Adventure at The Computer History Museum

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October 27, 2013

What do two geeks do on a Sunday? Go to the Computer History Museum.

The Computer History Museum is geek Heaven. You can walk the halls and see the beginning of the computer revolution, from the Babbage Engine to Apple 1.

I would hold a Legal Geeks conference at the Computer History Museum or The Tech Museum of Innovation if we ever put one together. I always hold those with the skill to design, engineer and turn an idea into a reality in very high regard. Many times those ideas have been drawn on cocktail napkins, but every one of them has involved vision and years of hard work.

The 7th Wonder of the Geek World

I had the good fortune to enjoy the Computer History Museum with Leslie Crystal.

For those who have not met Leslie, she is an IP paralegal, cosplayer and classic geek.

She also plays a mean game of Pong.

In the Valley of Pong

My family owned Rooster T. Feathers Comedy Club in Sunnyvale during the late 1990s. Prior to becoming Roosters, the building was the Country Store; prior to that, it was Andy Capps’ Tavern.

The building holds the honor of being where the first Pong machine was played.

We often had geeks stop by on a pilgrimage to see the spot where the Pong machine was set-up. I am sure whoever lives at 1066 Crist Drive in Los Altos, California has similar experiences with those wanting to see Steve Jobs’ childhood home.

Leslie and I enjoyed the video game section of the Museum. Video games were a happy part of my growing up in the 1980s. That being said, it was emotionally disturbing to see a Colecovision from my childhood as a museum exhibit.

I enjoyed many hours in the garage playing on our Coleco Vision. Yes. I said the garage. My mother’s deterrent to my brother and I playing for too long. That ended after she played Frogger.

Just How Much Litigation Involves Video Games?

Answer: A lot. Lawyers have unlimited lives when it comes to video games and lawsuits.

Pong had seen its share of litigation. Here is how one Court accounted for the creation of the video game industry:

39. Pong was designed and built by Nolan K. Bushnell and Allen Alcorn of Atari.

40. Prior to August 21, 1969, Bushnell had had extensive experience in the field of coin-operated amusement games, had been employed as a television technician, and had had experience in the programming of general purpose, stored program, digital computers and had had experience in the programming of general purpose, stored program, digital computers operated in conjunction with cathode ray tube displays. Prior to this date, he had not invented, designed, built, or constructed any apparatus for playing games using a television type, raster scan display; and he had no knowledge of the existence of any apparatus for playing games using a television type, raster scan display:

41. Prior to August 21, 1969, Bushnell had no knowledge of the existence of any apparatus using a cathode ray tube display for simulating the playing of the game table tennis or ping pong.

42. On May 24, 1972, and while employed by Nutting Associates, Inc., Mountain View, California, Bushnell attended the demonstration of the Magnavox Odyssey television game in Burlingame, California and saw the game played; he had gone to that show for the specific purpose of seeing the Magnavox Odyssey television game. He saw the Odyssey television game in use to play a game simulating ping pong and actually played that game.

43. Some time after June 26, 1972, Allen Alcorn became an employee of Atari and Bushnell assigned Alcorn the task of developing a video game which would simulate a tennis game. [*15] His work resulted in an arcade video game named “Pong”, first manufactured and sold by Atari in 1973.

44. The display of this game, shown on a picture tube screen, included a white rectangular symbol on the right side of the screen representing a first player, a white rectangular symbol on the left side of the screen representing a second player, and a symbol which moved across the screen representing a ball. Player controls were provided so that each human player could move his corresponding player symbol on the face of the screen. Each human player manipulated his corresponding symbol to intercept the path of the ball as it moved across the screen. When the player symbol intercepted the ball symbol, i.e., two symbols appeared to be coincident on the screen, the motion of the ball was changed and, in particular, the horizontal motion of the ball was reversed so that it traveled back toward the other player.

45. Following the commercial introduction of the Atari arcade Pong game, many other manufacturers commercially introduced similar arcade games having a display substantially the same as Pong. Those games included the games TV Ping Pong, TV Tennis, Olympic TV Hockey, and TV Goalee by Chicago Dynamic Industries, Inc., the games Paddle Ball, Pro Hockey, Pro Tennis, and Olympic Tennis by Seeburg Industries, Inc., Paddle Battle and Tennis Tourney by Allied Leisure Industries, Inc., and Winner and Playtime by Midway Mfg. Co.

46. The Atari arcade Pong game was the first arcade television game to be sold in large quantities. It, and games substantially identical to it, were responsible for the creation of the arcade television game industry.

The Magnavox Company & Sanders Associates, Inc., v Mattel, Inc., et al, 1982 U.S. Dist. LEXIS 13773 at *13-16; 216 U.S.P.Q. (BNA) 28.

Even the Courts Had Pacman Constitutional Fever

There is a certain joy in playing Pacman. Leslie demonstrate her skills playing the 1980s classic. However, she was not the only one who has played Pacman. Many judges and members of Congress have as well.

You know a video game is popular when Congress and the Courts are using it to describe legal theories. Pacman is one such game.

