CDR: free speech children michigan law
Michigans Anti-Cussing Law Called Into Question Critics Challenge Statutes Constitutionality Sept. 26, 2000 By Richard Zitrin PONTIAC, Mich. (APBnews.com) -- A cussing construction worker may not be charged with violating the states controversial anti-swearing law because of questions about the laws constitutionality, a county prosecutor said today. Oakland County Prosecuting Attorney David Gorcyca is awaiting a sheriffs report before deciding what charge, if any, to file against the construction worker who allegedly swore at and made a sexually suggestive gesture to a woman at a gas station on Sept. 14. The woman asked the man, who apparently was upset that a piece of construction equipment had broken down on the road in front of the gas station, to stop swearing because there was a woman with a small child in a car at one of the gas pumps, sheriffs Capt. Mike McCabe said. 103-year-old law The construction worker allegedly swore at the woman and told her he could do whatever he wanted to do because this is America, he said. The man then grabbed his crotch and made a sexually suggestive gesture, McCabe said. The woman called the sheriffs department, which is expected to present its report to the prosecutor Wednesday. Gorcyca said prosecutors are waiting to review the sheriffs report to decide what they may charge the man with, although they likely will not charge him with using indecent language while the state Court of Appeals is considering a challenge to the laws constitutionality. Michigans 103-year-old anti-cussing law has drawn national attention because of the case of the cussing canoeist, Timothy Boomer, who was convicted last year of swearing in front of children after he fell out of a boat in Arenac County. Boomer was fined $75 and ordered to work four days in a child-care program, but he has appealed the conviction on free speech grounds and the case is before the state Court of Appeals. Uncertainty over statute The uncertainty over the anti-cussing laws future means Oakland County prosecutors instead may charge the construction worker with disorderly conduct, Gorcyca said. "The Court of Appeals might determine that the statute runs afoul of the Constitution and they might overturn the statute and set aside his conviction," Gorcyca told APBnews.com today. "So were kind of on tenuous grounds, even if we wanted to pursue that charge." McCabe said Boomers case is not similar to that of the allegedly cussing construction worker. "Its a little different than the cussing canoeist, who didnt know anybody was nearby," he said. "This guy did what he did cognizant of his surroundings." Law carries 90-day jail term A 20-year-old man in Clare County in central Michigan also is challenging the anti-cussing law. Steven Clevenger was accused of using indecent language in February after he was fired as assistant girls volleyball coach at a high school, Clare County Assistant Prosecuting Attorney Jamie Raymond said. Clevengers trial has been put on hold while the canoeists case is before the Court of Appeals. Both men are represented by William Street of Saginaw, Raymond said. Neither Street nor officials of the Michigan American Civil Liberties Union could be reached for comment today. Raymond said indecent language, which is punishable by up to 90 days in jail and a $100 fine, often is filed in Clare and surrounding counties. "Many people have been charged and convicted," she said. "Its not as common as drunk-driving cases, but its used from time to time in our county...Usually, people plead guilty, get a fine, thats it. But this is the first time to the best of my knowledge that the laws been challenged as unconstitutional."
"A. Melon" wrote:
Michigans Anti-Cussing Law Called Into Question
<<A Michigan boor swore at and made sexually suggestive gestures to a woman after she asked him not to swear near a small child. He might be charged under MI's anti-swearing law or under disturbing the peace.>> This doesn't sound like the peace and safety of the community is being threatened. Why doesn't the offended woman file a civil claim, if she was that offended? I don't know Michigan law, but the offence should fit within the common law "intentional infliction of mental distress" and "nuisance" torts. (I can't believe I wrote that. Two weeks in law school and I'm already warped.) SRF -- Steve Furlong, Computer Condottiere Have GNU, will travel 518-374-4720 sfurlong@acmenet.net
"A. Melon" wrote:
Michigans Anti-Cussing Law Called Into Question
<<A Michigan boor swore at and made sexually suggestive gestures to a woman after she asked him not to swear near a small child. He might be charged under MI's anti-swearing law or under disturbing the peace.>>
This doesn't sound like the peace and safety of the community is being threatened. Why doesn't the offended woman file a civil claim, if she was that offended? I don't know Michigan law, but the offence should fit within the common law "intentional infliction of mental distress" and "nuisance" torts.
