Why Do We Deny Ourselves Our Cultural Heritage?

Fifty years ago, yesterday, the Reverend Dr. Martin Luther King, Jr. stood on the National Mall at the Lincoln Memorial and delivered one of the most important speeches in United States history. It is talked about in the same breath as the Gettysburg Address. And yet I can’t go to YouTube and see the entire speech. If I desire to see the speech, I have to order a $20 DVD. Why? Because the family has asserted Copyright on the speech.

Thankfully, my children’s school system has purchased the rights to show the video. I am not sure how much it cost the school, or the countless other school systems who have purchased the rights, but I do not think that Dr. King would approve. While I can’t find a complete copy online to view, Apple, Chevrolet, Alcatel, AT&T, Zions Rootswear have paid millions to King, Inc. to license the rights to the speech and his likeness. Even after paying 2.7 million to the estate, MLK Foundation had to change its name because the estate took the right to use the name away from the foundation building the MLK Memorial on the National Mall. Frankly, I find that disgusting. We must correct this situation or we risk losing the ability to learn from, and build on, our own cultural heritage.

Didn’t I Just Write About This?!?!

The First Amendment to the Constitution of the United States of America

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I am not sure why police and prosecutors continue to ignore this part of the Constitution. I just wrote about Cameron D’Ambrosio in Massachusetts. Now there is another state trying to do it bigger and better. What better state to do bigger than Texas?

This involves an online argument between gamers who had been playing the game “League of Legends.” As teenagers do, there were throwing insults back and forth. The trash talk started on the League of Legends site, and then continued on Facebook. Then comes the following:

…and someone on Facebook called him crazy and messed up in the head.

So he responded in a sarcastic tone by saying something along the lines of ‘Oh yeah, I’m real messed up in the head, I’m going to go shoot up a school full of kids and eat their still, beating hearts’ which was followed by saying JK (just kidding) and LOL (laughing out loud). His response may have been in bad taste, but it was written in a non-threatening way that didn’t translate well online. None of his friends or family would even question his intention as anything other than a poor choice of words. Things got out of control, but my son is not a felon and terrorist as he’s currently being charged!

The actual Facebook post was

I think Ima shoot up a kindergarten / And watch the blood of the innocent rain down/ And eat the beating heart of one of them.

Reaction: A woman in Canada sees this post (as an aside, why was she trolling teenager’s Facebook pages) and saw the post. She googled the teen and found an old address of his close to an elementary school, and calls the local police in Texas. They start investigating and find that it was an old address and that he lived nowhere near an elementary school. However, based on the statement, they obtain a search warrant and search his house. Nothing is found at his home that would be evidence of any ability or intent to act on the generic statement.

Overreaction: Did a little thing like lack of evidence of intent or ability to commit a crime stop the police? Of course not. Justin Carter was arrested February 14th and charged with making Terroristic Threats (a common theme seems to be emerging) and has been kept in jail by a $500,000.00 bond.

Justin hasn’t been so lucky as a Texas grand jury did indict him, unlike Cameron D’Ambrosio.

“I have been practicing law for 10 years, I’ve represented murderers, terrorists, rapists. Anything you can think of. I have never seen a bond at $500,000,” says Carter’s attorney, Don Flanary.

Since Justin has been in jail, he has been beaten by other inmates on multiple occasions, he has been confined to solitary, confined to solitary naked due to “suicide concerns” and has generally been abused.

Here is § 22.07 of the Texas Penal Code:

§ 22.07. TERRORISTIC THREAT. (a) A person commits an
offense if he threatens to commit any offense involving violence to
any person or property with intent to:
(1) cause a reaction of any type to his threat by an
official or volunteer agency organized to deal with emergencies;
(2) place any person in fear of imminent serious
bodily injury;

(3) prevent or interrupt the occupation or use of a
building, room, place of assembly, place to which the public has
access, place of employment or occupation, aircraft, automobile, or
other form of conveyance, or other public place;
(4) cause impairment or interruption of public
communications, public transportation, public water, gas, or power
supply or other public service;
(5) place the public or a substantial group of the
public in fear of serious bodily injury; or
(6) influence the conduct or activities of a branch or
agency of the federal government, the state, or a political
subdivision of the state.

District Attorney Jennifer Tharp who is prosecuting the case is sticking with #2 as her theory. That means that she will have to prove that Justin posted the statements with the intent of placing a person or persons in fear of imminent bodily harm; i.e., a “True Threat.” Even without the qualifiers of “LOL” and “J/K,” the statement in and of itself has no specificity. Add the “LOL” and J/K,” and there is no intent as well as no specificity. The scary part is that Justin may very well be convicted and it may take a federal judge to correct this situation.

