The entrepreneurial spirit lives in Americans, and maybe one day there will be a truly great idea that will change the way the law functions.  But this isn’t it.

Via the New York Times, which is curious that the Times thought this worth the space:

At that moment, a lawyer might help keep things from getting out of hand, asserting Miranda rights against interrogation or starting the bail process. But getting that lawyer is no easy thing, said Chris Miles, who co-founded a company, LawyerUp, to get lawyers on the case within 15 minutes.

“If I want a pizza, I can get a pizza in 15 minutes,” he says. “I can get a plumber in the middle of the night. Why can’t I get a lawyer?”

I can forgive the really bad analogy, as Miles isn’t a lawyer (or a professional analogy maker) , as there are some significant distinctions between lawyer and plumber.  Pizza, less so, according to the topping.

The notion of providing access to those who don’t know who to call when the emergency arises isn’t a bad one.  In fact, there are a lot of people who wouldn’t have the slightest clue who to call and would do well to have a lawyer there before they spill every bad thing they’ve ever done in their life.

The problem is that this isn’t the answer.

Some don’t like the name, LawyerUp.

Ralph J. Monaco, the president of the Connecticut Bar Association, seemed a bit ruffled in an interview when asked about the company, calling the name “so tasteless.” He said he fretted that it might create a relationship that an unscrupulous lawyer could use to gouge the new client.

The name is an awful lot better than some of the other ridiculous names of misbegotten ideas.  And sure, this could be used by unscrupulous lawyers, but that doesn’t make it a whole lot different than anything else an unscrupulous lawyer can do.  There are always ways to steal from clients if you’re so inclined. 

Antonin Pribetic, the Trial Warrior, has thoroughly discussed the possibilities for this to be another slime opportunity, and while some young lawyers may well do their best to use this as an opportunity to cut their teeth, far more will see this as a chance to get them while they’re in extremis and have no choice.  One call does it all, except they won’t have a clue who they’re getting or why.  But that’s the nature of the beast.

Who wants to be “on call” in the middle of the night?  No one I know, but I’m sure there are people hungry enough to be willing to do pretty much anything.  And if they happen to know what they’re doing and aren’t trying to scam people, it wouldn’t be a terrible thing to have lawyers available before the damage is done.

But it won’t work.  This concept is replete with structural problems that make it unfeasible.  What people need is a lawyer to show up at the police stations and precincts to stop people from yapping.  It can’t be done.  People don’t get to call when needed. Lawyers won’t be there when needed.  Whether they would be the right type of lawyer, say one with criminal experience, is a whole ‘nother matter, except it won’t matter because they won’t be there when needed anyway.

If anything, it raises the need to know who you might call if trouble arises beforehand, a level of preparedness that few bother with.  One never thinks one needs a lawyer until it’s too late.  Regrets don’t help. 

The proposed access to a lawyer, at $250 for an hour of time, whether that hour is of any use or not, fails to address the need of an emergent situation. 

Mr. Miles, who is not a lawyer, argued that it was the current system, not his company, that was open to abuse. “There has got to be something more fair than a pay phone and a phone book in a police station somewhere,” he said. The lawyers, he noted, had been vetted before being added to the list, and “I’d hire any one of these attorneys to represent me or my family.”

That there is a need here isn’t too far-fetched.  Whether this fills the need is another matter.  Miles is quite right that a phonebook in the police station isn’t the best way to find a lawyer when the need arises.  Nor is asking the other people on the bench for their recommendations. 

But Miles’ assurance that he’s “vetted” the lawyers who have signed up to work his service doesn’t bring much warmth.  Every scoundrel says this, and if it turns out Miles’ lawyers don’t do nearly as well as he suggests, it’s unlikely Miles will serve their time for them.  Heck, I doubt he will give them their money back.  I don’t see any satisfaction guarantee.

In a certain way, I try not to be unduly negative about every new idea that comes along.  It’s easy to be knee-jerk negative,and very much what people expect from lawyers, labeled as stodgy and mired in tradition.  The problem is that it isn’t easy to come up with something new that actually offers a meaningful service to people, once reasonably safe from abuse and reasonably designed to be effective.

And it’s all too easy to tout shiny, new ideas that offer surface appeal but can’t deliver, on the race to the bottom.

