The email was from an unfamiliar name, but the subject line was well known.  So I opened it.  First, the introduction, that the writer was an associate of a lawyer who represented a defendant in a large, multi-defendant conspiracy case.  Then came the meat of the communication.

We have been reviewing the discovery materials provided by the government and we are trying to locate a conversation between Smith and Jones in which they discuss 91 kilograms of heroin.  We would like to determine if our client was present during that conversation and/or participated in it. 

If your office has located that conversation, could you kindly please direct our attention to where it’s contained in the discovery materials.

I am unaware of any conversation in which any person discussed any controlled substances at any time.

During a panel discussion at the Asian American Bar Association of New York, Vivia Chen from ALM’s  The Careerist asserted that the blawgosphere has helped to educate and inform non-lawyers on the law, thus making them more knowledgeable.  I strongly disagreed.

My take is that non-lawyers latch on to whatever writings support their preconceived notions, using the fact that a lawyer agrees with them as proof of their validity of their position.  No matter how batshit crazy it may be. Confirmation bias at its finest, if you will.  Do you not think lawyers get fitted for tin foil hats too?

During some recent romps through the blogosphere, I’ve read a variety of posts about law, decisions and governmental actions written by IANAL bloggers with significant followings that were shockingly misguided.  Whether overly simplistic or just plain wrong, there was a theme to be found: They disclaimed adequate knowledge to proffer their opinion, but did so anyway. 

And from comments that followed, they were applauded by a great many other IANAL commenters whose anger and ignorance was bolstered by this public validation of their beliefs.  Then came the kicker, a link thrown in here and there to some lawyer somewhere who supported their position.  Professional confirmation. 

If I was a law professor, I would explain this phenomenon this way:

Earlier this month, I blogged about assertionism — my label for usage claims that sound like prescriptivism, but are actually bare assertions: They don’t rely on any claims about what the (supposed) Linguistic Authorities say, on any detailed logical arguments, or on claims about allegedly superior clarity or precision; they just consist of a person’s bare assertions. And when one asks for evidence supporting the claim, all one gets is more bare assertions. Prescriptivists ought to dislike assertionism as much as descriptivists do, partly because assertionism often comes across as unintentional parody of prescriptivism.

I hope this paragraph makes your head hurt as much as it did mine.  Yes, I’m that cruel.  But I’m not that smart, and so I explain things using smaller words.  We, lawyers, do not have the authority to make naked claims, unsupported by law or reason, that make non-lawyers stupider for having read them.

Lawyers have an ethical duty to educate the public in the law.  We have a concomitant duty not to make deceive them.  While we don’t forfeit our right to free speech upon taking the oath, at least not exactly, we undertake certain responsibilities that constrain our ability to assert whatever we please when it comes to something where our specialized knowledge gives us the appearance of credibility.  We can’t just spew.

You want to spew?  You have fee-eee-eeelings?  You are angry and frustrated because the law sucks, truth to power, David versus Goliath?  How nice for you, the freedom to assert whatever pops into your head, cloaking yourself in your legal education, your expertise, so that the mere assertion by you carries the weight of a professional opinion that others can embrace and hold to their breast.

This isn’t necessarily a criticism of lawyers trying to use the internet to market themselves.  There is no inherent conflict with demonstrating expertise in a particular niche of law for the purpose of showing potential clients that you possess the knowledge and abilities they want from a lawyer.  But if you find it hard to crank out a substantive blog post, or become taken with your ability to reveal your deepest, darkest peeve despite the utter absence of any rational basis, and fill in the blank blog space with it, then there is a problem.

The Hippocratic oath is rumored to begin, Primum non nocere, First, do no harm.  Blawgers take no oath.  The barriers to a lawyer showing up on the internet and offering opinions to as many people as will read them is a dollar and a dream. 

Despite the fact that every lawyer is brilliant (it’s those other lawyers who are blithering idiots), some of the brethren have blogs that offer opinions that are wholly unsupportable, that reflect the pathetic reality that they are wearing tin foil hats.  They confirm the wildest and most bizarre beliefs of non-lawyers. They validate confusion and misunderstanding.

All this leads up to an aspiration that we should all make the core of our efforts in public expression as lawyers. 

Leave no one stupider for having read what we write.

