State Supreme Court: Ticketed MSU Student Cannot be Charged

Story first reported from Detroit Free Press

LANSING -- A Michigan State University ordinance that led to the conviction of a student who confronted a parking employee over a ticket was ruled unconstitutional Friday by the state Supreme Court.

In the 5-2 decision, the court said that the ordinance "criminalizes a substantial amount of constitutionally protected speech."

The case stems from a 2008 incident in a campus parking ramp. Jared Rapp's Land Rover was ticketed for parking in a space with an expired meter, but Rapp said the meter hadn't yet expired.

Rapp, who has since graduated with a law degree and now is a practicing attorney in Illinois, approached the parking enforcement employee, Ricardo Rego, and demanded that Rego tell him his name, but Rego refused. Rego said he believed Rapp was acting in an aggressive manner, according to court documents. Rapp also stood outside Rego's pickup and took photographs of him with a cell phone.

The ticket eventually was dismissed. But a jury in 54B District Court convicted Rapp of violating a university ordinance that says, "No person shall disrupt the normal activity" of a university employee in completing an assigned task.

The high court's majority opinion said the ordinance's language allows it to be enforced against anyone.

"The MSU ordinance could be violated numerous times throughout any given day, given that there are seemingly infinite ways in which someone might 'disrupt' another who is engaged in an 'activity' for or with MSU," Justice Diane Hathaway said in writing for the majority.

Justices Brian Zahra and Stephen Markman dissented, saying they were not convinced that the ordinance presented "a realistic danger of significantly compromising First Amendment freedoms."

Rapp's attorney, Nick Bostic, has said that Rapp -- who had served on a committee that addressed parking issues -- knew that when tickets were challenged, the university would not necessarily send the employee who wrote the ticket to the hearing. The university, Bostic said, was not disclosing that practice. That's why Rapp was adamant about learning Rego's name

For more national and worldwide Business News, visit the Peak News Room blog.

For more local and state of Michigan Business News, visit the Michigan Business News  blog.

For more Health News, visit the Healthcare and Medical News blog.

For more Electronics News, visit the Electronics America blog.

For more Real Estate News, visit the Commercial and Residential Real Estate blog.

For more Law News, visit the Nation of Law blog.

For more Advertising News, visit the Advertising, Marketing and Media blog.

For more Environmental News, visit the Environmental Responsibility News blog.

For information on website optimization or for the latest SEO News, visit the SEO Done Right blog.

College Violates First Amendment Rights

Story first appeared in USA Today.

All the plaintiff wanted to do was share his Christian beliefs one on one with students at Tennessee Tech in Cookeville, according to Nashville Civil Rights Lawyers.

Instead, police asked him to leave campus because he didn't give the university notice two weeks ahead of time, and he didn't disclose what he wanted to talk about.

Now he has won a case before the 6th U.S. Circuit Court of Appeals, which ruled Tennessee Tech's policy was unreasonable and violated the First Amendment.

The decision could have implications for public colleges and universities throughout the region as officials balance public access with the need to keep students safe.

In light of the decision, public colleges and universities throughout the state would be wise to review their policies, said an executive director of the Nashville-based First Amendment Center.

People have a right to speak on public property, and the government can intrude only in the narrowest of ways.

Any time government asks us in advance to specify the kind of speech we are engaged in, that raises a warning flag for the courts. Government ought not to be in the business of saying what you can and can't say.

Tennessee Tech's associate vice president for communications, said the university could not comment on the case since it was sent back to the trial court. The lawsuit is seeking unspecified damages. Attorneys for the Tennessee Board of Regents are reviewing the federal appeals court decision.

The Tennessee Board of Regents— which oversees 46 institutions including Tennessee Tech — has adopted an updated campus-use policy that takes effect June 1. The policy reduces the notice period to five days, but a spokeswoman said it was in the works long before the appeals court ruling.

For the plaintiff, he hasn't been back to Tennessee Tech since he was there three years ago. He fears arrest, according to court documents.
He filed the lawsuit because he believes university officials used their open-ended discretion to discriminate against his particular message.

