April 14th, 2012

A real warning label…

Sometimes people make fun of wacky warning labels that they see, like the warning on a Batman costume that said “Cape does not enable user to fly,”

But sometimes, they are well-written and real, and need to be appreciated. They aren’t written for the benefit of lawyers and courts and fear of an obscure suit, but for the benefits of participants in an event. Like this for this Monday’s Boston Marathon, where temperatures are expected to soar into the 80s, about 30 degrees too warm:

Advisory From Boston Marathon Medical Directors to Entrants in the 2012 Boston Marathon

Saturday, April 14, 2012 as of 11:30 a.m.

We are looking closely at the current weather situation which is projected to be quite warm. The B.A.A. is closely monitoring this situation for for race day decisions. If the temperatures reach certain levels, running will put even the most fit athletes at risk for heat injury.

We are now making the recommendation that if you are not highly fit or if you have any underlying medical conditions (for example-cardiac disease, pulmonary disease or any of a number of medical problems), you should NOT run this race.

Inexperienced marathoners should not run.

Those who have only trained in a cooler climate and who may not be acclimated (for at least the last 10 days) to warm weather running conditions should also consider not running.

For those very fit athletes who decide to run, you should take significant precautions:

Run at a slower pace and maintain hydration.

You should frequently take breaks by walking instead of running.

This will not be a day to run a personal best. If you choose to run, run safely above all else. Speed can kill.

Heat stroke is a serious issue and is related to intensity of running as well as the heat and humidity.

Good hydration is important but over hydration can also be a problem. Thirst is an indication that you are under-hydrated. You should maintain hydration levels slightly greater than your hydration program in your training, but not excessively so.

Even the fittest athletes, that take precautions can still suffer serious heat illness. Recognizing symptoms of heat illness in yourself and others is critical , this may include headaches, dizziness, confusion, fatigue, nausea and vomiting. If you experience any of these, stop running immediately and if symptoms persist seek medical attention.

Boston Marathon Co-Medical Directors,
Dr. Pierre d’Hemecourt and Dr. Sophia Dyer

April 9th, 2012

A Cow Walks Into the Road…(Update x2)

I don’t deal too often with animal law at this joint, be we make an exception today. Why? Because an intermediate appellate court has written that it doesn’t like the decision it was forced to render and asked the state’s top court for a reversal. And when an appellate court asks to have itself reversed, I find that kinda interesting.

Facts: A cow wanders into the road. The cow causes an accident. Can the cow’s owner be successfully sued for negligently allowing said cow to wander?

Answer: No, there is no liability. Why? Because New York’s law of animals is such that there is no cause of action for negligence. The only actions that can successfully be brought are when an animal has a known vicious propensity, and if the animal has that, then there is strict liability regardless of whether the owner did anything wrong.

But a unanimous Appellate Division (Third Department) said that rule sucks in Hastings v. Suave. OK, maybe “sucks” isn’t exactly what the court wrote. But the vicious propensity rule generally comes up with household pets, notably dogs, and not farm animals, and the court doesn’t think it should apply in the farm animal setting. Acknowledging that they had no choice but to dismiss the case under current New York law, Justice Michael Kavanagh, wrote for the court that “we must note our discomfort with this rule of law as it applies to these facts — and with this result.”

Differentiating the case from those regarding household pets, Justice Kavanagh went on to say:

The need to maintain control over such a large animal is obvious, and the risk that exists if it is allowed to roam unattended onto a public street is self-evident and not created because the animal has a vicious or abnormal propensity. Here, plaintiff was injured not because the cow was vicious or abnormal, but because defendants allegedly failed to keep it confined on farm property and,instead, allowed it to wander unattended onto the adjacent highway in the middle of the night, causing this accident.The existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendants’ legal responsibility for what happened is totally dependent upon it. For this reason, we believe in this limited circumstance, traditional rules of negligence should apply to determine the legal responsibility of the animal’s owner for damages it may have caused. However, it is not for this Court to alter this rule and, while it is in place, we are obligated to enforce it.

And that, my friends, is what is known as an invitation to the plaintiff to move for leave to appeal to the Court of Appeals. Given the unassailable logic of the court, I think the chances of a change in the law are pretty good.

Update: Leave to appeal to the Court of Appeals was granted June 6, 2012. Oral argument is scheduled for March 21, 2013.

