Reprinted from my blog, Cyber-Esq. The full Supreme Court opinion is in the Box under “Brown v. Entertainment Merchants Video Game Case:”
On Monday, the U.S. Supreme Court ruled, in a 7-2 opinion, that a 2005 California law aimed at banning the sale of violent video games to children went too far. Created by California state Senator Leland Yee (D-San Francisco), the law imposed a fine of up to $1,000 on retailers found to be in violation. However, because of the litigation, the law never went into effect.
This is the highest-level decision to date on the subject of legal restrictions on violent video games. In the wake of the Court’s decision, one thing is now clear – video games are entitled to the same First Amendment protections as books, plays and movies. Moreover, the Court emphasized that First Amendment protections are subject only to historically limited categories of speech such as obscenity, incitement or fighting words. These protections do not wane with the advent of new technologies. As a result, the state – as California did – cannot create a wholly new category of speech that is unlawful unless it can meet the “strict scrutiny” test; i.e., justify its law with a “compelling state interest.”
On the question of “strict scrutiny,” the Court found that California failed to meet its burden. Of specific interest, the Court doubted the strength of psychological evidence that claims such games cause children to behave violently or aggressively, at least more than any other available media. In addition, the Court found that the voluntary rating system – known as the Entertainment Software Ratings Board‘s (ESRB) classification system – already achieved the needs of parents without the government enacting legislation that infringes on free speech.
“the majority of video game resellers in the United States – including major retailers like GameStop and Best Buy – support the use of the…(ESRB) classification system, which rates games based on content and applies an age rating, which is featured on the video game box. It’s a purely voluntary system modeled after the Motion Picture Association of America’s ratings for movies.”
What do you think of the Court’s decision? In particular, the Court mentioned the fact that California had not limited access to “Saturday morning cartoons” in support of its decision, indicating that this raised the possibility that the state was singling out a particular industry or speaker for sanction. Is this a defensible analogy to violent video games?
Unless you have spent the last few weeks on Mars, or simply have no interest in the fact that democracy in the United States in under attack from extreme right-wing interests in many states, then you probably have heard something about the anti-democratic events unfolding in Wisconsin. Right-wing governor, Scott Walker, in office less than a year, is attempting to completely abolish the collective bargaining rights of Wisconsin’s public workers, including teachers. The anti-union measures were part of a larger budget bill being considered by the Wisconsin Legislature.
In response to Walker’s efforts, the state’s 14 Democratic lawmakers fled to neighboring Illinois, thereby defeating the Legislature’s quorum. Last night, however, the Republic majority voted to separate the issue of workers’ rights from the larger budget bill. By invoking this rare procedural move, the Republicans, effectively, gave to themselves the right to proceed with a smaller quorum than was required to consider a budget bill.
More significantly, the vote took place without any public debate, which Wisconsin Democrats argue violates the state’s “open meeting laws.” For those of you interested in the specific issue of “open meeting laws” and “freedom of information” in the United States, a good starting point in your research would be this excellent Wikipedia article.
This morning, in response to the events, Governor Walker issued an interesting statement, saying in part: “We cannot balance a budget on a hope and a prayer…”
What an interesting statement. When Congresswoman Gabrielle Giffords nearly lost her life to a gunman’s bullet, right-wing radicals in this country – coming to the defense of Sarah Palin and the NRA‘s pro-gun stance – told us we should simply “pray” for a solution rather than look for secular solutions like gun control. Prayer, apparently, was all we needed to magically undo the tragic – and avoidable – events that befell Giffords and others.
Now, another right-wing extremist, Gov. Walker, tells us that prayer is not enough to simply correct a balance sheet. How convenient! Of course, he is correct. Prayer won’t do the trick. Unfortunately, what he isn’t mentioning is that he and his cronies all across the Nation refuse to ask the wealthiest among us to pay their fair share.