The drafters of the Kastenmeier Amendment somehow convinced the Congress that core judicial power, which in our federal system historically may be exercised only by Article III judges in the adjudication of private rights, may be subordinated constitutionally to core bankruptcy power and disregarded when private rights are adjudicated in an action known as a core bankruptcy proceeding. Perhaps this core-may-eat-core theory of constitutional law was so readily accepted by Congress because we are all enamored of computer games in which it is permissible for a charismatic, electronically-created creature to gobble up every other creature that crosses its path and moreover score points by doing so. Why not introduce such an enigmatic, animated creature into the field of bankruptcy law in the form of a core bankruptcy proceeding and let it feed on private rights. We might denominate this Pacman constitutional law.

///

Simply put, the Supreme Court has rejected the Pacman theory of constitutional law on which the Kastenmeier Amendment is based.

In re L.T. Ruth Coal Co., 66 B.R. 753, 772-774 (Bankr. E.D. Ky. 1986).

LeslieCrystal_3157 — Leslie fighting a case of Pacman fever.

When Geeks Go to Trial Over Computers

Honeywell, Inc. v. Sperry Rand Corp., is arguably the grandfather of eDiscovery cases. The case involved the man who invented the first computer, John V. Atanasoff, who was a professor at Iowa State University from 1937 to 1942. His story even involves a long drive, stopping for a beer and making notes on a napkin.You would think it took place in Silicon Valley, except it was Iowa and a bar at the Illinois border.

Atanasoff and Clifford Berry began building the first computing machine in December 1939. The device was “capable of solving with a high degree of accuracy a system of as many as 29 simultaneous equations having 29 unknowns.” Honeywell, Inc. v. Sperry Rand Corp., 1973 U.S. Dist. LEXIS 15600, at *74-79 (D. Minn. 1973).

Plaintiff Honeywell had 25,686 trial exhibits; the Defendant 6,968. The Court described the trial exhibits as follows:

Many of the exhibits were extremely voluminous, including both documents of great length and also collections of multiple documents designated as single exhibits. For example, PX-1 is a 496 page book describing the 19th century work of Charles Babbage relating to early digital computing, and DX-2 is a collection of documents relating to the ENIAC patent application, occupying a four-drawer legal filing cabinet; DX-1, the ENIAC patent itself, comprises 91 sheets of drawings and 232 columns of closely printed text.

Honeywell, Inc. v. Sperry Rand Corp., 1973 U.S. Dist. LEXIS 15600, 7-8 (D. Minn. 1973).

The Computer History Museum has replicas of the Babbage Difference Engines 1 and 2. The engine fills a room.

Babbage_8971 — The Babbage Engine is an automatic, mechanical calculator designed to tabulate polynomial functions. It was designed in 1843, has 8,000 parts, 5 tons and 11 feet long. It is hand crank.

The complexity of patent litigation has not decreased with time. One only needs to look at the Apple v Samsung litigation to see that complex lawsuits still have many exhibits. We can just organize them better.

The Game’s Not Over

The Computer History Museum always gives me a sense of Zen about eDiscovery. The exhibits represent lifetimes of extremely hard work and dedication from the 19th and 20th Centuries. I do not see technology as being a source of litigation, but one of wonder. I truly respect those who can dream and create the future.

Skye Fall: Treason on Agents of SHIELD

By

Josh Gilliland

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October 23, 2013

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One may think disloyal thoughts and have his heart on the side of the enemy. Yet if he commits no act giving aid and comfort to the enemy, he is not guilty of treason. He may on the other hand commit acts which do give aid and comfort to the enemy and yet not be guilty of treason, as for example where he acts impulsively with no intent to betray. Two witnesses are required not to the disloyal and treacherous intention but to the same overt act.

Justice William Douglas

Kawakita v. United States, 343 U.S. 717 (U.S. 1952)

We knew it would happen: Is Skye a traitor? Does Skye’s communications with Miles of the Rising Tide in episode five of Agents of SHIELD “Girl in the Flower Dress” amount to treason?

Let’s first review the crime of treason to understand whether or not Skye is a traitor. Acts of Treason

The United States Constitution defines the crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

Two World War II era cases are very helpful in understanding what is “treason.”

Meeting for a Beer is Not Treason

In Cramer v. United States, the Defendant was a naturalized US citizen who had immigrated from Germany after the first World War. He was convicted of treason because of his actions with two other Germans who had enter the country via submarine to cause acts of sabotage. Cramer v. United States, 325 U.S. 1 (U.S. 1945).

Justice Jackson wrote the Supreme Court opinion overturning Cramer’s conviction.

Justice Jackson had a masterful prose in his opinions. He would also prosecute Nazi war criminals at Nuremberg. His opening statement in the prosecution of those Nazi monsters should be required reading in every world history class.

Cramer’s innocence turned on the fact his actions did not amount to treason under the law. He did not know the purpose of the Germans who had entered the country, but suspected his friend had returned by submarine. Cramer’s actions included the following:

1) Responding to an unsigned note on his door to meet;

2) Meeting his former friend for drinks;

3) Getting in touch with the German’s girlfriend; and

4) Putting money in a safe deposit box for the German.