On the morning of June 17, 1971, President Richard Nixon, speaking from the Briefing Room of the White House, declared: “America’s public enemy No. 1 in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive. I have asked the Congress to provide the legislative authority and the funds to fuel this kind of an offensive. This will be a worldwide offensive dealing with the problems of sources of supply, as well as Americans who may be stationed abroad, wherever they are in the world.”

From the New York Times.

This “war” has produced more casualties than any other.  This “war” has failed to achieve its goal.  This “war” has been far more expensive than any other in history.  There is no man, woman or child in America who has not suffered for this “war.”

Forty years later, it is still being fought.  And Americans continue to elect politicians and support policies to continue the “war.”  There are  law enforcement officers who feel strongly enough about the error of this notion to take a public stand against it.  There are  organizations dedicated to making Americans understand how the dots connect and price paid for the continuation of this “war.”

And yet, Americans believe that if we just continue to fight the same battle one more time, the outcome will be different.  Isn’t 40 years of failure enough to learn that President Nixon and his successors are wrong?

The Supreme Court, in J.D.B. v. North Carolina, another 5-4 ruling, held that police should “take into account” the age of a person when determining whether it’s appropriate for Miranda warnings to be given.  Lyle Denniston at  SCOTUSBlog explains.

Repeatedly citing “common sense” as its guiding light, a closely divided Supreme Court ruled Thursday that police must take into account the age of a youth they are going to question, in order to decide whether to warn the boy or girl about their constitutional rights — including the right to remain silent.   The Court majority, speaking at length about the vulnerability of children, insisted it was not abandoning the simplicity of the “Miranda warnings”  requirement.  Still, it did not answer all the questions that its ruling may raise in the minds of police officers dealing with a youthful suspect.  Answers may have to come as lower courts apply the new ruling, issued in J.D.B. v. North Carolina (09-11121).

Justice Sonia Sotomayor wrote the majority opinion and, as Denniston says, grounded this emanation of the Constitution in no less sound a foundation than “common sense.”  It’s her life as a former prosecutor in New York that gives rise to this muddle.

Basically, what the Court did was to add to the Miranda equation a requirement that, if an officer knows at the time the actual age of the youth the police are about to question, or a suspect’s young age would have been apparent at the time, the officer must take that into account in deciding for or against a rights warning.   The Court did not say at what young age warnings would have to be given, nor did it say just how the officer was to translate a conclusion about a suspect’s age into a decision to give — or not to give — warnings.

While Miranda warnings never had the effect the court assumed they would have, of sufficiently alerting suspects in custody to the really sound idea that they say nothing and ask for a lawyer, it didn’t work out that way.  Apparently, the Supremes have a peculiar understanding of human nature, where people feel confident enough to assert their rights to police, and police are sufficiently professional that they won’t hold it against them (or beat them senseless). 

But resort to “common sense” signifies the court’s recognition that children are particularly vulnerable to influence and coercion.  It also signifies that Sotomayor was incapable of coming up with any intellectually sound distinction between children, mentally challenged, delicate teacups, habitual drunkards and a host of other people who can’t seem to behave the way Miranda anticipated they would.  Actually, almost no one reacts to Miranda warnings the way the Supremes assumed they would. What a surprise.

And indeed, children are special.  Not that others aren’t special, but children are children.  If only the courts would remember this when they sentence them as if they were adults, but that’s another matter.  Children are taught to respect authority, to be cooperative with adults, that cops are their friends.  We rarely teach them proper etiquette for dealing with custodial interrogation.  Very few schools have a course in this, and few cover it in assemblies along with Mothers Against Drunk Driving.

So what’s a cop to do, now that he should take age into account?  Speak slower as he gives the Miranda warnings?  Smile more?  Use a calming voice?  He can’t change the words to less sophisticated language, as the nature of the warnings are such that courts frown upon too much interpretation.  Better to read it off the card. Always.

Just use common sense, Justice Sotomayor implores.  Without citation.

Common sense  is not my favorite phrase.  It’s not that I have anything against it, as much as it doesn’t exist.  It’s the way people explain things for which they can’t find logical words.  It’s some vague notion that we all carry around within ourselves under the misguided assumption that my common sense and yours bear something in common.  And maybe they do, and maybe they don’t, but we’ll never know.  We just chalk up our belief that our way is the right way to common sense, and know that we’re right and everyone who disagrees is wrong.  It’s just common sense.

