Federal Court Strips Immunity From Sheriff Who Tried To Silence A Critic By Having Him Arrested

from the his-own-worst-enemy dept

Late last summer, a Louisiana sheriff decided to use a long-dormant, unconstitutional criminal libel law to track down an online critic and search his home. Not that anyone had really been using the law to criminally charge people for libel, but if you don't take a bad law off the books, sooner or later someone's going to abuse it.

Sheriff Jerry Larpenter was the abuser. A blogger who had problems with the parish's incestuous relationship with its insurance provider -- a firm that employed Sheriff Larpenter's wife -- was the target. Larpenter apparently tired of the blog's well-investigated criticism and found a judge compliant enough to sign a warrant for him. (The sheriff bypassed the on-duty judge and had it signed by the off-duty judge, suggesting he's engaged in more than one inappropriately-cozy relationship with a government entity.) He went to the blogger's house and seized five phones and two computers, one of which belonged to the blogger's children.

The judge who signed the warrant unsurprisingly found the warrant to be valid when challenged by the blogger. A Louisiana appeals court, however, saw things differently. In a unanimous ruling, the three judges declared the warrant to be unconstitutional. The ruling said the criminal defamation law could not possibly apply in this situation, as the target of the alleged libel (Tony Alford -- parish insurance provider and board commissioner) was a public figure.

This opened the door for a civil rights lawsuit against the sheriff. In a decision [PDF] handed down late last month, federal judge Lance M. Africk strips Sheriff Larpenter of his qualified immunity. The first sentence makes it clear just how far out of the bounds of constitutionality Sheriff Larpenter has wandered. (via the Volokh Conspiracy)

Some qualified immunity cases are hard. This case is not one of them.

Sheriff Larpenter tried to make the case about town insurance agent Tony Alford, who he maintained filed the original defamation claim. The court doesn't care for this argument much for two reasons. First, Alford is indeed privately employed by the insurance company, but he is also the president of the local board of commissioners and the company he works for provides insurance coverage for Terrebonne Parish. It points to the Louisiana Appeals Court decision finding the warrant unconstitutional, which directly addresses the issue and finds Tony Alford to be a public figure for the purposes of defamation proceedings.

But that's merely the procedural part of finding out whether Louisiana's outdated criminal libel law could possibly apply. The better stuff comes later in the decision.

The Court concludes that the facts and circumstances known to Sheriff Larpenter at the time that he directed Detective Prestenbach to get the search warrant for the Andersons' home would not have led a prudent person to believe that the items sought by the warrant constituted evidence of a crime, because no prudent person would believe that Jennifer Anderson's statements about President Alford could constitutionally form the basis of a crime. President Alford is a public official, and Jennifer Anderson's statements on Exposedat and the John Turner Facebook profile addressed core concerns about his fitness for public office. The complaint shows that Sheriff Larpenter was aware of the specific content of Jennifer Anderson's statements about President Alford from the very beginnings of the investigation.

[...]

Moreover, the complaint shows that the criminal investigation into Jennifer Anderson's statements did not uncover a scintilla of evidence to suggest that Jennifer Anderson's speech—regardless of its veracity—was made with actual malice. As such, it is not surprising that Detective Prestenbach's affidavit in support of the search warrant lacked any factual allegations to support an assertion of actual malice. In fact, Detective Prestenbach's acknowledgment in the affidavit that Exposedat featured public documents to support the claims made on it suggested just the opposite: even if false, the statements were not made with actual malice.

[...]

As the Louisiana Court of Appeal concluded, Jennifer Anderson's speech "is not a criminally actionable offense"—and any prudent person would have known so. Accepting the factual allegations in the complaint as true and construing them in the light most favorable to the Andersons, Sheriff Larpenter's directive to Detective Prestenbach to obtain a search warrant for the Andersons' home resulted in a violation of the Andersons' Fourth Amendment rights, as the warrant lacked the requisite probable cause.

The sheriff tried to argue he "reasonably relied" on the magistrate's judgment in approving the warrant. This attempt to pluck a "good faith" defense out of a bad faith effort goes nowhere.

The Court notes that Detective Prestenbach's affidavit for the search warrant for the Andersons' home—a warrant he obtained at the direction of Sheriff Larpenter—failed to mention the material fact that President Alford serves as the head of the Terrebonne Parish Levee and Conservation District Board of Commissioners—and hence is a public official. Notwithstanding, a reasonably well-trained officer in Sheriff Larpenter's position would have known that Detective Prestenbach's affidavit would inevitably fail to establish probable cause, because longstanding U.S. Supreme Court and Louisiana Supreme Court case law precluded the application of § 14:47 to Jennifer Anderson's statements. "[A]s an officer charged with enforcing Louisiana law," Sheriff Larpenter "can be presumed to know the law" of Louisiana, including the law's well-established constitutional reach. Rykers v. Alford, 832 F.2d 895, 898 (5th Cir. 1987). More to the point, "[p]olice officers can be expected to have a modicum of knowledge regarding the fundamental rights of citizens." See also Saldana v. Garza, 684 F.2d 1159, 1165 (5th Cir. 1982). In this instance, a judge's issuance and affirmance of the search warrant for the Andersons' home will not shield Sheriff Larpenter from potential civil liability for his conduct.

The sheriff will also have to answer to First Amendment retaliation claims. Larpenter argued the injury suffered by the blogger was minimal, perhaps even nonexistent. Again, the court finds little it likes about the sheriff's spin.

