Hey, wasn’t this a question on Nicole Garnett’s Property exam in 2005?
Who knew that arguably the most heavily (and persistently) postmortemed exam question of our three years at NDLS was so prescient?
WARNING: Extreme ranting ahead.
I remember reading this story when it first came out, and I’m surprised I never blogged it before, as I was totally outraged then, and totally outraged now. The story is about one Genarlow Wilson, a black kid from Georgia who went from being a scholar-athlete with a bright future to a “criminal” sentenced to 10 years in prison, without the possibility of parole, for — wait for it — getting a blowjob from a fellow high-school student.
Glenn Reynolds is right: this is totally outrageous. How can it be “wiretapping” to record a traffic stop from inside one’s own car? The police officer has no reasonable expectation of privacy when pulling you over on a public street.
What an absolutely ridiculous law. Supposedly, it “bars the intentional interception or recording of anyone’s oral conversation without their consent.” Umm, ever heard of overbreadth? What if I record two people having a loud “conversation” in a public place, which is easily overheard by anyone nearby? For example, a public shouting match between quarreling lovers? Is it “wiretapping” to capture a recording of that? No? Well, how about a police officer making a traffic stop on a public street? Yeah, that’s what I thought.
I do love how there’s an exception for the police taping citizens, but not for citizens taping the police. That doesn’t seem backwards at all! I mean, why should the police be subject to scrutiny anyway? It’s not like they ever do anything wrong! (Rodney King, anyone?)
Remind me, what country do we live in again?
Frankly, this kind of thing scares me much more than a lot of the political civil-liberties debates that people get all exercised about. The idea that someone could face a potential seven-year prison sentence for… making a video and audio recording of himself being pulled over in a traffic stop… in America… is beyond terrifying.
18 Pa. Cons. Stat. Ã‚Â§Ã‚Â§ 5703, 5704: It is a felony to intercept any wire, oral or electronic communication without the consent of all participants. It also is a felony to disclose or use the contents of a communication when there is reason to know those contents were obtained through an illegal interception.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.
Krueger writes, “a DA who’d file charges in a case like this is reprehensible. All he’s doing wasting taxpayer money harassing Mr. Kelly by making him pay to defend a case the state hasn’t a prayer of winning. You know the drill–you can spend $20k winning the case, or you can plead out to something you didn’t do and pay a $500 fine.” Ah, legalized extortion.
P.S. Here’s one potentially helpful case for Mr. Kelly:
A police chief in his patrol car talking to dispatchers did not have a reasonable expectation of privacy and may be sued by a man arrested for filming him, a three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) has ruled. The full court declined to rehear the case last week.
On Jan. 28, 2000, Anthony Johnson filmed Byron Nelson, then-police chief of Sequim, Wash., as he talked with dispatchers from his patrol car. … After twice telling Johnson that it was illegal to record conversations without consent, Nelson and another officer physically struggled with Johnson, seized the camera and arrested him. Johnson spent three days in jail.
Johnson was charged with violating the Washington Privacy Act, which bars intercepting or recording a private conversation without the consent of all participants. The trial court dismissed the charges after finding that Nelson had no expectation of privacy because he parked his patrol car with the windows rolled down in a public place.
Johnson sued Nelson, the city, and others in U.S. District Court in Tacoma for violating his First Amendment rights and Fourth Amendment prohibitions against unreasonable search and seizure. The district court dismissed the suit, but the Court of Appeals reversed after Johnson appealed.
“It is undisputed that Johnson recorded Chief Nelson while he was on duty performing an official function in a public place,” Judge Kim M. Wardlaw wrote for the 2-1 majority. “Johnson did not violate the Privacy Act when he recorded this official, public activity.”
Hey, sometimes the Ninth Circuit is right. :)
Service of process via Xoxohth? Something to add to the fall’s CivPro classes, perhaps.
I say “purports” because the policy is unenforceable, absurd (so people won’t obey it voluntarily), and probably unconstitutional when applied to games played at public school venues. Nevertheless:
A Courier-Journal sports reporter had his media credential revoked and was ordered to leave the press box during the NCAA baseball super-regional yesterday because of what the NCAA alleged was a violation of its policies prohibiting live Internet updates from its championship events.
