Showing posts with label freedom of speech. Show all posts
Showing posts with label freedom of speech. Show all posts

Thursday, June 02, 2016

San Diego ACLU's David Loy says UCSD cut student newspaper funding to curtail speech

Koala vs. Khosla: We need more speech, not less, to address the undercurrents of hate in our schools. See the federal complaint here.

Offensive UC Newspaper Demands Funding
By JON CHOWN
Courthouse News
June 02, 2016

SAN DIEGO (CN) — The Koala, a satirical student newspaper whose motto is "The Worst in Collegiate Journalism Since 1982!" claims the University of California San Diego cut its funding to punish it for its speech.

Koala, primarily distributed on the UC San Diego campus, is one of several publications supported by the Associated Students of UCSD. It regularly satirizes issues involving ethnicity, sexual orientation, religion and even people with disabilities.

     Its content has drawn complaints for years, but it's managed to survive. But administrators' decision last year cut all funding to student publications may have killed it, unless The Koala can win what it has proclaimed "the trial of the fucking century."

     Its Monday complaint in Federal Court seeks an injunction against UCSD Chancellor Pradeep Khosla, Associated Students of UCSD President Dominick Suvonnasupa, the Associated Students of UCSD Financial Controller Tristan Britt.

     "There are two core issues: freedom of the press and freedom of speech," The Koala's attorney David Loy said. "The university violated both by discriminating against the student press and discriminating against the viewpoint of one student newspaper."

     Attorney Loy, with the ACLU Foundation of San Diego and Imperial Counties, said the ACLU took the Koala's case because of the speech and free press issues, and that the case is clearly laid out in emails and online reports.

     The college has tried to shut down The Koala before. In 2002, it tried to revoke its registration as a student organization after a member took photos of another student organization's meeting and made fun of it.

     In 2010, all student print media were suspended after The Koala broadcast an invitation for an event called "The Compton Cookout," and asked participants to wear chains, cheap clothes and be loud. Women were told to dress up like "ghetto chicks." That stirred outrage among the African-American community on campus.

     E-mail threads cited in the complaint reveal a discussion between administrators on how to quash the paper, dating back to the 2010 incident.

     The Koala's Nov. 15, 2016 story, "UCSD Unveils New Dangerous Space on Campus" uncorked a new flood of complaints and a renewed effort to stop it.

     The story mocked UCSD's new "safe spaces" where students allegedly are excused from restrictions on insensitivity.

     The predictably offensive story reported: "Located in the center of Library Walk, the new Dangerous Space is the ideal place for students to do whatever the hell they want," then quoted a fictitious "Asian nerd," F. Yu, who enjoyed necrophilia.

     In the interest of fair and balanced reporting, perhaps, the complaint cites 15 student complaints against the Koala, including: "Knowing that my school is funding such a heinous magazine is not okay and I stand by my fellow students to get it off this campus. Please cease funding for this awful publication."

     And: "I would like to see UCSD dismantle The Koala immediately."

     And: "Pull the funds, and make them turn to personal donations if they way to continue this nonsense. They have the UC stamp/icon on the paper. UCSD already has a bad racial climate and this is an obvious contributor that can be eradicated."
     And: "I would like the University to shut down the koala newspaper and the creators of the newspaper should be punished by their college deans."
     Two days after the "Dangerous Space" story was published, Chancellor Khosla and other top administrators denounced The Koala "profoundly repugnant, repulsive, attacking and cruel." The UC San Diego Associated Student Council quickly decided to cut funding to all student-run publications.
     Another UCSD student newspaper, The Guardian, reported that Associated Student Council President Dominick Suvonnasuna said the administrators' attack had no bearing on the Student Council's quick decision to cut funding, that it was a coincidence.
     The Koala doubts that.
     "However offensive or outrageous it may have been, the article remains protected free speech on topical issues of public concern," the complaint states.
     The Koala wants the university enjoined from refusing to provide funding for campus publications or "otherwise interfering" with the First Amendment, plus attorneys' fees and costs. 

Monday, March 23, 2015

From the archives: California Attorney General disagrees with law firm hired by Grossmont-Cuyamaca College

Maura Larkins' note: A few months ago I depublished about 400 posts, and I'm gradually republishing them. I'm working to censor certain allegations against Stutz Artiano Shinoff & Holtz law firm while continuing to make information available about the actions of public officials.

Why did Grossmont-Cuyamaca Community College fire non-voting student trustee Rick Walker from his job as a web analyst for the college?  The reason they gave was that he had a conflict of interest if he was employed at the same time that he sat on the board. But he didn’t even vote! All he could do was talk?


Who was it who really had a conflict of interest?

Clearly, the board wanted to silence him.

The California Attorney General issued an opinion that there was no conflict of interest.

Leonel Sanchez of the San Diego Union Tribune wrote on Sept. 11, 2007, "A spokesman for the California Community Colleges Chancellor's Office said he was not aware of student trustees at other colleges being told they could not serve on governing boards while working for their districts."

Rick Walker took down his website in or about December of 2007, right after I was sued for defamation by the lawyers for GCCCD.

The "Rethinking"

Nothing much happened when GCCCD trustee Deanna Weeks "rethought" an issue. [Update: Ms. Weeks decided not to run for reelection after several embarrassing episodes when scrutiny of her actions became too uncomfortable.]


October 4, 2007
The "rethinking" allegedly done by GCCCD trustees regarding their firing of non-voting student trustee Rick Walker apparently resulted in no new insights. Certainly, it resulted in no new actions. The board decided to ignore the opinion of the California Attorney General.

Rick Walker succeeded in making GCCC officials at least go through the motions of reevaluating their actions in the light of a California Attorney General legal opinion that contradicts the opinion of Stutz law firm attorney Jack Sleeth.

If GCCCD board members stay true to form, the "reexamination" will result in no action at all.

What they should do, of course, is pay damages to Rick Walker for wrongfully harming him. Especially when they harmed the college by punishing a student trustee for bringing up issues that needed to be addressed for the good of the college.

Leonel Sanchez is doing a great job covering the story for the San Diego Union Tribune.

Here's his September 19, 2007 report:

"The Grossmont-Cuyamaca Community College District will again review the issue of whether a student trustee can serve on the district's governing board while holding a job in the district.

"The last time the district looked at the conflict-of-interest issue, it led to the firing of former Grossmont College student trustee Rick Walker, who was let go from his job as a Web analyst in December 2005.

"Walker, speaking to the board last night, repeated his claim that he was unjustly fired...

"District officials said Walker was fired after district lawyer Jack Sleeth reviewed state education code and concluded that student trustees should not be allowed to be district employees...

"“You will ultimately find out what the law is if somebody will bring some litigation on this,” Sleeth said.

"Walker has threatened to take legal action. State Sen. Christine Kehoe, D-San Diego, requested the legal opinion from the Attorney General's Office at his request.

"Trustee Bill Garrett said he found the attorney general's opinion “persuasive” and proposed changing the district's policy to reflect that opinion. No action was taken on his proposal..."


Leonel Sanchez: (619) 542-4568; leonel.sanchez@uniontrib.com

Wednesday, February 04, 2015

Sometimes David Loy gets it right: speech about crimes should not be criminalized

See all posts about San Diego ACLU chief counsel David Loy.

On the district attorney’s theory, it could prosecute a current or former gang member for writing a book, giving an interview to an author, or appearing in a documentary about gang life, as well as a substance abuse counselor who draws on his gang experiences, because they all “benefit” from knowledge of crimes committed by gang members.

San Diego Man Faces Life in Prison for … Rapping
by on February 4, 2015 
San Diego Free Press

San Diego prosecutors admit that Brandon Duncan was not at the scene of any one of several shootings in the city, and they have no evidence linking him to those shootings that occurred between May 2013 and February 2014. Still, the District Attorney Bonnie Dumanis charged him for those crimes because…he rapped about them.

...Only recently released on bail, Duncan, who performs under the name Tiny Doo, spent eight months in jail on so-called “gang conspiracy charges” arising from those shootings. The San Diego ACLU is filing an amicus brief in court asking the court to dismiss the charges immediately. In a blog post about the case, David Loy, legal director of the ACLU of San Diego & Imperial Counties said that the case was “not only absurd; it is a blatant violation of the First Amendment.”

The district attorney is testing a law in which an “active participant” in a “criminal street gang” who “willfully promotes, furthers, assists, or benefits from” any felony committed by fellow gang members can be charged with “conspiracy to commit that felony.” Unlike traditional conspiracy, the charge does not require any agreement to commit the crime. Instead, it requires either “promoting, furthering, or assisting” the crime, which means being a direct accomplice, or knowingly “benefiting” from the crime.

“Whether or not this law can be used to prosecute others, the prosecution is abusing it to charge Duncan,” Loy said. “To ‘promote, further, or assist’ means to aid and abet, and there is no evidence he did that.” Instead, the prosecution is unconstitutionally twisting the word “benefit” to charge Duncan. The district attorney alleges that he  “benefited” by making a CD called “No Safety,” on which he raps about shootings, and by receiving “praise” for his music. As the prosecutor admitted, he wouldn’t be charged if he sang “love songs.” That’s a classic First Amendment violation.

