Archive for August, 2008

Warning: Puppet Possession Is A Crime During RNC

August 31, 2008

The search warrant from one of yesterday’s raids involving would-be Republican National Convention disrupters should cause all of us pause.  The warrant identifies “components” that could be used to make Molotov cocktails and “improvised explosive devices” as among the suspected contraband.  OK, that’s troublesome.

But the warrant also lists maps of downtown St. Paul, spray paint, nails and screws, police scanners, computer printers, and, um “hollowed out puppets,” just to name a few.  And it goes on to state that “the possession of the property described above constitutes a crime,” that the property “was used as a means of committing a crime,” that it “constitutes evidence which shows a crime has been committed,” and that it is “in possession of a person with intent to used [sic] such property as a means of committing a crime.”

How is possessing a hollowed-out puppet, even one kept next to components that go into the common Molotov cocktail, evidence that a crime has been committed?  Under this line of reasoning, possessing a gun in your home could very well constitute a crime, and I doubt many of the conventioneers in town would stand for that.  Rounding up guns in people’s houses on the theory that a crime might be committed is something that a, um, puppet dictator would do.

News reports state that local police ingeniously infiltrated the alleged anarchists’ hangout and gained valuable insights into their disturbing plans to disrupt the Republicans’ First Amendment right to assemble.  Good job!  But why did the police not wait for one of the anarchists to step outside their hangout, hollowed-out puppet and Molotov cocktail in hand, before seizing the persons and property?  Taking affirmative steps toward RNC disruption would, it seems to me, constitute a crime.

So be careful this week.  Keep the lawnmower gasoline away from those old pickle jars in the garage.  And any hollowed-out puppets in the basement should promptly be filled with sand.


St. Paul Put To The (Pro)Test

August 30, 2008

The Republican National Convention is upon us, and here comes word that St. Paul police recovered slingshots, devices to disable buses, and urine by the gallon when raiding the so-called RNC Welcoming Committee’s hangout yesterday and today.  How disturbing.  To the degree that these folks have come to (or live in) our city to commit crimes, the effort should be condemned.  What a travesty for those of us who value free speech and free assembly.  What a shame that a few can ruin things for all of us.

However, lost amid all this are the reasons why so many people are so upset.  A war founded on faulty intelligence.  Failures to distinguish between Iraq and Afghanistan.  Guantanamo. Waterboarding.  Warrantless wiretapping.  No-bid contracts to rebuild the mess.  Not to mention a red herring called “drill here, drill now,” Swift Boating about Obama’s religious faith, and plummeting home values.  It could — it should — drive a sane person to the streets.

But thanks to the folks who have bred fears about criminal intent, downtown St. Paul resembles what used be East Berlin.  Have you been downtown?  I was, around 7:30 this morning, during an extended morning run.  I must admit, I was unprepared for what I saw.  Concrete barricades topped by chain-link fences that can accommodate razor wire on the top, darkened stoplights, a “FOX NEWS” sign that is a story tall, police officers at every corner, a camera on every streetlight.

This is St. Paul?  This is America?  What meaningful means do we normal folks have to invoke our First Amendment right to get the attention of the GOP power brokers who have a role in righting America?  For the next several days, none.

Most disturbing was what I saw at the Dorothy Day center, the large homeless shelter kitty-corner from the Xcel Energy Center.  They’ve wrapped the fences with a dark black fabric that almost entirely obscures the forms of the homeless human beings on the other side of the fence, human beings who inconveniently are just yards from the Best Politics That Money Can Buy.

I suppose it was done in the name of privacy for our neighbors who happen to have no homes.  How unfortunate it would be if a TV camera captured one of their images and beamed it into somebody’s living room.  How unfortunate for the unfortunate.  How unfortunate for St. Paul.  How unfortunate for the First Amendment.

Anonymous E-mails Go On Trial

August 28, 2008

Got a beef about your kid’s soccer program?  An anonymous e-mail might be an option.  Or maybe not, judging by a lawsuit working its way through Minnesota courts.

On Tuesday, the Minnesota Court of Appeals ordered a new trial in a case in which a soccer mom was accused of sending e-mails — some anonymous, some not — critical of the Minnesota Youth Soccer Association’s investigation into whether photographs taken of 11-year-old girls were improper.  The mom signed her name to an e-mail suggesting that the photographer was involved in “deviant actions” and that the soccer assocation was, um, dropping the ball.  But she did not admit to sending anonymous e-mails, under the name “Blah Blah,” that accused the photographer of pedophelia and also criticized the soccer association’s actions.

The association, its president, and its “Risk Management Coordinator” then sued the soccer mom for defamation, alleging that their reputations had been harmed by false e-mails.   A Hennepin County judge lumped together all the e-mails anonymous and otherwise, ruled that the e-mails were defamatory, and gave the jury the sole job of determining how much damage had been done.  Verdict:  $425,000 worth.

Problem was, the jury never got a chance to decide whether the soccer mom was in fact Blah Blah.  In addition, the judge told the jurors that they could consider all the e-mails when computing damages, even those from Blah Blah.  For those reasons, on Tuesday the appeals court ordered a new trial.

