From the New York Law Journal (sub. only) comes a case from New York County Supreme Court, holding that blog authors and publishers are immune from liability for libel published by commenters. The ISP may be required to divulge information concerning IP addresses and such, but only if the threshold question of defamatory content is satisfied. Here, the court looks at 40 allegedly defamatory comments, and is bound by law to read them within the general context of all 300 comments posted.

My occasional decision to delete comments that I find to be somehow objectionable does not alter my immunity from liability. Huzzah. Read the rest of this entry »

Contrary to unpopular belief, you don’t have to be a 1st Amendment scholar to conclude that Sarah and Todd Palin improperly and unethically abused her power in order to fire a cabinet member who wouldn’t improperly fire a state trooper against whom the Palins had a personal vendetta.

So, a petition is here for your perusal and signing.

And the State, in turn, will pay the “host communities” of the Senecas’ three WNY casinos.

$57.3 million in slots revenue was sent to Albany - $2.8 million of that came from the temporary Buffalo facility. The host community for the Buffalo casino is to get over $708,000 from that. The problem is - who is the host community? Naturally, the city and county are already fighting over that issue. Sometime down the road, it’s estimated that the Buffalo facility will earn $7 million per year for the host community.

Can Brown and Collins figure out what to do with the local share without going to court? Personally, I think the city is entitled to the whole thing as the host community. In the meantime, the permanent Seneca facility is rather quickly being added to the local skyline, with about 4 stories’ worth of steel already erected.

Federal Justice William Skretny will be holding a hearing on August 21st on the issue of whether the current, temporary facility should be shut down pursuant to his July ruling. If that was to happen, one would hope that the opponents would pay a bond into court to make the Senecas whole in the event the 2nd Circuit overturns Skretny’s decision.

I’m still laughing about this article outlining the fact that Erie County Independence Party Chairman Tony Orsini is simultaneously registered to vote in Erie County, and also claims a homestead exemption on his Florida mobile home, entitling him to a $400 property tax break.

When the News called him on it, Orsini told them that he’d give up the Florida tax break in order to remain active in Erie County politics and come into compliance with the law. He said he’d “get that back in a fundraiser.”

When Florida authorities asked him about it, however, Orsini told them that he’d forfeit his Erie County voting registration in order to maintain the property tax exemption.

Either way, he’s violating New York law by claiming Florida as his domicile, and he’s violating Florida law by still being registered to vote in New York.

Orsini’s explanation?

he had been confused on his application by the terms “domicile” and “homestead,” and that accounted for the mistake.

That’s beyond hilarious. What’s disappointing though is that Orsini as head of a minor party that seldom runs its own candidates and instead lives off of cross-endorsements. Pay in to “Friends of Orsini”, but an ad on some political website, maybe hire his wife’s “company” based in that Florida trailer, and bingo, you’ve got a shot at a minor party line. He wields a power that is completely out of proportion to IP enrollment, and enriches himself and his friends and family.

I wonder if we’ve also caught bin Laden’s maid, personal chef, or publicist.

The guy got 5 1/2 years for “abetting terrorism”. It was the military jury that handed down that sentence, and it was the first time a Guantanamo “unlawful combatant” detainee has been tried in a court of law, which is one of those things on which the country we’re defending is founded.

He drove the warlord around between 1997 and 2001, earning about $200 per month. He never killed anyone.

But, naturally,

On time served Hamdan could be released in five months but the Pentagon has said he will still be retained as an “enemy combatant”.

The US has always argued it can detain such people indefinitely, as long as its so-called war on terror continues.

The Pentagon said Hamdan would serve his sentence and then be eligible for review…

… “He will serve out the rest of his sentence. At that time he will still be considered an enemy combatant.

“But he will be eligible for review by an Administrative Review Board.”

The boards decide annually on the threat posed by detainees and the possibility of their transfer or release.

Let me see if I have this straight. He’s been detained for over five years without charge or trial, has now been tried and convicted, has been essentially sentenced to time served. Yet the government still refuses to release him when he’s served out the sentence for which he was convicted and originally detained? I really fail to see the point.