(I can't believe I wrote that. Two weeks in law school and I'm already warped.)
Down, not across. -- A quote from Petro's Archives: ********************************************** Sometimes it is said that man can not be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question. -- Thomas Jefferson, 1st Inaugural
At 8:37 PM -0400 9/26/00, Steve Furlong wrote:
"A. Melon" wrote:
Michigans Anti-Cussing Law Called Into Question
<<A Michigan boor swore at and made sexually suggestive gestures to a woman after she asked him not to swear near a small child. He might be charged under MI's anti-swearing law or under disturbing the peace.>>
This doesn't sound like the peace and safety of the community is being threatened. Why doesn't the offended woman file a civil claim, if she was that offended? I don't know Michigan law, but the offence should fit within the common law "intentional infliction of mental distress" and "nuisance" torts.
(I can't believe I wrote that. Two weeks in law school and I'm already warped.)
Yep, you've already reached the point of being a waste of skin. Perhaps you'll be leading the prosecution of a thought criminal in court when your particular building is mcveighed. "File a civil claim," indeed. You should be shot dead. --Tim May -- ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, ComSec 3DES: 831-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, "Cyphernomicon" | black markets, collapse of governments.
Tim May wrote:
At 8:37 PM -0400 9/26/00, Steve Furlong wrote:
"A. Melon" wrote:
Michigans Anti-Cussing Law Called Into Question
<<A Michigan boor swore at and made sexually suggestive gestures to a woman after she asked him not to swear near a small child. He might be charged under MI's anti-swearing law or under disturbing the peace.>>
This doesn't sound like the peace and safety of the community is being threatened. Why doesn't the offended woman file a civil claim, if she was that offended? I don't know Michigan law, but the offence should fit within the common law "intentional infliction of mental distress" and "nuisance" torts.
(I can't believe I wrote that. Two weeks in law school and I'm already warped.)
Yep, you've already reached the point of being a waste of skin.
Perhaps you'll be leading the prosecution of a thought criminal in court when your particular building is mcveighed.
"File a civil claim," indeed. You should be shot dead.
<grin> In the year or so I've been posting on c-punks, you have several times mentioned that I had a good point but not once had you suggested that I should be killed. I was starting to feel left out. I do not think the woman should be filing suit. She should have ignored the boor or, if her command of invective sufficed, told him off scathingly. I do, however, support the right of people to take matters to civil court if they truly feel they have been wronged. I'd prefer to see a loser-pays system to prevent or compensate for frivolous claims, as this claim would be likely to prove. The _main_ point I wanted to make was that the state had no business interfering here. The anti-swearing law is nonsensical, unenforceable, and almost definitely unConstitutional. Disturbing the peace charges, if they should exist at all, should be reserved for matters of greater import than making a rude gesture at one woman. I concede that my previous post didn't make my point well, if at all. Regards, SRF -- Steve Furlong, Computer Condottiere Have GNU, will travel 518-374-4720 sfurlong@acmenet.net
At 8:45 AM -0400 9/27/00, Steve Furlong wrote:
<grin> In the year or so I've been posting on c-punks, you have several times mentioned that I had a good point but not once had you suggested that I should be killed. I was starting to feel left out.
I do not think the woman should be filing suit. She should have ignored the boor or, if her command of invective sufficed, told him off scathingly. I do, however, support the right of people to take matters to civil court if they truly feel they have been wronged. I'd prefer to see a loser-pays system to prevent or compensate for frivolous claims, as this claim would be likely to prove.