Sheriff Larpenter attempts to minimize Jennifer Anderson's injury as a result of his actions. In his view, because the Andersons got their property back and because the property was never searched by law enforcement—the Andersons' computers and cellphones were impounded and sealed after their seizure while the Andersons challenged the legality of the search warrant—Jennifer Anderson did not suffer an injury sufficient to chill a person of ordinary firmness. However, Sheriff Larpenter is missing the bigger picture: the injury was inflicted at the time of the execution of the search warrant. By searching the Andersons' home and seizing the Andersons' property in the first place, Sheriff Larpenter sent a message to Jennifer Anderson—a message that he also allegedly told a news outlet and broadcast to his community: "If you're gonna lie about me and make it under a fictitious name, I'm gonna come after you." To the Court, that message—if you speak ill of the sheriff of your parish, then the sheriff will direct his law enforcement resources toward forcibly entering your home and taking your belongings under the guise of a criminal investigation—is inseparable from the injury and would certainly chill anyone of ordinary firmness from engaging in similar constitutionally protected speech in the future.

Larpenter now must face this legal action on his own, with no shield between him and the allegations. The facts of the case are pretty damning and Larpenter's best bet now is to find some way to settle before the monetary pain gets worse.

Filed Under: first amendment, free speech, immunity, jerry larpenter, louisiana, online critic, tony alford

DA's Office Facing Multiple Lawsuits Related To Its Use Of Fake Subpoenas To Intimidate Witnesses

from the apparently-ethical-violations-are-just-part-of-the-office's-'traditions& dept

The Louisiana district attorney whose office issued bogus subpoenas to trick witnesses into "volunteering" their testimony is now facing multiple lawsuits. DA Leon Cannizzaro's office was sued on May 12th by the Roderick and Solange MacArthur Justice Foundation for its refusal to turn over copies of every fake subpoena it has issued.

Three days later, it was sued again, this time by the ACLU.

The ACLU lawsuit, filed Monday in Orleans Parish Civil Court, differs from a related lawsuit brought last week against Cannizzaro's office by the Roderick and Solange MacArthur Justice Foundation regarding the so-called Article 66 subpoenas.

The MacArthur suit seeks copies of every subpoena issued by the DA's office since 2013 -- those properly authorized by a judge, as well as the fraudulent "DA's subpoenas" intended to appear as if they carried legal weight.

The ACLU suit seeks the names and Louisiana Bar Association numbers of any attorney in Cannizzaro's office responsible for using one of the fake documents. An attorney who knowingly used a fraudulent document to compel witness testimony could be subject to penalties ranging from ethical misconduct sanctions by the Louisiana Attorney Disciplinary Board to the unlikely extreme of criminal charges brought by the state Attorney General's office related to forgery.

So far, Cannizzaro's office has no comment on the lawsuits (other than to say it hasn't been served with either suit yet). The only comment Cannizzaro's office has made is that the practice predates his tenure, as if that somehow excuses the ethical and (possibly) legal boundaries his office crossed. As a deflection, it's horrible. It's like claiming you still approve general warrants because your British predecessors did.

I'm sure DA Cannizzaro has several reasons for not immediately handing over these documents, all of them related to mitigating the damage done by these revelations. There may be a day of judicial reckoning ahead for Cannizzaro and his underlings, and the longer he can keep these documents out of the public's hands, the longer it will be until he can be confronted with the evidence.

Cannizzaro's office now has multiple opportunities to see what it feels like to be a defendant, and most likely will be the recipient of genuine subpoenas demanding compliance under the pain of actual jailing. Process servers will now have to navigate groups of protesters calling for Cannizzaro's removal just to hand him copies of these lawsuits. And all of this could have been avoided by Cannizzaro, if he had just decided against carrying on the unethical "tradition" of intimidating possible witnesses with fake subpoenas and bogus legal threats.

Filed Under: intimidation, leon cannizzaro, louisiana, new orleans parish, subpoenas, warrants, witnesses

Appeals Court Tosses Search Warrant Used By Louisiana Sheriff In Attempt To Silence Critical Blogger

from the stupid-law-fails-to-help-out-even-stupider-Sheriff dept

The Louisiana First Circuit Court of Appeals has just ended Terrebonne Parish Sheriff Jerry "Censorious Dumbass" Larpenter's attempt to silence a critic through the magic of abusing his power. The sheriff obtained a warrant to raid a blogger's house, using the state's mostly-unconstitutional criminal defamation law to justify the search. The blogger had pointed out that Larpenter's wife works for an insurance agency that provides coverage for the local government -- something that looked just a wee bit corrupt.

Larpenter didn't care for this, so he took his search warrant application -- and a complaint by Tony Alford, who runs the insurance company that Larpenter's wife works for -- to an off-duty judge to get it signed. This same judge later declared the warrant to be perfectly legal when challenged by lawyers representing the blogger. The blogger's lawyers appealed [PDF] this decision, which has resulted in the warrant [PDF] being killed. Naomi Lachance of The Intercept has more details.

An appellate court in Baton Rouge ruled Thursday that a raid on a police officer’s house in search of the blogger who had accused the sheriff of corruption was unconstitutional.

The Louisiana First Circuit Court of Appeals argued that Sheriff Jerry Larpenter’s investigation into the blog ExposeDAT had flawed rationale: the alleged defamation was not actually a crime as applied to a public official.