...“This is a textbook case of using a ‘gang’ dragnet to over-criminalize people of color,” Loy said. Beyond that, even if prosecutors could prove that Duncan is an “active participant” in the gang under California law, the prosecution’s theory violates the First Amendment by punishing him for the content of his speech. The government can punish crime, but it cannot punish speech about crime, even by proven criminals about their own crimes, much less an artist like Tiny Doo.

The U.S. Supreme Court has held that the government can’t confiscate income from speech based on its content, even speech about crime, because that would punish the speech itself. Under that principle, the government cannot prosecute Duncan for singing about crime or allegedly receiving “benefits” for doing so. Indeed, this case is even worse, because it involves criminal prosecution, not just loss of income...

The government cannot criminalize free speech, and it cannot criminalize Duncan’s music. Duncan is now free on bail, but he still faces “gang conspiracy” charges, which threaten a potential life sentence. The ACLU brief calls on the court to dismiss the charges immediately. “The court should stop this case in its tracks and send a clear message that prosecution for protected speech cannot be tolerated,” Loy wrote in his blog post.

Thursday, January 22, 2015

San Diego ACLU's David Loy and Darren Chaker demanded that blogger silence herself, but Court of Appeal upheld First Amendment

[A story about husband and wife attorneys in Irvine who harassed a volunteer at their son's school (and ended up in jail) can be found here: Sound familiar? Completely false allegations made in an effort to banish woman from California school.]


Update Jan. 2015: 

Darren Chaker appointed himself in July 2011 to do negotiations for Stutz, Artiano Shinoff & Holtz law firm (see below).  More recently, Mr. Chaker started a public relations campaign on behalf of Stutz law firm.  I doubt that Stutz law firm ever wanted his help.

Darren Chaker pretends that there was a trial in which in this blogger was found to have defamed Stutz law firm.  This is false.

In fact, there was no finding of fact in Stutz v. Larkins.   

Instead, Judge Judith Hayes, who was found to have acted in an "exceedingly unconstitutional" manner in the case,  threw out my opposition to summary adjudication because of a small error in format.   She also threw out all my evidence.

Thus, her ruling of defamation did not claim to based on a weighing of the evidence.  It was a decision of "law", not of "fact."  Judge Hayes simply announced that there was "no opposition" to Stutz' motion for summary adjudication, and granted the motion.

This past week Darren Chaker has written to people on my street to report that I "was found to have made defamatory statements about an upstanding law firm who represents schools" and then he went on to name Stutz Artiano Shinoff & Holtz.

I became acquainted with Stutz law firm several years ago after I was harassed at my workplace in Chula Vista Elementary School District.  I refused to go back to work until there was an investigation.  The district refused to investigate, and wrote me many letters demanding that I return to work.  The district has concealed the results of its "investigation" to this day.  The district fired me a year later, immediately after I filed suit against the district, claiming that I had been "insubordinate" by refusing to return to work.

Update 2013: David Loy's pal Darren Chaker Sentenced to Federal Prison for Bankruptcy Fraud

See new posts re David Loy and earlier posts under his former name of David Blair-Loy.


ORIGINAL POST:

The following story was first posted Feb. 13, 2012 :

The ACLU claims that it does not give legal advice regarding cases it refuses, but it turns out that this is false. The ACLU refused my free speech case, but at the same time, I was given very specific legal advice by San Diego ACLU attorney David Loy (formerly Blair-Loy) regarding the defamation case against me by Stutz law firm.

In 2010 Mr. Loy wrote to me in an email that I must remove every mention of the names of a group of San Diego attorneys from my website; he has never modified his position, even when I won in the Court of Appeal on August 5, 2011.

Why was Mr. Loy so determined to make sure that I obeyed the obviously unconstitutional order of Judge Judith Hayes? I'm a third-grade teacher, and I knew the injunction was unconstitutional. Clearly, Mr. Loy knew perfectly well that he was insisting that I obey an unconstitutional order. I did not follow Mr. Loy's legal advice; I would rather go to jail than obey that order. (And, in fact, the law firm asked Judge Hayes to put me in jail, but she declined.)

 Instead, I appealed to the California Court of Appeal without the ACLU's help.

The law firm attorney argued before the Court of Appeal that my appeal should be dismissed because I disobeyed the trial court's order. Attorney Shawn Martin argued on my behalf that no Appeals Court had ever dismissed a case because an appellant disobeyed the very order that was being appealed.

The Court of Appeal asked the Plaintiff if he knew of any case law to back up his argument that since the injunction was a sanction, it therefore was not constrained by the Constitution. He said he had not been able to find any such case law, but he added, "I tried, believe me, I tried!"

On August 5, 2011 the California Court of Appeal in San Diego ruled that Judge Hayes' (and Mr. Loy's) demand was "exceedingly unconstitutional."

As I walked out of the Court of Appeal after oral arguments, I was approached by Darren Chaker, who has a website sporting a photo of himself posing with a smiling David Blair-Loy. Mr. Chaker advised me to take down my website in exchange for the law firm's agreement to not to make me pay attorney's fees. (Note to Mr. Chaker: the law does not allow attorney's fees in defamation cases.) I told Mr. Chaker that I would rather go to jail. He said, "I'm just advising you to do this because they are so nasty." Then Mr. Chaker went over to two members of the Plaintiff's law firm, and walked out of the courtroom chatting with them!

So the question remains, why on earth would David Blair-Loy try to silence someone who criticized public school attorneys? Was he serving his own agenda, or the agenda of the board of the San Diego ACLU? Perhaps both. Loy's goal seems to be to maintain a reputation as "highly civil" with his fellow attorneys in San Diego, particularly those who are tasked by local schools with the job of limiting free speech.

But the ACLU board supported Mr. Loy's actions.

Why?

Were they trying to please big donors?

I talked to board president David Higgins about this, but he claimed that he understood nothing about the law. I explained it to him carefully, but he continued to insist that he understood none of it. Why is such an individual in the position of board president of the San Diego ACLU? My guess is that he was chosen because he's willing to rubber-stamp every decision that David Loy makes, no matter how hostile it may be to civil rights. I conclude that Mr. Higgins does not really care about the constitution. I suspect he has a personal agenda that is limited to his own interests.

Here is the email sent to me by Mr. Loy:

from dblairloy@aclusandiego.org
to Maura Larkins
date Wed, Apr 28, 2010 at 9:18 PM
...However, the law does not allow anyone - a government official or a private person - to disobey a court order because they believe it is illegal. Under the law, the proper course is to seek appellate review of an order, and/or a stay of the order, rather than to disobey it. The rule of law in our system depends on compliance with court orders until or unless they are stayed or reversed...
David


In fact, Mr. Loy gave bad legal advice. 

The truth is that once I filed my appeal, the mandatory aspects of the injunction were automatically stayed, and I was not required to take down my web pages about Stutz. I think Mr. Loy knew this. What was your motive for giving me legal advice, Mr. Loy?

Following is the 2010-2011 ACLU board in San Diego, each member of which tacitly or actively supported Mr. Loy's actions:

William J. Aceves
Candace M. Carroll--Sullivan Hill Lewin Rez & Engel
Paula Doss, J.D.--Director of Human Resources for Equal Opportunity at UCSD
Ruben Garcia
David R. Higgins, Ph.D.
Gregory G. "Greg" Rose
Hon. James Stiven--California Western University
Stephen Whitburn
Mary Cruz
Mark Adams
Pat Boyce
Linda Cory Allen
Michele Fahley
Deborah Fritsch
Kevin "KJ" Greene
Dwight K. Lomayesva
Mark Niblack
Susan Pollock
Yvonne Sanchez

Here is the 2011-2012 ACLU board in San Diego, some of whom are new and were not involved in Mr. Loy's actions:

Mark Adams
Nasser Barghouti (NEW)
Elizabeth Camarena (new)
Candace Carroll
Jeff Chinn (new)
Paula Doss
Michele Fahley
Ruben Garcia
Kevin "KJ" Greene
David Higgins, Board President
Jonathan Lin (new)
Dwight Lomayesva
Jim McElroy (new)
Mark Niblack
Susan Pollock
Greg Rose
Hon. James Stiven
Joanna Tan (AIG!!!) (new)
Stephen Whitburn
Paul Wong SDSU(new)
Andy Zlotnik (new)

Wednesday, January 21, 2015

Sound familiar? Completely false allegations made in an effort to banish woman from California school

At an elementary school in Irvine, California, two attorneys (parents of a boy at the school) tried to put an innocent woman in jail, and ended up in jail themselves.  See first story below.

Sadly, not all false allegations are so clearly exposed.

School districts are hotbeds of abuse and hostility among adults.

Chula Vista Elementary School District wanted to get rid of me when I refused to be silent about rampant wrongdoing.  "You must forget the past," said Assistant Superintendent Rick Werlin.

