The famous Iwo Jima photograph, if memory serves, was an immediate reenactment, rather than the real thing, although the photograph, upon which the famous statue is based, is not altered.
When running for Congress, LBJ altered a photograph of himself, President Roosevelt, and another man by simply deleting the third man.
Actually, Justice Brennan, one of the Supreme Court's more liberal judges, once remarked that sometimes the constant recitation of such language drains its of its theological significance and thus it cannot "promote" religion in any meaningful way. That was the case of ABINGTON SCHOOL DIST. v. SCHEMPP, 374 U.S. 203 (1963). In his concurring opinion, Brennan opined:
[T]he use of the motto "In God We Trust" on currency, on documents and public buildings and the like may not offend the clause. It is not that the use of those four words can be dismissed as "de minimis" - for I suspect there would be intense opposition to the abandonment of that motto. The truth is that we have simply interwoven the motto so deeply into the fabric of our civil polity that its present use may well not present that type of involvement which the First Amendment prohibits.
That excerpt comes from a portion of the opinon entitled, "Activities Which, Though Religious in Origin, Have Ceased to Have Religious Meaning." But here's the money paragraph in that concurring opinion:
This general principle might also serve to insulate the various patriotic exercises and activities used in the public schools and elsewhere which, whatever may have been their origins, no longer have a religious purpose or meaning. The reference to divinity in the revised pledge of allegiance, for example, may merely recognize the historical fact that our Nation was believed to have been founded "under God." Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln's Gettysburg Address, which contains an allusion to the same historical fact.
The distinction between justifiable content based reglations versus those content neutral regulations has spawned much constitutional case law. Interestingly, the ACLU has indeed brought some lawsuits on behalf of public schoolchildren suspended for wearing Confederate flag garb. (In some cases, the school regulations were content neutral and banned shirts with all logos and/or symbols, while in other cases, the regulations were content based, banning the flag specifically but not other like symbols.) Whatever the case, the ACLU has been enthusiastic, and indeed, reluctant, to bring suits on behalf of children suspended or disciplined for religious speech. That strays from the central topic . . . .
"Congress shall make no law... abridging the freedom of speech"
Note the lack of any exceptions based on the content of the speech.
Well, there are decades and decades and decades of Supreme Court jurisprudence interpreting this provision of the Constitution, as well. Does a public employee have the same free speech rights as a private citizen? Does a public school student? [PDF] Are advertisements "speech" entitled to the same protection as political rhetoric? There are lots of issues which the Supreme Court has addressed with respect to the First Amendment which are as much the law of the land as the Constitution itself.
The statement itself breaks the separation of church and state, simply by being there.
Someone above remarked that the phrase "under God" does not appear in the United State Constitution, which is true, but neither does the phrase "separation of church and state." If memory serves, that phrase first appeared in a letter by Thomas Jefferson two decades after the Bill of Rights came to be. Remember, that the First Amendment prohibits "the establishment of religion" but also guarantees "the free exercise" of religion. Secondly, the Supreme Court has continually observed that the government may not promote religion or irreligion.
do we advocate people can own nukes? do we support some 'weapons of mass destruction' exception?
This argument is hyperbolic. Interpreting the Second Amendment as bestowing a personal right on an individual does not require a no-holds-barred interpretation that every citizen may own a thermonuclear device or the cool pistol from Robocop. There are exceptions to the First Amendment which the Supreme Court has seen fit to interpet. Commercial speech is subject to lesser protection, while obscenity is not protected at all. It seems quite clear that "reasonable restrictions" on weapons ownership is constitutionally permissible. (Remember, that if the government has a compelling interest that is nailorly tailored to the achievement of its objective, it can abridge fundamental rights.) How else would we have laws which permit firearms ownership among felons?
The ACLU claims [aclu.org] that "the right of the people" actually means a right of the State.
This remains an odd interpretation of the Second Amendment, as the most significant rights bestowed in the Bill of Rights are given to individuals and not state governments. The legislative history of the Second Amendment directly contradicts the argument put forth by those who claim the Second Amendment does not grant a personal right to each citizen. In essence, the ACLU, and others, simply wish to interpret the amendment as saying the exact opposite of what it actually says. (A more intellectually honest argument for anti-gun advocates would simply be to call for repeal of the Second Amendment.) For a good analysis of the constitutional history and interpretations of the Second Amendment, read this case.
Actually, I was thinking it was strange that it was being decided by the legislature. Shouldn't it be up to the licensed professional engineers? Some may say it would be elitist, but the professional engineers would be the most qualified to make that descision.
Perhaps, and I suspect that engineer after engineer will testify before the legislative committee considering this matter. However, the State of Texas regulates a number of professions, from lawyers and nurses to dentists and doctors. Part of that regulation is deciding who may bestow upon themselves the title traditionally associated with that profession.
As for engineers, their profession is regulated by this chapter of the Texas Occupations Code. According to section 1001.002, an "engineer" means a person licensed to engage in the practice of engineering in this state. See section 1001.003(c) for a thorough definition of the "practice of engineering."
