Jun 16 2015

Rachel Dolezal’s Legal Issue Different Than Those in the TransGender Community

There has been much controversy and discussion stirring since Rachel Dolezal was revealed to be a white woman passing as a black woman. For those of you living under a rock the past few days, Rachel Dolezal is the 37-year-old head of the NAACP chapter in Spokane, Washington; a professor of Africana studies at Eastern Washington University; and was recently “outed” by her parents as a white woman who has been passing as a black woman for years.

The talking news heads have been comparing her case to that of Caitlyn Jenner, whose transition to a woman was famously declared on a recent cover of Vanity Fair. But that comparison would be wrong – very wrong in my opinion and in the eyes of the law. The transgender community is not interested in passing as something they’re not. They are telling the world that they -since they can remember- are not the gender their bodies proclaim them to be. They are not passing as women or men – they are women or men. Choice is not involved. And that is why more and more many communities are affording them legal protection. Gender-identity has been added as a category requiring protection from discrimination in many states across the country. As recently as a few weeks ago, the Town of North Hempstead on Long Island changed its code to ban discrimination of town workers on the basis of gender identity. Courts across the country have held that employers cannot ban trans-gender individuals from using the restrooms, changing areas or locker rooms assigned for the gender with which they identify. It is precisely because gender identity is not seen as a choice that the protections are there – our jurisprudence has long recognized that it is wrong to treat people differently based on characteristics that are not within their control and instead are part of their makeup from birth.

Not Caitlyn Jenner

Not Caitlyn Jenner

The Dolezal case has nothing to do with that and is nothing like that. Ms. Dolezal’s case is one of cultural appropriation for a personal benefit. She chose to portray herself as a black person and gained notoriety and prestige due to her false race. There could be a claim against her perhaps if she gained some benefit through the fraud. For example, if she was placed on a police oversight board because the community wanted a minority voice on the panel or if she gained some benefit by stating she was black on some application.

But most workplaces don’t employ affirmative action and therefore cannot make decisions based on race or even inquire about race when someone applies for employment. The reason gender identity comes up in employment litigation from time to time is because of the issues regarding accommodations in rest rooms, locker rooms and changing areas like I mentioned above.Since Title VII passed in the 60s, however, there have been no accommodation distinctions based on race – so if Ms. Dolezal let’s say worked at a bank that had never asked her about her race and she chose to identify and hold herself out as a black person this would be a non-story and would not be a new phenomenon. My friend Baz Dreisinger, a professor at John Jay College, wrote the excellent book Near Black: White-to-Black Passing in American Culture/ in 2008 and told about numerous instances of white men and women purposely passing as black. Some did it to better integrate into the Jazz community of the 1920s, others did it because they fell in love with a black person and decided to become full members of the black community since they would be ostracized in the white community. So this is not really that new of a concept. The only reason this became a thing is because of the fame and prestige Ms. Dolezal gained as a result of her deception. Why did she feel the need to do it when she likely could have accomplished all of the same goals while not trying to pass as someone she’s not? Who knows – lawyer here not psychologist.

What would be wrong though is to use Ms. Dolezal’s case as a reason to slow down or stop the current trend toward recognizing gender-identity as a category worthy of protection in anti-discrimination laws. Or to equate her choice to fake her race as some sort of moral equivalent of those in the transgender community who are transitioning or have transitioned. Many pundits are doing that right now and we should not stand for it.

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Jun 10 2015

NY Court Lets Dog Owners Off the Hook For Dogs Running Off the Leash

NY has long held that dog owners cannot be held liable for injuries caused by their domestic animals unless the injured party could prove that the owners were aware of the animal’s vicious propensities “Vicious propensities” did not mean you had to show they were necessarily aggressive or likely to bite, just that the owner had special knowledge that their animal was hard to control or prone to cause injury. This is called strict liability because if you could prove the owners had that knowledge they were automatically liable for the injury caused. Two recent cases that had divided the lower appellate courts looked likely to crack that difficult standard and open the law up to allow lawsuits based on mere negligence -if one could prove that a reasonable person would have controlled their dog in a better fashion and that the failure to exercise reasonable care led to injury then the owner would be responsible.