When are the People going to wake up? If you are really hungry – even starving – what do you do? You go to where the food is, be it a grocery store or a restaurant. You don’t go to the dry cleaner down the street and ask them to give you food. You don’t go to your kids’ third grade teacher and make her quench your thirst. You go to where the food is!
Why do we not insist that our leaders to where the money is – the banks, the lending houses, the defense contractors, international mega-corps.? What are we waiting for? An Act of God?!?!?
Maybe we should just pray that the rich will pony up the funds on their own. How’s that been working out so far?
If you missed tonight’s The Ed Show on MSNBC, you missed a feature discussing a pending bill in the State of Georgia, known as House Bill 385. House Bill 385 is a Republican-backed proposal which seeks to balance the revenue shortfall in that state.
So, how does this Republican-backed measure seek to balance that state’s budget? Does it ask for contributions from large corporations like Coca-Cola or Lockheed Martin who have benefited greatly from Georgia? Heck No. In fact, House Bill 385 gives substantial tax breaks on corporate income taxes.
Instead of asking the most privileged citizens of Georgia to step up to the budget shortfall plate, Republican lawmakers in Georgia, instead, propose a hike in taxes on gas and food, including hikes on sales taxes for Girl Scout cookies. That’s right, folks. Couldn’t make this stuff up; it’s too ridiculous!
Of course, in fairness to the Republican lawmakers of Georgia, they are not just balancing the budget on the backs of girl scouts and their dreaded Thin Mints. The Boy Scouts‘ popcorn drive is also expected to cough it up.
According to an ABA Journal article, Ohio’s highest court has ruled law grad Hassan Jonathan Griffin of Columbus, Ohio failed to satisfy the “character and fitness qualification” requirements to be an attorney because he had no visible means to pay back his law school loans or credit card debt. Mr. Griffin works part-time in the public defender’s office, earning $12/hour. He has $170,000 in loan debt and $16,500 in credit card debt. Griffin provided information that he was remaining at his part-time job in the hopes that it would become a full-time position
To the Ohio Supreme Court, these facts rendered Griffin unfit to practice law based on low moral character. The opinion is downloaded to the Box for those who wish to review it.
Frankly, and I agree with the ABA writers, this decision is outrageous! In my opinion, this young man is being penalized for a legal education system that yokes its students with back-breaking student loan debt, often well into the hundreds of thousands of dollars. The fact that Griffin is working – whether part-time or full-time – in a public interest career ought to be encouraged, not be grounds for punishment or banishment. In fact, it is not at all unusual – instead, quite typical – for public interest jobs to be less than full-time at first, often working into more stable situations for those graduates that are able to stick it out. In the present economy, Griffin is not doing anything extraordinary – certainly not immoral – when you consider the many articles recommending volunteer work as a means to land a full-time job.
If Mr. Griffin has any further avenues available to him to pursue this matter, this author strongly encourages him to do so against what is truly an inequitable decision, one with far-reaching implications. For example, what if Mr. Griffin – like me – wanted to go directly into his own solo law practice, but lacked any clients at first. Would that evidence insufficient morals to practice law? If so, then can only the super rich, or super lucky, practice law in Ohio?
Not all lawsuits revolve around tragic events. In fact, some of the funniest stories can be read in the files of many court cases. This is one of those case, hailing to us from Quebec. For those of you who are offended by off-color humor or innuendo, my apologies, but I simply could not resist on this one.
Small-claims indeed!
According to papers filed in a small-claims case, a man is suing the manufacturer of a penis enlargement device, claiming that the device failed to produce the intended results – even after 500 hours of use. The plaintiff is seeking $762 in compensation against HotGVibe, the manufacturer of the product. Of this amount, $200 represents the cost of the device, while $500 represents (according to the plaintiff) “moral and punitive damages.”
And you thought our friends up north were more laid back and easy going…
But Will The Plaintiff’s Evidence Stand Up In Court?
Although a plaintiff in a lawsuit may have a legal claim on which to sue, the plaintiff must still have enough evidence to persuade the trier of fact that his case stands up to vigorous examination. Such an examination has already taken place in this case, and the judge has indicated that he will render a decision in about 6 weeks.