The trial judge at the time of sentencing said:

“I shall not impose the maximum penalty of death. It does not appear that this defendant Cramer was aware that Thiel and Kerling were in possession of explosives or other means for destroying factories and property in the United States or planned to do that.

“From the evidence it appears that Cramer had no more guilty knowledge of any subversive purposes on the part of Thiel or Kerling than a vague idea that they came here for the purpose of organizing pro-German propaganda and agitation. If there were any proof that they had confided in him what their real purposes were, or that he knew or believed what they really were, I should not hesitate to impose the death penalty.”

Cramer, at *5-6.

The Supreme Court reversed the conviction, on the grounds the overt acts were not sufficiently proven. Justice Jackson stated for the Court:

It is not difficult to find grounds upon which to quarrel with this constitutional provision. Perhaps the framers placed rather more reliance on direct testimony than modern researches in psychology warrant. Or it may be considered that such a quantitative measure of proof, such a mechanical calibration of evidence is a crude device at best or that its protection of innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason rule, whether wisely or not, is severely restrictive. It must be remembered, however, that the Constitutional Convention was warned by James Wilson that “Treason may sometimes be practiced in such a manner, as to render proof extremely difficult — as in a traitorous correspondence with an Enemy.” The provision was adopted not merely in spite of the difficulties it put in the way of prosecution but because of them. And it was not by whim or by accident, but because one of the most venerated of that venerated group considered that “prosecutions for treason were generally virulent.” Time has not made the accusation of treachery less poisonous, nor the task of judging one charged with betraying the country, including his triers, less susceptible to the influence of suspicion and rancor. The innovations made by the forefathers in the law of treason were conceived in a faith such as Paine put in the maxim that “He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself.” We still put trust in it.

Cramer v. United States, 325 U.S. 1, at *12-48 (U.S. 1945).

The American Student in Japan Who Tortured POWs Was a Traitor

A first generation Japanese-American was found guilty of committing treason during World War II. The Defendant had traveled to Japan on a US Passport in 1939. The Defendant started college in Japan in the March of 1941. The Defendant had renewed his US Passport twice and was registered with the Japanese police as an alien while in college. The Defendant did not finish school until 1943. Kawakita v. United States, 343 U.S. 717, 720-721 (U.S. 1952).

The Defendant was employed by the Oeyama Nickel Industry Co., Ltd. during the war as an interpreter. He never joined the Japanese Army. Id.

American POW’s who survived the Bataan Death March were used by Oeyama Nickel Industry Co., Ltd. for slave labor in a mine to process 200 carloads of ore a day. They were beyond sick and unhealthy. The Defendant did not simply act as a translator towards the POW’s. His actions included, “swearing at the prisoners, beating them, threatening them, and punishing them for not working faster and harder, for failing to fill their quotas, for resting, and for slowing down.” Kawakita, at *737.

The Defendant would have only been on trial as a war criminal if he had lost his US citizenship. However, the Supreme Court held the Defendant never lost his US citizenship during the war.

Justice Douglas stated:

There were two overt acts in this category. Overt act (a) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner kicked a prisoner named Toland who was ill, because he slowed down in lifting pieces of ore rocks from the tracks at the factory to keep the tracks clear. Toland had suffered a dizzy spell and slowed down. Petitioner told him to get to work and thereupon kicked him, causing him to fall flat and to cut his face and hand. Another prisoner wanted to pick Toland up; but petitioner would not let him. Overt act (j) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner struck a prisoner named Armellino, who was weak and emaciated, in order to make him carry more lead. Armellino had been carrying only one bucket of lead. Petitioner thereupon struck him, causing him to fall. When he got up, petitioner forced him to carry two buckets, pushing him along.

Each of these acts was aimed at getting more work out of the prisoners — work that produced munitions of war for the enemy, or so the jury might have concluded. The increased efforts charged in overt acts (a) and (j) were small; the contribution to the war effort of the enemy certainly was minor, not crucial. Harboring the spy in Haupt v. United States, supra, was also insignificant in the total war effort of Germany during the recent war. Yet it was a treasonable act. It is the nature of the act that is important. The act may be unnecessary to a successful completion of the enemy’s project; it may be an abortive attempt; it may in the sum total of the enemy’s effort be a casual and unimportant step. But if it gives aid and comfort to the enemy at the immediate moment of its performance, it qualifies as an overt act within the constitutional standard of treason. Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 126, “If war be actually levied, . . . all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” These two overt acts, if designed to speed up Japan’s war production, plainly gave aid and comfort to the enemy in the constitutional sense.

Kawakita, at *738-739.

There were other overt acts of cruelty to American prisoners of war.

Justice Douglas drove home the ruling with the following:

These were not acts innocent and commonplace in appearance and gaining treasonable significance only by reference to other evidence, as in Cramer v. United States, supra. They were acts which showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance to the United States. They showed conduct which actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests. These acts in their setting would help make all the prisoners fearful, docile, and subservient. Because of these punishments the prisoners would be less likely to be troublesome; they would need fewer guards; they would require less watching. These acts would tend to give the enemy the “heart and courage to go on with the war.”

