Mark the name United States v. Osinger.  It’s going to be the flagship opinion to prove that the anti-revenge porn laws aren’t unconstitutional. I blame my buddy, Venkat Balasubramani for this, because he wrote a post about this interesting decision that included a portion that created confusion in some dicta in the opinion. And, well, that’s all it takes for a myth to be born.

Osinger was prosecuted for cyberstalking under 18 U.S.C. § 2261A.  Among the things he did was create a phony Facebook page for his ex-girlfriend and post grossly inappropriate photos.  He sent emails to her boss, co-workers and family members about it.  And not to be subtle, he sent her about 40 texts over two days to let her know how he was going to destroy her life.

On appeal, Osinger contended that the cyberstalking statute was both facially and as-applied unconstitutional under the First Amendment. The 1st Circuit easily disposed of the facial challenge, as the crime was based on conduct, not speech. To the extent speech supported the crime, the statute was content neutral and the speech fell into the recognized categorical exception of “speech integral to crime.” Continue reading →

In response to a post by Sam Glover at the Puddle, asking what advice we would give new lawyers to prepare for the future of law, Carolyn Elefant offered a corresponding post asking how seasoned lawyers should do so.  She started the discussion with some advice of her own:

I’ll ask (and start, by answering) what experienced lawyers – late 40’s and on – should be doing to prepare for the future. First, those experienced lawyers who still turn up their nose at social media or scoff at the utility of an iPad, need to get with the program. Retaining hard copies of files without any digital or electronic storage, or resisting use of email, or insisting on drafting every document from scratch when a template might suffice as a start isn’t quaint or quirky or even professional. Rather, it’s selfish because these archaic practices ignore the needs and convenience of today’s clients and increase the cost of legal services.

Today’s clients want shiny, and lawyers need to “get with the program.”  No law firm better represented the program than Clearspire, the antidote to Biglaw.  A virtual law firm, with all the positive attributes of the best law firm without the price, because they didn’t have to pay for the corner office and marble hallways. Continue reading →

Operation Neptune. D-Day. Normandy, France.  Jun 6, 1944. Seventy years ago today.

Children of my generation looked at our otherwise ordinary fathers in awe, and pondered how they fought in World War II.  We thought about what we would do if we were called upon by our country to do the same.  Would we rush off a landing craft onto Omaha Beach knowing that there was a good chance we would die?

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There was once a time when cries were heard about getting criminal laws out of our bedrooms. Crimes such as “unnatural sex,” were common. Interracial sex violated pervasive anti-miscegenation laws.  And then people figured out they didn’t want the government telling them how to behave in the privacy of their bedrooms, and our Puritan crimes fell away.

But like all perverse pendulums, it’s swinging back.  Government, get back in the bedroom and do something.

In the New York Times, Philosophy and Gender Studies professor Laurie Shrage writes about the wrongfulness of requiring individuals with HIV to disclose their condition to their sex partners.

H.I.V. disclosure laws give too little weight to the interests and rights of those who are H.I.V.-positive, while overvaluing and overestimating the benefits of transparency for society.  By repealing these laws, we move in the direction of adopting more just and effective policies for combating the H.I.V. epidemic, while protecting the most fundamental human rights.

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At the WaPo Conspiracy, Orin Kerr wrote about a decision by Judge B. Lynn Winmill, out of the District of Idaho, in Smith v. Obama on the constitutionality of NSA surveillance.  While Judge Winmill applied the third-party doctrine from Smith v. Maryland, as he was constrained by precedent, he added this astounding language.

Judge Leon’s decision [in Klayman] should serve as a template for a Supreme Court opinion. And it might yet. Justice Sotomayor is inclined to reconsider Smith [v. Maryland], finding it “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” See U.S. v. Jones, 132 U.S. 945, 957 (2012) (Sotomayor, J., concurring). The Fourth Amendment, in her view, should not “treat secrecy as a prerequisite for privacy.” Id.

