Tag Archives: First Amendment

Fighting SOPA & PIPA: What Law Firms Can Learn From Today’s Internet Blackout

For those who have been completely in the dark, many websites and online businesses are blacking out their content today in a global internet protest against two bills pending in Congress—SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act).

SOPA in the House and its sister bill in the Senate, PIPA, target overseas “rogue websites” that host illegal copies of movies, videos, music, and photos or websites pirating counterfeit goods. If passed, the law would require Internet service providers to deny customers access to any violating website, domain name, or IP address.

Search engines, such as Google, Yahoo, or Bing, for example, in addition to social media sites, such as Tumblr, WordPress, or Blogger, will be required to adjust their search results and content to exclude foreign websites and users in suspected violation of the bill. Or, these U.S. companies’ websites will be blocked, actionable by law.

Payment providers and ad services will also be impacted, being forced to refuse business to any website in violation of the bill’s terms.

“The threat of such an audacious power grab at the behest of copyright holders has sparked furious response from technology experts, who see nothing less than a destruction of the Internet as we know it,” writes Evan Hansen for Wired Magazine’s op-ed this morning.

Wired.com joins sites like Google, Reddit, and Wikipedia in blacking out headlines on its website pages this morning. The black-tape redactions make a statement against the proposed censorship by these two bills, which some media sources—including Wired—are likening to China’s “Great Firewall.”

Patent and copyright lawyers know well how troubled and backlogged the system for protecting intellectual property has been recently, but does a quick, arguably communist censorship of the Internet align with the established freedoms, laws, and principles of the U.S. Constitution?

“Beyond damaging free speech and the internet, bills like SOPA and PIPA damage industry by reinforcing untenable faith in the status quo, ad an equally untenable fear of innovation,” continues Hansen for Wired.

“It reveals a mindset that continues to hold back media companies as they vie to compete on the new platforms that have already transformed their businesses, ready or not.”

Ultimately, the bills aim to help U.S. media companies, but fail to realize they stifle the means by which these same companies reached acclaim and success in the first place—new technology.

Limiting the Internet’s resources and free access to websites make WordPress—the platform from which you are reading this blog article—and Google—the search engine that you used to locate C4CM—defunct.

Not to mention these two bills affect your everyday use of these websites in the functioning of your law firm, including the marketing of your firm to new clients.

The practice of law today, with e-filings, e-discovery, and e-management of legal cases, is inextricably linked with technology and Internet resources. Will SOPA and PIPA force firms back into law libraries and hour-long searches for one document via the dewy decimal system?

Although the bills primarily affect Silicon Valley-based tech industry, law firms should not shirk to the shadows on this fight. The bills will also create a wide-spread ripple effect in the field of law.

From this silent, web-based protest, law firms should pay attention to at least one part.

“SOPA and PIPA represent a legal strategy that focuses the attention of business leaders on stopping losses rather than promoting innovation and building new products,” writes Hansen for Wired.

How many articles about innovation leading to increased profitability must be written before industries truly believe? Law firms should look back to lessons learned from Howrey LLP, Post-It Notes, and Apple, to name a few.

Although in many ways success in the practice of law is about the number of wins versus the number of losses, it is also about longevity—the longevity of a verdict or legal precedent, a bill in Congress, or the life of your firm.

Shortcuts and quick fixes may win a certain amount of immediate support, but innovation is the key to success in the long term. Congress and managing partners should take note.

-WB

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U.S. First Amendment & Employment Rights For Religious Figures (Like Andy Warhol?): On The Supreme Court Decision

Two bits of controversial news had the legal community going bananas yesterday.

First, a questionably copyrighted image in the public domain—specifically a banana illustration on a music album cover—is the subject of a trademark lawsuit that was filed by The Velvet Underground.

In 1967, the band used the image of a banana and the signature of Andy Warhol on the cover of its “The Velvet Underground and Nico” album, which critics labeled as “one of the most influential rock recordings of all time,” according to the complaint.

The band’s founders, Lou Reed and John Cale, claim The Andy Warhol Foundation infringed on this design by licensing it to third parties, reports Bloomberg.

The design was initially a collaboration between the band and artist Andy Warhol, but The Warhol Foundation now claims it has copyright interest in the image, according to the lawsuit, since the banana illustration was taken from an advertisement in the public domain.

Warhol’s copyrighted works have an estimated market value of $120 million. The Warhol Foundation has earned more than $2.5 million each year licensing rights to those works, according to the complaint (via Bloomberg).

When this much money (and artistic expression) is at stake, the subsequent jury trial will certainly garner much media attention.

“The banana design is a significant element of Velvet Underground’s ongoing licensed merchandising activity,” the group reportedly said to Bloomberg, and use of the design as a trademark by the band “has been exclusive, continuous and uninterrupted for more than 25 years.”

