Not the silliness of the latest legal marketing conference, where they are busy twitting about how to appear credible rather than just tell the truth. They shame themselves. In Boynton Beach, Florida, the cops have discovered how to use twitter to shame and circumvent the courts. Another use of this technological marvel.

Via Boynton Beach New Times :

According to Stephanie Slater, the department’s public information officer, the idea came about after the BBPD fielded an uptick in complaints on its Facebook page about traffic zipping by schools. The department has been web savvy since the MySpace era, and today they run an active Twitter account. The BBPD bosses are “very supportive” of social media, Slater says. “It allows us to engage the community.”

The plan is for Slater to camp out with an officer as a school zone throughout the day. If someone gets pinched barreling through, the account will shoot out photos of the radar gun or of the offending vehicle. Slater says they’ll be careful to not broadcast any information that will ID drivers. “We’re not looking to do this to violate anyone’s rights or to embarrass anyone,” she says. “This is just to educate.”

Notice the use of marketer-speak “engage the community”? But is posting photos of the cars stopped and tickets on twitter “engaging,” or educational?  They can claim a benign purpose all they want, but it doesn’t alter the fact that they are posting images of people who have yet to be found guilty of anything.  And by they, I mean the police. If it turns out the person hasn’t violated the law, do they delete their twits six months later?  Have they come up with a means by which to erase the image from the minds of those who follow their hashtag?



While it’s perfectly understandable that local residents applaud the police for enforcement of speed laws in a school zone, the next step of immediately posting embarrassing photos of the alleged violators on twitter for the amusement of locals takes it to a place where police have neither the authority nor justification to go.  These are not “guilty” people until they concede their guilt or a judge finds them so.  Yet, the cops summarily punish them by online shaming.

Does this sound slightly hypocritical coming from someone who has, on occasion, named and shamed someone for dubious conduct?  There is one critical distinction that distinguishes the two.  When individuals, non-governmental entities if you will, identify and discuss the conduct, the ideas, the inappropriateness of another individual, it is a battle of relative equals.  One guy calls out another guy for something he’s done or not, and the other can challenge or question all he wants.  We’re just people speaking out minds.

But in Boynton Beach, it’s not “just people,” but individuals wearing the shield and authority given them by government to act in the name of government. This is not a difference without a distinction, but a huge distinction.  A cop has no power to be judge, jury and executioner, whether on the street using force or on twitter using images to broadcast and humiliate people who have yet to be given due process. 

The law provides for the scope of authority of a police officer.  They can issue a summons. They can arrest a perpetrator.  No law authorizes them to take a picture and shame the speeder on twitter.  Not even if they’re social media savvy. Not even if the department is cutting edge. Not even if some locals (the ones who haven’t yet been caught speeding) think it’s great that they’ve shamed someone else.

To the extent that shaming is a good idea as an alternative punishment, being perhaps more effective as a deterrent than jailing or fining, and more palatable to the guilty person than the alternatives, it is up to a judge to determine whether to impose an alternative punishment, provided the court has the authority to do so.  People are punished after they’re convicted, not as quickly as a cop can press the share button on his cellphone.

Granted, technology has altered people’s perception of time, creating a sense of immediacy and an expectation that they are due everything they want upon demand.  They want the cops to do their job and stop the speeders, but they want to know it’s happening in real time.  So Boynton Beach residents applaud the twitter feed, appreciating that their cops are doing as they want at the expense of the miscreants stopped and shamed.  Aside from the handful of people embarrassed by the twits, there is no one to complain about the wrongfulness of this tactic, and there are taxpayers telling the police what a great job they are doing.

But given the ease and pervasiveness of social media sharing, and the amusement it brings to people who feel entitled to know every embarrassing detail of other people’s lives, this is a problem destined to get worse as the local feedback gets better.  The bottom line is it is not the job of law enforcement to impose immediate shame on those it stops, tickets, arrests. If an offense has happened, the only lawful and responsible action is to bring it to court. They have no authority to put it on twitter.