Huh…6 weeks to make a decision in a small-claims case? The judge really seems to be taking a long time pondering the plaintiff’s evidence, don’t you think?
Frivolous Lawsuit…Or Is The Plaintiff Selling Himself Short?
As much fun as one can poke at the facts of this case, “erotic” or “adult novelty” devices and services – sold to men and women alike– are often scams that pilfer millions of dollars from consumers’ pockets. Many companies prey on the consumers’ most intimate desires or feelings of inadequacy or embarrassment. For example, a recent article on a tech product website proclaimed that men could improve the size of their package by purchasing an iPhone app. Bet you didn’t know there was an app for that, did you?
Cases such as this one challenge preconceived notions about sexual behavior as well. Consumers such as this plaintiff are not necessarily desiring anything illicit, illegal or unwholesome. In fact, one could describe this plaintiff as seeking a tool to correct a problem that hundreds of millions of men have encountered at one time or another in their life. It’s a defective tool case. What’s so wrong about that?
Finally, before you proclaim him as nothing more than a frivolous plaintiff, consider this – after accounting for the product’s cost, the plaintiff is only asking for $1 an hour per wasted hour. In light of the significance of the plaintiff’s point, perhaps he is letting HGVibe off cheap.
For more on this interesting case, you can check out this article from The Consumerist.
As the dust settles from the mid-term elections, a question is percolating around the Internet: what will be the fate of “net neutrality” under a Republican-led House?
Under U.S. law, the administrative body governing the Internet is the Federal Communications Commission (FCC). However, major telecommunications legislation must still be approved by the House and the Senate. With a divided Congress, any major telecommunications legislation is unlikely to pass. The result – Internet service providers (ISPs) now hold all the cards and “net neutrality” is likely to be their primary target.
For those of you unfamiliar with the term, “net neutrality” is a principle that advocates no restrictions by Internet service providers (e.g., AT&T or Comcast) and governments on content, sites, platforms, the kinds of equipment that may be attached, and the modes of communication allowed; or, at the very least, extremely limited restrictions.
According to an article produced by Reuters, the underlying idea of net neutrality is that high-speed and mobile Internet providers should not be allowed to give preferential treatment to content providers that pay for faster transmission.
“Net Neutrality” is not a subject that should just be discussed by “techy” types. “Net neutrality” is one of the most important civil rights issues of our day. As a society, for good or ill, we have become utterly dependent upon the Internet. It is a primary method of information-gathering and information-sharing. For many, it is the source for social interaction, which broadly includes political organizing and activism (as witnessed by President Obama’s success as well as the growth of “causes” and “groups” on Facebook). Finally, to an ever-increasing degree, educators and institutions of learning are turning to the Internet as a mainstream tool to teach students of all ages.
Because of these developments, our societies must insist upon a robust and open Internet, with as few restrictions as possible. This is not to say that Internet service providers should not expect a reasonable rate of return on their services. However, just because I might choose AT&T as my provider, should not result in me being unable to freely communicate with certain other users or sites that AT&T finds objectionable. Same goes for you Verizon and Apple. And, just because I might not be able to afford your latest and greatest gadget, should not necessarily mean that I end up with something akin to “dial up” speeds when I attempt to find our the latest current events or get information on candidates running for office.
These kinds of results are not hypothetical populist-speak. According to its corporate “fact sheet,” “Comcast Corporation is one of the nation’s leading providers of cable, entertainment and communication products and services, with 22.9 million video customers, 16.7 million high-speed Internet customers and 8.4 million Comcast Digital Voice customers.” You can link to Comcast’s corporate information here.
This “leading provider” to tens of millions of Americans already restricts the amount of access its users can have to certain types of sites – most notably, peer-to-peer file (P2P) sharing sites. Comcast’s argument: sites which allow users to privately upload and download files (admittedly, sometimes large files) use up too much of the Internet’s bandwidth.