The attitude of the police is actually pretty correct:

“The whole situation is kind of unfortunate,” said New Braunfels Police Lt. John Wells. “We definitely understand the situation that Mr. Carter is in, however he made the comments, and it is an offense. We have to … protect the general public and specifically, in this case, with it involving schoolchildren, we have to act. We take those very seriously.”

The issue comes that after investigating and finding nothing, that should have been the end of it. There should have been no arrest as there were no elementary schoolchildren ever placed in fear of imminent danger, and the police know it.

Justin has had one bright spot in all of this. On Thursday, an anonymous “Good Samaritan” posted the $500,000.00 bond so at least Justin is no longer suffering in jail. Let us hope his luck is actually turning. Please consider signing the petition at Change.org.


Methuen, Massachusetts Police Arrest Student For Bad Lyrics

Methuen Police arrested Cameron D’Ambrosio, a high school student who has been in trouble with the law in the past, was arrested May 1st for lyrics posted to his Facebook page and charged with making “Terroristic Threats ch269, s14” for the following lyrics:

I’m not in reality,
So when u see me (expletive) go insane and make the news,
the paper, and the (expletive) federal house of horror known as the white house,
Don’t (expletive) cry or be worried because all YOU people (expletive) caused this (expletive). “
(Expletive) a boston bominb wait till u see the (expletive) I do,
I’ma be famous rapping, and beat every murder charge that comes across me!

Obviously, this was just after the tragedy of the Boston Bombing. Just as obviously, this person is full of hate and angst and devoid of taste. But that describes most teenage boys. He has the right to write these things. The question is, whether this writing violated the statute he was charged with.

In order to be charged under these kind of statutes and remain Constitutional, threats must be “true threats.” “I will kill you with a knife” to your next door neighbor will get you convicted. Saying “I will bomb the United States with an ICBM” will not.

The Methuen Police issued a press release that shows a lack of understanding of this concept:

Methuen High School Student Arrested!!!


Today, Tuesday, May 1, 2013, at approximately 12:20, Methuen High School students reported to administration that they had received a Facebook phone message sent by a Methuen High School student with disturbing verbiage. The student made terrorist threats. These threats were in general and not directed towards another person or the school. The administration acted quickly, contacted school service officer Jim Mellor, who then contacted the police department. The student was not in school but has since been located and placed under arrest. Administration working hand in hand with the Methuen Police Department, diffused the situation maintaining the best possible professional attitude. Methuen Public Schools as well as the Methuen Police Department has zero tolerance for this behavior. We believe that all students deserve to learn in a welcoming, non threatening environment free from intimidation and physical threats.

Chief Solomon reports that the student under arrest has been identified as Cameron B. Dambrosio, 18, of Methuen. He has been charged with Terroristic Threats ch269, s14 which is a crime punishable by up to 20 years in state prison. Methuen Detectives continue to work on this case, gathering any and all information that they can. At this time, a search warrant is being executed at the students home to gather evidence in regards to this incident. (Emphasis mine. Name misspelled in press release.)

I think the filmmakers of White House Down are lucky they don’t live in Methuen, because they actually blow up the White House in the film, not just talk about it in bad lyrics.

So, now that the kid is arrested, his house searched, and a determination made that he has no ability to carry out these threats, what do the police and the prosecutors do? They convince a judge to hold him without bail. For a month. They then bring the evidence to a grand jury.

There is a famous saying that a prosecutor can indict a ham sandwich through a grand jury. The reason is that the prosecution controls all of the evidence that is presented to the grand jury, so they can present the strongest evidence, and leave out any exculpatory evidence.

So, what did the grand jury do with the evidence? They refused to indict Mr. D’Ambrosia. What does this say about the police arrest? That the arrest was a severe overreaction. Should these lyrics have been investigated? Absolutely. Should the police and administration kept an eye on this student? Absolutely. Should they have searched his home? Absolutely, presuming they had a warrant. Should they have kept him in jail for a month when they knew he had no ability to carry out anything he alluded to in his lyrics? Nope. I do want to be clear in this. This student was a troublemaker and he had previously been in trouble for threatening his sister. I am not making excuses for the student, and if he was mine, he would be dealing with me, and I would not tolerate his behavior. But I will not excuse the police and the prosecutors whose actions are much worse.

This all started with a zero tolerance policy. The problem with zero tolerance, is it takes any reason out of these situations. It is why elementary students who chew pizza into the shape of a gun are suspended, and how we criminalize protected behavior. We do not arrest people for future crimes a la Minority Report, and we expect our police and prosecutors to use reason and restraint when charging people. We have to accept that we will never have a society perfectly free from dangers like these. We can’t let horrible acts like 9/11 or the Boston Bombing make us forget that. I leave you with two quotes from Benjamin Franklin:

Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.


Harvard Dean Resigns After Secret Email Search. Can Your Employer Read Your Email?