Gene McArtor, a representative of the NCAA baseball committee, approached C-J staffer Brian Bennett at the University of Louisville’s Jim Patterson Stadium in the bottom of the fifth inning in the U of L-Oklahoma State game. McArtor told him that blogging from an NCAA championship event “is against NCAA policies. We’re revoking the credential and need to ask you to leave the stadium.” …
U of L circulated a memo on the issue from Jeramy Michiaels, the NCAA’s manager of broadcasting, before Friday’s first super-regional game. It said blogs are considered a “live representation of the game” and that any blog containing action photos or game reports would be prohibited.
“In essence, no blog entries are permitted between the first pitch and the final out of each game,” the memo said. …
“It’s a real question that we’re being deprived of our right to report within the First Amendment from a public facility,” said Jon L. Fleischaker, the newspaper’s attorney.
“Once a player hits a home run, that’s a fact. It’s on TV. Everybody sees it. (The NCAA) can’t copyright that fact. The blog wasn’t a simulcast or a recreation of the game. It was an analysis.”
During the middle of yesterday’s game, Courier-Journal representatives were told by two members of the U of L athletic staff that if the school did not revoke Bennett’s credential it would jeopardize the school’s chances of hosting another NCAA baseball event.
“If that’s true, that’s nothing short of extortion and thuggery,” Ivory said. “We will be talking to our attorneys (today) to see where we go from here.”
Michael Silence asks, “Does this apply to someone talking on the phone and telling the other person about the game?” Analytically, it must, at least if the speaker is “telling the other person about the game” with the knowledge and/or intent that the other person will turn around and post those updates to a blog. How can one draw a principled distinction between that and what Bennett did — or for that matter, what I do with my audio-, photo- and text-based liveblogging of games from the stands at Notre Dame Stadium and elsewhere? Indeed, how can one really distinguish between “liveblogging” and telling friends about the game, even if those friends don’t have a blog? Is there really an analytical difference between giving phone updates to five friends and posting an update via phone to a blog that gets five readers? Where, and how, does the NCAA draw the line?
Because the NCAA is not a state actor, I suppose the policy isn’t unconstitutional on its face. So, I probably wouldn’t have a First Amendment leg to stand on if ejected for blogging, say, a Notre Dame-USC game. (Although I guess that wouldn’t happen if the policy only extends to “championship” events, as opposed to regular games between NCAA member institutions.) But when the game involves public universities’ teams, playing in a publicly owned stadium, policed by public employees (ushers, law enforcement officials, etc.), that’s much more questionable.
This actually relates back to a recent discussion about limitations on photography in public places. Can a government entity (i.e., the university) contractually condition a person’s entry to the press area — or to the stadium itself, in the case of a non-MSM blogger like me — on a prior restraint of free speech? Prior restraints are the most disfavored of all government actions with regard to speech, so I don’t think they access to a public facility can be conditioned on them without a pretty damn compelling interest (like the sort of interest that would arise when someone enters a military base, not a baseball stadium).
That said, I’m shooting from the hip with my legal analysis here, and I could be wrong. I’m curious what our other resident legal scholars think, if they haven’t all sworn off the blog for bar study. :)
Legalities and constitutionalities aside, the policy is self-evidently ridiculous, and if it wasn’t the NCAA enforcing it, I’d have full confidence that pressure and outrage from the public, media and blogosphere would lead quickly to the policy’s elimination. However, given that a remarkably high percentage of the NCAA’s policies are self-evidently ridiculous and yet remain in force, I’m not sure why this would be any different.
(Hat tip: Lisa. Sorry, Scientizzle and InstaPundit, I found about the story from Lisa first. :)
P.S. One blogger wonders why we’re only hearing about this policy now, and why the heck the NCAA would enact and enforce something so self-defeating:
The NCAA claimed that it does not allow live-blogging during its championship events.
That’s news to me, someone who has live-blogged during UK’s games in the NCAA Basketball Tournament and during the Final Four the past two years. At no time was I presented with any regulations by the NCAA that prohibited live-blogging during its events.
If there is such a rule, it is an asinine one — another in a long list of misguided NCAA rule-making. The Courier-Journal is in the business of reporting. That was what Bennett was doing during the Super Regional, posting periodic updates on the C-J website during Louisville’s games, just as I do during UK football and basketball games. Just as some bloggers do from their couches at home while watching games, or TV shows, etc.
