CDR: Re: free speech children michigan law

[Steven Furlong]

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 peace" laws on the books that are neither repealed nor enforceable against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 at acmenet.net