The unanimous ruling from the three-judge panel comes after police officer Wayne Anderson and his wife Jennifer Anderson were denied assistance in local and federal court.

The one-paragraph decision [PDF] points out that Tony Alford is a public figure and cannot avail himself of the state's criminal defamation law.

Anthony Alford, the supposed victim, is President of the Terrebonne Parish Levee and Conservation Board of Louisiana, and a public official. Consequently, the search warrant lacks probable cause because the conduct complained of is not a criminally actionable offense. The ruling of the district court denying the motion to quash the search warrant is reversed, the motion is granted, and the search warrant is quashed.

So much for Judge Randall Bethancourt's declaration that the warrant he signed was valid. And so much for the Terrebonne Sheriff's Department's "look see" Bethancourt granted earlier. The seized devices -- which included a laptop belonging to the blogger's children -- have been held by the clerk of courts, which hopefully means Sheriff Larpenter didn't sneak some peeks before having his bogus warrant tossed.

The state's top prosecutor won't be humoring Sheriff Larpenter any further.

“We respect the First Circuit decision, we have no plans to appeal, and as far as the attorney general is concerned, the case is closed,” Ruth Wisher, press secretary for the attorney general, told The Intercept.

Sheriff Larpenter still seems willing to abuse his office to shut people up, as evidenced by his inability to do so himself.

Over the month of August, Larpenter had publicly defended his position. “They need to upgrade [criminal defamation] to a felony,” he recently said on local television station HTV10.

“The media come and all the different outlets, even our local media, wrote unsatisfactory accusations about me like, ‘Oh, they got freedom of speech. They can say what they want.’ Well that’s not true,” he said.

Larpenter is wrong on both counts. Defamation shouldn't be a criminal offense. Ever. And his definition of "free speech" doesn't sound very "free." Instead, it sounds like Larpenter would prefer limits to speech he doesn't like, which is a stupid and dangerous ideal to hold while in an elected office holding considerable power. I have my doubts Larpenter thought he'd really end up with a criminal prosecution, but he's probably satisfied that he was allowed to walk into someone's home, take their stuff, and force them to spend money defending themselves from a completely bogus criminal charge.

Of course, intimidation tactics like these can sometimes backfire completely. Larpenter now looks like an easily-bruised bully and his BS attempted prosecution will likely only encourage his critics to speak up more loudly and frequently. In addition, The Intercept reports the blogger's lawyers will be moving forward with a lawsuit against the parish for Sheriff Larpenter's actions, so this may end up costing taxpayers some cash as well. Hopefully, this unneeded spending will be on their minds when Larpenter's up for re-election.

Filed Under: criticism, first amendment, free speech, jerry larpenter, louisiana

Judge Who Signed 'Criminal Defamation' Warrant For Sheriff's Raid Of Blogger's House Says Warrant Perfectly Fine

from the I-only-sign-the-best-warrants! dept

Nothing's going to stop Louisiana sheriff Jerry Larpenter from defending his good name. If you "print lies" about the sheriff, he'll "come after you." He'll have to use a criminal complaint filed by someone else (insurance agent Tony Alford) and an unconstitutional law to do it... but he's still coming after you.

The "you" in this case is a local police officer who allegedly runs a blog that allegedly made defamatory comments with claims of corruption involving the sheriff, his wife, and the insurance agency she works for.

Defamation isn't normally a criminal offense. Louisiana, for some reason, still has a criminal defamation statute on the books, but it only applies to non-public figures, which the sheriff -- and the parish's insurance agent, Tony Alford -- are not. Alford, who filed the complaint, not only holds two government positions but his agency also secured a no-bid contract to provide insurance services to the parish.

Never mind all that, though. Sheriff Larpenter found an off-duty judge to sign a search warrant and raided Officer Wayne Anderson's home, seeking evidence that he was the author of the posts. Anderson denies having anything to do with the blog posts, not that it matters. Larpenter's deputies have already made off with five electronic devices, including a laptop belonging to the officer's kids.

It would seem that after the initial raid and seizure, cooler judicial heads might prevail. No luck here. Abusing power to oppress speech is something embraced by at least two-thirds of the governmental checks-and-balances system. The judge (Randall Bethancourt) presiding over the case is none other than the judge Larpenter sought to sign his questionable search warrant -- a judge who wasn't on duty for criminal cases when the sheriff pushed his affidavit through.

A Terrebonne Parish judge on Friday stood by his decision to authorize the sheriff's office to seize a Houma police officer's computers earlier this week under the theory they were used to post a blog that may have defamed the sheriff.

I'm sure the judge was in no hurry to invalidate a warrant he signed. Anderson's lawyer argued there was no basis for it because the statute used to obtain it is unconstitutional as applied to the allegedly-defamatory blog posts. Judge Bethancourt, however, feels none of this is really a big deal.

Bethancourt said [the sheriff] had to stay within the "four corners" of the warrant and affidavit and said he couldn't tell if Alford was a public official. Frustrated, Ardoin pointed out that Alford is on the Levee Board, but what's relevant is that the comments in the complaint were about public affairs and should be protected speech.

Apparently, Bethancourt will know whether or not the Constitution applies after the sheriff's office has already examined the devices. And why not, because the statute being used can be interpreted many ways, especially with Bethancourt reading it.

Bethancourt countered that Louisiana’s criminal defamation statute is "pretty broad" and said he would allow the state to "take a look-see at these computers that might have defamatory statements on them."