Does anyone actually believe that such reporting/commentary is the same as the immediacy of a television broadcast, etc.? Especially for a sport such as college baseball, you might think the NCAA would welcome all the coverage it could muster. From what I understand, the city of Louisville went nuts over the baseball Cards success, a fact that obviously helps the NCAA in promoting its events. The more coverage the better. Instead, the corporate spoil-sports in Indianapolis appear more interested in shooting themselves in the foot.
Well, Paris Hilton’s not in a jail cell anymore.
Way to go California Criminal Justice! Your sterling reputation for dispensing fair, dispassionate justice to all can hardly be questioned.
Brendan’s recent positive experience with Best Buy notwithstanding, the store doesn’t have a reputation for being that good to consumers. A few months back, it came out that in at least some locations, Best Buy employees were using an internal website with prices different than those shown on Best Buy’s Internet site to scam customers into paying more for items than what they were originally advertised at. Suffice it to say, people were not pleased by this, and the state of Connecticut (or are you guys a commonwealth or something?) is taking Best Buy to court over this incredibly shady practice. Three cheers for the nutmeggers!
I’ve made clear before that I absolutely despise the law-school message board Xoxohth (a.k.a. AutoAdmit). As I wrote then, “the cretins who inhabit that message board are a bunch of dishonest, pretentious, snobby, racist a**holes who delight in anonymous character assassination and tearing down their fellow human beings.” I stand by those words. But even so, to be perfectly honest, I take no joy in this:
[Law firm] Edwards Angell Palmer & Dodge rescinded its job offer to Anthony Ciolli, the 3L at Penn Law who resigned as “Chief Education Director” of AutoAdmit last month. He resigned in the wake of a WaPo exposé on how the site in part served as a platform for attacks and defamatory remarks about female law students, among others. …
Charles DeWitt (pictured, left), managing partner at Edwards Angell’s Boston office, where Ciolli was slated to be a litigation associate, told the Law Blog: “He worked for us last summer. He’s not going to work for us in the fall.”
Ciolli took time from working on final exams to talk to the Law Blog. “Three years of legal education has been wasted because of an unmoderated message board,” he said, adding, “The timing is absolutely horrible.” The 23-year-old…added that “I donÃ¢â‚¬â„¢t know what I’m going to do next.”
To be honest, I feel bad for the kid. As much as I hate the product he helped create, I wouldn’t wish his fate on any fellow law student. That doesn’t necessarily mean I think he doesn’t deserve what happened to him; there is some factual dispute over how much control he had over the content of the message board, but certainly, through his role in creating a disgusting site widely known for character assassination, he set himself up for this fall. As a commenter on Above the Law put it:
Dude had it coming. He decided to get involved with a free speech experiment in which he helped run an unmoderated message board. People posted insidious lies in the forum he hosted, and those lies have caused harm to the career prospects of innocent people. Now his career has been affected, too, because of what he allowed to happen to the careers of others. In what world is this not justice?
True… and yet, and yet. However much of a scumbag he might be, I can’t bring myself to be happy about what’s happened to him. It sucks, it just really sucks, to be 23 years old and have your career s***canned because you made a mistake, even a big one. I honestly feel for him. And this is precisely why I find the behavior of the a**holes on AutoAdmit (and, cough cough, ND Nation at times, among other places on the wild, wild ‘Net) so baffling: they don’t think twice about tearing down their fellow human beings over nothing, and they frequently take immense joy in their peers’ failures and foibles… while I, on the other hand, don’t even feel the slightest twinge of schadenfreude over something like this (even where the punishment arguably fits the crime quite nicely). And I don’t consider myself an unusually noble or magnanimous person. I’d like to think I’m pretty normal in terms of my tendency not to celebrate other people’s misfortunes. But maybe I’m wrong about that? I dunno. Perhaps I’m naive, but I think most people are good at heart, and at worst are thoughtless rather than spiteful. Once faced with the humanity of another person, I think most people feel empathy. The problem with the Internet, sometimes, is that you don’t have to face the other person’s humanity, you can just treat them like a series of pixels or a string of binary code. That leads to dehumanization and a lack of empathy. And I think we need to strive to fight that.
