Near as I can tell, the first person to pick up on footnote 9 in the government’s response to Apple was Marcy Wheeler at Empty Wheel.

DOJ has submitted its response to Apple in the Syed Farook case. Amid invocations of a bunch of ominous precedents — including Dick Cheney’s successful effort to hide his energy task force, Alberto Gonzales effort to use kiddie porn as an excuse to get a subset of all of Google’s web searches, and Aaron Burr’s use of encryption — it included this footnote explaining why it hadn’t just asked for Apple’s source code.

That’s a reference to the Lavabit appeal, in which Ladar Levison was forced to turn over its encryption keys.

That it was a threat is beyond question. The snideness of “if Apple would prefer” leaves no doubt.  This refers to a court ordering Apple to turn over its code to the government, handing over the keys to the technological Kingdom.  In reply, Apple pointed out the obvious: Continue reading →

Within minutes of the verdict being announced, an astounding $115,000,000 awarded Hulk Hogan in compensatory damages, with the jury returning to consider punitive damages, the reactions began. On the one side, there was the Schadenfreude, coming from surprising sources. On the other, the usual assortment of non-lawyer (and some lawyer) stupidity about the First Amendment.

The First Amendment isn’t unlimited.
You can’t yell fire in a crowded theater.
The First Amendment doesn’t protect revenge porn.
There’s a constitutional right to privacy.
Gawker sucks and it’s hypocritical, so who cares?

The first fear was that the verdict, indeed the very fact that there was a trial, reinforces the general belief that free speech and press is only as much of a right as people’s sensibilities feel it should be. Like something? Then it should be free speech. Think it’s icky? Then it’s not free speech.

The non-legal consensus these days is that each of us gets to be censor of the universe, deciding the value of speech for everyone else. The irrationality of such a scheme never seems to be recognized; if I think your speech is too, like really, just, you know, then I get to shut you up, because, literally. That’s paraphrasing law professors. Continue reading →

We hear you.  We asked for your thoughts, and you’ve been more than generous in providing them.  Thank you.

We share many of the ideas you’ve offered, and with that in mind, we’re ready to bring more writers aboard.  At present, we have Greg Prickett bringing the cop’s perspective to Fault Lines, but we want more. We have Murray Newman and Andrew King bringing the prosecutor’s prospective, and we want more.  We have Judge Richard Kopf bringing the view from the bench (and we anticipate another judge joining us soon), but we still want more.

We want perspectives from all genders, all colors, all political views and all players in criminal law. Too much?  Perhaps, but unlike anywhere else on the internet, we seek to provide all sides of legitimate commentary, because our writers aren’t merely interested and passionate, but the people who actually do the work in the trenches and speak from knowledge and experience. Continue reading →

While much of the political world remained obsessed with whether Donald Trump is the worst presidential candidate ever or will bring about the end of times, two smaller primary battles were waged in Chicago and Cuyahoga County, Ohio.  The outcomes matter.

First, Anita Alvarez, the reigning Cook County State’s Attorney, lost.  Her claim to the seat was lost due to her complicity in the concealment of the video of Laquan McDonald’s murder by Police Officer Jason Van Dyke, together with her failure to indict her cop until it became certain that the video would be released.

Second, Cuyahoga County District Attorney Tim McGinty, who orchestrated the grand jury show in the Tamir Rice execution.

Both need new jobs, because the voters turned them out of office.  It happened because of the confluence of two things, the efforts to make it known far and wide that these two prosecutors failed to perform the duties of their office with integrity when it came to police, and people voting.  The former is largely due to the efforts of Black Lives Matter advocates. The latter is due to all people of conscience getting off their butts and performing their duty as citizens. Continue reading →

The headline began with the use of the word “kids,” a slang word for children. Children dislike being reminded that they’re children, because it’s stereotypical, ageist and true. However, there isn’t much to scream about, given that ageism is a minor offense at the moment. Its day may come, like fat-ism or smell-ism. Whether or not there will be a stupid-ism remains to be seen. It’s not out of the question.

But the headline then went all parity, from kids to “girls.” Bingo! Crank up the outrage machine.  What headline?

