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The New York Legal Blog Round Up

Blawgs It's Monday, Monday, Monday!  And, it's time for the weekly round up of interesting posts from my fellow New York blawgers:

A Buffalo Lawyer:

Coverage Counsel:

Indignant Indigent:

New York Civil Law:

New York Federal Criminal Practice:

Simple Justice:

Wait a Second!:


Define That Term #288

Dictionary_2 Last week's term was genericide, which is defined as:

Loss of trademark protection that occurs when a specific brand name becomes identified with the entire type of product or service. For example, Xerox was in danger of losing the trademark on its name when "to Xerox" something was equivalent to copying it.

Edward Wiest got it right!

Today's term is:

usufruct.

Never heard of it.  Have you?

And, as always, educated guesses are welcome--dictionaries are not.


The New York Legal News Round Up

Latest_news It's time for the weekly round up of New York law-related news headlines:

  • N.Y. High Court's Relaxation of Fraud Pleading Requirements (New York Law Journal)

Offensive Criticism Trumps First Amendment Rights

Drlogo11 This week's Daily Record column is entitled "Offensive Criticism Trumps First Amendment Rights"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Offensive Criticism Trumps First Amendment Rights

I was disappointed to learn of the recent decision by the U.S. Court of Appeals for the Second Circuit in Doninger v. Niehoff, No. 07-3885-cv, a case I last discussed in March.

At the time, I disagreed with the district court’s determination that the penalty imposed by the school district did not implicate the First Amendment rights of the plaintiff, a high school student.

Unfortunately, the Second Circuit upheld the lower court’s decision, purporting to limit the holding to the
specific facts of the case, but opening the door to the conclusion that any off-campus criticism of school administrators having the potential to cause a disruption on campus may result in school discipline.

In this case, the plaintiff, a 17-year-old high school senior, alleged the officials at her high school violated her First Amendment rights by preventing her from serving on the student council as a result of statements she wrote regarding the school’s administration from her home computer, on a blog not affiliated with the school.

Specifically, she expressed her disappointment with the likely cancellation of the annual “Jamfest,” a musical event she helped to organize:

jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basi-cally we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. andd..here is
the letter we sent out to parents…

And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.

The school administrators learned of the comment two weeks later, and subsequently barred her from serving on the student council as a direct result of the blog post.

Despite noting at the outset that the Supreme Court’s holding in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) — that offensive forms of expression on school grounds may be prohibited under the First Amendment — was inapplicable since the comments at issue were not made on school grounds, the Second Circuit spent an inordinate amount of time focusing on the specific “vulgar, lewd, and sexually
explicit language” used by Doninger in her blog post.

In fact, the specific nature of her comments was discussed on 11 pages of the 21-page decision.

The word “offensive” was used on nine occasions and appeared on five pages in the opinion; the word “vulgar” was used seven times and appeared on five pages; the word “civility” was used 4 times and appeared on four pages; the word “values” was used five times and appeared on four pages; and the specific “offensive” phrases used by Doninger, “douchebag” and “pissed off”, were reiterated on nine separate occasions, appearing on six pages of the opinion.

That’s an awful lot of time spent discussing that which was deemed legally irrelevant, or at the very least, peripheral to the underlying legal analysis.

I can’t help but wonder whether the disrespectful nature of the “vulgar, lewd, and sexually explicit” comments made by this young woman was the driving force behind the court’s decision in this matter. While the ever-present optimist in me hopes that I’m wrong, my pessimistic side insists that I’m right.


The New York Legal Blog Round Up

Blawgs It's a beautiful Monday, summer is finally here--and it's time for the weekly round up of interesting posts from my fellow New York law bloggers:

Juz the Fax:

New York Attorney Malpractice Blog:

New York Federal Criminal Practice:

No-Fault Paradise:

Second Opinions:

Simple Justice:

Wait a Second!:


The New York Legal News Round Up

Latest_news It's a somewhat dreary Wednesday and time for the round up of New York law-related news headlines from the past week:


Unlikely Inferences Do Not a Felony Make

Drlogo11 This week's Daily Record column is entitled "Unlikely Inferences Do Not a Felony Make."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Unlikely Inferences Do Not a Felony Make

Last week the New York State Court of Appeals handed down its decision in People v. Finley,2008 WL 2338613.

At issue was whether small amounts of marijuana smuggled into New York correctional facilities by inmates constituted “dangerous contraband” pursuant to Penal Law §§ 205.00(4) and 205.25(2), thus rising to the level of a felony.

The court considered appeals from decisions of the Third and Fourth Departments, both of which concluded the possession of marijuana did, in fact, amount to felonious conduct, even though the amounts possessed were relatively small.

The Court of Appeals framed the issue as follows: “[W]hether the imposition of felony consequences, based upon possession of small amounts of marihuana, which would constitute a violation outside of prison (see Penal Law §§ 221.05, 221.10 [2] [absent aggravating circumstances, not present here, possession of 25 grams or less of marihuana is a non-criminal violation]), comports with the Legislature’s intent as codified in Penal Law §§ 205.00 (4) and 205.25 (2).”

In reaching its determination, the court first noted the Penal Law created a distinction between “contraband” and “dangerous contraband.”

The possession of ordinary contraband, simply a misdemeanor, is defined as “any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order.” Possession of “dangerous contraband,” on the other hand, is defined as that “which is capable of endanger[ing] the safety or security of a detention facility or any person therein.”

In the underlying cases, the Appellate Divisions concluded the inmates’ possession of a small amount of marijuana created a potentially dangerous condition, which could feasibly result in disobedience and altercations among inmates and with correctional officers.

The Court of Appeals disagreed, based in part on the legislative intent behind the passage of the Penal Law provisions at issue. 

The court noted that, by enacting legislation creating levels of penalies for the possession of “contraband” as opposed to “dangerous contraband,” the Legislature obviously intended to differentiate between the two.

The court stated that: “Under the people’s view, the Legislature intended a definition of dangerous contraband so broad that it would capture any item that, when present in a detention facility, could lead to altercations and inmate disobedience. But the fatal flaw in the people’s argument is that their proposed construction would effectively nullify the misdemeanor crime of promoting contraband in the second degree. ... If, as the Appellate Divisions here held, testimony as to these possibly pernicious secondary effects were sufficient to establish the felony promoting contraband offense then every item of contraband could be classified as dangerous.”

Finally, the court concluded contraband is dangerous only if there is a substantial probability the item will be used in a manner likely to cause death or serious injury; facilitate an escape or pose a threat to institutional safety or security.

This is the only conclusion that makes sense.

I reviewed the Appellate Division decisions last year when preparing the supplement to “Criminal Law in New York, Fourth Edition,” a Thomson-West treatise that I co-author with Judge Karen Morris and Gary Muldoon.

I recall thinking the Appellate Divisions’ conclusions were somewhat attenuated from reality, given the possibility of institutional chaos resulting from possession of such a small amount of marijuana is remote, at best.

This latest decision, therefore, is a pleasant and unexpected surprise. After all, it’s not every day the highest court in New York agrees with the conclusions of a criminal defense attorney such as myself.


The New York Legal Blog Round Up

Blawgs It's an absolutely beautiful Monday and time for the weekly round up of interesting posts from my fellow New York blawgers:

Indignant Indigent:

Judgment Day:

New York Civil Law:

New York Federal Criminal Practice:

New York Public Personnel Law:

Simple Justice: