As the holiday season approaches, law librarians (including this writer), faculty, students and staff at Brooklyn Law School and elsewhere look forward to the end of final exams so they can travel and join family and friends in celebration of the December holidays. From Christmas to New Year’s Day, from Hannukah to Eid Milad-un-Nabi or the Winter Solstice, many of us will celebrate according to our own tradition. Not all of us will be so fortunate as many people will be working during the holidays to keep the world running while we celebrate the holidays: cab drivers, garage assistants, healthcare workers, carers, police men and women, airline staff, members of the armed forces. All of these people deserve a massive thank you for keeping things going while we sit at home enjoying holiday cooking. So take a minute away from your family and friends and reach out to someone who is working on Christmas Eve, Christmas Day, New Year’s Eve and New Year’s Day. All of us can use a random act of kindness not only during the holidays but every day.
Author Archives: Harold O'Grady
Revenge Porn: Taking Trolls to Court
An article in a recent issue of The New Yorker features Brooklyn Law School alum Carrie Goldberg, Class of 2007, as a leader in the crusade against non-consensual pornography, also called “revenge porn.” A founder of the Brooklyn firm C.A. Goldberg, PLLC, she is at the forefront of a movement to use both new and existing laws to penalize individuals who share compromising photos and videos of others without their consent. From her practice not far from the Law School, Goldberg assists clients like Norma, whose story of harassment by a former partner who shared explicit photos of her on the internet is chronicled in the article. Author Margaret Talbot calls Goldberg “a new kind of privacy champion,” detailing Goldberg’s many accomplishments in this new field, from successful prosecutions of revenge porn perpetrators to a major role in an activist campaign to get social media platforms and search engines to ban revenge porn. The article notes Goldberg’s recent hire of a fellow Brooklyn Law School graduate, Lindsay Lieberman, Class of 2011. Earlier this year, Goldberg spoke at the White House to members of the Task Force to Protect Students from Sexual Assault about sexual assault in k-12 with the crew at SurvJustice, a national not-for-profit organization that increases the prospect of justice for survivors by holding both perpetrators and enablers of sexual violence accountable.
The Brooklyn Law School Library collection included Hate Crimes in Cyberspace by Danielle Keats Citron (Call No. HV6773.15.C92 C57 2014). The book covers the subject of trolling or aggressive, foul-mouthed posts designed to elicit angry responses in a site’s comments. The author exposes the startling extent of personal cyber-attacks and proposes practical, lawful ways to prevent and punish online harassment. Persistent online attacks disproportionately target women and frequently include detailed fantasies of rape as well as reputation-ruining lies and sexually explicit photographs. And if dealing with a single attacker’s “revenge porn” were not enough, harassing posts that make their way onto social media sites often feed on one another, turning lone instigators into cyber-mobs. The book rejects the view of the Internet as an anarchic Wild West, where those who venture online must be thick-skinned enough to endure all manner of verbal assault in the name of free speech protection, no matter how distasteful or abusive. Cyber-harassment is a matter of civil rights law, Citron contends, and legal precedents as well as social norms of decency and civility must be leveraged to stop it.
Electoral College vs. National Popular Vote
Election Day 2016 is not the first where a candidate for president won the most electoral votes, thus winning the presidency, but failed to win the popular vote. The unique American system provides no direct election of President and Vice-President. Since 1789, Electors chose successful candidates for those seats. The process is directed by the legislature of each state, either by popular vote or some other selection process. On the first Monday after the second Wednesday in December (which occurs this year on December 19, 2016), the electors meet in their respective States to cast their votes for President and Vice President of the United States. Article II, Section 1, clause 2 reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”.