Werlin demanded again and again that I return to work without any investigation having been done regarding my allegations.   He spoke on behalf of Superintendent Libia Gil and a school board that consisted of Cheryl Cox, Pam Smith, Bertha Lopez--yes, the Bertha Lopez who pled guilty to corruption charges, Patrick Judd--yes, the one found liable in court for shocking sexual harassment of an employee, and Larry Cunningham.  In a bid to protect abusive teachers, CTA leaders, including Jim Groth, refused to require that the district obey the law and the contract.  

Many school district employees function as "honor brigades" to silence discussion of problems.  See second story below.

How Two California Parents Ended Up in Jail Over After-School Spat
...A Mysterious Call to Police Over an ‘Erratic Driver’
A year went by as Peters and the Easters battled in court. Then, on Feb. 16, 2011, the Irvine Police Department received a call around 1:15 p.m. on a school day, reporting an erratic driver at the Plaza Vista School. The person on the phone said his name was “Vijay Chandrasekhar,” and he was concerned about the welfare of his child, who he said attended the school.
A man tells the dispatcher, “I’m concerned one of the parent volunteers there may be under the influence or using drugs... I just had to go over to the school and I saw a car driving very erratically.”
The caller gave a description of the car, a white PT Cruiser, and said the volunteer’s first name was “Kelli.” Officer Charles Shaver with the Irvine PD was dispatched to the school and found the car in the parking lot.
“The caller that indicated the erratic driving also said there was a potential that the driver put drugs or pills behind her seat,” Shaver said, “So, I went to the driver’s side and looked in the window... There was a large bag of marijuana that was protruding out of the seat pocket, behind the driver’s seat.”

‘Please Put the Drugs Away ... They’re Not Mine’
Officer Shaver went into the school to find the PT Cruiser’s owner, and discovered it belonged to Kelli Peters.
Peters said when the officer first came in, she panicked, thinking something had happened to her husband. But it then became clear the officer was inquiring about her.
“And he said, ‘Somebody said, after they saw you driving erratically, that you put drugs in the backseat of your car,’ and I was like, ‘there’s no way… they’re lying to you,'" Peters said.
Shaver said Peters began crying hysterically as the police searched her car and pulled out a large bag of marijuana, a bag of Percocet and a bag of Vicodin. She begged police to believe that the drugs didn’t belong to her.
"They put it up on top of the police car for everybody to see, which was really hard, because I kept thinking ‘my daughter’s getting out any minute.’ ... And I’m just thinking the whole world is looking at this right now … no one’s ever going to get this image out of their head,” Peters said. “I said, ‘Please put the drugs away. You’re going to find out they’re not mine and you’re going ruin my life anyway.’”
Peters was further questioned and given a sobriety test, which she passed. When Officer Shaver asked if there was anyone she knew who would go after her, Peters told him, “Jill Easter.”
Police searched Peters’ home and conducted DNA tests on her and her family. The results showed zero evidence of the Peters family’s DNA on the drugs found in Kelli Peters’ car.

She was not charged with drug possession and police opened an investigation into the drug planting. They traced the call made to the Irvine Police Department to a hotel business center in Newport Beach, California, about 11 miles from Irvine. They watched the hotel surveillance cameras from the date and time the call came in and saw Kent Easter walking into the hotel. Kent worked for a law firm located next door to the hotel where the call was placed. 

Police also discovered that drugs found in Peters’ car showed the Easters’ DNA on them. Cell phone records, prosecutors said, also showed that the Easters’ phones pinged a tower near Peters’ home the night before the drugs were planted...


Story #2:

Meet the honor brigade, an organized campaign to silence debate on Islam
Asra Q. Nomani
Washington Post
Jan. 16, 2015

“You have shamed the community,” a fellow Muslim in Morgantown, W.Va., said to me as we sat in a Panera Bread in 2004. “Stop writing.”
Then 38, I had just written an essay for The Washington Post’s Outlook section arguing that women should be allowed to pray in the main halls of mosques, rather than in segregated spaces, as most mosques in America are arranged. An American Muslim born in India, I grew up in a tolerant but conservative family. In my hometown mosque, I had disobeyed the rules and prayed in the men’s area, about 20 feet behind the men gathered for Ramadan prayers.
Later, an all-male tribunal tried to ban me. An elder suggested having men surround me at the mosque so that I would be “scared off.” Now the man across the table was telling me to shut up.
“I won’t stop writing,” I said. It was the first time a fellow Muslim had pressed me to refrain from criticizing the way our faith was practiced. But in the past decade, such attempts at censorship have become more common. This is largely because of the rising power and influence of the “ghairat brigade,” an honor corps that tries to silence debate on extremist ideology in order to protect the image of Islam. It meets even sound critiques with hideous, disproportionate responses.
The campaign began, at least in its modern form, 10 years ago in Mecca, Saudi Arabia, when the Organization of Islamic Cooperation — a mini-United Nations comprising the world’s 56 countries with large Muslim populations, plus the Palestinian Authority — tasked then-Secretary General Ekmeleddin Ihsanoglu with combating Islamophobia and projecting the “true values of Islam.” During the past decade, a loose honor brigade has sprung up, in part funded and supported by the OIC through annual conferences, reports and communiques. It’s made up of politicians, diplomats, writers, academics, bloggers and activists.
In 2007, as part of this playbook, the OIC launched the Islamophobia Observatory, a watchdog group based in Jiddah, Saudi Arabia...

Asra Q. Nomani, a former Wall Street Journal reporter, is the author of “Standing Alone: An American Woman’s Struggle for the Soul of Islam.”

Wednesday, December 10, 2014

David Loy of ACLU says San Marcos school raising funds illegally

San Diego ACLU legal director David Loy objects to a religious organization involved in raising money in public schools in San Marcos Unified School District. (See story below.)

I share Mr. Loy's concern about the charity for two reasons.

First, I don't like a charity that has the goal of merely passing out meals in Africa, without addressing underlying economic problems.  I would urge citizens of San Marcos to give to Oxfam rather than this charity.

Oxfam teaches people how to fish rather than giving them a fish to eat.  They create better economic conditions, giving jobs to parents rather than meals to children.  They let the parents feed their own kids with the money they make.

The San Marcos charity simply serves meals to kids.

Well, actually, I suspect that's not all they do.  Which brings me to my second criticism: the violation of the First Amendment.

Second, I suspect that the charity is serving meals for a limited time because it wants to give religious training to kids.  After they're converted, the charity's goals have been achieved, and the feeding of the kids is no longer a priority.

I can understand that Mr. Loy would be worried about the slippery slopes that surround enterprises like this one, but if he's going to worry about the dangers of everyday activities that threaten the First Amendment, he should worry first about his own actions quashing free speech.  Why should he hold San Marcos Middle School to such an exacting standard when he is so lax about the First Amendment in other situations?




ACLU says San Marcos school raising funds illegally


San Marcos Middle School may be breaking state law by raising money with a religious group to feed children in East Africa, according to the San Diego and Imperial counties chapter of the American Civil Liberties Union.
The school is partnering with a local nonprofit called Friends and Family Community Connection, with the support of Illinois-based Kids Around the World, to raise $3,500 to provide 14,000 meals for children in Tanzania..


David Loy's interesting history regarding free speech and open government

 ACLU legal director David Loy didn't want the First Amendment to be enforced in an anti-free speech lawsuit against this website, perhaps because of loyalty to someone he worked with.  But I doubt that Mr. Loy was involved in an effort to deface a California Court of Appeal opinion on the website Leagle.com.  The Aug. 5, 2014 opinion, which stated that I am allowed by the Constitution to mention the names of attorneys who work for schools, was seriously defaced.  I sent the following message to Leagle.com on December 8, 2014:

Who defaced this decision?  This page was perfectly legible for several years after the 2011 decision.   On December 8, 2014, I find that a large amount of the decision has been overwritten, making it indecipherable.  Was this page hacked, or does Leagle.com want it to be largely unreadable?
10 minutes later Leagle.com had fixed the defaced Stutz v. Larkins page.

Here is part of the hacked Leagle.com page:





On December 8, 2014 I was reading David Loy's biography on the San Diego ACLU website, and I was struck by the irony of his claims to fame.  Freedom of speech?  Open government and public disclosure? 

David Loy was indeed chosen as a Top Attorney in 2009 and 2010, but I suspect the reason was NOT that he defended free speech, but that he crafted a couple of agreements with schools regarding student speech.

Those agreements generated some nice media attention for Mr. Loy.  But what was he doing behind the scenes?

He was pressuring me to remove the names of public entity attorneys from my website.  He wrote to me telling me that I must remove every mention of certain public attorneys he had worked with!

The Court of Appeal disagreed with Mr. Loy that I must remove those names.  See story in Voice of San Diego.

The Stutz v. Larkins decision on the Leagle website was largely unreadable for some time in 2014. It was fixed on Dec. 8, 2014.

Here's the decision that somebody didn't want you to see.  Clearly, David Loy didn't want this case to be heard by the Court of Appeal, so I assume he wasn't happy with the decision.

So how does David Loy get off claiming to be an expert in free speech and a champion of sunshine in government?  He most certainly is NOT a supporter of transparency in public entities, as shown by his efforts to silence public discussion of public attorneys.

