Is there a constitutional right to put annoying signs on the back of your car?

George Washington's horse Did the Framers of the Constitution recognize a historically grounded fundamental right to have annoying signs on the back of your car?  Applying originalist and strict constructionist principles of constitutional interpretation, we ask: Did George Washington advertise his views on taxation on the rear end of his horse? Did Mary and Joseph flee to Egypt on a donkey whose hindquarters proclaimed “Baby on Board”? No? Well, that should settle it.

But shouldn’t we also consider penumbras, emanations and evolving standards of indecency? As Samuel Johnson famously remarked to Boswell, “Sir, I give not a farthing for what some total stranger chooseth to inscribe on the back of his conveyance. I know of no man, Sir, whose considered views upon a subject have been altered by the sight of contrary views emblazoned in such vulgar fashion.  A displeasing message scribbled thus serves only to proclaim to the World that the occupants of said conveyance are but fools and scallywags.”

Nevertheless, messages on custom license plates became a matter of Supreme concern last term.  What’s the difference, you may ask, between this bumper sticker, which is permitted:

don't blame me confederate flag

and this license plate, which is prohibited:

   except that one costs fifty cents and the other costs thousands of dollars?

The difference is of overwhelming constitutional significance, said the Supreme Court in Walker v.  Texas Division, Sons of Confederate Veterans (2015).  Custom license plates, they explain, are government speech, which the government can restrict in any way it wants.  “A person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. . . . That may well be because Texas’s license plate designs convey government agreement with the message displayed” (italics added).

Really? These plates (all real) convey messages endorsed by the Texas Legislature?  Eat junk food? Root for out-of-state sports teams? Prefer golfing to legislating?

auto.MightyFineBurgers auto.DrPepper     auto.OleMiss     auto.IndianaUniversity     

Here in New York, where it’s generally recognized that the Confederacy lost the war, the controversy wasn’t over Dixie flags but over a proposed anti-abortion custom plate. Children First Foundation v. Fiala (2d Cir. 2015). 

NYChooseLifePlate sm  The Second Circuit couldn’t bring itself to say with a straight face that license plates represent the Government’s viewpoint. Instead, the court upheld the ban on the controversial message by saying that license plates are merely revenue-raising, vehicle-identifying devices, not expressive activity to which the First Amendment applies. These (real plates) look pretty expressive to us:

Hibernian plate Old-Blue-Knights-MtrcleOld-Copshot-PsngrMLK license plate

On that note – Squawk is taking the summer off to write a detective story. We’ll say only that the hero is a defense attorney and the corpse is a prosecutor. We shall return.

Sherlock Squawk

Posted in First Amendment, Law, Law & Parody, Satirical cartoons | Tagged , , , , | 4 Comments

The 1st Amendment pinball machine

The First Amendment is simple: you can say anything you want unless the Government says you can’t. Confused by all that chin music about “viewpoint discrimination,” “limited public forum,” “time place and manner,” etc.?  Think of it as a pinball machine where the speech restriction is a ball shot into the playfield and flipped against a series of bumpers until it eventually dribbles out the exit slot. No fair to bang or tilt.First Amendment pinball 3

 

 

 

 

 

 

Posted in First Amendment, Humor, Law, Law & Parody, Satirical cartoons | 3 Comments

Can you be fired for calling your boss a f*cking moron?

Mr. Dithers  Can you be fired for calling your boss an insufferable blowfish? An uninformed cactus?  A fucking moron? Not necessarily, says the National Labor Relations Board. It depends.

We’ve recently been reconnoitering the unfamiliar territory of labor law in quest of the meaning of  free speech in the workplace.  We were astonished to discover a whole area of law that takes a realistic and not unsympathetic view of the temptation to lose your cool in the face of overbearing authority.  It was a refreshing getaway from our usual habitat where you can be thrown in jail for calling the judge a pompous barnacle and truth is no defense.

In fact, the NLRB has developed a whole jurisprudence of cussing the boss. We thought we’d share a few highlights. These are all real.

The boss announces that if employees don’t agree to the proposed contract, they’ll lose their retroactive pay.  Can they be fired for wearing buttons saying “STICK YOUR RETRO”? No, said the Board, because the buttons constitute “protected concerted activity” under the Labor Relations Act, meaning expressing shared concerns about the terms and conditions of the job. Southern California Edison Co.

Nor was the message so “obscene” as to forfeit that protection, unlike the sweatshirts worn by phone company employees during contract negotiations saying “MA BELL IS A CHEAP MOTHER,” which the Board declined to find amusing.  Southern Bell Telephone Co.  In contrast, the buttons conveyed a “non-obscene” message akin to “stick it in your ear.” It would have been different if they had said “STICK IT IN YOUR RETRO.”

Recognizing that disputes over working conditions often “engender ill feelings and strong responses,” and that the shop isn’t “polite society,” courts have given “some leeway for impulsive behavior.” Thor Power Tool Co.   This view comes from Supreme Court Justice Frankfurter who called such outbursts “a moment of animal exuberance.” Milk Wagon Drivers Union of Chicago (1941).  “Consarn it!” he would say to Justice Brandeis after a long day of oral argument. “There’s only so much a man can take of all this blankety-blank judicial restraint.” Unreported.