The Electoral College decides how the nation’s Chief Executive is chosen. It dates back to the Federalist Papers. See Federalist 68, The Mode of Electing the President by Alexander Hamilton dated March 14, 1788. The pro-slavery influences of the electoral college surrounded the debate on the mode of electing the president. James Wilson proposed to a direct election by the people, but gained no support and it was decided the president was to be elected by Congress. When the constitution was considered, Gouverneur Morris brought the debate back up and decided he too wanted the people to choose the president. James Madison agreed that election of the people at large is the best way to go about electing the president, but knew that the slave states would not be influential with such a system, and so he backed the electoral college.
Instances in the nation’s history when popular vote totals for president differed from the elector count are:
- The 1824 election was a four-man race. The top two candidates were Andrew Jackson and John Quincy Adams who won despite losing both the popular vote and the electoral vote. Andrew Jackson won 151,271 popular votes (41.4%) to Adams’ 113,122 votes (30.9%), roughly 38,000 fewer popular votes than Jackson who also defeated Adams in the electoral vote by 99 to 84. Neither candidate reached the majority 131 electoral votes so the House of Representatives met to select Adams.
- The highly contentious 1876 election showed Democratic New York governor Samuel Tilden winning the popular vote over Republican Ohio governor Rutherford B. Hayes with 4,284,020 (51%) to Hayes’s 4,036,572 (48%), a margin of less than 250,000. The electoral vote was Tilden 184 (one short of a majority) and Hayes 165 (20 ballots short). The remaining electoral votes were in dispute over voter fraud, mostly in three Southern states with Reconstruction governments: Florida, Louisiana, and South Carolina. Congress set up a special electoral 15-member commission of congressmen and Supreme Court justices. Two days before inauguration, on an 8-7 party line vote, the commission gave the disputed electoral votes to Hayes, who won by one electoral vote.
- In 1888, Benjamin Harrison won the presidency with 233 electoral votes to Grover Cleveland’s 168. Harrison lost the popular vote by more than 90,000 votes winning 5,443,892 (47.8%). Cleveland’s vote total was 5,534,488 (48.6%).
- The 2000 contest between the Republican George W. Bush and the Democrat Al Gore saw the popular vote winner lose because of the electoral vote count. Gore got 50,999,897 (48.4%) compared to Bush who had 50,456,002 votes (47.9%). The election hinged on the close vote in Florida, which prompted a mandatory recount. Litigation reached the US Supreme Court which ruled on December 12, 2000 in the 5–4 decision Bush v. Gore, ending the recounts, effectively awarding Florida’s votes to Bush. Bush won the electoral vote, 271 to 266.
- The 1800 election had no records of popular votes as electors were chosen by state legislatures. Thomas Jefferson won 73 electoral votes to John Adams who won 69. Jefferson’s margin of victory came from electoral votes created by counting slaves for purposes of representation, which led to a greater number of electors for each state. States that Jefferson carried had fewer voters. If the election were decided by popular votes, Adams would have won.
Calls f
or reform of electoral reform are likely after this election as they were in earlier ones. See in the Brooklyn Law School Library, Electoral College Reform: Challenges and Possibilities by Gary Bugh who says the Electoral College system was last updated by the Twelfth Amendment in 1804, despite public opinion polls showing a majority of Americans are in favor of changing or outright abolishing it. The book has essays examining all aspects of the debate, including the reasons for reform, the issues surrounding a constitutional amendment, the effect of the Electoral College on political campaigns and the possibilities for extra-constitutional avenues to change. The authors consider both the Federalists’ vision of balanced representation and a more democratic and equality-based ideal. The volume explores the potential for changing a system that many contend is long overdue. After the 2000 election, Professor Paul Finkelman’s article The Proslavery Origins of the Electoral College was published at 23 Cardozo Law Review 1145 (2002). Another article worth reading is by S.M. Sheppard titled A Case for the Electoral College and for Its Faithless Elector, published in the 2015 Wisconsin Law Review Online.
To learn about the Reform the Electoral College movement so the electoral vote reflects the nationwide popular vote for President, see the website of the National Popular Vote.