Before anyone points out the obvious, not everything I’ve written comports with this idea, and I apologize for my trespasses.  I promise to do better.  And if you are writing as a lawyer, offering naked assertions that serve to bolster non-lawyers beliefs in the bizarre and ridiculous, do better as well. 

Society is suffering from a lot of maladies lately, and it’s not entirely clear that we have the capacity to cure every disease.  Let’s not inflame the boil of stupidity.  We may not be able to fix anything, but we can certainly not make things worse.

In a 4-3 decision covering a pair of cases, People v. Muhammad, the New York Court of Appeals has done the seemingly impossible, upheld a conviction for First Degree Assault by means of a weapon in the face of the jury’s acquittal of possession of a weapon.  Magic.

Federal courts stay out of the jury room and even make the effort at rationalizing repugnant verdicts, even though it would seem to undermine confidence that the legal system is anything more than a shell game.

The U.S. Supreme Court settled this question for federal courts when it unanimously held that the Federal Constitution does not prohibit a jury from rendering a verdict that is inherently inconsistent (see e.g. United States v Powell, 469 US 57, 63 [1984], citing Harris v Rivera, 454 US 339, 346 [1981] [a jury has the “unreviewable power . . . to return a verdict of not guilty for impermissible reasons”]). The Supreme Court has further declined to address repugnancy under its supervisory powers over the federal criminal process because, among other reasons, “[s]uch an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake” (Powell, 469 US at 66, quoted in People v Rayam, 94 NY2d 557, 563 [2000]). Hence, federal courts do not review verdicts under the theory of repugnancy.

New York, however, remains in the repugnancy business.  At least in theory.  In the two cases before it, one defendant was convicted of assault using a gun, the other with a hammer.  Fair enough, except the juries acquitted of possession of a weapon as well.  So then, you have assaults with a weapon, but no weapon. What to do?

Judge Victoria Graffeo, writing for the majority, shows that she can still work the floor mats.

Our standard for judging whether a verdict is legally repugnant was articulated in 1981 in People v Tucker (55 NY2d 1). We held that “a verdict as to a particular count shall be set aside” as repugnant “only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” (id. at 4) without regard to the accuracy of those instructions (see id. at 7; see also People v Green, 71 NY2d 1006, 1008 [1988]; People v Hampton, 61 NY2d 963, 964 [1984]). The underlying purpose of this rule is to ensure that an individual is not convicted of “a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all” (Tucker, 55 NY2d at 6). A person cannot be convicted of a crime if a jury has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt.

So far, so good, provided that the little wrinkle of incorrect jury instructions doesn’t cause a hiccup.  So where’s the rub?

Based on the instructions that were given to the juries and viewed from a theoretical perspective without regard to the evidence presented at these trials, it was possible for these juries to acquit defendants of weapon possession but convict them of assault because the former crime contains an essential element that the latter does not: possession. The weapon counts required that defendants physically possess their respective weapons or exercise dominion or control over them (see Penal Law § 10.00 [8]; § 265.02 [1]; § 265.03 [1] [b]). The assault counts, however, required that defendants injure the victims “by means of” the weapons (Penal Law §§ 120.05 [2], 120.10 [1]) and that result could have been accomplished without possessing those instruments.

Theoretical perspective?  Uh oh.  Judge Graffeo goes on to explain that an assault with a weapon could, theoretically, be committed by throwing a person in front of a subway train, the train becoming the weapon even though it’s not possessed by the defendant.  Great example of her point, right?  But these guys had a gun and hammer. Neither one used a subway train.

What’s fascinating about this “theoretical” rationale is its thinly veiled reliance on the notion of jury nullification.

We recognized in Tucker that a jury “may freely reject evidence and exercise its mercy function” by rendering a verdict that appears to be factually illogical. A jury is therefore free to extend leniency and may decide not to convict a defendant of one or more charges notwithstanding the court’s legal instructions.

That’s right, all you Android Anarchists, your beloved jury nullification has come back to bite you in the butt.  Maybe there’s nothing in fact repugnant about the verdict at all, and it’s just a jury being kind to the defendants, showing a bit of illogical mercy and leniency.  Juries are allowed to do that, you know.  Isn’t that what you’ve wanted all along?