What it is not, unfortunately, is guidance.  When the Supreme Court decides to throw a monkey wrench, even if it’s a needed monkey wrench, into the works of something that’s had a pretty stable history, it needs to do more than chalk it up to common sense.  It needs to provide guidance about what it is telling police to do, and the rest of us to do in return.  If the police give the Miranda warnings to children and obtain a confession, have they complied with this decision?  What if they didn’t and obtained a confession, but acted in recognition of tender years.  Then did they comply?  And how do we contend they wrongfully extracted a confession if we don’t know the right way to do so?

Sure, we can argue that it’s just common sense.  So will the prosecutor, since she’s entitled to enjoy the benefits of common sense like anyone else.  In fact, given that the prosecution has taken ownership of common sense years ago, arguing it on a motion to suppress seems so natural.  But what’s the judge to do, with everyone in the room arguing common sense.  No matter what ruling she issues, she’ll claim it too is common sense.

The Sotomayor opinion sought to counter the foreboding of the Alito dissent, insisting that the Court was not inviting police to look at any personal characteristic of “meekness” or insecurity other than young age, that it was not saying that a child’s age would be the decisive factor in every case where giving or not giving warnings was at issue, that it would not be a difficult thing for police to figure out that the suspect they are about to question is a child, and that the bottom line of the ruling was simply that young age could not be totally left out of the custody calculus.

“Common sense” and “community experience,” Sotomayor wrote, make it possible for adults to understand objectively what is to be expected of children in a variety of different situations, and so it is also possible to do so with “children subjected to police questioning.”

Really?  It seems we all know the answer.  It’s just common sense.

This neither an endorsement of Miranda in practice or an anti-child perspective.  Quite the contrary.  We could resolve the custody perception issue (another ridiculous bit of Supreme Court Justices’ assumption of how real people behave) by not allowing police to question a child without a parent or guardian present, and not allowing a statement by a child under 16 to a police officer under custodial interrogation to be admitted in court.

This is an endorsement of the Supreme Court crafting some procedures to go along with their common sense.  You know, just in case common sense isn’t quite as common as Sotomayor says.

Be a cop.  Via Newsday :

Whenever I give my presentation to corporate counsel and executives on preparing for the worst day of their lives, I use a photo from this guy in Texas to make a point.



Some people find this mug shot troubling, less because of how happy Tom DeLay looks than it’s use as a political commentary.  There are a lot of people who think DeLay was a pretty swell guy.  I don’t, but I didn’t use it because it happened to be a fellow who belonged in a mug shot.  It was just that, well, it was one fabulous image that just happened to be of Tom DeLay.

But now there’s competition.  Better still, competition from the other side of the aisle, permitting the point to be made without any unnecessary political overtones. 



Not only does Edwards project that image of cheerful confidence, but he doesn’t have that pale, washed out look we see in Tom DeLay’s mug shot.  Not that it’s DeLay’s fault that the police photographer used too much flash, but still.

The point is that the image of a high profile defendant will be used in every report that discusses the crime.  Taking a page from the marketer’s handbook, the defendant is branded with the image.  If he’s a corporate executive, it becomes the face of the corporation as well.  And it can appear a zillion times, with the voice over, “and John Smith, disgraced CEO of MegaCorp.,” ringing in the public’s ears.  It doesn’t matter how many television commercials appear touting MegaCorp’s humanitarian efforts feeding the starving children of some impoverished country.  The mug shot is what will be remembered.

It doesn’t matter that there are a dozen beauty shots used in glossy corporate brochures and press releases.  No one will seize upon an image of a defendant from better days when there’s a picture of the tragic figure to show.  And aside from radio, television and print are visual media.  They must have pictures.

Make it work for you.  Show that you are not afraid, not beaten.  Show that you are still the same person who won awards, spoke confidently, whether to industry groups or Congress, stared down candidates for high office with incisive comments. 

Of course, no image can please everyone, and  Lawprof Jonathan Turley thinks Edwards’ toothy grin is unbecoming.

In high-profile cases, clients will sometimes ask defense counsel how they should look in a mug shot that will be plastered across the media. There are different schools of thought, but John Edwards clearly went with the smiling “I Can’t Believe These Guys Are Doing This” shot.

