Currently viewing the tag: "Reverses"
(Eugene Volokh)
The case is In re Marriage of Mendlowitz. The alleged slanders were an e-mail and a letter to the estranged wife’s business associates that seemed likely to interfere with her business relationships. They might indeed have led to a successful defamation lawsuit, and a lawsuit for interference with business relations. But a trial court judge went so far as to issue a domestic restraining order against such comments:
[Y]ou are disturbing the peace of the petitioner…. You have, by your own testimony, admitted to the defaming comments that you have made in these emails. And so therefore, the court is going to grant a restraining order for the next five years. You are not to contact [the wife], [her] employers, [her] potential employers in regard to [her] … You are not to contact any third parties in regard to [the wife], her reputation, her past acts.
This meant that any prohibited speech about his wife would be a crime. And because the order included boilerplate language ordering the estranged husband not to “harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements,” the federal ban on gun possession by people who are the targets of restraining orders kicked in. (See PDF pp. 61–65 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.)
Fortunately, the California Court of Appeal reversed the trial court’s decision, concluding that this sort of alleged defamation isn’t sufficient to justify issuing such an order. Unfortunately, for the nearly two years between the trial court decision and the appellate decision, defendant had been entirely deprived of his Second Amendment rights, and been subjected to a prior restraint in violation of his First Amendment rights.
(Eugene Volokh)
I’ve seen some recent decisions — usually trial court decisions — that enjoin a broad range of speech (not just libelous speech) because the judge thinks the defendant is wrongly badmouthing the plaintiff. I think such injunctions are generally unconstitutional prior restraints, unless they follow a trial on the merits in which the speech is found to be unprotected (e.g., libelous), and unless they are limited to speech that has been found to be unprotected. (For more on why I think such temporary injunctions are unconstitutional, though limited permanent injunctions after a full trial are allowed, see this article, which discusses intellectual property injunctions but which cites cases that deal with libel injunctions; see also this post on a recent Kentucky Supreme Court decision that reflects this distinction.) But such injunctions sometimes are nonetheless issued; see, for instance, this item from last Fall.
I was therefore pleased to see a trial court decision that rejected a request for such an injunction, in Cambridge Who’s Who Publishing, Inc. v. Sethi (Nassau Cty., N.Y., Sup. Ct. Jan. 25) — though I was not pleased to see that the court had earlier temporarily enjoined such speech (in my view, unconstitutionally) for two months. Here’s an excerpt (emphasis added):
Plaintiff Cambridge Who’s Who Publishing provides marketing and networking services to business professionals. On July 21, 2008, defendant Harsharan Sethi was hired by Cambridge as director of management information systems. At the time of his employment, Sethi signed an “employee covenants and non-disclosure agreement.” In the non-disclosure agreement, Sethi promised not to use confidential information of Cambridge, except in carrying out the business of the company. The company defines confidential information as including “client names, addresses, and credit card numbers.” Sethi was terminated by Cambridge on February 12, 2010.By order to show cause dated May 12, 2010, plaintiff moved for a preliminary injunction, restraining defendant from attempting to access plaintiff’s data base; contacting plaintiff’s “members,” i.e. its customers; utilizing plaintiff’s customers list; disclosing the customers’ personal information; making any statements about plaintiff that might interfere with its good will, including contacting plaintiff’s employees or vendors; and maintaining any “blog” or website concerning defendant’s former employment.
In support of the motion, plaintiff submitted a web page, allegedly posted by defendant at www.cambridgeregistryscam.com. The webpage states that, “You might be legally entitled [to] a full refund of any membership fee…that you were charged by Who’s Who businesses ! …Please stand by for…information on various management personnel…their backgrounds…their life styles…their prior run ins with [the] law, IRS….Also coming up:.. their threatening tactics, their harassment tactics….You are entitled to file complaints with your District Attorneys Offices and or Attorney General’s office….” Although it is unclear when the web page was first posted, it appears to have been viewed on May 11, 2010.