Now, the Houston Chronicle article alludes to an Attorney General's opinion letter which prompted all of this controversy. The Attorney General interprets the law, and his interpretation in this case was apparently solicited by a legislator. For the sake of the discussion, I have appended it below:
State of Texas
Opinion No. JC-0525
July 9, 2002
Re: Whether the Texas Engineering Practice Act permits in-house engineers to include their job titles on business cards, cover letters, and other correspondence (RQ-0495-JC)
The Honorable Warren Chisum
Chair, Committee on
Environmental Regulation
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78768-2910
Dear Representative Chisum:
You ask whether the Texas Engineering Practice Act (the "Act") permits in- house engineers who work for private corporations that do not offer engineering services to the public to include their job titles on business cards, cover letters, and other forms of correspondence. We conclude they may not do so.
You believe that an employee for a private corporation whose in-house job title is that of "engineer" should be able to use a title, such as "Engineer" or "Process Engineer" on business cards, cover letters, and other forms of correspondence because of an exemption under section 20(a)(5) of the Act. See Request Letter, supra note 1, at 2. You find "it . . . difficult to fathom how a member of the public could be misled into believing that an in-house engineer for a company that does not perform or offer to perform any engineering services for the public is somehow offering such services by the mere use of the job title 'Engineer."' Id.
The Act, article 3271a of the Revised Civil Statutes, specifically addresses the use of the designation of "engineer" in section 1.1. Section 1.1, in part, provides:
[I]t is the intent of the Legislature, in order to protect the public health, safety and welfare, that the privilege of practicing engineering be entrusted only to those persons duly licensed and practicing under the provisions of this Act and that there be strict compliance with and enforcement of all the provisions of this Act, and, in order that the state and members of the public may be able to identify those duly authorized to practice engineering in this state and fix responsibility for work done or services or acts performed in the practice of engineering, only licensed persons shall practice, offer or attempt to practice engineering or call themselves or be otherwise designated as any kind of an "engineer" or in any manner make use of the term "engineer" as a professional, business or commercial identifi
Wouldn't this be a decision for the courts, not the legislature?
Why would it be an issue for the courts? The Legislature has a compelling interest in regulating professions. Judges are called upon to interpret ambigious statutory terms, but the Legislature is free to define them. Many Texas statutes provide definitional sections which make it easier for courts to interpret the law or forgoe the necessity of judicial statutory interpretation.
Well, this will almost certainly be appealled, and since the lawsuit arose in a Tarrant County, Texas, district court, it will be reviewed by the Fort Worth Court of Appeals. Although litigants are usually prohibited from appealling until a final judgment has been reached in a lawsuit, Texas law specifically grants them the right to immediately appeal an order which "grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction." Just so you know, an appellate court considers the following when reviewing an order on a temporary injunction:
Applicable Law and Standard of Review
To be entitled to a temporary injunction a plaintiff must show: (1) a viable cause of action against the defendant; (2) a probable right to recovery; and (3) a probable, imminent, and irreparable injury in the interim. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993) (per curiam). The only question before the trial court is whether the applicant is entitled to preservation of the status quo pending trial on the merits. Id. at 58. In an appeal from an order granting a temporary injunction, our review is confined to the validity of that order. See id. The decision to grant or deny the temporary injunction lies within the sound discretion of the trial court; we will not disturb that decision absent a clear abuse of discretion. Id. This Court may neither substitute its judgment for that of the trial court nor consider the merits of the lawsuit. Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 576 (Tex.App.-Austin 2000, no pet.). Rather, we view the evidence in the light most favorable to the trial court's order, indulging every reasonable inference in its favor, and determine whether the order was so arbitrary as to exceed the bounds of reasonable discretion. Id. An abuse of discretion exists when the court misapplies the law to established facts or when it concludes that the applicant has demonstrated a probable injury or a probable right to recovery and the conclusion is not reasonably supported by evidence. Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 551 (Tex.App.-Dallas 1993, no writ).
However, I'll note that the litigants must now, pending appeal and all of that, go to trial and put on a case for a permanent injunction. trial court may grant a temporary writ of injunction to preserve the status quo pending trial even though the applicant's prayer does not include a claim for equitable relief.
Basically, this is so far from over.
By "originalist," I refer to one who believes that the original intent of the Framers should govern in matters of Constitutional construction. You seem to vacillate between an originalist position (when you argue what the Framers "clearly" expected and what they could not foresee) and a modernist view (when you suggest that your own subjective 21st century notions should govern the inquiry.)
"Limited" can not mean "extended every time it is about to run out". That just isn't limited.
The Court specifically addressed this argument, noting that the worst case scenario you and Lessig envision is not what has happened here. Clearly, life plus 70 years is a "limit," and it is not so lengthy a time so as to devour the term "limited." In your latest reply, you write that "clearly" the Framers expected there might be a need to extend the terms of copyrights, so it is not the extension itself that irks you. Rather it is an extension stacked upon an extension, which you seem to believe swallows the term "limited." Were you comfortable with life plus 50 years? The difference between THAT and the current extension makes the legislation unconstitutional?
The Framers stated that they wanted a limit; they made the mistake of not defining their term and I am mearly suggesting a fix; I don't see that as a contradiction. . . . If the constitution is a legal document, dealing with the limits of the law, then it is entirely reasonable to allow the judicial branch to clear up ambiguities in the language or, more importantly, to prevent abuse of those ambiguities.
