Bad law bad defense is propagated quickly.

edited June 2016
This case in Michigan is a prime example of publicity in a lack of fight that propagates and emboldens others to bring similar charges.

There are so many issues here from her public defense attorney not having the resources or desire to mount a first amendment claim to accepting the statute in question is even constitutional. Some of my adversaries are posting this case all over Facebook as if a thinly veiled notice to me.

It is cases like this that dominos into more cases against others. Rene Kolka's name returns large on google.

Here is one story http://www.mlive.com/news/bay-city/index.ssf/2016/05/judge_accepts_womans_guilty_pl.html

This lawyer blogged on this case and even challenged the prosecutor, by completing all the elements of the crime, to charge him....she didnt.

http://livonia.lawyer-mi.com/content/facebook-felonies-michigan-monitors-rude-facebook-postings

Comments

  • The issue is whether ALL of these conditions are met:

    (1) A person shall not post a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the victim's consent, if all of the following apply:

    (a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.

    (b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.

    (c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

    (d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.


    There are key thresholds that have to be met such as the "reasonable person" stand. What qualifies as "emotional distress". Of course, most ordinary people without a legal background might have a tough time defending it.

    Your adversaries would do well to "grow up" and get over it especially if what you were writing about was truthful.

    The fact that your case went to appeal brought to light their role in the wrongful case.
  • Yes sir ! Looking forward to my court date on July 5, 2016 at 12:45. Florida rules of appellant practice requires losers to pay costs such as gathering the record and the transcripts. About $950.00. If I had an attorney the cost would have been much higher. Once all ancillary actions are complete I can be clearer in my next moves. But as you know any officer who may run an NCIC check will always see that vacated restraining order. The officer is human and that available hit may cause greater scrutiny even though reversed. So I may file a motion to order that law enforcement record to be removed. Not seal the court case or anything just remove the LE hit.
  • Randy, I filed a motion for order to expunge regarding the NCIC issue. You should pursue it like I did. And yes, you should be able to recover some of your appellate costs which I also did.

    You have done your homework. Good job.
  • Can i see that please?
  • Thank you gentelman, I'm following your advice on the NCIC issue as well as costs that have been inflicted.
  • I too am interested in the NCIC method. Was this a state action, or a federal injunction/mandamus to get rid of the record.

    Causing an emotional distress is not enough for a cause of action, even though it is a valid tort. But people have to be careful of time manner or place restrictions (including the captive audience), the unprotected categories of speech, and even extortion charges. The US supreme court in Snyder v phelps reversed an IIED claim on grounds that the westborough baptist church was engaged in their first amendment rights in speaking on a public matter. "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case." In NAACP v Claiborn hardware that supreme court recognized that speech can embarass others, and that social ostracism can be used. "Petitioners admittedly sought to persuade others to join the boycott through social pressure and the "threat" of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action. As Justice Rutledge, in describing the protection afforded by the First Amendment, explained: "It extends to more than abstract discussion, unrelated to action. The First Amendment is a charter for government, not for an institution of learning. 'Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts."" As you get closer to the US supreme court you'll find a heavy distaste for things hinting of what is called a heckler's veto and the courts can't emphasize enough the categorical approach. The reasonable person standard is more for civil matters no criminal matters, see Elonis v united states ("Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of “awareness of some wrongdoing,” Staples, 511U. S., at 606–607. This Court “ha[s] long been reluctant to infer that a negligence standard was intended in criminal statutes.” Rogers v. United States, 422 U. S. 35, 47 (Marshall, J., concurring). And the Government fails to show that the instructions in this case required more than a mental state of negligence. ").

