Lowering the Bar

Plaintiff Who Keeps Suing Search Engines Still Not Clear on Streisand Effect

Me in 2010, on Stayart v. Yahoo:

"Like many," this opinion begins, "Beverly Stayart was curious about what she would find when she put her name into a search engine." And like many, Beverly Stayart was not happy with what she found. Unlike anybody else, however, Beverly Stayart sued the search-engine company, claiming that the results it associated with her name falsely gave the impression she personally endorsed the products and services listed, including various pharmaceuticals and what the Seventh Circuit called "websites promoting sexual escapades." On September 30, the court affirmed the dismissal of Stayart's claim.

* * *

In April, Stayart sued Google on essentially the same grounds, and sooner or later, will get essentially the same result.

The Seventh Circuit recently, on Stayart v. Google:

Dissatisfied with the results of internet searches for her name, Beverly Stayart has launched a legal campaign against internet search engines. In this, her third lawsuit, she contends that Google is in violation of Wisconsin misappropriation laws because a search for "bev stayart" may lead to a search for "bev stayart levitra," which in turn may lead to websites advertising drugs to treat male erectile dysfunction. The district court dismissed her lawsuit for failure to state a plausible claim for relief and ... we affirm.

Amusingly, one of the reasons Bev lost this time is that she made such a big fuss over it last time. There is a "public interest" exception to misappropriation laws, and the court found that "Stayart made the challenged search phrase 'bev stayart levitra' a matter of public interest by suing Yahoo! over it in 2010. And as a matter of public interest, that phrase cannot serve as the basis for a misappropriation suit."

The court did not actually mention the "Streisand Effect," which Wikipedia defines as "the phenomenon whereby an attempt to hide or remove a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the internet," but this is yet another excellent example of that.

 

Sharp Conflict in Reports on Courthouse Duck Incident

The UPI reported it this way:

HONOLULU, April 10 (UPI) -- Authorities in Honolulu said they confiscated two bottles of beer and a live duck from a man entering a courthouse to meet with his probation officer.

A courthouse security worker said the man, whose name was not released, appeared to be intoxicated when he arrived at the courthouse at 8:30 a.m. Monday and an X-ray of the bag he was carrying revealed two 40-ounce bottles of beer, the Courthouse News Service reported Wednesday.

The man refused to hand over the bag, saying there was a "live animal" inside, and officers took the bag from him and discovered a live duck inside.

The man was arrested.

But according to the Associated Press report, the man did not appear intoxicated, though he did have a bottle of beer (not two); he was not arrested; and the duck waited patiently outside the courthouse while the man went to his meeting:

Screeners told [the duck man] that his pet and beverage wouldn't be allowed inside Circuit Court, so he left. He returned a short while later and asked that screeners look after his belongings while he went inside for an appointment, [Department of Public Safety spokeswoman Toni] Schwartz said, adding that visitors are allowed to leave their things outside at their own risk.

[The man] went to his appointment, while the duck waited outside....

Schwartz said [the man] didn't appear intoxicated. "Everything was peaceful," she said.

Which version is accurate? Hard to say. A good rule of thumb when checking on things like this (odd stories in general, not just attempted duck smuggling) is that the more detailed a report is, the more likely it is to be true. The UPI report seems too generic, even though it does have details such as the specific time and the number of 40s allegedly being carried in addition to the duck. The AP report is more detailed, and most significantly it quotes a named source.

Also, reports by local media tend to be more detailed and often more accurate, as you might expect since they are closer to the story. I did find one of those here, which is very consistent with the AP report:

[The man] insisted on keeping the contents of his bag a secret. Officers eventually escorted him outside, where he relented and blurted out, "There's a live duck in there!"

The guards didn't know what [he] meant, but when they opened the bag, comprehension was crystal clear. An actual live duck was inside, along with two 40-ounce bottles of beer.

"We have no way of knowing if [the duck owner] was drunk since no one was able to draw blood from him to test his blood alcohol content level. However, the deputies didn't smell any alcohol on his breath," said Schwartz.

[T]he security officers advised [the man] that he could not enter court with the live duck or the beer. [He left, but] later returned after realizing that he still needed to meet with his court officer. Instead of demanding to be allowed in, he asked the deputies to secure his precious belongings at security, where couriers regularly make deliveries. That request wasn't against the rules. The deputies obliged, allowing the beers and the feathered friend to stay behind.

After wrapping up his business in court, [the man] reclaimed his personal possessions and left the building without any further incident.