By order dated September 7, 2010, the court granted plaintiff’s motion for a preliminary injunction to the extent of enjoining defendant from soliciting any of plaintiff’s customers, or disclosing their names or personal information, during the pendency of the action. However, … the court denied the remainder of plaintiff’s motion for a preliminary injunction, including the request that defendant be restrained from making any defamatory statements concerning Cambridge …
By order to show cause dated November 23, 2010, plaintiff moves for leave to renew its motion for a preliminary injunction to the extent that the court declined to restrain defendant from making any oral or written statements concerning Cambridge, including posting any “blog” or website, concerning defendant’s former employment with the company. In support of the motion to renew, plaintiff submits certain allegedly defamatory statements, which were made after the court’s order, denying in part plaintiff’s request for a preliminary injunction. Plaintiff argues that disparagement of its business constitutes extraordinary circumstances which justify a prior restraint on speech. In the order to show cause dated November 23, 2010, the court granted a temporary restraining order, enjoining defendant from contacting plaintiff’s employees concerning his former employment, or making any statements that may interfere with plaintiff’s good will, including maintaining a website or blog, pending the determination of the motion….
[Among other documents], plaintiff submits a web page allegedly posted by defendant at www.whoswhoamongscammers.com. The web page has a headline which reads, “Did Your Who’s Who Loose Your Personal Information?????” Although the web page does not identify Cambridge by name, it recites the items of data which were lost, the fact that Who’s Who management was advised of the data loss, and their failure to report the loss to authorities. Defendant opposes plaintiff’s motion for leave to renew its motion for a preliminary injunction on the ground that defendant’s right of free speech has been violated.
The freedom of speech guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matter of public concern without previous restraint or fear of subsequent punishment. To safeguard this liberty, on an application for a preliminary injunction, restraining defendant’s speech on a matter of public concern, the court must focus on the objective content of the communication, rather than “amorphous considerations of intent and effect.” The court must “give the benefit of any doubt to protecting rather than stifling speech.”
The claimed data loss, involving social security numbers and credit card information, implicates the economic interests of a large number of people. Thus, the content of defendant’s communication is a matter of public concern, even though its intent and effect may have been to disparage plaintiff’s business, retaliate for defendant’s discharge, or shift responsibility for the data loss. Thus, the court must give the benefit of any doubt to protecting defendant’s right to free speech.
Plaintiff has a reasonable justification for not presenting the communications earlier because they were made subsequent to plaintiff’s original motion. However, defendant’s communications concerning the data loss are constitutionally protected, and plaintiff has not shown the extraordinary circumstances required for a preliminary injunction. Plaintiff’s motion for leave to renew its motion for a preliminary injunction, restraining defendant from communicating with plaintiff’s customers or law enforcement agencies concerning the data loss, is denied.
As protests against conservative attempts to strip public employees of their collective bargaining rights have unfolded in states across the nation, a slew of Republican governors have said they will not pursue similar policy steps to those championed by Gov. Scott Walker (R-WI). “That’s not our path,” said Gov. Rick Snyder (R-MI). “I and my administration fully intend to work with our employees and union partners in a collective fashion.” A spokesman for Gov. Tom Corbett (R-PA) added, “This is Pennsylvania, not Wisconsin. We’ve had Act 195 [the collective bargaining law] since 1970, and I anticipate that we will continue to have it.”
Earlier this week, it seemed that Gov. Rick Scott (R-FL) was also unwilling to challenge collective bargaining rights for his state’s employees. “My belief is as long as people know what they’re doing, collective bargaining is fine,” Scott said in a radio interview. However, during a different interview with Bloomberg Television that is scheduled to air this weekend, Scott took a completely different stance, saying “it’d be great” to get rid of the collective bargaining rights of Florida employees:
He said Florida would be better off if public employees couldn’t form unions and that it’s unfair to taxpayers that state workers don’t contribute to their pensions. While Florida’s constitution grants state workers the right to unionize and bargain for workplace rights, Scott said, “It’d be great to be able to change it.”