Kawakita, at *741-742, quoting Lord Chief Justice Treby in Trial of Captain Vaughan, 13 How. St. Tr. 485, 533.

Skye Fall

Did Skye commit overt acts against the United States? Are there two witnesses to the same overt acts? Did Skye give aid and comfort to the enemy at the immediate moment of its performance?

The question is whether Skye provided aid to the enemy.

Skye’s actions of texting Miles with the Rising Tide are more than meeting someone for a drink or putting money in a safety deposit box like in Cramer v. United States, but not near the actions of the Defendant in Kawakita.

Skye might have had disloyal thoughts towards SHIELD in her belief that information should be free, but that would not make her a traitor.

The question is did she ever communicate anything to The Rising Tide at the moment of its performance (assuming the group is a threat to the United States such as Nazi Germany or a terrorist group)?

That answer might be yes. If Skye actually provided Miles with the information he sold to Centipede, she actively, though unknowingly, aided an international hostile group experimenting on human beings with the intention of giving them powers. Skye would have a weak defense if she claimed she did not know about the sale, only the goal that the information be freely available to all. This is a weak defense because freely available classified information in the hands of a terrorist group that is top secret is just as bad as the terrorists paying for the information. The bad guys still have the information. That means people will die.

However, it does not appear Skye actually gave Miles the information.

Skye claimed she only communicated with Miles, once after she joined SHIELD and before SHIELD’s attempt to arrest him. The direct support to Miles to help him escape arguably was providing aid and comfort to an international state enemy at the moment of his performance to avoid capture. This would definitely be more than an innocent message like Cramer, because Skye knew that Miles had hacked the information that had caused Chan to be captured. Moreover, these actions show Skye’s intent to betray not just SHIELD, but the United States.

Epilog: Thanks for Mentioning the Constitution

It was good to hear Miles say his rights were being violated after being arrested by SHIELD. Skye’s comment that SHIELD did not have time to observe Due Process was an oblique reference to the Public Safety Exception to Miranda Rights. While not a clean explanation, Skye basically justified SHIELD’s actions on the exigency to fly the 8,200 miles from Austin, Texas to Hong Kong to save Chan from Centipede. Time was of the essence to stop greater wrongs from happening.

That being said, SHIELD could still use a lawyer on call to answer these questions (like the ramifications of leaving a prisoner in a foreign country and giving his ill-gotten gains away). Jessica and I are available if the need arises.

Remembering Tom Clancy

By

Josh Gilliland

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October 17, 2013

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I will miss having Tom Clancy in the world. Few people can study up on subject matter to become an amazing writer. Clancy represented what someone could do in their life through hard work and creativity. We should not forget he was an insurance broker before publishing The Hunt for Red October.

I was not the only lawyer to read Tom Clancy novels; many Judges did too.

Here are highlights of Court opinions referencing Tom Clancy:

As anyone familiar with the novels of Tom Clancy will know, a towed sonar array is a listening device dragged behind submarines and surface ships. Silence is essential; a noisy towed array reduces optimal sound detection and increases the possibility that enemy submarines and ships will go undetected.

Martin Marietta Corp. v. Gould, Inc., 70 F.3d 768, 770 (4th Cir. Md. 1995).

We suspect that if the arbitrator had truly wanted to hide bias, he would simply have kept his mouth shut. Tom Clancy novels do not have plots as thick as the one Smothers suggests.

Smothers v. Cigna Health Plans of Cal., 2001 Cal. App. Unpub. LEXIS 1330 (Cal. App. 4th Dist. Nov. 27, 2001).

Certain pro se cases consume more resources than others. Plaintiff’s Complaints, for example, have generated hundreds of pages of motion papers and affidavits from defendants. Were I to address each of plaintiff’s claims individually and each defendant’s corresponding arguments this Opinion would be the length of a Tom Clancy novel. However, the legal issues raised by plaintiff’s claims and defendants’ motions are not terribly complex. Furthermore, many [*6] of the defendants’ motions share common ground. Thus, for efficiency’s sake, I will address plaintiff’s claims and defendants’ motions in appropriate groups.

Jones v. Trump, 1997 U.S. Dist. LEXIS 7324, 5-6 (S.D.N.Y. May 22, 1997).

I’d say any nominees for Secretary of Defense, Secretary of State, Director of the CIA and Homeland Security should be questioned by the Senate on Tom Clancy books. Clancy’s view of what could be a threat often had a real chance of happening. Like how do defend against a plane crashing into the Capital Building during a joint session of Congress.

An interviewer asked Tom Clancy after the collapse of the Soviet Union what he was going to do for “bad guys” in his books.

Clancy’s answer was hauntingly true with, “There will always be bad guys.”

The man understood national defense, had great respect for the military and helped children with cancer. We certainly could use more people like him.

Eyes on Agents of SHIELD

By

Josh Gilliland

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October 16, 2013

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The fourth episode of Agents of SHIELD “Eye Spy” presented several legal issues for criminal activity in foreign countries. How exactly would former Agent Akela Amador get a fair trial for the crimes she committed?