The problem with this backhand swipe is that neither the court, any more than the nullification advocates, can have it both ways.  If lawyers can’t argue for, and judges can’t instruct, the jury to make the active decision to acquit despite proof of guilt, then courts can’t rationally bootstrap this possibility into a justification for a repugnant verdict.  Either we can do it or we can’t, and if we can’t, they can’t either.

As long as trial courts play the game of believing that jury verdicts are based on evidence presented at trial, and that the jurors actually pay attention to the charge given by the court as applied to the evidence, it seems that resort to theoretical flights of fantasy to uphold a conviction in the face of a repugnant acquittal makes the criminal justice system appear absurd.  Every case has its facts, and either they mean something or they don’t. Pick a side.

In dissent, Judge Carmen Ciparick lays out what would seem obvious to all:

After all, as the trial court explained in its charge, Muhammad was indicted under a theory that he shot the victim. Thus, it should go without saying that Muhammad could not have shot the victim with a firearm if he did not possess one. The jury, in rendering its guilty verdict on the assault count, also had to find that Muhammad intended to cause serious physical injury to the victim by means of such firearm.

But the obvious is only obvious if one is constrained to decide appeals based upon the facts.  Is that a subway in your pocket or are you glad to see me?

H/T Our hinterlands correspondent, Kathleen Casey 

Taking its decision in  People v. LeGrand a step further, the Court of Appeals decision in People v. Santiago reversed a subway assault conviction, resulting in a 25 year sentence, for the refusal to permit the defense to call an expert to explain why eyewitness identification was unreliable.

The decision, by Judge Eugene Pigott, states:

In this case, turning on the accuracy of eyewitnesses’ recognition of an assailant’s partially concealed face, we consider whether two additional eyewitness identifications sufficiently corroborated the victim’s identification of the defendant, so as to render expert testimony on eyewitness recognition memory unnecessary. We conclude that they did not, and that it was error to exclude much of the proposed testimony.

As with LeGrand, the only evidence of the defendant’s commission of the crime was the identification by eyewitnesses.  The difference here was that the victim’s identification was corroborated by two independent witnesses, raising the question of whether three IDs, in the absence of any physical evidence, sufficiently corroborated each other so as to obviate the defense’s effort to attack the reliability of the identifications by an expert.

By in limine motion, the defendant sought to gain the trial court’s approval of its use of an identification expert.  The prosecution countered that the information the expert would provide was already known by jurors.  The defense provided the nature of the evidence it sought to introduce.

He would testify concerning studies that support various principles proposed by psychologists in the field of eyewitness recognition – exposure time (the amount of time available for viewing a perpetrator affects the witness’s ability to identify the perpetrator); cross-racial and cross-ethnic inaccuracy (non-Hispanic Caucasian eyewitnesses are generally less accurate in identifying Hispanic people than in identifying other non-Hispanic Caucasians); weapon focus (a victim’s focus on the weapon used in an assault can affect ability to observe and remember the attacker); lineup fairness (similarity of fillers to the suspect increases identification accuracy); lineup instructions (police instructions indicating that the police believe the perpetrator to be in the lineup increase the likelihood of false identification); forgetting curve (the rate of memory loss for an event is greatest right after the event and then levels off over time); post event information (eyewitness testimony about an event often reflects not only what the witness actually saw but also information the witness obtained later); wording of questions (eyewitness testimony about an event can be affected by how questions put to the witness during investigation are worded); unconscious transference (eyewitnesses sometimes identify as the culprit an individual familiar to them from other situations or contexts); simultaneous versus sequential lineups (witnesses are more likely to make mistakes when they view simultaneous lineups than when they view sequential lineups); eyewitness confidence issues (an eyewitness’s confidence level is not a good predictor of eyewitness accuracy, but eyewitness confidence is the major determinant in whether an identification is believed by jurors), and confidence malleability (eyewitnesses’ confidence levels can be influenced by factors unrelated to identification accuracy).

A very thorough list which, when the case was sent to a different judge for trial, was summarily rejected.  The Court of Appeals held otherwise.  First, it restated the two-prong(?) rule of LeGrand:

In People v LeGrand (8 NY3d 449 [2007]), we set out standards governing the discretion of trial courts in regard to the admission of expert testimony on eyewitness identification. LeGrand established a two-stage inquiry for considering a motion to admit such testimony. The first stage is deciding whether the case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime” (LeGrand, 8 NY3d at 452). If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors.