The point being that civil cases for damages should not be allowed for NONCRIMINAL issues. That is, a "matter of law" should be involved. Example: a bookstore owner sues because another bookstore moved in across the street from him and "hurt his business." There is no violation of any law, so it doesn't even matter whether the original bookstore was "hurt." No lawsuit possible. Example: a woman feels insulted by the language of another. No violation of any law, so no lawsuit possible. I'm shocked that you were blathering on about the woman filing a civil suit for something such as "intentional infliction of emotional distress." In fact, I plan to file a civil action against you for this shock to my system. (Seriously, I say you should GET THE FUCK out of this law school you are now in. Too many damned lawyers as it is. If you really think, as you claimed a few weeks ago, that you can study law and then somehow affect the law/programming worlds, pace the various legal cases of recent years, then you're delusional. Vastly greater changes are possible with technology.)
The _main_ point I wanted to make was that the state had no business interfering here. The anti-swearing law is nonsensical, unenforceable, and almost definitely unConstitutional. Disturbing the peace charges, if they should exist at all, should be reserved for matters of greater import than making a rude gesture at one woman. I concede that my previous post didn't make my point well, if at all.
Suing in the courts for having one's sensibilities hurt, allegedly, is even worse. I'd rather the gubment scum made the speech illegal, up front, than allowing such suits to go forward. We are daily losing our liberties to creeps like the zionists who use the Southern Poverty Law Center to suppress speech they dislike. With the help of people exactly like you. That you are encouraging the process of using civil action tells me you will make a fine lawyer. Disgusting. --Tim May -- ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, ComSec 3DES: 831-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, "Cyphernomicon" | black markets, collapse of governments.
Tim May wrote:
At 8:45 AM -0400 9/27/00, Steve Furlong wrote:
I do not think the woman should be filing suit. She should have ignored the boor or, if her command of invective sufficed, told him off scathingly. I do, however, support the right of people to take matters to civil court if they truly feel they have been wronged. I'd prefer to see a loser-pays system to prevent or compensate for frivolous claims, as this claim would be likely to prove.
The point being that civil cases for damages should not be allowed for NONCRIMINAL issues. That is, a "matter of law" should be involved.
Example: a bookstore owner sues because another bookstore moved in across the street from him and "hurt his business."
There is no violation of any law, so it doesn't even matter whether the original bookstore was "hurt." No lawsuit possible.
Example: a woman feels insulted by the language of another.
No violation of any law, so no lawsuit possible.
I'm shocked that you were blathering on about the woman filing a civil suit for something such as "intentional infliction of emotional distress."
So, you're setting yourself up as the sole arbiter of the right? No person or group in history has been able to set up a legal or moral code which would fit all situations with no need for judgment, so you might want to question your capability. Any person should have recourse to systematic (to avoid the word "legal") relief if he feels aggrieved. The alternative is to allow self help in the manner chosen by the aggrieved party. There's much to be said in favor of that, but most people aren't comfortable with it, which is why some form of tort system has arisen in almost every culture. (There's much to be said for killing most of the population, too, but let's leave that for another thread.) In a civil system designed by me, the laws would be pretty loose, with plenty of wiggle room to cover unanticipated situations. Anyone could bring a claim against anyone else for almost any cause. So far my system is pretty close to the current American system. Where we part ways is in forcing the loser to pay the entire court cost and the costs of the winner. Society shouldn't be forced to pay because some person has a bug up his ass against all of his neighbors and can't convince an impartial jury that he's right. You claim that the man's swearing at the woman didn't violate any law, so she can't sue. That's probably false under Michigan criminal law (anti-cussing law and disturbing the peace, according to the DA; I don't say I agree with it) and certainly false under common law, which is mostly what matters for tort cases. But let's say that under the Tim May system swearing at someone is not an offense by any definition. At the other end of the spectrum, if the man were to walk over and beat her unconscious, I'll assume you would agree that would and should be a criminal violation. In the American system it's also a tort, and the woman can sue for monetary damages. That seems fair enough; he hurt her, and putting him in jail won't help her with her medical bills. The question is, at what point do you draw the line between those extremes to say that some people can sue for damages and some can't? That is what the jury system is for: to decide on a case-by-case basis. Under my system, we'd keep all that, and, as I said, have the loser pay for the cost of the suit. You claim that "civil cases for damages should not be allowed for NONCRIMINAL issues". That is a ludicrously naive statement. What if one party breaks a contract, causing monetary loss to the other party? Would you make that a criminal offense, with jail time and money paid to the state, or would you have the losing party eat the loss? Neither serves the larger goals of society, as I see it.
