry is not an effort to convince others not to watch the Super Bowl. I do, however, wish to know your views on the concerns I have stated here.