Cyrus Sanai tells Patterico that his triggering an investigation of Judge Alex Kozinski’s web site is all “part of a litigation strategy” but does not reveal what the other two steps of his three-step strategy is, or more insight into his strategic genius.
The furor over the Kozinski web site pseudo-scandal over what Wonkette calls “the sort of naughtiness you’d find in the dirty birthday cards section at Spencer Gifts” has caused Judge Alex Kozinski to recuse himself from the obscenity trial, resulting in a mistrial. Kozinski is known for his ethical rectitude, which is perhaps why he did so, but one wishes that he didn’t permit the appalling LA Times coverage to create a perception of a perception of a bias, much less agree that that provides grounds for recusal. But with some implausibly calling for his resignation, discretion is perhaps the better part of valor. Still, as Jesse Walker notes, “There has been no shortage of free-speech trials in which the presiding judges had a moral objection to essentially innocuous material. I don’t see any reason why such a case shouldn’t be heard by a jurist with a history of tolerance.” And one wishes that the conservatives calling for Kozinski’s resignation would use that powder for Ninth Circuit judges who act ultra vires rather than for the jokes judges share in their own time.
The Patterico blog has details of some of the coarse humor that was available on Judge Alex Kozinski’s website. Kozinski can be criticized for indiscretion in failing to realize that his website was publicly accessible, and opening himself up to this politically-motivated silliness, but I fail to see why a judge’s e-mail habits should be a scandal. Yes, Kozinski apparently has an immature sense of humor, but we already knew that.
Of more interest is that the attorney peddling this, Cyrus Sanai, has been targeting Kozinski for years. Perhaps because of this Recorder article of September 23, 2005, responding to a Sanai op-ed criticizing the Ninth Circuit, and written by Kozinski:
It looks as if, barring intervention by the U.S. Supreme Court, serial ADA litigant Jarek Molski and his lawyer Thomas Frankovich, longtime Overlawyered favorites both, won’t be filing any more accessibility lawsuits in California’s populous Central District. The Ninth Circuit’s decision not to disturb an order to that effect by the late Judge Edward Rafeedie, however, came by a surprisingly narrow margin, with nine judges dissenting. Among them, Judge Marsha Berzon said Rafeedie should not have acted unilaterally to bar the two from suing throughout the district, while Alex Kozinski went so far as to maintain that Rafeedie had failed to offer evidence in suggesting “that Molski is a liar and a bit of a thief”. The majority of judges, however — and the Ninth is among the last circuits anyone would accuse of an excessive wish to shut down litigation — disagreed. (Dan Levine, “9th Circuit Judges Blast Order Barring ADA Lawyer”, The Recorder, Apr. 9). One final bit from the account in the Recorder might cause the reader’s jaw to drop open, as it did mine:
Rafeedie died of cancer late last month, but Frankovich still holds a grudge.
“What he did is morally reprehensible,” the attorney said Monday. “Acting morally reprehensible creates bad karma, and sometimes you have to pay the piper for bad karma.”
In other news of vexatious California litigants:
For years, self-described public-interest litigator Burton Wolfe has bragged that he was one of the few people to get off the state’s so-called vexatious litigant list for self-represented plaintiffs who file frivolous lawsuits. Those who are put on the list can file “pro per,” or do-it-yourself, lawsuits only with a judge’s permission. But after enjoying a few years off the blacklist, the 75-year-old Wolfe has sued his way back onto the roster. … [His name was restored to the list after] he sued the San Francisco Food Bank and America’s Second Harvest for setting up what he calls a food “racket” in the privately owned low-income senior-housing Eastern Park Apartments where he lives.
(Lauren Smiley, “Vexatious Litigant Burton Wolfe Fighting Eviction After Threatening More Lawsuits”, San Francisco Weekly, Feb. 20). Perhaps the most celebrated of modern San Francisco’s vexatious litigants is Patricia A. McColm, who has been profiled in a number of news stories including Ken Garcia, “Woman who sues at drop of hat may get hers”, San Francisco Chronicle, June 6, 2000, reprinted at Forensic Psychiatric Associates site. Incidentally, the British court system is thoughtful enough to post its list of vexatious litigants online, an obvious aid to persons who might find themselves the target of threatened suits by persons on the list. But although the California courts have a webpage discussing the fact of their having a list, I could find no sign that they had posted the list itself online. Have any U.S. states (or Canadian provinces, etc.) done so?
