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We’re Not Litigious Enough (v. Government)

Posted on June 26, 2012 by Lina Maini

by Suzanne Reisig Olden

A curious but ground shifting phenomenon is occurring in the media.  Not the main stream media (MSM), but rather in the secondary and tertiary levels of alternate reporting media sources (ARMS).  ARMS individuals and writing cooperatives are now breaking the news in a very specific area of investigative research; that of monitoring local, state and federal governmental overreach.  And they have a lot to report; in an especially critical election year.  November is a mere few months away and, given the MSM’s apparent partisan twist to “news”, more people are turning to ARMS sites from which they are reviewing unfiltered information.

We provide an example of governmental overreach below, with an end explanation of why we chose to focus on a local example (as opposed to big government’s arrogant and intentional overstepping.)

News broken by:  Food Renegade blog   (Reported June 21, 2012)

Until August 11, 2011, Denise Morrison of Tulsa, Oklahoma, had lush green gardens covering a vast portion of her property.  Carefully designed, implemented and maintained beds of beautiful flowers, flourishing shade trees, lush full plants and bushes…  Until a neighbor complained about the height of her plants.  At her previous residence, Ms. Morrison had encountered similar issues with property garden codes so she carefully and fully researched her new home’s garden regulations to endure that she was not in violation of any of the applicable local ordinances.

Tulsa code states that plants may not be more than 12-inches tall unless they may be used for human consumption.  All of her plants were consumable.  Morrison intentionally grew such plants to holistically treat her diabetes, high blood pressure, and arthritis.  Her plants included stevia, vegetable plants and trees that bore fruits and nuts, among many other flora consumables.  She had photographic proof of her garden’s content and appearance. While not exactly the New York Botanical Gardens, her property’s blooms were lush, weed free and well maintained.

Nonetheless, she received a citation from the city for having overgrown (too tall) plants and trees on her property.   The judge, having heard the matter, postponed (heavy court schedule or Bahamian trip?) any decision in the matter for several months.  Three days after this hearing, Ms. Morrison woke to find city workers in her yard destroying her gardens and cutting down her trees, without her permission or that of the court.  After they left, her yard looked like a war zone, and now, not when it was occupied by loving and curative and shady plants, was it a neighborhood eyesore.  Not even the smaller plants, those well under 12 inches in height were spared the whacking.  Several months later, the court ruled in her favor; that her gardens were NOT in violation of any related city code.

A few additional components to this matter:   When advised of the code’s wording, the city workers destroying her gardens and plants replied, “We don’t care.”    Ms. Morrison even explained that she was unemployed and uninsured and these gardens were her only source of food and medication.  As opposed to requesting government assistance in the form of medical and food welfare, she had attempted to be self-reliant and grow her own food and medication.   It’s almost (?) as if the government would rather people become dependent on its seemingly bottomless coffers of public assistance monies than maintain self-sustainability.

So why did we choose an example of  local  governmental overreach?  The gradual degradation and loss of one’s basic freedoms and constitutionally enumerated rights always begins on a parochial level.  The divide and conquer theory of governance has a well proven historical track record of succeeding in the oppression of a people.   No Chicken Little perspective.  Simply that by becoming kowtowing ninnies, we tacitly allow the all-controlling Nannies.

Our Operatives: Street smart; info savvy.

As always, stay safe.

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Filed under: In The News, information, invasion of privacy, legal, Legal Decisions, opinion, property | Tagged: , , , , , , | 7 Comments »

Libel, Slander, Defamation and Dumb Asses.

Posted on March 19, 2012 by Lina Maini

Every so often or in a minute or two, you’ll read of a slander, libel or defamation lawsuit that not only makes one question the common sense of other Homo sapiens but brings out the appeal of secondary uses of Louisville Sluggers.

The case cited below evokes the latter response.

Quick Primer:

“Defamation” is the general term used internationally.   Libel and slander both require pulication. The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published.

Slander

If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander.

Libel

Libel is defined as defamation by written or printed words, pictures, or in any form other than by spoken words or gestures.

The case:

Vogel v. Felice

BACKGROUND

Plaintiffs John Vogel and Paul Grannis filed a complaint charging defendant Joseph Felice with libel, false light invasion of privacy, intentional and negligent infliction of emotional distress, and negligent damage to reputation.  The gist of the complaint was that the defendant “ran a website through http://www.geocities.com/bobvalenzuelasass [sic] and http://www.geocities.com/bobvalenzuelasass.isonfire.com,”; which “contained defamatory statements about Plaintiffs, including but not limited to, a list entitled `Top Ten Dumb Asses,’” in which Vogel and Grannis were “listed as the number 1 and number 2 dumb asses, respectively.”

WHY THEY ARE STILL DUMB ASSES.