Service Pets, the ADA and the Supreme Court
On Monday, October 31, the Supreme Court will hear oral argument in Fry v. Napoleon Community Schools, an appeal by a 12-year-old Michigan girl with cerebral palsy who was not allowed to bring her service dog to school. The Court will consider whether Ehlena Fry’s family can sue the school district for violations of federal disability laws. Fry’s family obtained a goldendoodle, Wonder, to help her open doors and retrieve items. Her school district initially refused to allow Wonder at school. Officials relented a bit in 2010, but they placed many restrictions on Wonder. Ehlena and her dog later transferred to another school.
The family sued the school district in the US District Court for the Eastern District of Michigan for violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act. In January 2014, the court in EF ex rel. Fry v. Napoleon Community Schools, 2014 WL 106624 (subscription required) granted the defendant’s motion to dismiss the complaint ruling that the plaintiffs first had to seek an administrative hearing. In June 2015, the 6th Circuit Court of Appeals in Fry v. Napoleon Community Schools, 788 F. 3d 622 upheld that decision 2-1. The American Civil Liberties Union is representing the family. School districts around the country have repeatedly denied children with disabilities their right to bring service dogs to school often claiming the service animals are not necessary and that the schools can help the children through other means. The ACLU wants the justices to declare that children prevented from using service animals at school can proceed directly to court without having to go through administrative hearings that can be costly, time consuming and burdensome. The ACLU Petition for Certiorari is available here. See also Ehlena and Wonder the Service Dog’s Incredible Journey to the Supreme Court and the video that the ACLU posted about her.
The school argues that exhausting administrative remedies encourages parents and schools to work together to determine the best plan for each child and are a cheaper way to resolve educational disputes. The Obama administration has backed the Fry family, saying the appeals court’s decision was wrong and “leads to unsound results.” The government said when the lawsuit was filed, Ehlena had already moved to a new school district and there was no ongoing dispute to compromise. Requiring her to go through administrative proceedings “would waste time and resources without offering any chance of resolving their actual dispute,” the Justice Department said in a brief to the court.
On the subject of service pets, SARA, the Brooklyn Law School Library catalog links to an online resource by the Office of the New York State Attorney General Civil Rights Bureau titled Freedom on Four Legs: Service Animals, Individuals with Disabilities, and the Law.
Video of Conversation with Rudikoff and Zamfotis
This is an update of the September 23, 2016 post Episode 098 – Conversation BLS Alumni Greg Zamfotis and John Rudikoff. The update adds a video of the conversation to the audio linked in the earlier post. Additionally, John Mackin, Public Relations Manager at Brooklyn Law School, wrote a summary of the conversation which is available by clicking this link.
Episode 099 – Conversation with Prof. Susan Hazeldean and Rachel Russell
Episode 099 – Conversation with Prof. Susan Hazeldean and Rachel Russell.mp3
This conversation with Brooklyn Law School Assistant Professor of Law Susan Hazeldean and Rachel Russell, Class of 2017 and chair of the Brooklyn Law School OUTLaws, discusses the Brooklyn Law School LGBT Advocacy Clinic where students represent LGBT individuals in immigration and prisoners’ rights cases and undertake advocacy projects to advance LGBT equality. The conversation starts with Prof. Hazeldean describing the types of cases students handle during their time with the clinic. She also discusses a recent decision by the New York Court of Appeals, In the Matter of Brooke S.B. v Elizabeth A.C.C., in which the court reversed its 25-year-old ruling in the Matter of Alison D v. Virginia M., 77 N.Y.2d 651 (1991), which refused a non-biological lesbian mother standing to sue for visitation with the child that she had parented for six years because she was not a “parent” within the meaning of the New York Domestic Relations Law.
The conversation shifts to Rachel Russell and upcoming projects hosted by OUTLaws. OUTLaws is an organization of lesbian, gay, bisexual, transgender, queer (LGBTQ) students and straight allies within the BLS community. The group’s goals are to provide educational, political and social events for students and to foster connections with alumni and the legal community at large. OUTLaws programming addresses issues affecting LGBTQ civil rights, sponsors guest speakers, supports activism, and increases the visibility of LGBTQ people within the profession.
