Meeting the Sin Laws

Have you left your bag of firearms unattended?

2008-07-04T11:22:00.017-04:00

Happy July 4th!!

Are you flying over the holiday? If you're passing through Atlanta's Hartsfield-Jackson Int'l Airport, you'll need to leave your "arms" at home. For now at least. Sound ridiculous? To GeorgiaCarry.Org, Inc. and Georgia Representative Timothy Bearden (R - Villa Rica) it does. So the organization and Mr. Bearden have sued the airport, the City of Atlanta, the mayor, and the city's general aviation manager (Benjamin DeCosta). The allegations? According to the complaint:

Until July 1, 2008, O .C .G.A. § 16-12-122 through § 16-12-127 generally prohibited carrying a firearm in the Airport, with a penalty of up to 20 years in prison and a $15,000 fine .

Beginning July 1, 2008, the law in Georgia was changed by House Bill 89, an act of the General Assembly signed by the Governor, permitting people to whom a Georgia firearms license ("GFL") has been issued to carry a firearm in"public transportation," notwithstanding the provisions of O .C .G .A. § 16-12-122 through § 16-12-127.

From the complaint we learn that Mr. Bearden is the author of HB 89, and, apparently, he has exchanged words with Mr. DeCosta via the Atlanta Journal Constitution. I'm not sure whether carrying a gun in the airport is vital to Mr. Bearden's way of life. Maybe it doesn't matter, legally speaking. In the complaint he alleges:

Plaintiff Bearden is a visitor and user of the Airport facilities . He would like to exercise his right to carry a firearm while in the nonsterile areas of the Airport, but he is in fear of detention, search, arrest, and prosecution for doing so.

Plaintiff Bearden intended to visit the Airport on July 1, 2008 while legally armed, but he was deterred from doing so by Defendant DeCosta's specifically targeting Plaintiff Bearden for arrest.

True, everyone who goes to the airport is not a passenger. I've done business meetings at skymile clubs, picked up (and dropped off) hundreds of guests, friends and family, and I've even gone to the airport just to watch the airplanes. Nerd alert. Still, this is a pretty volatile location to launch a Second Amendment challenge. The guts of the complaint:

O.C.G.A. § 16-11-173 expressly prohibits Defendants from regulating the carrying of firearms "in any manner."

The Second Amendment to the Constitution of the United States guarantees an individual right to keep and bear arms.

The Militia Clause of the Constitution of the United States provides that Congress shall have the power to "provide for organizing, arming, and disciplining the Militia...."

The "Militia" as used in the Militia Clause means all able bodied men.
The individual right to bear arms existed at common law prior to the passage of the Second Amendment.

It's a Militia Clause and a Second Amendment "right to bear arms" case. With a smattering of state-law preemption. For all things "DC v. Heller," check out SCOTUSblog's Wiki on the case. There you can read GeorgiaCarry.Org, Inc.'s amicus brief, authored by the same attorney who filed this test case.

What else has Mr. Bearden sponsored? HB 21 (attempting to make "English" the official language of Georgia), HB 126 (attempting to tweak criminal procedure to provide that a verdict in a felony case, other than a case involving the death penalty, shall be agreed to by at least 11 of the 12 jurors), HB 640 (attempting to protect state flags and other "commemorative symbols"), and HB 1204 (attempting to create crime of feticide by drug ingestion). None passed.

A couple of Mr. Bearden's Resolutions that did pass: House Resolutions 1117 and 1291. Both relate to cheerleading, the latter: ("NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES that the members of this body commend the University of West Georgia All-Girl Cheerleading Team on their dominating win of the Division II All-Girl Cheerleading Competition and invite them to appear before this body on a date and at a time designated by the Speaker of the House for the purposes of being recognized by the House and receiving an appropriate copy of this resolution.")

I wonder if these cheerleaders traveled to the State Capitol via MARTA (Atlanta's public transportation system). The Georgia Secretary of State's Web site encourages teachers to use MARTA for student field-trips to the State Capitol. I know that Georgia's schools are weapons-free zones, but, thanks to Mr. Bearden's leadership, MARTA is not.

*Afterthought: As I've said before, I know little about the empirical studies analyzing the relationship between gun violence and gun control. I'm more than unqualified to take a reasoned stance on the issue. I also believe -- again, I don't know -- that most persons who apply for (and obtain) a permit to own a firearm have nothing but protectionism in mind when they do so. They're good people! But a gun is still dynamite. And, in certain settings, sparks abound.

Are obscenity prosecutions on the rise?

2008-06-23T22:36:00.013-04:00

Maybe. Or maybe not.

"What’s Obscene? Google Could Have an Answer" appears in tomorrow's edition of The New York Times. The question is whether Internet data --- specifically, Google search results --- may be used at trial to gauge "community standards," whatever that means. The article quotes two talented attorneys (disclaimer: I consider them friends), Larry Walters and Jeffrey Douglas. A glimpse:

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.

