Law

What’s in a name? Ask ICANN and Twitter.

What do Martin Luther King, Jr., Glenn Beck and Chris Donovan have in common? Each of them have websites using their names in a critical manner.

Recently, I read about the website entitled Glenn Beck Raped and Murdered a Young Girl in 1990 dot com. In early September, Matthew A. Kaplan and Al J. Daniels, Jr., attorneys for Mercury Radio Arts, Inc and Glenn Beck submitted Uniform Domain-Name Dispute-Resolution Policy (UDRP) complaint against the domain.

The Citizen Media Law Project has an excellent article about the complaint, including a link to the response to the complaint. Not only does the response explain why Glenn Beck’s complaint is without merit, it is a good background on UDRP complaints, free speech issues and even a good explanation of Internet Memes. As a side note, Mr. Beck lives in New Canaan, CT.

Also here in Connecticut, the Connecticut GOP has set up a site criticizing the speaker of the house, Chris Donovan as well as around thirty other State Legislators. It would seem as if any argument against these websites should not include a UDRP complaint, as illustrated by the issues above. Yet there are other issues.

Not only did the CT GOP set up websites, they also set up Twitter accounts. In Twitters’ Terms of Service they reserve the right, without assuming any obligation to do so, to terminate or reclaim users that do not adhere to Twitter’s rules. These rules include: “You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others”

Some have argued that these sites are intended to be parody sites and as such are protected. Others have noted that unlike Glenn Beck Raped and Murdered a Young Girl in 1990 dot com, these fail the “Moron in a Hurry” test. Put briefly, even a moron in a hurry is unlikely to believe that a site entitled “Glenn Beck Raped and Murdered a Young Girl in 1990” is likely to be a site run by Glenn Beck, but the same moron in a hurry, might believe that “Meet Rep Donovan” is actually a site run by and supportive of Rep. Donovan. I’ve actually spoken with some savvy internet users who were initially confused about the site. It is unclear if Twitter is likely to take any action against the CT GOP.

The broader complaint is that it the site really isn’t any good. The Glenn Beck site, besides making effective use of an Internet Meme, also provides a striking criticism of his style. The CT GOP sites criticizing the Democratic Legislators really have very little to say, which reflects a broader criticism of the CT GOP as a whole.

So, where does Martin Luther King, Jr. fit into all of this? A white supremacist organization hosts Martin Luther King dot org. It is often brought up in discussions about media literacy. Whatever happens with Glenn Beck and Rep. Donovan, we need better media literacy and this should be more of a focus in our schools and beyond. Hopefully, this will have helped various readers understand a little better some of the media literacy issues we face here in Connecticut.

Legal Issues

I am not a lawyer, and I don’t particularly think of my blog as a law-blog, however, I do cover legal issues from time to time. People interested in my posts about legal issues are encouraged to read the law section of Orient Lodge, or subscribe to the RSS feed of the law section.

With that, there are several interesting issues that have recently come up that I would like to highlight. First, the Valley Independent Sentinel has an article about user comments triggering a Derby lawsuit. According to the article, Renee Luneau is suing Ken Hughes and Christopher Bigelow alleging that they “failed to make a reasonable and proper safeguards (sic) to prevent defamatory comments from being published on website known as ctlocalpolitics.net”. The article goes into a little detail about Section 230 of the Communications Decency Act which seems like a pretty solid defense in this case. One person commented about how the recent lawsuit to get Google to reveal who has written anonymous blog posts may change this, but I think that is mixing up issues and I went into details about why in a comment, which I encourage you to stop by the Valley Independent Sentinel to read the comments.

While the case appears to have no merit, Ken Hughes and Christopher Bigelow are likely to incur legal fees defending themselves. This leads me to the next issue. On Tuesday, Pam Spaulding put up an important blog post entitled Hanging citizen journalists out to dry: shield-law amendment excludes unpaid bloggers. The fact that bloggers and citizen journalists may not get paid is no excuse for excluding them from laws that protect other journalists. As we have seen, unpaid bloggers can run into the same legal issues and traditional journalists and need similar protection.