Comcast felt so strongly about their argument they filed a successful lawsuit in federal court over the issue. Almost immediately after the case ended, Comcast began aggressively marketing their more costly Xfinity service. Was private peer-to-peer file sharing sacrificed so that Comcast could charge its customers more money for allegedly faster Internet speeds?
I am not a Comcast customer, but I would like to hear from any of you who are. What do you think about this issue? Certainly, I invite Comcast to also share its thoughts on this topic, or on the topic of “net neutrality” in general. All non-spam comments will be approved.
In particular, it would be most welcome if Comcast would explain how it restricts its users access/use of the Internet (as its primary competitor contends it does) as well as provide its position on “net neutrality.” The same invitation is extended to AT&T, Verizon, Apple and Google.
Even if you claim not to use it as your primary method of gathering and sharing information, other users – your doctors, lawyers, banks, hospitals, government agencies – do rely on the Internet and their reliance affects you and your family every day. If made available to everyone, the Internet is the most powerful tool for advancement humankind has devised. Unfortunately, if access to this tool is segregated by class or wealth or geography or because of a corporate balance sheet, those without the tool will find themselves distanced and dis-enfranchised from much of what is taking place around them.
I strongly urge all my readers, followers and friends to view “net neutrality” as I do – a civil rights issue. If you are concerned about this issue, you can find out more about how to stand up for “net neutrality” by visiting this link. There are also Facebook causes devoted to the subject, which you can easily find simply by searching for the term net neutrality.
Late last week, representatives of Sonoma County, California agreed to settle a lawsuit filed on behalf Clay Greene and the estate of Harold Scull, Greene’s deceased partner of 20 years. According to the suit, Greene and Scull had each executed mutual powers of attorney for medical and financial decisions and wills naming each other as beneficiaries. In April 2008, County employees in the Public Guardian’s office separated the couple after Scull fell outside their shared home. In the next three months, County officials ignored the couple’s legal documentation, unlawfully auctioned their possessions, terminated their lease, and forced Greene into an assisted living facility against his will. The County did not consult Greene in Scull’s medical care and prevented the two from seeing one another.
In August, 2008, before the partners could be reunited, Scull passed away after completing a photo album of the couple’s life for Greene.
In August, 2009, Greene and the representative of Scull’s estate filed a lawsuit against County officials and others alleging elder abuse, elder financial abuse, breach of fiduciary duty, intentional and negligent infliction of emotional distress, false imprisonment, and other claims. The plaintiffs were represented by the National Center for Lesbian Rights (NCLR).
Under the terms of the settlement, Sonoma County will pay $600,000 to the plaintiffs, with a smaller payment of $53,000 coming from the remaining defendants. In addition, as a result of the lawsuit, Sonoma County has changed or modified a number of important policies in its Public Guardian’s Office, including requiring County employees to follow protocols before seizing private property, preventing County employees from relocating elders or others against their will, and prohibiting County employees from backdating information in their guardianship database.
NCLR is to be commended for taking on this most egregious case and seeing it through to a favorable conclusion for the plaintiffs. As a resident of Sonoma County, on a personal and professional level, I am deeply disturbed that it took a lawsuit to cajole the County into “modifying” policies requiring its employees to “follow protocols before seizing private property” of its residents, “relocating elders against their will,” and “prohibiting County employees from backdating information.” It should not be necessary for anyone – regardless of sexual orientation – to resort to court action to prevent such abuses. The monetary settlement notwithstanding, what this couple lost cannot be replaced by any court.
Here’s a prime example of the type of lawsuit that gives both lawyers and vexatious litigants a bad name. The law firm of Reese, Richman and Williams of New York, NY, on behalf of Plaintiff Timothy Dahl, has sued Mott’s LLP and Dr. Pepper Snapple Group, makers of Yoo-Hoo, for deceptive advertising. According to the lawsuit, Yoo-Hoo has, since its inception several decades ago, been misleading and lying to its customers claiming that the soft drink product is ‘good for them’ when, in fact, it contains dreaded ‘partially hydrogenated vegetable oil.’