So I think we now have a more accurate picture. Are there questions that remain? Sure. Was there one 40 or two? Was the duck a pet or lunch? Maybe most importantly, why is our fancy X-ray security equipment STILL unable to tell a bird from a bomb? See also "TSA Thwarts Frozen-Chicken Plot" (Dec. 23, 2010).

Sadly, it seems like these are questions we may never get an answer to, no matter how deep we dig.

Criminal-Defense Tip: Do Not Answer the Door Holding Contraband

You won't be able to read the full text of this article if (like me) you don't have premium access to the New Jersey Law Journal. On the other hand, you don't need to.

If the first sentence is too small to read, and in case you're too lazy or too stoned to click to enlarge the picture, here's what it says:

Smoking pot while answering one's front door, then tossing the evidence when seeing it's the police, creates probable cause to search under the plain-view and exigent-circumstances doctrines, the state Supreme Court says.

Quick summary of the plain-view doctrine: if the evidence is in plain view, and the officer didn't do something illegal to get the necessary view (example: he was standing outside your front door and you brought the evidence out to him), your motion to suppress evidence on Fourth Amendment grounds will fail.

Quick summary of the exigent-circumstances doctrine: if a reasonable person would believe that action was necessary to prevent harm to a person or property, destruction of evidence, or an escape (example: you try to dispose of evidence in full view of an officer and then—I'm guessing here—run back inside), your motion to suppress evidence on Fourth Amendment grounds will fail.

As I've said more than once, I personally think marijuana should be legal, but until it is, please take note of the rules above.

White House Grants Senate a Glimpse of Legal Memo Re: Killing Americans

From yesterday's edition of The Hill:

The Obama administration on Wednesday is expected to grant members of the Senate Judiciary Committee access to its legal justification for killing suspected terrorists who are U.S. citizens.

Yep, after months of asking, the Committee will finally be granted a chance to see the still-secret legal memo rumored to explain the administration's basis for arguing that it can lawfully target and kill—without a warrant or trial—any United States citizen that it deems to be a terrorist. Only members of the House and Senate Intelligence Committees have seen it so far.

I agree with this decision. Since the Constitution gives Congress the power to, among other things, "define and punish ... Offences against the Law of Nations;" to "declare War ... and make Rules concerning Captures on Land and Water," to "raise and support Armies," and to "provide for calling forth the Militia to ... suppress Insurrections and repel Invasions," and given the existence of the Fourth and Fifth Amendment protections against government intrusion and stuff like that there, it does seem to make some sense that the Executive Branch would LET CONGRESS TAKE A PEEK AT ITS LEGAL REASONS FOR CLAIMING THE ABILITY TO KILL AMERICANS WITHOUT DUE PROCESS OR JUDICIAL REVIEW.

But that's just me.

On Twitter, @aves1234 noted the irony of this ad appearing next to the story on The Hill's web page: 

That's a bomb, not a drone, but will almost certainly be mounted on drones when available and then dropped on appropriate targets, which, again, the memo reportedly says can legally include U.S. citizens. (As before, this should not necessarily be taken to mean I think we can or should freely bomb non-citizens.)

On the bright side, it's a small-diameter bomb, so maybe it won't be so bad.

Previous semi-rants on related topics include:

• "For Christmas, Your Government Will Explain Why It's Legal to Kill You" (Dec. 21, 2011) (it didn't)

• "AG Sort of Explains When and Why the President Could Drop a Bomb on You," (Mar. 6, 2012) (still didn't, really)

• "Professor: Maybe Secret Legal Memos Are Secret Because They Suck" (July 30, 2012) (entirely possible)

• The Drone Memo: More Comedy About the Death of Freedom (Feb. 6, 2013) (based on a "white paper" that supposedly summarized said memo)

• "Can the President Kill a U.S. Citizen in the U.S. Without Trial? Attorney General Says Yes" (Mar. 5, 2013) (but citizens still can't see the memo)

and also

• President Receives Transparency Award in Closed Meeting (Apr. 1, 2011) (which sadly was not an April Fools item)

Oregon, Hawaii May Name Official State Microbes

If House Concurrent Resolution 12 passes, Oregon could become the first state in the Union to declare an official state microbe.

Specifically, Saccharomyces cerevisiae, also known as "brewer's yeast" or "baker's yeast," for reasons you can probably guess. "It is perhaps the most useful yeast," says Wikipedia, "having been instrumental to winemaking, baking and brewing since ancient times." It's also highly useful to scientists. Is there anything this plucky microbe can't do? Sure, it's everybody's favorite eukaryote, but why is Oregon thinking about adopting it?