(Seriously, I say you should GET THE FUCK out of this law school you are now in. Too many damned lawyers as it is. If you really think, as you claimed a few weeks ago, that you can study law and then somehow affect the law/programming worlds, pace the various legal cases of recent years, then you're delusional. Vastly greater changes are possible with technology.)
You're right. There are too many lawyers in the US, and too much systemic need to have so many. Whining that there are too many, however, is likely to have about as much effect as the flower children chanting for the US Army to disband. In days gone by, the strong guys with weapons made the rules and ran things to suit themselves. The people who didn't spend much of their time fighting or practicing with weapons were generally at the mercy of those who did. If they were lucky, they were able to find another fighter to stand in for them and hold the bullies off. (Yes, sometimes mobs did rise and overthrow a particular gang of bullies. In most cases the way was simply opened for another gang to move in, or for a home-grown bully to take over.) The same situation holds in the US today, with lawyers having replaced the musclemen. I'm hoping to be able to change the system, by being a technically-literate lawyer in some MPAA v. 2600 case a few years hence. (Hell, with the lengthy appeal process, maybe I'll actually be on that case. :-S ) Even if you're right and I'm delusional about being able to change the system, small free software projects will still need someone to help respond to cease-and-desist letters or whatever is the bullying tactic in vogue is then. And the EFF will still need volunteers to wade through draft legislation and what-not. As regards technology, yes, it will help, up to a point. A year ago a book came out discussing ways the internet could be brought down. Interestingly, I had a partially-written draft on the same topic. I had more emphasis on legal issues, but the books were pretty similar. Most likely he and I had both gotten tired of the slashdotters proclaiming the Republic of the Internet, free of the rules of all territorial nations. (No, I don't recall the title or author, and I couldn't remember it closely enough for a search to pull it up.) Examples of technology not helping in the face of massive government encroachment can be found in the RoC: all computers must be registered, all web sites must be registered elsewhere, private use of encryption is forbidden, all traffic is subject to monitoring, and so on. Violations do occur, but violators can be jailed or killed; most people don't even try. So, all in all, I think I'll decline to take your carefully reasoned and well-expressed advice.
I'd rather the gubment scum made the speech illegal, up front, than allowing such suits to go forward. We are daily losing our liberties to creeps like the zionists who use the Southern Poverty Law Center to suppress speech they dislike. With the help of people exactly like you.
I too would like to see a big chunk bitten off all at once, to rouse the sheeple. I pushed some years ago for the passage of UCITA (then called UCC 2B) in all its glory, because that massive a boost to the "rights" of the big software houses would help the free software movement.
That you are encouraging the process of using civil action tells me you will make a fine lawyer.
Disgusting.
Bite me. I'd make a more reasoned response, but I have to clean up cat puke. A task not unlike writing this message, but more pungent. Ta, SRF -- Steve Furlong, Computer Condottiere Have GNU, will travel 518-374-4720 sfurlong@acmenet.net
At 09:23 PM 9/27/00 -0400, Steven Furlong wrote:
You claim that the man's swearing at the woman didn't violate any law, so she can't sue. That's probably false under Michigan criminal law (anti-cussing law and disturbing the peace, according to the DA; I don't say I agree with it)
Hmm, maybe wait on this until you've had con law and read _Cohen_, the "fuck the draft" case. There are a number of unenforceable "breach of peace" laws on the books that are neither repealed nor enforceable against someone who's current on constitutional law.
The question is, at what point do you draw the line between those extremes to say that some people can sue for damages and some can't? That is what the jury system is for: to decide on a case-by-case basis.