The accusation that plaintiffs are top-ranking “Dumb Asses” cannot survive application of the rule that in order to support a defamation claim, the challenged statement must be found to convey “a provably false factual assertion.”  One man’s dumb ass may be another’s savant.  IOW, they couldn’t prove they WEREN’T dumb asses.

(The behind the scenes story is the plaintiffs were running for local office and the defendant web authored articles revealing the plaintiffs to be dead-beat dads, bankrupt snake oil salesmen and alimony skippers.  Considering they, the plaintiffs, knew these claims by the defendant to be true, frivolous is a very kind word to describe their attempts at censorship through the legal system.)

Lesson: Try going for the Best Dressed List instead of that of the Top Ten Dumb Asses.

The above brings to mind the recent utterings by radio show commentator, Rush Limbaugh, wherein he referred to a female college student cum feminist agenda proponent by rather unsavory terms.  The backlash came in the form of loss of sponsors, but rightfully no lawsuit for defamation/libel/slander was filed.   The line between censorship and freedom of speech needs not to be hued any grayer.

We need more of what this lawyer was admonished for:

(Credit to www.stus.com)

Our Operatives: A step ahead.

As always, stay safe.

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A Lawyer’s Personal Blog v. Rules of the Bar

Posted on September 13, 2009 by Lina Maini

We’ve posted several blogs that have addressed one’s public online presence (what we refer to as your “Netface”).  We’ve advised new bloggers to maintain their personal information (pics of the house, with the address clearly visible, phone numbers… ) off of the blogosphere.  We’ve cautioned job seekers with a wild frat/sorority past, captured on pics or video, to try to clean up that history. 

Recently, however, we came across a NYT article that outlined the outcome of a lawyer’s blog  rant regarding  a judge with whom he’d had an unpleasant (courtroom) encounter.  You are correct if, based on “rant”, you’ve presumed the blog was written in a very negative tone. 

The situation:  Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days: he blogged about her, saying she was an “Evil, Unfair Witch.”

But Mr. Conway is a lawyer. And unlike millions of other online hotheads, he found himself hauled up before the Florida bar, which in April issued a reprimand and a fine for his intemperate blog post.

Upshot:  In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge Cheryl Aleman, and appeared on a rowdy blogcreated by a criminal defense lawyers’ group in Broward County.

All I had left were my words,” Mr. Conway said, adding that he decided to use the strongest ones he had.

Mr. Conway initially consented to a reprimand from the bar last year, but the State Supreme Court, which reviews such cases, demanded briefs on First Amendment issues. The American Civil Liberties Union of Florida argued that Mr. Conway’s statements were protected speech that raised issues of legitimate public concern. Ultimately the court affirmed the disciplinary agreement and Mr. Conway paid $1,200.

Last word:   For his part, Mr. Conway noted that the judge he criticized was reprimanded last year by the Florida Supreme Court, which affirmed a state panel’s criticism of what it called an “arrogant, discourteous and impatient” manner with lawyers in another case. (Judge Aleman did not return calls seeking comment.) Mr. Conway said his practice was “probably enhanced by the experience” of going public.

But the State Supreme Court ultimately concluded that his online “personal attack” was “not uttered in an effort to expose a valid problem” with the judicial system. And so, the court concluded, the statements “fail as protected free speech under the First Amendment.”

Your call: ethical violation or execution of the blogger’s 1st Amendment right?

On a lighter note, a lawyer, who shall remain nameless, asked and received permission to delay a case based on a funeral.  Well, the funeral mention did appear on his Facebook page, so did the next days of relentless mojito-drinking, drunken binges…  Rule 1: Don’t “friend” the judge in your case (or your boss, in general) and Rule 2: Don’t status your night out in MePa, post your first skyjump lesson pics or poll your friends re: a sex change operation consideration on Twitter or Facebook when you are supposed to be grieving, sick or out of the country on a family emergency.

BNI Operatives; Street smart: Net savvy.

As always, be safe.

Filed under: Blogging tips, facebook, Legal Decisions | Tagged: , , , , , , , , , , , | 2 Comments »

Your Online Posts Coming Back To Haunt You

Posted on August 31, 2009 by Lina Maini

This week’s Bulletin bounces off of my good friend and IP legal genius, Ron Coleman’s blog, Likelihood of Confusion.  Apparently, Flickr (a private company) took down the below  mash up of President Obama as The (Heath Ledger) Joker with no legal inducement or requirement to do so.  (It does not appear that any cease and desist letter, DMCA complaint or as Ron put it,  even “a note tied to a brick”  was issued to Flickr.)  Ron thinks it’s a smart move on Flickr’s part to remove the Obama-Joker photo art and makes the point that Flickr should not take any potential unnecessary copyright hits from DC Comics,  Time. or the photographer, Platon,  who took the original photo.  While I value Ron’s often prescient views, there is a part of me screaming, “At least wait ’til they hit you before you fold!”.  Read the full article on Ron’s blog. I absolutely agree it’s not censorship (poor taste isn’t against the law, as far as I know) but it does make me wonder where we are going with online IP law.  Fear is not a good sign.

