After much discussion in the blogosphere this story would seem more than ready to cross over into mainstream-press coverage; here’s a local columnist who says he left three messages with attorney Clifford Shoemaker but got no response (Dave Brooks, “What a Web of actional links we can weave”, Nashua Telegraph, Apr. 9)(via Liz Ditz/I Speak of Dreams’ ongoing list monitoring coverage).

Update 5:30 p.m.: Here’s James Taranto at WSJ Best of the Web, giving just the shove the story may need:

It might behoove the ACLU, or some organization devoted to civil liberties, to devote some resources to figuring out how to defend speech that is inconvenient to plaintiffs lawyers.

In ACLU; bloggers and the law; Kathleen Seidel subpoena; online speech; vaccines

• Judge expresses surprise at how many law firms want in on fees in Visa/MasterCard issuer settlement [NYSun]
• Mississippi bill would require a lawyer’s presence at real estate escrow closings; so rude to cite the profession’s self-interest as a factor [Clarion-Ledger]
• Following Coughlin Stoia’s lead, Mark Lanier announces he’s expanding into intellectual property litigation [The Recorder]
• Maryland legislation would require state-aided colleges and universities to report on what they’re doing to advance “cultural diversity” [Examiner via Bader/Open Market]
• New era at UK pubs? Under new directive, “employers will risk being sued if a bar worker or waitress complains of being called ‘love’ or ‘darling’, or if staff overhear customers telling sexist jokes.” [Daily Mail]
• ACLU just sued city of San Diego and snagged $900K in legal fees, but that’s no impediment to the city’s council’s enacting a special day of tribute to the group [House of Eratosthenes]
• George Wallace, who’s guestblogged here, hosts twin editions of Blawg Review #153 at his blogs Declarations & Exclusions and A Fool in the Forest, on piratical and Punchinello themes;
• Obama won’t support lowering drinking age [Newsweek]
• Such a shame for entrepreneurial plaintiffs, post-Proposition 64 if you want to sue a California business you might actually need to have been injured [CalBizLit]
• Time mag appeals $100 million Suharto libel ruling [IHT]
• Hey, no fair enforcing that fine print disclaiming liability for sweepstakes misprints [three years ago on Overlawyered]

Controversy continues over the extent to which litigation has tended to obstruct brush and understory removal as well as post-blaze recovery efforts in the fire zones: Damien Schiff (Pacific Legal Foundation), “Misguided litigation magnifies wildfires”, San Francisco Chronicle, Nov. 5); John Berlau, “The Environmentalist Fires”, American Thinker, Oct. 29; BioStock blog, Oct. 5. The Sierra Club defends environmental litigation in this Oct. 23 statement. Last year the Society of American Foresters last year released a study entitled “Forest Service Land Management Litigation 1989-2002″, which is available at the Society site. Earlier: Oct. 24, etc.

This Sunday’s Boston Globe magazine had a long feature piece which addressed the burning question, “Do We Really Need A Law To Protect Fat Workers?” The “law” in question would be a law which forbid “discrimination against overweight and unusually short people.” While I resemble that remark, you won’t be surprised to find me answering the question, “No,” in contrast to the politicians and activists who think it’s a great idea. The problem they face? Too many people inconveniently think that being overweight is a choice; they need to convince these skeptics that weight and race are really the same thing.

Although some people worry that the law would lead to a flood of lawsuits, the supporters of the bill pooh-pooh that notion, based on implausible statistics about disability discrimination lawsuits. Besides, their goal (nudge-nudge, wink-wink) isn’t really lawsuits at all:

Like the race laws, then, the weight-discrimination bill has a goal that extends beyond the legal system: to change the way we think. The idea is not to clog up the courts. Instead, it’s to create a society where hundreds of lawsuits aren’t needed, because there’s not as much to sue over - a society of people who have the legal right to say hurtful things and the compassion to know better than to act on them.

But if it does clog up the courts — the ADA only applies to those so obese that they can call themselves disabled, while the proposed Massachusetts law would apply to anybody who is overweight, which seems to be most of the population — it won’t be the author of the bill who suffers, but employees and business owners.

