- How the Progressive movement changed thinking on free speech [David Bernstein]
- More “bullying” legislation: “A crime for teenagers to excoriate their unfaithful or abusive lovers on Facebook?” [Eugene Volokh on pending Colorado bill] “Crime to spread rumors about under-25-year-olds, to send ‘hurtful, rude and mean messages’ about them, or to make fun of them online?” [same; pending ordinance in Carson, Calif.]
- “First Amendment protects Internet search results: N.Y. judge” [Alison Frankel, Reuters]
- Wisconsin + other states too: “Last week, the enlightened citizens of Shorewood, Whitefish Bay and several other communities voted to repeal the freedom of the press and of the free speech rights of organizations ranging from the NAACP to the National Rifle Association.” [Rick Esenberg, Shark and Shepherd]
- NYC comptroller Scott Stringer, posing in investor hat, demands that Texas firm Clayton Williams Energy Inc. explain its political giving [AP]
- Look before you leap: some proposals billed as criminalizing revenge porn appear to criminalize far more than that [Scott Greenfield]
- Consumer secretly videotapes allegedly unneeded repairs at Missouri Chevrolet dealership, litigation ensues [Popehat]
For those who freaked out at those headlines Thursday, Daniel Fisher at Forbes has a corrective to the New York Times’ latest story advancing the trial lawyer campaign against arbitration. More: Eric Goldman. Sequel: General Mills quickly withdraws new policy, perhaps reasoning that even when the New York Times is wrong, a consumer marketing company really can’t win trying to argue with it. Yet more: Dave Hoffman with an analysis of whether the language actually creates a contract.
Huge win for justice and good sense: facing a mounting public furor, “The Social Security Administration announced Monday that it will immediately cease efforts to collect on taxpayers’ debts to the government that are more than 10 years old.” [WaPo] Credit goes above all to the Washington Post and its reporter Marc Fisher for exposing the most outrageous features of the IRS’s refund-interception program last week, as recounted in this space; I like to think I helped as well by beating the drum early and repeatedly since then with Cato’s help. Overlawyered’s Facebook post on the subject has been seen by more than 60,000 people and shared more than 700 times in the past few days. (Have you liked us yet?)
The next step should be to establish for the public record how the provision in question got slipped into the farm bill, and at whose behest. Congress’s refusal to be forthcoming on this topic speaks volumes about its lack of a felt sense of responsibility toward the people it represents.
And a theme I’ve been repeating for almost as long as I’ve been writing about law: statutes of limitations developed in civilized legal systems for a reason. They protect us not only from cost, uncertainty, and the misery of legal process, but from injustice of a hundred other kinds, and they protect society itself from spiraling into a legal war of all against all. Stop trying to abolish them!
Eighteen-year-old guys have been known to say stupid things online, especially when engaged in displays of flaming and one-upmanship. Criminal-sentence kind of stupid? “I guess what you post on Facebook matters,” says Justin Carter of San Antonio, jailed after an all-caps flourish about how he was ready to “shoot up a kindergarten.” [Dallas Observer]
P.S. A related Missouri story from last year.
- “That Thing They Said They’re Not Doing? They’re Totally Doing.” [Daily Show with Jon Stewart] “Exactly What the State Says to Deceive You About Surveillance” [Conor Friedersdorf]
- “Warrantless Cellphone ‘Tower Dumps’ Becoming Go-To Tool For Law Enforcement” [Tim Cushing, TechDirt; Ellen Nakashima, Washington Post; David Kravets, Wired; USA Today (local law enforcement using, not just federal)]
- Google, Apple, Microsoft, Facebook, Twitter, Yahoo, AOL, LinkedIn, but telecoms absent: “U.S. Tech Industry Calls for Surveillance Reform” [Corporate Counsel, EFF, Marvin Ammori/USA Today]
- New Federalist Society symposium on NSA/FISA surveillance and bulk data collection includes names like Randy Barnett, Jim Harper, Jeremy Rabkin, Stewart Baker, Grover Joseph Rees [Engage, Randy Barnett]
- Nowadays “law enforcement can feel free to admit their traffic stops are pretextual” Thanks, Drug War! [Popehat] “Sobriety Checkpoints Paved Path to NSA Email Spying” [Wired]
- FATCA, the intrusive overseas tax enforcement law, isn’t couched in public controversy as a federal data-snooping issue, but it should be [Radley Balko, McClatchy]
The Supreme Court has declined review in Marek v. Lane, a case arising from the settlement of a privacy lawsuit against Facebook, which had presented questions about the proper use of cy pres distributions (in which money goes not to victims of the sued-over conduct, but to non-profits or other third parties). Writing in a separate statement, however, Chief Justice John Roberts indicated that the issues are of genuine concern to him, whether or not this case was the right one in which to address them. Excerpt:
I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Granting review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action litigation, including when, if ever, such relief should be considered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.
[Adam Steinman, Civil Procedure and Federal Courts Blog, earlier here, here; see also Archis Parasharami, Mayer Brown “Class Defense”] Relatedly, “Taking on Class Action abuse: A conversation with Ted Frank, founder of the Center for Class Action Fairness” is a new podcast at Liberty Law.
I’ve got a new piece at Reason.com expanding on my earlier reports on the new pilot program by which Facebook will give Maryland school officials a dedicated channel with which to seek takedown of posts and other material that in their view contributes to the problem of “cyber-bullying.” I think the program represents a disturbing step toward a wider government role as arbiter of what is allowed to be said in social media, the more so as it will be difficult or impossible to know whether takedown decisions at Facebook’s discretion are an entirely neutral application of the service’s “Community Standards” or are swayed in part by the wish to keep government bodies happy. I quote various press accounts, some affording additional insight into the existing and proposed takedown process, as well as commentary by Scott Greenfield, TechDirt, and the Daily Caller in which I’m quoted. Some additional commentary: Joy Pullmann/Heartland, Josh Blackman. More: Instalanched, thanks Glenn Reynolds.
That’s the gist of an announcement this morning from the office of Maryland attorney general Doug Gansler, following on the passing into effect of the state’s groundbreaking “cyberbullying” law, which I criticized earlier this year. The National Association of Attorneys General (NAAG) is involved too in the Educator Escalation Channel, which will start with a pilot Maryland program. Gansler says those targeted for post takedowns will include Facebook users who are “not committing a crime… We’re not going to go after you, but we are going to take down the language off of Facebook, because there’s no redeeming societal value and it’s clearly hurting somebody.” Although the rationale is to protect Maryland juveniles from unwelcome and hurtful online communications, the initial press reports offer no indication that the Facebook users whose speech is targeted for takedown will necessarily be other Maryland juveniles.
Careful about Facebooking during your injury suit, okay? Another costly bit of blab during the same case was to announce on the social media site that the couple hadn’t gone through with a divorce yet because of the case; the wife had won $2 million on a loss-of-consortium claim, which the judge proceeded to toss after the Facebook posts were revealed, ordering a new trial on damages. (The original damage award had been $5.4 million.) In the suit against a subsidiary of Quest Diagnostics, the husband claimed he sustained an ongoing “catastrophic,” “debilitating” injury to an arm nerve during a botched blood test. [Fulton County Daily Report, Georgia] More on litigants’ social media bloopers: Ed Gerecki and Dave Walz, Drug and Device Law (court levies sanctions after lawyer instructs client to “clean up” various embarrassing postings from Facebook including “I [heart] hot moms” t-shirt.)