The court must decide whether the proposed “testimony is (1)relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror”

The court distinguished it’s holding in an interim decision, People v. Allen, where it held a second identification was sufficient to corroborate, and thus remove the ID from LeGrand, because the witness knew the defendant, thus providing adequate indicia of reliability.

In this case, however, multiple identifications that all suffered from the same reliability issues addressed by the first prong of the LeGrand test did not corroborate each other, thereby removing the taint of unreliability.  In other words, problematic identifications remain problematic, no matter whether it’s one or three.

While the decision isn’t quite firm, noting particular issues with the supporting identifications such as a witness’ assertion of “80% confidence,” when the identification is no less questionable when absolute confidence is expressed, it reflects one more step down the road in supporting the defense’s ability to challenge bad identifications.  We’re getting there. slowly but in the right direction.

Like a loaded gun in the hands of children, we let lawyers tap on keyboards.  In Virginia, the result is that legal bloggers will now be required to include disclaimers on their blogs, as your right to free speech and expression was left in the hands of Horace Hunter.

Hunter was charged with misconduct for violating professional rules of conduct requiring an advertising disclaimer that states that results depend upon factors unique to each case and that results in one case do not predict similar results in others.

The disclaimer is aimed at preventing potential clients from being misled, generating public mistrust of the justice system or client mistrust of their lawyers.

Hunter argued his blog consists of news and commentary and refused to post the disclaimer as a violation of his free-speech rights.

And Hunter crashed. And burned. And with him, so did you.  The core problem, and one that has fallen through the cracks in much of  the discussion about this sordid case, is that this wasn’t a blawg.  Hunter says otherwise, but Hunter is wrong.  And with his error, so goes all Virginia blawgers down the tubes. 

Horace Hunter wrote about himself and his victories.  He argues that he wanted to use his great wins to make points about the system:

Contrary to you contention, the blog is not entirely self-serving because we discuss a number issues relevant to the criminal justice system that have nothing to do with cases that I have worked on. The problem for me is that as a criminal defense attorney, many of the articles are critical of the government. [Shameless self-promotional garbage deleted] If I had to disclaim the article as an “advertisement”, it would cheapen it.

Note that I deleted a portion of Hunter’s comment that I found flagrantly self-aggrandizing and utterly unnecessary to the comment.  It just blew me away that he couldn’t even leave a comment that didn’t serve some self-promotional purpose. 

Does a disclaimer “cheapen” his discussion of issues critical to the government?  Do hip boots cheapen streetwalkers in hot pants?

Hunter conceded on cross-examination that one purpose of the blog was marketing and that he had not sought the consent of his clients before posting information about the cases — cases he had won, not lost.

One purpose?  Well, that may be accurate, and I won’t claim that Horace Hunter had no other purpose to writing about his great victories other than marketing.  There’s no reason why, in the course of marketing oneself, you can’t throw in some slams against the government, particularly given the nature of the beast.  But let’s not play dumb.  This was marketing first, and whatever collateral benefit might have accrued by way of legal commentary, it wasn’t going to get in the way of marketing.

For a very long time now, I’ve railed against lawyers using the device called a blog as a affirmative marketing weapon.  This isn’t to say that a legitimate blawg can’t have collateral marketing benefits, by demonstrating knowledge about an area of law, but that it’s core purpose isn’t marketing.  It’s time to make a hard distinction: If you write for marketing, then where you write isn’t a blog.  It’s an advertisement. Give it some other name to end this confusion, because while the Virginia bar wrote about blogs, that’s not what they were talking about.

And to add insult to injury, Hunter got slam dunked on a separate issue, that writing about his own cases, his own clients, without their consent violated confidentiality.

[Assistant bar counsel Renu] Brennan presented evidence that at least two people represented by Hunter said they did not want their cases posted on his blog after learning they were there.

Of course, how can Hunter pump his victories without writing about the people who trusted him with their confidences, the protection of their lives and reputations. Contrary to the advice for profit of legal marketers everywhere, whose vision of clients is fodder for the legal marketing machine, our clients do not exist to be used for our own benefit. 