Labor law recognizes that an employee’s “opprobrious statements” may well have been provoked by the boss. In Plaza Auto Center, Inc., a manager repeatedly and maddeningly rebuffed a salesman’s questioning of the company’s commission policy, saying that if he didn’t like it he could go somewhere else. When the salesman finally called him “a fucking crook,” the Board found this to be protected concerted activity.

Labor law also recognizes that swearing is normal speech in some shops. A catering worker, reacting to being humiliated by the boss in front of the guests, Facebooked:  “Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” Pier Sixty, LLC.

The NLRB held this to be protected concerted activity because it was impulsive, “echoed longstanding complaints about management’s disrespectful treatment of employees,” and “sought redress through upcoming union elections.”  Taken in context, the slur on the boss’s family was simply an emphatic criticism of the man himself. The decision showed that “motherfucker” was practically a routine form of address in the kitchen, quoting an unappetizing exchange between the manager and the chef that would make anyone decide to go eat somewhere else.

The dissent nevertheless argued that the Facebook post was nothing but an “outrageous, individual griping episode,” and obviously not impulsive where the employee had “put in the time, thought, and coordination necessary to use capitalization and punctuation.” Yessiree, it takes a lot of time, thought and coordination to hold down that exclamation mark key!!!!!!!!!!!!!!!!!

In Datwyler Rubber and Plastics, Inc., employees protested the imposing of a 7-day workweek. Employee Moore told the manager, “God created the world in six days and rested on the seventh day,” and that the employees should also be permitted to rest on the seventh day. The manager answered that God had nothing to do with it.  Another employee protested, “God has everything to do with it, because if it weren’t for God, none of us would be here.”

Unable to answer this, the manager retorted that if Moore didn’t like it, she could turn in her badge and go flip burgers. Moore called the manager “a devil” and warned that Jesus Christ would punish him and Datwyler Rubber for the 7-day schedule.

The NLRB found that although this “outburst” could “reasonably be viewed as offensive,” it was clearly part of a discussion about working conditions and “unaccompanied by physical contact or threat of physical harm.” This seems to us exactly backwards.  When Moses told Pharaoh that God would inflict a plague of locusts if he didn’t free the Hebrew slaves, it was hardly “offensive,” but definitely a threat of physical harm. We would steer clear of Datwyler Rubber during a thunderstorm.

As for vituperating one’s colleagues, the same standards apply.  Calling a fellow employee “a brown-nosing suck-ass” when arguing over whether to unionize was found to be protected concerted activity. Traverse City Osteopathic Hospital.  On the other hand, a Facebook posting by a respiratory therapist that a co-worker’s habit of sucking his teeth was driving her so nuts that she wanted to smack him with a ventilator failed to qualify. Although this was arguably a complaint about working conditions, the therapist “was not even suggesting that the Employer should do anything about it.”

As our fellow-blogger Simple Justice would say, none of this is legal advice.  The main reason for not calling your boss a self-deluded toadstool is that it’s unlikely to inspire change. But if your animal exuberance is just too much – –  be sure you’re also engaging in protected concerted activity!!!!!!!!!!!!!!

Posted in Humor, Law, Law & Parody | Tagged , , , | 1 Comment

Justice Thomas endorses solitary confinement: it’s roomier than a coffin.

Solitary-confinement-is-torture-banner-by-Illinois-Coalition-Against-Torture-ICAT-0414

As the Supreme Court winds up the season with a bang and a whimper,  Justice Thomas has once again distinguished himself as The Big Mistake.

In Davis v. Ayala (US 2015), the majority affirmed a death sentence where the defense was excluded from the Batson hearing. The prosecutor was allowed to argue his “race-neutral” reasons for excluding all the black and Hispanic prospective jurors in an ex parte proceeding, on the ground that allowing the defense attorney to hear his reasons would tip off the prosecution strategy. Since there was no one to dispute the prosecutor’s reasons, they were obviously indisputable. What? You got a problem with that?

Justice Kennedy, although concurring in the result, took the opportunity to observe that Mr. Ayala has been in solitary confinement for the last 25 years. Meaning, most likely, that he was entombed “in a windowless cell no larger than a typical parking spot for 23 hours a day,” with little or no interaction with anyone for the remaining hour.  More than 25,000 prisoners in the federal system alone spend years in these conditions, “regardless of their conduct in prison.”  Don’t even think about prisoners in the state systems.

In the understatement of the year, Kennedy noted that “the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.” He sarcastically suggested that sentencing judges frankly tell defendants, “In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.”

Kennedy’s implied suggestion that punishment should be rational and humane was like a red flag in Justice Thomas’s face.  Lowering his head and pawing the ground, he retorted: “I write separately only to point out, in response to the separate opinion of Justice Kennedy, that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims. . . now rest. And given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.”

