CDR: Re: free speech children michigan law

[Steven Furlong]

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 at acmenet.net