    Since the michigan case of calling someone a shore, slut, cokehead, and saying she probably has an STD over an internet communications, the first thing that has to be looked at is if it would be an unprotected category. Not too concerned about posting the persons phone number, usually that is public information. It was said online so we need not worry about fighting words, like calling someone a "Racketeer" on the sidealks. Generally you can call someone a b* without it being defamation, so simply calling someone a whore shouldn't be much different. The problem is saying that she probably has an STD, and that juries could find that to be defamatory, and even a cokehead. Essentially for a categorical analysis, I think that cokehead would stick for an allegations. I wouldn't say it would be a strong case on the the allegations of an STD, (1)because of the word "probably" can be inferred if she has evidence to think that the "victim" is a whore, and (2) because some STDs like hpv are extremely common. See http://www.cdc.gov/std/hpv/stats.htm , "HPV is so common that nearly all sexually active men and women get the virus at some point in their lives." Don't try it yourself, because you can still shell out tens or hundreds of thousands in legal fees even if you beat your case-millions if you lose. There is no other unprotected categories that can be applied to the michigan case, obscenity requires more than just words (outside of a school), There was no call or threats of violence, so no true threats nor unlawful incitement. There was no acts of fraud committed. Just alleged defamation.

    The Prosecution would have to assert a claim that it is defamatory, and a reasonable jury might agree as a defense attorney may have such a large case load that he wouldn't think of something as common like hpv. Lawyers are no longer the Olver wendall Holmes (whom Sherlock Holmes is named after)-While there are some good ones out there, they are mostly intellectual defects who found they couldn't do anything with their political science, journalism, or woman studies degrees. The worst of the worst become trial court judges for the stable income.

    Let us look to the elements of the statutes. One element is that the contact is unconsented. that in order to read offensive things online almost always requires consent. See Reno v ACLU. That unconsented part is enough to essentially render the whole statute facially invalid. Consistent with Reno, courts are acknowledging that email communications is not unconsented. This goes back to what is called the captive audience, and let us turn to an older technology-Us mail. In Bolger v Young Drug Products, The First Amendment "does not permit the government to prohibit speech as intrusive unless the captive' audience cannot avoid objectionable speech." Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. at 447 U. S. 542. Recipients of objectionable mailings, however, may "`effectively avoid further bombardment of their sensibilities simply by averting their eyes.'" Ibid., quoting Cohen v. California, 403 U. S. 15, 403 U. S. 21 (1971). Consequently, the "short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned." Lamont v. Commissioner of Motor Vehicles, 269 F.Supp. 880, 883 (SDNY), summarily aff'd, 386 F.2d 449 (CA2 1967), cert. denied, 391 U.S. 915 (1968). It is another matter for telephone communications, I think the courts have it screwed up. They treat using the telephone as "conduct" for example, when a proper analysis would be to treat it as unwanted noises in the home (fcc v pacifica founation). The second element of the statute has problems as they are listeners reactions. There are people who have became millionaires whose job was to frighten people through amusement parks, and movies. Could a friend tricking you into riding a roller coaster or watching a scary movie be criminally prosecuted? Or as an extension can the producers and the actors be prosecuted because you view their production without your consent. About the only thing technically that would stick in this second element is the word intimidated which related to a type of true threat-althpough a second word harassed could be considered. See Virginia v Black. ""True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, supra, at 708 ("political hyberbole" is not a true threat); R. A. V. v. City of St. Paul, 505 U. S., at 388. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats "protect[s] individuals from the fear of violence" and "from the disruption that fear engenders," in addition to protecting people "from the possibility that the threatened violence will occur." Ibid. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." The word "harassed" under the larger code section is similar to the above statute, effectively trying to prosecute all speech that causes an emotional distress unless it is constitutionally protected or serves a legitimate purpose. It is possible that defamation could be included as "harassment" for the purposes of the statute, but that would essentially require everyone to be legal scholars to know what the law does and does not allow in what would be called a vagueness attack. Not even people with law degrees, not even federal judges, know what harassment is and their incompetence is growing. Various state courts have rejected the vagueness attack despite the ignorance of the profession itself. However, There is another vagueness attack and that is on the word "legitimate purpose" and the use of this term follows with another attack on statute. The US supreme court has stricken down Alabama's anti-picketing statute as being unconstititionally vague when picketing was done with no lawful purpose. See Thornhill v Alabama "The phrase "without just cause or legal excuse" does not in any effective manner restrict the breadth of the regulation; the words themselves have no ascertainable meaning, either inherent or historical." The use of the phrase "legitimate purpose" and even continuous (or here on two occasions) was so that the statutes wouldn't be abused, but that of course puts us at the mercy of noblesse oblige. See US v Stevens "But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001)."
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