Bloomberg goes into another aspect of the protections that citizen journalists and bloggers need to consider, media liability insurance. This is another expense for serious bloggers and citizen journalists, which can be particularly expensive for unpaid bloggers. However, not having this sort of coverage could be even more expensive.

In other legal news, a new book out about the Cheshire triple murder is stirring up all kinds of issues. The New Haven Register quotes a defense attorney describing it as "scurrilous trash". The article notes that the lawyers “served notice they intend to seek an arrest warrant against Komisarjevsky for contempt of court for violating the court-imposed gag order -- if McDonald’s ‘public statements can be relied upon.’” People in the comments section have noted that to a person facing the death penalty, being found in contempt of court is unlikely to have much of an affect.

Meanwhile, the U.S. Department of Justice has just upgraded their website. You can follow the DOJ on Facebook, Twitter, MySpace and YouTube, as well as sign up for all kinds of different messages from the DOJ. I signed up and am getting a lot of messages from the FBI right now. I’ll probably cut back on some of the feeds I’ve subscribed to. Otherwise, it could be overwhelming.

In the pipeline, I received another brief on the Doninger case, which I expect will be heard in the Second Circuit before too long. In addition, I’m keeping my eyes open for developments in the Citizen’s Election Program case. That provides a brief update on some of the legal issues I’m currently watching. I do wish more bloggers would cover legal issues, and I think the DOJ updates could be a very valuable tool for bloggers and citizen journalists.

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Exploring Different Points of View

Yesterday, I stumbled across a blog post entitled Religious Persecution in Modern Day America?. The post wrote about a

“10 year old home-schooled girl named Amanda Kurowski who was ordered by the New Hampshire court to attend regular school because of her "vigorous Christian faith." According to a recent WorldNetDaily report, a court official said Amanda "appeared to reflect her mother's ridigidity [sic] on questions of faith"

I added a comment to the blog post saying:

While I agree with your concerns about the specific case you mention, you need to be careful about confusing between an errant judge in the State of New Hampshire and 'the New Hampshire Court' or 'America'.

You must remember that the Judge in the case is a fallen person, just like you are I. Every day across our country, judges make good decisions and judges make bad decisions. I've written about several cases where judges have made bad decisions and the process of having these decisions over turned.

If the case is as clear cut as you present, I hope that Amanda's case is over turned, but I also hope that you and others do not disparage the New Hampshire or the United States judicial system because they are forced to rely on human judges.

I was surprised at the strident response I got from the blogger in which she responded to my comment on her blog as well as posted four comments on my Facebook page. She says things like

You accused me of something I did not do---I am not disparaging or anything like that…

Here are several links of the same news when they specifically said it's the Court of New Hampshire and the judge. Those are not my words. So also please be careful about making accusations against me. I DID NOT DISPARAGE.

One link was to One News Now, a division of the American Family News Network, New Hampshire Court orders Christian homeschooled girl to attend public school, that article provides a little additional context with

The case involves divorced couple Martin Kurowski and Brenda Voydatch and their 10-year-old daughter, Amanda. The couple split in 1999 when they were living in Massachusetts, and the proceedings moved to New Hampshire after Voydatch relocated to that state with her daughter in 2002.

Although Voydatch has primary custody over Amanda, both parents agreed to a parenting plan that included joint decision-making responsibility. A court-appointed guardian served as a mediator.

The article includes the famous quote about the young girl, ” She appeard [sic] to reflect her mother's rigidity on questions of faith”. However, the article does include the important preamble that has been lost in much of the coverage about the case, “According to the guardian ad litem's further report and testimony, the counselor found Amanda to lack some youthful characteristics.

Based on all of this, I responded to the blog post with the following comment:

binkee Perhaps I did misinterpret your post. However, you're title "RELIGIOUS PERSECUTION IN MODERN DAY AMERICA?" does sound like it is a commentary on "modern day America" as opposed to the decision of a single person in the court systems of New Hampshire.

In addition, it sounds as if you are misinterpreting my comment. When I said, "you need to be careful about confusing between an errant judge in the State of New Hampshire and 'the New Hampshire Court' or 'America'", I did not say that you were in fact making that confusion, but instead warning against the potential for that confusion.