This is the standard by which humans are judged – the reasonably prudent person. We have an obligation to act responsibly to avoid injuring one another. We owe a duty to avoid behaving (or not behaving) in such a manner that could foreseeably cause injury to others. But the NY Court of Appeals rejected changing the law and let two sets of dog owners get away with causing injuries by what most folks would consider to be imprudent behavior.

In Doerr v. Goldsmith a couple was walking their dog near the bicycle loop in Central Park during the time that the City allows dogs to be off leash. They split up and were on opposite sides of the road when Mr. Doerr came on his bike on the path meant for bikes. That’s when the girlfriend decided to call the dog over to her from where her boyfriend was holding it on the other side of the road. Mr. Doerr tried to scream out to the couple to control their dog just prior to the impact but it was too late. The dog responded to the call and bolted across the road where it collided with Mr. Doerr, causing him to be thrown off his bike and become seriously injured.

In Dobinski v. Lockhart the Dobinksis were riding their bikes on a rural public road near the Lockhart farm. The Lockharts were inside their home when Ms. Lockhart decided to release her two German Shephards which promptly ran through a fence and 60 feet across the road to knock Ms. Dobinski off her bike once again causing very serious injuries.

The majority opinion (7-2 in the Doerr case and 4-3 in the Dobinski case) didn’t say much; they basically relied on the nearly 200 year old history of only allowing lawsuits based on prior knowledge of vicious propensities. They were unfazed by the fact that those cases arose when NY was a rural community and everyone had dogs running loose on their farms. By the way it has always been then law that if you negligently allow a farm animal to get loose and it knocks someone down, you are responsible. The immunity only applies to pets.

Justice Abdul-Salaam, while agreeing with the decision, felt obligated to write her own lengthy opinion which frankly didn’t help much and which I think is just plain wrong. After taking us through a lengthy dissertation on the history of dog liability, she makes a statement that is the central argument to her decision:

“The average New Yorker knows or ought to know that he or she will encounter insufficiently restrained pets, which are not confined to the owner’s premises and may harm others depending on the disposition of the pet and the degree of training it has received”

Beware of owner!

Beware of owner!

Really? Do I know that I may encounter wild unrestrained dogs in the streets of NY? And if I do, why does that absolve the person who allowed them to go wild and unrestrained? Maybe that knowledge on my part adds some liability to me but it should not immunize the dog owner. after all, I know that folks occasionally run red lights and therefore the law requires me to pay attention when going through an intersection even if I have the green, but my knowing that people sometimes run red lights does not get the red-light-runners off the hook all the time which is the equivalent to what this ruling does for negligent dog owners. Abdul-Salaam relies on the doctrine of stare decisis to support her position – that states that once courts have decided issues, they should not re-visit or seek to change the law so that others can rely on the precedents set. She stated, “In general, we do not cast aside precedent unless it has become unworkable, increasingly irrational and/or increasingly unjust over time.” Well I think in light of today’s dog urban dog culture, letting negligent dog owners get away with seriously hurting people is both irrational and unjust.

Chief Justice Lippman agrees, dissenting in both cases. He put it this way:
[A]pplication of the rule in this instance would serve only to immunize defendant from the consequences of her own negligent actions, for no reason other than that a dog happened to be involved in the accident.

Well said. Negligence is negligence. If someone fails to see the foreseeable risk of injuries to others by their actions or inaction, and that failure causes harm they should be held responsible. The other dissenter, Judge Pigott called for a repeal of the strict liability law and for a return to common law negligence in dog cases:

We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. I cannot join the Court’s memorandum opinion and I disagree with the analysis put forward in the concurring opinion

What he said.

Read the whole decision Here

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Jun 05 2015

Passive ISP Company Found to be Active Participant in Infringement

The Digital Millennium Copyright Act protects Internet Service Providers (ISPs) and other companies that merely provide a place to host content from claims of copyright and trademark infringement for alleged violations caused by companies and individuals who post infringing content. But what about an ISP that merely allow users to connect to allegedly infringing sites? Could they be part on an injunction stopping the sites from continued infringement? Judge Alison Nathan of the Southern District of NY, the Federal Court that covers Manhattan, has answered that question Yes” and that “Yes” can cause a new level of liability for companies that see themselves as passive providers of services to internet companies.