And for those locals who enjoy some great humiliation on their twitter feed, they can always find a hashtag for a social media marketers’ conference. There’s never any shortage of lulz to be had there, at the expense of people who desire to make fools of themselves on twitter.

As the Floyd v. City of New York trial before SDNY Judge Shira Scheindlin enters its fourth week, the  New York Times reports that it’s turning from the stop to the frisk.  If  stop part didn’t go too well for the cops, frisk doesn’t hold much promise for celebration either.

Had the police officer put his hands in the man’s pockets?

Yes, the man said, which prompted a flurry of follow-up questions.

“Which pockets?” Judge Scheindlin asked. “Pants? Jacket? Shirt?”

The man, Nicholas Peart, 24, was certain the police had reached into his pants pockets.

“Front pockets or back pockets?” the judge asked.

In a odd way, this doesn’t seem like a particularly big deal, all things considered.  And yet, it matters enormously as it puts the lie to so much of the Supreme Court’s Fourth Amendment jurisprudence.  The law works in baby steps, incrementally increasing the police authority to “intrude” on a person’s physical integrity, each step with its own lingo and its own rationale.  To the extent they have any authority to touch you, the Court buys into a justification to it.

But as the testimony before Judge Scheindlin reveals, the finely honed rules that exist in a vacuum only a justice could love don’t play out nearly as well on the mean streets.  If there is any “new professionalism” in Justice Scalia’s eyes, it’s that they don’t beat the kid with a sap as they rummage through a young black man’s pockets.  Shouldn’t we be happy enough for that?

As a matter of law, the police are allowed to frisk for their safety when they have stopped someone whom they reasonably suspect of engaging in criminal activity and, in addition, is thought to be carrying a concealed weapon. In a landmark 1968 decision recognizing the right of police officers to conduct stop-and-frisks, the Supreme Court held that frisking was for “the protection of the police officer and others nearby.” The court also said that “it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other instruments for the assault of the police officer.”

The rule makes sense, that if police have a reasonable articulable fear that a person is armed and could use a weapon against a cop, they have the authority to pat the exterior of a person’s clothing to ascertain whether he’s a threat.  After all, the law doesn’t require police to take crazy risks with their life or safety when doing their job. 

But that’s only for self-protection, and it requires a police officer to have specific articulable facts to show why a reasonable suspicion existed. It sounds like more of a test than it is, since the cop need only offer some magic words, furtive gesture or reaching for his wasteband, before a judge approves.  No judge wants to be the one to tell cops to risk their lives, or be responsible for a holding that ends with a dead cop, and so the amount of slack allowed is huge. 

What makes the pat down even more wiggly is that there are only two times when anybody passes judgment on it: when they find a weapon or when they arrest the person for some other crime.  When the former occurs, the cop is a genius for having used his spidey sense to discover a gun or knife. When the latter occurs, the defendant is a criminal, and any claims about exceeding the limited authority for a pat down to conduct a search are discounted because he’s a criminal.  Who you going to believe, a cop or a criminal?

The real world difference between a pat down and a search starts with whether there is a basis to believe a person is armed, but ends with hands outside the clothing, patting the area where a weapon might be, or inside the clothing, where the contraband can be found. 

In the landmark 1968 decision, in Terry v. Ohio, the Supreme Court observed that frisking, even when limited to a pat-down, was far more than a “petty indignity” unworthy of Fourth Amendment protection. Rather, the court found, it “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”

Even assuming that a police officer, well trained and properly versed in each nuanced baby step the law allows, an excess of caution compels him to pat a guy’s pockets from the outside of his clothing and feels something inside.  It’s not big or very hard, and there is no way to mistake it for a weapon of any sort.  But it’s something, and it feels like…drugs.  He has now touched it. He has now figured out that he’s got a live one on the hook, a kid with bad stuff in his pants.  What is he going to do? 

There is nothing to suggest, beyond his pat down, that there is a reason to conduct a search of this person.  No probable cause to believe that he’s committing a crime. Yet the cop can’t untouch whatever was in the pocket, and it just feels so wrong to let him walk. And so he shoves his hand into the pocket and pulls out a dirty Kleenex and half a Kool he was saving for later.