The bill's sponsor is Rep. Mark Johnson (R-Hood River), whose district includes a number of wineries and microbreweries, according to The Oregonian. Johnson praised S. cerevisiae when he presented the bill last week, noting that it was largely responsible for the success of companies like Full Sail Brewing Co. "It's just an example of what this microbe has been involved in," Johnson said, doing his best to convince members of the Rules Committee they should get excited about yeast. At least one committee member seemed skeptical.

"Is there any other microbe that anybody else likes better than this one that is in competition with your microbe?" asked Rep. Vicki Berger.

"I'm not aware of any other microbes that generate $2.4 billion for the state economy," answered Johnson. I don't think you've answered my question, sir, so I'll ask it again: Is there a competing microbe?!

The report suggested that Berger might be concerned about this because of an ugly fight that broke out in 2009 when she tried to have the marionberry (no relation to the unpleasant D.C. politician) declared the official berry. Those affiliated with other, less favored berries protested, and the legislature eventually dropped the plan. But for now, apparently persuaded that they were not about to spark a war between the various microbe lobbies, Berger and the other committee members sent the bill to the House floor.

Oregon will have to act fast if it wants to be first, though, because a similar bill in Hawaii has already passed the House in that state and been referred to the Senate. That involves a different microbe, Flavobacterium akiainvivens, which lives on the Hawaiian akia shrub. What does that microbe do? Lives on a shrub, as far as I can tell. Unlike Oregon, Hawaii didn't start with an awesome microbe and decide to make it official. According to the legislation, some Hawaiians decided they needed an official state microbe and went out to find one. This one apparently fit the bill.

As you may recall, Wisconsin had a chance to be the first state with an official microbe back in 2009, when that state's assembly passed a bill elevating Lactococcus lactis to official status, in recognition of its heroic role in creating cheese. Ultimately, however, the state senate failed to concur.

Well, at Least He Wasn't Texting

Here's your headline of the [insert appropriate time frame]:

Witnesses: Man drove 90 mph with genitals hanging out the window

It looks as though an alleged reign of terror may be coming to an end, after three of what police said were "dozens" of victims testified against William Blakely last week in a preliminary hearing in Kingsport, Tennessee. According to WJHL-TV, the three women all told a very similar story, one that detectives said many others may be willing to tell now that these three have come forward.

Blakely—who was once nearby Mount Carmel's vice-mayor, a title that now seems to take on new meaning—reportedly has a history of driving alongside women, exposing himself, and pleading for them to do the same, all while traveling at high speed. One of the women testified that the pursuit reached speeds of 90 mph as she tried to escape, to no avail. All testified, understandably, that they were "fearful Blakely's [one-handed] driving would cause an accident."

A detective was quoted as saying that the department had received "dozens" of reports of similar behavior over the course of "three or four years," from women ranging in age from 16 to 65. "Every victim would tell the same story," she said, "but I knew all the victims did not know each other." The report suggests that this continued for so long because the earlier victims were afraid or embarrassed to come forward, but eventually the alleged Mayor of Vice pulled up next to the wrong person.

In a short video (one of three available on WJHL's website), one of the victims gave what seemed to me to be pretty credible (and specific) testimony as to what exactly she had seen. The real break in the case, though, happened because she had the presence of mind to write down his license plate number. "Which I believe he noticed," she said, "and he [then] exited very quickly." He might be exiting civilian life for a while, depending on what the grand jury. The detective said "several more cases" would also be presented to the grand jury.

Some of the comments to the story on WJHL's website were predictable, such as references to "cruise control" and "objects in mirror may appear larger than they are" (which is kind of funny even though the actual warning is "Objects in Mirror are Closer Than They Appear," see 49 C.F.R. § 571.111). Some were not sure the activity described in the headline would actually be physically possible. One man in fact appeared to be furious about the headline, saying he had been at the hearing and that in fact "there was no mention of anyone's genitals hanging out the window." He said she should be "ashamed and guilty" about this misrepresentation, which in his view had destroyed her "journalistic integrity."

Really? Okay, let's agree that the headline was almost certainly an exaggeration, since, taken literally, that really does seem impossible. But the commenter seemed to have no clue that whether or not the business broke the plane of the window is not going to be a material issue in the State's case, so I would not call the exaggeration material, either.

Blakely is charged (so far) with criminal attempt to commit aggravated assault, a charge that seems a little questionable, and also with indecent exposure and reckless endangerment, which don't.

