Sui Generis--a New York law blog

Tiffany Fights Losing Battle Against Inevitable Change

This week's Daily Record column is entitled "Tiffany Fights Losing Battle Against Inevitable Change."

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

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Tiffany Fights Losing Battle Against Inevitable Change

“Ahh... Do I detect a look of disapproval in your eye? Tough beans buddy, ‘cause that’s the way it’s gonna be.”
      —Holly Golightly in  “Breakfast at Tiffany’s”

Like many large, traditional companies, the jeweler Tiffany & Co. made the puzzling choice to engage in a protracted and expensive legal battle rather than simply accepting and adapting to the technological changes in the worldwide marketplace.

Four years ago, Tiffany filed a lawsuit against eBay, the online auction giant, in the U.S. District Court for the Southern District of New York. Tiffany alleged its trademark was violated when eBay permitted sellers to list potentially counterfeit Tiffany items for sale.

Last week, following a non-jury trial, Judge Richard J. Sullivan issued a ruling in favor of eBay, concluding “[i]t is the trademark owner’s burden to police its mark and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement
might be occurring on their Web sites.”

Judge Sullivan’s decision, hailed as an important victory for online retailers, was in keeping with the vast majority of U.S. decisions on this issue.

Not surprisingly, instead of accepting defeat gracefully and vowing to find ways to make innovative platforms such as eBay work to their advantage, representatives of Tiffany indicated the company
would most likely appeal the decision to the U.S. Court of Appeals for the Second Circuit.

In other words, rather than allocating resources so the company can adapt to the ever-changing online marketplace, Tiffany is planning to expend more money battling the inevitable —change.

Judge Sullivan noted Tiffany’s strategy of avoiding, rather than acknowledging technological change, in his decision: “Notwithstanding the significance of the online counterfeiting problem, it is clear that Tiffany invested relatively modest resources to combat the problem. In fiscal year 2003, Tiffany budgeted approximately $763,000 to the issue, representing less than 0.05 percent of its net sales for that year. …

Tiffany’s CEO, Michael Kowalski, testified that over the past five years, Tiffany has budgeted $14 million to anti-counterfeiting efforts —of which approximately $3 to 5 million was spent in litigating the instant action.”

Tiffany is not alone in its reluctance to adapt its business practices to embrace and complement emerging technologies. Trademark and copyright infringements claims against online giants such as TouTube, Google and eBay abound as industries with foundations planted firmly in the 20th century struggle to stay afloat when confronted with 21st century innovations.

The recording industry has yet to find a way to maintain profitability in the face of online file sharing and other emerging technologies. Likewise, conventional retailers, television and print media continue to struggle with these issues as consumers increasingly obtain information, products and services online, rather than through traditional venues.

The online marketplace is expanding exponentially. Pioneering business entrepreneurs are creating increasingly inventive online platforms through which products are advertised, bartered, exchanged and sold. Online commerce is becoming commonplace.

Like Tiffany, some companies steadfastly refuse to acknowledge the profound changes in the marketplace and, instead, expend precious time, energy and resources in the futile attempt to turn back the clock and prevent change.

Conversely, other innovative businesses, such as eBay, wisely accept the fact that change is inevitable and reap the financial benefits as they creatively and innovatively tackle the digital frontier.

When Private Concern Becomes Public Domain

This week's Daily Record column is entitled "When Private Concern Becomes Public Domain."

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

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When private concern becomes public domain

Federal judge Louis L. Stanton caused an uproar among privacy advocates last week when he issued an order in Viacom v. YouTube Inc., 07 Civ. 2103, a closely watched case pending in the U.S. District Court for the Southern District of New York.

The lawsuit, in which Viacom is seeking $1 billion from YouTube and Google for copyright infringement, is
now in the discovery phase. The order related to Viacom’s demand for, among other things, YouTube’s source code and user records.

Using the data demanded, Viacom seeks to establish that YouTube unlawfully profited from the unauthorized viewing of Viacom’s copyrighted works by reviewing the frequency with which its copyrighted videos were viewed compared to other video content on YouTube.

Judge Stanton denied the request for YouTube’s proprietary source code, but ordered the production of “all data from the logging database concerning each time a YouTube video has been viewed on the YouTube Web site or through embedding on a third-party Web site,” despite the fact Viacom
could just as easily make its case in the absence of specific user data.