On one hand if you look sad, you look guilty On the other hand, if you look happy, you appear callous.

I have serious reservations about this case and its legal grounding. However, I would have encouraged Edwards to adopt a more neutral look for his mug shot.

Does this picture make him look callous?  I don’t think so, but your mileage may vary.  The problem is that if the photo doesn’t come out quite the way you want it to, you really can’t ask the police photographer to do it again.  They hate it when you do that.  Rarely are they accommodating.

This puts the defendant in the awkward position of having one chance of getting it right.  It’s not always easy to do with posed shots, and few shots are more obviously posed than a mug shot.  Turley is a bit overly critical of Edwards, who might seem a bit too happy to be arrested, but looks an awful lot better than James Brown’s.



Or Nick Nolte’s.



And it’s never a good idea to emulate Kumari Fullbright’s mug shot.



She may not appear callous, but she does not look innocent at all.  Then again, there are no political overtones involved.

BadLawyer sums it up:

It’s interesting that local men and women who sat through the trial, heard the evidence, and the testimony of Mr. Ersland felt compelled under the Oklahoma law to find the pharmacist guilty but are now vilified by their family and neighbors.

Maybe there are problems with the jury instructions in this case (not that I know one way or the other,) but these Oklahoma jurors were serious-minded folks doing the job required of them under the law.  Criticizing them without seeing or hearing the evidence is moronic.

Jerome Jay Ersland, 59, was found guilty May 26 of first-degree murder for shooting a wounded robber five more times inside a south Oklahoma City pharmacy. Jurors rejected the Chickasha man’s claim that he was defending himself and two female co-workers.

Thousands have criticized the verdict, signing petitions that state “our Justice System has let us down” or making their opinions known on Facebook and media websites.

Ersland was working in the pharmacy when two men entered to rob the place.  Two female employees ran to the back while Ersland, a Gulf War veteran with PTSD pulled out a gun and shot one of the robbers, 16-year-old Antwun “Speedy” Parker, in the head.  The other fled, and Ersland tried to follow but lost him.

Within a minute, Ersland came back into the drugstore, walked by the fallen robber and got a second gun. He then walked back to the fallen robber and shot five more times.

The prosecution wasn’t for the first shot, but the last five bullets.  Ersland claims he was still moving, which was why he felt he had to continue shooting to defend himself and the two women.

A key issue is whether Parker was moving when he was shot again. He cannot be seen on the video recordings after he falls. Prosecutors said the evidence proves Parker was unarmed, unconscious and not moving. Defense attorneys contended he could have moved even while unconscious.

The jurors watched the security camera videos over and over.  They could see a pool of Parker’s blood.  According to the jurors, it never moved.  Not a ripple.  Parker never moved.  Another juror said that Ersland never even glanced at Parker’s body when he came back into the store and got the gun, his favorite as he said during the police interview, and shot five more times.  The convicted him of murder.  Outrage ensued.

I stand by my verdict,” she said. “You just see it in the media, on Facebook, everywhere. Everybody has a comment and everybody knows about it.”

She said she wants critics to know that jurors had to go by what the law said.

She said, “There are laws and they’re set. And we had to follow the laws. As a jury we had to follow the laws. … I think it was a good decision. It was the law.”

Of the critics, she said, “People don’t know what they’re talking about. … They don’t know the laws. They weren’t there.”

Cases like Ersland’s become a focal point for political gloss,  Rather than separate the first shot, one that no one has questioned was Ersland’s right in self-defense, from the last five, the issue is reduced to its lowest common denominator:  Doesn’t a law-abiding business man have a right to put a stop to some punk robber who would have murdered him in a flash if he didn’t happen to have his own gun at the ready?

The jury of public opinion knows neither rules nor limits.  It doesn’t bother with the nitty gritty. It won’t listen to reason or nuance.  Right and wrong, in the broadest sense, are at stake.  So what if Ersland took a few more shots than he should have, then he needed to.  They won’t cry over the death of Antwun “Speedy” Parker.  They are more likely to make a joke that Antwun wasn’t speedy enough.  The public sees this as a fight between good and evil, and good won.  Now good has been convicted for murder.  And the public is outraged.