Gotta love that down-home spin on possible First and Fourth Amendment violations. Law enforcement will just be performing a "look-see" within the "four corners" of a likely-invalid search warrant… all with the blessing of a judge who was apparently in jeans and a T-shirt when approached by someone from the sheriff's office during his day off.

The DA's office isn't much help either, stating that the warrant is "presumed valid" until ruled otherwise and "speaks for itself." The DA did not elaborate on what the warrant said when speaking on its own behalf, but WWLTV notes District Attorney Joe Waitz, Jr. is also mentioned in the blog as being part of a parish-wide web of corruption.

At least one member of the parish government has decided to take the litigation route, as one normally does when confronted with possible defamation.

Alford owns multiple businesses with Parish President Gordon Dove, who, the parish acknowledges, engaged Alford as the parish’s new insurance agent-of-record without any public bid.

Dove told WWL-TV that he is considering suing whoever posted the website, in part because it mentions his daughter, who is married to an assistant district attorney. He also defended the hiring of Alford because his insurance agency is local and would replace an out-of-parish consulting firm.

This thicket of incestuous business/government intermingling, along with people marrying into the family business (and sometimes the "business" is government) isn't exactly going to persuade outsiders that the blog's allegations of government corruption are likely to be false. From the look of things, it will be almost impossible to find anyone without a conflict of interest to investigate, prosecute, or adjudicate this case.

Meanwhile, Officer Anderson has been suspended indefinitely by the Houma Police Department and his electronics remain in control of the clerk of courts while Bethancourt's assertion of warrant validity is taken up the judicial ladder by his lawyers. And Sheriff Larpenter continues to look like someone who's willing to interpret the laws he's paid to enforce as broadly as needed to silence criticism of him and his office.

Filed Under: anonymity, defamation, jerry larpenter free speech, louisiana, randall bethancourt, wayne anderson

Sheriff Uses Unconstitutional Law To Raid Home And Seize Electronics Belonging To Watchdog Blogger

from the bad-laws-used-most-efficiently-by-bad-people dept

A Louisiana sheriff has just inserted himself into a mess of First and Fourth Amendment violations by using his power to go after an anonymous blogger who claimed he was corrupt. Naomi LaChance of The Intercept has more details.

After a watchdog blog repeatedly linked him and other local officials to corruption and fraud, the Sheriff of Terrebone Parish in Louisiana on Tuesday sent six deputies to raid a police officer’s home to seize computers and other electronic devices.

Sheriff Jerry Larpenter’s deputies submitted affidavits alleging criminal defamation against the anonymous author of the ExposeDAT blog, and obtained search warrants to seize evidence in the officer’s house and from Facebook.

The target of this raid -- supposedly the blog's author (although he denies being behind it) -- is another law enforcement officer. Wayne Anderson works for the Houma Police Department. Taken from his home during the raid were five cell phones and two computers -- including his children's laptop.

Sheriff Larpenter is trying to use Louisiana's criminal defamation law to prosecute Anderson. Unfortunately for the overreaching sheriff, that law isn't going to work.

The Louisiana Supreme Court ruled the criminal defamation law unconstitutional "insofar as it attempts 'to punish public expression and publication concerning public officials, public figures, and private individuals who are engaged in public affairs.’”

Larpenter is trying to get around this by claiming the "investigation" was prompted by a citizen's complaint -- that of Tony Alford, an insurance agent named in the blog's posts. The blog's author alleges impropriety related to Alford's no-bid contract to provide insurance coverage for the parish via the agency he works for, Alford, Staples, Lapeyre & Robichaux. The corruption hook here is that Sheriff Larpenter's wife also works for the same insurance agency.

So, it's not really about Tony Alford. It's about Larpenter and his wife. The blog has also made allegations about improper relationships between the department and the town's most powerful government officials, including District Attorney Joe Waitz, Jr. Unsurprisingly, this is the same DA Larpenter wants to prosecute the case.

When Larpenter was asked whether there is a conflict in him investigating an alleged crime involving himself, he replied, "If you're gonna lie about me and make it under a fictitious name, I'm gonna come after you."

He went on to say that once he finished investigating the blog, he would turn the case over to District Attorney Waitz to determine if Waitz wanted to prosecute it or “hand it off.”

Waitz, to his credit, has recognized the conflict of interest and has chosen to pass it on to another office for possible prosecution. But the charge is unlikely to stick, even with Sheriff Larpenter's maneuvering. Larpenter's comments make it clear this attempted prosecution is personal ("lie about me") and is willing to use an unconstitutional statute to justify a search/seizure of personal electronics. But even his invocation of a supposed "private" individual (the insurance agent) to obtain search warrants isn't going to be enough to salvage this blatant attempt to shut down a critic. As the parish's main insurance provider, Alford is very definitely a "private individual engaged in public affairs." Beyond that, he's a public figure in his own right.

In addition to holding public contracts, Tony Alford is also the acting President of the Terrebonne Parish Levee and Conservation District Board of Commissioners, a public position that requires him to file annual personal financial disclosures with the Louisiana Board of Ethics.

Even the process used to obtain the search warrant to seize Anderson's devices was a bit shady.

The one they used to search Anderson’s home was signed Tuesday by Judge Randall Bethancourt, who was not serving as the on-duty judge for criminal cases that day.