Yesterday, marking roughly 225 years of constitutional freedom, a Supreme Court decision not only upheld the First Amendment by protecting religious liberty in America, but the legal precedent set by the court also, arguably, expanded these rights.

In this second bit of significant news, the Supreme Court–on Wednesday–recognized “ministerial exception” as applicable to employment discrimination law in America.

In other words, the Supreme Court decided that churches and religious groups should be able to hire and fire employees at will, without government restriction, interference, or legislation.

“’The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,’ Chief Justice John G. Roberts Jr. wrote in a decision that was surprising in both its sweep and its unanimity.’ But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission,’” reports the New York Times.

The landmark case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553, was brought by Cheryl Perich, a former teacher. Ms. Perich alleged that she was fired from her school, which is part of the Lutheran Church-Missouri Synod, for pursuing, under U.S. law, an employment discrimination claim for her disability of narcolepsy, according to Bloomberg.

Narcolepsy is a neurological condition that is typically protected under Federal Law as a medical disability. In the case of this religious-school teacher, however, the school–as part of the Lutheran Church–does not abide by the same anti-discrimination laws as secular institutions. Therefore, the Supreme Court ruled, the school was within its rights to fire Ms. Perich.

The decision certainly emphasizes the importance that the separation of church and state holds in the eyes of Supreme Court Justices. However, the implications of the ruling, in terms of turning a blind eye to instances of employment discrimination, will be pervasive in American society.

For example, the court’s ruling does not address the entire scope of its religious amnesty—does it apply to all priests and ministers, how are these titles defined, and what are the impacts for secular teachers in religious schools?

Furthermore, the decision begs the question, are religious leaders now exempt from racial, religious, or sexual discrimination and harassment in the workplace?

For lawyers representing religious institutions, it is, now, even more important to brief your clients on pertinent employment law.

Truman Capote wrote about Andy Warhol, “He symbolises things to desperate people. They come to him and tell him all their troubles. They cling to him as a source of strength, as a kind of semi-religious figure in their lives.”[1]

So, who constitutes a religious figure and what are their employment rights? In 2012, be aware, the Supreme Court is starting to draw lines.

-WB

1. Truman Capote, as quoted in Edie: An American Biography, Jean Stein and George Plimpton (1982)

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Headlight-Flashing Unconstitutional? Recession Prompts Increased Traffic Citations And Related Litigation

On the road, neon yellow signs are universal symbols for caution. Equally recognizable, the color red indicates a stop.

And, for just as long, flashing headlights has been the unspoken signal between motorists warning of a nearby highway patrol officer.

These days, highway patrol officers have been known to issue tickets for flashing-lights. Citations and correlating fines have been issued across the nation, including New Jersey, Ohio, Tennessee, and Florida.

Now, these traffic violations, as well as First Amendment rights, are gaining traction in court.  

“The flashing of lights to communicate with another driver is clearly speech,” said lawyer, J. Marc Jones, to Florida Today (via WSJ). Jones represents Florida resident, Eric Campbell, in a class-action suit against ticketing for flashing-headlights.

Last month, Campbell filed a class-action lawsuit in Tallahassee against both the Florida Highway Patrol and other Sunshine State traffic-enforcement agencies. Campbell seeks an injunction prohibiting law enforcement officers from issuing headlight-flashing tickets.

Campbell’s class-action suit also seeks refunds and civil damages for previously-cited motorists. The lawsuit estimates that as many as 2,900 drivers were wrongfully issued traffic citations from 2005 to 2010.

In a recession, constitutional rights are often brought to the forefront of litigation. Cities and States short funding frequently resort to increased fines and citations for minor violations to compensate for budget cuts.

And, with the Fourth Amendment garnering so much attention of late, it was only a matter of time before the First Amendment received equal attention.   

“It’s not about traffic. This is about government going too far, the intentional misapplication of a statute solely to produce money. That’s just wrong,” Jones said to Florida Today.

Since the start of the economic recession, traffic fines in Florida have increased. A new law enacted Feb. 1, 2009, revved up the fine for traffic citations, which means more revenue for Florida but heavier burdens on speeding Florida residents.

According to the St. Petersburg Times, “Some officers say the new traffic fines, which seem to increase every year, are excessive, especially in light of the current recession.”

However, other Florida and traffic-enforcement representatives disagree.

Rich Roberts, spokesman for the International Union of Police Associations, said of the recent lawsuit against flashing-light citations, “Warning oncoming traffic that there are law enforcement officers ahead allows a speeder to slow down until he passes the officers—and then he starts speeding again.”

When there’s a battle between safety and liberty in America, who wins? Should this change during an economic downturn?

Depending on the outcome of this class-action, it’s at least safe to say more litigation will be on its way.

-WB

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Is Getting Your Firm To Implement A Social Media Policy Like Pulling Teeth? Tell Them This: Facebook, MySpace, Twitter Now Permisable In Court.

It doesn’t matter how routine the act of teeth brushing should be, parents are still forced to ask their children the same question every night.