“Our state workers don’t pay for anything into their pension plan. And we can’t afford that — it’s not fair to taxpayers,” Scott said. “If you didn’t have collective bargaining, would it be better for the state? Absolutely.”
For one thing, as Tax.com’s David Cay Johnston laid out, the notion that Florida’s employees “don’t pay for anything” when it comes to their pensions is wrong: these employees have agreed to defer some of their compensation, and take it in the form of a pension rather than wages. For another, Gov. Mitch Daniels (R-IN) already stripped public employees of their collective bargaining rights, and even he couldn’t explain how it would help a state get into better fiscal shape. (Daniels also can’t quite pin down where he stands on the protest situation in his own state either.)
Scott already plans to pursue an agenda of corporate tax cuts paired with destructive spending reductions that will hurt low-income Floridians, gut the state’s health care system, and cause the loss of tens of thousands of jobs. And after a momentary fit of reason earlier in the week, he seems to have added union-busting to the list.
Yesterday, USA Today and Gallup released a new poll that found that a whopping 61 percent of Americans oppose efforts like those of Gov. Scott Walker (R-WI) to strip public sector unions of collective bargaining rights. The poll also found that only a third of Americans support such a policy, indicating that Walker is pandering to the far-right of the American electorate and is hardly representative of mainstream political thought in this country.
This morning, during a debate about the situation in Wisconsin and collective bargaining rights in general, the Fox News show Fox & Friends referenced the USA Today/Gallup poll. With incredible brazenness, the Fox hosts actually reversed the results of the poll in order to claim that two-thirds of Americans supported Wisconsin-style laws rather than opposed them.
During the discussion, Fox host Brian Kilmeade asked pro-labor guest Robert Zimmerman if President Obama was taking a “big risk” by opposing Walker’s law. Zimmerman responded by saying that Obama was speaking “for the mainstream of our country, and the mainstream of Republican governors who are not siding with Governor Walker.” Kilmeade responded by saying, “I think Gallup, a relatively mainstream poll, has a differing view. And here’s the question that was posed. Do you favor or disfavor of taking away collective bargaining when it comes to salaries for government workers. 66 percent in favor, 33 percent opposed, 9 percent up in the air.” Watch it:
Needless to say, it is hardly “fair and balanced,” as Fox News likes to deem itself, to take the results of a poll and simply reverse them when they do not go your way.
It’s worth pointing out that, Jim Glassman, the Bush Center director who appeared on the show to argue against collective bargaining, said right after the poll was shown that “many” states actually don’t have collective bargaining. The truth is that only five states do not have collective bargaining for public employees — Texas, Georgia, South Carolina, North Carolina, and Virginia. Those states rank 45th, 48th, 49th, 38th, and 34th, in average SAT/ACT scores, respectively. Wisconsin is 2nd.
Yesterday, USA Today and Gallup released a new poll that found that a whopping 61 percent of Americans oppose efforts like those of Gov. Scott Walker (R-WI) to strip public sector unions of collective bargaining rights. The poll also found that only a third of Americans support such a policy, indicating that Walker is pandering to the far-right of the American electorate and is hardly representative of mainstream political thought in this country.
This morning, during a debate about the situation in Wisconsin and collective bargaining rights in general, the Fox News show Fox & Friends referenced the USA Today/Gallup poll. With incredible brazenness, the Fox hosts actually reversed the results of the poll in order to claim that two-thirds of Americans supported Wisconsin-style laws rather than opposed them.
During the discussion, Fox host Brian Kilmeade asked pro-labor guest Robert Zimmerman if President Obama was taking a “big risk” by opposing Walker’s law. Zimmerman responded by saying that Obama was speaking “for the mainstream of our country, and the mainstream of Republican governors who are not siding with Governor Walker.” Kilmeade responded by saying, “I think Gallup, a relatively mainstream poll, has a differing view. And here’s the question that was posed. Do you favor or disfavor of taking away collective bargaining when it comes to salaries for government workers. 66 percent in favor, 33 percent opposed, 9 percent up in the air.” Watch it:
Needless to say, it is hardly “fair and balanced,” as Fox News likes to deem itself, to take the results of a poll and simply reverse them when they do not go your way.