This suggests a bit of magistrate shopping by the Sheriff's Office. Now that the warrant has been executed and devices seized, a motion to quash is in place. But that does little for Officer Wayne Anderson. Not only has he been suspended (with pay) by the Houma Police Department while this farce plays out, but the court is holding onto his computers and phones until a hearing on the motion can take place.

The First Amendment implications of Sheriff Larpenter's raid are clear. That the search warrant -- in pursuit of bogus criminal defamation charges -- has already been carried out means Sheriff Larpenter will be facing Fourth Amendment violations claims as well in the inevitable civil rights lawsuit that will follow this debacle. Sheriff Larpenter should have had no problem fighting speech he didn't like with speech of his own -- especially considering his position as a public figure who holds a powerful office. Instead, he has chosen to abuse his position and power to silence a critic, something that's not exactly helping him look any less corrupt.

Filed Under: 1st amendment, 4th amendment, anonymity, corruption, critics, free speech, jerry larpenter, louisiana, searches, terrebone parish, warrants, wayne anderson

Court Strikes Down Louisiana's Attempt To Regulate Online Content 'For The Children'

from the baby-proofing-the-world dept

A law enacted "for the children" in Louisiana has been blocked by a federal judge for being -- like almost anything enacted "for the children" -- overbroad, badly written, and generally inconsiderate of protected expression.

The ACLU summed up the law this way after it was passed late last year.

The law makes it a crime to publish anything on the Internet that could be deemed "harmful to minors" without verifying the age of everyone who wants to see it. If you are in Louisiana, and publish anything on the Internet, you have to either make sure that none of that content could be considered harmful to a minor of any age — a high bar, considering a lot of constitutionally protected speech might not be fit for an 8-year-old — or install an age-verification screen asking if the viewer is 18 or over before allowing access.

If you don't, it's a crime.

As the ACLU pointed out then, the law was so broadly written, it could be read as covering posts made to social media accounts -- platforms where users have no way of controlling who views their posts. To steer clear of potential violations, some social media users may have been better off withholding anything that could possibly be deemed unacceptable.

The most likely recipients of extra law enforcement attention due to the new law were the state's many booksellers, most of whom sell books online. Smaller sellers would have been forced to implement age verification procedures for their websites and somehow determine what content was acceptable for minors and segregate it accordingly. The simplest solution would be to simply "age wall" all books and treat all purchasers as though they were buying "Fifty Shades of Grey," rather than, say, "Clifford, the Big, Red Dog."

The ACLU joined two Louisiana bookstores in challenging the terrible law and, only a few months after its passage, have received an injunction blocking its enforcement. The court decision spends several paragraphs discussing the numerous flaws in the law's wording, many of which could result in a chilling effect on free speech and act as indirect (and perhaps unintentional) prior restraint.

Criminal statutes, such as §14:91.14, must be defined “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). The ill-defined terms in §14:91.14 do not adequately notify individuals and businesses in Louisiana of the conduct it prohibits, which creates a chilling effect on free speech. For example, despite the array of definitions in Section (B) of the statute, it does not define “for commercial gain” or “publish.”

The State contends that the phrase “for commercial gain,” which is embedded in the definition of “material harmful to minors,” means the statute applies to material published on the Internet for commercial gain. (Doc. 41 at p. 9). However, under a similar criminal statute, La. Stat. Ann. §14:91.11,7 a Louisiana court held that the term “for commercial gain”—which was similarly embedded in that statute’s definition of “material harmful to minors”—refers to the “creation or production of the material involved and not to the nature of the transaction.” [...] Thus, the State’s proposed definition of the term “for commercial gain” completely ignores a Louisiana court’s explicit interpretation of that term.

The court also has a problem with the State's inability to define what's encompassed by the word "publish."

The State also contends that the word “publish” is synonymous with the word “upload.” The State offers no competent support for this contention. The State only provides a declaration from the Senior Systems Administrator for the Louisiana Department of Justice—who is not a member of the Louisiana Legislature or qualified as an expert—to advise as to his personal interpretation of the term. The meaning of “publish,” as used in this statute, is vague as written and could include uploading or displaying content that is harmful to minors. Absent an explicit definition in the statute, the Court and the public can only speculate as to its meaning and intended application.

Because the State passed a badly and vaguely-written law, it has no one but itself to blame for its unintended consequences.

To avoid the stigma of a criminal prosecution, Plaintiffs, and those similarly situated, will be inclined to either broadly apply the age verification process well beyond what is necessary or refrain from publishing any material that arguably falls within the confines of the statute. A possible consequence of the chill caused by §14:91.14 is to drive protected speech from the marketplace of ideas on the Internet.

As the court sees it, the booksellers and those similarly situated have two choices when complying with this law -- neither of which are acceptable under the First Amendment: either deploy overly-broad age verification processes, which could prevent site users from accessing information, or simply stop "publishing" anything that might be deemed "harmful to minors."

The State can still appeal this decision, but it would likely be a waste of time. Legislators may try to rewrite the law, which would be preferable rather than trying to keep it alive in its current form. But a better solution would simply be to strike the law from the books and accept the fact that it's almost impossible to "save" the "children" from "harmful content" without punching holes in First Amendment.

There are plenty of "content filters" already in place, standing between minors and "harmful material." They're called "parents." And even if they're not perfect, they're at least as effective as this law would be, what with minors still being able to access content not hosted by Louisiana entities or lying about their age to content filtering systems.

