As part of the wrangling over remedies imposed by U.S. District Judge Gladys Kessler, the federal government is demanding that tobacco companies be made to run ads declaring that the government was right and they wrong on various controversial issues, and in particular that they confess to having lied on purpose. A demand for judicially imposed self-denunciation, and in particular a demand that private actors be ordered to assert ideologically charged propositions that do not reflect their actual inward beliefs, should disturb civil libertarians, it seems to me, even if it does not disturb the U.S. Department of Justice. I’m quoted at 4:47 in this report by the BBC’s Ben Wright.
Philadelphia: “Union Workers *Probably* Torched a Quaker Meetinghouse Over Christmas” [John Ross; Steve Volk, Philadelphia Magazine] The U.S. Chamber of Commerce has compiled a report [PDF] on ways in which state laws exempt unions and their members from otherwise applicable criminal laws [Sean Higgins, Washington Examiner ("Union organizing exempted from stalking laws in four states"), Nathan Benefield/Commonwealth Foundation] Columnist Fred Wszolek says the sponsors of “Freedom from Workplace Bullies Week” might need to cast their net a bit wider. And see
August 1999 post in this space (unions have secured for themselves immunities from civil liability far more extensive than most businesses dream of); Grover Norquist/Patrick Gleason, Reuters (exemptions from anti-stalking laws).
Scott Greenfield, contra Radley Balko, believes the idea would prove “problematic, if not disastrous,” in real life, especially if enacted in the form of two-way fee-shifting (as distinct from a one-way fee payable only to defendants). It is worth noting that although legal systems around the world predominantly embrace loser-pays principles in civil litigation between private parties, they more or less uniformly decline to carry a similar principle over to criminal prosecution.
A two-part post, with part 1 on the law as applied to the facts, and part II on sentencing, prosecutorial discretion, and the appropriate targets for reformist energy. Earlier here (& Greenfield; Timothy Lee and Mike Masnick on plea bargaining).
I’m in the NYT’s “Room for Debate” feature dissenting from a proposed extension of criminal law (& Amy Adler/Advice Goddess).
Though the Ninth Circuit has differed, four federal circuit courts of appeal have read the Computer Fraud and Abuse Act to criminalize unauthorized access to computers even when the breach in question was to overstep contractual terms of service or the access a computer provider intended to furnish. As reported earlier, that leaves open possibilities of private liability or even felony conviction for behavior that in no way resembles hacking. [Mashable]
Scott Greenfield has doubts about the approaching campaign to criminalize, as distinct from just warning against, drowsy driving. More: Radley Balko.
“Six Italian scientists and an ex-government official have been sentenced to six years in prison over the 2009 deadly earthquake in L’Aquila. A regional court found them guilty of multiple manslaughter. Prosecutors had said the defendants gave a falsely reassuring statement before the quake after studying tremors that had shaken the city.” [BBC, earlier] More: Orac.
Speaking of science and the Italian courts, Italy’s Supreme Court has ruled in favor of a litigant claiming cellphone use caused his brain tumor; most authorities have found no such link [Telegraph]
“Is It Libel to Say Someone Was Arrested When the Arrest Record Has Been Erased?” Last year the New Jersey Supreme Court said no in a case raising the same issue as to convictions, saying the law’s expungement provision
is not intended to create an Orwellian scheme whereby previously public information — long maintained in official records — now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.
Now, however, a lawsuit filed in Connecticut seeks to assert similar liability as to mention of an erased arrest record. The state erasure statute provides that the person whose record is erased “shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.” Eugene Volokh finds the theory of liability constitutionally defective:
the First Amendment protects other people’s rights to talk about arrests that had — as a matter of historical fact — actually happened. A statute can’t rewrite history, and force others to pretend that something didn’t happen when in fact it did happen.
(& Above the Law)
The fine is well below the cost of mounting a legal defense in a case that had become a symbol of trigger-happy regulatory prosecution. [Nick Gillespie/Reason, Ann Althouse, AP] Besides, Ted Frank argues, “Gibson was planning on setting up camp at the RNC to promote the problem of overcriminalization,” so the Obama administration gets something of value too in an election season.
More: “The Lacey Act: Protectionism Through Criminalization” [K. William Watson, Cato at Liberty]