Of course, even if Massachusetts does pass this law, it wouldn’t be the worst; California already has far wackier anti-discrimination laws with its full-employment-for-lawyers Unruh Act. Unruh, despite listing the usual categories found in anti-discrimination laws (sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, and sexual orientation) actually has been interpreted by state courts to prohibit all “arbitrary” discrimination. As Cal Biz Lit explains:

In earlier cases, the courts have held the act to prohibit business discrimination based on :
• A customer’s association with a male with long hair and “unconventional” dress; 
• Having children; and
• Status as a police officer (when the ACLU tried to kick a cop out of a meeting).

If a creative lawyer hasn’t shoehorned obesity in there already, he will soon enough.

“Three homeless men mistakenly arrested last year on charges of sleeping too close to a pile of feces have settled a lawsuit against the city of Las Vegas for $45,000.” Police made the arrest although a sleeping-too-close-to-feces provision in one of the city’s ordinances had in fact recently been repealed. The ACLU of Nevada proceeded to sue:

The men sought $2 million each in compensatory and punitive damages. Their attorney E. Brent Bryson said Wednesday the $45,000 settlement was reasonable.

“The realities are that these individuals are not capable of maintaining and sustaining an ongoing litigation,” he said. “This quick money to them represents an ability for them to get back on their feet.”

Bryson collected a $15,000 fee from the settlement.

Two of the three men say they haven’t decided yet what to do with their $10,000 windfalls, a sum that will equally well pay for a fair bit of not-getting-back-on-their-feet should they choose to spend it that way. (”Vegas homeless men win $45,000 in suit over sleeping near feces”, AP/Las Vegas Sun, Mar. 29; “Homeless men win $45,000 settlement with City of Las Vegas”, KVBC, Mar. 29).

Richmond, Va.: “A high school art teacher has hired the ACLU to challenge his firing after a video of him moonlighting as a ‘butt-printing artist’ was widely circulated among his high school students.” Stephen Murmer was fired from his job at Monacan High School. (Matt Reed, “Backside artist to challenge firing”, AP/ABCNews.com, Jan. 24).

I have perused the decision by a federal district judge in Michigan declaring the NSA warrantless wiretapping program to be in violation of both FISA and the Fourth Amendment and have some thoughts.

While the decision contains a wealth of flowery language reminiscent of, say, a post by a libertarian blawger, it is rather weak on actual analysis. On the other hand, what little analysis it contains is spot-on accurate.

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Not according to the ACLU of Southern California, at least. That’s the apparent lesson of a 1986 incident which drew little publicity at the time, but which David Bernstein recently investigated. The proprietors of the Alpine Village Inn in Torrance, Calif. were understandably outraged when a group of four customers came in wearing swastika pins and other Nazi regalia. It asked them to leave, but they refused and so it called the cops; its reward was to be sued by the ACLU under California’s Unruh Act for its failure to provide public accommodation to the Hitler fans. According to Bernstein’s informant, the restaurant’s insurer paid a settlement. (Feb. 24)

…because he doesn’t like the message printed on them, as Reason “Hit and Run” reports:

Boston Mayor Thomas Menino has ordered the city to seize T-shirts that say “Stop Snitchin.” “‘It’s wrong,’ Menino said. ‘We are going into every retail store that sells the shirts and remove them.’”

(Boston Herald; Boston Globe; KipEsquire; Eugene Volokh; ACLU of Mass. press release, PDF). More: Gunner at No Quarters Blog has an update.

Greg Skidmore at Sports Law Blog (who has guest-blogged on this site) analyzes the ACLU-aided suit against the Tampa Sports Authority challenging the National Football League’s anti-terror measures.

Eugene Volokh (Aug. 29) finds particularly egregious — and at odds with the First Amendment — the practice of courts in various states of “discrimination in favor of religious parents and against irreligious ones, or in favor of more religious parents and against less religious ones, in child custody cases, on the theory that it’s in the child’s ‘best interests’ (that’s the relevant legal test) to be raised with a religious education.” For more on civil disabilities of freethinkers, see Jan. 21-23, 2000.

P.S. Reader John Steele Gordon writes to say, “It seems to me that the ACLU could much more profitably direct its jihad against religion at these cases, which do a great deal of harm to real people, than at carvings of the Ten Commandments on public property, which do not.” And here’s quite a bit more from Eugene.