Legal Director, David Loy
After graduating law school, Loy clerked for Judge Dolores K. Sloviter of the Third Circuit Court of Appeals. He worked as a staff attorney with Office of the Appellate Defender in New York City and public defender and civil rights attorney in Spokane, Washington before joining the ACLU in 2006. He previously served on the Southern District Lawyer Representative Committee and the board of California Appellate Defense Counsel. Loy was named one of San Diego’s Top Attorneys 2009 and 2010 by San Diego Daily Transcript. He supervises all legal advocacy at the ACLU of San Diego & Imperial Counties, and has particular expertise in freedom of speech and religion, open government and public disclosure, police misconduct, and constitutional criminal procedure. Loy has a law degree from Northwestern and a B.A. from Brown, and is licensed to practice in California and New York (with inactive licenses in Illinois and Washington).
--from ACLU website 

Sunday, August 17, 2014

From the defamation archives: Dentist claims he lost $300,000 due to an online review that was up for three weeks

Our health is at risk when doctors and dentists can silence patients who have been harmed. All a doctor has to do to silence criticism is to threaten expensive litigation even when the patient would win in court if he had the resources to go to trial. How many patients have the resources to pay for years of litigation?

A Portland dentist is suing a former patient for what the dentist claims are defamatory reviews in online forums
By Sam Stites
Willamette Week
September 3, 2012

Dr. Mo Saleh, of Dental Dynamics, originally filed suit against Spencer Bailey in Multnomah Circuit Court on June 26 seeking $300,000 after Bailey wrote about Saleh’s dental skills on Yelp, DoctorOogle.com and Google. In his lawsuit, Saleh says Bailey posts caused damage to his reputation, loss of profits and emotional distress.

The reviews cited in the complaint include statements saying Bailey implied ”improper and insufficient dental services by Dr. Saleh.” The complaint further alleges that Bailey wrote, “if Dr. Saleh tells you that you have a cavity — GET A SECOND OPINION.”

According to the complaint. Bailey said he had never had a cavity in 32 years until Saleh found several. Bailey’s lawyers have responded by stating that Bailey went to Saleh for dental work and then went to another dentist after experiencing pain. They claim that the other dentist advised Bailey that some of the fillings were unnecessary and some were poorly put in.

Bailey’s attorneys, Jeremiah Ross and Linda Williams, also claimed that Saleh contacted Bailey after he reviewed the dentist on various web sites, threatening him to remove them. They say Bailey removed the postings out of concern for his and his family’s safety. Even though Bailey removed the postings, Saleh is proceeding with his suit. (Saleh’s lawyer declined to comment.)

As online commentary about all manner of topics has exploded, so too has the number of lawsuits unhappy targets have filed about such commentary. Saleh’s suit falls under what lawyers call a practice of Strategic Law Against Public Participation or SLAPP. SLAPP cases take aim at people making statements or publishing information that could be damaging to the plaintiff. Critics say these suits are sometimes little more than attempt to censor, silence and in intimidate the defendant.



In a similar case, a Washington County pastor sued a former parishioner in June, claiming an online review of his church was defamatory. The defendant’s attorney, Linda Williams—who is also representing Bailey, the dental patient—employed an Oregon anti-SLAPP statute passed in 2001 aimed at frivolous SLAPP lawsuits. The judge ruled in favor of the Washington County defendant and said that the statements were made “in a public forum and concern an issue of public interest,” according to KATU.

Earlier this month Bailey’s attorneys filed a motion to strike Saleh’s lawsuit under the anti-SLAPP statute, declaring that Bailey’s online reviews are free speech in a public forum. "Spencer's review was a protected opinion and the Plaintiff cannot prove their allegations," Ross, Bailey’s co-counsel tells WW via email. "Nor can they prove $300,000 in damages for a post that was up for three weeks."

A judge will hear the anti-SLAPP motion on Sept. 5.

Monday, August 04, 2014

The arrest and suicide of Aaron Schwartz: Is there a problem with the culture of secrecy in our universities?

Did MIT go too far in the Aaron Schwartz case?  Why are universities so secretive about their research?   I have a suspicion that university administrators are cut from the same cloth as K-12 school administrators--too often concerned about protecting the power of people in high positions rather than dedicating themselves to the goal of education.

Why did the Department of Justice go after Aaron so savagely?

Aaron Swartz's father: He'd be alive today if he was never arrested



June 27, 2014

In 2013, Internet activist and Reddit co-founder Aaron Swartz ended his life while facing up to 35 years in prison for hacking.

Swartz faced multiple charges for breaking and entering into an MIT wiring closet and downloading academic journals, including two counts of wire fraud and 11 counts of violating the Computer Fraud and Abuse Act. Swartz, who was battling the court, also battled with depression. Prosecutors dropped the charges after his death.

I first met Swartz's father, Robert, last year as he explained his mission to fight for his son's memory by helping to change outdated laws. He wanted answers about why he lost his son.

His son's story is now the subject of a new documentary called "The Internet's Own Boy: The story of Aaron Swartz."...

Thursday, July 17, 2014

Censorship war: Website unmasks links Google is blocking from search results

Censorship war: Website unmasks links Google is blocking from search results
RT.com
July 17, 2014
Reuters/Chris Helgren

A subversive website has been launched to keep track of news and other webpages Google has “censored” from the search engine’s index, following the European Court of Justice’s controversial Right to be Forgotten ruling.

The tech giant has reportedly been inundated with 70,000 requests to remove sensitive information from its search results in the aftermath of the ECJ’s decision. While this data may be accurate, it is considered “irrelevant” and possibly defamatory under the EU policy shift.

In a mark of protest against online censorship, a new site ‘Hidden From Google’ has begun archiving links censored by search engines intent on complying with ECJ demands. The site was set up by US web developer and transparency advocate, Afaq Tariq.

The New Jersey developer asserts the removal of links from a search engine’s index amounts to censorship. So in an effort to preserve transparency in Europe’s online realm, he invites visitors to log data that has been removed from Google on the site...

Friday, July 04, 2014

Update: Google resists a recent court decision in Europe ordering Google to remove results from Internet searches

UPDATE: GOOGLE REVERSES DECISION TO REMOVE NEWSPAPER LINKS

Google reverses decision to delete British newspaper links
Jul 4, 2014
(Reuters)

Google Inc on Thursday reversed its decision to remove several links to stories in Britain's Guardian newspaper, underscoring the difficulty the search engine is having implementing Europe's "right to be forgotten" ruling.

The Guardian protested the removal of its stories describing how a soccer referee lied about reversing a penalty decision. It was unclear who asked Google to remove the stories.

Separately, Google has not restored links to a BBC article that described how former Merrill Lynch Chief Executive Officer E. Stanley O'Neal was ousted after the investment bank racked up billions of dollars in losses.

The incidents underscore the uncertainty around how Google intends to adhere to a May European court ruling that gave its citizens the "right to be forgotten:" to request the scrubbing of links to articles that pop up under a name search.

Privacy advocates say the backlash around press censorship highlight the potential dangers of the ruling and its unwieldiness in practice. That in turn may benefit Google by stirring debate about the soundness of the ruling, which the Internet search leader criticized the ruling from the outset.

Google, which has received more than 70,000 requests, began acting upon them in past days. And it notified the BBC and the Guardian, which in turn publicized the moves.

The incidents suggest that requesting removal of a link may actually bring the issue back into the public spotlight, rather than obscure it. That possibility may give people pause before submitting a "right to be forgotten" request.

"At least as it looks now, there are definitely some unworkable components," said Electronic Frontier Foundation activist Parker Higgins. "We've seen a number of situations in the past few days, where somebody in an effort to get a certain thing forgotten has brought more attention to it than ever was there before."

"It does make you think that maybe if you're actually trying to make an episode of your history be forgotten, this channel maybe isn’t the best way."

Google's objective is to protect the reliability and effectiveness of its search franchise. It remains uncertain how it adjudicates requests, or how they intend to carry them out going forward.

"Their current approach appears to be an overly broad interpretation," a spokeswoman for the Guardian said. "If the purpose of the judgment is not to enable censorship of publishers by the back door, then we'd encourage Google to be transparent about the criteria it is using to make these decisions, and how publishers can challenge them."

Google, which controls more than 90 percent of European online searches, said it was a learning process.

“This is a new and evolving process for us. We’ll continue to listen to feedback and will also work with data protection authorities and others as we comply with the ruling,” the company said in a statement.

Notifying media outlets about scrubbed links has the effect of enhancing transparency, privacy advocates say. It might also prompt European courts to re-examine aspects of the ruling, including how it affects media outlets' coverage.

"It’s terra incognito for everyone," said Jonathan Zittrain, co-founder of the Berkman Center for Internet and Society. "If sites that receive the notices choose to publicize them in ways that end up boomeranging against the people requesting, that might cause the courts to examine what those sites are doing."

(Reporting by Alexei Oreskovic in San Francisco and Aurindom Mukherjee in Bangalore; Editing by Kirti Pandey and Lisa Shumaker)

ORIGINAL POST


Europeans don't have a First Amendment.  Are they losing the right to find relevant information on the Internet?  A recent court decision in Europe is forcing Google to remove results from Internet searches.
 