It’s worth pointing out that, Jim Glassman, the Bush Center director who appeared on the show to argue against collective bargaining, said right after the poll was shown that “many” states actually don’t have collective bargaining. The truth is that only five states do not have collective bargaining for public employees — Texas, Georgia, South Carolina, North Carolina, and Virginia. Those states rank 45th, 48th, 49th, 38th, and 34th, in average SAT/ACT scores, respectively. Wisconsin is 2nd.
After a coalition of environmental groups threatened legal action, the State Department has reversed its decision and decided to comply with a Freedom of Information Act request for email communications between Hillary Clinton and a former campaign official.
Secretary of State Clinton is charged with approving or rejecting a plan to build the Keystone XL pipeline to carry tar sands oil from Alberta, Canada to the U.S. Gulf Coast. But the chief lobbyist for the company that owns that pipeline is Paul Elliott, formerly the Deputy National Campaign Director for her 2008 presidential campaign.
A coalition of groups opposed to the Keystone project submitted a FOIA request for any communications between Clinton’s office and Elliott regarding the pipeline project but the State Department rejected that request. Under threat of a federal lawsuit they would almost certainly have lost, the agency has now reversed itself and will turn over those communication records. The agency sent a letter to those groups last week saying they would start to process the request.
“I hope this move by the State Department is a sign of more transparency to come,” said Alex Moore, dirty fuels campaigner at Friends of the Earth, one of three watchdog groups that filed the FOIA request. “We are still waiting to see if the State Department indeed releases these documents, which will shed important light on whether it is oil lobbyists or the people this pipeline would endanger who truly have the agency’s ear.”
The Michigan Department of Community Health has announced it will advise local health departments using a controversial client acknowledgment form to change them.
“We believe advocates have raised some valid points. As such, we will be advising local health departments that if they are going to use client acknowledgment forms to advise clients of Michigan law – and there is nothing saying they must use such forms – they need to quote the law,” said Kelly Niebel, acting spokesperson for MDCH in an e-mail statement to Michigan Messenger. “It also is recommended that they have their respective legal counsel review any such forms prior to using them.”
Ingham County reviewed its documents in 2007 when similar concerns and complaints came to light. State health officials then said the documents were “unnecessary.” The officials there decided to stop using their form, called a “contract,” and instead have HIV counselors note that he or she informed the client of Michigan’s disclosure law. Informing a newly diagnosed HIV-positive person of the state law is a requirement of Michigan’s Public Health Act.
The forms have come under increasing scrutiny and criticism since Michigan Messenger reported on them Monday. Attorneys, experts and authorities on HIV disclosure and disability issues have said the documents are “concerning” and likely “illegal.” Civil rights officials announced they were looking at the documents for possible discrimination issues on Wednesday.
The forms came to light when they were released to Messenger in response to a Freedom of Information Act request from early January. Also included in the documents were a series of e-mails and a memo from April of 2008 from HIV/AIDS Prevention and Intervention Section (HAPIS) staff of MDCH questioning the legality of parts of the document. In response to those concerns, MDCH attorney Denise Chrysler emailed Bob Barrie in HAPIS to indicate the documents’ declaration that HIV positive people forever engage in protected sex for the remainder of their lives was legally justified.
In spite of e-mails and a memo stating, “We need a legal opinion abut the use of a form for HIV infected clients, and whether it violates,” parts of the Michigan Public Health Code, Niebel says the opinion from Chrysler is not a legal opinion.
“Apparently Denise Chrysler’s e-mail was in response to a telephone conversation as she indicated in her e-mail,” said Niebel. “Her opinion was not intended to be formal legal advice to any health department, including Macomb County, nor was it intended to present a legal position or interpretation of the department.”