The Day Justice Douglas Threw a Book Out the Window

From the book In Chambers: Stories of Supreme Court Law Clerks and Their Justices, noted by Andrew Cohen in The Atlantic :

Law clerks in this era all learned that none of [Justice William O.] Douglas' rules were ever to be ignored. "Brrraaaccckkk! Brrraaaccckkk!" rang the buzzer one day in 1965, summoning Jerome B. Falk, Jr. "Did you write in this volume?" asked a furious Douglas, his voice quivering with anger as he held up a United States Reports volume containing Supreme Court opinions.

"No sir," responded the concerned young clerk.

"I'm relieved to hear that," said the still angry justice. "Books are treasures. They are temples of the intellect. They must be cherished and protected. I couldn't imagine that you were the sort of person who would write in a book."

That said, Douglas turned, as was his practice, and pitched the book in the direction of the extended window seat behind him, where Harry Datcher would find them for reshelving at the end of the day. But Douglas was so pumped with adrenaline after his fiery speech that he overshot the seat and instead fired the book right out of the open office window to its loud, cracking demise on the concrete patio a floor below.

Falk spun to return to his desk, simply acting as if the incident had never happened, and book preservation was never spoken of in the office again.

Luckily, the patio seems to have been empty at the time. Those volumes are pretty damn hefty.

Cohen says he can see Peter Sellers playing Justice Douglas in the movie version of this scene—slow burn at the end as he realizes what he just did, but everybody just ignores it. I can too, but I have to confess that the first person I thought of was Ted Knight, because of the scene in Caddyshack where the judge angrily flings his golf club, tries to lie about it and is rescued by his caddy. Had that been a wacky screwball comedy about the Supreme Court (and it was based on fact), the scene would have gone like this:

JUSTICE DOUGLAS: I did not throw it. It…

ANGRY TOURIST: Well, if you didn't, how the hell did it get here?

DOUGLAS: It slipped!

CHIEF JUSTICE WARREN: What seems to be the problem? 

ANGRY TOURIST: He almost killed my wife with his damn book!

DOUGLAS: It was an accident! It slipped out of my hands.

FALK [trying to score points]: I noticed the binding was worn, sir. I should have mentioned it to you before. I could put some stick-um on there for you. It's my fault.

DOUGLAS: Yes … it's a good idea. Next time be more careful! 

I realize tourists probably weren't allowed to hang out on the patio below Justice Douglas's window, but in my wacky screwball comedy about the Supreme Court they are.

Blade Walks in Daylight Again

Meaning, of course, Wesley Snipes, whose film career has been on hold lately due to being in federal prison. Snipes was convicted in 2008 of not filing federal tax returns, and received a three-year sentence. He is still under house arrest until July, but was released on April 2 from the minimum-security facility in which he has been residing.

Prosecutors argued that Snipes had earned something like $38 million between 1999 and 2006 and that not only did he fail to file tax returns for some of those years, he filed a couple of bogus returns in which he claimed $12 million in refunds. The argument he made is sufficiently common that it is just called the "861 argument," after the IRS code section and regs on which it's based. As I understand this argument, on which I freely admit I have not wasted much time, U.S. citizens supposedly can be taxed only on foreign-based activities and not on wages and other income earned within the United States.

If that actually were the law, you'd think the feds would have closed that particular loophole by now since it would obviously cut revenue rather dramatically. But not surprisingly, this argument has been rejected many times in cases going back almost to the time of White Men Can't Jump and Passenger 57, and certainly well before Blade. One of its main proponents, Larken Rose, apparently believed in the argument so strongly he asked the government to prosecute him so he could make the argument to a jury. It did, and he did, and the jury then convicted him on five counts of tax evasion.

I actually like Wesley Snipes a lot as an actor (and don't like paying taxes any more than anybody else does), but he really should have known better. Being half-vampire might make you immune to vampires, but not to the IRS.

Official State Crap: Arkansas

• Official state nickname: "The Natural State."

• First official state motto: Regnant Populi ("The People(s) Rule"?).

• Year they decided that was either grammatically incorrect in Latin or not quite what they wanted to say: 1907.

• Current official state motto: Regnat Populus ("The People Rule").

• Official state insect: the honeybee.

• Official state beverage: milk.

• Official state musical instrument: the fiddle.

• Official state fruit and vegetable: the South Arkansas Vine Ripe Pink Tomato.

• Official state fruit and vegetable explanation: "It is found and determined by the General Assembly that the South Arkansas Vine Ripe Pink Tomato has a taste, texture, appearance, and aroma second to none and that the tomato is botanically a fruit and used as a vegetable. It is further determined by the General Assembly that Arkansas does not have a state fruit or a state vegetable. Therefore, the South Arkansas Vine Ripe Pink Tomato shall be the official state fruit and the official state vegetable."