Photo via HuffPo

God almighty, someone remind me again why we maintain a Thruway Authority again?

HT Bill

Jimmy Justice prowls the streets of New York with a camcorder, recording law enforcement vehicles violating the law:

Apparently, the author of a local political website received a cease & desist letter/message from the Buffalo News after he re-published, verbatim, a story that appeared on the Buffalo News’ website. The author replies to the News’ C&D letter on his website, and includes the following paragraph:

Besides that there is NO such thing as copy-write material on the Internet when you invite readers to pass the story along via email etc.

That’s not true.

First of all, when you click to email someone a Buffalo News story, they’re sent a link to it - not the whole text. Secondly, when you click to Digg the story or post it to Facebook or some other social networking/bookmarking site, an excerpt from the story is posted - not the entire thing. None of that somehow automatically voids copyright protection.

You hold an immediate, automatic copyright with respect to anything you create, whether it’s a writing or a drawing. I am the copyright holder with respect to any of my posts, and you can’t reprint it in its entirety - with or without attribution - unless you have my express permission. That’s why outfits such as Creative Commons were created, to more easily enable republication of internet material.

When I am commenting on something that I saw published elsewhere, I am careful to make sure not only that I am attributing my source, but also linking to it and blockquoting the text so that you know it’s someone else’s work and not mine. Furthermore, I am careful to include only a portion of the text in the blockquote, and not the whole thing. I am encouraging you to go to the source itself and read the piece in its entirety (and to view the source’s advertisements, etc.)

Furthermore, my republication of excerpts from the original piece is protected by the Fair Use doctrine, which permits me to repost portions for the purpose of commentary. It’s a grey area, but no one’s ever complained to me about it. Most notably the Buffalo News, which I quote and cite most often.

By the same token, you own the copyright to your comments. By posting them here, you give me implicit permission to publish them in their entirety.

The Senecas are being quite clever with respect to Judge Skretny’s Monday ruling that the Senecas could not legally operate Class III gaming on Michigan Avenue.

They’re going to keep it open, and keep building the new casino, until the matter has been “finally resolved”, which means that it’s been decided by the Supreme Court, or by the 2nd Circuit and the Supreme Court declines to hear the case.

Since the Senecas aren’t a party to the lawsuit that led to Skretny’s ruling, they aren’t immediately required to do anything about it. Either the Justice Department or some other federal law enforcement branch will order the Senecas to shut down, or else someone will go to court and seek an injunction. To do that, they’d have to prove that there is an imminent threat of irreversible harm for which money damages would be inadequate. I don’t think the casino meets those criteria. After all, if the final decision of the courts is that the casino is illegal and must shut down, then all the Senecas have to do is lock the doors; the “harm” is reversible.

Personally, I do not at all like the idea of sovereign Seneca exclaves being carved out of urban property so that Class III gaming might take place there in contravention of the New York State Constitution. I would much rather that State law be changed to permit legal gambling under specific circumstances and regulations, which would keep the property on the tax rolls. I would much rather that the people of Buffalo and Niagara Falls and Salamanca at least had a direct hand in approving or disapproving casino gaming in their cities via referendum. I would much rather that the deal with the Senecas had been made directly between the Nation and the municipalities, so that the money received by the host community could have been maximized beyond the current fraction of a fraction of slot revenues that Pataki negotiated.

But Skretny’s decision is that the exclave-carving was perfectly legal and remains in place. So, my opinion on that issue is worthless, pending appeal. Assuming that the exclave is maintained, and assuming that the Senecas go back to the drawing board pending appeal and are able to finagle a way to maintain the Buffalo casino (which I fully expect them to do), then I hope they build something glorious that will help transform the Cobblestone and Canal Side areas into fantastic tourism destinations.

I want that Casino to encourage - not discourage - pedestrian traffic to and from the building so that it’s less of a fortress and becomes part of the fabric of that area.

The Fallsview Casino in Niagara Falls is an example of a casino project that is integrated into its surroundings, offering a park overlooking the Falls, shopping, improved pedestrian access, and parking that is ample yet unobtrusive.