Judge Scheindlin is cutting through the lies cops tell to show how careful they are in protecting the rights of citizens, with all 700,000 searches done last year.  While the testimony shows the fiction that plays out in police courtroom testimony, where they scrupulously honor the constitutional rights of New Yorkers so that no one ever suffers the “petty indignity,” oops, “serious intrusion upon the sanctity of the person,” the reality is that the baby steps and detailed rules that make so much sense in lengthy legal opinions and footnoted law review articles are a mere blur on the streets of the City.

Get stopped? Get frisked. Get touched wherever the cop wants to touch you, inside your pockets or out, for whatever reason or no reason.  Rules of law are for courtrooms. The rules of the street are playing out in Judge Scheindlin’s courtroom, and for the first time in a very long time, the testimony of the innocent stopped and frisked that otherwise is never heard by a judge is telling the real story about how the law works.

Over at Philly Law Blog, Jordan Rushie, affectionately known as R2D2 at Simple Justice World Headquarters, has gone on a bit of a tear on poor Rachel Rodgers, who is trying desperately to start a viable law practice as a virtual lawyer.  While my first impulse is to cry, leave Rachel alone, it would be a shame to pass up an opportunity to offer some context.

Jordan writes:

Today I was bored and decided to see what Rachel Rodgers is up to. Something she said caught my eye :

As a lawyer with an online-based law practice, your virtual law office website is your storefront and reception area.  The first impression you leave with website visitors can often determine what they think of you and whether or not they will become clients. Its important that your virtual law office website be an interactive, trusted resource for your clients that reflects your personality and gives them a sense of what its like to work with you.

Ah, the future of law! Technology is going to change everything about lawyering! In the very near future no lawyer will have an office and everyone will work from either Starbucks or their living room.

Sometimes, the message isn’t in the lines, but between them, and I suspect that’s the case for Rachel.   Carolyn Elefant’s  comment to Jordan’s post is instructive:

But – and here is my caveat – not all law practices are the same and not all lawyers want or need office space. Firms that provide outsourced general counsel services often work on site for clients. Some lawyers (often women) only want a virtual or part time practice. Many firms here in DC provide service on a national basis and rarely see clients at all. Appellate practice does not necessarily require space.

That doesn’t mean that lawyers in these categories shouldn’t have an office ( I have physical space for an intern and staff), only that an office may not be critical. It may be that full service Westlaw (for an appellate lawyer) or costly CLE and conferences or even a slick website my be more important an expense than an office. If making it your own means anything, it means that lawyers have to do what works for their practice.

It’s important that Carolyn wrote this, “[s]ome lawyers (often women) only want a virtual or part time practice,” because if Jordan had done so, or me, we would have been branded dismissive at best, sexist at worst.  Sadly, it matters whose hand it comes from, and few virtual office aficionados will challenge Carolyn, whereas they are only too happy to condemn a curmudgeon or male for the same thoughts.

What Jordan fails to appreciate is that Rachel has no choice in the matter if she wants to play lawyer on the internet.  She’s physically far away from any jurisdiction where she would be allowed to practice law, and so has to either forsake her education and ability to work as a lawyer, or she has to embrace a third rate alternative and hope that someone, somewhere, won’t notice that she only plays a lawyer on the internet. 

But I suspect that Carolyn similarly doesn’t appreciate that Jordan not only takes issue with the whole “virtual lawyer” gig, with its vast ethical and substantive implications that few either talk about or care about, but the fact that Rachel Rodgers tries to proselytize others to join her in the ether.

It’s not so much that Rachel has chosen the dark path for herself, but that she holds herself out as a guru for others. Indeed, if one is to believe her hype, she’s having greater success as a “lawyer coach” for the misbegotten than she is as a lawyer for, well, anyone.  That, I suspect, is what burns Jordan’s synapses.

