A defamation award against a blogger was overturned via a unanimous vote by a federal appeals court on Friday, according to The Los Angeles Times. The court ruled that those who post on the internet are afforded the same 1st Amendment rights that protect the traditional news media.

“The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities,”  Judge Andrew D. Hurwitz wrote. Judge Hurwitz sat on a three-judge panel to hear the case at the United States 9th Circuit Court of Appeals.

The blogger in question, Crystal Cox, accused Obsidian Finance Group of fraud, corruption and other forms of misconduct. The case was filed by the firm and one of its principals, Kevin D. Padrick.

“Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction,” the court said.

All of the posts made by Cox were ruled constitutionally protected except for one by a district court in Oregon. The judge permitted one of the posts go to trial. This post, which accused Padrick of failing to pay taxes for a company that filed Chapter 11 bankruptcy, is the one that can go to trial.

At trial, Cox represented herself. The jury awarded the firm and Padrick $2.5 million in damages because of what she wrote online. Cox appealed the ruling, but only argued that she could not be held liable unless the court can prove that her posts were written with negligence. She did not argue the fact that the posts were false and caused damage to the firm’s reputations.

During the appeals process, the 9th Circuit Court said that the jury should have been told to figure out if Cox acted negligently since the posts were part of public issues. The appeals court also said that the jury does not have the power to award money for unproven harm to the plaintiffs. This could only happen if malice was found.

“This case is the first one from a federal court of appeals that specifically protects the rights of bloggers,” said UCLA constitutional law professor Eugene Volokh. Volokh was Cox’s attorney for the appeal without charging a fee.

The post Appeals Court Rules Blogger Protected by 1st Amendment Rights first appeared on JDJournal Blog.

Anti-gay protesters led by Fred Phelps and his organization The Westboro Baptist Church often protest at the funerals of fallen soldiers. A case was brought by the father of Marine Lance Cpl. Matthew A. Snyder, a solider whose funeral was picketed by the Westboro Baptist Church in 2006. Phelps and his followers believe that death of American soldiers and numerous other tragedies are god’s punishment for tolerance towards gays and lesbians. Phelps and his followers often display signs with slogans such as “Thank God for dead soldiers”, “America is doomed” and “Semper fi fags” at their protests.

A Baltimore, Maryland jury awarded the father, Albert Snyder, more than $10 million in damages for emotional distress and invasion of privacy. This amount was cut in half and then thrown out by the U.S. Court of Appeals for the 4th Circuit in Richmond. In their decision the three judge panel said the signs couldn’t be reasonably understood to refer directly to Snyder or his son. The court determined that as vile as the speech may be it was protected.

Snyder appealed to the Supreme Court, arguing that someone attending a family member’s private funeral is entitled to state protection from unwanted communication, such as the sort of remarks and displays regularly appearing at Westboro Baptist protests.

Phelps and Westboro Baptist argue that the appeal should be rejected and that the picketing occurred more than 1,000 feet from the funeral that was a public event, and church members were therefore engaging in speech that was protective and not disruptive. The court will hear arguments in the case in the upcoming October term.

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In addition to being a founding partner, Mr. Shapiro was a prominent figure at the Supreme Court where he argued several well known cases. In 1960, he successfully defended the 1st amendment rights of George Lincoln Rockwell, the head of the American Nazi Party.

He is survived by Carolyn, his wife of 29 years, along with five children and numerous grandchildren.

Dickstein Shapiro LLP, founded in 1953, is a multi-service law firm with more than 400 attorneys in Washington, DC, New York, and Los Angeles.

The post David Shapiro Passes Away first appeared on JDJournal Blog.

The Supreme Court dealt a blow to Utah’s teachers union on Tuesday by limiting how it can collect contributions from its donors.  The high court ruled that the union could not collect donations for its political action committee by automatically deducting money from their members’ paychecks.

The precedent was set in a very similar “paycheck protection” law in Idaho.

“Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities,” wrote Chief Justice John Roberts in the court’s 6-3 decision. “Such a decision is reasonable in light of the state’s interest in avoiding the appearance that carrying out the public’s business is tainted by partisan political activity.”

The 10th District Court, which covers Utah, waited to act on Utah’s 2001 law to see how the Supreme Court would rule on Idaho’s law, which is part of the 9th District Court.

The post Supreme Court Rules Against Utah Teacher’s Union In Political Speech Case first appeared on JDJournal Blog.