So, the Dean of Harvard College (the undergraduate part of Harvard University) resigned after it was found out that she ordered a perusal of the resident deans’ emails. Obviously the resident deans’ were outraged when they found out that their email subjects and recipient lists were tracked to see who had leaked the information about the Harvard cheating scandal. Politically, the Dean had to step down, but did she have to legally? The answer in this case is emphatically no.

As to the straight law on the subject. Nothing in Federal or Maryland law bars an employer from reading any or every email that you send under your work account. To be VERY clear: you have NO PRIVACY on your work email account.

Similarly, your employer can read ALL NETWORK TRAFFIC that is sent across its network, whether it be your own private email, or websites visited. What this means is that your employer can look at everything you looked at, and will have access to networked passwords if they were sent unencrypted. Your use of the employer’s network can subject you to discipline or discharge. It also means that your employer can use that information how it sees fit.

What does that mean to you if you are contacting your attorney by email. My advice has been for several years to NEVER email me from a work email address, whether you are at home or at work, or from your personal account if you are using a work computer or using your employer’s network, even if with your personal cellphone.

To go a little more in-depth with cellphones, if your employer has an open WiFi network, and you connect your cellphone to it (for faster speeds, to avoid data usage on your plan, etc.) anything that cellphone does becomes data on the network, and can be read. So if you send me an email or read an email from me, from your cellphone, while you are at work and using the employer’s WiFi network that communication can be read. There is no expectation of privacy in this situation. It also means that there is no attorney-client privilege.

Many of my clients are maintaining Workers’ Compensation claims as a result of a work injury with their current employer. I communicate with my clients by email a lot, and everyone is warned to not do the above. So, when I am asked of the ramifications of resigning to the Workers’ Compensation claim, if it is sent over the employer’s network, the employer will not only know my answer, but that you are contemplating resignation. Ponder those implications.

Please, be smart. Keep your personal life separate from your work life.


Midwest Tornados

Our thoughts and prayers go out to those devastated from the tornadoes in the Midwest, especially Oklahoma and Texas. We can’t begin to imagine the heartache at the loss of life from those storms.

Lawyers and Ethics

A funny thing happened on the way to the courthouse for a law firm called the Prenda Legal Group. The firm seems to have lost its way ethically. While all attorneys are tempted into grey areas while representing clients, the best way to avoid the temptation is to ask oneself a simple question: Is this worth my license? For Prenda, the answer seems to have been yes. And each attorney is likely to pay with his license to practice law, and, possibly, his freedom.

Other blogs have done a much better job than I could ever hope to do in following this story, the best explanation being on the Popehat blog. As a member of the bar, the allegations are shocking: a law firm sets up dummy clients (yes, plural) to assign copyrights for gay pornographic movies. Now, setting aside the question as to whether one can copyright a pornographic movie in the first place, attorneys cannot both own the client and represent the client, at least without disclosing the financial interest in the litigation. But it goes beyond that.

The antics don’t stop there. The next questionable practice was to sue in a reverse class action, which is extremely frowned upon. Normal class actions take place when a group of plaintiffs who are injured in a similar fashion by a single defendant group together to prove that the single defendant caused them harm. In these cases, the single plaintiff is suing multiple unnamed defendants for allegedly downloading the same film in different ways at different times from different places. That becomes a legal nightmare for a court or a plaintiff’s attorney. So, why would they do that? The allegations are that Prenda’s actual plan was to use the ability to subpoena the records of internet service providers (ISPs) to get the names and addresses of account holders to whom a suspected internet protocol (IP) address is assigned. Once Prenda had this information a demand letter threatening to name that account holder in a lawsuit for downloading gay porn would follow.

The demand would be for less than the cost of hiring an attorney to defend the bogus claim. Essentially it is cheaper to settle than to fight for these defendants and there is no public accusation of downloading gay porn made. If this sounds like the mafia shaking down businesses to make sure nothing bad happens, that is exactly what it sounds like to me. This is the business model of a copyright troll.

A federal district court judge in the United States District Court, Central District of California agreed that this sounded like a mafia shakedown. He has issued an Order sanctioning the Prenda lawyers in the case they brought in that district for the attorneys fees for the defendants, referring them to every state and federal bar association where the attorneys hold their licenses for further proceedings, and referred them to the United States Attorney for the Central District of California for an investigation as to whether these attorneys were in violation of the Raketeer Influenced Corrupt Organization (RICO) Act (yes, the one they use against the mafia). Oh, and to really put the screws to these attorneys, he reported them to the Criminal Investigation Division of the IRS. The cherry on top came in a footnote. Since Prenda’s demands of the defendants were calculated to be just less than the cost of defending the claim, Judge Wright calculated the sanctions for the attorney’s fees to be just less than the cost of the appeal from the decision. True poetic justice.

I really have to ask, is this worth your license, and your money, and your freedom?

Judge Wright’s Order courtesy of Techdirt.