But there is a pathology here that I think R2D2 is missing. Jordan needs to imagine how sad and lonely it must be in the Rodgers’ house, a young lawyer barely scraping to get by and trying to boldly rationalize her situation by arguing its virtues to the handful of other, similarly sad, young faceless lawyers.  Sure, she presents a chipper demeanor, but can’t you see the tears, the loneliness, the sadness of isolation?

Make no mistake, there is a huge difference between the lawyer who has spent years gaining competence and experience, gaining a reputation among one’s peers and making close friends with others to share and grow, and the lawyer who has invented a persona on the internet that doesn’t exist anywhere else.  Carolyn speaks of various practices that, to some extent, function well without the need for a physical reception area.  But then, these lawyers reached that point in their careers after first becoming the lawyers they promise the world they are.

So don’t beat up on Rachel for crafting the pretense of a world that doesn’t exist. No one is persuaded to let her guide their legal careers before she has managed to create one of her own.  She’s just using the internet to talk out loud, to convince herself that she can somehow survive the solitude of her lonely room and silent phone.  Instead of seeing her perky face, think of the tears she cries when she’s all alone.  Show some compassion, Jordan. Leave Rachel alone.



FYI: The thing hanging down from the microphone in Smokey’s hand is called a “cord.” There was once a time when things needed “cords” to connect to other things and make them work. Cool, right?

Despite the pile of books on the corner of the table behind my desk, all waiting to be read and, perhaps, reviewed, a few that sound fascinating never make it to the pile.  At Concurring Opinions, Olivier Silvain reviews on that I’m now dying to read,  Evgeny Morozov’s   To Save Everything Click Here: The Folly of Technological Solutionism.

He has distinguished himself above all as an equal opportunity take-down artist, unafraid to criticize the biggest names in Silicon Valley, punditry, and academia for their overdetermined claims about the meaning of the Internet.
As the title of his recent book suggests, Morozov believes that contemporary “Internet-centric” thinking clouds our judgment and ability to make choices for ourselves.  He argues that the social value of recent technological innovations is far more contingent than the breathless claims of pundits like Jeff Jarvis and Clay Shirky suggest. Technologists, journalists, scholars, and users, he argues, should treat every new product launch or beta release from Apple or Samsung or Facebook with the same healthy dose of skepticism that they reserve for everything else.

Sound familiar? It’s one thing for those who pray to Susskind and genuflect at the feet of Shirky to ignore a curmudgeon like me, but Morozov was born in 1984. I’ve got socks older than him. He’s part of the digital native crowd, the ones who breathed technology under their bedcovers when their father yelled at them to go to sleep.

He is especially critical of technology journalists who, he argues, are nothing more than “trend spotting stenographers” for research and development offices in Silicon Valley. He argues that, while social networking applications like FourSquare or crowdsourced platforms like Wikipedia are powerful, they do not determine outcomes and are not the agents of change.

Is it possible? Am I not the only one who thinks the digital utopians have grossly overstated their case?

But as much as Silvain says he appreciates that Morosov “provides a healthy dose of good old fashioned secular humanism in an area that so eagerly seems to need it,” he has reservations.

After all, the book purports to be about ideology, not policy or design per se. In this way, Morozov seems to be channeling the Frankfurt School more than Lawrence Lessig or Tim Wu (both of whom he criticizes). And, accordingly, he releases himself from doing anything other than changing your mind.
Of course, Morozov is not obliged to do anything more than that. Changing minds is hard enough. Then again, trade books in this subject area with titles like these are not supposed to do much more than incite us to buy them, never mind think. (Alas, Morozov also does not have to abide by the expectations in legal scholarship to have some normative or substantive policy prescription.)

Where Silvain may be troubled that the book doesn’t fit the law review formula of promoting a particular solution, I see that as a feature rather than a flaw. The problem isn’t so much about a problem, as about a perspective, a view of technology, whether it be the cloud, the web or the latest app mislabeled a “solution” to a problem you never had, but how so many have come to blindly adore these computer thingies without appreciating what they do for us, add to our lives and work.  Or not.