I Had a Bomb in My Eye Defense

Agent Amador had been very busy stealing diamonds and Lord knows what other crimes. A defense attorney would be able to look a judge right in the eye and say, “She had a bomb in her head.”

In a blink of an eye, we have the necessity defense.

Everything Amador did was done while she was under the control of whoever was controlling The Englishman, because 1) her controller could see through her right eye; 2) Amador felt pain when she did not comply with orders and 3) the bionic eye contained an explosive device for a fail safe.

Judge Robert Boochever summarized the necessity defense as follows:

Necessity is, essentially, a utilitarian defense. See Note, The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience, 39 Stan. L. Rev. 1173, 1174 (1987). It therefore justifies criminal acts taken to avert a greater harm, maximizing social welfare by allowing a crime to be committed where the social benefits of the crime outweigh the social costs of failing to commit the crime. See, e.g., Dorrell, 758 F.2d at 432 (recognizing that “the policy underlying the necessity defense is the promotion of greater values at the expense of lesser values”) (citation omitted). Pursuant to the defense, prisoners could escape a burning prison, see, e.g., Baender v. Barnett, 255 U.S. 224, 226, 65 L. Ed. 597, 41 S. Ct. 271 (1921); a person lost in the woods could steal food from a cabin to survive, see Posner, An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193, 1205 (1985); an embargo could be violated because adverse weather conditions necessitated sale of the cargo at a foreign port, see The William Gray, 29 F. Cas. 1300, 1302 (C.C.D.N.Y. 1810)(No. 17,694); a crew could mutiny where their ship was thought to be unseaworthy, see United States v. Ashton, 2 Sumn. 13, 24 F. Cas. 873, 874 (C.C.D. Mass. 1834)(No. 14,470); and property could be destroyed to prevent the spread of fire, see, e.g., Surocco v. Geary, 3 Cal. 69, 74 (1853).

United States v. Schoon, 971 F.2d 193, 196 (9th Cir. Cal. 1992).

Defendant Amador could point to her eye patch and eye-bomb debris as Exhibits A and B to show she was under duress to commit international crimes. Exhibit C could be the body of The Englishmen to prove what would have happened to her for non-compliance. It would be extremely difficult to rule against Amador for the crimes she committed while being controlled through pain and threat of death.

However, as Amador’s body count goes up (she did after all kill a bunch of guys), her defense would be significantly weakened. Killing innocents out of necessity is something Courts would not give a free pass to a Defendant, no matter how creepy the red masks.

Skye is a Peeping Tom

The final moments of the episode show Skye is not just a hacker, but a Peeping Tom.

Skye “life hacks” Agent Ward’s own vision, which enabled her to see through his eyes. Just to make life interesting, this privacy invasion also includes x-ray vision: Skye could see Ward naked (and anyone else Ward was looking at).

Skye is a very bad girl.

Ward and anyone within his field of vision would have multiple invasion of privacy claims against Skye. HR would also have a field day with the sexual harassment allegations.

Agent Ward could demonstrate that Skye violated his right to privacy by showing the following:

1) Ward had a reasonable expectation of privacy in his own eyes and everything he sees in private, such as himself naked;

2) Skye intentionally intruded into Ward’s vision;

3) Skye’s intrusion would be highly offensive to a reasonable person; and

4) Ward would be harmed if he learned of such invasion, let alone the damage to manager-direct report employment relationship.

See generally, 3-18 California Forms of Jury Instruction 1800.

It is unlikely Ward could prevail on a cyber-stalking claim, because most cyber-stalking statutes require electronic communications. See, Fla. Stat. § 784.048(c), “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose, or Miss. Code Ann. § 97-45-15(a) Use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.

Skye was stalking Ward with his own eyes by electronic means, however she was not sending him messages, thus missing an element of the violation.

Finally, while Skye did have a valid HR claim against Agent Ward after being told to use a water bottle for bathroom facilities, “life jacking” Ward’s vision was not the proper response. Go to HR with such claims.

Impersonating a State Leader in Doctor Who Enemy of the World

By

Josh Gilliland

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October 11, 2013

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Raise your sonic screwdrivers and raise them high!

Doctor Who fans around the world are absolutely gleeful to have two classic Second Doctor stories found from the abyss of time. It is literally “new” old Doctor Who.

Enemy of the World takes place before December 31, 2018. The Second Doctor finds out he looks exactly like a would be global dictator named Salamander.

Patrick Troughton showed his acting chops playing both the hero and villain.

The Doctor is asked whether he was a doctor of law after saying he was not a medical doctor. The answer: Which Law?

The story poses a legal issue of the Doctor impersonating Salamander. What happens when someone impersonates a state leader?

As for which laws, I will focus on the United States:

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

18 USCS § 912

Statutes forbidding impersonation may require a showing that someone was deceived into following a “course [of action] he would not have pursued but for the deceitful conduct.” United States v. Alvarez, 132 S. Ct. 2537, 2554 (U.S. 2012), citing United States v. Lepowitch, 318 U.S. 702, 704, 63 S. Ct. 914, 87 L. Ed. 1091 (1943).