In other words, the court required the production of 12 terabytes of data containing, for every video ever watched on YouTube, the unique login ID of the YouTube user, the time the individual began to watch a video, the IP address of the person’s computer and identification of the particular video being viewed.

Judge Stanton rejected YouTube’s privacy concerns, grounded in the protections set forth in the Video Protection Privacy Act (VPPA), stating that “their privacy concerns are speculative.”

The “[d]efendants do not refute that the ‘login ID is an anonymous pseudonym that users create for themselves when they sign up with YouTube’ which without more ‘cannot identify specific individuals’ (Pls.’ Reply 44), and Google has elsewhere stated: ‘We... are strong supporters of the idea that data protection laws should apply to any data that could identify you. The reality is though that in most cases, an IP address without additional information cannot,’” the judge wrote.

In doing so, the court arguably ignored the protections provided by the VPPA, concluding it was inapplicable despite the fact that the Act specifically prevents the production of “personally identifiable information” by providers of “prerecorded video cassette tapes or similar audio visual materials.”

Pursuant to the VPPA, “personally identifiable information” includes “information indentif[ying] a person as having requested or obtained specific video material or services.”

The VPPA prevents the disclosure of such information: “[I]n a civil proceeding [except] upon a showing of compelling need for the information that cannot be accommodated by any other means, if —(i) the consumer is given reasonable notice, by the person seeking the disclosure, of the court proceeding relevant to the issuance of the court order; and (ii) the consumer is afforded the opportunity to
appear and contest the claim of the person seeking the disclosure.”

Many legal experts have speculated that by ignoring privacy concerns and the arguably applicable protections of the VPPA and ordering the disclosure of the viewing records of more than 4.1 billion videos, the court effectively set legal precedent allowing access to the vast amounts of data on
user activity contained within the servers of Internet giants such as Google.

This is particularly alarming in light of the extremely personal and private nature of the information people seek online, much of which has little to do with prurient interests and includes issues related to mental health, physical health and substance abuse.

Other revealing information obtained online includes people’s use of online dating, job search or debt relief services. People purchase potentially embarrassing products online, including prescription
medications, personal care items and contraceptives.

Judge Stanton’s order is unnecessarily broad, ignores existing laws enacted with privacy concerns in mind and opens the door to more expansive and invasive discovery requests in future lawsuits.

Internet use continues to increase exponentially and is drastically changing the ways in which the world operates. In light of rapid technological advancements, judges must appreciate the potentially broad effects of their rulings in a single case; their failure to do so will be to the detriment of the millions upon millions of Internet users throughout this nation.

Social Media Latest Networking Tool for Lawyers

This week's Daily Record column is entitled "Social Media Latest Networking Tool for Lawyers"

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

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Social Media Latest Networking Tool for Lawyers

“Social media is an umbrella term that defines the various activities that integrate technology, social interaction, and the con- struction of words, pictures, videos and audio. … Social media or social networking (one example of social media) has a number of characteristics that make it fundamentally different from traditional media such as newspapers, television, books and radio. Primarily, social media depends on interactions between people as the discussion and integration of words builds shared-meaning, using technology as a conduit.”

— Wikipedia entry for social media

All lawyers understand the importance of networking.

Interacting with colleagues, current clients and potential clients is a surefire way to increase business opportunities and referrals.

In the past, networking traditionally occurred in many forums, including events sponsored by bar associations or other professional organizations, on the golf course or while participating in community activities. Not all lawyers relished the concept of networking, but the general school of thought was that it was a necessary part of doing business, and staying cooped up in an office day in and day out was counterproductive to rainmaking.

With the recent explosion of social media and online networking opportunities, however, traditional notions regarding networking may no longer be applicable. The time-tested, traditional methods certainly still apply, but emerging social media technologies are expanding networking opportunities exponentially.

Social media appears in many forms, including e-mail, blogs, online forums and message boards. The ability to network with other lawyers and potential clients from the comfort of your office, on your own terms and your own schedule, is now a reality.