How often do you see anyone question why a lawyer would possibly need a new cloud-based “solution” to perform something we’ve been doing extremely well forever?  It may only cost $129 a month, but there is nothing that can’t be done for free with a BIC pen and a yPad.

But Silvain saves his most cutting criticism of Morosov to the end:

While I could never know for sure, and despite his claims to the contrary, I am not convinced that Morozov is mainly out to change hearts and minds, particularly in light of To Save Everything’s snarkiness. Of course, many bloggers these days traffic in the same smug and haughty tone as a matter of course, perhaps to distinguish themselves from the officious “he-said-she-said” balancing that is characteristic of mainstream journalism and academic writing (and blogs like this one). It would be a bonus, I suppose, if, through the book, Morozov could incite his audience to banish Internet-centrism from their minds once and for all. But I’m not sure snarkiness is the most effective way of doing that.

As has long been chronicled here, there are few things that lawprofs despise more than snarkiness, the “toxic tone” that makes their eyes burn.  As Silvain notes, there are “many bloggers” who “traffic in the same smug and haughty tone,” a pejorative description that scholars use to distinguish them from the “thoughtful and balanced” tone they adore.

Of course, “snark,” itself a word invented for the digital age, is the antithesis of the labored, prolix and overly-nuanced use of arcane language that so obscures a point that if you stay awake long enough to get to the end of a sentence, you still have no clue what the point is.  Then again, there are always footnotes. Is there a virtue to following the legal academy’s style book when trying to make a point?  Only if the readers are professors.  If the point is to write for anyone outside of academia, then it behooves a writer to both have a point and to have the capacity to make it so that the reader knows what it is, clearly and concisely.

A second book that has  hit the street this week is Steven Harper’s The Lawyer Bubble. castigating the way greed has overtaken the profession, from law schools to Biglaw.  It’s also not on my pile to review, but it brings hope, together with Morozov’s, that maybe there is hope for the law and lawyers, and from this, for the people we exist to serve.

Of all the doctrinally worthless expressions coming out of our Supreme Court, perhaps the worst ever was Potter Stewart’s “definition” of pornography, “I know it when I see it,” in his concurrence in Jacobellis v. Ohio.  So naturally, 7th Circuit Judge Richard Posner, via the Jacob Gershman at the WSJ Law Blog, feels compelled to up the ante in osner:aut:T:fnOp:N:1112642:S:0/”>United States v. Dotson.

Steven Dotson, prosecuted for being a felon in possession, argued that the gun he used in an armed robbery wasn’t a gun, but a hefty hunk of steaming junk.

The pistol is a Hi-Point .380 caliber semi-automatic. It was certainly designed to be a gun, and nothing else. But according to the pretrial report of an expert at the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives, at the time when the defendant possessed the gun it was inoperable because of “significant damage, missing/broken parts, and extensive corrosion.” The expert testified similarly at trial—testified that the gun was “damage[d]” and had “corroded, missing and broken  components which make it inoperable.”

The only question presented by his appeal is whether the pistol was a firearm, defined (so far as bears on this case) as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” or “the frame or receiver of any such weapon

Testimony was that it would take a skilled gunsmith hours to clean and repair the weapon sufficiently to return it to the point where it would expel a projectile. The government conceded that the thing in Dotson’s hand couldn’t have expelled squat, but that didn’t change the nature of the beast.

The opposite position, which the government doesn’t quite espouse but doesn’t disclaim either, is once a gun always a gun: anything originally designed as a gun remains a gun no matter how dilapidated it becomes, how difficult to restore to operating condition—or even impossible.

Ultimately, Judge Posner seizes upon the “designed to” language in the statute to hold:

The gun in this case, although in bad condition, neither was redesigned to be something other than a gun nor is so badly damaged that it can no longer be regarded as a weapon designed to fire bullets. And just as a very ill person can look entirely normal on the outside, the outward appearance of the defendant’s gun is normal. Designed to be a gun, never redesigned to be something else, not so dilapidated as to be beyond repair, the gun fits the statutory definition and the judgment must therefore be

AFFIRMED.