The Supreme Court agreed on Monday to decide whether or not a cross honoring fallen soldiers in the Mojave National Preserve is a violation of the 1st Amendment.  It will be the first time that the court will hear a case regarding “an establishment of religion” with John Roberts as the Chief Justice.

The current cross is eight feet tall, though a smaller wooden cross was erected by the Veterans of Foreign Wars in 1934 and was maintained by the National Park Service as a war memorial.

The American Civil Liberties Union objected to the cross and filed a suit on behalf of Frank Buono, a former Park Service employee.  The suit noted that the government declined to build a Buddhist shrine near the cross.

The case appeared before the U.S. 9th Circuit Court of Appeals.  The court ruled in favor of the ACLU, declaring the cross an “impermissible government endorsement of religion.”

The government has questioned Buono’s right to challenge the cross.  Mr. Buono lives in Oregon and, according to government lawyers, suffers no obvious harm because of the cross’ existence.

The post Supreme Court To Decide On Mojave Cross first appeared on JDJournal Blog.

The 6th US Circuit Court of Appeals ruled Fieger was not wrongfully punished for lambasting three judges on a 1999 radio show, when he called them “jackasses” and compared them to Nazis for overturning a $15 million verdict.

The Michigan Supreme Court ruled in 2007 that Fieger violated state rules of professional conduct with his “rude and vulgar” comments, and reinstated a formal reprimand against him.

Fieger sued the Michigan Supreme Court over the state rules, which require lawyers to use “civility” when they criticize judges.

A federal district judge declared the rules overly broad and unconstitutional. The 6th Circuit overturned that decision, holding that Fieger can’t prove “actual present harm or a significant possibility of future harm based on a single, stipulated reprimand.

The Court emphasized that Fieger violated the rules, not because he criticized judges, but because he made vulgar, personally abusive comments about participants in a pending case.

In a dissent, Judge Gilbert Merritt expressed skepticism about the rules for punishing misbehaving lawyers, holding the rules remain unclear about what is permissible or impermissible for lawyers to say about judges.

Fieger, a former lawyer for “suicide doctor” Jack Kevorkian, was the center of controversy last year over a series of television commercials he ran during his trial, in which he compared the Bush administration to Nazis, and claimed that trial lawyers were under attack from the federal government. A judge ordered Fieger to yank the ads after prosecutors complained he was trying to taint the jury pool.

Via NLJ.

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A lawyer facing criminal charges for advising 10 nurses they could quit their jobs at a Long Island, NY nursing facility gave “objectively reasonable” advice and cannot be prosecuted, a Brooklyn appeals panel has ruled.

In a unanimous decision, the Appellate Division, 2nd Department, ruled that District Attorney Thomas J. Spota of Suffolk County must halt his prosecution of attorney Felix Vinluan and his clients.

“We cannot conclude that an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, loses the protection of the First Amendment if his or her advice is later determined to be incorrect,” wrote Justice Randall T. Eng. “Indeed, it would eviscerate the right to give and receive legal counsel with respect to potential criminal liability if an attorney could be charged with conspiracy and solicitation whenever a District Attorney disagreed with that advice.”

The nurses were recruited as a group from the Philippines by SentosaCare, which operates the Avalon Gardens Rehabilitation and Health Care Center in Smithtown, New York.

In April 2006, they left their posts in protest over job conditions. The district attorney accused the nurses of abandoning their patients by leaving their shifts without giving administrators enough notice to find replacements.

They, along with Vinluan, were indicted in March 2007 on 13 counts, including charges of sixth-degree conspiracy, endangering the welfare of a child, and endangering the welfare of a physically disabled person.

Vinluan, after hearing the nurses’ complaints about substandard pay, poor living conditions, changes in work shifts and other alleged violations of their contracts, “advised them that they could resign if they wanted to as their contracts were already breached.”

Justice Eng pointed out that the nurses “did not abandon their posts in the middle of their shifts.” Rather they resigned “after the completion of their shifts, when the pediatric patients at Avalon Gardens were under the care of other nurses and staff members.”

Eng also noted that the state Education Department ultimately cleared the nurses of professional misconduct after taking into account that “no children were deprived of nursing care.”

Since prosecutors did not dispute that Vinluan acted in good faith, Eng held, the attorney could not be prosecuted for giving legal advice to commit an act, which, under the circumstances, was not a crime.

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