First Amendment

Bill Clinton's aborted attorney general nominee Kimba Wood has dismissed an indictment for leafleting in favor of jury nullification.

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.

By Jon Katz, a criminal 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  

The primary factor that led me to criminal defense was an obsession over protecting civil liberties, and, with public defender work, an obsession over making equal access to justice more of a reality.

In that regard, then, it is only natural that in addition to criminal defense, I do student discipline defense. The two legal defense areas go well together, sometimes with student disciplinary matters relating to pending or potential criminal charges, and involving the fight for fair proceedings and fair treatment.

Caveat emptor: Before you choose a college, graduate school, or private high school, read the institution's student discipline code to make sure whether you still want to attend. Also, I recommend googling "site:thefire.org [insert the name of the academic institution that interests you]." TheFire.org is the web address for the indispensable Foundation for Individual Rights in Education, which focuses on stopping the rampant runaway train of unfair student conduct codes and student discipline. The FIRE was started by political conservatives, and rounded itself out with ACLU types, among others. Among the services it provides are these free information guides geared particularly to students unable to hire and pay for a lawyer.

Teachers might also benefit from looking up academic institutions on http://thefire.org before working there, lest they discover too late that they have selected a school that is long on excessive administrative control and short on respecting their teachers and students.

Thanks to the FIRE for posting on the following recent disturbing free speech suppression matters at public universities:

- The University of Wisconsin-Stout police and the university's "threat assessment team" have steamrolled a professor's First Amendment right to quote "Firefly" on his office door, and to follow up with his lament about the censorship. The FIRE reports this week that "UW-Stout has refused to back down".

- A Sam Houston State University police officer recently threatened a student democracy wall, after a professor reportedly cut out an anti-Obama slogan. (The wall also had an anti-Bush slogan.) Perhaps the police officer and vetting professor think they are not in the United States, but instead in China during the Chinese government's tension about how far expression went on the Democracy Wall there.

Speak your mind. If not, whose mind will you speak?

By Jon Katz, a criminal 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  

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer fighting for the best possible results in the courts of Fairfax County, Virginia, Montgomery County, Maryland, and beyond. http://katzjustice.com .

Congratulations to fellow First Amendment lawyer Andrea Farrell for obtaining a Wisconsin court ruling (1) that Information table prohibitions by the government implicate the First Amendment and (2) that declares the city of Madison's anti-tabling ordinance to be violative of the First Amendment, for not being narrowly tailored and not providing ample alternative means of communication. Ratliff v. City of Madison, Dane County, Wisc., Circuit Court No. 10-CV-2130.

 Bill of Rights. (From the public domain.)

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer fighting for the best possible results in the courts of Fairfax County, Virginia, Montgomery County, Maryland, and beyond. http://katzjustice.com

Today, the Supreme Court affirmed the Westboro Baptist Church's Fourth Circuit First Amendment victory.

Although I did not handle the appeal, I was lead defense counsel (representing the Westboro Baptist Church and its pastor Fred Phelps) in this case’s 2007 over-weeklong trial in Baltimore before U.S. District Court Judge Richard Bennett. Here, I have chronicled some of my experiences defending this case, and my thoughts about the WBC.

My decision to defend the WBC's First Amendment rights goes to the very core of my conviction that we must assure full First Amendment protection to the most vile speech in order to fully protect speech that we see as legitimate and essential. The First Amendment is not amenable to picking and choosing who benefits from it.

The First Amendment necessitated WBC's 8-1 Supreme Court victory. The Court's holding in this case speaks of being narrowed to communicating on matters of public concern on public property. Fortunately, the Court rejected petitioner Albert Snyder's urging to carve out a First Amendment exception for funeral picketing, even here where the picketing was around a thousand feet from the church where the funeral was held.

At trial, the jury was permitted to hear about WBC's online comments about Matthew Snyder, whose funeral WBC members picketed, and his parents. The Supreme Court ruled that Mr. Snyder's certiorari petition waived raising anything but the picket before the Court. .