While the opinion is mercifully short, and includes an embedded image following rule number 4 of best blogging practices, it ultimately provides so little guidance as to what constitutes a weapon for a felon in possession as to give Potter Stewart a run for this money.  Not so dilapidated?  So how dilapidated does it have to be? How many parts need to be missing? How much corrosion is enough?

Yes, an object originally designed for the purpose of expelling a projectile maintains that “design” unless and until it has been redesigned to be a cigarette lighter or, who knows, a super soaker?  But Dotson’s gun couldn’t hurt anyone unless he threw it at them at a close distance, and then only if his aim was true.  What was once a gun was not a prop, meant to intimidate for sure, but hardly capable of firing a bullet, which is the evil the law seeks to prevent.

But if it had the capacity to emit a flame rather than absolutely nothing, Dotson would be innocent. Instead, by using a corroded, dilapidated, inoperable gun, Judge Posner holds that it’s a gun.  Go figure.


 

In a HuffPo lifestyle post, Cornell human development prof Karl Pillemer writes that the biggest regret of the “very old” is that they spent too much of their life worrying.

Their advice on this issue is devastatingly simple and direct: Worry is an enormous waste of your precious and limited lifetime. They suggested training yourself to reduce or eliminate worrying as the single most positive step you can make toward greater happiness. The elders conveyed, in urgent terms, that worry is an unnecessary barrier to joy and contentment.

The elders see worry as a crippling feature of our daily existence and suggest that we do everything in our power to change it. Why is excessive worry such a big regret? Because, according to the elders, worry wastes your very limited and precious lifetime. By poisoning the present moment, they told me, you lose days, months, or years that you can never recover.

In the wilds of Chicago, this year’s ABA Tech Show is in full bloom, with over 100 vendors in an exhibit hall imploring “thought leaders” to come try their wares with the offer of winning a shiny gadget.  It’s one of the grand opportunities for the futurist choir and those who pray at the alter of technology to sing a rousing version of Kumbaya and remember why they are the future of the law.

While you couldn’t get me there with the promise of a Chicago hotdog atop a brand new iPad, Sam Glover from  The Puddle is my eyes and ears, my boots on the ground.  It’s not that Sam necessarily sees things as I do, as he’s a computer nerd whereas I’m your basic Luddite, but he’s my barometer for the cutting edge when small words are necessary. And this year, Sam’s reports back couldn’t be more informative.

Putting aside the “new and improved” claims of vendors who have changed their links from blue to red and their text from Ariel to Garamond, none of which interests anyone who actually practices law, Sam focused on what used to be called Ignite Law, but has now been changed to  LexThink.1 (because name-changing is almost as cool as substance), the cutting edge segments of futurists deepest thoughts. It’s run by Matt Homann, and promises “one big idea” every six minutes.



Sam sat through the whole hour and returned the favor by reducing the program to  ne-sentence-ideas-from-lexthink-1-abatechshow/” target=””>8 one-sentence ideas.  Why only 8 when it’s supposed to be ten? One lost her voice and Sam is math challenged. Don’t judge him.

The idea is to be entertaining and clever, not comprehensive.

Actually, LexThink.1 may be entertaining for the audience, but since most of the presenters are seasoned speakers, it’s more like a dance battle. If doing polished, six-minute presentations were in any way like dancing.

I think I am doing justice to the format in reducing each six-minute presentation to its one-sentence point — if it has one — plus my commentary.

If anything, Sam makes more sense of the hoe-down than it may deserve, so I’ll take a stab at reductio ad absurdum and sum it up on a mere single sentence: We’re running out of buzz words, but dancing as fast as we can.

Sam goes on to  discuss at greater length the theme of LexThink.1, disruption.

So all the speakers talked about what will disrupt law practice, whether it’s virtual offices or LegalZoom or gamification or Big Data.

Here’s the thing: disruptive innovation is not coming to the law. At least, not quickly.