In assessing this decision, Ken Lammers at  CrimLaw writes:

When I became a lawyer I don’t recall being told that I lost my 1st Amendment right to freedom of speech. However, it appears that the Virginia Bar has decided that all lawyers in Virginia have forfeited that right when it comes to blogging about matters that are already a matter of public record.

I remember it quite clearly, when it came to taking the worst thing that ever happened in a client’s life and using it for self-promotion.  Let’s address a false assumption before going farther, that when a lawyer writes about his client, about a case, it’s mere public record.  We are lawyers. We speak for the client. Our words are no different than those uttered by the client himself.  Our impressions, biases, joy and anger are attributable to the client.  For the purposes of the outside world, we are our clients.  This means something.

But this decision isn’t about losing rights. It’s about protecting client confidences and trust.  Sorry, lawyers, but that trumps our right to market ourselves.  Commercial speech doesn’t require strict scrutiny and a compelling state interest, but our duty to clients requires us to keep our stories to ourselves, even if we think we can make a buck off them.

When we write about our clients, we reveal their perspective whether we want to or not.  This may well be our purpose, as we advocate for them and seek to use our voice to further our clients’ goals, and that’s what we, as lawyers, are expected to do. 

But that’s an entirely different use than taking the worst time of our clients’ life and using it to promote ourselves.  We have no right, none, to use our clients for our own advantage, and doing so is an inherent breach of confidence and, frankly, a disgrace.  It is a fundamental violation of trust. It should not happen.

I realize that many, particularly newer lawyers who read the stuff written on the internet, enjoy the inside story of a lawyer talking about his cases.  It’s titillating.  It’s cool, It’s fascinating.  And it fundamentally wrong.  Those lawyers who do it are wrong, and those lawyers who enjoy it are wrong.  There is nothing about a client’s life that is ours to use for our own advantage.

For years, I’ve railed about how marketing is going to be the death of thought, of commentary, of meaningful scrutiny.  The legal marketers hate me for it, as I do nothing to further their business.  For years, I’ve railed against the abuse of client confidences and trust for the benefit of lawyers.  Marketing lawyers hate me for it, as I do nothing to further their business. 

And this is why Horace Hunter lost, and why real blawgers will suffer, will lose their honestly-possessed First Amendment rights, as a consequence.  Are you happy now?

Like most people who have  a passing concern with the cyber infrastructure upon which modern society depends, the warning from no less a personage as  F.B.I. Director Robert Mueller that cyberterrorism is “real and rapidly expanding” seemed like a pretty good cause for concern. 

Terrorists have shown “a clear interest” in pursuing hacking skills, he told thousands of security professionals at the RSA Conference in San Francisco. “They will either train their own recruits or hire outsiders, with an eye toward combining physical attacks with cyberattacks,” he said.

Mueller sought a joint effort by the government and hi-tech companies to fight terrorism online. Sure, it would be expensive and intrusive — very expensive, and very intrusive — but what else could we do to stop them from destroying our way of digital life?  I certainly didn’t want Al Qaeda in control of twitter.

Accordingly Brooklyn Law professor Derek Bambauer, the threat of cyberterrorism is, well, overstated.  At PrawfsBlawg, he calls it a “myth.”

UPI’s article on cyberterrorism helpfully states the obvious: there’s no such thing. This is in sharp contrast to the rhetoric in cybersecurity discussions, which highlights purported threats from terrorists to the power grid, the transportation system, and even the ability to play Space Invaders using the lights of skyscrapers. It’s all quite entertaining, except for 2 problems: 1) perception frequently drives policy, and 2) all of these risks are chimerical. Yes, non-state actors are capable of defacing Web sites and even launching denial of service attacks, but that’s a far cry from train bombings or shootings in hotels. (Emphasis added.)

Mueller lied to me? Seriously?

The response from some quarters is that, while terrorists do not currently have the capability to execute devastating cyberattacks, they will at some point, and so we should act now. I find this unsatisfying. Law rarely imposes large current costs, such as changing how the Internet’s core protocols run, to address remote risks of uncertain (but low) incidence and uncertain magnitude. In 2009, nearly 31,000 people died in highway car crashes, but we don’t require people to drive tanks. (And, few people choose to do so, except for Hummer employees.)

