Feb 18, 2013

Justice Sotomayor’s “paternalistic streak” and “intellectual poll tax”

Adam Liptak has some sharp words for Justice Sotomayor, who changed her position with respect to allowing cameras in the Supreme Court:

Justice Sonia Sotomayor, populist, revealed a paternalistic streak this month, announcing that she had rethought her enthusiasm for video coverage of Supreme Court arguments.

At her confirmation hearings in 2009, she said she was in favor of letting citizens see their government at work. “I have had positive experiences with cameras,” she said. “When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.”

She was singing a different tune a couple of weeks ago, telling Charlie Rose that most Americans would not understand what goes on at Supreme Court arguments and so there was little point in letting them try.

“I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing,” she said. “They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.”

As a descriptive matter, she was right: making sense of a Supreme Court argument without substantial preparation is hard. But Justice Sotomayor’s approach also sounds like an intellectual poll tax that could just as well justify limiting attendance in the courtroom to people smart enough and diligent enough to know what is going on.

It is quite paternalistic, and elitist to assume that because the public cannot understand what goes on in Court, they should not be able to see it. Debates of arcane congressional debates likely go over the heads of many on C-SPAN, but they are available.

Kudos for Liptak for calling out Sotomayor, as well as Kagan, on flipping the script.

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Feb 18, 2013

In Memoriam: Irving Blackman (1918-2013)

On Sunday, we buried my grandfather. I include the eulogy my father and I delivered. Thank you all for your warm wishes and kind thoughts. In the Jewish tradition, we say that a person lives on by keeping close memories of them. I hope that my blog posts do a small part in that process (for Google will be around long after I am). My previous posts about Grandpa Irving are herehere, here, and here.

Here is my Dad’s touching eulogy.

My sister Alixandra delivered the very end, and recited the lyrics of The Impossible Dream.

2013-02-18_11-03-02_358Dad-
My siblings and I grew up in a home where we received a lot of love, humor, and above all music. In the last few years of my dad’s life, I was grateful I was able to give some of it back.
You see, my dad had many qualities and would like to be remembered as honest, humble, logical, loving, kind, good hearted, and above all funny.
Of all his unique abilities, he often said that it was his sense of humor that he treasured most.
Dad loved to tell this story, of how he placed the hand of a manikin, in his coat sleeve, and terrified his sister  Gerty.  Oh what he would do for a laugh.
On other occasion, I can remember,
one of mom and dad’s many charitable  functions, I of course played the guitar, dad dressed up as Tom Jones, came out with a wig, singing Delilah. Now if you ever heard my dad sing, you would know how funny it was.
Dad’s wonderful love for a quick joke actually saved his life.
During World WW II, dad enlisted in the Navy, where he thought he would be safe.
As dad used to tell the story, assigned to the top deck working the gun, he was telling jokes and his commanding officer was quite annoyed at him, and ordered him to the lowest deck, the engine room, often viewed as the most dangerous.
On the 24th of March 1945, the ship was escorting ships which were moving heavy artillery to the main holdings on Okinawa when Japanese suicide planes were intercepted by combat air patrol in the vicinity of Luce. But two enemy planes avoided the interceptors and attacked the ship from the portside. Luce shot down one, but the explosion from the bomb it carried caused a power failure.
Dad’s team of 4 sailors never heard the abandon ship message by the Capitan, because the explosion knocked out the communication

system. Still my father heard a voice, which he later said was directly from God, that there was something wrong.  He told the other sailors that he thought the ship was sunk. They thought he was joking. He left his quarters, and action that would have been subject to a court martial, went up the stairs, opened the hatch, and saw the ship was already sunk, he tried to rescue the 3 other sailors, but it was too late.
But his most dreadful day still did not end, because  dad could not swim, there was no time for dad to put on his life-jacket as he found himself in shark infested waters.