In episodes one and two of Enemy of the World, the Doctor impersonates Salamander.

The Doctor was successful in convincing Salamander’s security officer that he was Salamander. But for the Doctor’s conduct, the security officer would have taken a different course of action in carrying out his orders. If Salamander had been a US President, the Doctor would have broken the law.

Luckily, Salamander was not a US official, but a very mean man with dreams of global domination. That being said, I do not recommend ever to impersonate a world leader, especially a crazy one with dreams of conquest.

Tased By SciFi in Court

By

Josh Gilliland

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October 9, 2013

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Judges are not shy when it comes to referencing science fiction in their opinions.

District Judge WM. Terrell Hodges should get an award for mentioning the 1911 story Tom Swift and his Electric Rifle AND Star Trek in discussing whether someone is “tased” or “tasered” in a footnote. Here is the full quote from Chambers v. United States:

In a number of its decisions the Eleventh Circuit has confronted the need to describe succinctly the act of using a taser (an acronym for “Thomas A. Swift’s electric rifle” [a fictitious weapon] and an echo of “maser,” “laser,” and perhaps the science fiction “phaser” [from Gene Roddenberry’s Star Trek]). Although uniformly deploying “tasing” as the participle and gerund, the court has created some precedential inconsistency by using “tased” as the simple past tense on some occasions, and by using “tasered” at other times. It appears that “tased” is the most frequent choice, and in the absence of an en banc resolution to the contrary, I will lemmingly follow the present majority and used “tased” as the simple past tense. This results finds support in the authoritative American Heritage Dictionary of the English Language which offers “tased, tasing, tases also tazed or tazing or tazes,” but no verb with the root “taser-.” Although stating no decision on the proper past tense or participle, the latest iteration of the Oxford English Dictionary declares for the adjectival and past participial form “tasered,” as in “the tasered inmate.”

Chambers v. United States, 2013 U.S. Dist. LEXIS 114288, 4-5 fn3 (M.D. Fla. Aug. 13, 2013).

The concept of a taser is not new. Jules Vern described such weapons in the eternal classic 20,000 Leagues Under the Sea with the Leyden Ball in 1870. I am sure there are similar non-lethal weapons recurring across science fiction from the late 19th and early 20th centuries.

Hats off to Judge Hodges for a footnote breaking down whether it is “tased” or “tasered” and including classic science fiction.

Cancer, the First Amendment & I [Heart] Boobies Bracelets in Schools

By

Josh Gilliland

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October 4, 2013

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October is Breast Cancer Awareness month. One would not expect Breast Cancer Awareness to intersect with the First Amendment, but there have been multiple cases on the issue involving public school students.

I lost my grandmother to breast cancer. My grandmother was a dynamic and elegant woman who was Ms. Sioux City before World Ward II. Grammy was also the resolute country school teacher from Iowa who taught my dyslexic brain how to read using building blocks.

My grandmother dealt with school children who left a live snake in her desk. She picked the evil creature up by its head, held it up in front of the class and asked, “Who does this belong to?”

No student messed with her after that.

Today’s teachers have many other challenges that range in complexity from learning disabilities to broken homes to students who cannot speak English. One of the challenges today are children who wear “I ♥ Boobies! (Keep A Breast)” bracelets to school that have caused three different First Amendment lawsuits in Federal Court.

Is wearing such a bracelet to school a good idea? I do not think so. It is only done for shock value by children in my opinion. Moreover, anyone who wore such a bracelet to work would find themselves facing sexual harassment and hostile work environment allegations. The same would hold true in many schools.

I can only imagine what my German-Irish grandmother would say to a student who wore a “I ♥ Boobies! (Keep A Breast)” bracelet. However, we do know what three different Federal Courts have held on the issue of student First Amendment Rights at a public school.

Back to School

First Amendment rights and public school students have provided fascinating case law of students who wear black armbands to school in protest to more provocative statements.

Here is an overview of the legal standards that apply to students and their First Amendment Rights:

Students do not check their First Amendment rights at the door when they enter the school. Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). However, the First Amendment does not compel schools to “surrender control of the American public school system to public school students.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986) (quoting Tinker, 393 U.S. at 526 (Black, J., dissenting)). The students’ rights are curtailed by the schools’ “countervailing interest in teaching students the boundaries of socially appropriate behavior,” Fraser, 478 U.S. at 681, and to protect “students from offensive speech.” Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. No. 204, 523 F.3d 668, 671 (7th Cir. 2008). This interest flows from the schools’ responsibility to teach students the “‘habits and manners of civility’ essential to a democratic society.” Fraser, 478 U.S. at 681.

J.A. v. Fort Wayne Cmty. Sch., 2013 U.S. Dist. LEXIS 117667 at *5-6 (N.D. Ind. Aug. 20, 2013).

The United States Supreme Court held in Fraser that “essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech.” Fraser, at 683. Moreover, the school board has the authority to determine what manner of speech is inappropriate. Fraser, at 683-85.

Schools under Tinker can restrict speech that is reasonably expected to substantially
disrupt the school. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969).