Yes, I left the gratuitous attack on Hummers in. The H1 may have been cool if enormously wasteful, but there is no excuse for the H3. None.

So this is a manufactured threat, created in anticipation of capabilities since none currently exist, and of low risk regardless, which makes it remarkably similar to the physical attacks on our soil.  Let’s not forget that about 3000 died in the World Trade Center attack. While a significant number, it remains about 10% of what we annually give away for free to drive fun cars.  Lost lives and lost lives, whether we accept the cause of death as an element of normality, or fear it as our gravest threat.

Bambauer offers a four prong explanation for government’s crying “the sky is falling”:

First, terror is the policy issue of the moment: connecting to it both focuses people’s attention and draws funding.

Second, we’re in an age of rapid and constant technological change, which always produces some level of associated fear. Few of us understand how BGP works, or why its lack of built-in authentication creates risk, and we are afraid of the unknown.

Third, terror attacks are like shark attacks. We are afraid of dying in highly gory or horrific fashion, rather than basing our worries on actual incidence of harm (compare our fear of terrorists versus our fear of bad drivers, and then look at the underlying number of fatalities in each category).

Lastly, cybersecurity is a battleground not merely for machines but for money. Federal agencies, defense contractors, and software companies all hold a stake in concentrating attention on cyber-risks and offering their wares as a means of remediating them.

When you put it that way, it sounds pretty much like every fear-mongering initiative that offers fabulous potential to scare the living crap out of the public and thus gain its approval to sink vast amount of money into its prevention and, if played right, willingness to give up an entirely new level of personal privacy in our online endeavors.  You know, to protect us from the terrorists, all programs and servers need backdoors for the F.B.I. and C.I.A. to gain access at will.  For our own sake. No, really.

In a comment to the post, Orin Kerr, who also spends a good deal of time thinking binary, offers an astute observation:

When the evidence of a threat is largely classified, public discussions of security threats tend to be frustrating because values often masquerade as empirical evidence. One side always says there is a huge threat; another side always responds that there is no real threat. In my experience, these sorts of empirical claims are often created by normative values: The more one favors a particular response, the more one assess the threat to match that response. But perhaps I’m too cynical.

Does this mean our government is crying “wolf” or outsiders just can’t appreciate the accuracy of the threat because we lack access to the secret information it possesses?  That each side harbors its own bias comes as no surprise.

The problem is that the two sides are as far apart as possible, one screaming about the end of the digital world and the other saying it’s just bunk.  Both Kerr and Bambauer note that their respective proponents are sincere in their beliefs, which, of course, gets us absolutely nowhere.

To the extent that those in government use the threat of cyberattack as a justification for sinking a ton of money into its defense, and relinquishment of ever more privacy rights in the name of safety, my bias is that they’ve failed over the past decade to demonstrate that they can be trusted.  Consider the efficacy of the TSA’s approach to airplane safety, and wonder what they might come up with to protect us from cyberattack. 

Sure, the two are unrelated, but they have a hammer and they will beat us to death with it if given the chance.  In the meantime, I’m more concerned with your lousy driving and the reasonable possibility that you’re going to cash your Hummer into me, leaving just as dead.

As the Supreme Court has agreed to consider the constitutionality of the Stolen Valor Act, 18 U.S.C. § 704(b), having granted cert in   United States v. Alvarez which held the law unconstitutional as an infringement of free speech.  This hasn’t sat well with many.

The law prohibits people from lying about their having been awarded a military decoration, as Xavier Alvarez claimed when he, as an important water district director, told people he had been awarded the Congressional Medal of Honor when he was a marine.  Go big or go home is the water district motto. Sadly, Alvarez was a lying liar. He was no marine, and he certainly won no medal of honor. 

And so he was prosecuted.  The Ninth Circuit raised a hoary issue:

The Act, as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact—without anything more.

The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech.

Alvarez’s “semper fraud” led to a conviction, which was later thrown out by the Ninth Circuit in San Francisco. The court rightly found that the Stolen Valor Act was an unconstitutional restriction of free speech. Now, ominously, the U.S. Supreme Court has agreed to review that decision.