Here is the root of your misunderstanding of the Court's opinion. The Constitution is no mere "legal document." Indeed, it is the highest law of the law, and it cannot be amended by federal statute, executive fiat, or even a groundswell of public opposition to a curious copyright extension. The only guidance we have in interpreting the Constitutional are the planing meaning of the words used by the Framers and the centuries of Supreme Court precedent and jurisprudence. You've read the case, so I need not regurgitate the plain meaning argument the Justices advanced by referring to both eighteenth century and twenty-first century dictionaries. Additionally, Article I, Section 8 of the Constitution states that the Legislative Branch "shall have Power To . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . .." This is not an implied power, but an enumerated power granted specifically and exclusively to the Congress.
You seem to fixate solely on the term "limited," which is of course very important. However, you neglect to remember that the Congress has plenary power over copyrights. Furthermore, you don't consider this express grant of poewr in conjunction with James Madison's elastic clause. The last clause of Article I, Section 8 of the United States Constitution states that "[t]he Congress shall have Power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Remember Chief Justice John Marshall's interpretation of the elastic clause in the famous case of McCullough v. Maryland: " Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. . .."
Are you suggesting that Congress, with its plenary power over the issue of copyrights, may not extend the term to that of the Act considering its express grant of power in this area in conjunction with the necessary and proper clause? The Supreme Court doesn't get to merely "clear up an ambiguity" because you or it or Lessig disagrees with the Act. Nor can it graft upon the provisions of Article I, Section 8 a definition of "limited" which is overly narrow. As this is an enumerated power of Congress, and Congress acted pursuant to this express grant and perhaps through the N&P clause, the Supreme Court is going to give some deference to the Congress' definition of limited. The Act is limited, and in enacting it, the Legislative Branch has not done what you say is improper: stringing together a series of extensions so as to effectively make the extensions unlimited. Rather, they have made an extension which is still clearly limited at the lifetime of the copyright holder plus however-many-decades. Perhaps your argument will hold more water when/if the Congress chooses to extend the copyrights again at their next expiration.
But, is that it is also entirely reasonable to allow the people, through their representatives to do that job too. The problem is that the elected representatives are corrupt, which ranges far beyond the copyright issue but, hey, that's politicians for you.
Amending the Constitution by interpreting its terms without reference to history, tradition, or other constitutional provisions is simply wrong. If you disagree with the Court's construction of the term "limited," you can either lobby legislators to amend/repeal the Act, or you can push for an amendment to the Constitution. [This is a bit like the tactics of gun control advocates who disregard the clear history of the Second Amendment in order to argue that it does not bestow a personal right. However, they would rather argue that than simply seek to amend/repeal that amendment, an approach which at least be more intellectually honest than to ignore precedent and plain meaning.] It is far more difficult to mount a grass roots campaign to do that; it is far, far easier to ask a federal court to rewrite the constitution. However, that is not the system we have, nor should it be.
The people haven't a look in.
I don't think that it is so much that as the fact that people toss around the term "unconstitutional" as a synonym for "inconvenient" or "bad." What you seek to do is return to the era of Lochner, during which courts struck down legislation simply because they disagreed with it. (In some respect, Lochner still lives in the social arena, as the courts strikedown social legislation with which they disagree.) But the point is: Courts prefer precision, and simply because you or I disagree with public policy, it does not make the law unconstitutional.
I will [define the term 'limited']: any period such that the average newborn baby at the start of the period will not be alive at the end of the period is not in any real or socially useful sense limited.
Shall the subjective definition of one individual (one ardently opposed to the act, apparently) control our construction of the term? Your definition would shift as science prolongs the human life span, you know. Had the Founders adopted your definition in the eighteenth century, courts would elasticize it based on scientific progress. But I do see your point.
Is it your position that the Congress, with its plenary power over copyrights, can never under any circumstances extend a copyright? Is that what "limited" means? Or is it a second extension, or a series of extensions, that you find unreasonable?
It is patently obvious, given how short the original period was, that the framers of the constitution did not mean the current "as long as the bribes^H^H^H^H^H^H^H campaign contributions keep rolling in" system. It is a mistake in the constitution but that doesn't mean that no one should fix the mistake.
Patently obvious? Are you an originalist? Do you think the Framers intended for copyrights to never be extended? Do you think that they, in enacting Article I, Section 8, as well as the necessary and proper clause, meant to foreclose ANY extensions? How can you in your second paragraph argue for the intent of the Framers and in your first paragraph adopt a definition that clearly was not the intent of the Framers?
The problem isn't that the Act is bad legislation. It is. I think Lessig and his colleagues have won that argument; I'm convinced. But that's not the issue. The issue is whether the legislation is UNCONSTITUTIONAL. In pursuing that argument, Lessig must meet an impossible standard under two hundred years of jurisprudence. But it is far easier to file a lawsuit than to mount a succesful lobbying effort, and Lessig chose the former path. Defeated, he must either attempt to persuade the elected officials, or those who elect them, of the folly of the Act, or he can do as he has done this week, and lament what he believes to be an unreasonable High Court.