Episode 098 – Conversation BLS Alumni Greg Zamfotis and John Rudikoff
Episode 098 – Conversation with BLS Alumni Greg Zamfotis and John Rudikoff.mp3
This conversation with Brooklyn Law School alumni Gregory Zamfotis, Class of 2007, and John Rudikoff, Class of 2006 and CEO and managing director of the Brooklyn Law School Center for Business Entrepreneurship (CUBE), discusses how law students can broaden their career prospects by incorporating into their thinking a willingness to take risks and develop, organize and manage a business venture in their professional life.
The conversation starts with Greg Zamfotis, President and CEO of Gregorys Coffee, a high end coffee shop founded in December 2006. Greg discusses his law school career and his decision to forego the practice of law and open his first shop in New York City, home to some of the world’s most discerning coffee drinkers. The conversation touches on marketing, branding and the highly competitive atmosphere of his business. Greg also talks about how the skills he learned in law school have helped him run his business.
The conversation then moves to John Rudikoff who has been director of CUBE since 2015. John discusses CUBE’s mission which focuses on training students to seek a competitive advantage in the job market and on providing essential legal services that startups need to scale up and become sustainable. Referring to a recent article on the WSJ Law Blog, Law School Graduates Finding Fewer Private Practice Jobs, John foresees that this conversation between him and Greg can be an ongoing discussion to help BLS law students enrolled in CUBE who can benefit from the enthusiasm that Greg brings to entrepreneurship.
Labor Day Holiday
With labor union membership under 12% of the US workforce from a high of 33.2% in 1955, most Americans still appreciate a day off to barbecue, a marked contrast from storming the barricades as occurred during 19th century Labor Days. In the US, Labor Day takes place on the first Monday in September by law. See 5 U.S. Code § 6103. Outside the US, Labor Day falls on May 1. The two separate Labor Days cause some confusion. Labor Day and May Day have in common the celebration of laborers from an era when labor was more grueling than what we think of today. The first Labor Day occurred in NYC’s Union Square on September 5, 1882, when 10,000 union workers marched in a parade honoring American workers, who at the time had none of the labor laws we now take for granted. Labor Day sentiment spread across America when, in 1887 Oregon, followed by a number of other states, adopted Labor Day as a holiday.
The adoption of the holiday did not remedy the labor situation in Industrial Revolution-era America. In 1894 the railroad system was nearly halted by a strike against the Pullman Palace Car Company, a company that mistreated its workers. In reaction to the strike, President Grover Cleveland mobilized federal troops which escalated the violence resulting in several deaths. President Cleveland, in an effort to appease an angry public, passed a bill making Labor Day a national holiday. Labor Day continues as a reminder of the struggle of the labor workforce.
Outside the US, laborers are honored on May Day also known as International Workers’ Day. This holiday was instituted worldwide in response to the Haymarket Riot of 1886, a peaceful protest gone awry with another violent altercation against the Chicago workforce by the police. Although the events leading to the creation of May Day took place in America, the US never adopted it as a legal holiday. It was embraced in the Soviet-bloc. With the fall of communism, the holiday is now removed from its violent origins, much like Labor Day in America, now little remembered for the labor required for this holiday.