The case started when various music labels sued the music streaming company Grooveshark for copyright infringement for allowing the free streaming of their copyrighted content. After four years of litigation, Grooveshark folded and transferred all of their trademarks to the labels as part of the settlement. Days later, a copycat version appeared. After a Manhattan court issued an immediate temporary injunction, the copycat site moved twice, landing on the domain “Grooveshark.li.” A representative of the site going by the name Shark told Reuters at the time, “It’s a war!”

cloudflareWell, as in all wars, collateral damage is a given and this “war” is no different. Not happy about the existence of a Grooveshark.li domain existing, the labels brought in CloudFlare as a party to the injunction. Each version of a Grooveshark site, however, used the services of San Francisco-based CloudFlare, which optimizes the speed of websites and allows Internet users to connect to them without having to type in the numerical Internet address. The labels argued that Cloud Flare was made aware of the injunction and was allowing violations of the injunction by letting “Grooveshark” sites exist.

CloudFlare fought back, enlisting the help of the Electronic Frontier Foundation (EFF), an Internet civil rights group that is always on the cutting edge of legal issues relating to the Internet. CloudFlare, argued that it neither hosts websites nor registers their names, and further said in court papers that its services were passive and automatic. Federal rules allow third parties to be made part on an injunction if they are in “active concert or participation” with the infringer. It also argued that stopping CloudFlare would not stop Grooveshark as a new Grooveshark would be able to continue on one of the myriad other companies that provide a similar service. Finally, CloudFlare argued that to deny its services to the site would require it to “proactively enforce Plaintiffs’ trademark against all comers,” and that such a precedent could force everyone from infrastructure providers like AT&T and Verizon to wireless carriers to proxy servers to do the same.

Judge Alison Nathan

Judge Alison Nathan

The court was not impressed. Judge Nathan, a recent Obama appointee to the bench, ruled that what CloudFlare did made it in “active concert and participation” with the ongoing infringement and therefore subject to the court’s injunction:

Connecting internet users to grooveshark.li in this manner benefits Defendants and quite fundamentally assists them in violating the injunction because, without it, users would not be able to connect to Defendants’ site unless they knew the specific IP address for the site,

Finding that an automated service engages in active participation in trademark infringement by merely providing faster service to an allegedly infringing site opens up a slew of possible similar injunctions down the road. The key here is that Judge Nathan found that since Grooveshark is a distinctive trademark, CloudFlare should have been able to easily stop all access to any site that used the trademark in its domain name. But what about less distinctive names? What about sites that use the trademark on their site but not necessarily in their domain name? The company’s general counsel, Kenneth Carter said in an interview that Judge Nathan’s ruling “makes CloudFlare and other Internet Service Providers the copyright and trademark police for other rights holders.”

This ruling will have a significant impact on CloudFlare’s business model as it is possible that many of its other streaming clients, like Pirate Bay, are infringing on trademarks and copyrights and the company could be faced with similar injunctions. Furthermore, the court here denied the labels’ request for legal fees because it found that CloudFlare “advanced a colorable, good-faith basis for believing that it was not covered by the injunction.” But now that it lost this case, CloudFlare no longer has such a good-faith basis and must immediately comply with similar injunctions or face a huge bill for the other side’s legal fees. It seems that CloudFlare is not going to appeal the decision, so for now Judge Nathan’s ruling has limited reach as other courts of the same level and other courts outside the Southern District are not technically required to follow it. Rest assured the labels will bring similar claims everywhere they can and Judge Nathan’s ruling will at least have to be considered by each court as it is the first and only decision on this issue.

The Internet and digital technology continue to provide new areas of legal issues that require courts to interpret the technology under the language of statutes written well before the technology existed. Judge Nathan felt that CloudFlare’s knowledge of the injunction and continued allowance of a grooveshark domain name’s use of its service was “active concert and participation in” trademark infringement. I don’t see how she really could have ruled otherwise. To deny the injunction would allow Grooveshark to do an end run around the court order. Grooveshark will likely find another company to provide the same service and the labels will likely file a similar injunction. Who knows how long this legal game of “Whac-A-Mole” will go on. But either way the case brings in a new level of liability for companies like CloudFlare and they may need to adjust their business models accordingly.

