This page includes posts from May 2-8, 2004 in the usual reverse
order. Each posting on the home page is perma-linked to these
May 6 marked the 28th month of this site's existence.
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The Ninth Circuit issued an interesting decision today regarding Donald Friedman, who unfortunately suffers from paranoid schizophrenia.
The appellate panel quickly agreed that Friedman’s mental problems impede his ability to assist in his defense against criminal charges brought against him as a result of threatening correspondence he sent to the Secret Service. The circuit court upheld a civil commitment order issued by the district court judge.
When I was an assistant city solicitor, we would take turns handling phone calls from complaining citizens. Some of these calls would come from folks who were at least as disturbed as Friedman is described in today’s Ninth Circuit decision.
Even so, we couldn’t help smiling at some of the allegations, especially the claims that someone was directing evil mind rays at the alleged victims. We tried to gently redirect their concerns toward having someone check on them, but it wasn’t easy.
Despite the serious issues raised by the case, the Ninth Circuit decision today included its own unintentionally funny segment when it included Friedman’s closing statement in his threatening letter:
As Larry the Cable Guy might say, now I don’t care who you are, that's funny right there.
Delaware is not known as a popular spot for movie-making. There are a few exceptions, of course, notably Robin Williams' Dead Poets Society and the beach scenes shot for Sissy Spacek’s drama, Violets Are Blue.
More often than not, however, when my little state is even mentioned in a movie, it’s for comedic effect.
For example, some might recall the Delaware connection to Wayne’s World, Mike Myers’ 1992 masterpiece, during the Chromakey scene.
Wayne and Garth stand in front as still shots from different states appear on the blue screen. After stock pictures of New York and Texas are shown, Wayne then says:
In the background is a postcard shot of the Indian River Inlet Bridge.
I was reminded of this scene today as I attended a mandatory pre-qualification meeting for contractors seeking to build the Bridge’s eventual replacement.
The new structure will be impressive, as these two artists’ renderings show:
The potential bidders are among the nation’s largest bridge builders, who were told today that this is perhaps the third bridge of its type ever built.
As for the bridge shown in Wayne’s World, it will continue to be useful even after demolition. After removal of the asphalt and other potentially polluting materials, the pieces of the old structure will be placed 5 miles offshore to create an artificial reef.
The current plan is to finish the design work and specifications so that the bid packages will be opened this fall, with an eventual construction schedule of about four years.
For those with a sense of film history, therefore, time is running out on a chance to drive over the bridge made famous by Wayne Campbell and Garth Algar.
Joseph Maxwell was not happy with the service he received from TMI, Inc., the company that builds TrendmakerHomes. Unlike most folks, however, he decided not to limit his discussion of the particulars about his dissatisfaction to the folks he saw from day to day. Instead, he created “a non-commercial gripe site,” complete with a website address that was remarkably close to TMI’s own commercial site.
Maxwell’s site included a specific disclaimer at the top of the home page, informing his readers that this was not the official TMI home page. That didn’t stop some people from sending him email that was directed to the company, but Maxwell would routinely forward along the misdirected messages. Other than a separate reference to another company with whom Maxwell had a good experience, there were no commercial elements to his site.
Maxwell’s freely expressed opinions didn’t sit well with some of the folks at TMI, who were remarkably thin-skinned about the whole affair. Their attorneys sued Maxwell under the Lanham Act, the Anti-Cybersquatting Consumer Protection Act (“ACPA”), and the Texas Anti-Dilution Statute.
Long-time readers of this site will recall a similar story about another gripe site operator who litigated his rights to use the Internet to complain about a shopping mall company. The Sixth Circuit upheld the cybergriper on First Amendment grounds.
Apparently that message didn’t reach the U.S. Southern District Court in Texas. The trial judge ruled in favor of TMI, awarding the company an injunction and $80,000 in statutory damages and attorney’s fees.
Maxwell then appealed to the Fifth Circuit, and last week the appellate panel quickly overturned the lower court’s decision. Maxwell’s limited reference to the other business was uncompensated and completely insufficient to support a claim that he had any real commercial intentions for his site. It was simply a gripe site, with no chance at real trademark dilution or any risk that Maxwell was engaging in cybersquatting.
While Maxwell won this case, I wonder if the kinds of businesses that file these lawsuits against gripe sites don't even care about winning, but are instead simply following a prior trend established in land use law with the filing of SLAPP suits. The acronym stands for Strategic Lawsuits Against Public Participation, and frequently arise in the context of bitter fights over proposed developments.
Feeling stymied by petitions to local officials and other First Amendment-protected activities of their opponents, developers sometimes file lawsuits alleging a wide variety of common law claims such as defamation and tortuous interference with business. The litigations' real aim, however, is primarily to silence their foes.
The courts tend to really hate these SLAPP suits, and often quickly dismiss them when a valid First Amendment defense is shown.
Perhaps it’s time to start thinking of a similar approach to the touchy types who don’t like to read pixel-based complaints about themselves and their businesses. When there’s nothing more to these sites than someone blowing off steam, and there’s nothing obviously defamatory and untrue on the web site, perhaps the courts would look kindly on a legislative change from the usual American rules of litigation, where the parties are responsible for their own attorney's fees except under highly limited circumstances.
Permitting a routine award of attorney’s fees and costs to gripe site operators who are unjustly sued for their web content might provide a bit of a disincentive in the right direction.
May 4, 2004
I mentioned these pieces to my bride for three reasons.
First, she’s the one in the house with the advanced degree in English. Second, she has always expressed a deep appreciation for Johnson’s contributions to English literature. Third, I gave her a first edition hardback copy of Bate’s book as a gift when it first came out in the late 1970s.
My bride also highly recommends another biography that was first published at about the same time—A. Scott Berg’s Maxwell Perkins, Editor of Genius.
It’s also still in print, thankfully.
Y'see? Not everything that came out of the 70s was a total loss.
May 2, 2004
This afternoon I posted my latest golf book review—Shooting for Par, by Sam and Alice Segal.
May 2, 2004
This time I really mean it.
Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.
That fact may become obvious later on, but it needs to be said here anyway.
© Frederick H. Schranck 2002-2004