The only drawback to this new form of interaction is that it is not time tested, and its effectiveness has yet to be proven. Nevertheless, opportunities to network online are increasingly available and lawyers who ignore the possibilities do so to their own detriment.

Examples of social media applications that facilitate professional and social networking include Facebook, LinkedIn and, most recently, micro-blogs such as Twitter.

Facebook, likely the most well known of the three networking sites, originally launched as a social net- work for college students, but was opened to the public in September 2006. While it remains predominantly a social network- ing site, it can provide valuable professional networking opportunities for lawyers.

Over the last year, lawyers have flocked to Facebook in droves and created networking groups centered around various areas of practice. It is a cost-free and useful way to meet other lawyers from across the country and to re-connect with law school and undergraduate colleagues.

LinkedIn is a free online professional networking site that consists of a membership “of more than 20 million experienced professionals from around the world, representing 150 industries.” Its primary goal is to increase business opportunities for members by providing the ability to connect with potential clients, employees, employers and other members of their profession. LinkedIn has been around for a while now and shows promise. Only time will tell if it will live up to its potential as a professional networking resource.

One of the newer, emerging technologies seeing a huge amount of growth is Twitter. In my opinion, it is one of the most promising professional networking resources available.

Twitter is a free networking and micro-blogging service in which conversations occur in, at the most, 140-character snip- pets. Once a member, you can locate others with similar interests or backgrounds through a directory such as Twellow, then follow and reply to Twitter posts.

There has been a great influx of practicing and non-practicing lawyers onto Twitter in recent months, allowing for exchanges on topics such as recent court decisions and law practice management. In addition to facilitating law-related discussions, Twitter allows member to get a good feel for the people with whom they converse, since posts also include people’s thoughts regarding their day-to-day activities and current events.

Emerging social media technologies are leveling the playing field and changing the way lawyers interact and network. Time- tested and proven networking methods should not be abandoned, but astute attorneys will recognize the potential for increasing one’s professional network by taking advantage of free, online networking opportunities

Is justice obtained if not consistently applied?

This week's Daily Record column is entitled "Is justice obtained if not consistently applied?"

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

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Is justice obtained if not consistently applied?

The death penalty is one of the few issues with which I have difficulty reconciling my rather liberal criminal defense tendencies.

While the concept of the state executing another human being is repugnant to me, I find that on rare occasions the sordid facts of a highly disturbing case cause a little voice inside
my head to whisper convincingly, “if ever a case merited such a severe penalty, it’s this one.”

The recently decided U.S. Supreme Court opinion, Kennedy v. Louisiana, No. 07-343, is just such a case.

As a mother of two children, I am particularly repulsed by allegations of a rape committed against a defenseless and helpless child. The underlying facts of this case are heart wrenching. The victim was just eight years old when she was brutally raped by her stepfather, resulting in injuries so severe that she required emergency reparative surgery.

Of all the non-fatal cases that might warrant the death penalty, this reprehensible crime most certainly fits the bill. This poor child’s life will never be the same.

Not surprisingly, my feelings were mixed when I learned the court held that imposing the death penalty in child rape cases violated the Constitution. Specifically, the majority of the court concluded that the Eighth Amendment prevented Louisiana from imposing the death penalty for the rape of a child in cases where the crime did not result, nor was intended to result, in the death of the victim.

However, I began to experience an overwhelming sense of relief as I read the majority opinion. The decision was well grounded, both in policy and legal precedent. Despite the horrendous facts of the
case, the court made the correct determination and spared us, as a society, of the burden of attempting to navigate an untraversable slippery slope.

The crux of the issue was not of retribution, but rather, one of practical application. The court focused on the severity and finality of the death penalty and the likelihood that its application would prove to be anything but consistent in child rape cases:

“We find it difficult to identify standards that would guide the decision maker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way… In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakis[h].’ … We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim. … Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”

The potential for the arbitrary application of the death penalty in child rape cases is extraordinary. The lack of uniform implementation of such an irrevocable and final sentence would be anything but just. And justice simply cannot be assured in the absence of consistency.

Offensive Criticism Trumps First Amendment Rights

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.

Unlikely Inferences Do Not a Felony Make

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.

Waking the Sleeping Giant

The New York Blawg round up will occur on Thursday this week due to my hard drive crash yesterday.