But the truth is that Google has already been removing links at the request of public agencies and others in the US.
 
Right to be forgotten: Google may hate it, but we're dangerously close to making it work
Last month, the right to be forgotten was enshrined in European law, thanks to a ruling by the European Court of Justice. Except it wasn't a right, you weren't forgotten, and it hasn't really been enshrined anywhere. Confused? You're not the only one.
In May, the ECJ ruled on the case of a Spanish national who had, over a decade ago, been involved in an auction of property to settle social security debts. When people Googled his name, newspaper stories about the auction appeared prominently in search results. The man thought that the information about him was outdated, and the court found in his favour, ruling that Google must no longer return links to those newspaper stories when his name is searched for. The newspaper articles remain online, and can be found through Google when other search terms are used.
The mechanism is not an outrageous one, and it has precedents in the offline world. When applying for a job, for example, individuals are often asked about any criminal convictions. They are legally bound to tell their potential employer about them for a certain amount of time, but for many types of conviction that duty will eventually expire and the individual no longer has to disclose it.
Nonetheless, the result of the ruling involving what one Spanish man did in the 1990s has potentially far-reaching consequences for internet use in Europe.
In some quarters, the ruling has been described as giving every European the right to be forgotten, in others, as bringing in a new wave of press censorship. In reality, it does neither.
The ruling allows Europeans to request that data controllers, like Google, remove links to outdated or irrelevant information when searches are performed for their names. In the event the request is found to be justified, links will be removed from results returned for searches on that person's name, but the original source material will remain online and can be found through other queries. Data controllers still have the right to refuse requests when they feel the links in question are still pertinent for searches on an individual's name.
However, since Google opened a web form for people to request search result removal, tens of thousands of people have asked the search firm to do just that.

The first removals

This week, the first such removals began to come to light. Large news organisations like the BBC and The Guardian, along with more smaller B2B outlets, all reported Google had contacted them to let them know they were subject to removals, while Google users began to see messages that certain search results "may have been removed under European data protection legislation".
A handful of recent 'right to be forgotten' removals were highlighted by The Guardian on Thursday. According to the paper, Google had alerted it that six articles would no longer be returned in search results for individuals' names. The names were not disclosed, although three articles referred to a Scottish referree, while another was a sweet story about French office workers making art from Post-It notes on their workplace windows.
Yet both cases illustrate the flaws in the system. Is the information in the story about the referree no longer relevant after three years? Is a system ostensibly meant to protect people's privacy being wasted on individuals who once happily told journalists about their creative ways of wasting office stationery?
It's a similar story over at the BBC. The BBC reports one of its articles involving the former head of Merrill Lynch Stan O'Neal no longer appeared in search results for a certain name. That name isn't, as you might have expected, Stan O'Neal. Instead, it's thought that the request is linked to a name in the comments section.
Was it right to do so?
The wider question is perhaps, when does that information become outdated in relation to its subject...

Friday, June 20, 2014

Dear Google Blogger: Please quit sabotaging this blog; the public has a right to know about decision of the California Court of Appeal

Click HERE to see complete article.

Also see the post that was sabotaged on June 20, 2014.

All links and labels disappeared from the right column of the home page of this blog:


Where did they go?  To the very bottom of the page! I don't think Google really wants to harm this blog; it probably got one of the "take-down" requests that have become so common. But who could have sent the request? Perhaps it was someone in the office ofMichael Roddy, chief executive of the San Diego Superior Court. He has approved some strange antics at the Court involving this case.

Saturday, May 24, 2014

A little sunshine on the clever folks at the San Diego County Office of Education



I have a question for Doug Perkins and Rick Shea, candidates for San Diego County Office of Education District 5

Will you work to make sure that top administrators Diane Crosier and Dan Puplava of SDCOE report ALL the gifts they receive from companies doing business with SDCOE--and require them to explain who paid for their cross-county trips to be wined-and-dined by those companies?

Voice of San Diego education reporter Emily Alpert reported in 2010:

In response to questions from voiceofsandiego.org, the County Office wrote in an email that it believed Crosier had followed the gift rules. But despite repeated questions, it would not specifically explain why the trips could be legally left off the forms. In an email, Crosier said only that the trips were not included “due to discussion with legal counsel.”

I have personal experience with one of the companies visited by Crosier and Puplava, as recounted in the above article by Emily Alpert. The company was Life Insurance of the Southwest. I was signed up for an insurance policy with this company against my will. The name of the company was written in below, after I crossed it out. I was told the agent did not have an extra form so I would have to use the form you can see HERE. Note the scribbles. The agent also took $12,000 of my money and put it into an account where it would be locked in for years. I was fortunate enough to figure out the ruse before the lock-in date.

I expect that county officials--and union officials--get sweet deals from financial institutions in return for access to employees. The San Diego Union-Tribune reported, "Incredibly, Superintendent Randolph Ward himself bought an annuity from Puplava shortly after Ward began work in 2006."

And how about the teachers unions? Are they any better? Dan Puplava used to work for teachers unions, as he told Forbes magazine.

Who is more shameless in taking advantage of teachers, the school officials or the teachers unions? That's a hard question. I haven't figured out the answer yet.


FROM THE FRYING PAN INTO THE FIRE?

Convicted trustees out; SDCOE trustees in

SDCOE administrators and board members have assumed positions at Sweetwater: left to right in photo: SDCOE administrator Lora Duzyk, SDCOE Superintendent Randy War, SDCOE board members Susan Hartley, Mark Anderson, Sharon Jones, Lyn Neylon, Gregg Robinson. For some reason Sweetwater board member John McCann has been replaced, although he was NOT charged or convicted of crimes as his four colleagues were.


Bizarrely, the four convicted trustees of Sweetwater Union High School District--as well as trustee John McCann and Sweetwater administrators--had their seats taken over at the most recent board meeting by the five members of the current SDCOE board and top administrators at SDCOE. SDCOE got permission from the Superior Court to implement the takeover.

NOTE ON DOUG PERKINS AND RICK SHEA

Both of these candidates are insiders at SDCOE.

Before retiring, Rick Shea was Special Assistant to the County Superintendent of Schools.

Del Mar School District trustee Doug Perkins was involved in this shameful case. I attended the trial. The judge was amazed that the district thought it could play politics instead of fulfilling legal obligations. Perkins had been on the board since 2008. He supported and worked with SDCOE JPA attorney Dan Shinoff.

CANDIDATES ALICIA MUNOZ AND KATIE DEXTER ARE ALSO SILENT ON SECRECY AT SDCOE


I'd also like candidates Alicia Munoz and Katie Dexter (District 3) to answer the question at the top of this post.

UPDATE AND CORRECTION May 24, 2014:

I apologize to the La Mesa/Mt Helix Patch. It did NOT censor my comments.


Patch news websites

I now believe that the reason my comments seemed to disappear from a story by Helen and Jack Ofield was that Katie Dexter supporters decided to distract attention from the La Mesa Patch story and direct attention to the Lemon Grove Patch version of the same story. In fact, Tom Clabby erased his own comment from the La Mesa Patch and posted it on the Lemon Grove Patch. He apparently preferred to have his comment appear in better company.

It makes me wonder if perhaps some of Katie Dexter's supporters are opposed to seeing, hearing or speaking about problems at SDCOE.

When I wrote my comments I had no preference for either candidate in the Katie Dexter/Alicia Munoz race for SDCOE board. I didn't think that either one of them would be able to do anything about the secrecy and financial shenanigans at SDCOE. And I still don't have any preference.

Here's what made me reverse my unfair criticism of the La Mesa Patch: I just found a link to the article in the Town Square column on the home page.

ORIGINAL POST MAY 24,2014:

I made comments the other day on this La Mesa/Mt Helix Patch story about the race for a seat on the San Diego County Office of Education.

Then I discovered that the original La Mesa Patch story can not be found in the Patch archives and seems to have been erased from the Patch Facebook page. Google search results don't include the story.

But clearly the plan wasn't to get rid of the story itself. The exact same article has been published by the Lemon Grove Patch (without my comments, of course). Google readily produces a link to the Lemon Grove Patch article. It turns out that the La Mesa Patch story still exists; the link on my blog still works.

So I'm doing an experiment. I posted some new comments on the Lemon Grove Patch this morning, and we'll see what happens. Here are my new comments:


[Comments by] Maura Larkins May 24, 2014:

...The entire story seems to have disappeared, along with two comments I made regarding San Diego County Office of Education. This reminds me of the local Clear Channel billboards that were taken down after two days because they correctly stated that Carla Keehn is the only candidate for Judge of the Superior Court Office 20 who has not been convicted of a crime. Of course, I didn't pay $14,000 to publish my statements.

Maura Larkins May 24, 2014 at 09:27 am
CORRECTION AND APOLOGY TO THE PATCH: I believe that the La Mesa/Mt Helix Patch did NOT try to censor my comments. Instead, I think that Katie Dexter supporters worked to remove attention from the La Mesa Patch story that carried my comments and direct attention to the Lemon Grove Patch version of the same story. In fact, Tom Clabby erased his own comment from the La Mesa Patch and posted it on the Lemon Grove Patch. He apparently preferred to have his comment appear in better company. It makes me wonder if perhaps some of Katie Dexter's supporters are opposed to seeing, hearing or speaking about problems at SDCOE. When I wrote my comments I had no preference for either candidate in the Katie Dexter/Alicia Munoz race for SDCOE board. I didn't think that either one of them would be able to do anything about the secrecy and financial shenanigans at SDCOE. And I still don't have any preference.

The most common problem in public entities is not blatant corruption such as the outrageous salaries ($560,000 for the assistant City Manager) of officials in Bell, California, but the money that gets channeled behind the scenes. Millions of dollars get moved around, and the public doesn't know about the connections and motivations that are guiding the transfers. Voice of San Diego reporter Emily Alpert was investigating SDCOE when she suddenly went silent, and then got fired. SDCOE exempts Diane Crosier (the director of Risk Management; also, Dan Puplava's boss) from having to disclose the gifts she receives. Why don't we have transparency in government at SDCOE?


SDCOE Risk Management Director Diane Crosier and her close associate Dan Puplava work with AIG

SDCOE has silenced its critics.

When Scott Dauenhauer revealed that SDCOE fringe benefits manager Dan Puplava [who is still employed by SDCOE] was getting at least $355,000 in commissions from AIG while working for the taxpayers, Dauenhauer was sued by Diane Crosier and Dan Puplava.

I went down to the courthouse and read the pleadings in the case.

The SDCOE managers claimed that Dauenhauer didn't know that what he said was true. I'm not kidding. They didn't claim he said something false. They claimed that he didn't actually know that what he said was true. Since he couldn't afford to keep paying an attorney to fight the case, he settled. SDCOE has also tried very hard to silence me. SDCOE lawyers had more success with Grossmont student representative Rick Walker, who obligingly shut down his website.


My other comment was about the MiraCosta College scandal, in which SDCOE's favorite law firm got paid $1.3 million to investigate $305 of water stolen and used to water palm trees. (After investing all that taxpayer money, MiraCosta let the palm trees die. It was never about water or palm trees. It was all about power and politics.) Sounds a little bit like Bell, California, doesn't it? And if our media silences discussions about things like this, how can the taxpayers protect themselves?

[Comment by} Helen Ofield May 24, 2014 at 12:22 PM

Maura - I was hunting around for the coverage and thought it was "just me" when I couldn't find a comment I'd sent to you. I think the Clabbys had a little difficulty posting and, like them, I wouldn't know how to erase something if I tried. Really, there is no conspiracy here, just well-meaning people trying to navigate the Internet.

Maura Larkins May 24, 2014 at 04:30 pm

Hi Helen,
If you look at the line below your post you will see the words "Recommend...Reply...Delete". Just click on the word "delete". It looks like Tom Clabby found it. I got an automatic notice telling me about his new comment soon after I posted my comments. Then I got another automatic notice saying his comment was a blank.

I wonder what Katie Dexter and Alicia Munoz think of all the Dan Puplava shenanigans as well as the other SDCOE cases and the secrecy surrounding gifts to Diane Crosier. It seems that all we get from either candidate is political posturing and platitudes. Wouldn't this be a good time for one or both of them to address problems inside SDCOE?

Thursday, April 03, 2014

A Blistering Dissent in ‘McCutcheon’: Conservatives Substituted Opinion for Fact


Supreme Court Justices, from left, Chief Justice of the United States John Roberts, Associate Justices of the Supreme Court Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan applaud State of the Union Address,12 Feb 2013 (Rex Features via AP Images)

A Blistering Dissent in ‘McCutcheon’: Conservatives Substituted Opinion for Fact
Moyers and Company
April 2, 2014

Central to the Supreme Court’s campaign finance decisions in the John Roberts era is that the government’s only legitimate interest in this area is preventing direct, quid pro quo corruption — a donor demanding that a specific law be passed, or killed, in exchange for cash — or the appearance of direct corruption.

In the McCutcheon decision announced on Wednesday, the court struck down a limit on how much cash an individual could give to all federal candidates during an election cycle. The five conservative justices allowed that the rich showering friendly candidates with unlimited amounts of money might drown out the voices of the majority and distort our fragile democracy, but not blatantly enough to justify the spending limit.

In the majority opinion, Chief Justice Roberts wrote that “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.”

The conservative majority passed on an opportunity to strike down a limit on how much a donor can give to an individual candidate — perhaps because in Citizens United, they’d accepted the proposition that unlimited donations to “independent” third party groups didn’t lend the appearance of corruption — but Justice Clarence Thomas, in his concurring opinion, wrote that “limiting the amount of money a person may give to a candidate does impose a direct restraint on his political communication,” and moved to strike that provision down as well.

The court’s four-member minority issued a blistering dissent, written by Justice Stephen Breyer. He charged that the majority’s “conclusion rests upon its own, not a record-based, view of the facts.”

Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.

Taken together with Citizens United, Breyer writes that McCutcheon “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

He goes on to dissect the claims on which the court’s ruling rest. He first takes issue with the idea that the government only has an interest in preventing a direct exchange of cash for votes.

In the plurality’s view, a federal statute could not prevent an individual from writing a million dollar check to a political party (by donating to its various committees), because the rationale for any limit would “dangerously broade[n] the circumscribed definition of quid pro quo corruption articulated in our prior cases.”

This critically important definition of “corruption” is inconsistent with the Court’s prior case … and it misunderstands the constitutional importance of the interests at stake. In fact, constitutional interests—indeed, First Amendment interests—lie on both sides of the legal equation.

In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have recognized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself.

Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives….

The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.

What has this to do with corruption? It has everything to do with corruption. Corruption breaks the constitution­ally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress’ concern that a few large donations not drown out the voices of the many….

The “appearance of corruption” can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.

Breyer then wonders how the conservatives could square McCutcheon’s narrow definition of “corruption” with its conclusion, in the 2003 case McConnell v. FEC, that money — and the access it purchases — has a pernicious influence on the political process.

The Court in McConnell upheld these new contribution restrictions under the First Amendment for the very reason the plurality today discounts or ignores. Namely, the Court found they thwarted a significant risk of corruption—understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives.

In reaching its conclusion in McConnell, the Court relied upon a vast record compiled in the District Court. That record consisted of over 100,000 pages of material and included testimony from more than 200 witnesses. What it showed, in detail, was the web of relationships and understandings among parties, candidates, and large donors that underlies privileged access and influence. The District Judges in McConnell made clear that the record did “not contain any evidence of bribery or vote buying in exchange for donations of nonfederal money.”

Indeed, no one had identified a “single discrete instance of quid pro quo corruption” due to soft money. But what the record did demonstrate was that enormous soft money contributions, ranging between $1 million and $5 million among the largest donors, enabled wealthy contributors to gain disproportionate “access to federal lawmakers” and the ability to “influenc[e] legislation.”

“We specifically rejected efforts to define ‘corruption’ in ways similar to those the plurality today accepts,” writes Breyer.

He then takes on the conservatives’ second rationale: that the problem the aggregate limit was supposed to address — huge donors funneling money indirectly to a candidate in order to get around the limit on contributions to a single campaign — isn’t an issue today.

The plurality is wrong…. In the absence of limits on aggregate political contributions, donors can and likely will find ways to channel millions of dollars to parties and to individual candidates, producing precisely the kind of “corruption” or “appearance of corruption” that previously led the Court to hold aggregate limits constitutional. Those opportunities for circumvention will also produce the type of corruption that concerns the plurality today. The methods for using today’s opinion to evade the law’s individual contribution limits are complex, but they are well known, or will become well known, to party fundraisers.

He offers three concrete examples of how a wealthy donor might be able to get millions of dollars to a single candidate without running afoul of the law under McCutcheon.

But perhaps the dissent’s most withering criticism of the ruling is that, as in Citizens United, it was decided according to the majority’s beliefs, rather than the factual record.

In the past, when evaluating the constitutionality of campaign finance restrictions, we have typically relied upon an evidentiary record amassed below to determine whether the law served a compelling governmental objec­tive. And, typically, that record contained testimony from Members of Congress (or state legislators) explaining why Congress (or the legislature) acted as it did….

If we are to overturn an act of Congress here, we should do so on the basis of a similar record….

Determining whether anticorruption objectives justify a particular set of contribution limits requires answering empirically based questions, and applying significant discretion and judgment. To what ex­tent will unrestricted giving lead to corruption or its appearance? What forms will any such corruption take? To what extent will a lack of regulation undermine public confidence in the democratic system? To what extent can regulation restore it?

… For another thing, a comparison of the plurality’s opinion with this dissent reveals important differences of opinion on fact-related matters. We disagree, for example, on the possibilities for circumvention of the base limits in the absence of aggregate limits. We disagree about how effectively the plurality’s “alternatives” could prevent evasion. An evidentiary proceeding would permit the parties to explore these matters, and it would permit the courts to reach a more accurate judgment. The plurality rationalizes its haste to forgo an evidentiary record by noting that “the parties have treated the question as a purely legal one.” But without a doubt, the legal question—whether the aggregate limits are closely drawn to further a compelling governmental interest—turns on factual questions about whether corruption, in the absence of such limits, is a realistic threat to our democracy….