The reaction to Ersland’s killing of Parker is very reminiscent of the old New York case of Bernhard Goetz, the Subway Vigilante, which came to characterize the sense of outrage against crime that permeated the City back in 1985.  As with Ersland, it had little to do with the facts of the case and all to do with the broad sense of good and evil, of anger and retribution.

Despite the public’s sense of outrage, its reduction of sensibility to its simplest form, courts aren’t supposed to indulge in appeasing the bloodlust of the masses.  This jury didn’t, and did its job as the law required it to do.  While one might suspect that criminal defense lawyers would blindly back the defendant, and indeed some respond exactly that way, it’s wrong.

Confronted with an armed robber in his drug store, Ersland was lawfully entitled to defend himself from the threat of deadly force.  And he did.  Once that threat is over, so too is his entitled to shoot. Whether Parker was as evil as assumed isn’t the point.  Ersland doesn’t have to know of his childhood or whether Parker would have actually pulled a trigger before taking action.

But when a person, even a person engaged in heinous criminal activity, is dropped to the ground and lies there in a pool of blood, he is no longer a threat to anyone.  It’s not even an argument that Ersland, in the heat of the moment and without reflection, continued to pump bullets into the body until the magazine was empty.  He stopped shooting.  He had an opportunity for reflection.  He got a different gun.  He returned to the body on the ground, lying in a pool of blood, and made a decision to fire five more bullets into it.  This he could not lawfully do.

Parker is no hero.  Parker is not even a sympathetic victim. Parker was a young man engaged in criminal conduct, a robbery.  But Parker is dead.  You can’t shoot people lying on the ground in a pool of their own blood.  Not even bad guys.

Just as public opinion frequently vilifies a defendant without constraint of facts, it can vilify the victim and support a defendant whose conduct may have been very wrong, but who embodies public sentiment that he reflects the triumph of good over evil.  Neither position reflects what the law is or what it should be. 

The public doesn’t bother with the details.  The jury must, and did. 

One of the most routine tools in the police officer’s arsenal is the query, “you don’t have anything to hide, do you?”  It’s amazing how well that works, striking fear in the hearts of law-abiding people and criminals alike, causing them to throw open their doors, trunks and mouths.

But once again, don’t ponder their question too long, when one need only see how the police handle the question when they’re the ones under scrutiny.

For example, consider the reaction of Miami Beach cops, after nine cops pumped a bunch of bullets into unarmed 22-year old Raymond Herisse.

After killing Herisse, the officers chased down bystanders, including Narces Benoit and a photographer for a local news organization, and confiscated their cameras and cell phones.



Benoit hid his cellphone’s SIM card in his mouth when cops seized and smashed his phone. 

Or maybe you prefer a healthier video, say bike riders perhaps,  where they go after the video after beating the cyclist?

And then there’s the “glitch” that was used to conceal the beating five Cleveland cops gave an arrestee who had the audacity to have his belt buckle touch a cop (a vicious assault to the face, as officially described).



Could there be a theme developing?

Don’t blame the cops.  Neither the public nor the courts understand how very difficult their job is, the risks they face to keep us safe from criminals, and watching them make sausage (of people) could have the unsavory consequence of reducing public confidence in our trust in law enforcement.  Plus, it doesn’t help their ability to tell the story their way, you know, with the cops being the hero and not merely beating and shooting people whenever they feel it’s a good idea, if we can actually see what occurred.

To spell out, yet again, that the sanitized versions told in court, emphasized by dreamy eyes prosecutors who believe every word a cop says, and adamantly refuses to believe that a police officer would ever lie about what occurred on the street, seems unnecessary.  The cops tell their own stories in these videos.

Nothing to hide?  Sure.

And they come courtesy of the chronicler of such matters, Huffington Post/AOL rockstar Radley Balko, who does the dirty work of collecting and collating the never-ending stream of horribles that were disbelieved for generations until the advent of video.  Rumors, by the way, of Balko’s being in a bidding war for the  Aaron Spelling estate in Hollywood are unsubstantiated.

Always liberal.  Always available for comment.  And now, the pushy-bottom of the banking industry, shoving Alabama Senator Jeff Sessions off the bed so he can have them all to himself. New York’s Senior Senator, Chuck Schumer, shows that a Dem can be just as sleazy as anyone else when it comes to endearing himself to the banking industry.