Smart Kids Stay Away From Law School, Girls Take Over

If I was to take issue with the headline, my problem would have been that it would appear to exclude “girls” from “smart kids.”  It gives rise to an awkward juxtaposition, and that wasn’t its purpose. Elie Mystal saw the headline before it went live. He realized there were issues, but rather than edit (because, after all, he’s the editor-at-large), he decided to let his “columnist” get crushed under the bus. Continue reading →

So what do you think of Fault Lines? In the perennial quest for improvement, please let us know how it’s doing, how it can be improved, what should be changed.* Please try not to get personal, aside from calling me mean names (which is always fine).  It would be most useful if you not only say what you like or dislike, but why.  Thanks for your feedback.

*If you don’t know because you haven’t been to Fault Lines, then what the hell are you doing here? Read Fault Lines.

As the Hulk v. Gawker trial, the one that should have never been, winds toward a verdict, the New York Times’ Room for Debate goes two against one (you could have asked me, Susan. I would have helped) on the question of whether a jury should decide what’s “newsworthy.” After all, should it be left to elitist editors of media to decide? Shouldn’t stories be put to public vote?

Wait a sec. If it was left to consensus to decide, wouldn’t the Times headline above the fold every day be about Kim Kardashian?  And yet, the debate provides more serious, more academic views.  Tulane lawprof Amy Gajda juxtaposes truth with the emotional pain of disclosure, and comes up with the “dignity test.”

Only in those cases in which a truthful disclosure degrades the human dignity of a news subject by intruding in traditionally private matters such as sex, nudity and sensitive medical information would the “journalism” not be considered newsworthy. Even then, the plaintiff would prevail only if the injury to dignity clearly outweighed the public value of the disclosure.

The only problem is that “dignity” is purely subjective.  And trading off true but undignified has nothing to do with newsworthy. It has to do with personal sensibilities.  Anthony Weiner’s dick pics were definitely undignified, and certainly newsworthy. But the bottom line of this vagary of dignity wrapped in a pretty pink bow of feelings is that it doesn’t answer the only question asked: who gets to decide? Continue reading →

In a provocative, and tongue in cheek, editorial. the Instapundit, Glenn Reynolds, opines in USA Today that it’s time for some real diversity on the Supreme Court.

Maybe it’s time to name a non-lawyer to the Supreme Court. There’s nothing in the Constitution that requires Supreme Court justices to be lawyers, and there are some pretty decent arguments as to why non-lawyers should be represented.

If he wanted to be outrageously ridiculous, he could have proposed that a criminal defense lawyer, someone with experience trying cases on behalf of the accused, even (gasp) a lawyer who didn’t attend Harvard or Yale, be nominated, or someone who had never served as a federal judge, district or circuit.  Any one of these diverse qualifications would have distinguished a nominee to the point of having no chance whatsoever of being nominated, no less confirmed, by this or any other Senate.

But then, as long as we’re musing about impossibilities, go big or go home. So non-lawyer it is. Continue reading →

At the Washington Examiner, Ashe Schow writes about the “explanation” proffered for three students nabbed by video for lying about being the victims of racism.

In the recent race hoax at State University of New York at Albany, where three black women started a fight on a bus and accused a dozen white people of attacking them for being black, a professor at the school claimed they were justified because they started a conversation on race.

“My white students have said this has opened up conversations,” said Sami Schalk, an assistant professor in SUNY Albany’s English department. “Things that are inadvertent, small, but that these white students have no experience with, not being a person of color on this campus.”

Certainly, no one could argue that there is something wrong with a conversation on race, right?  But is it an excuse for engaging in false accusations? Continue reading →

Having had the grave misfortune of doing a case involving numerous psychologists, psychiatrists, therapists and the American Psychiatric Association, one thing became painfully clear: there is no profession more squishy, full of shit and taken with the importance of their own empty rhetoric. They make lawyers look good.

So it came as no surprise to find an op-ed by Richard Brouillette, “a former community organizer,” and now a “psychotherapist,” (which, it turns out, means he’s a licensed clinical social worker) contending that therapists should treat their patients’ mental issues with . . . politics.

As a psychotherapist with a private practice in Manhattan, I see a lot of early- and mid-career professionals coping with relentless email and social media obligations, the erasing of work/life boundaries, starting salaries that remain unchanged since the late 1990s. I see “aging” employees (30 and up) anxiously trying to adjust to a job market in which people have to change jobs repeatedly and cultivate their “personal brand.” No one uses all her vacation days. Everyone works longer hours than he would have a generation ago.

Continue reading →