Michigan panhandler law struck down

The Associated Press has reported that U.S. District Judge Robert Jonker has ruled a state law banning panhandling in public places violates First Amendment protections for free speech and the 14th Amendment’s equal protection clause.

The opinion concerns James Speet and Ernest Sims, two Grand Rapids men arrested in 2011 for begging. They were represented by the American Civil Liberties Union.

Speet, who is homeless, was arrested for holding up signs seeking “work or help.” Sims pleaded guilty to panhandling after asking for spare change. Both men receive food stamps, and Sims also receives $260 per month in state disability insurance.

Grand Rapids enforced the panhandling ban 399 times between Jan. 1, 2008, and May 24, 2011, the ACLU said.

“Pending future developments in this case, Grand Rapids police will not be enforcing this state law,” said Catherine Mish, Grand Rapids’ city attorney, adding that it’s too early to tell whether an appeal will be filed.

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COA to hear John Doe appeal in Cooley Law School suit

The Michigan Court of Appeals agreed to hear an appeal from John Doe 1, also known as Rockstar05, who is being sued by The Thomas M. Cooley Law School.

Doe is fighting to keep his identity a secret after he posted under his Rockstar pen name a blog post that was highly critical of Cooley’s business practices. He wrote the post early in 2011 after Cooley devised and published a national ranking system of all the law schools in the country, and ranked itself second behind only Harvard Law School.

Doe called the school a “diploma mill,” and an expensive one at that. Cooley sued.

But Doe said that he has the right to protect his free and anonymous speech. The law school knows who Doe is, and has known since August 2011. But if the courts agree that he can remain anonymous, Cooley can’t name him in the lawsuit.

Doe’s attorney, Berkley-based attorney John Hermann, said he feels encouraged that the Court of Appeals has granted leave. The case is important, Hermann said, because it “represents some free speech issues that we deal with in this electronic communication era.”

The Court granted media companies Gannett Co. Inc., Scripps Media Inc., The Detroit News, The Macomb Daily and The Rail — and the Michigan Press Association to file amicus briefs.

Aside from the First Amendment implications, there’s a great wonky angle to this case. Late in 2011, Cooley General Counsel James Thelen told Michigan Lawyers Weekly that if the Court allows Doe to remain anonymous, it would be sliding down a slippery slope of rewriting Michigan Court Rules and pleading standards by forcing a defamed plaintiff to prove its case before being entitled to seek discovery, as provided in Michigan law. (Subscribers can read the story here.) It would also need to look up in the dictionary the definition of “anonymous,” since Thelen, the law school and outside counsel at Miller Canfield already know who Doe is (he’s a former student, and Doe’s blog’s web host inadvertently gave Miller Canfield his identifying information).

Doe is asking the Court to apply the Dendrite standard, from Dendrite International v. Does, which requires a plaintiff to give notice to the potential defendant and give an opportunity for Doe to defend his anonymity; specify the statements that allegedly violate the plaintiff’s rights; plead a claim that could survive a motion to dismiss; and produce evidence supporting each element of the claim.

In re: Freedom of speech in public schools and cyber-bullying

I’m almost ashamed to admit this,* but when I was a senior in high school, I was suspended for cursing.

I’m sure that you can relate: I was working on a class project, receiving little or no help from many in my group. As I was trying to do put the finishing touches on it, someone came in and started giving opinions about how I should have done it and why their way was better.

Being an emotionally immature 16-year old who was already annoyed with the lack of support I received on the project, I responded with a two-word phrase commonly heard on shows like The Sopranos. The teacher walked in just in time to hear it, yada yada yada, I had an unscheduled three-day vacation.

Why should you care, Reader of Michigan Lawyers Weekly?

Well, apparently I should have hired a lawyer (from The Detroit News):

Hart took the problem to the school’s vice principal and principal, who took it to a district administrator, who asked the district’s lawyers what they could do about it. In the end, citing "cyber-bullying" concerns, school officials suspended the girl who posted the video for two days. That student took the case to federal court, saying her free speech rights were violated.

Last month, a U.S. District judge in Los Angeles sided with the student, saying the school went too far.

In that case, a student** posted a video on YouTube calling another female middle school student a “brat” and “slut” and, of course, texted everyone they knew about it. The girl’s embarrassment led her to her guidance counselor’s office, which led to a chain of events in which the offender who posted the video was suspended.

Judge Steven V. Wilson wrote:

"To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul (of the law)," judge Stephen V. Wilson wrote in a 60-page opinion.

"The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments," he wrote.

“Cyber-bullying” has become a big issue of late as members of Congress and state legislatures are trying to make laws to regulate the effects of when the mean things kids say are amplified to a mass audience online.

In some cases, the subject hasn’t even been a student.

In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the Web site, the student referred to the principal as a "big steroid freak," and a "big whore," among other things, and stated that he was "too drunk to remember" the date of his birthday.

District Court Judge Terrence McVerry found that even though the profile was unquestionably "lewd, profane and sexually inappropriate," the school did not have the right to restrict the student’s speech because school officials were not able to establish that the profile caused enough of a disruption on campus.

"The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the world-wide web," he wrote.

That case is pending in the U.S. 3rd Circuit Court of Appeals.

And another one in Florida:

In Florida, the ACLU sued a principal on behalf of a student who was suspended and removed from her honors class for "cyber-bullying." Katie Evans had created a Facebook page criticizing an English teacher as "the worst teacher I’ve ever met," and invited others to express their "feelings of hatred."

Her attorney, Matthew Bavaro, said the reach of the Web was irrelevant to whether a student is allowed to express themselves freely.

"The audience, whether it’s one person or 1 billion people, doesn’t change that Katie still had a First Amendment right," Bavaro said.

Opinions from courts and law professors seems to be unanimous:

Eugene Volokh, a First Amendment expert and law professor at the University of California, Los Angeles, who has criticized a bill in Congress that would make cyber bullying punishable by as long as two years in prison [said,] "People don’t appreciate how much the First Amendment protects not only political and ideological speech, but also personal nastiness and chatter. … If all cruel teasing led to suicide, the human race would be extinct."

* “Ashamed” probably isn’t the right word. It’s not like I have sleepless nights about it.

** You probably won’t be surprised to find out that the case arises from Beverly Hills, California and that the attorney for the student who posted the video is her father. The girl was awarded $1 in damages and the suspension removed from her record.