Lessig simply does not seem to understand that bad public policy is not necessarily unconstitutional. I read the opinion, and I found it very interesting and not entirely different from what I expected. The way people toss around the word "unconstitutional" these days, you would think that the Constitution proscribed just about everything. The folks here, at Gigalaw, and at Lawmeme remain at daggers drawn over the Sonny Bono Copyright Term Extension Act, which may be a silly statutory provision, but not unconstitutional.
Lessig though Congress violated Article I, Section 8 of the Constitution when it allowed copyright owners renew the ownership rights to their works. That provision says that Congress "shall have Power To . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . .."
Lessig lost the case this, and the gravamen of his complaint was that by extending the copyrights Congress acted unconsitutionally, as the Constitution says that Congress may only secure exclusive rights for "limited times" - an undefined term. It appears that Lessig wants SCOTUS to graft onto this provision a specific period of time. Without one, he claims, the provision is rendered meaningless. Yet lower courts have found that the phrase "limited times" does not necessarily preclude an extension.
Who defines limited? Can reasonable people disagree on what the term limited means? What is the plain meaning of that term? Did Lessig expect the Supreme Court to say that "limited" meant less than seventy years per se? I found it interesting that the court surveyed the definitional history of the word, including citations from eighteenth century dictionaries. (Lessig's initial blogging after the decision betrayed his belief that reasonable people CANNOT disagree on this issue.) But, come on, is he saying that Congress can never ever extend copyright protections? Is he saying that the Act was an abuse akin to the worst case scenario he depicted: a seemingly unlimited series of extensions? Is the Act an "unlimited" extension?
Lessig often quips that since Disney's copyright to "Steamboat Willie" - the first Mickey Mouse cartoon - was extended under the Act, new artists can't do to Disney what Disney did to the Brothers Grimm. However, even if this is bad public policy, it is not necessarily unconstitutional. As this is a plenary power of Congress, a "limited time" is pretty much whatever Congress says that it is. If they choose to extend the copyrights, so be it. Consider that in conjunction with the necessary and proper clause.
The solution is to vote out the Congressmen if you disagree. Perhaps those irate over this policy should cast aside their open source mantra for the time being, roll up their sleeves and pound the pavement for reform. It cannot be done through the courts.
. Other than the fact that Ain't It Cool News and Harry Knowles aren't being charged with anything, police aren't saying much.
Provided that Mr. Knowles and his lackies did not conspire with him, there is little that the authorities or Lucasfilm can do to AICN.
Recently, the Supreme Court addressed a similar matter in the case of BARTNICKI v. VOPPER.
In that case, some enterprising individual surreptiously recorded a cell phone conversation between a union negotiator the union president. Someone sent the tape to a local radio show host, who played it over and over again. The union offials sued the host, and the Supreme Court ruled that the First Amendment prevailed in this setting. The issue in that case, strikingly similar to that here, was: "Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?"
As the court concluded, "[a] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."
The only question is whether the information that Knowles received is a "matter of public concern." Many of the privacy concerns of a telephone conversation are not at issue in this case, and certainly, there is great interest in artistic endeavors. Who knows?
Jim
Just stumbled across this article about a class action lawsuit against Sprint for spam. Not sure if this has been remarked upon here, but likely so.
Here's another article about a $2 trillion class action lawsuit based on violation of the junk fax law, in effect since 1991. I suspect - but cannot confirm - that a true anti-spam federal law would prompt suits similar to this one. After all, one you ban something and create a statutory violation penalty, lawyers have an incentive to invest in the lawsuit based on the likelihood of success.
I tried to sue a spammer once. I talked to a lawyer for a while but the problem is that I couldn't prove much as damages.
Was it that you yourself couldn't prove actual damages at all, or that you could not prove enough damages so that he could recover a large enough fee to cover his own expenses/cost?
Yes, they abused my resources and my bandwidth that I pay for but even if they sent 100 duplicate messages, that's such a small fraction of the bill that it's not worth trying to sue them.
This, I think, is why any suit against spammers would have to be a class action suit. Recall that class actions are typically used when a large number of individuals' rights have been violated by defendant's course of conduct but the cost of vindicating those rights is too great, as no one is going to file a lawsuit to recover a mere pittance in damages. However, if you agglomerate all of those claims, it becomes worth the attorneys time and the threat of an enormous verdict frightens the defendants. This is why most class action lawsuits settle if the plaintiffs attorney successfully certifies the class. Of course, the converse of that is that the class action joinder rule can take a relatively frivolous individual claim that an attorney would not pursue and convert it into a lucrative and dangerous claim with a potential for high recovery. But that really isn't a concern in this context, as these claims would not be frivolous, especially if we are dealing with a spammer who has misappropriated one's identity.
The reality is large SPAMmers make major campaign donations and YOU don't!!!
That's not really dispositive, is it? That this industry is universally despised seems to outweigh any campaign contributions they might receive, and surely those corporations wealthy enough to give those contributions are diversified enough not to rely so heavily on spam anyway, right? I am just agog that the politicians have not seized upon this issue, as:
1. There are already analogous laws on the books and a new such regulation would not be novel. We regulate junk faxes, telephone solicitors, debt collectors, et cetera, but not spam in the same meaningful sense. Broadening these laws to include spammers would be consistent with the spirt of the existing law.