 

Obama-Joker-223x300

 

 

 

 

 

 

 

 

 

 

Looking  around for a similar legal issue, I instead found a unique (and somewhat related) lawsuit in my own backyard:

The Plaintiff: Jeffery Stambovsky

The Defendant: Helen V. Ackley

The Lawsuit: In 2007, Stambovsky purchased Ackley’s house in Nyack, New York, for $650,000. When he later discovered that the house was “haunted,” he sued Ackley for failing to disclose the presence of poltergeists.

The Verdict: Guilty. Unfortunately for her, Ackleyhad bragged to friends for years that the place was spooked. She was even interviewed by Readers Digest for an article (placed online) on haunted houses. The judge found that Ackley should have told Stambovsky everything about the house, noting that the existence of ghosts meant that she had actually broken the law by not leaving the house vacant.  This one roused my curioisity to the point of further investigation. Check WestLaw’s article on the case and decision.)

Repeatedly cited was the seller’s blogging and Reader’s Digest article on what she referred to as her “haunted” house.  (Tangentially related: did the judge really rule that, in effect,  the  presence of a “ghost” rendered the home inhabited???)

BNI Operatives: Street smart; Web savvy; Verdict confused.

We hope and trust you have all had the opportunity to take a break and vacation this summer.  It’s shortly back to the heavy grind.

As always, be safe.

TIP OF THE WEEK FOR OUR SUBSCRIBED READERS: There may be times when you need to legitimately record a phone call.  It may be a call than you can reasonably presume will go long and time out  your cell or landline phone’s capability and even that of a separate recording device.  Read your email Bulletin version for the solution.

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Do You Own Your Image? That Of Your Firm?

Posted on April 6, 2009 by Lina Maini

Remember to read the email Bulletin version in your inbox.  We distribute investigative or informational tips we won’t publicly post for misguided civilians, tire kickers and assorted “off the rails” types.  To receive an email copy of the Bulletin, you must be a licensed (and in good standing) attorney, corporate/governmental entity or law enforcement. Email your name, email address, firm/agency/co. name to guardian@beaconbulletin.com.

Cited in Virtually Blind, Benjamin Duranske’s virtual law blog:

‘Aimee Weber’ (TM) Gets USPTO Stamp of Approval for Pigtails, Tutu, Wings, Tights, and Stompy Boots

Second Life’s ‘Aimee Weber’ (Alyssa LaRoche) recently became the first avatar with a registered trademark.

Quick primer:  Second Life is an interesting social experiment.  It’s a virtual world that has been quietly acquiring millions of inhabitants and is now beginning to reach into real world markets via issuance of its own currency (translatable to real life global money) and allowing real charter banks to conduct business within as well as real companies such as IBM.  Second Lifers have also opened up their own stores, numbering into the tens of thousands. 

Back to Aimee.  With this ruling re: Virtual Aimee, the rules (defamation, copyright, trademark…) have shifted dramatically.   What if the American Cheerleading Association decided to use a pig-tailed, striped tights wearing real life mascot at competitions?  Is Virtual Aimee entitled to file for infringement?  Flip the script,  what if , in LinaLand (my virtual world, and I need to get out more often… ), I create Judge Julie and my own courtroom and try virtual cases?  Will I be protected from the networks and (worse yet)  Judge Judy, if Judge Julie is trademarked?   Do the current trademarks hold against avatars? 

Then there is the fact that , currently, there are very restrictive creative options available in “self” stylized avatars.  (In Second Life, as with other virtual worlds, you can select to pair your caricatures features from a range of options: facial features, hair, clothing…).  How does this limited range of expression options lend to creating a trademarkable character??

It becomes an even more convoluted situation as my attorney and ip maven friend, Ron Coleman points out:

“the PTO is exempt from any accountability for its prior determinations”.

So, as we move towards the ability to create our own “worlds” and living (guide) avatars becoming increasingly popular, next time your IT person loads up an avatar guide to navigate viewers around your firm’s site, make sure you have the PTO’s protective stamp. 

FYI, this is Virtual Aimee:

virtual-aimee

BNI Operatives: Street smart; web savvy; Beacon Buddy trademark pending.

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Say Something Nice Online… Or Else.