Filed Under: first amendment, for the children, free speech, louisiana

Angry Couple Using Trademark To Bully Oyster Bar Over Menu Item Names

from the aw-shucks dept

Trademark is for a lot of things (not it isn't), but one of the things it is definitely not for is for jilted ex-business contacts to fight with 3rd parties because they are butt-hurt about not being able to pay the rent. And if that hasn't confused you enough, come see what's going on in Louisiana, where a couple that had purchased a restaurant and then, failing to pay the rent on time to the original owners, decided that they would go trademark-crazy on the new ownership that replaced them.

Mark Fayard and Susan Martisen purchased Metairie oyster icon Bozo's and its trademarks in 2008 from elderly Chris "Bozo" Vodanovich, but after years of allegedly paying late rent on the property, the Vodanovich family successfully ousted them from the building in 2013 and the restaurant was no more. That's when restaurateur Ed McIntyre swooped in and bought the actual property at 3117 21st St., revamping the restaurant and resurrecting beloved menu items and the legendary oyster bar, though under the Mr. Ed's Oyster Bar & Fish House name. McIntyre had the blessings of Chris Bozo Vodanovich—a real passing of the reigns— who often visited Mr. Ed's until he passed away at age 86 in late 2014.

Are we all clear? Fayard and Martisen bought Bozo's restaurant and trademarks, but not the actual building, for which they had to pay the Vodanovich's rent, and then promptly failed to pay the rent on time, leading to their eviction. It's important to note that the restaurant closed down completely at that point. As in, it didn't engage in commerce any longer. It ceased to be. It became an ex-restaurant. Which, of course, means the Bozo's trademarks were no longer in use.

Not that this stopped Fayard and Martisen from sending a cease and desist letter demanding that Mr. Ed's stop using a bunch of the trademarks they're still claiming.

They sent a cease-and-desist letter demanding that the restaurant stop saying it's been "Shucking Here Since 1979" or calling itself the "Oldest Standup Oyster Bar in Metairie." The letter also demanded that Mr. Ed's stop offering dishes with "Mr. Chris" in their names.

The duo are now suing Mr. Ed's for allegedly not complying with the cease and desist, though the restaurant has since stopped describing itself as having the 'oldest standup oyster bar in Metairie.' As for the menu items, McIntyre argues that the two dishes known as "Mr. Chris Gumbo chicken and andouille gumbo" and "Mr. Chris homemade hamburger steak" are both an "homage to a man he called a friend for four decades" and not trademark infringement.

So, again, we have to people whose restaurant was shut down completely, suing the owner of a new restaurant for trademark violations on phrases and menu items they're no longer using. And it's apparently gotten petty enough that part of the dispute is over menu items harkening back to the man who owned the original restaurant, which is no longer in business. Sometimes I'm not really sure what trademark is actually for any longer, but I am quite sure it isn't this.

Filed Under: bozo, chris vodanovich, ed mcintyre, louisiana, mark fayard, menu, metairie, oysters, susan martisen, trademark
Companies: bozo's, ed's oyster bar & fish house

Court Rules MoveOn.org Can Use LA Slogan To Criticize Bobby Jindal

from the criticize-on dept

Last month, Tim Cushing wrote about how the Lt. Gov. of Louisiana, Jay Dardenne, had sued Moveon.org over a billboard that used the state's trademarked "Pick your passion!" slogan. The suit was filled with so much technicality-probing nonsense, one wondered how a judge would be able to look through it without needing a couple of long naps. Chief among the claims was that folks seeing the billboard might somehow think the Lt. Governor was responsible for criticizing the Governor, Bobby Jindal, despite the fact the billboard wasn't meant for commercial purposes, criticized the same government Dardenne is a part of, and clearly denotes the responsible party as Moveon.org. It seemed like a pretty clear attempt to stifle criticism over the technicality of a frivolous trademark claim. More egregious, Dardenne wanted the billboard removed while the case was litigated.

Fortunately, while we hear so many stories like this that end up with courts being overprotective of any intellectual property claim, the court has sided with free speech and ruled the billboard will stay up while the trademark claim makes its way through the court.

U.S. Judge Shelly D. Dick, who is over seeing the case, said in an April 7 ruling that forcing the group to take down the sign while the trademark infringement issue is being litigated would deny MoveOn.org its right to free political speech. Dick said while the State of Louisiana’s tourism trademark is a legally protectable mark, the burden of proving trademark infringement is on the state which would have to present more compelling information that the infringement was occurring especially because the billboard was merely expressing a point of view.

“The State argues that viewers of the billboard will be confused into thinking that the Lieutenant Governor, as the alleged owner of the service mark, is being critical of the Governor. In this Court’s view, the Lieutenant Governor underestimates the intelligence and reasonableness of people viewing the billboard,” Dick’s ruling states.

It's an interesting distinction in the ruling, since to disagree would put Dardenne in the uncomfortable position of suggesting his own constituents aren't as intelligent as Judge Dick thinks. In any case, the ruling goes on to note that its the actual citizens of Louisiana that would get to claim ownership of the trademarked slogan, rather than any individual members of the state's government who were the billboard's actual targets, and that no irreparable harm had been proven.

So the billboard stays up and the justice system proves it thinks more of the citizens of Louisiana than some in the state's own government. Meanwhile, a small single billboard continues to find its way into the media spotlight, where it likely never would have found any purchase if the attempt to take it down hadn't been made. Well done all around, Lt. Governor!