In the meantime, this week's Daily Record column is entitled "Waking the Sleeping Giant" and is cross-posted at Practicing Law in the 21st Century.

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

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Waking the Sleeping Giant

A year ago (a law firm) commissioned a song celebrating (their nomination as one of the best companies to work for)…
The law blog “Above the Law” put the song on youtube.
Merriment ensued.
Then (the firm) found out that people were laughing at them
So, they laughed and said “Yeah, it is a silly song.”
No, of course not.
So they started to act like a bunch lawyers.
They sent youtube a DMCA takedown notice.  Youtube took it down.
That got (the firm) some attention…
Heck, nobody was even sure it was real.  Until they lawyered up.
--YouTube video commentary (54,959 views as of 6/5/08)

    When I first started my New York law blog, Sui Generis, in November of 2006, very few lawyers knew what a “blog” was.  And, quite frankly, not many lawyers actually cared.

    Time has a way of changing things.  The increasing popularity of social media, including the indisputable and viral effect of blogs, has finally caused those at the top of the legal profession to sit up and take notice. 

    The major impetus behind this change has been a number of notable public relations disasters occurring over the last year involving large law firms, that were, at the time, unfamiliar with the social media landscape. 

    The most notable incident, described above, involved a large firm’s rather lawyerly response to the leak of a celebratory song commissioned by the firm.  In another case, a disgruntled associate’s parting email to her former employer, Paul Hastings, was leaked on the internet, causing untold amounts of negative publicity for the firm.

    These and other online public relations gaffes by large law firms over the past year have forced the legal profession to reluctantly acknowledge the existence and importance of blogs and other online social media, as evidenced by a recent New York Lawyer article: “Gossip Girls (and Boys): Blogs Bedeviling BigLaw.”

    As explained in the article, “The immediacy — and, at times, the brutality — of the media form is presenting a challenge for firms that are wary of their private matters entering the public domain.”

    For that very reason, that article notes that many large law firms, now painfully cognizant of the viral effects of online media, are trying to track blogs and other social media in an attempt to engage in damage control.

    In response to the growing need to monitor social media, software companies have emerged which provide businesses with tools to track and measure what’s being said about their company online in real time, such as Techrigy, a locally-based technology start up.

    Techrigy provides SM2, a software solution, which allows businesses to search and analyze what is being said about their company and their competitors on blogs, message boards and forums, social networking sites, and video sharing sites such as YouTube.

    It’s inevitable.  Companies such as Techrigy will be in increasing demand as the importance of monitoring online discourse becomes more apparent to businesses with reputations to maintain.

    Technology is changing rapidly.  Information is being exchanged online in ways not previously encountered or envisioned. 

    The legal profession has always been somewhat slow to embrace change.  But, much like a slumbering giant, once awakened, it can be a force to be reckoned with.  So, let the reckoning begin.

Flying the Friendly Skies

This week's Daily Record column is entitled "Flying the Friendly Skies."

My past Daily Record articles can be accessed here.

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Flying the friendly skies

Ted Striker: My orders came through. My squadron ships out
tomorrow. We’re bombing the storage depots at Daiquiri at 1800
hours. We’re coming in from the north, below their radar.

Elaine Dickinson: When will you be back?

Ted Striker: I can't tell you that. It's classified.

— “Airplane!” (1980)

Over the last seven years, have any of your flights been delayed for hours on end with no explanation
whatsoever? Have you ever sprinted through a terminal past multiple fast food restaurants in an effort to catch your connecting flight, your stomach rumbling, knowing full well that you can’t stop — and that you'll be fed  no more than 10 peanuts during your mealtime flight?

Have you felt as if you were performing some sort of bizarre strip tease at the security checkpoints? Have you ever stood in an airport cursing the unhelpful and downright surly personnel under your breath, or even out loud?

I know I have.

That’s why Manhattan litigator Richard Roth is my hero. Why?

Because just last week he did what every red-blooded, frequent flying American has only dreamed of doing: He filed a lawsuit against Delta Airlines to the tune of $1 million seeking compensation for sub-standard customer service. 

Roth claims that he and his family, including his 80-year-old mother, endured lengthy delays, overbooked flights, added expenses and lost luggage, only to arrive at their intended destination in Argentina three days later than scheduled.