In this horror, he saw the same commanding officer who ordered him to the engine room with TWO life jackets. My dad tried to hold on to him, and he pushed dad away. Dad told him there were only two things that are going to happen. Either you give me a life jacket or I’ll take you down with me, or if I survive I’m going to tell everyone what a coward you were. He got the life jacket, was eventually rescued, received a medal of honor, and was officially listed as the last man off the ship.
Grandpa Irving’s MedalsHistory would record, that 126 of the 312 officers and men who were killed including the men on the top deck where my dad was originally stationed.
Dad had two loves in his life… My mom, Miriam Blackman, who passed away in 1991. And Gertrude Oer, who my dad married in 1994.  Dad told me early on how much he loved Gerry. And Gerry truly  loved my dad.
The last year of my dad’s life, Gerry quite literally would not leave his side. Sleeping on the couch next to my dad who was in a hospital bed, she would be there for him night after night. She was always concerned that he would be cold, and as dad moved his blanket off, she would be there to cover him. She was his constant companion, along with his aid, Marcia.
Gerry is an angel and I love being an active part of her life.
Up until the age of 90, dad was still driving, and was in reasonably good health. The last few years he gradually lost many essential skills. But there was one skill he would never loose until the very end. His smile.  His joyful ability, through all that fog, to still smile, and laugh. Sometimes a really loud laugh.  I called him every day, and began the conversation the same way, with a song. He loved hello dolly, I would sing hello daddy, he also loved, Delila. Dad had one final request for me.  Dad asked me to sing the Impossible Dream at his burial.

He especially loved the bridge.
This is my quest, to follow the starts, no matter how hopeless , no matter how far. To fight for the right, without question or pause. To be willing to march into hell for a heavenly cause: And I know, If I’ll only be true to this glorious quest, That my heart will lie peaceful and calm, When I’m laid to my rest.
And the world will be better for this, that one man, scorned and covered with scars, still strove with his last ounce of courage, to reach the un reachable star.
And that’s how he would have wanted it. Irving Blackman, a war hero, a father, grandfather, great grandfather, and my best friend.


My Eulogy

I did not speak from prepared notes, so I will do my best at trying to recreate what I said.

My grandpa always told a story from his childhood that stuck with me. When he was a boy, he found a $20 bill on the sidewalk (in the 1920s this was a huge sum of money). Rather than keeping it, he shoed it to his mother. His mother said that he should bring it to the police station and report that it was lost, and young Irving agreed. His father said he was nuts, and that the police would just keep the money. But Irving brought it back to the police station. [As an aside, I now realize that under the common law, the money was likely mislaid, rather than abandoned, and the proper thing to do would be to bring it to the authorities, or the least cost avoider of returning the money to the owner--in this case, the police. So Grandpa was right on the law].

This story always stayed with me. Grandpa always did the right thing, and never compromised his integrity. Towards the later parts of his life, he made me promise him that I would always do the right thing. He told me, that I would know what was right, and what was wrong, and I should do the right thing. I promised him that I would do that, and I try to keep this promise every day.

Last year, I was on line at the Shake Shack in Washington, D.C., and I found a $20 bill lying on the floor. I told the person at the counter that someone left the bill on the floor, and I asked them to hold onto it in case someone tries to claim it. Grandpa’s lesson was front and center in my mind when I did that. My friends said I was crazy, and that the cashier would simply pocket the money. I wouldn’t keep it.  [Under the common law, the owner of the shop is in the best position to reclaim mislaid personal property].

The way that we can live and keep Grandpa’s memory alive is by learning from his lessons. Do the right thing.

Grandpa’s other enduring lesson to all of us was to never stop living and learning. Grandpa never stopped growing. Later in his life, as he began to recognize his mortality, he had a renaissance, a rebirth if you will, of family. He recognized how important family was to him.  In his last years, all he wanted to to was to be with family, to speak with family, and to share his love and affection. I was very grateful to have developed such a close relationship with him over the past 15 years or so.

Take this lesson, and please don’t forget it. Do what grandpa would have wanted you to do. Pick up the phone, go pay a visit, and keep in touch with family. Because at the end of the day, as we stand here at this bitter cold graveside to bid Grandpa Irving farewell, all we have is family.

My Father’s Letter

My dad prepared this letter which he sent out to family members. I share it here.

2/15/2013

Good-bye Dad

We are living longer. Centenarians are the fastest growing segment of our population.
Longevity is a blessing, yet it comes with responsibilities. Especially for the well spouse, family members and friends,
who are responsible for the well-being of a loved one who is ill.

On February 15th 2013, my dad, a WWII hero, father of four, grandfather and my best friend, passed away at the age of
94. He would of liked to be remembered for his humility, honesty, and sense of humor. Like many baby boomers, the
story is the same

  • Mom & Dad age
  • Mom or Dad become ill
  • Children & grandchildren do their best as the process continues to its inevitable conclusion

The emotional and financial burden parental illness plays on the family can be enormous, yet so are the potential
blessings. Honoring your parents is a tradition which dates back to biblical times. 2,000 years ago, there were no nursing
homes, assisted living, or hospice. Yet the intention then was the same as it is today. To enable our parents to die with
dignity and self-respect.