Update #2: Reversed, May 2, 2013. The Court of Appeals breaks new ground in holding that negligence by an owner can be the basis of liability for farm animals, and says that it could apply the same rules to household pets in the future in an appropriate case:

To apply the rule of Bard—that “when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule (6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463)—in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.

We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in *126 Agriculture and Markets Law § 108(7)—is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.

April 2nd, 2012

Section 230 April Fool’s Hoax – A Deconstruction

Is it April 2nd already?

Welcome to April 2nd, and that means deconstructing yesterday’s web hoax that dealt with a phony bill by Senator Joe Lieberman that would effectively ban anonymous commentary on the Internet. The bill does this by stripping away the immunity that content providers currently enjoy from Section 230 of the Communications Decency Act. That would expose bloggers, forum owners and a panoply of others to potential liability. It played out on a dozen blogs that were all in on the joke.

How do I know it was just a joke? Do you really have to ask? If you’re just checking in to this blog for the first time you will find out by looking at this posting of mine from yesterday that this is the fifth year in a row I’ve done one of these. But since I’m now known (in the legal blogosphere) for running an annual gag, I created a new blog in February just for this purpose, to mask my identity: McIntyre v. Ohio. Prior to yesterday, the readership of that blog had been six Bulgarian spam bots and that guy Ken from Popehat. Thanks, Ken.

The new blog is dedicated to anonymous free speech, and named for the leading Supreme Court case on the subject. The idea for it popped into my brain late last year when Senator Lieberman asked Twitter to kill the Taliban feed. Obviously, the government can’t just shoot down someone’s speech rights, no matter how vile, because of that whole First Amendment thingie. This country was built on the marketplace of ideas prevailing, so the answer to political speech with which we disagree has always been “more speech.”

So the April Fool’s idea was that Lieberman would circumvent the First Amendment issue by simply stripping away the immunity that web hosts enjoy, thereby scaring the bejesus out of everyone in the private sector that is in any way involved with a web forum, and forcing people to kill controversial speech out of fear of litigation. It was called the Accountability for Free Discussion Act, or AFD, which is also the acronym for yesterday’s fun fest.

This was the premise: If a whole bunch of bloggers started talking about a major bill that would completely alter the Internet in this country, would any major media company publish the story despite it being unconfirmed and it being revealed on April Fool’s Day? The great problem, news-wise, of the digital age is the need to get to a story first, or at least fast. All too often that means taking shortcuts when first is defined in hours, or minutes. The old journalism adage is, if your mother tells you she loves you, check it out. But that sometimes falls by the wayside.

Lieberman was a perfect (unwitting) straight man for this because, as a pragmatic centrist, he is disliked by passionate ideologues on both sides of the political aisle. That means that there are a lot people who want a negative story about him to be true. People like seeing stories that confirm their own feelings and they are often willing to accept such stories without additional confirmation. (Political commercials feed on this to energize political bases.) One sample comment from someone suspending belief in the hope it was true came out of Daily Kos:

You know, if it was anyone else I’d think it was an April Fool’s joke.
But Lieberman is such a weasel, it has to be true.

There were other reasons for Lieberman as well. The Senator is retiring, making him a good target since there is no political fallout if constituents should actually believe it but don’t realize it was a prank. He is also the chairman of the committee on Homeland Security and can voice such a bill in an anti-terrorism context, with accountability being used as a means to disrupt anonymous communications in various forums. But perhaps the best reason to use Lieberman is that he wore a baseball cap to President Obama’s inauguration. Really Senator, what the hell were you thinking?

The major complicating factor in all this was that April Fool’s Day fell on a Sunday. Sunday sucks for news and blogs but we can’t change the calendar.

We tried to use that ugly fact to our best advantage. I figured that if we struck at dinnertime, under the assumption that all of the other April Fool’s gags had played themselves out by that point, we might have a better shot. Also, it would be far less likely for anyone from Lieberman’s office to quickly put out a denial. (If he did put out a denial, we were going to claim victory in that the bill had been withdrawn.) Essentially, the only people still involved with April Fool’s by this time were two groups: kids those telling the same joke for the 30th time because their parents laughed the first time to humor the child, and other kids trying to pawn off the last of the bug-flavored jelly beans.