All he wanted to do, according to court records, was tell students about the hope that he believes Jesus Christ offers for humanity.

Sharing a message

The plaintiff travels to universities in the southeastern region and along the Atlantic coast, said a Memphis-based attorney and senior counsel at the Center for Religious Expression.

Over two days, he was bounced from one official to another as he sought permission to speak to Tennessee Tech students.

On April 6, 2009, he called Tennessee Tech about visiting the campus to share his message. He was told to stop by the student information office when he arrived, according to court records. A 14-day notice period was not mentioned.

The next day, he and a friend arrived and on their way to the office began speaking with students on the south patio, a pedestrian mall-like area where students gather near the University Center.

Once inside, a university official told him he could speak only on the north patio. There were fewer people and no tables and chairs there.

When he asked to see the campus policy limiting him to the north patio, the official became agitated and threatened to call university police, court records show.

After talking things over with his friend, the plaintiff went back inside the University Center. This time, he spoke with the dean of student affairs. He explained why the north patio wouldn't work. The south patio was better, and he wouldn't be a disruption.

While waiting for the dean to check university policy, he went back outside and continued to speak with students. A few minutes later, according to the court record, a university police officer asked him to leave or face arrest for trespassing.

On the second day, he again spoke to the dean of student affairs, this time by telephone. He learned he had to submit an application two weeks in advance. He believed that was too burdensome.

Instead, the plaintiff went to a sidewalk he thought was off Tennessee Tech's campus. About 15 minutes later, the dean of student affairs approached and warned McGlone he could not speak there without university permission.

Lawsuit filed

In March 2010, the plaintiff sued the university, arguing Tennessee Tech's actions over those two days and its campus-use policy violated his First Amendment rights.

The policy requires 14 business days' notice if someone wants to come onto campus. Applicants must provide information on a program's purpose and whether they will distribute literature.

In his lawsuit, he argued that he often likes to speak on the news of the day and the notice period was burdensome. He did not want to disclose his topics for fear it could be used to discriminate against him, records show.

The plaintiff lost at the trial court, which ruled he was not harmed by the university's actions and therefore could not sue. But he won a victory on appeal.

The federal appeals court, in its April 23 decision, said the desire to share his beliefs is protected First Amendment activity and the open areas of Tennessee Tech's campus are public forums.

When deciding to allow people on campus, the policies must not grant overly broad licensing discretion to government officials, the court said.

The appeals court said the two-week notice period is unreasonable, far longer than other timeframes upheld by federal courts.

Public institutions cannot impose overly broad, burdensome restrictions on non-disruptive speech, he said. Passing out religious literature on a sidewalk is quintessential public free speech.


For more law related news, visit the Nation of Law blog.
For national and worldwide related business news, visit the Peak News Room blog.
For local and Michigan business related news, visit the Michigan Business News blog.
For healthcare and medical related news, visit the Healthcare and Medical blog.
For real estate and home related news, visit the  Commercial and Residential Real Estate blog.
For technology and electronics related news, visit the Electronics America blog.
For organic SEO and web optimization related news, visit the SEO Done Right blog.

Marine Exercises Free Speech

Story first appeared in timesunion.com.

CAMP PENDLETON, Calif. (AP) — A Marine who criticized the President on his Facebook page has committed misconduct and should be dismissed, a military board recommended late Thursday.  A San Diego Civil Rights Lawyer could become involved in the case based on First Amendment rights.

The Marine Corps administrative board made the decision after a daylong hearing at Camp Pendleton for an accused Marine Sergeant.

The board also recommended that the Marine be given an other-then-honorable discharge. That would mean he would lose his benefits and would not be allowed on any military base.

The board's recommendations go to a general who will either accept or deny them. If the general disagrees with the board, the case could go to the secretary of the Navy.

The Sergeant's lawyers argued that the 9-year Marine, whose service was to end in four months, was expressing his personal views and exercising his First Amendment rights.

During the hearing, the prosecutor said that the Marine went as far as superimposing images of the President's face on a poster for the movie "Jackass."

