Overlawyered: Chronicling The High Cost Of Our Legal System

Viral junk and the Culture War: think before you share

Can sober correction ever catch up with viral junk about legal cases on the internet? Two new instances, one from the right and one from the left, leave me wondering.

I’ve now updated this 2008 Overlawyered post on a convict’s hand-scrawled, soon-dismissed “ban the Bible” lawsuit to reflect the story’s re-emergence in recent days as a much-shared item at mostly conservative social media outlets, which have passed on the story as if it were a new and significant legal development, typically omitting its date, circumstances, and disposition.

Meanwhile, Raw Story has now corrected a post in which it claimed that Oregon cake bakers Melissa and Aaron Klein were fined for supposedly “doxxing” (maliciously revealing personally identifying information about) their adversaries. (It credits a Eugene Volokh post for flagging the error.) But the source on which Raw Story based its report, blogger “Libby Anne” at Patheos Atheist, still hasn’t corrected her deeply flawed account, which has now had more than 252,000 Facebook shares.

Please think before you share.

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Obama unveils overtime regs

“Well, they did it. The Obama Administration has proposed a new rule that everyone has to punch a time clock unless they are paid at least $921 a week. … This is a law written by salaried professionals telling younger and lower-paid workers that they have no right to be … salaried professionals.” [Coyote, who also has a few words on the arbitrariness of the Department of Labor’s threshold calculations, and on how DoL implicitly realizes that employers will adjust payroll practice to employees’ detriment, the biggest losers being upwardly mobile strivers.] Short-term benefits for some workers will melt away as employers redesign jobs to avoid overtime, reduce base pay, or lay off staff [Jeffrey Miron, Cato] “Unfortunately, it appears that the White House has given up on economic growth” [Douglas Holtz-Eakin] More: Iain Murray, National Review; Marianne Levine, Politico; W$J; Doug Hass/Wage Hour Insights; Detroit News editorial. My two cents earlier here and generally here.

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How Jim Hood acted a Hollywood role against Google

We’ve covered this topic before, but Mike Masnick at Techdirt has a slew of revealing new details on how Mississippi attorney general Jim Hood acted as cat’s paw for Hollywood studios in his legal battles against Google. Former Mississippi attorney general Michael Moore, another longtime Overlawyered favorite, plays a key role in the story as well. Our coverage of Hood’s work over many years is here.

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Police and prosecution roundup

  • NYC Legal Aid lawyer “represented four defendants in a row who had been arrested for having a foot up on a subway seat” [Gothamist, including report of arrests for “manspreading”]
  • Recommendations would expand federal role: “President Obama’s Task Force on 21st Century Policing” [Tim Lynch]
  • Profile of Pat Nolan and momentum of criminal justice reform on the right [Marshall Project] Maryland Gov. Larry Hogan shows how Republicans are experimenting with criminal justice reform [Ovetta Wiggins, Washington Post]
  • “Though we weren’t at any toll plazas, something was reading the E-ZPass tag in our car.” [Mariko Hirose, ACLU on New York monitoring of car transponders, presently for transport management purposes] DEA license plate tracking has been subject to mission creep [L.A. Times editorial via Amy Alkon, earlier]
  • “Texas’s governor signs a bill that will end the ‘key man’ grand jury system, also known as the ‘pick-a-pal’ system.” [Houston Chronicle via @radleybalko, earlier]
  • “There’s little dispute overincarceration is a problem demanding immediate redress. Except when it comes to sex.” [Scott Greenfield]
  • Massachusetts SWAT teams retreat from position that they’re private corporations and needn’t comply with public records laws [Radley Balko, earlier]

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Oregon: bakers’ statements to national media were “unlawful”

Readers who follow the battles over forfeiture law may recall the recent case in which a North Carolina convenience store owner from whom the government had seized $107,000 without any showing of wrongdoing decided to fight the case in the press as well as in court, backed by the Institute for Justice. Lyndon McLellan’s decision to go public with the dispute drew a menacing letter from a federal prosecutor about the publicity the case had been getting:

“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money.

That case ended happily, but the problem is much broader: many individuals and businesses fear that if they seek out favorable media coverage about their battle with the government, the government will find a way to retaliate, either informally in settlement negotiations or by finding new charges to throw against them.

That such fears might not be without foundation is illustrated by last week’s widely publicized Oregon cake ruling, in which a Gresham, Oregon couple was ordered to pay $135,000 in emotional-distress damages for having refused to bake a cake for a lesbian couple’s commitment ceremony. Aside from the ruling’s other objectionable elements, the state labor commissioner ruled it “unlawful” for the couple to have given national media interviews in which they expressed sentiments like “we can see this becoming an issue and we have to stand firm.” Taking advantage of an exception in free speech law in which courts have found that the First Amendment does not protect declarations of future intent to engage in unlawful discrimination, the state argued – and its commissioner agreed – that the “stand firm” remark along with several similarly general comments rallying supporters were together “unlawful.”

That ought to bother anyone who cares about free speech. I’ve got a piece up at Ricochet.com, my first there, exploring the question in more detail. Check it out [cross-posted from Cato at Liberty].

Similarly today: Ken at Popehat.

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July 8 roundup

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Goldwater Institute files constitutional challenge to ICWA

Live now: The Goldwater Institute has filed a multi-sided challenge to the operation of the Indian Child Welfare Act. AD v. Washburn; website at EqualProtection.org; investigative report Death on a Reservation; Goldwater policy paper. More updates will follow.

Our earlier coverage here, in my writing at Reason and Cato, etc.

Related: in Minnesota, a Twin Cities couple represented by attorney Mark Fiddler has filed suit saying that ICWA violates their constitutional rights by requiring that they notify the Mille Lacs Band of Ojibwe before proceeding with plans to allow a non-Indian couple to adopt their infant. [Minneapolis Star-Tribune] Also: Johnston Moore, Children Deserve Families.

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