Filed Under: bobby jindal, jay dardenne, louisiana, trademark
Companies: moveon.org

Lt. Governor Of Louisiana Sues MoveOn.org Over Parody Campaign Targeting Governor's Policies

from the doing-MoveOn.org's-awareness-legwork-for-it dept

Here comes IP law, being pressed into service as a censor once again. (h/t to Techdirt reader dave blevins)

The state of Louisiana is suing MoveOn.org for its billboard criticizing the state's Governor for his Medicaid policies. It uses the state's trademarked slogan ("Pick your passion!") as part of its commentary. Here's the billboard in question.

This billboard prompted Lt. Governor Jay Dardenne into action, who sent a cease and desist on behalf of his office in an effort to get the signs taken down.

Lt. Gov. Jay Dardenne sent a cease-and-desist order to MoveOn on Thursday, asking the advocacy organization to take down a billboard along Interstate 10 that parodies Louisiana's "Pick your Passion" tourism slogan. The billboard, which mentions [Governor] Jindal by name, is critical of the governor and legislators' decision not to expand the state Medicaid program under federal health care reform.

Originally, Dardenne claimed the billboard could confuse people, making them think the state itself had created the signs. But his cease and desist order contained more than just that particular claim, with apparent cases of "confusion" only being limited by the lawmaker's imagination. Here's some of MoveOn.org's response to the C&D.

First, the determinative issue is whether the use of the Mark creates a likelihood of confusion among relevant consumers. Clearly, MoveOn is not using the Mark for the advertisement of any goods or services of its own whatsoever. Your letter contends, however, that there is a "strong likelihood that a reasonable consumer will believe the Lieutenant Governor is the source. . .of the billboards" and is likely to be confused into believing this office is involved in a dispute with the Governor over Medicaid expansion."

To the contrary, MoveOn's sponsorship of the billboard is clearly denoted. The advertisement is manifestly a criticism by our client of the position of the Governor on Medicaid expansion. The Lieutenant Governor is not mentioned or referenced in any way in the advertisement. No reasonable Louisiana citizen or visitor could conceivably look at this billboard and conclude that it is about a dispute between two state officials, as opposed to a criticism of the Governor's policy by an advocacy group.

That's a pretty extreme stretch by Dardenne. Had he stuck with simple confusion of whether the state itself was behind the billboards, he might have been on more solid ground in terms of reasonableness. But as the response letter notes, Dardenne himself implicitly acknowledged the billboard was a parody. When it came to specifics detailing exactly how MoveOn.org was misleading the public, Dardenne failed to provide any.

You allege that the billboard had "already caused confusion regarding the source of the message" but cite no facts or evidence.

Now that Moveon.org has shot down his C&D, Dardenne is taking the organization to court.

"We have invested millions of dollars in identifying the Louisiana: Pick Your Passion brand with all that is good about Louisiana. No group should be allowed to use the brand for its own purposes, especially if it is for partisan political posturing," Dardenne said in a statement announcing the suit.

"MoveOn.org has every right to attack Gov. Jindal, the state's refusal to accept Medicaid or, for that matter, me personally. But they do not have the right to use our protected service mark, which is used solely for the purpose of promoting and marketing Louisiana. We own the mark and its use is under the direction of my office, not the Office of the Governor."

The filing reiterates Dardenne's claims that the billboard gives the impression that the Lt. Governor's office is attacking the governor of the state. It also makes the claim that because Governor Jindal is not the "author" of the claimed marks, the billboard is not a protected parody.

Louisiana and federal jurisprudence has provided that a parody is defined as an artistic work that imitates the characteristic style of an author. For the purposes of copyright and trademark law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. Plaintiff avers that infringement of the Service Marks by MoveOn.org does not constitute parody under the fair-use doctrine because the subject of the parody, Governor Bobby Jindal, is not the author of the Service Marks, as is required.

While Dardenne's claim is technically correct (in regards to commenting on the "author's" work), in terms of confusion, there's very little separating a state's slogan and its government (as a whole, rather than a division of wholly separated offices according to Dardenne's hair splitting). Dardenne's claiming that because his office (the Lt. Governor's) designed the state's word mark and slogan, it is no longer a protectable parody. This argument utitlizes imperceptible (to outsiders) differences in an attempt to remove the parody protections that would appear to cover MoveOn's work.

Whether or not the court agrees with Dardenne's arguments remains to be seen, but the underlying feeling that this is solely a politically-motivated move (with all of its First Amendment implications) is palpable. MoveOn.org is a left-leaning organization, while Gov. Jindal and his lieutenant are both Republicans. Simply utilizing trademark law to shut down criticism is always a bad idea. Allowing political motivations to override common sense is even worse. As the article notes, MoveOn.org has deployed similar campaigns in Texas and Florida, but no state rep has been foolhardy enough to attack speech by brandishing the state's trademarks as weapons.

In the long run, even if Dardenne wins, he (and the state) still lose. This legal attack has only raised the visibility of MoveOn's critical campaign. And the cries of "censorship" that would follow a successful lawsuit will only make the office of the governor look worse.

Filed Under: bobby jindal, jay dardenne, louisiana, medicaid, pick your passion, trademark
Companies: moveon.org

Police Who Seized Woman's Phone As 'Evidence' Of Bogus Crime Now Complaining About Criticism

from the whirlwind-reapists-constantly-surprised-by-ferocity-of-harvest dept

Photography Is Not A Crime is in the middle of another police department vs. citizen feud and this one, like the last, is based on dubious "crimes" and a police department's disingenuous legal response to being slammed with phone calls as a result of its own actions.