The justification for aggregate contribution restrictions is strongly rooted in the need to assure political integrity and ultimately in the First Amendment itself. The threat to that integrity posed by the risk of special access and influence remains real. Part III, supra. Even taking the plurality on its own terms and considering solely the threat of quid pro quo corruption (i.e., money-for-votes exchanges), the aggregate limits are a necessary tool to stop circumvention. And there is no basis for finding a lack of “fit” between the threat and the means used to combat it, namely the aggregate limits.

The plurality reaches the opposite conclusion. The result, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.

Friday, November 15, 2013

Federal Court says Google has protected authors while allowing users to search Google Books for information

I agree with Google: we have a right to information. It shouldn't be hidden away on bookshelves, incapable of being searched for.
Google cannot be stopped
The search giant crushed authors this week. Next up, advertisers. It would be scary, if it weren't so darn useful
Andrew Leonard
Salon
Nov 15, 2013

Google won a huge victory on Thursday when District Court Judge Denny Chin ruled that Google’s massive book-scanning project, Google Books, was protected by the doctrine of “fair use” against charges of copyright infringement. The main plaintiff, the Authors Guild, announced it would appeal the ruling, but the consensus reaction of academics and tech pundits came down in support of the decision.

Chin’s explanation of his ruling certainly didn’t leave much wiggle room.

“[Fair use] doctrine permits the fair use of copyrighted works ‘to fulfill copyright’s very purpose, “[t]o promote the Progress of Science and useful Arts,”‘” wrote Chin.

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.


Judge Chin provided no data to support his assertion that Google Books surely results in additional book sales, but that’s just a quibble. The decision is clearly a big win for Google — another successful step forward in the search giant’s quest to “organize the world’s information.”...

Monday, September 16, 2013

Meet the lawyer who keeps some of America's worst charities in business


A large painting that dominates Errol Copilevitz’s conference room depicts him speaking before the U.S. Supreme Court in March 2003. In that case, his second before the court, Copilevitz successfully argued that limiting what charities pay solicitors is a violation of the First Amendment.
Credit: Maurice Rivenbark/Tampa Bay Times

"...Copilevitz won both cases on behalf of the American Association of State Troopers, which went on to raise tens of millions of dollars.

In the past eight years alone, the association has raised nearly $45 million through professional solicitation companies, IRS records show. About $36 million of that went straight to the solicitors, placing the charity at No. 9 on the Times/CIR list of America’s worst."


Meet the lawyer who keeps some of America's worst charities in business
Kris Hundley
Tampa Bay Times
Kendall Taggart
The Center for Investigative Reporting
Sep 12, 2013

Errol Copilevitz started his legal career representing strip clubs and porn shops on the seedy side of Kansas City.

Then he took free-speech arguments honed defending topless bars to a more lucrative field.

Philanthropy.

Today, Copilevitz is the undisputed king of the charity world.

From his offices in a renovated turn-of-the-century warehouse in Kansas City, Mo., Copilevitz and his four partners represent more nonprofits and professional solicitors than any other law firm in the nation.

Last year, the NonProfit Times, an industry journal, named Copilevitz as one of the sector’s 25 “Best and Brightest,” thanks to his First Amendment work.

That expertise has been especially beneficial to a particular kind of charity – those that spend a tiny fraction of the cash they raise helping people in need.

The Tampa Bay Times and The Center for Investigative Reporting spent a year identifying the 50 worst charities in America based on the money they paid to professional solicitation companies over the past decade.

Copilevitz & Canter has represented nearly three-quarters of them, as well as most of their for-profit telemarketers and direct mail companies.

If there’s a dollar being donated over the phone in America, there’s a good chance the firm had a role in creating, registering or advising at least one of the parties involved.

More importantly, Copilevitz has won landmark First Amendment cases that have undercut government efforts to regulate sham charities and helped unleash an avalanche of junk mail and telemarketing calls on the American public.

Thanks in part to Copilevitz, the government can’t limit how much charities spend on fundraising.

And their for-profit solicitors don’t have to disclose how much they keep unless donors ask.

It’s impossible to calculate how much Copilevitz’s courtroom victories have meant to his clients’ bottom line. But the 37 charities he represents that were ranked among the 50 worst raised a total of $1.2 billion in cash over the past decade. Of that, nearly $880 million went to pay their outside solicitors, most of which also were the lawyer’s clients.

In a two-hour interview with the Times and CIR, Copilevitz calmly deflected criticism aimed at his clients.

He sat at a conference room table in a tweed jacket and patterned blue tie, rarely raising his voice, occasionally tapping the table to emphasize a point.

He knows that there are bad guys in the charity business.

“There’s no doubt there are some people who start charities whose intentions aren’t the greatest,” he said. “They’re looking to create a job for themselves, I suspect.”

But to Copilevitz, the choice is simple.

Put up with groups that don’t do enough to help people in need, or stifle everyone, including the charity “that actually may come up with the cure to cancer.”

As for those donors who give without realizing that only pennies will reach the cause, Copilevitz has little sympathy.

“I think people understand that there’s a cost (to raising money),” he said. “How long do you have to be telling them that?”

From vulgar to virtuous

Trim and tanned at 70, Copilevitz is reveling in the rewards of a long career.

He rubs shoulders with Julie Andrews at benefits for the National Children’s Cancer Society, a client in St. Louis.

On his wrist he wears a black rubber bracelet in support of Wounded Warrior Project, another high-profile account.

He owns a condo overlooking Kansas City, a winter getaway in Scottsdale, Ariz., and a couple of commercial real estate investments in Florida and Georgia.

He has about 40 employees and a multimillion-dollar practice that was recently named by U.S. News & World Report as one of the best law firms in the country.

He built it all himself.

The son of a grocer raised in rough-and-tumble East St. Louis, Copilevitz saw a career in law as the ticket to a better life.

After earning a law degree from University of Oklahoma in 1968, Copilevitz moved to Kansas City and landed a job at the radio station where his brother worked.

Within a decade, he had his own practice defending topless bars, adult bookstores and traveling circuses.

He represented strip club owners with alleged mob ties against a crusading district attorney intent on shutting them down. He defended a promoter facing criminal charges after a hippo went on a rampage at a fundraising event. And his firm represented clients like Pleasure Chest and Erotic City in battles with the city over their coin-operated video booths.

Copilevitz’s fight against regulators – people he derided for years as censors – culminated in a showdown in St. Louis in 1987. The U.S. Justice Department, under Attorney General Edwin Meese, had declared a war on pornography. More than 200 video store owners fought back with Copilevitz as their lawyer.

Calling the government’s crackdown an attack on the First Amendment, Copilevitz told a newspaper that banning the rental of porn movies would have “a chilling effect on the community.”

Less than a year later, he was making a similar argument in a much loftier venue: the U.S. Supreme Court.

This time, Copilevitz was arguing on behalf of charities and their paid solicitors.

The high court

It was a big leap for a tiny law practice. But Tom Gray, a former colleague, said the same legal principals held true, whether Copilevitz was defending strip clubs or charities.

“The fundamental issues of the First Amendment were the connecting piece,” he said.

In the case before the Supreme Court, Copilevitz’s clients were charities and professional solicitors challenging a new state law that required fundraisers to tell donors how much of their money actually got passed on to a charity. The attorney general said telemarketers, typically working with transient circus promoters, were keeping 80 percent or more of the money raised.

When the case reached the U.S. Supreme Court in 1988, Copilevitz argued that the law presented “a real and present danger of censorship” and could be especially harmful to small charities advocating unpopular causes.

If telemarketers were forced to start conversations by disclosing where donations wound up, he warned, they would “end up with a dial tone.”

The court sided with Copilevitz, building on a series of previous decisions that limited state regulators’ ability to crack down on fundraising costs. The ruling slammed the door on officials who had been trying for years to find a way to stop charities from funneling almost everything they raised to for-profit solicitors.

“There’s not much left to protect the donor,” David Ormstedt, Connecticut’s assistant attorney general, told reporters at the time.

Telemarketers and charities of all stripes celebrated the verdict.

A major trade journal described Copilevitz’s success in the case as “the year’s biggest gift to philanthropy.”

[Maura Larkins' comment: No, it's the biggest gift to scammers and their lawyers. Philanthropy involves a completely different approach to life.] The rise of telemarketing

If donors lost as a result of the 1988 decision, Copilevitz clearly won.

He also had the good fortune of being on the ground floor of an industry that was about to boom.

Computerized phone dialers introduced in the late 1980s made calling faster and more efficient.

Phone rates plummeted with the breakup of AT&T’s monopoly on long-distance service.

Dozens of entrepreneurs spied the opportunity, opened call centers and started signing up charity clients.

Robert Preston was one of them. He’d been running a part-time phone room for the Police Benevolent Association in South Florida for years when he decided to open a telemarketing company in 1991.