We have always had fraud laws making it illegal to claim military service or honors to receive financial benefits. Congress, however, wanted to be able to jail people for just telling a lie. While the Stolen Valor Act concerns lying about a military medal, the Alvarez case could establish a legal principle allowing Congress to criminalize virtually any lie – allowing a sweeping new form of regulation of speech in the United States. Politicians have long denounced journalists, political opponents, and whistleblowers as liars, but they could now enact laws that would define some statements as criminal lies subject to arrest.

The problem, as Turley argues, is that it’s not particularly likely that cert was granted for the majority of the court to sing hosannas in support of the circuit’s opinion, with Jay Bybee, “a man accused of falsely bending the law to justify torture,” dissenting.

It seems unlikely that the justices voting to accept the case did so simply to amplify the views of the Ninth Circuit – the most often reversed circuit in the country. Justices Roberts, Scalia, Thomas, and Alito are all viewed as proponents of police power and opponents of some free speech values. Even some justices on the left may not be reliable votes, including Obama’s nominee Sonya Sotomayor, who was opposed by some civil libertarians for her past rulings against free speech rights.

When Louisiana  passed a law prohibiting junk dealers from engaging in cash transaction, it sounded like another absurd effort by some backwater that would swiftly be laughed away by calmer heads.  And indeed that may still happen, but the assumption that this law was unconstitutional (and certainly unAmerican, Bobby Jindal) may be mistaken, according to Eugene Volokh.

A reader asks whether this is consistent with the federal legal tender statute, 31 U.S.C. § 5103, “United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues.” I’m not an expert on this area of law, but I do know that a district court recently upheld a similar law, in Genesee Scrap & Tin Baling Co. v. City of Rochester (W.D.N.Y. 2008). An excerpt from the court’s reasoning:

What Congress has sought to do, then, is establish and maintain a uniform national currency, an aim which is incompatible with a system in which individual states can issue their own currency, or declare things other than federally-issued money to constitute legal tender. The Ordinance at issue here does no such thing, however. It merely provides that payment for junk must be in the form of a check, which in turn is payable in United States currency. Accordingly, it is neither unconstitutional nor inconsistent with § 5103.

What immediately stands out is how Judge David Larimer, with the use of the word “merely” in lieu of anything remotely resembling a rationale, ignores the legal implications of his ruling.  Of course, that doesn’t mean the ordinance there, or Louisiana law here, is unconstitutional, but rather than this decision provides no persuasive basis to suggest otherwise.

There was once a time in America when legal tender, currency and coin, was considered a pretty normal way of transacting business.  If someone wanted something, we reached into our pocket and took out some metal or paper and paid for it.  The person on the other side was secure in knowing that the transaction was completed, and everyone shook hands and walked away happy.

War on currency was a collateral component of the war on drugs, where the underground economy involved huge amounts of currency that were taken in by drug dealers and, to have any useful purpose, had to be spent or invested somewhere.  Having a room stuffed with currency did no one any good; it’s utility was buying expensive things, from cars to buildings to diamond tiaras, if that was your thing.

The government shut that down with its emphasis on outing and prosecuting money laundering, requiring transactions in amounts of currency of $10,000 to be reported, and criminalizing efforts to avoid the reporting requirement, known in the trade as smurfing.  Cash became a problem.  People who possessed large amounts of cash were presumably criminals, and seizures of currency far below the $10,000 limit became the norm, with the person from whom the cash was seized expected to explain its possession to the satisfaction of the government.

Credit cards, debit cards, with all their fancy swiping tricks and metallic colors, because the common substitute.  For many, walking about with more than $20 in their pockets became an oddity. Why carry cash with all the wonderful means of transacting business available.  So what if the banks charged extra for the pleasure, first to merchants and now to consumers.

There were some for whom this didn’t work well, but they weren’t favored people.  Immigrants, whether documented or not, tended not to trust banks or lived hand to mouth, and held their cash close.  People in certain retail businesses, where small bills commonly exchanged hands, tended to carry around wads.  Business with small margins, who couldn’t afford to lose the 4 points the credit card companies demanded, or take the risk that a check would bounce, preferred currency.

But these presented problems to a government that wanted the ability to track the flow of money, to and from, that was admirably documented for them by banks and kept available should they need the information later.  Bank records told a story, where you went, what you earned, what you bought and what you weren’t telling them.  All laid out neatly in monthly statements. 