Yet more: Reader Carl Fink, in response to John Gordon’s comment above, defends the ACLU:

The ACLU is just as likely to assist a religious person whose right to practice has been denied, as a nonreligious person whose tax money is being spent to promote a religion. To name one recent case, in State of New Jersey v. Lloyd Fuller, an ACLU attorney submitted a friend-of-the-court brief arguing for the rights of potential jurors to wear traditional Muslim (or by extension other religious) dress without being excluded from juries (see link).

What we object to is government enforcement of any religious policy, including religious EXCLUSION.

In ACLU; family law; New Jersey

Some years back, Justice Janice Rogers Brown of the California Supreme Court wrote a dissent in the widely noted harassment-law case of Aguilar v. Avis, in which the court ordered the drawing up of a list of forbidden words that employees of a rental car franchise were to be prohibited from using to each other on the job even in private conversation (see Sept. 11, 2000). The other day a New York Times editorial (”Disarmament in the Senate”, May 25) assailed Rogers for her supposedly extreme position in dissenting from Aguilar (which was decided 4-3), and James Taranto of the WSJ’s “Best of the Web” quite appropriately rises to her defense (May 27). As Taranto notes (but the Times somehow fails to), Justice Stanley Mosk, regarded as the California high court’s most liberal member, joined Brown in dissenting from Aguilar as a prior restraint on speech rights. For more, see Tim Sandefur, Sept. 23, 2004.

On Jan. 21 Mayor Don Williamson of Flint, Mich., issued an executive order directing the city not to do business with any enterprise or person who had sued the city during the previous five years. Last week he announced a retreat from that policy, his spokesman saying a record of having sued the city would henceforth be considered as one factor among others rather than as an automatic bar to doing business.

Williamson’s original order had been criticized on various grounds, and the local ACLU chapter had threatened — what else? — to sue the city over the policy. Now, it should be noted that a municipality’s blanket refusal to do business with lawsuit-filers very likely might run afoul of various laws: employment discrimination statutes, to take one notable example, typically include provisions banning employers from “retaliating” against persons who sue under them. Other state laws on topics such as procurement might also be plausibly implicated, and perhaps constitutional doctrines as well. On the other hand, news accounts portray the ACLU chapter as adventurously asserting some sort of universal if heretofore unenumerated right not to be retaliated against by any official body on the grounds of a record of litigiousness — so that an asphalt contractor, for example, with a record of getting into repeated wrangles with the city over the terms of past contracts might have a constitutional right not to have that held against it in future competition for business. Given Flint’s announced policy of continuing to consider proneness to litigation as one factor among others, it may be predicted that the controversy has not been finally put to rest. (Christofer Machniak, “Flint’s no-sue policy modified”, Flint Journal, Feb. 25; “Flint rescinds policy barring business with companies who have sued city”, AP/Detroit Free Press, Feb. 24).

Those two Long Island men who say they were arrested for telling lawyer jokes at a Nassau County courthouse (see yesterday’s post) were soon deluged with offers by lawyers to represent them for free. Reports Newsday:

“Barbara Bernstein, executive director of the Nassau chapter of the New York Civil Liberties Union, said she found the arrests “bewildering” and she called the men yesterday to determine whether the organization could help. “It’s just bewildering and preposterous that they should be arrested for telling lawyer jokes,” Bernstein said. “What’s the violation of law here?”

(Zachary R. Dowdy, “Lawyers offer help after pair’s anti-lawyer joke arrest”, Newsday, Jan. 13). The two men, Harvey Kash and Carl Lanzisera, have now accepted an offer of representation by radical attorney and New York radio personality Ron Kuby. (”Kuby takes jokers’ case”, Jan. 14). Further update: Jan. 30.

Ten years ago a mildly successful Republican state senator in New York won a huge upset — defeating the three-term incumbent governor of New York and Bill Clinton ally, Mario Cuomo. Part of the reason was probably Cuomo fatigue — he had been governor since succeeding Hugh Carey in 1983 and had been Carey’s lieutenant governor before that. But the biggest part of Gov. George Pataki’s victory was his promise to sign into law a statute reinstating the death penalty in New York.

Cuomo had vetoed numerous death penalty statutes. In 1994, New York had terrible crime, especially in New York City (which later dropped precipitously under Mayor Giuliani and Police Commissioner Ray Kelly) and New Yorkers wanted to send the message that the state needed to get tough on crime and, especially, ensure that cop-killers would not walk free after 20-25 years (this was a big issue for supporters of the bills).

