First Amendment

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com.

Praised be the Virginia Supreme Court and Florida District Court of Appeal each for recently reversing prior restraints on speech imposed at the trial level.

In Virginia on December 28, the Supreme Court reversed a prior restraint against a man who complained on Yelp about a home improvement contraactor. The state Supreme Court did so without even waiting to hear from the contractor. How I wish the Supreme Court had publicized its action, rather than keeping it as an unpublished order. Dietz v. Perez (see extensive links to the case, including the Virginia Supreme Court's unpublished opinion). Here is the transcript from the trial court proceeding in the case.

In Florida, the District Court of Appeal reversed a prior restraint against a woman's making commercial use of her ex-boyfriend's name. Vrasic v. Leibel (Fl. Dist. Ct. of Appeal, 4th Dist., Jan,. 9, 2013). Congratulations and thanks to fellow First Amendment Lawyers Asssociation members Gary Edinger and Dan Aaronson for obtaining this victory, and thanks to Gary for providing information on the case.

While the above two appellate actions reverse prior restraint of speech, they do not preclude legal action for money damages against the alleged wrongdoers. I look forward to the day that the First Amendment is strengthened by eliminating libel actions.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com.

Last Friday, the U.S. Court of Appeals for the Sixth Circuit affirmed a $300,000 civil judgment against lawyer-expert witness Dean Boland for having helped a child pornography defendant by morphing G-rated stock pictures of two children into sexual images. Doe, et al. v. Boland, __ F.3d _ (6th Cir., Nov. 9, 2012).

First Amendment and other defenses failed, with the Court pointing out that Boland could have reached his same goal, undiluted, by morphing images of adults.

I have not read the whole opinion, but plan to do so soon.

Wired provides further background on this story, including earlier efforts -- later tabled -- to prosecute Dean Boland for child pornography over his morphed images, and the success his morphed images may have had in the court results of the criminal defendant involved. 

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com.

By statute in New York state, taxes may not be imposed on admission fees for "dramatic or musical arts performances." However, yesterday, New York's high court decided to draw the line, 4-3, between so-called highbrow and lowbrow dancing, thereby letting ballet admissions fees avoid taxes, but not admission fees for exotic dancing, also known as stripping. In the Matter of 677 New Loudon Corp., & c., v. New York tax Appeals Tribunal, et al.

Praised be the 677 New Loudon dissent for panning the highbrow-lowbrow distinction. Moreover, having represented some exotic cabarets in the past, I have seen firsthand the First Amendment-protected expressive performance in such dancing and lapdancing, often with dancers who are obviously very talented and classically trained since years ago. More importantly, with the above-referenced statute, without even conceding that exotic dancing is lowbrow, there should be no highbrow-lowbrow distinction.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

In Washington, DC, at least into the 1950's, segregation was customary, including the segregation of black people to theater balcony seats and in restaurants. After reading Pauli Murray's Song in a Weary Throat soon after its 1987 publication, I asked the owner of a longtime pharmacy near my law school about segregation at his own then-existing lunch counter. He told me that he refused to serve black people at his lunch counter into the 1950's. He gave a convenient excuse: "If I served black people, the construction workers across the street would not have eaten at my lunch counter." Fine; put your money where your mouth is and let the construction workers eat elsewhere if they will not eat at an integrated lunch counter.

For quite some time, apparently right into the 1960's, when buses went from Washington, D.C., into Virginia -- the cradle of the Confederacy -- the bus driver directed black people to the back of the bus, sometimes on the Fourteenth Street Bridge before the bus had even left the Washington, D.C. border.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

Last Friday, the D.C. Circuit, 2-1, applied strict scrutiny in delivering the tobacco industry a First Amendment victory over the FDA’s regulations requiring anti-smoking graphics on cigarette packages and ads. R.J. Reynolds, et al., v. FDA, et al.  _ F.3d _ (D.C. Cir., Aug. 24, 2012). The dissent objected to applying strict scrutiny, seeing this matter as being about commercial speech deserving of less First Amendment protection.  

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

Thanks to a listserv member for providing this link to a recent federal injunction granted against a state statute limiting Internet and First Amenment rights. Backpage, et al. v. McKenna, __ F.Supp.2d _ (W.D. Wa., July 27, 2012).

I have only briefly skimmed the opinion thus far, but it seems to be a blockbuster victoryfor First Amendment and Constitutional rights.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting relentlessly for the best possible results for his clients. http://katzjustice.com

In 1999, I blogged about the Supreme Court's 5-4 decision permitting the FCC to fine broadcasters for fleeting expletives, and leaving the Second Circuit to consider remaining Constitutional matters. In mid-2010, I blogged that the Second Circuit had found that the FCC's indecency policy is unconstitutionally vague. Fox, et al. v. FCC, 613 F.3d 317 (2d Cir. 2010).

Yesterday, the Supreme Court unanimously barred retroactive application of the fleeting expletives policy, finding that the FCC's "standards as applied to [the subject] broadcasts were vague, and the [FCC's financial penalty] orders must be set aside." FCC v. Fox, et al., _ U.S. _ (June 21, 2012).