By example, he notes how legal research has moved from dead trees to online, but then reminds that it’s still the same duopoly, West and Lexis, doing the same thing but in a different format.

They just changed the delivery method. They didn’t really even change the pricing model. That’s not disruptive; it’s an evolving business model.

But what of the “big” ideas that are “game changers”?

LegalZoom and Rocket Lawyer are not disruptive innovation, either. They are basically just selling forms and pre-paid legal services, which have been around forever, in one form or another. People who think this is disrupting the legal industry do not have a very good grasp of the legal industry. Customers of LegalZoom and Rocket Lawyer were never your potential clients. They may have been Office Max’s, or Hyatt Legal‘s, but they were never yours.

For another, LegalZoom has been around since 2001 without disrupting anything, as far as I can tell. It’s telling that people are still talking about when LegalZoom will finally start disrupting everything. It won’t.

The story began with a bold Virgin Island judge who refused. He refused to excuse a prosecutor for lying to him. Then he refused to acquiesce to a superior court who ordered him to do so.  Since retired. Judge Leon Kendall would not capitulate.

Judge Kendall, calling out the Supremes and Bethel both, recused himself, telling the dirty story in a  lengthy decision that concluded with his refusal to be party to the shame.  The Supreme Court did not find Judge Kendall’s refusal to obey their mandate at all humorous, and charged him with indirect criminal contempt.  A special master was appointed to try him on the charges, even though he had, by this time, retired from the bench.  The result was a recommendation by the special master that he was not guilty of contempt.

What a judge says in an opinion is sufficiently expressive to trigger First Amendment review. The judge “inten[ds] to convey a particularized message” by explaining his legal analysis and conclusions, and there is a “great” likelihood that the opinion’s message would be understood by its audience—no less than if the judge had published the same analysis and commentary in a law review article.

[D]oes the government’s broader authority to discipline attorney speech about ongoing proceedings also permit the government to hold a judge in criminal contempt for his speech about ongoing proceedings? We answer that question with a resounding “No.” Criminal contempt is no mere disciplinary tool. It derives, like all crimes, from a government’s power as sovereign. Because the government’s use of the criminal-contempt power is the sine qua non of a sovereign act, the government has no greater authority to hold someone in criminal contempt for their speech about ongoing proceedings than it would to criminally punish any speech.

As a general matter, the First Amendment protects freedom of expression regardless of its content or viewpoint and “regardless of whether it is disruptive, offensive, vulgar or insulting.” Yet that rule is not absolute.

…And that means the speech must present a clear and present danger—not just a substantial likelihood—of obstructing the administration of justice. Consequently, the First Amendment protects a judge’s opinion from criminal punishment unless his speech poses a clear and present danger to the administration of justice.

My pal, Bill Henderson, is trying to recreate the 1960’s over at The Legal Whiteboard, his blog dedicated to change in and of legal education and the profession. After quoting Timothy Leary for the proposition of questioning authority (and without any mention of “turn on, tune in, drop out“), he offers law students a challenge:

First, we need your skepticism to question our methods and our motives.  The legal marketplace is undergoing significant changes.   We did not adequately anticipate these disruptions.  In addition, we do not fully understand their breadth and depth.    Because we are human, we are reluctant to admit our confusion.   Even worse, we may even deny there is a problem.

Second, we need your youthful energy to refashion legal education in a way that is much more consistent with our professional ideals.  All lawyers covet prestige, but over the last decades we have confused prestige with money and rankings.  As a historical matter, lasting legal reputations are disproportionately traceable to a lifelong willingness to doggedly and creatively advance the welfare of others.   Even today, the best lawyers find ways to faithfully serve their clients while simultaneously advancing the public good. We need your generation to lay the foundation for a renaissance in which our collective behavior more closely hews to our ideals.

Aside: Before  Victor Medina sends me another nasty email for dissing the iPad, it’s just a symbol. I’ve got nothing against the iPad per se. It’s makes a great cutting board.