It was a logical result, but hidden in the opinion is a conclusion that gave me pause.  According to the appeals court, all e-mails at issue, even old ones that were not originally part of the case and arguably were barred by the statute of limitations, were properly made part of the evidence because they constituted an “ongoing enterprise” and a “continuing violation” of defamation.  For support, the appeals court cited cases involving nuisance, trespass, discriminatory acts, and possession of stolen property.  The court cited no case involving a “continuing violation” of defamation based on old communications, e-mails or otherwise.

That appears to be because there was no such case.  Until now.

Minnesota State Fair and RNC Free Speech

August 24, 2008

“The First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.”

Those were the exact words of the United States Supreme Court in Heffron v. International Society for Krishna Consciousness, Inc., a 1981 case involving, of all things, the Hare Krishnas’ rights to free speech (or lack thereof) at our very own Minnesota State Fair.  And those were the exact words that federal judge Joan Ericksen used last month when she ruled that the City of St. Paul’s restrictions on protesters at the Republican National Convention are constitutionally permissible.  (Star Tribune link to the decision here.)

The Heffron case is part of a thick stack of case law affirming the right of government to reasonably regulate the time, place, and manner of free expression.  Such cases have arisen around the country, but few have been more colorful than the Minnesota State Fair case.  The dispute arose days before the 1977 fair when the Hare Krishnas asserted their right to distribute literature and seek donations without being restricted to rented booths.   Remarkably, they won.  But a year later, a different Ramsey County judge dealt the Krishnas a loss.  And in 1981, the United States Supreme Court issued the Heffron decision that has effectively kept everyone — from religious groups to food-processor salesmen — tethered to booths at fairs and in airports nationwide.  (MSP’s booth rule is here.)

The decision has been cited around the country when free speech rights conflict with society’s interest in law and order and individuals’ intersets in being left alone.  The most impassioned disputes have involved requirements that anti-abortion advocates stay away from women immediately outside abortion clinics.

And now, the State Fair case has come home again, as part of a ruling that St. Paul’s plans for the RNC protesters are reasonable.  Stay tuned.

Be Patient and Read the Fine Print

August 23, 2008

Invasion of privacy cases rarely succeed in Minnesota.  A decision from the state Court of Appeals this week underscored that fact.

The case, Anderson v. Mayo Clinic, involved a patient who sued Minnesota’s most-famous medical facility as well as a television station owned by Fargo-based Forum Communications.  Apparently, Mayo videotaped the patient’s surgical procedure and the videotape aired on the news.  Perhaps understandably, Ms. Anderson sued for invasion of privacy.  Problem was, she had signed a one-page form giving the clinic permission to release “photographs, audiotapes, and/or films” of her procedure to any news outlet so Mayo could “disseminate health information to the general public.”

A trial court in Moorhead let the case go forward, but on Tuesday the Court of Appeals ordered its dismissal and rejected the idea that Mayo acted with any fraud.  Wrote the court:  “Consent is an absolute defense to an invasion-of-privacy claim.”

Invasion of privacy is something easy to feel but nearly impossible to sue over.  This is particularly true in Minnesota, where for decades the Supreme Court refused to even recognize invasion of privacy as a cause of action.  Eventually, in 1998, after photos of two young women showering together during their Mexico vacation somehow made their way from a Wal-Mart photo lab into the northwestern Minnesota populace, the Minnesota Supreme Court made Minnesota the 48th state to recognize the cause of action.  (Case here.)

So read the fine print.  And get a digital camera.

Dog Days of Defamation

August 23, 2008

August has been a busy month for Minnesota defamation rulings.  Must be the heat.

The first case was filed by Adam Steele, an outspoken newspaper editor in Bemidji, who sued Google for $50 billion — yes, billion, with a B — after Google made available a Minnesota Law & Politics article titled “All the News That’s Not Fit to Print” that Steele claims defamed him.  The Minnesota Court of Appeals threw out the suit by applying the federal Communication Decency Act, which affords enormous protections for websites where defamatory material might end up.  The CDA is a tremendously important tool for all online communicators, including bloggers who permit unmoderated comments to be posted.

The second case arose in International Falls after an employee at Boise Cascade claimed that he had been called a “lazy, fat f–cker” at work and that his employer was responsible for various false statements being spread.  A jury awarded him $28,200, but the Minnesota Court of Appeals reversed the verdict on grounds that employers are legally entitled (in legalese, “privileged”) to make statements about employees when investigating wrongdoing.   The case, in some ways, is nothing unusual.  Appeals courts are not bashful about finding ways to rein in jury awards in defamation cases.

The third case, while not a defamation case per se, involved allegedly false campaign material.  Suit was broght by Stev Stegner, the current mayor of Forest Lake.  It was a bumpy election win for Mr. Stenger, whom foes accused of being involved with Muslim terrorists and planning to subject the municipal water supply to attack.  Stenger filed a complaint alleging campaign wrongdoing.  Among the evidence were purported “government surveillance photos” of Stegner at the Holy Land Cafe on Central Avenue in Minneapolis.  (Fantastic hummus, by the way.)   The court ruled that although the statements “may provide grounds for a defamation claim,” they did not involve “campaign material” and were “unfortunately . . . part of political discourse.”

Part of the discourse.  Free speech wins again.