• Official (and kinda spicy) state songs: "Arkansas (You Run Deep in Me)" and "Oh, Arkansas."

• Official state anthem: "Arkansas," written by Mrs. Eva Ware Barrett.

• Official historical song: "The Arkansas Traveler."

• Official cop-out of a legislature that couldn't decide on an official state song: "Recognizing that Arkansas has two (2) state songs, one (1) state anthem, and one (1) historical state song, the Secretary of State shall respond to requests for a copy of the Arkansas state song by furnishing copies of "Arkansas", written by Mrs. Eva Ware Barnett."

• Official state bird: the mockingbird.

• Official state tree: the tomato. No, just kidding, it's the pine tree.

• Official state folk dance: the square dance.

• Official Purple Martin capital: Fort Smith.

• Official Southeast Arkansas Purple Martin capital: Lake Village.

• Official explanation for the latter: "Since the purple martin, a bird known for its appetite for flying insects, is deemed by most as an attractive asset for its appearance, song, cleanliness, and diet—America's Most Wanted Bird, and since the City of Lake Village in Chicot County of southeastern Arkansas is located along the North-South Flyway, the major migration route for millions of birds, the City of Lake Village in Chicot County shall be designated by the General Assembly to be known as the 'Southeast Purple Martin Capital of the State of Arkansas.'"

• Official trout capital: Cotter, Arkansas, which is on the White River between Flippin and Gassville. Maybe five miles northeast of Yellville.

• Official state soil: the Stuttgart soil series, a "member of a soil family of fine, smectitic, thermic albaquultic hapludalfs."

• Official state thing most likely to contain a bunch of made-up words: that one.

• Official state historic cooking vessel: the Dutch oven.

• Official state butterfly: the Diana fritillary butterfly, which (as in Arizona) the legislature makes clear has not been granted "protected status."

• Official state grape: the Cynthiana grape (vitis aestivalis), which is also officially not protected.

• Official state nut: the pecan, which, just in case it is ever endangered, is also not protected.

Ark. Code §§ 1-4-1 through 1-4-130.

North Carolina Would Like to Opt Out of the Supremacy Clause

It has tried this before, as you may recall, and that didn't really turn out so well. That time was also much more of a serious group effort, whereas at least so far this is just a resolution sponsored by a handful of state legislators. So I think it is fair to say that this is not likely to succeed, either. 

The resolution—which, no kidding, was introduced on April 1 but passed a first reading on April 2 and is not joke legislation—asserts that the U.S. Constitution "does not prohibit states or their subsidiaries from making laws respecting an establishment of religion," and that the state assembly "does not recognize federal court rulings which prohibit [state entities] from making laws respecting an establishment of religion." This was filed at the request of commissioners in Rowan County, who are currently defendants in a lawsuit brought by the ACLU on behalf of citizens who object to Christian prayers being part of official meetings. The resolution notes that the First Amendment only applies to "Congress"—which is true—and that the states can therefore ignore the Establishment Clause—which is not.

This part is not lunacy, because it actually wasn't until the 20th century that the U.S. Supreme Court held that the Bill of Rights (most of it) applies to the states. Although it doesn't apply directly, the Court has held that the 14th Amendment "incorporates" most of it through the Due Process Clause. See Everson v. Board of Education of Ewing, 330 U.S. 1 (1947) (holding 14th Amendment incorporated the First Amendment's Establishment Clause). Everson was a 5-4 decision, so obviously people can disagree about that, but that's what the Court has held.

And this is where the resolution (which fails to mention the 14th Amendment) goes off the rails, because it declares that "each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion," and that if there are pesky federal court rulings to the contrary, North Carolina "does not recognize" them.

Problem is, they recognize North Carolina.

Unless we are repealing the Supremacy Clause:

This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

which looks like a problem, and also ignoring Marbury v. Madison, which the Supreme Court still seems to think is important:

On the other hand, surely a legislator wouldn't spend time on legislation he didn't expect to go anywhere. "I didn't expect it to go anywhere," Rep. Harry Warren told reporters, saying it was more of a show of support for Rowan County. He noted that it had been referred to the Rules Committee, which he clearly assumed would quietly dispose of the problem for him. "Quite often bills go there and never come out," he said.

Still, sometimes they claw their way out of the grave, like HB 819, North Carolina's effort to pass a law declaring that the sea level will not rise faster than the historical rate (whether it actually does or not). A somewhat-less-goofy version of that bill actually passed, but I'm guessing this one will be buried a lot deeper.