So we slipped the story out at dinnertime on that little, bitty blog where the plan was for it to be promptly “found” by a “real” blog, Daily Kos, and then quickly spread. Most of the co-conspirator bloggers that you see below had actually written their bits a few days in advance. We only had a couple hours to create a viral political story from whole cloth. Did we get major media? No. And kudos to those that saw it but didn’t bite.

But were other folks taken in? You bet. And not just anyone, but the super cynical types that read political blogs and don’t generally believe much of anything — unless it confirms their worst perceptions about others. Just read the comments at Patterico (politically right) and Daily Kos (politically left) if you don’t believe me.

One big source of inbound traffic was a popular forum called Hacker News. I felt bad about that because, well, those folks are a lot smarter than us and know how to break our digital windows. (Please. Don’t. Keep reading.)

But before any of you get angry at me or my co-conspirators listed below, remember this: Each of the authors participated because we feel strongly about protecting the First Amendment. (I’ve twice defended defamation claims, one in the past and one currently.) So while you may have been fooled for a few hours, or even angered, you should know that those who did the fooling are your teammates in vigilance against those that wish to encroach on our rights to speak freely. Most of the jokesters are lawyers. We get it.

There are civil libertarians on both sides of the aisle:

Joe Lieberman v. the Internet: It’s not over. (Adam B. @ Daily Kos)

End of Section 230 Protection for Bloggers? (Patterico @ Patterico’s Pontifications)

Thanks To Senator Lieberman, You Guys Are Going To Get Me Sued (Ken @ Popehat)

Dear Commenters: We Can’t Protect You Anymore (Mystal @ Above the Law)

Anti-terrorism law threatens First amendment? (Frank @ Point of Law)

Section 230 Amendment strips websites of immunity from anonymous commenters (Randazza @ Legal Satyricon)

A Free Speech Disaster — The End of Anonymous Commenting? (Cuban @ The Cuban Revolution)

Lieberman to Internet: You’re Fungus (Greenfield @ Simple Justice)

Anonymous Commenting Legislation By Joe Lieberman? (Tannebaum @ My Law License)

Blind-Squirrel Lieberman Finds Acorn (Bennett @ Defending People)

A One-Two-Punch Against Free Speech (Draughn @ Windy Pundit)

The Community You Create (Zubon @ Kill Ten Rats)

First Amendment Malpractice (Barovick at NY Medical Malpractice Law)

Will Free Speech in America Meet Its Match In Lieberman? (Wise @ Wise Law Blog)

There are some who may wonder why I go to all the bother of doing this each year. You will find the answer to that question in the same place where I explained why I not only dressed up in a turkey suit at Thanksgiving time, but actually published the pictures.

Finally, I’ve now run gags regarding the Supreme Court, the White House, and now Congress. I’m officially retired from the April Fool’s dodge. For real. My wife told me if I do this again she will kill me. Then divorce me.

Besides, when you think about it, what else is there? I mean, I know the U.N. is just down the street from my office, but how could that possibly be any fun?

No clients were injured in the creation, publication and execution of this hoax.

April 1st, 2012

Blawg Review is Back! (With some incredible, but true, stories)

One of the little known facts about April Fool’s Day is that actual news can be discussed. And so, without further ado:

Blawg Review (which I have hosted three times, see the right sidebar) is now back. It picks up where it left off, most appropriately with an April Fool’s prequel at George Wallace’s A Fool in the Forest. It’s theme is that of I’ve Got a Little List, from Gilbert & Sullivan’s The Mikado. Wallace’s blog is an art form in itself. It also reveals to the world some suitably absurd stories that are difficult to believe, but nevertheless true.

1. You know that Supreme Court argument on health care this past week? It seems the Republican party has used an audio clip from the Obama side in a commercial. But first, they distorted it. Tom Goldstein gives the details of the manipulation at SCOTUSblog and writes:

It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it.

More to the point, and why it is important on a blog such as mine that doesn’t deal directly with the healtcare law, but does deal (as all lawyers must) with the Supreme Court as an institution:

…the Justices now have before them a perfect illustration of the gross distortion that can instantly be made of recordings of their proceedings. What is to stop the same misleading stunt being pulled with the Justices’ own oral argument questions and comments? Nothing at all. The Court made a special exception in releasing the oral argument tape for the health care arguments so promptly, and it probably will hesitate before doing so again. If there were any chance that the Justices would permit cameras in the Court, I do not see happening now.

