Updates – May 17

Updating a few of the earlier stories covered around here:

  • Maybe it’s not so gay after all: Rebekah Rice, the California high school student who sued her school after they disciplined her for saying “That’s so gay,” has lost her lawsuit.

    “All of us have probably felt at some time that we were unfairly punished by a callous teacher, or picked on and teased by boorish and uncaring bullies. Unfortunately, this is part of what teenagers endure in becoming adults,” the judge wrote in a 20-page ruling. “The law, with all its majesty and might, is simply too crude and imprecise an instrument to satisfactorily soothe deeply hurt feelings.”

    Moreover, the judge picked up on the same irony we noted when we first covered the story:

    “If the Rice family had not told everyone that Rebekah had been given a referral for saying ‘That’s so gay’ then no one else would have know it either, and she would not have been referred to as the ‘That’s so gay girl,'” the judge wrote.

    (Update to the update: Matthew Heller has the opinion.)

  • Contrary to what we had speculated, it appears that Pants Judge Roy Pearson still has a job and may continue to do so. According to an unnamed D.C. official, and exemplifying the attitude with which the tort reform movement is fighting, “I don’t think it’s appropriate not to reappoint someone just because they file a lawsuit. You can’t retaliate against someone for exercising their constitutional, First Amendment right to file a lawsuit to vindicate their rights.” (No, but you can retaliate against someone for filing a frivolous lawsuit.) Meanwhile, as a face-saving publicity stunt, the American Trial Lawyers Association filed an ethics complaint against Pearson; really, Pearson isn’t doing anything that ATLA doesn’t endorse in other situations.
  • Remember Ted and Mary Roberts, the husband-and-wife team of San Antonio lawyers who hatched a blackmail scheme in which the wife had sex with married men and the husband threatened to sue them unless they paid him to keep quiet? (Ted’s been convicted; Mary is awaiting trial.) The bankruptcy trustee, acting on behalf of their estate, had sued the local San Antonio Express News for violating their privacy by reporting on their scheme; Howard Bashman reports that the Fifth Circuit affirmed dismissal of the lawsuit by a lower court. So the newspaper won a complete legal victory — but truthfully reporting on a criminal scheme by prominent lawyers nevertheless must have cost them six figures’ worth of legal expenses.
  • O.J. Simpson will not be suing the Kentucky steakhouse that wouldn’t serve him. His lawyer — the one who rushed to announce that O.J. was a victim and that the steakhouse “screwed with the wrong guy” — now tries to blame the owner for “using the episode for publicity.” (Originally, May 10.)
  • The bogus Equal vs. Splenda unfair competition lawsuit (Mar. 8) over Splenda’s “Made From Sugar, So It Tastes Like Sugar” slogan settled on undisclosed terms, moments before a jury announced its verdict. Although we don’t know the terms of the settlement, it shouldn’t be too hard to figure out the non-monetary part: just check whether Splenda changes its advertising.


  • While the jury did not announce a verdict in the Splenda suit, they did ask for a calculator to compute damages, which was a very strong indicator of a finding of liability, which no doubt influenced the settlement negotiations.

  • So let me get this straight. A girl is teased for being a Mormon, and the school does nothing, she responds, and is punished–the parents complain about the double-standard, and it’s their fault. Sorry, but this is crap.

    Change “Mormon” with black or Muslim or Hispanic, and think about how this case comes out.

  • SPO – so very true.

    If I recall correctly, the suit by the girl’s family was a bit over-reaching, though, which may not have helped any.

  • Roy Pearson, the Administrative Law Judge who sued for $65 million over a lost pair of pants, CAN be fired, and could be fired even if his suit wasn’t frivolous.

    Under the Supreme Court’s decisions in Connick and Pickering, public employees’ free-speech rights are more limited than that of the public generally. They can be disciplined even for otherwise protected speech that is petty, disruptive, or undermines the employer’s mission.

    That’s true for free-speech, and it’s true for freedom-of-petition (the branch of the First Amendment that applies to lawsuits) as well.

    As the Ninth Circuit explained in Lytle v. Wondrash (1999), public employees can be fired EITHER if their lawsuit was so petty that it didn’t involve a matter of public concern, OR if their lawsuit “adversely affected [an] interest of the [public
    employer, such as] promoting efficient delivery of public services.”

    The latter is true here (and perhaps the former as well). Pearson’s ridiculous and overreaching lawsuit has undermined confidence in the legal system and the fairness of Washington, D.C.’s administrative law judges in particular.

    Thus, the unnamed D.C. official was not well-versed in the law when (s)he said, “I don’t think it’s appropriate not to reappoint someone just because they file a lawsuit. You can’t retaliate against someone for exercising their constitutional, First Amendment right to file a lawsuit to vindicate their rights.”

    Yes, you can, when the lawsuit is like Pearson’s.

  • I strongly suspect that DC is trying to negotiate a severance package with Pearson that would be cheaper than defending a lawsuit; it’s not like he isn’t going to sue if he gets fired, and DC employment law is convoluted enough that Pearson, while not likely to prevail, could certainly make it expensive for DC taxpayers.