The Buffalo News:

A federal judge today ruled against the Seneca Nation’s Buffalo Creek Casino, saying that casino gambling cannot legally take place on the nine-acre site on Michigan Avenue.

U.S. District Judge William M. Skretny, in a 127-page decision, vacated the earlier decision by the commissioner of the National Indian Gaming Commission to allow gambling.

It was not immediately clear whether Skretny’s ruling will halt construction on the $333 million permanent casino, but it is clear that the temporary casino no longer has the legal right to operate.

Skretny ruled that the parcel is indeed Indian country.

“However, the court finds that the (National Indian Gaming Commission’s) July 2, 2007, determination that the Buffalo parcel is gaming-eligible … is arbitrary, capricious and not in accordance with the law.”

The ruling itself is available here. Naturally, the Senecas will be taking this to the 2nd Circuit Court of Appeals. But casino gambling is illegal on Michigan Avenue in Buffalo right now.

UPDATE:

Also from the article,

The question answered in today’s ruling is whether the land on Michigan Avenue, bought by the Senecas in 2005, is legally considered sovereign Seneca territory. The lawsuit claimed the Senecas can only operate a casino on land considered sovereign.

The land was purchased with funds from the 1990 Seneca Nation Land Claims Settlement Act, which settled the question of longterm leases in the city of Salamanca.

The Senecas said the settlement act gave them the right to expand their territory. John J. LaFalce, who co-wrote the legislation while a congressman, said the act never was intended to legitimize gambling casinos off the reservation.

While the Senecas are not a party to the federal lawsuit — Citizens for a Better Buffalo is pitted against the U.S. Justice Department — they filed motions as a friend of the court. The Senecas argue that treaties, federal law, state law and past court rulings say the federal agency was correct in saying the casino could operate there…

“While there is no dispute that the Senecas own the land,” Murray said in response to John, “mere possession of title does not give them the right to violate the laws of the state unless they can prove that the land is no longer subject to the jurisdiction of the state of New York.”

“Sovereignity and title are not the same thing,” Murray argued. “There are compelling legal arguments that Congress never intended to carve out a parcel of property in the heart of a major American city and designate it as “Indian land.”

This is all quite fascinating, and I naturally haven’t had a chance to read 120+ pages of this thing, but I wonder if the case now goes back to the Gaming Commission to re-evaluate its earlier decision.

The scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action . . . . Normally, an agency [action] would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Here, the Court found that the Indian Gaming Commission’s declaration that the Buffalo property was “Indian country” was proper.

The Senecas claimed that they were entitled to operate a Casino on the property because the money they used to buy the parcel came from the settlement of Salamanca land claims. But the court found that it wasn’t a valid land claim because it arose out of leases, not ownership.

When the SNSA was enacted, the SNI did not possess an enforceable claim against the United States relating to its 99-year leases. Because no claim existed, no claim was settled.

The Gaming Commission had ruled:

In approving the SNI’s Ordinance, NIGC Chairman Hogen first noted that Section 20 of the IGRA, 25 U.S.C. § 2719, generally prohibits gaming on lands acquired in trust after October 17, 1988, and went on to conclude that the Buffalo Parcel (acquired in 2005) is not gaming-eligible land unless it meets one of the statutory exceptions to the prohibition. AR00012.

Hogen then determined that the Buffalo Parcel satisfies the IGRA’s “settlement of a land claim exception.” AR00012-13. He expressly relied on the opinion given by the Secretary in her November 12, 2002 letter to the SNI. AR00012. The entirety of the Secretary’s analysis relative to the “settlement of a land claim” exception is as follows:

The legislative history to the Settlement Act [SNSA] makes clear that one of its purposes was to settle some of the Nation’s land claim issues. Thus, the Nation’s parcels to be acquired pursuant to the Compact and the Settlement Act will be exempt from the prohibition on gaming contained in Section 20
because they are lands acquired as part of the settlement of a land claim, and thus, fall within the exception in 25 U.S.C. § 2719(b)(1)(B)(I).