At the beginning of this essay, I failed to mention one key proviso to my “question authority” admonition.  I told the law students that when they question authority, they should do it respectfully.  Indeed, all of my life experience has shown me that effectiveness in human relations requires a foundation of mutual respect.  Your elders did not create the challenges that lie ahead.  We are not your enemy.  Our limitation is that we are human, and therefore imperfect; and so are you. 

 Yet, if you question authority persistently but respectfully, you will be doing yourself, legal education, and the legal profession an enormous service.

Aw, jeez. Timothy Leary is rolling in his grave.  Peace, love and rock & roll, but you don’t get to tell your invited skeptics that they can only question authority in a tone you like. That is so un-60’s.

Who else but Gideon at  A Public Defender would rush to read lawprof Alexandra Natapoff’s upcoming law review article, Gideon Skepticism?  After all, how else would he know what he was doing wrong?  As it turns out, Natapoff (who also runs the Snitching Blog) wasn’t talking about him, but the real Gideon, or more precisely, how the good of Gideon deflects attention and responsibility from all the other faults of the system that having counsel for the accused doesn’t fix.

The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic injustices. A defendant may be the victim of overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences, none of which his lawyer can meaningfully do anything about.

In this world, the presence or absence of counsel is just one piece of a much larger puzzle of systemic dysfunction. Accordingly, while the right to counsel remains an important ingredient in fair trials and legitimate convictions, it cannot bear the curative weight it has been assigned in the modern era of overcriminalization and mass judicial processing. Other legal actors and institutions should share more responsibility for protecting defendants, a responsibility that now rests almost entirely and unrealistically on the shoulders of defense counsel.

There is an assumption that as long as a defendant was represented by counsel, who advised him on the best course of action, all other flaws in the system are waived. As the “right through which all other rights of the accused are protected”, Penson v. Ohio, the Right to Counsel is being used as the one (sole?) indicator of the fairness of a conviction.

As I routinely tell clients and readers of this blog, the system is far bigger than I am and I’m able to exercise only limited control over what’s in front of me. Try as I might, I’m going to be unable to ever single-handedly bring change to the suggestive show-up procedure, or answer the question of why only one side in a fight gets arrested, or why the vast majority of clients are minorities.

We don’t decide what crimes to charge; we don’t decide what offers to make and we don’t decide how harshly to punish crimes. We take individual that comes before us and try to make the most of the tiny amount of wiggle room we’re given and yet then are trumpeted as a sign that all is well in a quite sickly system.

Like the proverbial onion (the veggie, not the satirical website), at every level there is a new problem to confront and address.  The extent to which counsel has any control over outcome is often limited, and sometimes completely missing. 

We take our cases, and our clients, as we find them, and part of how we find them is in a system that is designed to crush them.  The platitude chiseled into the courthouse lintel may speak of justice and fairness, but the wheels of the machine inside are meant to crush and grind.  The platitudes are no more than banal puffery, like the new and improved on the reduced size package of laundry detergent for the same old price. 

But where Gid takes it more personally, given that he’s the public defender sitting at the core of Gideon, the guy whose very existence is supposed to make everything alright and magically turn a crushing system into fairness and justice, Natapoff raised the specter of the distraction Gideon causes the system.  By shoving a PD into the courtroom, nobody bothers to focus on all the other aspects of the system that are wrong, unfair and utterly outside the lawyer’s control.  After all, the defendant has a lawyer now, and all is right with the world. Problem solved!

It’s hardly surprising that people prefer to point to a simplistic, magic bullet approach to fixing whatever ails the criminal justice system, and the attention given to counsel for the indigent, while critical in its own right, serves that purpose to outsiders to the system.  Natapoff’s article puts into words the vital point that it addresses only one of many faults, the others being completely outside counsel’s control.

Sadly, the people who need to realize this point, the public, legislators, judges, won’t bother to read the law review article. As Gideon at 50 may be on a lot of people’s minds these days, the other flaws will be ignored or forgotten.  But their impact will be just as bad as always. Gideon is great, but it’s not enough. And there isn’t any anniversary celebration for judicial hostility to defendants coming any time soon.