From the New York Times :

After years of fighting Mr. Ballard at the federal Patent Office, in court and across a negotiating table, the banks went to see one of their best friends in Congress, Senator Charles E. Schumer of New York, who inserted into a patent overhaul bill a provision that appears largely aimed at helping banks rid themselves of the Ballard problem. The Senate passed the bill easily in March.
The proposal would allow banks to get a federal re-examination of certain patents that they have been accused of infringing, specifically limited to “a financial product or service.”

Yet again, the banking industry would rather lobby politicians than have to pay for infringing the patents of DataTreasury, Claudio Ballard’s company that created the now ubiquitous process of imaging checks.  This is hardly new, as they’ve been  trying for years to get Congress to  pass a law to  relieve them of their liability.  It’s just the darn Patent Office and courts, in case after case, keep holding the big banks liable for stealing the tech they use to save billions of dollars in processing costs.  But really, we love big banks and want them to make money, don’t we?  And who really cares about some company in Plano making big bankers unhappy?

Chuck Schumer doesn’t.

Mr. Schumer said he believed he did the right thing. “This is a case where one company has made a cottage industry out of extracting legal settlements by exploiting a fuzzy part of the law on patents,” he said. “When New York institutions are in the right and under assault, I will support them all the way. If these lawsuits are legit, the company should have no problem letting the patent office do an independent review.”

Cool story, bro.  So what if DataTreasury’s patents have passed scrutiny already.  So what it they’ve passed scrutiny twice already.  What’s a third “independent review,” if they’re legit?

DataTreasury patents have already been reviewed and validated by the patent office, but the bill would allow for an expanded consideration of other elements in a new review format.

Now there’s a neat trick, changing the rules after the fact.

Calling a company that created the process used by every bank in the nation to save, and hence earn, untold billions of dollars a “cottage industry” for trying to recapture the loss from banks shamelessly stealing from them is just a bit disingenuous, Chuck.  Same with saying big banks are under “assault,” though one might hope they would be under assault from the government for a wealth of shenanigans in mortgage markets and derivatives, but that would hardly get any senator a campaign contribution from appreciative corporate constituents.

It’s said that a conservative is a liberal with a mortgage, and a liberal is a conservative under indictment.  So what’s the right thing to call a New York Democratic Senator who lies in bed on silk sheets awaiting the love of the banking industry?  We need not stress too much over the description, as can just call him by name. Right, Chuck?

The less information available, the more likely courts will circumscribe constitutional rights because dire predictions and rhetorical flourish can make the future seem far worse than reality.  Of course, the obverse is that reality often shows that it was no big deal to begin with, and that preservation of constitutional rights isn’t the end of the world.

The 3d Circuit’s en banc decisions in two school free speech cases, where students were disciplined for creating online parody pages on Myspace in the names of their principals, out of school speech that was juvenile, crude and offensive to the principles involved.  Such disrespect could not go unpunished.

In Layshock v. Hermitage School District, high school student Jason Layshock put up a photo of his principal and answered questions as follows:

Birthday: too drunk to remember
Are you a health freak: big steroid freak
In the past month have you smoked: big blunt
In the past month have you been on pills: big pills
In the past month have you gone Skinny Dipping: big lake, not big dick
In the past month have you Stolen Anything: big keg . . . .

Vicious stuff, right?

In J.S. v. Blue Mountain School District, a middle school student used a photo and filled the page with “vulgar sexual references and profanity,” as only a middle schooler can.  In both instances the pages were created outside of school.

As Avery Doninger learned, the exercise of speech outside the school house gates is hardly an assurance that the school won’t exact it’s pound of flesh.  As  Dan Solove explains:

The prevailing standard for when schools can impose discipline for off-campus speech was developed from the U.S. Supreme Court’s decision Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  When off-campus speech causes a material and substantial disruption of the school environment, the school can impose discipline.  Otherwise, off-campus speech would receive full First Amendment free speech protections (unless it were a threat). This is known as the “substantial disruption” standard.