True to his word, Pataki signed a death penalty bill. By most measures, it was about as progressive a bill as death penalty provisions could get: requiring instructing jurors of the consequences of their sentencing decisions, setting up an administrative group of lawyers that would set fee rates for defense attorneys in capital cases (to ensure better quality representation), and mandating direct appeals of capital convictions to the New York Court of Appeals (the state’s highest court). Ultimately, the statute seemed designed to insure the rights of the accused, be used only in extreme cases and be constitutional.

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An Ohio federal court judge held that punch-card balloting is not, in and of itself, racially discriminatory. The ACLU sued for a declaration that the punch card ballots in Ohio discriminated against minorities because minorities live predominantly in counties that use punch card systems. The full AP story is here.

The lawsuit alleged that most of the 92,000 ballots that did not have a vote for president recorded were punch card ballots.

Judge David Dowd held that:

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More developments regarding Virginia’s antigay law, much criticized in this space (see May 31 and links from there): the state’s Attorney General, Jerry Kilgore, has put forth an opinion (which of course does not bind the courts) construing the statute narrowly so as not to restrict persons of the same sex from entering private contractual arrangements that convey any “rights or privileges not exclusive to the institution of marriage”. (”The law”, Style Weekly (Richmond magazine), Jun. 30; Lisa Provence, “Not gay: Marriage affirmation sparks protests”, The Hook (Charlottesville), Jul. 17; Adrian Brune, “ACLU to challenge Va. union ban”, Washington Blade, Jul. 16). The law is already being cited by some attorneys as reasons why persons in Virginia should be considered free to disregard not merely civil unions, but even court orders arising out of such unions, originating in other states. Attorneys for Lisa Miller-Jenkins, who recently moved to Virginia from Vermont after the breakup of a civil union in the latter state, are citing the Virginia law to justify their client’s reported refusal to comply with a two-month-old Vermont court order awarding her former partner, Janet Miller-Jenkins, rights to visit the daughter born to Lisa during their time together. “State law forbids Virginia courts from handling legal custody and parental rights disputes if proceedings are already under way in another state.” (Calvin R. Trice, “It’s Virginia vs. Vermont in custody case”, Richmond Times-Dispatch, Aug. 14; Justin Bergman, “Judge delays ruling on jurisdiction in lesbian custody battle”, Newport News Daily Press, Aug. 13; Jonathan Finer, “Custody Case Puts Lesbian Civil Union On Trial”, Washington Post/National Constitution Center, Aug. 7)(via Tim Hulsey). And some gay residents of the Dominion have reacted to the law by deciding to move away. Update Aug. 25: Va. judge takes jurisdiction of custody case notwithstanding court order (Washington Post). More background on case: Washington Blade, Aug. 20. Further updates Dec. 16 (I challenge conservative commentator David Frum’s description of the case); Aug. 26, 2006 (Vermont Supreme Court rules against Miller); Nov. 29, 2006 (Virginia appeals panel, reversing lower court, rules against Miller).

Reversing a seven-year-old precedent, the Massachusetts high court has ruled that even though employees enjoy an absolute right to seek jury trials rather than have their claims of bias adjudicated by the state antibias agency, MCAD, employers do not have a right to bring their case to a jury following an adverse MCAD ruling. In its May 6 decision, the court said that recognizing employers’ right to a jury trial, as it had done in a 1997 decision called Lavelle v. Massachusetts Commission Against Discrimination, was undermining the agency’s authority. Mustn’t do that! (”SJC decision curbs employer access to jury trial in job-related discrimination cases”, Boston Business Journal, May 7; “Bias case rulings may have wide impact”, BostonWorks.com (Boston Globe), May 23; “Q&A: MCAD’s Dorca Gomez, on jury trial reversal”, Boston Globe, May 16). The law firm of Foley, Hoag & Eliot (May 12, PDF) said the ruling “further stacks the deck against employers in discrimination cases”. Remarkably, the Massachusetts chapter of the ACLU had pressed to abolish employers’ right to jury trial, and hails the new decision in a press release which seems calculated to lull the casual reader into imagining that the two sides are somehow still endowed with symmetrical rights (by de-emphasizing complainants’ privilege of choosing which forum will hear the dispute). No doubt our friends at ATLA, with their frequent rhetoric about the need to prevent erosion of the jury system, will rise to deplore the stripping away of defendants’ access to juries. Right?