Also, I think this may go a little too far - in a number of cases, there's no recovery available - as a matter of law, which means it's a judge's decision, not a jury's - because of the type of injury, the relationship (or lack thereof) between the litigants, and so forth. There are a lot of fussy rules here - juries don't get to just have a popularity contest and give the money to whomever they feel sorry for. Examples of
technology not helping in the face of massive government encroachment can be found in the RoC: all computers must be registered, all web sites must be registered elsewhere, private use of encryption is forbidden, all traffic is subject to monitoring, and so on. Violations do occur, but violators can be jailed or killed; most people don't even try.
And, don't forget, the RoC does this with .. laws. The idea that governments will create systems by which their power can be turned against themselves (but only in the service of goodness & righteousness) is an attractive siren song .. I'm not saying it never works, but it seems to happen less often than one might imagine. While I have a lot of respect for the _Bernstein_ legal team, I suspect that John Gilmore's DES cracker did more to end export controls than litigation did. That's not because the lawyers didn't work hard (they did, and still are) or because they're not smart (they are) but because it's possible for politicians and policy wonks to argue forever about the merits of export control, but they can't do much about simple facts, like $225K buys a 5-day brute force crack of 56-bit DES. Case law and statutes come and go (especially in the 9th Circuit) .. but technological and economic facts like that aren't susceptible to argument. Law's great, but it's important to understand its limitations. -- Greg Broiles (J.D., U of Oregon, 1996) gbroiles@netbox.com
At 9:23 PM -0400 9/27/00, Steven Furlong wrote:
The point being that civil cases for damages should not be allowed for NONCRIMINAL issues. That is, a "matter of law" should be involved.
Example: a bookstore owner sues because another bookstore moved in across the street from him and "hurt his business."
There is no violation of any law, so it doesn't even matter whether the original bookstore was "hurt." No lawsuit possible.
Example: a woman feels insulted by the language of another.
No violation of any law, so no lawsuit possible.
I'm shocked that you were blathering on about the woman filing a civil suit for something such as "intentional infliction of emotional distress."
So, you're setting yourself up as the sole arbiter of the right? No person or group in history has been able to set up a legal or moral code which would fit all situations with no need for judgment, so you might want to question your capability.
I see that Greg Broiles has already made the main points, that lawsuits must hinge on a "matter of law." It is not enough that someone feels aggrieved--there must be some element of criminality involved. Hence my example of the bookstore owner who feels "aggrieved" that another bookstores hurt his business: there is no basis for a lawsuit, and a competent judge will quickly throw the case out.
Any person should have recourse to systematic (to avoid the word "legal") relief if he feels aggrieved.
Many people feel aggrieved, for many and diverse reasons. Courtrooms are not the answer for about 99% of these cases. I'm not bothering with the rest of your post. I don't know if you were, or are, a competent "computer condotterie" or whatever it is you say you are, but I'd say you ought to stick to that. You don't have a good intuition for how the law works. --Tim May -- ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, ComSec 3DES: 831-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, "Cyphernomicon" | black markets, collapse of governments.
Tim May wrote:
At 9:23 PM -0400 9/27/00, Steven Furlong wrote:
Tim:
The point being that civil cases for damages should not be allowed for NONCRIMINAL issues. That is, a "matter of law" should be involved.
So, you're setting yourself up as the sole arbiter of the right? No person or group in history has been able to set up a legal or moral code which would fit all situations with no need for judgment, so you might want to question your capability.
I see that Greg Broiles has already made the main points, that lawsuits must hinge on a "matter of law." It is not enough that someone feels aggrieved--there must be some element of criminality involved. Hence my example of the bookstore owner who feels "aggrieved" that another bookstores hurt his business: there is no basis for a lawsuit, and a competent judge will quickly throw the case out.
Right. And if the bookstore owner had to pay a few $K for the court costs and the other store's legal costs, in addition to his own legal expenses he'd be unlikely to file the claim in the first place unless he really felt he had a good case. The current American system is abused because there's almost no incentive _not_ to file frivolous claims. You get a lawyer to work on spec, pony up a small filing fee, and you can tie up the court for a few hours and cost your opponent a few thousand dollars.