2. Targeting a villain that everyone despises seems like an enterprise in which the politician would receive only good publicity and accolades.
3. Those that would come forth to oppose the bill would already be pigeonholed as pernicious hacks that the politicians could easily shoot down with ready-made soundbytes.
4. Such a bill would be newsworthy, and even the most junior member could easily write such a bill and get good press coverage.
Outright theft has always been my favorite course of thought.
I wonder if there is any precedent for that? Courts usually have a tough time making such a leap from penal statutes which don't directly address a specific electronic infraction. Remember, too, that we would be dealing with 51 sets of criminal theft statutes, as well. Take Texas, for example. Compare statutory theft to statutory theft of services. Now, I think we all know that when these statutes were drafted that the authors did not envision spam as it didn't exist at the time of the drafting. There's just no way. The defense attorney would be able to convincingly argue that legislators did not envision these types of offenses and thus they are not covered under the statute. That is why this enterprise is so perilous when we attempt to argue by analogy (i.e. pursuing spammers under junk fax laws) or couch electronic offenses into the statutory language of pre-Internet penal statutes.
Remember, that some courts are still struggling with initial hurdles of authentication and admissibility [PDF] of electronic email and web data. My favorite such quip from a federal judge (from my own state of Texas):
"While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation.... Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretations of the hearsay exception rules found in FED. R. EVID. 807".
See St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D. Tex. 1999)
The PDF link is to an article I wrote earlier this year on that very subject. See also the Siddiqqui case for the application of the rules of evidence to e-mail. The point: How can such a jurist be convinced to apply pre-digital laws to spammers? That is the question.
I would have difficulty prosecuting because I am in Canada and the spammer in the U.S. But since the same spam was also sent out in the name of an web designer in Tennessee and spamcop.net someone else may be able to prosecute.
I wonder if part of the problem is a lack of complainants. Do the people to whom this happens take the time to file an official complaint with the district attorney or federal prosecutors? Does it occur to them to contact a plaintiffs attorney to suggest a possible suit? This might make a spectacular class action lawsuit, provided that a suitably wealthy corporation could be found to sue. Stealing one's identity to send offensive pornographic or automated commercial email simply has to be tortious or illegal or negligent per se or something, you know?
I recently suffered from a spammers "joejob" where a spammer used my email address as a reply address for a spam.
This, I think, is the actionable. I wonder why some enterprising young federal prosecutor does not chase this villain under the wire fraud statutes. The spammer, after all, committed a fraud and sent it across state boundaries, didn't he? If the feds can pursue college coaches who fax faked test scores from cheating athletes, can't they get these guys?
You might also have a claim against him for false light, a tort at common law which I don't think is recognized here in Texas but is elsewhere. The example my law prof gave me was the following: Let's say you work at Company A, which provides you with a public mailbox from which to retrieve your memos, letters, magazines, brochures, et cetera. A colleague of yours, as a joke, signs you up for various pornographic magazines. Anyone who visits the mailbox area sees your mailbox stuffed with the porn, and reasonably believes that it is yours. Your colleague has put you in "false light," just as this spammer might have.
Defamation seems analagous, but dubious under these facts.
One good resource I've found is the Martindale [martindale.com] site. This will help you to find a lawyer in the appropriate field, and may even tell you how highly they are regarded by their peers, both in terms of competence and ethics.
Another resource is the website of the State Bar Association of whichever state in which you reside. On such sites, there is usually some sort of referral source and/or information for the public about seeking legal services. On some sites, citizens can peruse the discipline history - if any - of any attorneys.
Slashdot Mirror
Read the complains filed in federate court here.
Here is a story on the OJ photograph with both versions of the TIME magazine cover in question.
The famous Iwo Jima photograph, if memory serves, was an immediate reenactment, rather than the real thing, although the photograph, upon which the famous statue is based, is not altered. When running for Congress, LBJ altered a photograph of himself, President Roosevelt, and another man by simply deleting the third man.
For more on his alteration of the truth, see this and this.
Don't forget the awful drek that was GODZILLA, made after the success of ID4 . . . .
The distinction between justifiable content based reglations versus those content neutral regulations has spawned much constitutional case law. Interestingly, the ACLU has indeed brought some lawsuits on behalf of public schoolchildren suspended for wearing Confederate flag garb. (In some cases, the school regulations were content neutral and banned shirts with all logos and/or symbols, while in other cases, the regulations were content based, banning the flag specifically but not other like symbols.) Whatever the case, the ACLU has been enthusiastic, and indeed, reluctant, to bring suits on behalf of children suspended or disciplined for religious speech. That strays from the central topic . . . .
Note the lack of any exceptions based on the content of the speech.
Well, there are decades and decades and decades of Supreme Court jurisprudence interpreting this provision of the Constitution, as well. Does a public employee have the same free speech rights as a private citizen? Does a public school student? [PDF] Are advertisements "speech" entitled to the same protection as political rhetoric? There are lots of issues which the Supreme Court has addressed with respect to the First Amendment which are as much the law of the land as the Constitution itself.