What will the 2nd Circuit do? A couple of years’ time will tell.

The handling of the Livery Building situation by the city and the court system has been nothing short of impressive. I never thought they could pull it together, but they did. Judge Burns did what he always does - he was thoughtful and came up with a solution that everyone could stomach.

The evidently neglectful Freudenheims are not getting off scot-free, the building is going to be saved thanks to an angel developer - Savarino Companies, and a solution was reached with lightning speed, by Buffalo standards.

Judge Burns and the city’s Law Department are to be commended, and Savarino just bought a whole bunch of goodwill along with that building. Score one for Buffalo, for a change.

One hopes that the preservation community (and community-at-large) might prioritize buildings that may not be designated landmarks, are endangered and need saving. Perhaps they could take lessons learned from the Livery fiasco and be more pro-active rather than re-active when it comes to saving buildings deemed important. These things shouldn’t have to happen at the point when emergency injunctive relief is required to prevent demolition. A plan. Priorities. It would do a lot to not only save buildings, but dramatically improve the reputation of the preservationist community. By being pro-active rather than re-active, they lose the “obstructionist” epithet altogether. Just a thought.

Someone driving Marshawn Lynch’s 2008 Porsche Cayenne struck a 27-year old Ontario woman early Saturday morning, and didn’t stop. The only question now is - who was behind the wheel? Presumably, unless there’s a police report of that vehicle being stolen, its owner knows who was driving. In order to get Mr. Lynch to give up that info, the police are holding the Cayenne hostage.

Either way, Lynch is lucky that woman only has some bruises and minor injuries.

Donn Esmonde’s column examines the subject of indecency during prime-time television. Specifically, he was watching an episode of the alleged sitcom “Two and a Half Men”, and characters therein used the word “balls” when referring to their testicles.

The word “balls” can also be defined as “courage”. Is it as indecent when used in that context? Is “he’s got a pair of balls on him” more or less indecent than, “I got kicked in the balls”?

The FCC’s indecency rules apply to on-air programming between the hours of 6am - 10pm, and prohibit the broadcast of:

Material is indecent if, in context, it depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium. In each case, the FCC must determine whether the material describes or depicts sexual or excretory organs or activities and, if so, whether the material is “patently offensive.”

When assessing whether it is “patently offensive”, the FCC uses a three-prong (heh) approach:

(1) whether the description or depiction is explicit or graphic; (2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs; and (3) whether the material appears to pander or is used to titillate or shock.

It was once thought that the indecency rules applied only to George Carlin’s “Filthy Words”, all of which depict sexual or excretory functions or activity using “swear” or “curse” words as commonly understood in our society. The FCC has expanded that definition. Although “balls” is not one of the seven dirty words, the FCC has expanded the definition in a vague, unpredictable, and overbroad way. In other words, using the word “penis” could be found to be indecent if the use of the word wasn’t clinical, but used to titillate or shock. So, Oprah could get away with it, but Howard Stern couldn’t. But the word “penis” itself, while it may describe a sexual organ, is not “patently offensive”. I think the FCC has gotten away with murder on this topic for far too long.

So, the question is whether “balls” is patently offensive for the broadcast community (i.e., the whole nation) is an open one, and one would think that this question is one best answered by a judge or jury - not a small group of FCC Commissioners. Esmonde suggests that words like that shouldn’t be broadcast until 10pm to prevent him from embarrassment in the presence of his 12 and 15 year-old kids.

Under FCC rules, it is completely legal for broadcast television to broadcast the word “fuck” after 10pm, much less “balls”. But also, the indecency rules aren’t set up to protect dads from feeling uncomfortable. It’s specifically to protect tender young children from hearing dirty words during times they are generally awake.

But really, what’s indecent is that networks can put on utter dreck like “Two and a Half Men” on network television, that it gets high ratings, and wins Emmys. I don’t think I’ve ever met anyone who watches that. A 30-minute sitcom with a live studio audience making sex jokes? What is this, 1988?

The movie itself was a biting commentary on prejudice and xenophobia.

Better still is the litigation it prompted.

Great success!