Tinker is another in a long line of cases that rewards the party who has the least amount of proof available.  In both of the cases before the 3d Circuit, the schools lost.  As it turned out, neither of the Myspace page parodies amounted to much of anything.  A few kids giggled and snickered, and then everybody went back to class and did their school work.  Whether it wasn’t that funny or students understood it to be a joke, ridiculing the principle because that’s what students do, it barely made a ripple in reality.  The only person who suffered a “substantial disruption” was the target of the speech, the respective principles, whose egos were bruised.

Had reality not interfered with a darn good argument, however, the decisions would have easily done a Doninger and gone the other way.  Lawyers for the districts would argue at length, in vivid color, how any characterization of the beloved and respected educator would wreak havoc with the functioning of the district, leaving hundreds of students to wander the halls, bumping into one another, learning nothing and becoming bums and drug addicts; a generation lost to the parents of the Hermitage School District and children gone bad in the Blue Mountain schools.

Except both school districts were constrained to concede that there was no “substantial disruption.”  In fact, aside from the school’s “reaction,” there was no disruption at all.  Speech was had.  Sexual references were made.  A quick giggle, then . . .  nothing. 

Still, the court couldn’t bring itself to reach the obvious conclusion, reaffirming the pre-emptive incentive of ignorance in Tinker:

The court did, however, agree that a substantial disruption need not actually occur and that a reasonable forecast of a substantial disruption would have been sufficient to impose discipline:

Although the burden is on school authorities to meet Tinker’s requirements to abridge student First Amendment rights, the School District need not prove with absolute certainty that substantial disruption will occur. Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008) (holding that Tinker does not require “actual disruption to justify a restraint on student speech”); Lowery v. Euverard, 497 F.3d 584, 591-92 (6th Cir. 2007) (“Tinker does not require school officials to wait until the horse has left the barn before closing the door. . . . [It] does not require certainty, only that the forecast of substantial disruption be reasonable.”); LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (“Tinker does not require school officials to wait until disruption actually occurs before they may act.”).

From the perspective of school administrators, any speech that doesn’t please them will most assuredly cause a substantial disruption, thereby justifying their stifling of student speech and imposition of punishment in advance of the world ending. 

In the olden days, before the internet, this wasn’t nearly as much of a problem, as speech outside the school yard gates could more readily be distinguished, and hence protected, from what happened in the hallways.  But the line isn’t as clear anymore.  Solove sees the Tinker standard as a viable compromise:

The Internet is making the line between off-campus and on-campus speech is increasingly more blurry.  But a line is important to maintain, or else a school’s power to regulate student speech would extend way too far beyond the schoolhouse gate.  The substantial disruption standard is a meaningful compromise, where school officials must make a compelling demonstration how off-campus speech interferes with life on campus.  School officials do not have to wait for an actual disruption if one is reasonably predictable.  But the lesson drawn from these cases is that schools must document a really compelling case, one that is not based on standard speculations or very loose linkages between the speech and on-campus activities.  Real disruption, beyond occasional chatter and beyond the ridicule of school officials is required.

Both the caselaw, and life in the courtroom, suggest that this is naive.  It’s hardly difficult to cobble together allegations of dire consequences stemming from online speech, where the student body rises as one and ridicules a school administrator, refusing to follow their command, trashing the school and ultimately devolving into some Lord of the Flies fantasy.  All it takes is a compelling story, unconstrained by evidence that none of it ever happened.  Telling a good story is a lawyer’s stock in trade, Refuting a story that never happened is much harder.

Given the nature of the internet, coupled with juvenile sense of humor, crude and vulgar speech directed at school officials on a social media website isn’t likely to go away, and indeed, as each no class of students discovers that they can string together a bunch of curses and sexual references directed at teachers, principals, superintendents, the typical objects of school children’s ire and rebelion, this can only get worse.

Considering the sort of stuff that kids are seeing online from the moment of puberty onward, they realize all too well how lame most of this is, and utterly inconsequential as far as disrupting the functioning of schools.  It’s the elders, from principals to judges, who don’t grasp how little this matters to kids, how trivial the impact will be to education and their lives.  There are a million “funny” and vulgar things online, and growing by the moment.  Free speech parodies by kids are a quick chuckle, if that, before they move on to the next FunnyJunk video or meme.

Yet the Tinker standard, persists, empowering school officials to punish students for disruption that only exists in their hurt imagination, backed up by judges who refuse to question dire predictions that never seem to bear out in reality. 

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