Someone above remarked that the phrase "under God" does not appear in the United State Constitution, which is true, but neither does the phrase "separation of church and state." If memory serves, that phrase first appeared in a letter by Thomas Jefferson two decades after the Bill of Rights came to be. Remember, that the First Amendment prohibits "the establishment of religion" but also guarantees "the free exercise" of religion. Secondly, the Supreme Court has continually observed that the government may not promote religion or irreligion.
This argument is hyperbolic. Interpreting the Second Amendment as bestowing a personal right on an individual does not require a no-holds-barred interpretation that every citizen may own a thermonuclear device or the cool pistol from Robocop. There are exceptions to the First Amendment which the Supreme Court has seen fit to interpet. Commercial speech is subject to lesser protection, while obscenity is not protected at all. It seems quite clear that "reasonable restrictions" on weapons ownership is constitutionally permissible. (Remember, that if the government has a compelling interest that is nailorly tailored to the achievement of its objective, it can abridge fundamental rights.) How else would we have laws which permit firearms ownership among felons?
This remains an odd interpretation of the Second Amendment, as the most significant rights bestowed in the Bill of Rights are given to individuals and not state governments. The legislative history of the Second Amendment directly contradicts the argument put forth by those who claim the Second Amendment does not grant a personal right to each citizen. In essence, the ACLU, and others, simply wish to interpret the amendment as saying the exact opposite of what it actually says. (A more intellectually honest argument for anti-gun advocates would simply be to call for repeal of the Second Amendment.) For a good analysis of the constitutional history and interpretations of the Second Amendment, read this case.
Perhaps, and I suspect that engineer after engineer will testify before the legislative committee considering this matter. However, the State of Texas regulates a number of professions, from lawyers and nurses to dentists and doctors. Part of that regulation is deciding who may bestow upon themselves the title traditionally associated with that profession.
As for engineers, their profession is regulated by this chapter of the Texas Occupations Code. According to section 1001.002, an "engineer" means a person licensed to engage in the practice of engineering in this state. See section 1001.003(c) for a thorough definition of the "practice of engineering."
Now, the Houston Chronicle article alludes to an Attorney General's opinion letter which prompted all of this controversy. The Attorney General interprets the law, and his interpretation in this case was apparently solicited by a legislator. For the sake of the discussion, I have appended it below:
Why would it be an issue for the courts? The Legislature has a compelling interest in regulating professions. Judges are called upon to interpret ambigious statutory terms, but the Legislature is free to define them. Many Texas statutes provide definitional sections which make it easier for courts to interpret the law or forgoe the necessity of judicial statutory interpretation.
By "originalist," I refer to one who believes that the original intent of the Framers should govern in matters of Constitutional construction. You seem to vacillate between an originalist position (when you argue what the Framers "clearly" expected and what they could not foresee) and a modernist view (when you suggest that your own subjective 21st century notions should govern the inquiry.)
"Limited" can not mean "extended every time it is about to run out". That just isn't limited.
The Court specifically addressed this argument, noting that the worst case scenario you and Lessig envision is not what has happened here. Clearly, life plus 70 years is a "limit," and it is not so lengthy a time so as to devour the term "limited." In your latest reply, you write that "clearly" the Framers expected there might be a need to extend the terms of copyrights, so it is not the extension itself that irks you. Rather it is an extension stacked upon an extension, which you seem to believe swallows the term "limited." Were you comfortable with life plus 50 years? The difference between THAT and the current extension makes the legislation unconstitutional?
The Framers stated that they wanted a limit; they made the mistake of not defining their term and I am mearly suggesting a fix; I don't see that as a contradiction. . . . If the constitution is a legal document, dealing with the limits of the law, then it is entirely reasonable to allow the judicial branch to clear up ambiguities in the language or, more importantly, to prevent abuse of those ambiguities.
Here is the root of your misunderstanding of the Court's opinion. The Constitution is no mere "legal document." Indeed, it is the highest law of the law, and it cannot be amended by federal statute, executive fiat, or even a groundswell of public opposition to a curious copyright extension. The only guidance we have in interpreting the Constitutional are the planing meaning of the words used by the Framers and the centuries of Supreme Court precedent and jurisprudence. You've read the case, so I need not regurgitate the plain meaning argument the Justices advanced by referring to both eighteenth century and twenty-first century dictionaries. Additionally, Article I, Section 8 of the Constitution states that the Legislative Branch "shall have Power To . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . ." This is not an implied power, but an enumerated power granted specifically and exclusively to the Congress.
You seem to fixate solely on the term "limited," which is of course very important. However, you neglect to remember that the Congress has plenary power over copyrights. Furthermore, you don't consider this express grant of poewr in conjunction with James Madison's elastic clause. The last clause of Article I, Section 8 of the United States Constitution states that "[t]he Congress shall have Power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Remember Chief Justice John Marshall's interpretation of the elastic clause in the famous case of McCullough v. Maryland: " Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. . . ."