For me, after my mom passed away in 1991, I gradually increased the frequency of my conversations with my dad. The
past few years we spoke daily. And when he could no longer speak because of his dementia, we sang .

Honoring dad during this period has been a deeply spiritual journey for me.

It was also a journey for my dad. He had a profound awareness that his days were numbered. The last years of his life
were the catalyst for enormous self-growth. We had many conversations where dad would talk about his regrets. On top
of the list, was not prioritizing enough family time. He only wanted one thing in the end; the love of his family.

One day our society will be judged by the way we take care of our aging sages. The need for studying elderly populations
is becoming more critical as we live longer. What it means to “age successfully” across the lifespan will become more
important.

I will close with the lyrics of a song my dad and I often sang together. He asked me to read the lyrics at his funeral ;
The Impossible Dream.

This is my quest. To follow the stars. No matter how hopeless. No matter how far. To fight for the right. Without
question or pause. To be willing to march into hell for a heavenly cause. And I know, if I’ll only be true. To this glorious
quest. That my heart will lie peaceful and calm. When I’m laid to my rest.

And the world will be better for this. That one man, scorned and covered with scars, still strove, with his last ounce of
courage. To reach the unreachable star.

 

 

Update: Here is the Eulogy delivery by Rabbi Stern of Arden Heights Boulevard Jewish Center.

Eulogy for Irving Blackman Yitzcak Ben Shmuel

Shiva at Jamie’s house 145 Eltingville Ave

 

We are here to say our final farewell to our dear Irving. We are of course saddened by his passing. But we would be remiss if we did not celebrate the life of a man who lived a full life with a loving family, who was blessed with children, grandchildren, and great grandchildren and wonderful spouses who supported and cared for him.

 

I had the privilege to spend time with Jamie, Iris, Josh, Alixandra, and Meredith reminiscing about what pops meant to this family, and I came away with a great deal of respect for a man who lived with integrity, who had an incredible sense of humor, a hearty laugh, a desire to see that his family was well taken care of and happy, a thirst for knowledge, and a passion for charitable causes that helped to improve the world we live in. I too had the privilege of meeting this larger-than-life man when he would come up from Florida to visit his son Jaimie. Irving would come to the temple with Jaimie and listen to Jaimie play guitar and sing for us during Friday night services. And you could just tell that pops Kvelled at listening to Jaimie play, and Jamie introduced his father with such respect and admiration.

 

Irving understood what it meant to appreciate family growing up in the depression, seeing his parents Sam and Ida having to sacrifice and forgoing a college education to join the Navy and defend our country in WWII. There he underwent harrowing experiences that Jamie will talk about. He was fortunate to have a large loving family of siblings: Saul, Gertie, Rosie, Norma, and Lilly with which he was able to share many growing up pains. Since he was the youngest, he was also his parent’s favorite and they gave him the confidence to become independent and principled. As their families grew, Irving spent quality time with them during family gatherings and holidays that now included nieces and nephews Eileen and Sherry, Joan, Leonard, Jerry and Bert, and Blossom. And Irving was lucky that his siblings all lived into their 90s.

 

From his parents, he also learned the value of being generous when he saw his parents give shelter to family that lost their livelihood in the depression. And when he married his wife Miriam he could reciprocate by helping out Miriam’s brother Jerry who was a victim of an uncaring system. When Irving found a cause to believe in, he threw himself into it passionately, such as for ARC which helps and houses special needs children that Jerry benefited from. Irving was president of his B’nai B’rith chapter and served as treasurer of Magen David Edom, Israel’s ambulance core. He believed strongly that Israel should not want for ambulances to save soldier’s lives. He raised money for the organization and won a distinguished award for his efforts. This was when he was 91 years old. And when he noticed that there was a path at Century Village where he retired in Florida that was not lit well, he lobbied to have lighting installed. They now call it the Blackman light.

 

But if there was a serious side to Irving, there was also a great gusto for life, a wonderful sense of humor, and a hearty laugh that was contagious and had people in stitches.

 

If Irving was not college trained, he was nevertheless intelligent and well read. He would spend hours in the library and continued to read two newspapers each day cover to cover. And he remembered what he read, which made him conversant on so many subjects, including politics and history, which he loved. He had hoped to be a journalist and worked on his school newspaper at Cleveland High. But with his talent for the gift of gab, he went to work as a salesman for an art supply company where he was respected for his knowledge and integrity. He worked for Plaza Art Supplies in Manhattan for 30 years. His creativity helped the company and artists improve their craft. He noticed that artists would cut products on a plastic triangle board that would crack when cut. So he designed a metal protector and received a patent for it. He called it the Cut–eze and his new company the Harv-Al after his sons. His position helped out when Susie went into art and he could supply her with what she needed.