The prosecutor argued that the behavior repeatedly violated Pentagon policy that limits the free speech rights of service members, and said he should be dismissed after ignoring warnings from his superiors about his postings.

The government submitted screen grabs of the postings on one Facebook page he created called Armed Forces Tea Party, which the prosecutor said included the image of the President on the "Jackass" movie poster. The Sergeant also superimposed the President's image on a poster for "The Incredibles" movie that he changed to "The Horribles," the prosecutor said.

The prosecutor also said anti-Presidential comments by the Marine that were posted on a Facebook page used by Marine meteorologists were prejudicial to good order and discipline, and could have influenced junior Marines.

The Sergeant's security clearance was taken away and he has no future in the Marine Corps because he can't do his job without that clearance.

During the hearing prosecutors were trying to dredge up any damaging information they could against the Marine.

The Sergeant's attorney expressed after the hearing that he hoped that the recommendation would be rejected by the general, saying the case will go forward. The military has had a policy since the Civil War limiting the free speech of service members, including criticism of the commander in chief.

Pentagon directives say military personnel in uniform cannot sponsor a political club; participate in any TV or radio program or group discussion that advocates for or against a political party, candidate or cause; or speak at any event promoting a political movement.

Commissioned officers also may not use contemptuous words against senior officials.
Backed by a team of lawyers and congressmen, the Marine has said he is fighting for his constitutional rights and should be allowed to stay in the military. His lawyers and the American Civil Liberties Union contend his views are protected by the First Amendment.

The Sergeant has said his opinions are his own and has put a disclaimer on his Facebook page saying so. His attorneys argued service members have a right to voice their opinions as long as they do not appear to be presenting their views as being endorsed by the military. They say the Pentagon policy is vague and military officials do not understand it.

The Marine Corps has said it decided to take administrative action after Stein declared on Facebook that he would not follow orders from Obama and later clarified that statement saying he would not follow unlawful orders.

The Sergeant could face other-than-honorable discharge while seeing his rank reduced to lance corporal and losing his benefits. The nine-year veteran was set to finish his service in four months.

He said he was removed from his job at the Marine Corps Recruiting Depot in San Diego last month and given a desk job with no access to computers.

A former Marine who is also a California House Representative, wrote a letter to the commanding officer stating the sergeant should not face dismissal for an opinion shared by a majority of Marines. It was stated that he was referring to the statement that he would not obey unlawful orders.

The Sergeant said his statement about the President was part of an online debate about NATO allowing U.S. troops to be tried for the Quran burnings in Afghanistan.

In that context, he said, he was stating that he would not follow orders from the president if it involved detaining U.S. citizens, disarming them or doing anything else that he believes would violate their constitutional rights.

For more law related news, visit the Nation of Law blog.

When Online Gripes are met with Lawsuits

NY Times

Justin Kurtz with his car, which was towed from his apartment complex parking lot near Western Michigan University.

After a towing company hauled Justin Kurtz’s car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.

Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.” Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the towing company.

T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.

Web sites like Facebook, Twitter and Yelp have given individuals a global platform on which to air their grievances with companies. But legal experts say the soaring popularity of such sites has also given rise to more cases like Mr. Kurtz’s, in which a business sues an individual for posting critical comments online.

The towing company’s lawyer said it was justified in towing Mr. Kurtz’s car because the permit was not visible, and that the Facebook page is costing them business and had unfairly damaged the company’s reputation.

Some first amendment lawyers see the case differently. They consider the lawsuit an example of the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or Slapp.

The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed — most do not — but rather to intimidate critics who are inclined to back down when confronted with the prospect of a long, expensive court battle.

“I didn’t do anything wrong,” said Mr. Kurtz, who recently finished his junior year at Western Michigan University. “The only thing I posted is what happened to me.”

Many states have anti-Slapp laws, and Congress is considering legislation to make it harder to file a Slapp. The bill, sponsored by Representatives Steve Cohen, Democrat of Tennessee, and Charles Gonzalez, Democrat of Texas, would create a federal anti-Slapp law, modeled largely on California’s statute.