As firm administrator, it may be uncomfortable to continually remind office employees to refrain from certain ill-begotten behaviors, but, according to recent legal developments, repetitive advice on social media policies and privacy is still necessary.  

“Do you have any posts on Facebook, Twitter, or MySpace, for example, that could serve as incriminating evidence?”

Once again, attorneys should remember to warn their clients that privacy settings do not necessarily reflect privacy law.

For example, personal Injury suits are especially vulnerable to invasive discovery requests for social media information.

In Romano v. Steelcase, Inc., the court granted the defendant’s request for full access to the plaintiff’s “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.” The defense aimed to use photographs, wall posts, and other pages to prove the defendant lived a happy, active lifestyle despite her injuries and her claims.

The Wall Street Journal Law Blog and The Daily Business Review pointed out that, in April, Facebook and MySpace account information was used to deny a divorcee alimony payments after she claimed a car accident physically prevented her from working (online photos and posts proved this was, in fact, not true).

Firm employees should be equally cognizant that personal blog sites and online networking mediums can make up—in legal disputes—a discoverable, public profile.

Just this year a court case was settled between a Connecticut ambulance company, and The National Labor Relations Board and Dawnmarie Souza, who was fired for making derogatory remarks about her employer on Facebook.

The financial terms of the settlement were not disclosed. However, surprisingly, the ambulance company voluntarily revised its Internet use policies regarding blogging and social media to make them more lenient. The company now has an Internet policy that permits its employees to make candid remarks and even disparaging ones about their work.

Law firms, of all places, should respect the privacy and first amendment rights of its employees.

Nevertheless, there are ways your firm can try to hire tactful and, say, more non-controversial associates. But, to do this, firms must focus investigations on the social media postings and online public profiles of its employees during the interview process, instead of first-year performance reviews.

Once associates are hired, it’s difficult (and illegal) to deny them their first amendment rights. So, implement a social media policy that clearly explains your expectations for digitally public, post-work discussions.

Finally, survey your employees—get feedback. If your employees feel they have no secure medium at the firm for constructive criticism, they will certainly seek an outlet elsewhere, likely a more public and litigious one. 

From your Twitter feed, it’s evident you’ve brushed your teeth. Now, how bright, shiny, and sensitive is your new social media policy?

-WB

For more information, attend C4CM’s course, “Social Media Policy Dos and Don’ts: Employees, Networking Sites and the Law.”

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Book Scandals: Do You Have All The Facts To Defend Your Clients’ Work Of Fiction?

It’s only fitting (and possibly ironic) to discuss literary litigation on the birthday of Georges Duhamel.

Duhamel was the father and founder of the Abbaye de Créteil, a community and publishing house that aimed to establish a place to protect freedom of speech and press and practice the arts of writing and poetry.

Today, authors and the agents that sponsor them have a similar reason to unite in defense of literary liberty. This time, instead of in the southeast of Paris, they gather in front of the courtroom.

Why? The number of lawsuits surrounding high-profile book content is on the rise. Some, like Cato Institute senior fellow Walter Olson, believe the trend started with James Frey’s famed faux-memoir, A Million Little Pieces.

After a contentious lawsuit, Random House agreed to pay up to $2.35 million in the suit against the memoir. In the end, only 1,700 people asked to be reimbursed for their book purchases.

Although the publisher also paid opposing counsel’s legal fees, there was a more costly aspect to the lawsuit. The court case against A Million Little Pieces uncovered the truth about its author’s past and Random House’s pocketbook, but the precedent it set for targeting high-profile books is what caused the most damage.

Since then, a variety of court cases have been brought against similar best sellers.

For example, as of this month, there are currently two class-action suits against Penguin regarding its publishing of Three Cups of Tea. “The first, filed in May, accused the author Greg Mortenson and his charity of fraud and racketeering of book profits and donations,” reports the Wall Street Journal’s Law Blog.

And, although willingly dismissed in May, Simon & Schuster was initially sued for alleged misrepresentations on certain Israel-Palestine issues contained in Jimmy Carter’s 2006 memoir Palestine: Peace, Not Apartheid.

“What’s going on?” asks Alex Beam, Boston Globe columnist. “’This is part of the evolution of the class action lawsuit,’ explains Walter Olson, founder of the website Overlawyered.com. ‘For a long time the courts only listened if you could prove the defendant liable, and that everyone had suffered. Now there have been several waves of rulemaking that have liberalized the standards.’”

So while your client may be eager to express his views in ink, best express your legal opinion on the book’s marketing strategy first and foremost. Plaintiffs and the judges presiding over your literary lawsuit have, of late, become less lenient.

Meanwhile, the litigious debate about the breadth of First Amendment rights has yet to fade after all these decades.  

In the words of Georges Duhamel, “It is always brave to say what everyone thinks.” These days, it’s even more brave (and, in some cases, costly) to write it in a memoir.

-WB

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