 

His success was due in large part to the encouragement of his wife Miriam with whom he was able to apply his caring and generosity for 45 years. They might not have had a lot staring out–they lived with his parents at first–but after the military they got their own place, starting out in the projects of Bed Stye and working their way up to buying their own house. Irving attributes their decision to buy a home to his wife who told her board at the projects that they earn more than the maximum which resulted in losing their apt but giving them the courage to buy their own home in Canarsie where they lived happily for close to 25 years until Irving retired and moved with Miriam to Florida. He loved it there and with friends played cards, backgammon, and scrabble. And in the summer they would spend quality vacations in a home they bought in Monticello.

 

Life became full when they had children beginning with Harvey in 1942, Alan in 1948, and twins Jamie and Susan in 1952. Alan and Jaimie have fond memories of their father teaching them how to ride a bike which they still love to do. Alan told of the time his father taught him to ride but didn’t get around to the part where he taught him how to stop and inevitably precocious Alan went up a hill and came crashing down and his mom was horrified. Alan also remembers seeing his father come to bail him out in school where he got into trouble from time to time. Dad gave Alan great advice when he found him in a fight with another student and asked Alan whether the issue was worth fighting for. Alan thought and admitted that it wasn’t worth it and so let it go. Alan told me that he took this philosophy with him for the rest of his life. Irving helped the kids with their homework and passed on a love of reading and education. Jaimie told me that he and Susan would run out of the house to the bus stop to greet their father, so excited were they that he was home.

 

He bought Jaimie his first electric guitar which led to Jamie’s career and love of music and Jaimie treasures the picture he has holding that guitar. Fortunately, Jaimie was able to reciprocate the favor by playing and singing the songs his dad loved–even on Skype, which ended up giving pops endless pleasure, especially when he began his bout with dementia. Pops didn’t have the greatest voice but he loved to whistle, a talent that Jamie picked up. Jaimie would call him and sing to him every day using the video power of Skype. Whenever Jaimie would come to visit, Irving would grin from ear to ear and put on one of his patented smiles even at the end of his life when he had trouble recognizing who you were. Pops would visit Jaimie when younger to be with him and Iris for Passover and Thanksgiving.

 

Besides the delight his children gave, he had 9 new treasures, his grandchildren: Adam, Josh and Alixandra, Meredith, Alana, Jordana, and Zachary, Morgan and Grayson were his treasures. He said he could fill up a baseball team with them. He was very proud of Josh for his work in the legal system and read all his articles even if he didn’t understand them. He would hold one of them up and wave them to his neighbors. Josh had the privilege of conversing with his grandfather often and has fond memories of discussing grandpa’s opinions about judges and how they are appointed. Josh made a video of the conversation that he will always cherish. Irving would say about Jaimie or Josh or Meredith or whatever family member came by to visit that their attentiveness to him gave him a reason for going on. I can’t believe I am here,” he would say upon waking up on a new day.” He had the opportunity to welcome many new people who married into the family, including Toby, Iris, Serge, and Brian. Iris told me how much Irving respected her for the way she took care of her mother-in-law Miriam when Miriam became ill and was placed in Hospice living in Iris’s home. Irving said to her he couldn’t believe what Iris was willing to do to make Miriam comfortable.

 

Because Meredith lied some 20 minutes away from grandpa, she had the benefit of seeing him a lot. They became close as Meredith grew older and grandpa began to confront his mortality. She told me that rather than being depressed about being in his 90s, he renewed a sense of love for his family and wanted nothing more than to talk with them and see them. Josh called his greater need for his family a renaissance and Meredith explained to me that unlike the elderly who were set in their ways, Irving was willing to try to improve and get better in his relationships with and appreciation for his family. Jaimie, Josh, Alixandra, and Meredith told me that while Irving was too busy to have extended conversations with his children before retirement, now into his 90s he couldn’t get enough of talking to them. He wanted to know everything they were doing in detail.