Judge Nathan’s Ruling

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Jun 01 2015

Supreme Court Ducks Main Issue in Internet Threat Case

The Supreme Court yesterday issued a long awaited decision in Elonis v. United States that failed to address the core issues presented by the case involving harsh language posted on the Internet. Under a 1939 federal criminal statute prohibiting the communication of threats, Anthony Elonis was charged with threatening his wife; a kindergarten class; and law enforcement officers; — including a female agent who visited his house to question him. All were subjects of rap-style lyrics he posted to Facebook, under the pseudonym Tone Dougie. Elonis claimed that disclaimers he posted on his page proved that he did not mean the language to be “true threats.”

Here’s one example of Elonis’ Facebook postings, quoted by the Supreme Court on Monday:

“Fold up your [order of protection] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order that was improperly granted in the first place
Me thinks the Judge needs an education on true threat jurisprudence
And prison time’ll add zeros to my settlement . . .
And if worse comes to worse
I’ve got enough explosives
to take care of the State Police and the Sheriff ‘s Department.” I wrote about the case as it headed for argument to the Supreme Court in a blog post Here

A jury convicted him of communicating threats and Elonis was sentenced to more than three years in prison. His appeal was heard by the Supreme Court in December 2014. Since then, the Internet community has been watching the case and waiting for the Court’s decision, eager for a clear understanding of how to distinguish the legal but colorful and often rough language used on discussion forums; in blog posts; and in comments to web articles and “true threats.” More importantly, did the Government have to prove that the defendant intended to threaten the subject of the posts or was it enough that the subjects of the post felt threatened? Could a defendant be convicted if he acted recklessly – that is ignored the risk the his language could be viewed as a threat? But the Court, in a 7-2 decision written by Chief Justice Roberts,took a pass on those issues and decided the case based on what it saw as an erroneous jury instruction.

The lower Federal Court had instructed the jury:

A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.

So it only mattered that Elonis intended to make the post; if a reasonable person would perceive the post as a threat, then he could be convicted under the law even if Elonis did not mean to actually threaten anyone. Judge Roberts found this instruction insufficient and said it turned a criminal case into a civil case:

 Chief Justice John G. Roberts.

Chief Justice John G. Roberts.

Elonis’s conviction . . . was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct- awareness of some wrongdoing. Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks—“reduces culpability on the all-important element of the crime to negligence and we have long been reluctant to infer that a negligence standard was intended in criminal statutes.

Justice Alito and Justice Thomas wanted the Court to go further and specifically delineate the mental state required to be proven, particularly stressing that the Court should state if “recklessness” was sufficient. Both Justices criticized the Court for leaving these issues open, with Alito clearly attacking Roberts’ position:

The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the
Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard.

Alito comes right out and say that recklessness should be enough and goes one step further and says the First Amendment does not protect speech if the language is a true threat even if the sender did not intend it to be a true threat. Judge Thomas felt that the intent of the sender was irrelevant and that all that should matter was whether the speech would be defined as a true threat. He went on to state that the Court should have made clear what level of conduct was required under the statute:

Our job is to decide questions, not create them. Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today’s decision rests.

Both opinions would have created havoc in the Internet community as many folks could be charged criminally by just making harsh posts that others considered threats. Both opinions tried to challenge the majority to make a stand and make a definitive ruling. Judge Roberts did not bite – he made clear that the decision went far enough. Nine Federal Appeals courts had said that negligence had been enough and had used language similar to the language used in this case. This case, he says, establishes that negligence is not enough. If and when the lower courts apply a reckless standard, the Court can decide then if that is also enough – but for now, “[n]o Court of Appeals has even addressed that question. We think that is more than sufficient justification for us to decline to be the first appellate tribunal to do so.”

I recently argued a similar case before the Georgia Supreme Court called Chan v. Ellis in which a host of a discussion forum was charged with threatening the subject of certain posts he and others wrote. During oral argument, my co-counsel, the Constitutional law scholar Eugene Volokh, was asked a justice whether the court should wait to see what SCOTUS did on Elonis before deciding our case. Professor Volokh answered “No” arguing that it was clear that the criminal statute involved in our case required an intent to communicate a threat and that negligence would not be enough, whereas that was the only real issue in Elonis He was right.

So Court watchers and others will have to wait a few more years until those questions come before the Court. Likewise, it looks like it may require another batch of cases for the Court to shape the level of First Amendment protection afforded to Internet language that can be perceived by others to be threatening even if the speaker did not intend to make a threat.