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com 

While my law practice focuses on criminal defense, I also do First Amendment defense, with gusto, including adult entertainment defense. One thing that gnaws at me is the backdoor efforts of so many local governments to shut down adult businesses by zoning them --even existing businesses -- into hinterlands that are more expensive to locate in -- and often with barely enough locations to accommodate all the adult businesses -- and that sometimes require zoning experts to assure that the businesses are not within a certain distance of other adult entertainment businesses, schools, parks, homes, and houses of worship, among other places. One of the goals, then, of businesses is to avoid being designated as adult in order to avoid being zoned into the hinterlands.

Enter Walgreens, which has been selling a panoply of sex toys -- at least online -- which tends to be one of the criteria in determining whether a business is an adult entertainment business. If Walgreens is going to be permitted to continue to operate as a non-adult business, gone will be the opportunity of zoners to automatically designate a business as an adult business merely for selling sex toys.

Congratulations to Walgreens for putting practicality of market demand over prudery. Thanks to a fellow listserv member for the link to Walgreens' sex toy page.

 Bill of Rights (from the public domain)

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com

The Internet does not need more censorship, whether the censorship arises here or abroad.

I have not had time to read the dozens of pages of the draft SOPA bill in the House and PIPA bill in the Senate, spurred by efforts to protect copyrights. (Then again, the television and film industry also opposed videocassette recorders in their infancy, crying copyright infringement, but later learned how lucrative is the repackaging and retail of their products.) I still know that I am a free expression zealot and always prefer erring on the side of too much than too little protection of free expression.

Now the SOPA bill apparently will be substantially amended to take into consideration the voices on the various sides of the issue.

Here are important sources of information on SOPA and PIPA:

- The ACLU and Electronic Frontier Foundation should be reliable sources on SOPA and PIPA.

- The SOPA's present text and PIPA's present text.

- The Obama administration's position that "we will not support legislation that reduces freedom of expression, increases cyber security risk, or undermines the dynamic, innovative global Internet."

- The ACLU's online petition to fix SOPA.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com

Beware any notion that your Facebooking activities are confidential. Recently a Pennsylvania trial court granted a motion to compel discovery against a civil litigation plaintiff's Facebook page contents, user ID, and password, finding no special privacy protection in such material, and direct litigation relevance in the plaintiff's public Facebook postings about a much less injurious life than the one claimed in the plaintiff's lawsuit. Largent v. Reed, et al., No. 2009-1823 (Ct. of Common Pleas - Franklin County Branch, Nov. 7, 2011).

Thanks to the Maryland Injury Law blog for posting on Largent.

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com

Earlier this year, a fellow public school classmate was extolling his police work on Facebook, where I responded by inviting him to join the efforts of such people as Law Enforcement Against Prohibition to reverse the damage of the drug war. He responded amiably enough, but underlined that he was not surprised that LEAP is primarily comprised of former rather than current law enforcement people.

As it turns out, the stories of terminated Border Patrol agent Bryan Gonzalez and terminated probation agent Joe Miller underline why some law enforcement folks might wait until their retirement to voice support for drug reform. Gonzalez alleges that he was terminated for expressing support for drug and immigration law reform. Miller alleges he was terminated after expressing support for marijuana decriminalization in a LEAP letter (although his employer states that he had not made sufficiently clear in the letter that he was speaking on his own behalf (he disputes that), and for allegedly dishonestly denying signing onto the LEAP letter (he says that at the time he had not known his wife signed his name to the letter, but then supported it)).

Such government employees as Bryan Gonzalez and Joe Miller should not lose such free expression rights by donning a law enforcement uniform or probation agent moniker.

Please urge President Obama and Customs Commissioner Alan Bersin to remedy the firing of Mr. Gonzalez. To seek a remedy for Mr. Miller, you may contact the probation office for the Superior Court in Mohave County, California.

Here is what I wrote to President Obama and Commissioner Bersin, separately:

Dear President Obama (/Commissioner Bersin)-

The following New York Times article reports the firing of U.S. Border Patrol agent Bryan Gonzalez after he informally expressed opinions to a colleague about the drug war and about easing treatment of undocumented non-U.S.-citizens. 

http://www.nytimes.com/2011/12/03/us/officers-punished-for-supporting-eased-drug-laws.html

I ask you to assure that he gets his job back if his above-stated views were the basis for his firing. Mr. Gonzalez is in a particularly unique position to share views with a colleague about the drug war and immigration policy, and should not be fired for it nor sanctioned otherwise.

For your convenience, Mr. Gonzalez's federal lawsuit in this case is here http://katzjustice.com/gonzalezCompf.pdf  . His current case docket is here: http://katzjustice.com/GonzalezDkt.pdf   Thank you. Jon Katz

Additional documents relevant to Mr. Gonzalez's case are the defendant's dismissal motion, Mr. Gonzalez's opposition to dismissal, and the trial court's sua sponte order to stay proceedings pending the Supreme Court's ruling on a parallel pending case 

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com

If schools want to teach students a good civics lesson about the First Amendment and the rest of the Bill of Rights, they will eliminate censorship. Unfortunately, the Supreme Court again and again has permitted watered-down free speech rights inside public schools, and even outside schools for students. Students' free speech rights still exist, but in diluted form that we need to undilute.

Homophobia runs too rampant in the world, even in such states as Maryland that seem to have particularly relatively strong support in government for freedom of choice and respect for lesbians, gays, bisexuals, and transgendered people.