Preston said the computerized dialer made calling more efficient.

“It increased human productivity,” he said.

To help him launch a telemarketing business, Preston turned to Copilevitz, who had built a reputation as a guy who could get your business started and get you out of a jam with regulators.

“I realized he was the 800-pound gorilla in terms of understanding this area of the law,” Preston said.

Over the years, Preston’s company, Organizational Development, has relied on Copilevitz & Canter to file annual reports with regulators. Copilevitz helped negotiate a settlement in Maine in 2010 when Preston’s firm was charged with misrepresenting itself to donors. Copilevitz has also reviewed contracts between the telemarketer and its charity clients.

At its peak a few years ago, Preston’s company had $10 million in revenues; it keeps about 85 percent of donations.

Preston also turned to Copilevitz for help when he started a charity, WorldCause Foundation, in late 2010 to create a job for his son. The law firm handled the new charity’s IRS application and state filings.

Apart from their lawyer-client relationship, Copilevitz has joined Preston in several commercial real estate investments over the years.

“He’s not a baby if a deal goes sour,” Preston said of Copilevitz. “And when I would get angry with tenants, he would talk me off the ledge. He’s like a rabbi.”

Shutting regulators down

As telemarketing calls multiplied exponentially over the next decade, Copilevitz’s firm worked to make sure the calling continued unfettered.

In 1994, he knocked down a Georgia law designed to stop charities from using a law enforcement agency’s name, without permission, to drum up donations.

Three years later, Copilevitz stopped Louisiana from limiting how many police organizations could solicit in the state.

Copilevitz won both cases on behalf of the American Association of State Troopers, which went on to raise tens of millions of dollars.

In the past eight years alone, the association has raised nearly $45 million through professional solicitation companies, IRS records show. About $36 million of that went straight to the solicitors, placing the charity at No. 9 on the Times/CIR list of America’s worst.


Copilevitz was on hand again in 2001, when Florida lawmakers made their own attempt to crack down in high-cost fundraising.

They passed a law forcing charities to declare on mailers and fliers how much they spend on solicitors.

Copilevitz filed suit on behalf of two charities, including the Committee for Missing Children, No. 13 on the Times/CIR list.

He won yet again. Copilevitz convinced a federal judge that spending 86 percent of donations on professional solicitors – as the Committee for Missing Children had done that year – does not make a charity unworthy of support.

By 2003, Copilevitz’s reputation made him a natural candidate for another case before the Supreme Court. Illinois’ attorney general had sued Telemarketing Associates, claiming it misled donors and that it was keeping 85 cents of every dollar raised on behalf of one of its clients.

Copilevitz took the case, with no pay, and stepped before the nation’s highest court for the second time in his career.

This time nearly 200 charities, many of them Copilevitz clients, had signed briefs in support of his case.

Again he argued that limiting what charities pay solicitors is a violation of the First Amendment.

Again the justices agreed.

A large painting that dominates Copilevitz’s conference room shows him speaking before the court that day in March 2003.

“It was very gratifying,” Copilevitz said. “We had gone from representing this distasteful, small-time telemarketer in the circus days to these major trade associations that understood the issues went far beyond the case at bar. It affected the industry.”

The regulatory shuffle

Regulatory filings, disciplinary records and court documents collected by the Times and CIR show that Copilevitz & Canter has done work for more than 400 charities over the past decade.

Often that work involved nothing more than filing a charity’s annual registration papers with state regulators. Some of the firm’s most prominent clients – the American Cancer Society and Susan G. Komen Foundation – told reporters they fall into that category.

But the firm also has helped dozens of clients navigate more serious legal issues, including fighting allegations that they misled donors.

Copilevitz said that shouldn’t be a surprise.

“There are only a small handful of law firms in the country that focus on the myriad state charitable solicitation laws,” he said. “We happen to be one of them.”

When the United States Deputy Sheriffs’ Association was accused by Kentucky’s attorney general in 2009 of deceiving donors by telling them their money would buy bulletproof vests for local law enforcement, the nonprofit called Copilevitz & Canter.

Within a month, Copilevitz negotiated a settlement. His client would pay $30,000 to the state, donate $71,000 in equipment to Kentucky sheriffs’ departments and briefly stop soliciting in the state.

At the same time, he negotiated a separate case brought by Oregon against the charity.

In both cases, the charity admitted no wrongdoing and showed no lasting impact.

In its 2011 tax filing, the group reported spending nearly $1.7 million on fundraising out of total expenditures of $2.4 million – or about 70 cents of every dollar.

When charities and solicitors run into regulatory problems in one jurisdiction, they’re supposed to report it if asked by other states where they solicit. But in more than a dozen cases identified by the Times and CIR, Copilevitz’s firm filed annual registration forms in which charities and solicitors did not disclose prior actions in other states, despite being asked on the application.

United States Deputy Sheriffs’ Association did not disclose either the Kentucky or Oregon actions in its subsequent registrations in Florida, filings that were handled by Copilevitz’s firm. After being asked about the omissions, a spokesman for the Florida Department of Agriculture and Consumer Services said the matter is under investigation.

In another case, JAK Productions’ $300,000 settlement with the Federal Trade Commission, which was signed by Copilevitz in June 2010, was not mentioned in the solicitor’s filing the following year in North Carolina. Copilevitz & Canter submitted the paperwork to North Carolina on the solicitor’s behalf.

According to a spokeswoman for North Carolina’s charitable division, “The solicitor should have responded ‘Yes,’ ” to the question that asked if there had been actions taken by other state regulators in the previous five years.

And in Florida and Ohio, Copilevitz’s firm handled registration paperwork that failed to disclose a $100,000 fine by California in 2010 against the Association for Firefighters and Paramedics.

Asked about these filings, Copilevitz said his law firm never advises clients to omit such information. He said clients, not his firm, are responsible for ensuring the accuracy of their registrations.

But Michael Gamboa, president of the Association for Firefighters and Paramedics, which is No. 14 on the Times/CIR list, blamed Copilevitz’s office.

“They know all about those fines,” he told the Times and CIR. “They’re supposed to make sure it’s in the registration.”

Traci Gundersen, Utah’s former top charity regulator, said law firms like Copilevitz & Canter that specialize in state charity filings should have systems to track disciplinary cases to ensure they are disclosed as required.v “It’s almost like you’re burying your head in the sand if you fail to have a safeguard like that,” she said.

The fixer

To understand how deeply involved Copilevitz gets with some of his clients, consider the case of Civic Development Group.

In 1998, the FTC sued the telemarketer for falsely claiming that donations would be used locally to buy bulletproof vests and provide benefits for dead officers’ families.

With Copilevitz’s assistance, the company negotiated a settlement that did little to affect its practices or hinder its success.

Within a decade, the New Jersey-based company became one of the largest telemarketers in the country.


It ran boiler rooms in at least 18 states and collected tens of millions of dollars each year on behalf of its charity clients, according to documents filed with state and federal regulators.

But in 2001, a law passed by the Indiana legislature threatened to cut into collections.v In most states, telemarketers calling for charities can solicit people on the Do Not Call list.

But Indiana’s new law said only people directly employed by a charity could; calling people on the list was off limits to hired-gun solicitors.

That put a damper on returns to the Indiana Fraternal Order of Police, which had hired Civic Development Group for telemarketing.

Civic Development turned to Copilevitz for advice.

According to court documents, Copilevitz walked Civic Development through a new fundraising arrangement that got around Indiana’s restrictions.

Civic Development’s phone room workers became employees of the Indiana Fraternal Order of Police, giving them access to people on the Do Not Call list. Callers also began telling donors that 100 percent of their donation went to the charity.

Civic Development morphed from being a telemarketer to acting as a “consultant” to the call center operation. But its managers retained the right to hire and discipline workers. And through its consulting fees, Civic Development continued to take most of what was collected from donors. In 2007, the FTC again sued Civic Development, calling the new setup a sham.

In court filings, the company said Copilevitz had reviewed the new contract with the Indiana police charity and reviewed solicitation material. Though Civic Development admitted no wrongdoing, it agreed in 2010 to a pay a record $18.8 million settlement. The former owners of the company, Scott Pasch and David Keezer, were banned from the industry.

Pasch and Keezer sued Copilevitz and his firm earlier this year, alleging they were given bad legal advice. When they asked attorneys at the firm whether they should seek FTC approval for their new fundraising model, they were told to “let sleeping dogs lie,” according to the complaint, which is pending. Copilevitz denied the claims made by his ex-clients and told reporters he never advised Civic Development to do anything improper. He said he outlined a legal way to deal with Indiana’s new law.

Mark Josephs, the former U.S. attorney who prosecuted the case against Civic Development, said he believes Copilevitz should have at least been aware of his client’s deceptive scripts.

Copilevitz told the Times and CIR that the company’s in-house lawyers prepared the scripts and when he learned they were claiming 100 percent went to charity, he advised them to stop.

“They did not follow my advice,” he said...(Read more: Meet the lawyer who keeps some of America's worst charities in business

Times researchers Caryn Baird and Carolyn Edds contributed to this report.