Read the entire Court opinion Here

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May 12 2015

HBO Doc on “Cannibal Cop” Shows Ugly Side of Net and Law

Last night HBO debuted its intriguing documentary “Thought Crimes” focusing on the Cannibal Cop case here in NY. The trial and the show exposed a dark side of the Internet, revealing chat rooms and websites devoted to discussion and fantasy about kidnapping, raping and even murdering women. But it also showed the potential danger of “Conspiracy” charges which can be brought even if a crime was not actually committed.

I’ve written about this case a number of times- most recently, in this post about a juror speaking out But let me quickly recap the case – Gilberto Valle was an NYPD cop and new father when he began going onto fetish websites that explored the above content. He would do so in the late evening into the early morning when his wife and baby were asleep. He would regularly discuss actually killing and eating his wife. Then things got even darker, he used an NYPD computer to access personal information about women he knew and went to college with. He began talking about specific plans to kidnap one who would be raped and killed. He said he had bought most of the items he needed and learned how to make chloroform at home. While he never actually did those last steps he claimed he did, he did take a trip and have lunch with the alleged potential victim. He told his chat room cohorts that he was excited to be “casing his first kidnapping.” He immediately reached out to them upon coming home from the trip to tell them what he learned.


When I wrote my first blog post about the case, a juror from the case reached out to me and as described in the above post, told me that the visit to the college friend and the use of the NYPD computer to get her personal information was enough to show that he moved from fantasy to planning an actual crime. Reasonable minds may differ on that, but the jury was unanimous that his actions fit the crime of conspiracy. A federal judge disagreed and reversed the jury’s verdict. That decision is presently on appeal.

And I think the government may very well win that appeal. Not because that’s necessarily what’s right in the case but because the law of conspiracy is a favorite tool of federal prosecutors and they will argue that future cases will be hampered if a jury can be readily second-guessed on whether the government has proven its case. For all its references to 1984 and “thought crimes” the HBO documentary did not do enough to explore how the US Attorney’s Office has had a mad love affair with “Conspiracy” since Ed Meese became Attorney General under Ronald Reagan. It’s a “Catch-all” crime that normally leads the top of a Federal Indictment precisely because it can be so easy to prove. In most cases, you need to prove that the defendant actually committed a crime. Under conspiracy law, you need only prove that the defendant discussed or planned a crime and then took one overt act towards committing that crime. The overt act could be (and often is) a perfectly legal act, like renting a car or purchasing rope.

Conspiracy is used in drug cases, weapons distribution cases, terrorism cases, even stolen car theft rings. It not only allows the government to arrest you and charge you even though no crime was committed, it also allows the government to ensnare people into large-scale criminal enterprises they were not actually part of. That’s because the other arm of conspiracy is that if you choose to do a crime with John Smith, let’s say a single drug sale, if you and John Smith get arrested, you could find yourself being charged with all of the drug sales John Smith has made in recent times as part of larger scale operation by being accused with “conspiring” with him. So even though you only agreed to sell one gram of coke, you could be charged with being part of a multi-kilo drug ring.

The feds get quick plea and cooperation deals from low-end members of the conspiracy when they see the time they are facing for what would amount to misdemeanors in State Court. Conspiracy is the bread and butter of the US Attorney’s Office and they are not likely to give up on it anytime soon. They will argue to the Second Circuit (the NY Federal Appeals Court) that whether one overt act was committed in furtherance of a conspiracy is a jury question and that a court cannot usurp the jurors’ functions in deciding if the acts proven by the government were enough. The Second Circuit would have to decide that no reasonable juror could have believed that using the NYPD computer and taking that trip to case his college friend were sufficient overt acts to justify the conviction. You can expect a vigorous argument by the US Attorney’s Office about the importance of conspiracy charges to prevent crimes from happening and to catch people before they commit public harm.

HBO was kind enough to thank me in the credits of the film for some background legal information I gave them and for facilitating an interview with the juror who contacted me after my blog post. The piece did a good job of showing how carefully the jury considered the evidence and the elements of the charge. In the documentary, the juror talked about how they understood that their verdict would change a man’s life forever and that they had to be sure before they pronounced him guilty. But she also said that they were confident when they were done that the evidence that Valle had crossed that line into actually planning a crime had been met. We’ll have to see if the Second Circuit agrees.

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