Four Legal Notes

A lot has gone on recently in the law, and rather than try to churn out posts on each one of them, I'm going to address each one briefly in turn.

First, Attorney General Eric Holder recently gave an interview to the New York Times in which he said that states' attorneys general should feel free to not enforce laws that they feel are discriminatory.  For the Attorney General of the United States of America to tell fellow attorneys general to cherry-pick laws according to their discretion on whether they think the laws are discriminatory is mind-boggling.  Mr. Holder tried to dance his way around his statement, saying that the attorneys general should employ strict scrutiny before reaching a decision on whether to defend a certain law.  He was addressing his comments to the latest hot legal topic of same-sex marriage, which has its legal underpinnings in the Fourteenth Amendment's equal protection clause.  But Mr. Holder has haphazardly strewn a minefield around himself.

If an attorney general decides to employ strict scrutiny to gun control laws that infringe on a citizen's right to own a particular firearm, would Mr. Holder be in favor of his decision to not enforce the law?  Say that a state has enacted a ban on assault rifles.  Would Mr. Holder agree with the state attorney general's decision not to enforce that law?  What about equal protection for those people who want to own assault rifles?  Are they entitled to equal protection just like those people who want to have gay marriages?  The Second Amendment has no limitations on it regarding the type of arms that may be borne.

Mr. Holder is tangling himself in a web that he's weaving to deceive.

Second, the Ninth Circuit has come out with another wacky ruling, for which it's rightly infamous.  A couple of years ago some Mexican students were upset by American students who wore clothes with the American flag on them and were threatening violence.  The school officials, in their infinite lack of wisdom, banned clothing with the American flag on it.  So the American students sued, claiming their rights of free speech under the First Amendment and their rights of equal protection and due process under the Fourteenth Amendment.

The panel of the Ninth Circuit, citing precedent that allows for restrictions in the name of safety, denied the claims, saying that in order to protect the school and its students, the ban on clothing with the American flag was justified.

Please remember this is a school in California, in the United States of America, and the clothing bore the American flag.

Instead of doing the prudent thing and either banning all manifestations of ethnic or simply hiring security guards, the school banned the American flag.  This makes no sense.  Just because a single ethnic group that is celebrating its heritage is offended by the American flag shouldn't mean free speech is curtailed.  The American flag isn't inherently offensive to anyone in this country; is the school also lowering the American flag on May 5th so the Mexican students aren't offended by it?  As usual, the Ninth Circuit got it wrong.  An appeal is pending asking for a rehearing before the entire Ninth Circuit Court of Appeals.  I'm not too sanguine about there being a reversal; this is probably headed to the SCOTUS.

But just when it was thought that the Ninth Circuit had reached new lows in jurisprudence, along comes one Cindy Lee Garcia.  She's probably not well-known by her name alone.  Apparently, she appeared in the film that allegedly provoked protests in the Muslim world that were used by the administration as the excuse for the Benghazi consulate attacks.  Mr. Garcia appealed all the way to the Ninth Circuit and finally won on a theory that as an actor in a movie, she has an identifiable copyright claim that was violated when she was put in the movie Innocence of Muslims.

I have not read the entire opinion, but I've read enough to know that Ms. Garcia may well have grounds to object to usage of her image in the film, as it would appear that she did scenes for another movie, Desert Warrior, that was never released, and the voiceover that was done was not of her doing.  Injunctive relief on some breach of contract theory might have worked.  But what the judge did was find that each actor in a film has an identifiable copyright that protects that actor irrespective of whatever copyright the movie, the screenwriter or anyone else may have, and on that basis, ordered Google and Youtube to remove the film.

Think about the ramifications of this ruling for a moment.  Robert Redford himself has an identifiable copyright for The Sting, The Way We Were, The Natural and any other film in which he appeared.   If he disagreed with the way his performance was edited, he could sue and stop release of the film.  Or he might be able to ask for a higher wage for his involvement.  I'm sure intellectual property attorneys are doing more than scratching their heads trying to figure out ways to stop or exploit this ruling for their clients.

There is an old saw that bad facts make bad law.  The Ninth Circuit proves this virtually every month with its rulings.

As for Eric Fast and Furious Holder, there is no explanation.  He recently went into the hospital complaining of some such thing.

Frankly, I thought it was to have his head checked.

Postdata:  Kerry Kennedy was acquitted of driving under the influence.  I don't know the facts of the case, and she may well have deserved that verdict.

But is there a court in the land that will find a Kennedy guilty of anything?  Even Michael Skakel had his conviction thrown out.

(c) 2014 The Truxton Spangler Chronicles