According to his complaint, filed in supreme court in Manhattan, throughout the ordeal, he encountered “nasty,” “rude,” “obnoxious” and “totally disrespectful” airline employees, and
that the few that were courteous provided little, if any, effective assistance.

Roth seeks $21,000 for out of pocket expenses and $275,000 in compensatory damages for the emotional distress resulting from the sub-par treatment. The remainder of the amount sought
is for the recovery of punitive damages.

Some might think that filing a lawsuit is too extreme and that Roth is unnecessarily litigious. I would hazard to guess that those individuals are in the minority, since, for the
vast majority of people, air travel has become nothing short of torture. And, to add insult to injury, in an effort to recoup monies for rising fuel costs, airlines are now charging for checked baggage, advance seat selection and other amenities that were once taken for granted.

Since Sept. 11, the quality of air travel has declined drastically. Increasing levels of security have been haphazardly enacted in a knee-jerk fashion, with limited levels of effectiveness. Forbidden carry-on objects seem to change with the season, as does the level of disrobing required at security checkpoints. 

Recent studies show that, despite the increasingly intrusive security measures, forbidden items regularly make their way onto flights. And, despite millions upon millions of dollars of funding for security, young children without boarding passes are able to talk their way into supposedly secure areas, as occurred in the case of 10-year-old Temaj Booker at the Seattle-Tacoma International Airport last week.

So, I applaud you, Mr. Roth, for standing up for the little guy. For putting your foot down and refusing to be a doormat. For sending a message to the air travel industry and letting them know that air travelers the world over demand a return to the good old days, when flying the friendly skies was a phrase that actually meant something.

It's for your own good.

This week's Daily Record column is entitled "It's for your own good."  The article is set forth in full below and a pdf of the article can be foun here.

My past Daily Record articles can be accessed here.

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It's for your own good.

“Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their consciences.”
     — C. S. LEWIS

Over the last over 40 years, our government has enacted laws for the good of its presumably dimwitted
and uninformed citizens.

In 1965, the federal government first required that health-warning labels be placed on cigarette packages. The warnings became more explicit in 1984 with the enactment of the Comprehensive Smoking Education Act. The goal of the legislation was to provide consumers with information regarding the health risks of tobacco.

In an effort to reduce head injuries caused during motorcycle accidents, the New York State legislature passed a law in 1967 requiring that all motorcyclists wear a helmet.

Our state government saw fit to enact legislation in 1984 requiring the use of seatbelts in motor vehicles. The law was enacted for the good of New York’s citizens, the rationale being that it would reduce the number of deaths caused by automobile accidents.

In 1989, a federal law became effective which required that all alcoholic beverages have warning labels informing consumers of the dangers of drinking and driving and of the effects of drinking alcohol during pregnancy.

That same year, New York enacted the Clean Indoor Air Act, which prohibited smoking in auditoriums, elevators, gymnasiums, food stores, shared taxicabs and limousines. In 2003, the antismoking ban
was expanded to restaurants, bars and the workplace. Again, the law was intended to benefit New York residents, both smokers and non- smokers.

Most recently, a New York City Health Department regulation requiring that fast food chain restaurants disclose caloric information on their menus was upheld by Southern District of New York Judge Richard J. Holwell in New York State Restaurant Association v. New York City Board of Health, 08 Civ. 1000. The stated goal of the legislation was to hinder the “obesity epidemic.”

Last week, Judge Holwell concluded that the caloric disclosure requirement of Regulation 81.50 was reasonably related to the government’s interest in reducing obesity and thus did not infringe on the
First Amendment rights of fast food restaurateurs:

Regulation 81.50 compels only the disclosure of ‘purely factual and uncontroversial’ commercial information — the calorie content of restaurant menu items. Furthermore, ... (it) attempt(s) to address a state policy interest by making information available to
consumers, consistent with the First Amendment objective... Therefore Regulation 81.50 passes constitutional muster as long as there is a ‘rational connection’ between the dis-
closure requirement and the city’s purpose in disclosing it... (A) regulation may be reasonably related to the goal it is intended to promote even if ‘it does not get at all facets of the problem it is designed to ameliorate,’ ... Regulation 81.50 is an entirely reasonable approach to the city’s goal of reducing obesity.