The East District of Pennsylvania: The Bracelet is Not Lewd

The Court in B. H. v. Easton Area Sch. Dist., held that the ban on the “I ♥ Boobies! (Keep A Breast)” bracelets was NOT an objectively reasonable exercise of a public school’s authority to ban lewd or vulgar speech under Fraser. B. H. v. Easton Area Sch. Dist., 827 F. Supp. 2d 392, 405 (E.D. Pa. 2011).

The Easton Court summarized the test in Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007) that apply to schools as follows:

(1) Plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues,

(2) Speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and

(3) Speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted. Because the bracelets here are not plainly lewd and because they comment on a social issue, they may not be categorically banned under Fraser.

The District Court held, and the En Banc order affirmed, that the school district failed to show the bracelets threatened to substantially disrupt the school under Tinker. B.H. v. Easton Area Sch. Dist., 2013 U.S. App. LEXIS 16087 at *4 (3d Cir. Pa. Aug. 5, 2013). Effectively, the only disruption that was argued were the two students refusing to take off the bracelets (If we also ignore the Federal lawsuit and attorney’s fees).

The Easton Court held the bracelet were not plainly lewd, because teachers had to seek guidance on how to respond to students wearing the bracelets. B.H. v. Easton Area Sch. Dist., 2013 U.S. App. LEXIS 16087 at *69 (3d Cir. Pa. Aug. 5, 2013).

In the words of Judge Brooks Smith, “Indeed, the term ‘boobie’ is no more than a sophomoric synonym for ‘breast.'” Id., at *70.

Meanwhile, in the Northern District of Indiana: The Bracelet is Lewd

The Court in J.A. v. Fort Wayne Cmty. Sch., held that the school’s interpretation of the bracelets as lewd or vulgar was reasonable. J.A. v. Fort Wayne Cmty. Sch., 2013 U.S. Dist. LEXIS 117667 (N.D. Ind. Aug. 20, 2013).

The Defendant school first encountered the bracelet when a male student wearing one harassed a female student. The school determined that the bracelet’s terminology was “offensive to women and inappropriate for school wear” making the bracelet “lewd, vulgar, obscene, solicitous, and/or plainly offensive speech.” Those wearing bracelets have had them confiscated. Fort Wayne, at *3-4.

The Plaintiff wore the banned bracelet for three months before a school administrator confiscated it. Id.

The Court determined that the bracelet “falls into a gray area” between being “plainly lewd and merely indecorous.”Fort Wayne, at *18.

Federal Courts defer to school administrators when there are ambiguously vulgar slogans. For example, a Federal Court in Massachusetts upheld a ban on the phrase, “See Dick Drink. See Dick Drive. See Dick Die. Don’t be a Dick.” J.A. at *19, citing Pyle ex rel. Pyle v. S. Hadley Sch. Comm., 861 F. Supp. 157, 159 (D. Mass. 1994) vacated on other grounds Pyle v. South Hadley Sch. Comm., 55 F.3d 20, 21 (1st Cir. Mass. 1995).

The Court explained that the J.A. facts were distinct from the Easton case. The Court explained:

In that case, administrators waited several months to ban the bracelets, and did so even though they had not “heard any reports of disruption or student misbehavior linked to the bracelets.” Easton, 827 F. Supp. 2d at 397. There was also evidence that the administrators did not “actually consider the word boobies to be vulgar.” Id. at 407. In contrast Defendant responded swiftly to a reported disruption caused by a student using the bracelet’s slogan in an offensive manner. Additionally, the record indicates that they consistently enforced their ban, including confiscating similar bracelets such as one that said “Save the Boobs.”

The Court explained its holding as follows:

If the Court adopted Plaintiff’s analysis and issued an injunction, Defendant’s ability to regulate speech that is lewd but supports a noble cause will be limited. As the dissent in Easton noted, this bracelet is not the only one with a slogan that toes the line between mildly inappropriate and vulgar in the name of supporting cancer awareness. One organization the dissent highlighted was The Testicular Cancer Awareness Project, which sells bracelets imprinted with the words of its website “feelmyballs.com.” B.H. 2013 U.S. App. LEXIS 16087 at *123-24 (Hardiman, J., dissenting). Defendant has dealt with this challenge first hand. One of the bracelets confiscated by the school used the slogan “Save the Boobs.” If the “I ♥ boobies” bracelet is allowed it is difficult to articulate a principle that distinguishes it from “feel my balls” or “Save the Boobs.” School officials, who know the age, maturity, and other characteristics of their students better than federal judges, are in a better position to decide whether to allow these products into their schools. Issuing an injunction would take away the deference courts owe to schools and make their job that much harder.

Fort Wayne, at *19-20.

Should We Make Fun of Serious Diseases?

The proponents of the “I ♥ Boobies! (Keep A Breast)” state they are speaking to women between the ages of 13 to 30 in language that they can relate to. They have a very noble goal of promoting women’s health.

I have done a substantial amount of volunteering with young adults. I have learned the best way to address a serious issue with a young adult is to actually treat them like a young adult. I do not believe getting women to wear “I ♥ Boobies! (Keep A Breast)” is consistent with treating the issue, or the intended audience, seriously.