 

And he became very concerned if he thought one of the grandchildren was behaving improperly. Josh tells this great story of when he came to visit and was bored so he told grandpa that he was going for a ride. He rented a car and went down to South Beach. At around 11:30 pm, after being out an hour or two, he gets a call from grandpa that he had to come home right away. Josh does and grandpa proceeds to give him a lecture on staying out too late and violating curfew. Josh is a grown man and didn’t even know that he had a curfew. But grandpa worried so much about his family that he did not want to see them get hurt. He would watch Meredith’s children like a hawk and when one of them would fall he would go into a panic.

 

When Meredith walked into the room, he would have flashes of awareness and smiled. She sang to him outlandish songs and he nodded. Meredith was proud that grandpa was able to meet her children Pierce and Beau. Pierce seemed to understand him and wasn’t afraid to be with him when he became ill. Along with his other great grandchildren Jack, Samantha, and Alexis, Irving never missed a birthday and gave $18–chai–to each one just as he had for his children and grandchildren. In fact, he had a list of these birthdays on his frige just to make sure he doesn’t forget. Meredith also told me that she was glad that she was there with him in his last hours so that he would know the family cared. She kissed him several times, one for each child, grandchild, and great grandchild. And Jamie and Josh came down to see him in his final days to let Irving know how much he was loved.

 

The family is proud that they could all be together to throw their father a 90th birthday party that Irving loved. Even by then, Irving was in good health and could enjoy life. He had his own teeth and hair that made him a good catch.

 

That catch was made by Gerry who added on years to his life by her caring for him. They met at a JCC single’s mixer in 1992 and they were married in 1994, enjoying 18 years of happiness. When Irving became ill and was on hospice for 7 months, it was Gerry that slept on the couch next to his bed so that if his covers fell off, she would be there to pick them up for him. Gerry, the family wants you to know how much they admire your care for Irving and the sacrifices you made.

 

Irving was a very spiritual person and people could feel the loving nature that flowed through his veins. He became spiritual when he had a premonition that his Navy boat would sink and he was able to get himself out before it did. He never forgot that incident and was thankful to G-d for saving him. He belonged to a synagogue in Century Village and attended High Holiday services. He had the privilege of visiting Eretz Yisrael with Alan to celebrate Zachary’s bar Mitzvah.

 

We have so many cherished stories of Irving in his relationship to each one of his family members and it is a tribute to Irving that his caring, values, and hard work rubbed off on his children and grandchildren. And through stories we tell, his great grandchildren will one day come to know of his role in this family and to respect him.

 

Thank you Irving for all you have done for this family, for giving them their values, their intelligence, their integrity, their honesty, their sense of humor, caring, and passion for life and for charitable causes. Irving was a blessing that we will always treasure. And now reunited with his beloved wife Miriam, he can look down and kvell at the beautiful family they generated, nurtured, and loved.

 

Rest in peace, Irving. Rest in peace.

 

 

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Feb 18, 2013

Why is it “Attorneys General” (plural) but not “Attorney’s General” (singular possessive)?

With “Attorney General,” general modifies the noun attorney. Thus, when there is more than one Attorney General, you would write “Attorneys General.” This makes sense. You make the noun plural by adding an “s” to it.

The WSJ Law Blog wrote a post about this some years ago.

Researching the term’s history, our crack staff came across this article by Michael Herz, a professor at Cardozo Law School. Historically, “general” refers not to rank or command but to the breadth of their practice. The first known use of the term “attorney general” occurred in England in 1398 in a certificate from the Duke of Norfolk’s four attorneys general. These lawyers were known at first as general attorneys, and later came to be known as attorneys general. Hence, the awkward phrasing.

This is also why referring to the Attorney General or the Solicitor General as simply “General” is wrong and undeserved, with all respect to the Attorney General and Solicitor General. The only General at the Supreme Court is General Suter.

But why does it get messed up when you make it possessive. Say, for example, you wanted to refer to a brief the Attorney General filed.

I would think it is correct to write “the Attorney’s General brief.” But that sounds off. I would write “the Attorney’s General’s brief.”

But why would you make the adjective possessive?

A quick Westlaw search of AllFeds confirms this. I found only 224 hits for “Attorney’s General” and 10,000+ hits for “Attorney General’s.”

In the Supreme Court database I found 2 hits for “Attorney’s General.” One from a 1982 O’Connor opinion in Landon v. Plasencia that I am pretty sure is a typo:

Voluntary departure for an alien who would otherwise be deported also means that he will not be subject to s 212(a)(17), 8 U.S.C. s 1182(a)(17), which at the time of Plasencia’s hearing, required aliens who had once been deported to seek prior approval of the Attorney’s General before re-entering

The other is from Justice McLean’s dissenting opinion Ex Parte Wells (1855). I also think this is a typo.