Because state laws vary in scope, many suits are still filed every year, according to legal experts. Now, with people musing publicly online and businesses feeling defenseless against these critics, the debate over Slapps is shifting to the Web.

“We are beyond the low-tech era of people getting Slapped because of letters they wrote to politicians or testimony they gave at a city council meeting,” said George W. Pring, a University of Denver law professor who co-wrote the 1996 book, “Slapps: Getting Sued For Speaking Out.”

Marc Randazza, a first amendment lawyer who has defended clients against Slapps stemming from online comments, said he helped one client avoid a lawsuit last year after the client, Thomas Alascio, posted negative remarks about a Florida car dealership on his Twitter account.

“There is not a worse dealership on the planet,” read one tweet, which also named the dealership.

The dealership threatened to sue Mr. Alascio if he did not remove the tweets. Mr. Randazza responded in a letter that while Mr. Alascio admitted the dealership might not be the worst in the world, his comments constituted protected speech because they were his opinion.

While the dealership did not sue, that outcome is unusual, said Mr. Randazza, who conceded that sometimes the most pragmatic approach for a Slapp defendant is to take back the offending comments in lieu of a lawsuit.

In the past, Mr. Randazza said, if you criticized a business while standing around in a bar, it went “no further than the sound of your voice.”

Do that now, however, and “there’s a potentially permanent record of it as soon as you hit ‘publish’ on the computer,” he said. “It goes global within minutes.”

Laurence Wilson, general counsel for the user review site Yelp, said a handful of lawsuits in recent years had been filed against people who posted critical reviews on the site, including a San Francisco chiropractor who sued a former patient in 2008 over a negative review about a billing dispute. The suit was settled before going to court.

“Businesses, unfortunately, have a greater incentive to remove a negative review than the reviewer has in writing the review in the first place,” Mr. Wilson said.

Recognizing that lawsuits can bring more unwanted attention, one organization has taken a different tack. The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.

Dr. Jeffrey Segal, chief executive of Medical Justice, said about half of the group’s 2,500 members use the agreement.

“I, like everyone else, like to hear two sides of the story,” he said. “The problem is that physicians are foreclosed from ever responding because of state and federal privacy laws. In the rare circumstance that a posting is false, fictional or fraudulent, the doctor now has the tool to get that post taken down.”

The federal bill, in the House Subcommittee on Courts and Competition Policy, would enable a defendant who believes he is being sued for speaking out or petitioning on a public matter to seek to have the lawsuit dismissed.

“Just as petition and free speech rights are so important that they require specific constitutional protections, they are also important enough to justify uniform national protections against Slapps,” said Mark Goldowitz, director of the California Anti-Slapp Project, which helped draft the bill.

Under the proposed federal law, if a case is dismissed for being a Slapp, the plaintiff would have to pay the defendant’s legal fees. Mr. Randazza would not disclose specifics on the legal fees he has charged his clients, but he said the cost of defending a single Slapp suit “could easily wipe out the average person’s savings before the case is half done.”

Currently, 27 states have anti-Slapp laws, and in two — Colorado and West Virginia — the judiciary has adopted a system to protect against such suits. But the federal legislation would both create a law in states that do not have one and offer additional protections in those that already do, Mr. Goldowitz said.

In Michigan, which does not have an anti-Slapp measure, Mr. Kurtz’s legal battle has made him a local celebrity. His Facebook page has now grown to more than 12,000 members.

“This case raises interesting questions,” the towing company’s lawyer, Richard Burnham, said. “What are the rights to free speech? And even if what he said is false, which I am convinced, is his conduct the proximate cause of our loss?”

On April 30, Mr. Kurtz and his lawyers asked a judge in Kalamazoo to dismiss the suit by T&J, which has received a failing grade from the local better business bureau for complaints over towing legally parked cars. Mr. Kurtz is also countersuing, claiming that T&J is abusing the legal process.

“There’s no reason I should have to shut up because some guy doesn’t want his dirty laundry out,” Mr. Kurtz said. “It’s the power of the Internet, man.”