Equality Michigan, an advocacy and education group dedicated to lesbian, gay, bisexual and transgender people, praised the announcement from the MDCH.
“The Michigan Department of Community Health should be applauded for recognizing an injustice and promptly addressing it. To do so takes courage and wisdom. Too often government digs its heels in and refuses to admit fault or change paths,” said Emily Dievendorf, policy director of Equality Michigan. “Equality depends on the kind of responsibility MDCH exhibited today. Even with this victory, Equality Michigan encourages individuals affected by the inaccuracies of current and past county health disclosure forms to come forward and report any wrongs that may now be righted.”
The group called for investigations by state and federal civil rights authorities Tuesday night, and Wednesday announced it was filing formal complaints with the Michigan Department of Civil Rights over the use o the documents. Dievendorf said the group intend to file the complaints in spite of the MDCH statement.
“We will continue to pursue the filing of complaints with the Michigan Department of Civil Rights in response to already identified individual cases of possible discrimination in Michigan counties,” said Dievendorf.
(CNN) - Following a spate of criticism over his plans to hold a private swearing-in ceremony, Ohio Gov.-elect John Kasich reversed course on Wednesday, announcing that the event - set for January 10 at 12:01 a.m. - will now be open to the media.
Kasich’s decision to make his and Lt. Gov.-elect Mary Taylor’s swearing-in ceremony private, as well as to restrict media access to other inauguration events, sparked immediate outrage, particularly from the Ohio Statehouse press corps, who took issue with being barred from the traditionally open events.
Columbus Dispatch reporter Jim Siegel, who also serves as the president of the Ohio Legislative Correspondents Association, issued a statement on Tuesday chiding the incoming governor, saying the “inauguration of our next governor should be fully open to the press, so the public can get a complete accounting of activities. We have not heard satisfactory reasons as to why some events have restricted press access.”
Kasich spokesman Rob Nichols said the decision to bar media access from the official swearing-in stemmed from concerns about space limitations in Kasich’s Columbus-area residence.
But on Wednesday, Kasich’s inaugural committee announced that the ceremony will now be held at the Statehouse in Columbus, with full access for credentialed media.
Siegel said the press corps is “pleased that the situation has been resolved and that full access will be granted.”
“It’s an official act, and not something that should be done outside of the view of the media,” Siegel said. “It wasn’t that we thought there would be some dramatic news event, but we believe it should be open as it has been in the past.”
A public ceremonial swearing-in will also take place later that morning in the Ohio Theater as previously planned, the committee said.
UPDATE: I just spoke with an Obama Administration official who said the new proposed rule would be published at 4:15pm today in the Federal Register. This will allow for comment. He also confirmed to me that the advance care planning provision remains in the initial Welcome to Medicare visit with a physician. That provision was included by via statute during the Bush Administration in 2008. In other words, all of the bluster from social conservatives is a bit late. The Administration official indicated that the rule had been removed in order to give the public opportunity to indicate their views on the issue. He noted the misrepresentation of the issue and the Administration did not want the political process to jeopardize the existing benefits.
….
Annual voluntary advance care planning, we hardly knew ya.
Last week, I defended a new Medicare regulation which would have added advance end-of-life care planning to the definition of what could take place during the new Annual Wellness Visits authorized by the Affordable Care Act (ACA), otherwise known as ObamaCare. Some conservatives demonized this rule as the return of “death panels” in an effort to frighten voters. I don’t know whether or not the public was frightened, but according to the New York Times, these false characterizations scared the administration so much that the rule is being deleted.
And this is sad because this is case where spin and misinformation won out over fact and good sense. The truth is the Medicare regulation did not create a new reimbursable benefit and did not bring back “death panels.” The regulation added one voluntary component to the annual wellness visit - a discussion of the patients’ wishes if they become unable to express themselves during illness or injury. Physicians were not going to be paid separately for this conversation; they will still do the annual wellness visit and focus on many other issues of prevention and health maintenance. And here is the kicker, physicians can still bring up advance care planning if they want to.