The tide has turned from a multimillion dollar jury verdict against WBC to a full vindication of its First Amendment rights in this case.

With WBC, one day they are picketing soldiers' funerals, the next day places where gay people get together, and the next day synagogues; and often they do multiple pickets in a day. I advocate a robust marketplace of ideas, and insodoing, I strongly reject the WBC’s messages.

By Jon Katz, a criminal 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

Since 2000, I have been privileged to be a member of the First Amendment Lawyers Association. The FALA is the essential group for all First Amendment defense lawyers to join and participate in. Complementing and overlapping my criminal defense practice -- which forms the great bulk of my law practice -- I have also been doing First Amendment defense since 2000, as detailed here and here, including libel defense, political activist defense, and defense of members of the adult entertainment industry, including adult cabarets, adult video stores, adult Internet sites, and escorts. Deeply devoted to civil liberties, I welcome defending such liberties in both the criminal defense and civil litigation arenas.

For the first time since I joined the FALA, the group has held one of its semi-annual meetings in Washington, D.C., from late last week through yesterday. The best part of these meetings is sharing ideas, camaraderie, and optimism during our often tough, bloody, and sometimes gut-wrenching battles to give and extend ongoing full-strength to the First Amendment's guarantees of free expression. Some of the nation's best First Amendment lawyers come to these meetings, share ideas through a continuing legal education program, break bread together, and spend off-time together. This always recharges my batteries tremendously.  I am intentionally avoiding giving further specifics on the FALA meetings and member interaction, in that the confidentiality that everyone gives the organization fosters particularly beneficial brainstorming among each other.

The conference having been in my own backyard, it was not possible to stay away from court at all times, and I spent time at the office, too. Nevertheless, I spent time at the conference every one of its days, and came away richer for it.

Curiously, even though the Washington, D.C., Beltway area generates plenty of First Amendment litigation, among the FALA's under 200 members, the group only has four members from Washington, D.C. (2), Maryland (2, including myself) and Virginia (none). I am grateful to have this golden opportunity to be a part of FALA.

By Jon Katz, a criminal 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  

Yesterday, a federal trial judge in Illinois issued a temporary restraining order against the City of Metropolis, for reasons including that the plaintiff erotic cabaret and erotic DVD seller "has presented sufficient evidence suggesting that the ordinance was designed to fundamentally destroy its business model and reduce secondary effects by causing it to close, a result not permitted by Alameda Books."  Metro Pony, LLC v. City of Metropolis, Case No. 10-cv-144-JPG (S.D. Il., Feb. 24, 2011).  

The ordinance in questions makes it a misdemeanor to violate the ordinance.

Governments repeatedly hide behind the secondary effects doctrine -- which needs to be stricken down as incompatible with the First Amedment -- in efforts actually meant to close down adult video stores and strip clubs.

Congratulations to the plaintiff's lawyers who won this case. Thanks to my colleague who circulated the injunction opinion and order.

By Jon Katz, a criminal 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

Last Friday, based on statutory construction, the Florida Court of Appeal (2nd Dist.) reversed a child pornography conviction, because the images in question were not of real children but instead of adults with children's faces cut and pasted on the images of adults' bodies. Stelmack v. Florida, __ Fla. App. (2nd Dist., Dec. 3, 2010). Stelmack concluded:

Stelmack

Stelmack does not address the First Amendment, and seems to leave the door open for the Florida legislature to specifically make it illegal to copy and paste children's faces to images of adults engaged in sexual conduct. I have not yet needed to examine how federal courts and other courts have dealt with such activities.

Congratulations to John Stelmack's appellate team, all fellow members of the First Amendment Lawyers Association: Lawrence Walters and Derek Brett (both of whom I have previously collaborated with in First Amendment defense matters), and John Weston and Randy Garrou. Congratulations also to FALA members Dan Aaronson, Jamie Benjamin, and Gary Edinger, who served as three of the four lawyers for amicus Florida ACLU.

Thanks to the colleague who alerted me to this Stelmack case.