Nor have either of the laws been referred to by any one of the attorney’s general who have been consulted on the subject, and who have given elaborate opinions, and particularly Mr. Wirt, who dwells upon the difficulty, if not impracticability, of carrying out the condition on which the pardon was granted, without specific legislation

So what gives.

Why is it Attorneys General but not Attorney’s General? Or Solicitors General but not Solicitor’s General?

I usually avoid this problem by writing AG’s or SG’s, but that can’t be right.

I guess that we have treated the word General as a noun for purposes of the possessive, as we treat it as a noun for addressing the office-holder as General. So why must we treat the word General as an adjective only for purposes of pluralization!?

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Feb 18, 2013

Collective Action Problems and Beating The Curve

When I was a 1L, my contracts professor, and now FTC Commissioner Josh Wright, gave our class a proposition which we refused–if everyone accepts a B (the forced average at the time), he would not make us take the exam. Rationally, anyone who was expecting to receive below a B (more than half the class) would accept this great offer. Anyone who expected to receive a score greater than a B (less than half the class) would reject this offer (I fell in this group). Unsurprisingly, the bottom half could not persuade the top half.

At Johns Hopkins, an entire class figured out how to beat the system with a similar offer.

From Inside Higher Ed:

Since he started teaching at Johns Hopkins University in 2005, Professor Peter Fröhlich has maintained a grading curve in which each class’s highest grade on the final counts as an A, with all other scores adjusted accordingly. So if a midterm is worth 40 points, and the highest actual score is 36 points, “that person gets 100 percent and everybody else gets a percentage relative to it,” said Fröhlich.

As the semester ended in December, students in Fröhlich’s “Intermediate Programming”, “Computer Science Fundamentals,” and “Introduction to Programming for Scientists and Engineers” classes decided to test the limits of the policy, and collectively planned to boycott the final. Because they all did, a zero was the highest score in each of the three classes, which, by the rules of Fröhlich’s curve, meant every student received an A.

It’s genius. But how could they avoid the collective action problem? What if one student went inside scribbled his name and left. He would get the A, and everyone else would do worse.

“The students refused to come into the room and take the exam, so we sat there for a while: me on the inside, they on the outside,” Fröhlich said. “After about 20-30 minutes I would give up…. Then we all left.” The students waited outside the rooms to make sure that others honored the boycott, and were poised to go in if someone had. No one did, though.

Wow, the pressure of seeing your classmates holding you back. Kudos to the capos coordinating this cabal.

Andrew Kelly, a student in Fröhlich’s Introduction to Programming class who was one of the boycott’s key organizers, explained the logic of the students’ decision via e-mail: “Handing out 0’s to your classmates will not improve your performance in this course,” Kelly said.

Students used a spreadsheet on Google Drive to keep track of who had agreed to the boycott, for instance. And social networks were key to “get 100 percent confidence that you have 100 percent of the people on board” in a big class.

That’s pressure.

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Feb 18, 2013

My Op-Ed in USA Today about Constitutionality of Steven Tyler Act and Privacy in Public

Ilya Shapiro and I published an Op-Ed in USA Today discussing the constitutional implications of the Steven Tyler Act, which creates liability for photographing people in public. Here is an excerpt.

In a brazen giveaway to celebrities who like to like to vacation on its pristine beaches, Hawaii is about to bid a sorry aloha to the First Amendment.

The 50th state is poised to pass the “Steven Tyler Act.” The bill, named after — indeed, written by — the Aerosmith frontman, could punish anyone who takes a photograph of a celebrity in public. That includes a tourist who takes out her iPhone to snap a pic of a rock star or, perhaps, the Obama family.

The law would prohibit recording someone “in a manner that is offensive to a reasonable person,” while that person is “engaging in a personal or familial activity.” The Steven Tyler Act not only departs from a century’s worth of privacy laws, but does so at a huge cost to the First Amendment’s guarantee of the freedom of speech.

There are several significant constitutional defects.

Protecting privacy in public is a laudable goal. Indeed, we’re all affected by the sweet emotion of seeing celebrities harassed by the paparazzi (think of Princess Diana). The Steven Tyler Act, however, misses a very important thing — that privacy and the First Amendment can coexist.

Hawaii shouldn’t walk this way. Instead it should promote the right of privacy that our society should strive for, while ensuring the freedom of speech. Let’s not be jaded by the social costs of freedom. Anything else is just crazy.

My previous posts on this troubling law are here, here, and here.

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