Posts Tagged ‘virginia’

Fighting to Protect Anonymous Yelpers in Virginia

Friday, May 10th, 2013

White van with Hadeed carpet cleaning liveryIn an amicus brief, the Reporters Committee for Freedom of the Press is urging the courts in Virginia to apply a heightened standard of review before ordering that anonymous online commenters be outed.

(I won’t tell you the facts of the case, but the caption is Hadeed Carpet Cleaning, Inc., v. John Doe #1, et al., and the respondent on the other side of the discovery order is Yelp, Inc. So I’m betting you can figure it out.)

The amicus brief ([pdf]) argues, in part:

[T]he First Amendment restricts compulsory identification of anonymous speakers on the Internet. When faced with questions of compelled disclosure of anonymous online speakers, this Court must adopt a meaningful standard that requires a heightened showing of evidence of a valid claim and notice to the affected parties. This standard is essential to protect the interests in anonymous speech, which often serve the public good and contribute to a better understanding of public issues and controversies.

Joining the amicus brief were Washington Post, American Society of Newspaper Editors, and the Gannett Company, which owns USA Today.

(Photo: Used without permission.)

Facebook Posts Get Former Marine Held for Month in Psych Ward

Thursday, August 23rd, 2012

A former Marine, Brandon Raub, was recently detained because of posts made on his Facebook account referencing a coming “civil war,” saying he was “done waiting,” and quoting a rap lyric, “Sharpen up my axe, I’m here to sever heads.”

Raub was taken into custody in this week in Virginia after being questioned by FBI and Secret Service agents. The latest is that after a hearing, Raub had been ordered held for an additional 30 days in a psychiatric ward.

For background, you can read the news story on HuffPo and find the essential facts and Mike Masnick’s commentary on TechDirt.

I actually have some experience with the legal procedures involved in detaining persons for psychiatric reasons. One summer in law school, I had a short externship with the Mental Hygiene Legal Service in the basement of the Manhattan Psychiatric Center on Wards Island in New York. (And let me say that it was an incredible experience, and I found that the attorneys down there providing legal services to patients were some of the quickest, smartest, and most impressive attorneys I have every worked with.)

So let me offer something from a mental-health-law perspective.

The Raub case has people concerned that online posts espousing conspiracy theories and radical leanings can cause a person to be locked up. And, in a sense, that’s what happened here. But once a person gets into the mental health system, it generally becomes a matter for physicians. Physicians aren’t legally able to deprive someone of their freedom, at least not beyond emergency circumstances on a short-term basis. Persons suspected of being mentally incompetent and dangerous are entitled to due process.

The due process that patients get is usually get that in the form of a hearing in which a judge listens to testimony of one or more physicians opining as to the psychiatric state of the patient. You might be surprised how smoothly this goes for the state. This is not like a trial. There is no jury, and the evidentiary standards are very relaxed. The state can use hearsay evidence to commit someone involuntarily, since they get it in as the basis for the psychiatrist’s expert opinion.

The whole field of mental health commitment is a fascinating one legally, and it raise a host of due process concerns that should make just about everyone uncomfortable. That’s not to say that the system is bad – like so much under our system of law, it reflects a balance between the need to uphold rights and freedoms and the need to prevent violence. It’s just to say that, like much else in law, it ought to make one uncomfortable.

So, with that background, I’m guessing that the Raub case is more about physicians deciding Raub needs to be held rather than it is about the government taking action against anti-government speech. Now, I should note that the story of physicians have tremendous power, mediated through court process, to deprive people of their freedom is not a new story – but it is a compelling one.

Yet because it brings mental-health law to bear on blogging, the Raub case remains one worth watching. There is no doubt that there is power here that could be abused. Maybe Raub is a radical whose speech is being shut down in violation of principles of free expression. Maybe he needs medical treatment. Of course, it’s very possible both are true at the same time.