Beyond that, I would encourage you to try and get broader and more complete information about the decision. You cite a few different sources of questionable objectivity, each referring back to a specific advocacy organization.

In particular, the focus of the story seems to take a quote severely out of context. Specifically, you and other sources quote the second half of a quote from a court appointed 'Marital Master' whose job was to determine an issue between divorced parents about where the child should be educated.

The quote about how Amanda "appeared to reflect her mother's ridigidity on questions of faith" omits the important first part of the comment: "According to the guardian ad litem's further report and testimony, the counselor found Amanda to lack some youthful characteristics" The rigidity on questions of faith of a ten year old is sited as one example of where the child lacked "some youthful characteristics".

While we all hope that our children will reflect our own beliefs, and important part of growing up is differentiating from ones parents. This can be complicated in the situation a broken family. So, it is not unreasonable for a court appointed official to note where normal childhood development appears impeded in a broken family dispute before the court.

Based on what I have done for further reading, the real issue is not about the religious beliefs or the whether or not the child was receiving all the course material she would receive at a public school. The real issue sounds like it is concerning the social and emotional development of the child which the father believes is not being properly met and the mother believes is being properly met.

I respond this way for a couple different reasons. First, I am concerned when people do not question the reports that they read from some news sources without questioning them, or attempting to get a fuller context. (Again, I am not saying that you do this, but it came across that way in your blog post).

This is especially of concern to me since I try to attend court hearings to get as much first hand information before I blog about this and I have often seen people in blogs, at advocacy organizations, and traditional media organizations present views about cases that bear very little correlation to what has really gone on in the courts.

Looking at this from the press release from the Alliance Defense Fund which was launched by Dr. James Dobson and others, which has been repeated in the World Net News, founded by Rush Limbaugh collaborator Joseph Farah, and American Family News Network’s One News Now, this may well be religious persecution in modern day America.

However, New Hampshire Public Radio presents a more balanced view of the case. It covers many of the issues that the Alliance Defense Fund talks about but then goes on to get the father’s side. In Judge Orders Homeschooled Girl to School, they report

Mr. Kurowski [the child’s father] objects, and his lawyer, Ms. Donovan, says it’s not about religion.

“He respects his child’s faith – he’s been to the church, he supports her in that,” Donovan explains. “We’re interested in pursuing the best interests of this child, and my client believes her best interests are served overall by attending public school.”

The article also includes this quote about the order:

The judge’s order goes on to say, “Amanda’s vigorous defense of her religious beliefs… suggests strongly that she has not had the opportunity to seriously consider any other point of view.”

Perhaps this gets to the real issue. Do we want people to seriously consider different points of view? It seems as if the father wants his child to be exposed to different points of view. I want the same things for my children, and I wish more news outlets and blogs would also more seriously explore different points of view.

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Barack Obama, Avery Doninger and the Douchebags at the Central Office

The recent issues around President Obama’s speech to students across the United States came shortly after I received the Amicus brief filed by the Student Press Law Center on the appeal of the U.S. District Court of Connecticut ruling in the Doninger v. Niehoff case and it seems as if the two may be somehow related.

Just imagine, if you will, some student writing in a blog at home one evening earlier this week something to the effect, “Thanks to the douchebags at the Central Office, we will not get to listen to President Obama address students across our country.” To keep this politically neutral, it could just as well say, “we will have to listen to President Obama address students”. Let’s imagine that the writer went on to talk about her mother being upset and contacting the administration which got them really pissed off, and suggesting that other students encourage their parents to similarly contact the school administration.

Would it be a good thing if a few weeks from now, the administration found such a blog post and punished the student for writing it on her own time at home? I submit that not only would it not be a good thing, but it would strike at the fundamental freedoms of our country for it seems to abridge the freedom of speech and the right of the people to petition the Government for a redress of grievances.

Yet this is exactly what the Doninger case is all about. True, Ms. Doninger was writing about a different event, a music festival being organized by the students, but the principle is the same.

The SPLC starts off by noting that “in an era when mainstream journalism has expanded into blogs and other new media, the ruling below poses a serious threat to the First Amendment rights of student journalists throughout this Circuit and the nation.”