In this particular case, given all the circumstances, I don’t blame others if they do feel a bit of joy over Mr. Ciolli’s pain. I can understand the viewpoint of the commenter who wrote, “I hope this is only the first for the assholes at AutoAdmit.com. They are truly the worst this world has to offer, and I hope all of them are ruined.” I agree that they are, if their online behavior is any indication of their true character, “truly the worst this world has to offer,” but as for hoping that they’re “ruined”? No, I don’t hope that. I hope they see the error of their ways and reform themselves. I hope they make amends with the people they’ve hurt. But I don’t hope they’re “ruined,” and I’m not glad Ciolli is jobless. It was probably the right decision, and he probably deserves it, but I’m not glad about it. All I can think about his situation is, “man, that sucks for him.” Again, I don’t mean to make myself sound noble or anything, that’s just honestly how I feel. And that’s why it truly confuses me that some other people, especially when surrounded by the cloak of Internet anonymity, can become so strikingly mean and nasty and hurtful, for no reason. Do they not understand these are real people they’re hurting, just as I understand that Anthony Ciolli, whatever his flaws, is a real person? I don’t get it. I really don’t.
U.S. Supreme Court in a 5-4 ruling upholds a law banning what some call “partial birth” abortions.
Visit CNN for the latest.
UPDATE BY BRENDAN: Oddly, CNN now has nothing about this on its homepage (as of 10:36 AM). But you can read about it on SCOTUSblog. Key excerpt:
The Court said that it was upholding the law as written — that is, its facial language. It said that the lawsuits challenging the law should not have been allowed in court “in the first instance.” The proper way to make a challenge, if an abortion ban is claimed to harm a woman’s right to abortion, is through as as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims “in discrete and well-defined instances” where “a condition has or is likely to occur in which the procedure prohibited by the Act must be used.”
Kennedy said the Court was assuming that the federal ban would be unconstitutional “if it subjected women to significant health risks.” …
[The dissent, however, wrote that] “the Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health.” She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.”
Meanwhile, the Associated Press seems confused about the nature of our government and the respective roles of its three branches, characterizing this decision as “the first time the court banned a specific procedure in a case over howÃ¢â‚¬â€not whetherÃ¢â‚¬â€to perform an abortion.” Um, yeah, okay, the Court didn’t “ban” anything, the Court upheld a ban that was passed by Congress and signed by the president. Big, huge, ginormous difference there. If the Court had “banned” late-term abortions on constitutional grounds, this would be a much, much, much bigger story. Wake up, AP.
I don’t know that any of my NDLS classmates are facing this particular problem (heh), but it’s an interesting one anyway: Does making a porn video disqualify you from being a lawyer?
It’s softcore, if that matters. ;)
P.S. She has a MySpace page, though you have to be on her friends’ list to view any of the details.
And here’s an news clip that shows some censored scenes from the video.
Professor Rick Garnett has an op-ed piece in USA Today about religious freedom and the separation of church and state, which he says “is widely misunderstood by critics and defenders alike.” He concludes:
The struggle for the church’s freedom in China reminds us that what the separation of church and state calls for is not a public conversation or social landscape from which God is absent or banished. The point of separation is not to prevent religious believers from addressing political questions or to block laws that reflect moral commitments. Instead, “separation” refers to an institutional arrangement, and a constitutional order, in which religious institutions are free and self-governing Ã¢â‚¬â€ neither above and controlling, or beneath and subordinate to, the state. This freedom limits the state and so safeguards the freedom of all Ã¢â‚¬â€ believers and non-believers alike.
A law firm in New Jersey has temporarily halted plans to launch a blog because its insurance company would not cover the blog under an existing malpractice insurance policy.
James Paone, a partner at Lomurro, Davison, Eastman and Munoz in Freehold, N.J., said that the firm’s insurer Ã¢â‚¬â€ The Chubb Corp. Ã¢â‚¬â€ said several weeks ago that it would not add the blog to the existing policy. “We were in the process of beginning to set up a blog, having internal discussions about what areas of law would be the subjects,” he said. “We wanted to cover the first base, which is [Chubb’s] coverage. Our insurance carrier said [a blog] is not a risk they were interested in insuring. The entire discussion stopped.”
Paone said his firm contacted Chubb to ask about insurance coverage in case someone tried to sue it over content in the blog. Now, the law firm is in the process of setting up a meeting with Chubb “so we can understand what their rationale is for saying they weren’t interested in covering that kind of risk,” Paone said.
Ah yes, it’s the old bag-on-the-head ploy. Wait, what? (Hat tip: Jay.)