As the dissent in Easton noted, one only needs to look at the Testicular Cancer Awareness Project’s bracelet campaign to see how we can race to the bottom in the name of cancer awareness.

Cancer is a horrible disease. Everyone should be educated on how they can detect threats to their health. This is often a challenge, because I have yet to meet a woman who looks forward to a mammogram or man who does not dread a prostate exam. Moreover, any procedure with “oscopy” in the name frightens people, not just because of what the procedure is, but what it could find.

I am reminded of the speeches of Brutus and Mark Anthony in Shakespeare’s Julius Caesar. Brutus addressed the crowd from up high, speaking down to them in “their language.” Mark Anthony walk among the people and addressed them as equals.

Telling teenagers “I ♥ Boobies!” for breast cancer awareness is speaking down to youth like Brutus. I would hope parents and educators take a lesson from Mark Anthony in talking with their children about healthcare.

You Need More Than A Bracelet

I have never been a fan of wearing a bracelet to show my support in helping those with cancer. I believe actions speak louder than words.

Two of the three women who raised me died horribly from cancer. I have crystal clear memories of closing my mother’s lifeless eyes after a brutal battle with lung cancer. I can never forget taking her home after the doctor appointment where hope was ruled out. This was a woman who was among the first women to be a paramedic. Her training involved running up four flights of stairs with a guy over her shoulder. My mother actually did wear combat boots. Only a fool would have doubted her strength of character.

But cancer is not a fool, it is a disease.

My mother had the look of total terror on her face from the knowledge that there was nothing to save her. Tears streamed down her face and her expression is burned into my memory. I have never seen pure fear like that before. I do not need to wear a bracelet to remember that.

Others, however, wear cancer bracelets like they are an Ichthys. It gives them a sense of community. Many find strength in that.

Helping others in need should be encouraged over simply wearing a bracelet. Luckily, there are many people who answer the call to help those in fighting cancer.

I was impressed with the professionals and volunteers at Stanford. Whether it was a kind volunteer in a red coat, or a person playing a harp, guitar or piano, there was always compassion for those in need.

My aunt took care of my mother in the last 18 months of her life. My aunt had a front row seat to her sister’s decline. Sadly, this was not the first time my aunt had seen a family member’s life fade away, as my aunt also on the front line caring for her own mother in the last months of her mother’s life.

Today my aunt volunteers with both Hospice and an organization called Drivers for Survivors. “Drivers” are volunteers who take cancer patients to their chemotherapy or radiation treatments, because they have no one else who can help them. The last thing someone with cancer needs is an outrageous taxi bill every time they need chemo. Those who volunteer to drive those to cancer treatments are truly doing God’s work.

Lasting Impressions of My Grandmother

My grandmother had all the makings of a saint. She raised two daughters and spoiled three grandsons.

My grandfather retired from dentistry early in 1984 because he and my grandmother wanted to volunteer to help others. They spent a year down at an Apache Native American Reservation, with my grandfather setting a record number in making dentures and my grandmother working in Headstart.

She was diagnosed with breast cancer in 1986. She started a super-human treatment process that included flying back to New York from California for what was then revolutionary treatments. Every day she took over 150 vitamins and gave herself a gallon coffee enema twice a day.

There was also a lot more.

Most people would surrender to death with such a daily routine.

My grandmother endured for seven years.

My grandmother knew she was dying in the fall of 1992. She gave her credit cards to her daughters in November with the marching orders “to go big for Christmas.”

Her daughters delivered.

Grammy grew up in the Great Depression on a farm in Iowa. She understood hardship. She understood working hard on the farm and the importance of a hot meal. She also knew kindness and told how her own grandfather sneaked roller skates passed her as a Christmas gift during the dark days of the Depression.

She also enjoyed throwing blow out birthdays, Thanksgivings and Christmas celebrations. The woman made it an art form. There are photos of her sitting proudly in the living room with gleeful children tearing apart wrapping paper on Christmas Eve. I think she considered it a matter of honor to ensure her grandchildren; grandnephew and grandniece had happy childhoods.

My grandmother excelled at kindness and making anyone feel loved. Whether it was helping a former convict get their life back together or inviting others into a family that had none. The woman was the living embodiment of virtue, kindness and the resolution to take action.

Her ability to take positive action knew no limits. I had spinal meningitis when I was five years old. She visited my hospital room daily, each time bringing a Hot Wheels car.

I was hospitalized for an extended period in 1990 from Crohn’s Disease. My grandmother had a tumor removed from her skull in the same hospital. My grandfather brought her by my room in a wheelchair to visit as soon as she was able.

That was who she was.

Watching cancer destroy her put everyone she loved through an emotional meat grinder. The beauty queen’s body was broken and her mind shattered as cancer overcame her.

She had forgotten I even existed.

I am fairly certain my grandmother would not look kindly on any bracelet with “boobies” on it. However, I am confident she would be extremely proud of her daughter for taking cancer patients to their chemotherapy treatments.

It is important to be a force for good and help those in need. That is probably the biggest lesson I learned from my grandmother and the best way to honor those who we have lost: help others live.