Social conservatives who ranted about government involvement in end-of-life decision either had not read the regulation or were intentionally misleading people.
But now the administration without attribution has shifted course and it is quite unclear why.
Since yesterday morning, I have been seeking answers from the HHS press office and will comment more as I get more information.
Here is an AP piece on the matter…
Cable operatorwon’t have to deliver the regional sports net to its subs in North…
B&C - Breaking News
Cable operatorwon’t have to deliver the regional sports net to its subs in North…
B&C - Breaking News
Competence.
Immediately after James Clapper professed ignorance of the arrests in the UK of a dozen suspected terrorists during an ABC News interview, the Obama administration denied that Clapper hadn’t been briefed on the news. They blamed Diane Sawyer for asking an “ambiguous” question. However, as Jake Tapper reports, the White House admitted this morning that [...]
Obama administration reverses plan for Gulf oil drilling
Top story: The Obama administration announced on Wednesday that it would maintain a ban on offshore oil drilling in the eastern Gulf of Mexico and off the Atlantic Coast for the next five years. The new plan marks a reversal of President Obama’s energy policy announced in March, and sets up a clash with Republicans and business interests.
Interior Secretary Ken Salazar explained the policy shift was precipitated by the Deepwater Horizon oil spill, which leaked almost 5 million barrels of oil into the Gulf of Mexico this summer. The administration’s plan, he explained, was to "focus and expand our critical resources on areas that are currently active" rather than expand energy exploration into new regions. He did leave the door open to a change in the policy regarding the eastern Gulf of Mexico, which is still subject to a congressional moratorium on drilling, saying that the administration would be willing to discuss energy exploration in the region as "part of a balanced package that includes other energy priorities of the president."
The new plan also delays two scheduled lease sales for energy exploration in the central and western Gulf of Mexico until the end of next year, at the earliest. Salazar said that the Interior Department would also conduct new research on the environmental impact of drilling off the coast of Alaska, which could also delay plans to drill there.
Assange wanted by Swedish court: Sweden’s Supreme Court upheld an arrest warrant against WikiLeaks founder Julian Assange on Thursday in connection to rape and sexual molestation charges leveled against him by two Swedish women.
Europe
- Russian Prime Minister Vladimir Putin said that U.S. Defense Secretary Robert Gates had been "deeply misled" about the political climate in Russia.
- Turkish Prime Minister Recep Tayyip Erdogan lashed out against allegations, made in the WikiLeaks cables, that he had money stashed away in eight Swiss bank accounts.
- Vatican officials said that Pope Benedict XVI would enthusiastically use an electric popemobile.
Americas
- Former Secretary of State Colin Powell called for the ratification of the New START treaty.
- WikiLeaks cables reveal that U.S. diplomats expressed concern over the high level of anti-Americanism in Canada.
- The Cuban government is encouraging a public debate over plans to reform its socialist economy.
Africa
- An opposition leader’s office was attacked in the Ivory Coast, killing four.
- Nigeria plans to charge former Vice President Dick Cheney over a bribery scandal involving Halliburton.
- Nigerian soldiers raided three militant camps in the Niger Delta region.
Middle East
- Egypt’s Muslim Brotherhood withdrew from the second round of the country’s elections.
- Hamas Prime Minister Ismail Haniyeh rejected the suggestion that al Qaeda operated in the Gaza Strip.
- Donors at a conference in Kuwait pledged $ 3.55 billion to develop eastern Sudan.
Asia
- Malaysia expressed concern that international drug rings are using Facebook to recruit young Malaysian women as drug smugglers.
- A U.S. diplomat wrote that the president of Sri Lanka bore responsibility for a 2009 massacre of ethnic Tamils.
- A Chinese official said that his country’s relationship with North Korea had survived "international tempests."
JUAN BARRETO/AFP/Getty Images