2. Last year a Montana woman was hit for $2.5M in damages in a defamation suit. The defendant, Crystal Cox, claimed she was an investigative journalist and covered under the state’s Shield Law. A decision this week indicates that she appeared more as an extorionist. According to the judge in the case:

…the uncontroverted evidence at trial was that after receiving a demand to stop posting what plaintiffs believed to be false and defamatory material on several websites, including allegations that [plaintiff] had committed tax fraud, defendant offered “PR,” “search engine management,” and online reputation repair services to Obsidian Finance, for a price of $2,500 per month. Ex. 33. The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee. This feature, along with the absence of other media features, led me to conclude that defendant was not media. (see.pp. 13-14)

That story of first trashing a good reputation and then offering to repair it for a fee is now being well-covered in the legal blogosphere, and each of these posts from the April Fool’s Blawg Review seems well worth reading. And it is being covered not just because of what the judge did, but because, in the truth-is-stranger-than-fiction department of April 1st, Crystal Cox is now rocketing around the blogosphere because she has now … well, you’re going to have to read for yourself to see what she has done to Marc Randazza, his wife, and their three-year-old daughter:

3. Finally, because I can’t leave you with two miserable stories such as the ones above, there is this from Jonathan Turley:

Pinch Me: First Truck Spills Millions of Coins All Over Highway, Second Truck Covers The Money In Candy . . . Men Wait Anxiously For Moosehead Beer Truck

So head over to the April Fool’s Blawg Review for more stories that are, most definitely, true. And if you have any kids in the household who are Harry Potter fans, there is a bonus clip of Daniel Radcliffe that they will enjoy.

April 1st, 2012

Today is April Fool’s Day

Yeah, yeah, I know, it’s April Fool’s Day and you expect me to run a gag, simply because I’ve done one each of the last four years. But you know what? Fuhgeddaboudit. It isn’t easy pulling off a hoax when people are actively looking. And with this being Sunday, even if I did run one, it wouldn’t get any traction.

So it’s time to retire and simply rehash my prior four gags for the few people looking in today:

I started in 2008 with a decent one about the Supreme Court granting cert in an existing fantasy baseball lawsuit. As I told it, many of the judges were in a Supreme Court fantasy league. Some recused themselves feeling there was a conflict while others did not. The subtext of the gag was the very real issue of when SCOTUS justices recuse themselves and the fact that those decisions have no review at all. That nabbed a bunch of people who didn’t see it coming.

I followed up in 2009 when I put this blog this blog up for sale on eBay. The subtext there was the wretched state of social media and constant use of blogs to sell, sell, sell.

In 2010 I did a fun gag that snared the New York Times when I announced (with considerable support from co-conspirator blogs) that I had been appointed White House law blogger. I also learned something else; readers were actually checking in that morning to see what kind of stunt I would pull. How early did they check? Well, the ABA Journal ratted me out at 6:46 a.m. central time. I was lucky that the joke still had legs, thanks to all those that were in on the conspiracy and “confirming” my appointment (and that the Times didn’t find the ABA posting with a simple Google search).

But when you add in the considerable post-joke kerfuffle that took place about whether such jokes are ethical violations, that it was the subject of a Disciplinary Board comment from the Supreme Court of Pennsylvania, and then add that the joke landed in a New York Times mea culpa editorial, it became clear to me that my days as an April Fool’s gagster were just about done. Too many people were watching.

Last year I was able to run just one more, by organizing a web ring of 23 blogs to laugh about how the Times was, incredibly, taken again. The joke was on the thousands of readers who — eagerly wanting it to be true — went running from blog to blog to find out exactly how the Times was punked. The Times wasn’t; those wanting to laugh at the Times for getting taken learned that the joke was on them.

I think most will agree that the time to hang up my jester’s hat has arrived. I won’t use this blog today for an April Fool’s gag. But fear not, someplace out there on the web there are hoaxsters and pranksters of all stripes with their digital whoopee cushions. And someplace, somewhere some folks will get gotten because they weren’t wary, or if the gag is really good enough, despite it. It just won’t be here.

My apologies if that is what you came looking for. If you’re looking for a legal chuckle, you can check out the legal disclaimer I’m in the midst of drafting it for my trail race. Yes, it is real, even if it still needs a few edits.