But Smith was not overruled, and it continues – along with the Circuit decisions discussed above – to bind this Court. This authority constrains the Court from joining Klayman.

In case you were sleeping, Judge Leon went out on a limb, rejecting the third-party doctrine in Klayman. Continue reading →

This video, by a guy who is only identified as “Green,” speaks pretty much for itself.

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In order to appreciate the insignificance of the United States Sentencing Commission’s recommendation that guideline drug sentences be reduced by 17%, one needs to remember the pre-Mistretta days of America. Back then, drug crimes were almost entirely handled in state court, and the crack epidemic had hit the country like a plague.  It was, to be blunt, very bad times for drug and crime, with regular shoot-outs in the streets between groups at war over turf.

Yet even then, with the experiment of the unduly harsh Rockefeller Laws proving to be an utter failure to serve their theoretical purpose of deterring drug crime, no one dreamed that America would lead the civilized world in incarceration.  Almost 30 years later, the system has so internalized the guidelines that we fear this downward departure.  Megan Quattlebaum explains:

Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences. That a large number of people will be affected is not surprising — almost half of all federal prisoners (48 percent) are incarcerated for drug crimes. But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels. We incarcerated approximately 25,000 people in federal prisons in 1980. By 2013, that number had risen to over 219,000.

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First, an excuse. I neglected to read Chuck Klosterman’s Ethicist this Sunday, but it wasn’t my fault.  Dr. SJ glommed up the magazine to do the crossword puzzle before I had a chance to look at it, and by the time she finished the puzzle, I was busy cooking bacon with my son for the ride back to Cambridge.  Priorities, right?

When Judge Kopf posted about a letter from a female law student, gently daring the internets to attack, my omission struck hard.  How?  How did I miss this bit of ethicalismisticity from Chuck Klosterman. Because he’s The Ethicisit. The New York Times says so, even if I haven’t always deferred to his judgment when it comes to legal matters.

But given the nature of the query, and some of the subjects which have prominently appeared at SJ recently, I cannot leave this alone (scroll down to the second letter, entitled “If it pleases the court . . . “).

I am a young, female law student who represents indigent clients in criminal matters. I have learned (both from professionals at my school and from studies on subliminal biases) that female attorneys are more likely to be taken seriously if they have straight hair and wear makeup, skirts and heels. This is not a norm I want to perpetuate. However, I know that I have an ethical responsibility to represent my clients to the best of my ability. But do I have to conform to gender norms I find oppressive if there is a chance it will help my client? NAME WITHHELD

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There is a tacit understanding in the courtroom: Lawyers treat judges with the trappings of respect. Judges don’t abuse the privilege. When a lawyer fails to do so, he gets sanctioned, and no one would hesitate to say that he deserved it. After all, this is the game we play, where we call a guy “your honor” and laugh at his jokes for no better reason than he licked enough stamps in the party leader’s backroom to earn a robe.

But in return, we expect a few things. No, we demand a few things.  We demand that the judge let us do our job, and that he does his.  And we demand that the judge pretend to act with “judicial temperament,” and not fly off the handle like some street thug with a bigger stick than ours.  When this breaks down, all hell breaks loose.

Via Gideon at A Public Defender, Brevard County, Florida, Judge John Murphy broke the contract. Continue reading →

One of the questions asked regularly is why bother with gender politics and the definitions of language relating to sex crimes.  This is why. From Jacob Gershman at the WSJ Law Blog:

A North Carolina judge has stopped Duke University from expelling a male student who was accused of rape by a female freshman.

Following the lacrosse false rape fiasco, Duke has become particularly sensitive to issues and allegations of sexual assault and rape.  As a result, Duke has fallen willingly jumped down the rabbit hole:

Superior Court Judge W. Osmond Smith III on Thursday rejected Duke’s effort to dismiss a lawsuit filed by the accused student, Lewis McLeod, a senior who accuses the university of violating his contractual rights. The ruling blocks Duke from expelling him at least for now. Continue reading →