I’m on the New Lawyer2Lawyer Podcast

Monday, October 31st, 2011

Lawyer2Lawyer logoI’m on the new episode of the Lawyer2Lawyer podcast talking about the Virginia State Bar’s disciplinary case against attorney Horace Hunter because of his blogging. It’s a case that pits legal ethics rules against the First Amendment.

The host of the program is Bob Ambrogi, and other guests are Kevin O’Keefe, CEO of LexBlog, and Peter Vieth, legal editor of Virginia Lawyers Weekly.

I really enjoyed doing the show, and it’s a great case to talk about.

Blogger Continues Suit Against Fluvanna County over Seal Ordinance

Wednesday, February 9th, 2011

The Seal of Fluvanna County, Virginia, pixelized

The Seal of Fluvanna County, Virginia

Tasha Kates at The Daily Progress of Charlottesville, Virginia reports about legal manuverings in Fluvanna County stemming from lawsuit brought by blogger Bryan Rothamel of Fluco Blog.

Rothamel is suing to assert his First Amendment right to use the county’s seal to illustrate news stories about county government. A county ordinance passed in September 2010 made unauthorized use of the seal a Class 1 misdemeanor punishable with a fine of up to 12 months in jail and/or a fine of up to $2,500.

After being sued, the county’s board of supervisors voted to change the ordinance to downgrade the punishment to a maximum $100 fine and/or as long as 30 days in jail. That will bring Fluvanna County into line with the Commonwealth of Virginia’s seal statute.

The suit, however, will go forward. Suing on Rothamel’s behalf is The Rutherford Institute, a civil liberties organization that says the state law suffers from the “same vagueness problem” as the original ordinance.

Here’s Byran Rothamel’s March 2010 post about the ordinance accompanied by a big blank spot where the seal would be restored, I take it, if Rothamel’s suit is successful.

Federal Court in Virginia Releases Browse-Wrap Decision

Wednesday, September 29th, 2010

A “browse wrap” agreement is an alleged contract that binds anyone who views a website to the site’s “terms of use.” The name “browse wrap” is in the tradition of “click wrap,” and ultimately derives from “shrink wrap” agreements, a now largely historical device which purported to bind anyone who tore past the agreement sticker and through the shrink wrap on a new box of software.

A new case, Cvent, Inc. v. Eventbrite, Inc., no. 1:10-cv-00481-LMB –IDD (E.D. Va. Sept. 15, 2010) concerns browse-wrap agreements. Although the case doesn’t involve a blog, it has applicability for bloggers two ways. One, bloggers might try a browse-wrap agreement to bind visitors to their blogs. Two, bloggers may be potential defendants in a breach-of-browse-wrap suit when they link to or repost material from a website they have visited.

Justia has the memorandum opinion on the motion to dismiss and motion to strike, signed by Hon. Leonie M. Brinkema and dated September 14, 2010.

Rebecca Tushnet has blogged about the opinion on her 43(B)log, concentrating on the trademark aspects: Website scraping claim survives Dastar defense.

Canfield Slams Virginia Court for Imagining Founding Father Authors as E-Mailers, Not Bloggers

Wednesday, June 30th, 2010

Nathaniel S. Canfield has published The Fallacy of Publius as Spammer: Jaynes v. Commonwealth of Virginia and the Proper Doctrine for Reviewing State Anti-Spam Laws in the George Mason University Civil Rights Law Journal Association.

In the article, Canfield reacts to a decision of the Supreme Court of Virginia to strike down a state anti-spam law as unconstitutionally overbroad and violative of free speech, in part by incanting an analogy to the Federalist Papers — penned by Alexander Hamilton, James Madison, and John Jay under the pseudonym “Publius”:

For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.

Canfield responds:

The court’s envisioned scene of Alexander Hamilton being led away in handcuffs for spamming The Federalist does not square with reality — Publius would have blogged.

The cite to Canfield’s article is 20 Geo. Mason U. Civ. Rts. L.J. 449. I was not able to find a copy of the article available freely online.