Any person should have recourse to systematic (to avoid the word "legal") relief if he feels aggrieved.
Many people feel aggrieved, for many and diverse reasons.
Courtrooms are not the answer for about 99% of these cases.
No argument there.
I'm not bothering with the rest of your post.
You ignored the question I asked: If one party to a contract breaks it, what is the other party to do? Breaking a contract is not normally a crime, so it sounds like you would have the second party have to simply put up with the broken contract. (diminishing) Regards, SRF -- Steve Furlong, Computer Condottiere Have GNU, will travel 518-374-4720 sfurlong@acmenet.net
Greg Broiles wrote:
At 09:23 PM 9/27/00 -0400, Steven Furlong wrote:
You claim that the man's swearing at the woman didn't violate any law, so she can't sue. That's probably false under Michigan criminal law (anti-cussing law and disturbing the peace, according to the DA; I don't say I agree with it)
Hmm, maybe wait on this until you've had con law and read _Cohen_, the "fuck the draft" case. There are a number of unenforceable "breach of peace" laws on the books that are neither repealed nor enforceable against someone who's current on constitutional law.
You're right, but I'm not sure of the point you're making. No one here seems to think the cusser actually broke any laws, or at least any enforceable laws.
The question is, at what point do you draw the line between those extremes to say that some people can sue for damages and some can't? That is what the jury system is for: to decide on a case-by-case basis.
Also, I think this may go a little too far - in a number of cases, there's no recovery available - as a matter of law, which means it's a judge's decision, not a jury's - because of the type of injury, the relationship (or lack thereof) between the litigants, and so forth. There are a lot of fussy rules here - juries don't get to just have a popularity contest and give the money to whomever they feel sorry for.
Right. Even a 1L knows that. :-) I was simplifying. And the thread has been mingling the current American legal system, Tim's ideal system, and my ideal system, without always clearly demarking them. Also, I think the evidence shows that at least in some cases American juries ignore evidence and law and (in my opinion) justice and award whatever they want. McDonald's coffee and that tobacco case in Florida come to mind. True, only the outrageous cases come make the headlines, and true, the awards are usually knocked down or thrown out at the appelate level, but still. To get back on my favorite legal hobby-horse, I think that a loser-pays system would keep a lot of the truly frivolous cases from being filed. That should free up enough of the courts' time that they can give proper attention to the cases that do make it in.
And, don't forget, the RoC does this with .. laws. The idea that governments will create systems by which their power can be turned against themselves (but only in the service of goodness & righteousness) is an attractive siren song .. I'm not saying it never works, but it seems to happen less often than one might imagine.
Right. Which is why it's useful to work within the system and try to help on specific cases rather than whine about the current system and refuse to play in it.
While I have a lot of respect for the _Bernstein_ legal team, I suspect that John Gilmore's DES cracker did more to end export controls than litigation did. That's not because the lawyers didn't work hard (they did, and still are) or because they're not smart (they are) but because it's possible for politicians and policy wonks to argue forever about the merits of export control, but they can't do much about simple facts, like $225K buys a 5-day brute force crack of 56-bit DES. Case law and statutes come and go (especially in the 9th Circuit) .. but technological and economic facts like that aren't susceptible to argument.
Hmm. Good point. I'd been thinking of the "technology trumps laws" argument in terms of what I described in my previous message: the slashdotters nattering about how the net routes around censorship and is therefore invulnerable to government action. (Extremely simplified presentation, of course.) But before I completely concede the point, I'll wait for further developments in the NSA-versus-the-crypto-companies thread. Regards, SRF -- Steve Furlong, Computer Condottiere Have GNU, will travel 518-374-4720 sfurlong@acmenet.net
participants (7)
-
A. Melon -
Greg Broiles -
Marcel Popescu -
petro -
Steve Furlong -
Steven Furlong
-
Tim May