The story starts out with a Louisiana woman (Theresa Richard) being arrested by Crowley Police Dept. officers for recording inside a police station. This was the latest in a long line of attempts by the CPD to silence and intimidate Richard after she filed a lawsuit against the department for false arrest and imprisonment stemming from an incident last year, when she (along with other members of her family) were accosted by police officers and accused of stealing a safe.

Richard’s husband and brother were confronted by cops for removing a safe from [Richard's] burned house after the fire inspector had deemed the investigation over.

The two men had wheeled the safe over on a dolly because the house was only down the street from where Richard lived.

But police arrived and accused them of stealing the safe. Richard said they also assaulted her and ordered her back inside her home. However, they ended up leaving without arresting anybody.

Richard couldn't get anyone at her local paper to cover the lawsuit against the CPD, so she took her story to a neighboring town's paper. Once it was published, she purchased copies to hand out, including one which she attempted to give to the Crowley police chief. That's when things went downhill.

[W]hen she entered the department to drop the newspaper off while carrying her camera as it was recording, she ended up getting arrested for “remaining after being forbidden,” which appears to be Louisiana’s version of trespassing…

Now police are refusing to return her camera in complete violation of the law as the United States Department of Justice specified in its guidelines from last year.

The guidelines allow warrantless seizures only if there is "evidence of a crime" and then only for as long as it takes to secure a warrant. The CPD has now had Richard's cellphone for more than a week (since Dec. 1st).

PINAC posted this story, along with contact info for the Crowley Police Dept. and the mayor of Crowley, Greg Jones. Carlos Miller also encouraged readers to connect with the department through its Facebook page.

It must have been a long couple of days for the Crowley Police Dept., which fired off two letters through the city attorney complaining about the "harassment" it has experienced as a result of the PINAC's post and Richard's own Facebook page detailing her experiences with the department.

The first letter, sent in response to Richard's lawyer asking for the release of her cellphone contains this ridiculous paragraph. (All punctuation errors, etc. in the original.)

Mrs. Richards posting and contact with the Police Department have increased and are beyond free speech. She is expressing more than mere opinion she is inciting and causing others to harass, confront and threaten physical violence against police officers. Email to the City website from other person express a willingness to physically confront officers and warnings of violence when encountering police. Her statements are encouraging other to engage in acts and confrontations which could lead to serious injury to police officers, innocent bystanders and themselves.

A thorough examination of Richard's Facebook page shows nothing of the sort. Here's everything that's been posted dealing directly with contacting the CPD.

Feel free to call the chief and ask how long he plans to keep the video of my so called disturbance. His number is (337)783-1234. Regan's number is (337)783-7141. Share! [link]

Thanks again for the flood of support! They know we are not going away, they know that I will not be intimidated and they know that I will keep doing what I KNOW is right. [link]

I would like to ask a favor of my friends living here in Crowley or surrounding areas to PLEASE let me know if you have ALSO been harassed over sharing my post or supporting my family by members of Crowley Police Department. I starting to hear from a few of my closest friends that officers from CPD are threatening to make things difficult for people who support me. PLEASE let us know if this has happened to you. Send me a PM and I will forward it to my attorney. You can also email me at tcrichard400@gmail.com. [link]

The second letter, sent a day later (the day PINAC published its article), is more of the same. The posting at PINAC obviously greatly increased the amount of incoming calls. The city's lawyer gripes about this being turned over to the court of public opinion and notes that these calls won't result in the release of Richard's phone. He also claims the PD's phone system potentially won't be able to handle the influx of calls, although he seems to indicate that it's working just fine so far.

It goes on to complain that some of the calls have been "abusive" and contain "foul language" and "name calling." While it's certainly not the preferable outcome, it is often the inevitable outcome when thousands of people are made aware of something that previously only a handful of individuals were privy to. City Attorney Thomas Regan wraps up his second letter with this:

I urge you again to ask your client to restrain her actions and conduct herself appropriately and ask that her followers do as well. They can use Facebook and other social media to express themselves, but it is necessary that she immediately deescalate the direct attack and threats to police and telephone harassment.

There are several problems with this. First off, as noted above, Richard isn't making threats or "direct attacks," nor is she encouraging others to do so.

Second, and most importantly, how utterly condescending (and colossally stupid) for the city (via its attorney) to "allow" people to discuss this incident on "social media." Of course they can do that. And there's nothing the CPD can do about it. But they also have the right to seek the redress of grievances directly. If the CPD isn't enjoying this negative attention, then maybe it will think twice before using BS tactics to seize citizens' recordings.

Then again, maybe it won't.

Since her arrest last week, she said they have posted signs banning photography and videography in the station. As if a makeshift sign would trump the Constitution.

The city's attorney may be hoping two stern letters will "deescalate" the bombardment of calls to the PD -- a direct result of its own actions -- but it seems more likely that it will only get worse before it gets any better. As we saw earlier, some police departments are willing to bend criminal law to silence criticism, and from the looks of these letters, CPD may decide to become a member of that select group. It's already used a questionable criminal charge as justification for seizing Richard's cellphone and has taped up a sign that indicates it's in the business of making up rules on the spot. Charging someone with harassment or intimidation or assault or whatever would hardly be unexpected.

Filed Under: crowley police department, evidence, louisiana, mobile phones, police