The suit seeks class action status, an order enjoining the marketing of Yoo-Hoo has being good for its consumers, and a hefty $5,000,0000 damages request. Are you kidding me?
I agree with Legal Blog Watch, the source of this story, that “if there’s a beverage that can instantly bring to mind happy times,” it’s Yoo-Hoo. As a kid, I drank as much of this stuff as I could get my hands on. At 40, I suffer no ill effects from ‘partially hydrogenated vegetable oil.’ In my opinion, we have liquids to worry about these days other than Yoo-Hoo like, perhaps, the millions of barrels of sludge filling the Gulf of Mexico. These lawyers ought to be ashamed of themselves, and I can only hope that the U.S. District Court for the Eastern District of New York will send this lawsuit to the trash bin where it belongs.
In the meantime, if you want a chuckle, check out the Plaintiff’s Complaint in the Box. And, thanks to Legal Blog Watch for the story.
On May 5, 2010, Senators Mark Pryor (AR) and John Kerry (MA) introduced the “Equal Access to 21st Century Communications Act” (S. 3304). Senators Byron Dorgan and Kent Conrad, both from North Dakota, also co-sponsored the bill.
Hailed by equal access advocates as a major step forward for people with disabilities in ensuring accessible technology, the bill would modernize accessibility mandates in the Communications Act, bringing existing requirements up to date as television and phone services connect via the Internet and use new digital and broadband technologies.
Eric Bridges, Director of Advocacy & Government Affairs at the American Council of the Blind (ACB) said, “Much of S. 3304 would lead to greater accessibility for people with disabilities, such as more accessible video programming, including captioning and video description, regardless of distribution mode; and video programming equipment, such as televisions and other display devices, would also be accessible.”
However, some advocates have argued the Senate bill does not go as far as its companion measure in the House of Representatives – the “Twenty-first Century Communications and Video Accessibility Act” (H.R. 3101) – in reaching all the new technologies. In particular, the National Association of the Deaf has been critical that the Senate bill is not as broad or well-defined as the House version.
Jenifer Simpson, Senior Director of Government Affairs at the American Association of People With Disabilities (AAPD) said, “We are confident that these issues – scope of accessible communications and the standard for compliance – will be resolved.”
A copy of a press released just issued by COAT – the Coalition of Organizations for Accessible Technology – is in the Box. COAT has been active in getting the Senate bill introduced.
In a surprising decision, the U.S. Supreme Court has ruled, in United Student Aids Funds v. Espinosa, that a student may discharge the interest on their student loan debt, even though the student did not allege “undue hardship” if required to repay the loans. When the student, Francisco Espinosa, sought bankruptcy protection and submitted his plan to the bankruptcy court judge, the student loan creditor, United Student Aids Funds, did not object. Instead, the creditor later sought to void the plan under Federal Rule of Civil Procedure 60(b)(4).
Writing for a unanimous Court, Justice Thomas stated, “Rule 60(b)(4) does not provide a license for litigants to sleep on their rights…Where, as here, a party is notified of a plan’s contents and fails to object to confirmation of the plan before the time for appeal expires, that party has been afforded a full and fair opportunity to litigate, and the party’s failure to avail itself of that opportunity will not justify Rule 60(b)(4) relief.”
As a general rule, student loans are considered non-dischargeable in the absence of proof of undue hardship to the debtor if required to repay the loans. Will this ruling by the Supreme Court breathe new life into the question of student loan dischargeability? That remains to be seen. It certainly gives more than a faint glimmer of hope in an area of bankruptcy law that many students and graduates have argued should be subject to at least partial dischargeability.
For further information on the procedural history of this important new case, you may check out these links to the ABA here and here. You may also refer to the SCOTUS blog here. I have also placed a PDF of the Espinosa decision in the Box for downloading.
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Civil Rights & Wrongs 