They go on to say, “The court below framed a controlling question of law: “Whether a school may discipline a student for inappropriate comments made off campus on a blog… The SPLC urges reversal of the lower court’s decision, which held that the First Amendment did not protect Ms. Doninger from being punished for posting a blog entry from her home that used a colloquial term for ‘jerk’ to criticize a decision made by her school’s administrators.”

Key points that the SPLC brought up included that “The speech at issue occurred entirely outside of school property, from a computer in the student’s home. It was conveyed through a medium (a blog) that could only be ready by individuals who deliberately sought access by entering specific search terms into a computer. And the student’s words themselves were quintessential political speech, criticizing the decision of school officials in contemporary, colloquial terms and inviting others to petition for redress if they, too, disagreed with the decision.”

“The District Court’s ruling would move this Circuit toward a standard under which anything posted online is regarded as having been distributed on campus, based on its potential (even if unrealized) to be read or acted upon on campus. This is a drastic and dangerous move that the Court should resist. Because it is established that schools may prohibit the on-campus distribution of materials their officials have not reviewed, the District Court’s standard would permit a principal to enforce a rule against writing anything online about the school unless an administrator has pre-approved it.”

We may not like the words used by students to express their opinions, we might not even agree with the opinions, but there are important lessons to be learned. How much does the Government, in the form of school administrations and District Courts honor the importance of freedom of speech and the right of the people to petition the Government for a redress of grievances? To me, these are fundamental to the sound functioning of our government, even when the level of civility is less that I would like and we risk grave damage to our democracy by punishing people for speaking openly and candidly about their opinions about school administrations and the Government.

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Hopeless Candidates

I have been thinking a lot about Judge Underhill's decision on Thursday where he ruled that the Citizens' Election Program was unconstitutional. Part his reasoning was "that the CEP is not narrowly tailored to achieving the state’s compelling interests because the state has failed to demonstrate how the public fisc is actually protected by imposing stringent qualifying criteria on minor party candidates, while permitting equally hopeless major party candidates to qualify under significantly less onerous qualifying criteria, in vastly greater numbers and at windfall funding levels."

The idea of "hopeless candidacies" particularly jumped out at me. What is the hope of candidates running for office? What is the state's interest in candidates running for office? It seems as if Judge Underhill makes a common mistake. He talks about hopelessness in terms of "electoral success". Clearly, it is in the states interest to promote competition between those most likely to succeed in terms of their probability of electoral success. However, I believe that this is looking at the electoral process way too narrowly.

I know many candidates, my wife included, who have run for state office and not been elected; who have had their campaigns labeled hopeless. However, there is a much greater hope of many candidates than simply getting elected. Candidates hope to promote involvement in the electoral process and discussions about the policies that effect the state. My wife ran as a Democrat in a district that has not elected a Democrat in nearly a century and where the Democrats had not even fielded a candidate in several election cycles. I believe that by Judge Underhill's criteria, such a campaign would have been labeled hopeless. While my wife's candidacy did not achieve electoral success, it was extremely successful in promoting involvement in the electoral process and discussions about the policies that effect the state.

I have often argued that the Citizens' Election Program should be best compared to our education budgets. Whether you are talking about fifteen million dollars during election cycles with just state legislators or fifty million dollars during elections cycles with constitutional officers, this is a small amount to pay for the education of voters on the issues, especially when compared to the education budgets of the towns and cities of Connecticut.

Yet there is a common concern between education in our public schools and education in our public elections. The state does have a keen interest in making sure that the educators, whether they be school teachers, or candidates, are most likely to succeed in their tasks.

While it may seem unfair, major party candidates, no matter how likely they are to get elected have a greater probability of promoting involvement in the electoral process and discussions about the policies that effect the state. Minor party candidates do not have that greater probability and need to be able to demonstrate that they can have an effect on electoral involvement, independent of their probability of electoral success. The mechanisms to assess this ability, based on percentage of votes for candidates of the minor party in the previous election, or the number of signatures gathered seems like a highly reasonable method for the state to determine the likely success of the candidates in promoting involvement in the electoral process and discussions about the policies that effect the state.

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