And thus another law enacted for the benefit of the feckless New York State consumer successfully withstood constitutional scrutiny.

Unfortunately, I’m unsure whether to declare victory or foul. 

On the one hand, it is indisputable that some people have a tendency to make horrible lifestyle choices.  Arguably, access to information regarding their options might assist them in making better decisions for themselves and their families. Accordingly, requiring large corporations to make relevant information regarding their products readily available is not necessarily objectionable.

However, our government’s increasing tendency to require its citizens to comply with paternalistic mandates enacted for “their own good” is unpalatable at best.

Likewise unappealing is the self-interested motivation lurking behind the arguably laudable First Amendment claims of the New York State Restaurant Association: unadulterated greed.

I am thus resigned to ambivalence on the issue of whether fast food menus should include caloric content information. For, the inescapable fact remains:  regardless of whether you are swayed by free speech claims or public health concerns, whenever the average citizen is pitted against large, faceless entities, be they corporate giants or the government — the little guy rarely, if ever, wins.

Voices From the Grave

This week's Daily Record column is entitled "Voices from the grave."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.

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Voices from the grave.

Last week, the U.S. Supreme Court heard oral arguments in Giles v.California,No. 07-6053.

At issue was whether the defendant’s Sixth Amendment right to confront his accusers was violated where the trial court admitted the dead victim’s prior statements into evidence, where the statements implicated the defendant in her murder.

Last year, the New York State Court of Appeals considered a similar issue in People v. Nieves-Andino, 2007 NY Slip Op 05584, but never reached the constitutional mer- its of the issue, concluding instead that the victim’s state- ments were not testimonial.

In Nieves, Jose Millares, the victim who later died, was discovered lying in the road by a police officer respond- ing to a 911 call regarding shots fired.

The responding officer summoned an ambulance and then asked Millares for his name and other pedigree information. He also asked him what had happened. Millares responded that he had argued with a man named Bori who had shot him three times.

The defendant argued that admitting the victim’s statement into evidence at trial would violate his Sixth Amendment right to confront the witnesses against him pursuant to the Supreme Court’s ruling in Crawford v. Washington. The prosecution argued that the statement fell under the excited utterance exception to the hearsay rule and that its admission would not violate the Sixth Amendment.

The court concluded the victim’s statements did not violate the defendant’s right to confront witnesses against him since the officer’s primary purpose in questioning Millares was to address an ongoing emergency, and thus the statements were not testimonial in the first instance: “Our decision is guided by Crawford v. Washington(541 US 36 [2004]) and Davis v. Washington (126 S Ct 2266 [2006]). In those cases, the Supreme Court held the Federal Confrontation Clause prohibits the ‘admission of testimonial
statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination’ (Davis, 126 S Ct at 2273). Only statements that are testimonial make the absent declarant a ‘witness’ within the meaning of the Confrontation Clause (see id.) … When ... a police officer justifiably believes that the assailant no longer poses a threat to the victim, the purpose of his or her interrogation of the victim may ‘evolve’ from dealing with an ongoing emergency to establishing past events with a view to later criminal prosecution (id.). On this record, however, the initial purpose of Officer Doyle’s inquiry did not change.”

In contrast, under the facts of Giles v. California, the statement appears to be testimonial, therefore the Supreme Court must address the constitutional issue and consider whether the defendant’s Sixth Amendment rights were violated by the trial court’s decision to admit the dead victim’s statements into evidence.

The highest appellate court below, the California Supreme Court, concluded the defendant waived the right to confront his accuser by operation of the common law “forfeiture by wrongdoing” doctrine, since his actions were the very reason that the dead victim was unavailable to testify.

Based on recent decisions from the Supreme Court, I predict that it will uphold the California Supreme Court’s ruling.

This conclusion, while an uncomfortable one for me as a criminal defense attorney, is the only outcome that would make sense from a public policy perspective. To hold otherwise would be to encourage assailants to cause every physical assault to end in death in order to take advantage of the protective umbrella of the Sixth Amendment.

Quite frankly, I’m not sure that the alternative — allowing murderers to benefit from the death of their victim — is one that should be available in a civilized society such as our own.