- Ninth Circuit, Kozinski, J., rules 8-3 that Roommates.com can be found to have violated fair housing law by asking users to sort themselves according to their wish to room with males or other protected groups; the court distinguished the Craigslist cases [L.A. Times, Volokh, Drum]
- Class-action claim: Apple says its 20-inch iMac displays millions of colors but the true number is a mere 262,144, the others being simulated [WaPo]
- U.K.: compulsive gambler loses $2 million suit against his bookmakers, who are awarded hefty costs under loser-pays rule [BBC first, second, third, fourth stories]
- Pittsburgh couple sue Google saying its Street Views invades their privacy by including pics of their house [The Smoking Gun via WSJ law blog]
- U.S. labor unions keep going to International Labour Organization trying to get current federal ground rules on union organizing declared in violation of international law [PoL]
- Illinois Supreme Court reverses $2 million jury award to woman who sued her fiance’s parents for not warning her he had AIDS [Chicago Tribune]
- Italian family “preparing to sue the previous owners of their house for not telling them it was haunted”; perhaps most famous such case was in Nyack, N.Y. [Ananova, Cleverly]
- Per their hired expert, Kentucky lawyers charged with fen-phen settlement fraud “relied heavily on the advice of famed trial lawyer Stan Chesley in the handling of” the $200 million deal [Lexington Herald-Leader]
- Actor Hal Holbrook of Mark Twain fame doesn’t think much of those local anti-tobacco ordinances that ban smoking on stage even when needed for dramatic effect [Bruce Ramsey, Seattle Times]
- Six U.S. cities so far have been caught “shortening the amber cycles below what is allowed by law on intersections equipped with cameras meant to catch red-light runners.” [Left Lane via Virtuous Republic and Asymmetrical Information]
We’ve extensively covered the various fair-housing complaints against Craiglist (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, Dec. 1, 2006) for that service’s hosting ads for housing and roommates that fall afoul of non-discrimination laws—it’s technically illegal for a woman to say that she’s looking for another woman to share her apartment with, much less a co-religionist or someone without kids. We somehow missed the Santa Clara and San Diego lawsuits against Roommates.com over the same issue. While a district threw out the case, an appeal went to the Ninth Circuit Court of Appeals, and that was that: the three judges, Kozinski, Reinhardt, and Ikuta, wrote three separate opinions, with two of them deciding that there was enough for a suit to go forward on the grounds that there may be a cause of action under the Fair Housing Act because Roommate.com makes it easier for their users to express discriminatory preferences by using questionnaires that are then translated into searchable advertisements, thus supposedly running outside the Communications Decency Act’s immunity provision by being an “information content provider” because it is “responsible, in whole or in part, for the creation or development of [the] information”:
“By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.”
Worse, Judge Kozinski’s opinion issues irrelevant dicta, apparently aimed at a suit not being litigated before him:
Imagine, for example, www.harrassthem.com with the slogan “Don’t Get Mad, Get Even.” A visitor to this Web site would be encouraged to provide private, sensitive and/or defamatory information about others — all to be posted online for a fee.
Kozinski posits that this site—plainly based on dontdatehimgirl.com (Apr. 9 and links therein)—would also flunk the CDA protection. (Cal Law reporter/blogger Brian McDonough notes this passage, but apparently thinks it’s just a joke and thus misses its significance.) The administrators of Autoadmit/xoxohth.com (May 3) might also be concerned about this dicta. (Rebecca Tushnet makes this point independently.)
This substantial narrowing of § 230(c) protections is also bad because it now means that a number of Internet sites that were plainly protected before no longer have unambiguous protection, a problem exacerbated by the lack of a clear majority opinion. Creative lawyering can argue that these websites might be within Fair Housing Counsel‘s fact-driven exception to the CDA exception, and thus get past the motion-to-dismiss stage, forcing defendants into expensive legal proceedings.
Volokh separately argues the underlying laws are unconstitutional as applied to roommates.
Apparently Carol Burnett doesn’t hold to that maxim; she’s suing the producers of the Fox cartoon Family Guy for $2 million for copyright infringement and violations of her right of publicity over an 18-second cartoon clip parodying her. Ron Coleman of Likelihood of Confusion has details.
Fox could have some trouble, particularly with the second claim; California’s right of publicity law, as interpreted by the Ninth Circuit, is extremely broad. Judge Alex Kozinski’s famous dissenting opinion explained the problem in a case filed by Vanna White against Samsung about an advertisement featuring a robot wearing a blond wig. Although this case doesn’t present the exact same issues as the Vanna White case — the Family Guy cartoon actually used Burnett’s name — it does point out the flaws in the Ninth Circuit’s approach, and illustrates how their interpretation is an invitation to celebrities to litigate.
- In the Supreme Court November 29: Watters v. Wachovia. Also an AEI panel November 28, broadcast on C-SPAN1, 2pm to 4pm Eastern. [Point of Law; AEI; Zywicki @ Volokh]
- Also in the Supreme Court November 29: Massachusetts v. EPA global warming regulation case. Previously an AEI panel November 21. [Adler @ Volokh; AEI; C-SPAN (Real Media)]
- Legal cliche: If the facts are against you, pound the law; if the law is against you, pound the facts; if both are against you, pound the table. Table-pounding class of Gerry Spence protegee offers lessons in emotionally creating jury sympathy worth millions. [LATimes]
- What judicial activism?, Part 7356: Indiana state court judge holds “Protection of Lawful Commerce in Arms Act” unconstitutional, complains gun industry supported the law. [Indianapolis Star via Bashman; Indiana Law Blog]
- Entertaining doctor victory in medmal case. [Musings of a Dinosaur via Kevin MD]
- Dahlia Lithwick gets something right; if only it was on an issue more important than a suit advertisement. [Slate]
- Leftover from Thanksgiving: lawyers acting like turkeys. [Ambrogi]
- Ninth Circuit grants potential standing to monkeys over Kozinski dissent. Earlier: Oct. 21, 2004. [Bashman roundup of links]
- Gloria Allred joins the Borat pile-on. [LATimes]
- Speaking of, here’s the future case of Allred v. Kramer. More Allred: Oct. 16. [Evanier]
- Speaking of Allred nostalgia, and of primates, whatever happened to chimpanzee victim St. James Davis? (Mar. 17, 2005; Mar. 8, 2005) [Inside Edition; “The Original Musings”; CNN Pipeline ($)]
- More Allred nostalgia: is Veronica Mars‘ Francis Capra the next Hunter Tylo? Discuss. [Prettier than Napoleon]