Are you suggesting that Congress, with its plenary power over the issue of copyrights, may not extend the term to that of the Act considering its express grant of power in this area in conjunction with the necessary and proper clause? The Supreme Court doesn't get to merely "clear up an ambiguity" because you or it or Lessig disagrees with the Act. Nor can it graft upon the provisions of Article I, Section 8 a definition of "limited" which is overly narrow. As this is an enumerated power of Congress, and Congress acted pursuant to this express grant and perhaps through the N&P clause, the Supreme Court is going to give some deference to the Congress' definition of limited. The Act is limited, and in enacting it, the Legislative Branch has not done what you say is improper: stringing together a series of extensions so as to effectively make the extensions unlimited. Rather, they have made an extension which is still clearly limited at the lifetime of the copyright holder plus however-many-decades. Perhaps your argument will hold more water when/if the Congress chooses to extend the copyrights again at their next expiration.
But, is that it is also entirely reasonable to allow the people, through their representatives to do that job too. The problem is that the elected representatives are corrupt, which ranges far beyond the copyright issue but, hey, that's politicians for you.
Amending the Constitution by interpreting its terms without reference to history, tradition, or other constitutional provisions is simply wrong. If you disagree with the Court's construction of the term "limited," you can either lobby legislators to amend/repeal the Act, or you can push for an amendment to the Constitution. [This is a bit like the tactics of gun control advocates who disregard the clear history of the Second Amendment in order to argue that it does not bestow a personal right. However, they would rather argue that than simply seek to amend/repeal that amendment, an approach which at least be more intellectually honest than to ignore precedent and plain meaning.] It is far more difficult to mount a grass roots campaign to do that; it is far, far easier to ask a federal court to rewrite the constitution. However, that is not the system we have, nor should it be.
The people haven't a look in.
I don't think that it is so much that as the fact that people toss around the term "unconstitutional" as a synonym for "inconvenient" or "bad." What you seek to do is return to the era of Lochner, during which courts struck down legislation simply because they disagreed with it. (In some respect, Lochner still lives in the social arena, as the courts strike down social legislation with which they disagree.) But the point is: Courts prefer precision, and simply because you or I disagree with public policy, it does not make the law unconstitutional.
Shall the subjective definition of one individual (one ardently opposed to the act, apparently) control our construction of the term? Your definition would shift as science prolongs the human life span, you know. Had the Founders adopted your definition in the eighteenth century, courts would elasticize it based on scientific progress. But I do see your point.
Is it your position that the Congress, with its plenary power over copyrights, can never under any circumstances extend a copyright? Is that what "limited" means? Or is it a second extension, or a series of extensions, that you find unreasonable?
It is patently obvious, given how short the original period was, that the framers of the constitution did not mean the current "as long as the bribes^H^H^H^H^H^H^H campaign contributions keep rolling in" system. It is a mistake in the constitution but that doesn't mean that no one should fix the mistake.
Patently obvious? Are you an originalist? Do you think the Framers intended for copyrights to never be extended? Do you think that they, in enacting Article I, Section 8, as well as the necessary and proper clause, meant to foreclose ANY extensions? How can you in your second paragraph argue for the intent of the Framers and in your first paragraph adopt a definition that clearly was not the intent of the Framers?
The problem isn't that the Act is bad legislation. It is. I think Lessig and his colleagues have won that argument; I'm convinced. But that's not the issue. The issue is whether the legislation is UNCONSTITUTIONAL. In pursuing that argument, Lessig must meet an impossible standard under two hundred years of jurisprudence. But it is far easier to file a lawsuit than to mount a succesful lobbying effort, and Lessig chose the former path. Defeated, he must either attempt to persuade the elected officials, or those who elect them, of the folly of the Act, or he can do as he has done this week, and lament what he believes to be an unreasonable High Court.
Lessig though Congress violated Article I, Section 8 of the Constitution when it allowed copyright owners renew the ownership rights to their works. That provision says that Congress "shall have Power To . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . ."
Lessig lost the case this, and the gravamen of his complaint was that by extending the copyrights Congress acted unconsitutionally, as the Constitution says that Congress may only secure exclusive rights for "limited times" - an undefined term. It appears that Lessig wants SCOTUS to graft onto this provision a specific period of time. Without one, he claims, the provision is rendered meaningless. Yet lower courts have found that the phrase "limited times" does not necessarily preclude an extension.
Who defines limited? Can reasonable people disagree on what the term limited means? What is the plain meaning of that term? Did Lessig expect the Supreme Court to say that "limited" meant less than seventy years per se? I found it interesting that the court surveyed the definitional history of the word, including citations from eighteenth century dictionaries. (Lessig's initial blogging after the decision betrayed his belief that reasonable people CANNOT disagree on this issue.) But, come on, is he saying that Congress can never ever extend copyright protections? Is he saying that the Act was an abuse akin to the worst case scenario he depicted: a seemingly unlimited series of extensions? Is the Act an "unlimited" extension?
Lessig often quips that since Disney's copyright to "Steamboat Willie" - the first Mickey Mouse cartoon - was extended under the Act, new artists can't do to Disney what Disney did to the Brothers Grimm. However, even if this is bad public policy, it is not necessarily unconstitutional. As this is a plenary power of Congress, a "limited time" is pretty much whatever Congress says that it is. If they choose to extend the copyrights, so be it. Consider that in conjunction with the necessary and proper clause.
The solution is to vote out the Congressmen if you disagree. Perhaps those irate over this policy should cast aside their open source mantra for the time being, roll up their sleeves and pound the pavement for reform. It cannot be done through the courts.