Another capable and talented attorney, Marc Randazza, has suggested this as well. So what's all the fuss over the Internet? Better yet, what is the Internet? According to HowStuffWorks.com, it's "a gigantic collection of millions of computers, all linked together on a computer network." In that network "a home computer may be linked to the Internet using a phone-line modem, DSL or cable modem that talks to an Internet service provider (ISP)." These "ISPs then connect to larger ISPs, and the largest ISPs maintain fiber-optic 'backbones' for an entire nation or region. Backbones around the world are connected through fiber-optic lines, undersea cables or satellite links (see An Atlas of Cyberspaces for some interesting backbone maps). The end result: "every computer on the Internet is connected to every other computer on the Internet." [Source]

It seems to me that, if the government takes a 21st-century view that a web of fiber-optic backbones, with their hallways of bouncing light pulses (when descrambled and assimilated by an end-user), can throw someone in jail depending on what story emerges on transmission to a consenting adult, then maybe that someone ought not lose the right to show that others, too, see the light. The World might not think it a prurient thing. Whatever that means.

(HT: HowStuffWorks.com)

Georgia's wine sales to go online

2008-06-09T13:55:00.006-04:00

Georgia winemakers want your home address and (unexpired) MasterCard number.

The Atlanta Journal Constitution reports here that, "[s]tarting July 1, Georgia residents can have any winery ship to them up to 12 cases a year as long as someone 21 or older signs for the shipment." Awesome! Because shipments to the front door were previously off-limits, leaving hard-to-find bottles and wines not represented by local distributors out of reach, this measure is sure to help Georgia's upstart wineries. Yes, that's right -- Georgia has wineries. Here are the ones mentioned in the article:

Says the co-owner of Persimmon Creek Vineyards, Mary Ann Hardman, "I think Thomas Jefferson would be quite thrilled with the passage of this law, as he had wines from Chateau Rausan-Segla and Chateau d'Yquem shipped directly to him as president and then in his retirement at Monticello. He even had a muscadine from North Carolina shipped directly to his Palladian-framed doorstep." I'm not sure how TJ would have felt about online wine shipping, but I know that the Christian Coalition is not opposing this bill, as it did the proposed Sunday Sales legislation. That's according to this article from BeverageWorld.

I've written about Georgia's regulation of online wine sales for The Hudspeth Report.

Borderless Bookstore

2008-06-08T19:01:00.009-04:00

I like happily-ever-afters.

In West Chester, Pennsylvania, the "St. Agnes Church has dropped its challenge to a zoning hearing board decision involving Feminique Boutique, a sex novelty shop near the church," reports the DailyLocal.com here. Why? Well, we can only guess, but there is no definition for what the store is (i.e., an adult novelty store) in the borough's code; so there was no restriction on the store's locating where it did. The store sells "lingerie and body oils as well as racier items in a back room."

According to the article, the store's owner, Jill McDevitt, "has a bachelor’s degree in sexuality, marriage and family," and "originally wanted to be a high school English teacher" before founding her boutique. (While pursuing a psychology degree at East Stroudsburg University, she wrote a sex column in the student paper. It sounds like she's an educator, a savvy marketer, and, unlike the church -- at least initially -- a reader of the law.) Anyway, when the uproar began, hundreds signed a petition at the boutique supporting the store's plight.

It worked. Then again, Ms. McDevitt's store is no BadaBing.

Slots & Sovereignty

2008-06-04T11:51:00.007-04:00

It's a video poker case.

Over at SCOTUSblog, they're betting that that it is taken up by the Supreme Court. I won't (meaning, I can't) handicap the odds. The case concerns Jimmy Martin and his company, Lucky Strike, which have sought to enjoin enforcement of two South Carolina statutes criminalizing certain "device[s] pertaining to games of chance." The district court declined to hear the case, dismissing the federal constitutional challenges to the two South Carolina statutes regulating video poker, on the ground that Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943), mandated abstention. The Fourth Circuit Court of Appeals reversed. "Because resolution of these challenges neither requires a court to adjudicate difficult questions of state law, nor disrupts state efforts to establish through a complex regulatory process a coherent policy on a matter of substantial public concern," the court of appeals held, "this case falls well outside the narrow category of cases to which Burford abstention may apply." But that's only 2/3 of the story.

Judge Wilkinson dissented. He wrote:

My friends in the majority ... refuse to allow the state courts to undertake the delicate task of distinguishing between lawful and unlawful games. Because South Carolina's gaming statutes justifiably call for a machine-by-machine determination of legality, the majority's notion that it somehow can interpret "games of chance" in bulk, without disrupting South Carolina's enforcement scheme, rides roughshod over the scheme itself and the principles of federalism it purports to observe.

This clash over what federalism requires, or what it does not allow, reminds me of a case I blogged on earlier. Both cases concern preliminary, federal court decisions on state regulatory matters. Both are also superb pieces of writing, IMveryHO.

It's been said that a good lawyer knows the law, while a great lawyer knows what the law will be (i.e., meaning, sometimes, that the lawyer knows the judge). Great, good or just plain average, I bet that this case doesn't get snatched.