Posted on March 8, 2009 by Lina Maini

We’re going to continue last week’s topic regarding defamation suit awards for online commentary.  Pursuant to my Bulletin article,  Buffalo 14228 weighed in with this follow up:

Source: The Beacon Bulletin

What I find interesting it that a $7500.00 award was given to someone for allegedly interfering with another’s opportunity to make money. Something was written they didn’t like it, so they sued and won. The ruling apparently means you can only say nice things about people and particularly businesses/businessmen.
Very simple cut and dried case isn’t it?
Not so fast, the Florida Supreme Court has ruled in a case argued before it by the Fox Cable News Channel that “The media in general has no legal obligation to tell the truth.
 
 

 

So what does it all mean? There is no such thing as law. Law has come to mean what is acceptable within a certain space and time until the next retroactive court ruling. It is not about free speech, opinion, observation, etc. It is about money and the making of it without hinderance.

 Posted by Mike Wrona

Given the global reach of the internet, several questions come to mind, i.e. can we now get an updated (apparently) definition of defamation, who has jurisdiction, do the same statutues of limitations apply?  E.g., I have an ongoing business relationship with a vendor. Three years ago I posted something not so flattering but truthful about his business.  My comments were cited in various subsequent complaints against this same vendor.   Can I now be cited for inteference of business?

BNI Operatives: Street smart: Web savvy.

Stay safe.

Filed under: Legal Decisions | Leave a Comment »

First Circuit Court Of Appeals Upends Truth Defense

Posted on February 23, 2009 by Lina Maini
Thanks for following us to our new home!

Thanks for following us to our new home!

I’d like to welcome our readers to our new site which we hope continues to bring you, the members of the legal community, a unique information experience.  As always, feel welcome to submit topic suggestions. Also, please take a moment to vote in our poll at the bottom of this week’s post.  Now, on with this week’s near-rant on the title matter:

My friend, and brilliant analyst, radio, tv and new media commentator and venerable litigator, Ron Coleman, focused a post on his blog, Likelihood of Confusion, on a very dangerous libel decision made by the First Circuit Court of Appeals.

In part, from the Citizen Media Law Project:

“Last Friday (February 13, 2009) , the First Circuit Court of Appeals upended the generally accepted notion that U.S. defamation law does not impose liability for truthful statements. In Noonan v. Staples, a three-judge panel of the federal appeals court in Boston held that Alan Noonan, a former Staples employee, may hold the company liable for defamation based on a truthful email a superior sent to employees explaining the reason for Noonan’s termination, so long as he can prove that the email was sent with “actual malevolent intent or ill will.”

According to another friend, Robert Ambrogi, renowned lawyer, law professor, executive director of the Massachusetts Newspaper Publishers Association and more credits than I have room for on this blog, “This may be the most dangerous libel decision in decades.   Be very, very afraid — of this precedent. If ill will is all that is needed to turn a truthful statement into libel, then everyone is a potential defendant.”

We’ve previously written articles on employee hiring and firing rules and regulations, in relation to employee integrity investigations conducted by our firm, Beacon Network Investigations, Inc., (BNI). We’ve generally advised employers to instruct their HR personnel to confirm only the subject’s employment dates and position if a reference is requested by a potential future employer.   The premise for a former employer in not discussing or in any way intimating the reasons for the fired employee’s departure is to avoid a defamation lawsuit, and potentially, any other number of damages that can be cited, any of which can claim to have interfered with the fired employee’s ability to obtain work.

This recent decision by the First Circuit of Appeals throws any and all possible caution that an employer may take to avoid a similar type suit to the wind, leave alone it’s encroachment on freedom of speech.  Unless the fired employee in this action was planning on reapplying to Staples, internal disclosure of the firing decision does not affect Mr. Noonan’s ability to get another job anywhere else. It defies logic that co-workers are not going to discuss an employee’s departure.  Also, in that the actions that led to Mr. Noonan’s firing were openly discussed intra-company, this availability of information can potentially prevent additional firings for similar actions. This transparency additionally serves as a tactful reminder to employees that work is an opportunity; not an entitlement.

The most probable immediate reaction to this recent FCCA decision will be to inspire work environment paranoia and a negative productivity effect. You don’t need a sociologist to tell you that people are more productive at work when they socially interact (water cooler talk, lunching together, the occasional office birthday cake…) and when they are afforded the respect of the truth. Acting as if an employee simply disappeared into thin air or having the wrong rumors run rampant throughout the company is detrimental to the organization’s ability to manage its staff.   Staples is not a government agency.  (They haven’t jumped on the bailout gravy train yet, have they?)   The company sets its own management policies.  This decision is just plain wrong. I can see the deluge of social network subpoenas now on the quickly obscuring horizon between libel and freedom of speech.  If truth is no longer an absolute defense, we should probably stop communicating altogether and certainly never attempt to defend ourselves.

 

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