As if one had anything to do with the other. As if the dead were aware of the passage of time or the size of their coffins.  Underneath all the pretensions is a sadistic, superstitious mind.

invasionofthebodysnatchers

 

 

Posted in Law & Parody | Tagged , , | 3 Comments

NY lawmakers back frog as official state amphibian

FrogConsidering that the Official State Reptile of New York is the snapping turtle, it’s not surprising that the question of where to award the title of  Official State Amphibian should be the subject of vigorous debate in the final sessions of the Senate. By a single vote margin, the wood frog scored the honor over stiff competition from the bigmouthed salamander, the two-tongued toad and Governor Cuomo.

As usual, it was the upstate interests that carried the day.  Ms. Menna’s 4th grade class of Skaneateles, NY, railroaded the bill through, arguing  that the batrachian “freezes in the winter and reanimates in spring,” an ingratiating reference to the habits of  our lawmakers.

Senator Bonacic-R darkly hinted at an anti-development conspiracy. “When you elevate a species in the State of New York. . .  you empower the DEC with a weapon to use for a wood-frog zone. You can’t build here or you can’t do something there.” If his name sounds familiar, he’s the senator who predicted that the sky would fall down if Jenny Rivera were appointed to the Court of Appeals.

The wonder is how New York has managed to function for so long without an official amphibian. It’s no excuse that no one after fourth grade remembers exactly what an amphibian is.

Every visionary idea has its nay-sayers. Two senators from Queens sneered at the vote as “asinine” and at rana sylvatica as “extremely small” and “ugly.”  Let them be exiled to the wood-frog zone for re-education in species sensitivity!

Posted in Law & Parody, Satirical cartoons | Tagged , | 5 Comments

Thank you for riding with the criminal justice system

The NYC Transit Authority is bedeviling its riders with yet another fussy campaign to improve our morals and posture. This one features a race of red, green and grey globe-headed amputees being exhorted, “Dude, stop the spread” or, “Offer your seat to a pregnant person” (not to a pregnant frog?)

    Manspread Offer your seat to a pregnant person

 or, “Riding on the outside of the subway is dangerous” (Dude, that’s the point!).    

 Riding outside subway2

As if subway riders weren’t irritable enough, the MTA fans the flames with excited statistics about last year’s trash fires, or “a crowded subway is no excuse for unwanted sexual behavior.”

Unwanted sexual behavior

This has inspired us to launch our own campaign which we expect to be at least as effective:

Inflamed jury Inflammatory summations caused 273 wrongful convictions last year! Always take your trash with you or deposit it in trash receptacles.

Prosecutor hiding Brady

If you see exculpatory evidence, do not keep it to yourself!  Tell a defense attorney.

Judge shouting

A crowded docket is no excuse for unwanted judicial behavior.

Judge reading

Read the motions and briefs. Competence begins with you!

Posted in Criminal law, Humor, Law & Parody, Satirical cartoons | Tagged , , , | 6 Comments

Advising your client to waive future ineffective assistance claims

Waiver IACWhen the prosecutor offers your client a plea on condition that he waive any possible ineffective assistance claim against you, what should you do?  Why, just put a pen in his hand and show him where to sign, according to a recent ethics opinion by the NY State Bar Association.

But isn’t that a teeny bit of a conflict of interest? you ask. To advise your client to waive her constitutional right to effective assistance of counsel when you’re the counsel? Not at all! says the Ethics Committee. If you haven’t been ineffective, then you’re just giving your client good advice!

But ineffective assisters of counsel don’t know they’re ineffective. That’s why they’re ineffective!  They never got the memo about the immigration consequences of pleading guilty.  They didn’t realize they should have looked at the lab report or talked to that witness or figured out whether the statute of limitations bars prosecution of that 40-year old offense.

Scene: Courtroom.  

A.D.A. Tightskirt:  We’re offering a plea to 20 years on condition that the defendant waive his right to appeal anything whatsoever in any case past, present or future including ineffective assistance of counsel.

Client: (to his lawyer) 20 years just for drinking beer in front of my house? That don’t sound right to me.

Lawyer: Believe me, Mr. Jones, this is a fabulous deal.  You could get life without parole as a mandatory persistent felon if you’re convicted at trial.

Client: I’m not Jones, I’m Rodriguez! This is my first arrest!

Lawyer: Whatever. Sign here.

Judge: Sir! Has your attorney explained to you that a condition of pleading guilty is that you can’t challenge the effectiveness of his representation?

Client: You mean I have to take his word for it that he hasn’t been ineffective?

Judge: How dare you question your lawyer’s competence! Mr. Layback is a seasoned, experienced attorney who’s been coming before me for years and is deeply mindful of the importance of clearing my calendar. The reason he can tell you he’s not ineffective is that he isn’t ineffective. It’s only if he were ineffective that he would have to tell you he’s ineffective.

Client: Huh?

Judge: That’s exactly why you need to rely on Mr. Layback’s legal advice!  As an ignorant layperson, you can’t possibly be expected to understand the law.

 

 

Posted in Criminal law, Law & Parody, Satirical cartoons | Tagged | 3 Comments