Consider the debates that animated Chicago’s inaugural Labor Day celebration in 1885:
On Sunday, September 6th, organized labor’s most radical wing led a preemptive march of more than 5,000 persons in an anarchist and socialist-led demonstration, which included representatives from different unions carrying banners with messages such as: “The greatest crime today is poverty!”; “Capital represents stolen labor”; and “Every government is a conspiracy of the rich against the people.” The city’s rank-and-file had decided to boycott the festivities on the grounds that the red flag, radicalism’s most potent symbol, had been expressly banned. The dispute was symptomatic of larger differences within labor’s camp. The anarchist Sam Fielden emphasized these in his remarks, declaring, “There is going to be a parade tomorrow. Those fellows want to reconcile labor and capital. They want to reconcile you to your starving shanties.” The Chicago Daily Tribune decried the radical demonstration in an article entitled “Cutthroats of Society,” which began, “With the smell of gin and beer, with blood-red flags and redder noses, and with banners inscribed with revolutionary mottoes, the anarchists inaugurated their grand parade and picnic.”
Monday, September 7th, saw another parade by the mainstream Trade and Labor Assembly. They, too, carried banners with more moderate tones: “Do unto others as you would have others do unto you”; “We do not ask for charity, but simple justice”; and “Eight hours for work, eight hours for rest, eight hours for recreation.” The Trade and Labor Assembly’s march received more favorable reviews from middle-class voices and was even outright celebrated by some. But respectable opinion could turn as rapidly on the trade unions as it did on the anarchists. Just two months before Labor Day, the police had violently subdued a streetcar workers’ strike. In the process they won the admiration of many middle-class Chicagoans, including one minister who used his pulpit to urge the authorities to maintain order, even if it required them “to mow down the crowds with artillery.”
These glimpses of the tensions in earlier Labor Day celebrations show major differences between the late 19th century Gilded Age and current times. Today, we see disparities between rich and poor nearing historic proportions, yet Americans do not debate the morality of capitalism that consumed those who lived through industrialization’s peak decades. The Gilded Age is a world removed from our own and yet one that on Labor Day is worth revisiting. Users of the Brooklyn Law school Library can get a sense of that period by reviewing the book in the BLS collection New York Labor Heritage: a Selected Bibliography of New York City Labor History by Robert Wechsler, Call No. Z7164.L1 W38.
National Park Service 100th Anniversary
On August 25, 1916, President Woodrow Wilson signed into law the Organic Act which Congress passed to create in the Department of the Interior the National Park Service. The aim of the law was “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”
When the law was enacted, there were already 35 national monuments and parks including Yosemite National Park established in 1864 and Yellowstone National Park established in 1872. Today, the National Park Service has 140 national monuments and parks, 128 historical parks or sites, 25 battlefields or military sites, 19 preserves, 18 recreation areas, 10 seashores, four parkways, four lakeshores, and two reserves. The biggest park is Wrangell-St. Elias National Park and Preserve in Alaska established in 1980 containing 13.2 million acres. It is the same size as Yosemite, Yellowstone and the country of Switzerland combined. The smallest site is the Thaddeus Kosciuszko National Memorial in Philadelphia established in 1972 sitting on 0.02 acres. The highest point in the system is Denali (or Mount McKinley) at 20,320 feet. The lowest accessible point is Death Valley National Park, at 282 feet below sea level. The newest National Monument is Katahdin Woods and Waters in Maine which President Barack Obama designated this week for the 100th anniversary of the National Park Service. See NPR web page In Maine, Land From Burt’s Bees Co-Founder Is Declared A National Monument discussing the controversial designation of the woods as protected territory especially from locals concerned about federal oversight of lands that used to be central to the regional economy.
With an annual budget of $2.6 billion, the National Park Service has about 20,000 direct employees and supports 240,000 local jobs generating $27 billion for the U.S. economy. More than 307 million people visited Park Service locations in 2015 compared to 1920 when NPS sites were visited by 1 million people. Brooklyn does not have a national park but this week Brooklyn Bridge Park hosted a National Park Service celebrating the100th anniversary of its founding. Nearby sites such as the Statue of Liberty and Ellis Island are both part of the NPS. Other NPS locations in New York City include the African Burial Ground National Monument, the Lower East Side Tenement Museum, the Theodore Roosevelt Birthplace National Historic Site and Castle Clinton National Monument.