While I’m certainly no expert on the constitutionality of legal tender any more than Eugene is, it strikes me that an attribute of legal tender, as established §5103, and in light of Article 1, Section 10 of the Constitution, is the ability to use it at will, in payment or satisfaction of a transaction.  Without this element, it has no viability as legal tender, and the notion of legal tender fails.  It would seem that this is the aspect that nags everyone upon hearing of laws limited the use of cash.  But it’s cash?  What’s the point of cash if we can’t use it?

The point is that the government wants you to spend, even spend more than you have, but just do so in a way that provides clear and available record so that it can get its hands on it if needed.  While this Louisiana flavor may be some swamp people thing to deal with finding copper in the belly of ‘gators, don’t suppose some variation won’t be coming to an antique store near you in near future.  And don’t be surprised when your claims of innocence are challenged by an inexplicable debit of $2793 on your bank statement.

Notice the guy in front of you at the deli put his $2 cup of coffee on his debit card with a mere swipe?  Did you really think this technology was developed for his convenience?

Inspired by  Mark Bennett’s post about the guest post requests he receives, it seemed appropriate to offer a glimpse into the kind of crap that comes my way.  While I might include the never-ending slew of requests from a website hyping criminal justice degrees (names change with every email), or the generic piece of crap from Patty Kleen, trying to promote phlebotomy programs (you can’t make this up), instead I’ve chosen one I find particularly annoying.  The scoundrels who are trying to promote one of the various DUI lawyer websites.

Hi,

This is Andrew Hudson from myDUIattorney. I’d like to offer you a
no-cost, custom-written, 600+ word unique article (guest post) for your site?

In exchange, would you be open to putting a max of 2 text links inside
an author bio box that link back to my site?

I’ll ensure you get a well-written, interesting and RELEVANT article that is in line
with what your readers commonly see on your website.

Most importantly, it will be 100% unique (never copied from another site
on the internet, and never given to anyone but you.)

A well-written article will provide you with additional quality content
for your readers and give you a boost in Google rankings.

Note: The reason I ask for 2 text links within the author bio box
is to help promote my site in Google,  NOT to draw visitors away from your site – inconspicuous links only.

I’ve attached a sample article with this email, so you can get a feel
for how I write, and the level of quality I can provide.

If you have any questions please contact me anytime by email or by telephone.

Thanks for your time and attention,

Andrew Hudson
73-03 Bell Blvd #10
Oakland Gardens, NY 11364
Phone: (866) 621-5584

Paid Attorney Advertisement – This Web site . . . is a group advertisement for attorneys nationwide. It is not a lawyer referral service, nor is it a pre-paid legal services plan. Neither myDUIattorney or its parent company, Speakeasy Marketing, Inc are law firms.

The sole reason/basis for the inclusion of the participating lawyers and/or their law firms is the payment of a monthly fee for exclusive geographical advertising rights by counties served. We do not endorse nor recommend any lawyer or law firm who participates in our network.

This website does not make any representation and has not made any judgment as to the qualifications, expertise or credentials of any participating lawyer. The information contained herein is not legal advice. All information found on this site is informational in nature, and due to the fact that laws can and do change frequently, should be verified with a qualified source and is not to be relied upon for any legal defense.

One of the rallying cries of #OccupyWallStreet is “We are the 99%,” distinguishing themselves from the one percent who not only enjoys a certain camaraderie with government officials, with whom they wouldn’t dine if they didn’t hold office, but who tend to enjoy a certain freedom from the costs of maintaining society.  They don’t have to pay a lot in taxes.

That means the 99% are the ones paying the freight for the things our government does, and yet few of us have any meaningful appreciation of how our money is spent.  Sure, we all know that government is wasting our money because they take a ton of it and don’t seem to provide the services that benefit us, but this is just a vague, muddled view.  Details matter.

Via Seth Godin, there’s a chart, a poster available on Amazon, by Jess Bachman, that provides a visual presentation of where the money goes.  Godin asserts that the story, as reflected in Bachman’s poster, makes it real to us.

Jess Bachman wants to help you turn the data about the US budget (the largest measured expenditure in the history of mankind, I’m betting) into information that actually changes the way you think.

Hence Death and Taxes, which we’re publishing today. The new version belongs on the wall of every classroom, every public official’s office, and perhaps in the home of every person who pays taxes.