Recently, the Supreme Court addressed a similar matter in the case of BARTNICKI v. VOPPER.
In that case, some enterprising individual surreptiously recorded a cell phone conversation between a union negotiator the union president. Someone sent the tape to a local radio show host, who played it over and over again. The union offials sued the host, and the Supreme Court ruled that the First Amendment prevailed in this setting. The issue in that case, strikingly similar to that here, was: "Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?"
As the court concluded, "[a] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." The only question is whether the information that Knowles received is a "matter of public concern." Many of the privacy concerns of a telephone conversation are not at issue in this case, and certainly, there is great interest in artistic endeavors. Who knows? Jim
Here's another article about a $2 trillion class action lawsuit based on violation of the junk fax law, in effect since 1991. I suspect - but cannot confirm - that a true anti-spam federal law would prompt suits similar to this one. After all, one you ban something and create a statutory violation penalty, lawyers have an incentive to invest in the lawsuit based on the likelihood of success.
Was it that you yourself couldn't prove actual damages at all, or that you could not prove enough damages so that he could recover a large enough fee to cover his own expenses/cost?
Yes, they abused my resources and my bandwidth that I pay for but even if they sent 100 duplicate messages, that's such a small fraction of the bill that it's not worth trying to sue them.
This, I think, is why any suit against spammers would have to be a class action suit. Recall that class actions are typically used when a large number of individuals' rights have been violated by defendant's course of conduct but the cost of vindicating those rights is too great, as no one is going to file a lawsuit to recover a mere pittance in damages. However, if you agglomerate all of those claims, it becomes worth the attorneys time and the threat of an enormous verdict frightens the defendants. This is why most class action lawsuits settle if the plaintiffs attorney successfully certifies the class. Of course, the converse of that is that the class action joinder rule can take a relatively frivolous individual claim that an attorney would not pursue and convert it into a lucrative and dangerous claim with a potential for high recovery. But that really isn't a concern in this context, as these claims would not be frivolous, especially if we are dealing with a spammer who has misappropriated one's identity.
That's not really dispositive, is it? That this industry is universally despised seems to outweigh any campaign contributions they might receive, and surely those corporations wealthy enough to give those contributions are diversified enough not to rely so heavily on spam anyway, right? I am just agog that the politicians have not seized upon this issue, as:
1. There are already analogous laws on the books and a new such regulation would not be novel. We regulate junk faxes, telephone solicitors, debt collectors, et cetera, but not spam in the same meaningful sense. Broadening these laws to include spammers would be consistent with the spirt of the existing law.
2. Targeting a villain that everyone despises seems like an enterprise in which the politician would receive only good publicity and accolades.
3. Those that would come forth to oppose the bill would already be pigeonholed as pernicious hacks that the politicians could easily shoot down with ready-made soundbytes.
4. Such a bill would be newsworthy, and even the most junior member could easily write such a bill and get good press coverage.
I wonder if there is any precedent for that? Courts usually have a tough time making such a leap from penal statutes which don't directly address a specific electronic infraction. Remember, too, that we would be dealing with 51 sets of criminal theft statutes, as well. Take Texas, for example. Compare statutory theft to statutory theft of services. Now, I think we all know that when these statutes were drafted that the authors did not envision spam as it didn't exist at the time of the drafting. There's just no way. The defense attorney would be able to convincingly argue that legislators did not envision these types of offenses and thus they are not covered under the statute. That is why this enterprise is so perilous when we attempt to argue by analogy (i.e. pursuing spammers under junk fax laws) or couch electronic offenses into the statutory language of pre-Internet penal statutes.
Remember, that some courts are still struggling with initial hurdles of authentication and admissibility [PDF] of electronic email and web data. My favorite such quip from a federal judge (from my own state of Texas):
The PDF link is to an article I wrote earlier this year on that very subject. See also the Siddiqqui case for the application of the rules of evidence to e-mail. The point: How can such a jurist be convinced to apply pre-digital laws to spammers? That is the question.jd
I wonder if part of the problem is a lack of complainants. Do the people to whom this happens take the time to file an official complaint with the district attorney or federal prosecutors? Does it occur to them to contact a plaintiffs attorney to suggest a possible suit? This might make a spectacular class action lawsuit, provided that a suitably wealthy corporation could be found to sue. Stealing one's identity to send offensive pornographic or automated commercial email simply has to be tortious or illegal or negligent per se or something, you know?
This, I think, is the actionable. I wonder why some enterprising young federal prosecutor does not chase this villain under the wire fraud statutes. The spammer, after all, committed a fraud and sent it across state boundaries, didn't he? If the feds can pursue college coaches who fax faked test scores from cheating athletes, can't they get these guys?
You might also have a claim against him for false light, a tort at common law which I don't think is recognized here in Texas but is elsewhere. The example my law prof gave me was the following: Let's say you work at Company A, which provides you with a public mailbox from which to retrieve your memos, letters, magazines, brochures, et cetera. A colleague of yours, as a joke, signs you up for various pornographic magazines. Anyone who visits the mailbox area sees your mailbox stuffed with the porn, and reasonably believes that it is yours. Your colleague has put you in "false light," just as this spammer might have.
Defamation seems analagous, but dubious under these facts.