Brooklyn Law School Library users can explore OneSearch to find a large set of articles about the history of the National Park Service such as the National Parks: America’s BEST Idea? from Parks & Recreation Aug 2016, Vol. 51 Issue 8, page 44.
Is the DMCA Unconstitutionally Overbroad?
Since passage in 1998 of the Digital Millennium Copyright Act, Pub. L. 105-304, media companies like Sony, Disney, Comcast and others have issued DMCA take down notices to remove online content from sites hosted by service providers, primarily YouTube. The DMCA was enacted to help both content creators and hosts by providing a safe harbor provision for hosts who rely on user-generated content and who do not provide content themselves. Since it is impossible for YouTube to police all user-uploaded content themselves, it would be unfair to make YouTube liable for infringing material on their site. Before passage of the DMCA, copyright infringement on a website might result in the website being liable, which could lead to putting platforms like YouTube out of business. The DMCA was codified in Title 17 of the US Code. The safe harbor in 17 USC 512 protects the rights of copyright holders while providing protection for content service providers. If a copyright holder alleges infringement in a video on the site like YouTube, it has to take down that video immediately. There is no appeal process, as YouTube is not in a position to look at the validity of each take down notice because of time constraints. If this process is followed, the law gives safe harbor protection for the content service provider.
With aggressive policing of potential copyright infringement, media companies use automated software that ignores fair use rights often misidentifying music and videos as copyrighted. Another controversial section of the DMCA aims to protect against copyright infringers who employ tools that enable them to circumvent access controls that protect a copyright holder, 17 USC 1201 prohibits the use of tool to “circumvent a technological measure” like those that descramble a scrambled work, decrypt an encrypted work, or otherwise impair a technological measure, without the authority of the copyright owner.
Provisions of the DMCA dealing with both take down notices and the “anti-circumvention” rule now face legal challenges that may lead to review by the US Supreme Court. The take down provisions were the subject of a federal appeals court decision in Lenz v. Universal Music Corp., 801 F. 3d 1126 (9th Cir., 2015). Plaintiff posted on YouTube a home video of her children dancing to Prince’s song “Let’s Go Crazy”. Universal Music Corporation sent YouTube a DMCA take down notice claiming that Lenz’s video violated their copyright in the song. Lenz claimed fair use of the copyrighted material and sued Universal for misrepresentation of a DMCA claim. The district court in Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal., 2008) rejected a motion to dismiss the claim, and held that Universal must consider fair use when filing a take down notice, but noted that to prevail a plaintiff would need to show bad faith by a rights holder. The 9th Circuit affirmed, holding that while fair use arises procedurally as an affirmative defense, copyright holders have a “duty to consider—in good faith and prior to sending a take down notification—whether allegedly infringing material constitutes fair use”. This week, the Electronic Frontier Foundation filed a petition with the Supreme Court, arguing that this standard rendered fair use protections against the DMCA “all but meaningless.”
As for the 17 USC 1201 prohibition on anti-circumvention tools, the EFF filed a complaint in the US District Court for the District of Columbia challenging its constitutionality claiming the section restricts people’s ability to access, use, and even speak out about copyrighted materials. The “Digital Rights Management” provision of the law bans activities that weaken copyright access-control systems, including re-configuring software-enabled devices. This imposes a legal cloud over the rights to tinker with or repair devices, to convert or remix videos, or conduct independent security research to reveal dangerous security flaws in computers. If the complaint succeeds, one of the most controversial technology laws will be struck down. Other countries that have been pressured by the US trade representative to adopt this rule will decide whether they will still enforce it, even after the US has given up on it.
Brooklyn Law School Library has a large collection of material on copyright including the 3d edition of Copyright Law for Librarians and Educators by Kenneth D. Crews (Call No. KF2995 .C74 2012) with 18 discrete areas of copyright, including specialized and controversial music and sound recording issues. The easy-to-use guide has tools that information professionals need to take control of their rights and responsibilities as copyright owners and users.