Dem is fight'n words

2008-05-14T12:29:00.002-04:00

This free-speech lawsuit requires us to determine the present scope of the “fighting words”doctrine. The setting is a neighborhood feud. The case features an unsightly, 38-foot recreational vehicle stored on a residential driveway in suburban Chicago, a neighborhood petition drive to force its removal, and a derogatory Halloween yard display erected in retaliation against the neighbors who led the petition drive.

begins this opinion from the Seventh Circuit Court of Appeals. In the end, the court holds that the display was, in fact, protected by the First Amendment. But that finding (or holding or dicta) was academic, as the police officer had every right to act on the ruckus which ensued. It's a good read.

Alcohol & Big Business

2008-05-11T21:48:00.004-04:00

"Michael Cortez never dreamed he'd be heading to the highest court in the state over a six-pack of beer. But the vice president and general counsel for Sheetz Inc. will do just that Wednesday when his central Pennsylvania convenience-store chain appears before the Supreme Court to resolve a dispute over where beer can be sold in the state." The Philadelphia Inquirer reports here (thanks How Appealing).

If you adopt silly laws that hurt someone's business, you encourage silly behavior to save someone's business. It's that simple. Of course, it depends on your vantage point. Silly laws are sometimes adopted to help someone's business.

The only thing we have to fear, is beer itself ...

2008-04-14T15:59:00.004-04:00

... and not one State's attempt to jack-up the tax on it -- or says Orin Kerr of The Volokh Conspiracy here. A California assemblyman, Jim Beall, has "proposed raising the beer tax by $1.80 per six-pack, or 30 cents per can or bottle. The current tax is 2 cents per can. That's an increase of about 1,500 percent," according to MercuryNews.com here.

But is this proposed tax constitutional? I say, obviously not. The tax would be blatantly unconstitutional under the Due Process clause, the 21st Amendment, the 8th Amendment, the Privileges & Immunities clause, and the Dormant Commerce Clause. Recall that the time of the Framing of the Constitution, Benjamin Franklin accurately captured the American approach to beer when he stated that "Beer is
proof that God loves us and wants us to be happy." And was not Samuel Adams both a brewer and a patriot, I ask you?

I've visited Sam Adams grave in Boston. I'm not sure why. I think it's on the Freedom Trail or something. The grave is pretty nondescript, really. But I think you'd hear some rumbling were you to read aloud this legislation while standing atop it.

Milwaukee's Best Light -- $3.79 for a 16 oz. six-pack!

2008-04-02T21:12:00.007-04:00

"A federal judge has overturned Virginia's decades-old ban on alcohol-related advertising in college newspapers, saying that the law violates the student publications' constitutional right to free speech," reports AP in the Washington Post here. Most alcohol-advertising bans are sitting ducks for constitutional challenge if they're (threatned to be) enforced because there's typically little (if any) evidence supporting the speech ban. Thing is, many revenue agents and others tasked with enforcing alcoholic beverage laws know this and, wisely, choose to let these advertising restrictions collect dust. Most of time, at least.

Just my $.02.

Bang

2008-03-29T08:14:00.007-04:00

"Guns, Fear, the Constitution, and the Public's Health," written by Garen J. Wintemute, M.D., M.P.H., will appear in the April 3 edition of the New England Journal of Medicine. (HT to You Don't Say.)

Dr. Wintemute notes that "the $2 billion annual costs of medical care for the victims of gun violence are dwarfed by an estimated overall economic burden, including both material and intangible costs, of $100 billion." (footnote omitted). So "[i]t's unlikely that health care professionals will soon prevent a greater proportion of shooting victims from dying; rather, we as a society must prevent shootings from occurring in the first place." Ain't that the truth.

Because I don't know anything about gun violence statistics or prevention, I'm eminently qualified to comment. So here goes: There's big money in guns. Period. End of story. Finito. Before there were guns, people did not kill people with guns. Before guns no one feared death by gun. That was then, of course. Today people own (hand)guns, in large part, because they fear death (by handgun). But,

Gun violence is often an unintended consequence of gun ownership. Americans have purchased millions of guns, predominantly handguns, believing that having a gun at home makes them safer. In fact, handgun purchasers substantially increase their risk of a violent death. This increase begins the moment the gun is acquired — suicide is the leading cause of death among handgun owners in the first year after purchase — and lasts for years.

Dr. Wintemute takes issue with state legislatures deregulating gun use. He says that relaxed regulations are founded on myths:

One is that increasing gun ownership decreases crime rates — a position that has been discredited. Gun ownership and gun violence rise and fall together. Another myth is that defensive gun use is very common. The most widely quoted estimate, 2.5 million occurrences a year, is too high by a factor of 10.

Policies limiting gun ownership and use have positive effects, whether those limits affect high-risk guns such as assault weapons or Saturday night specials, high-risk persons such as those who have been convicted of violent misdemeanors, or high-risk venues such as gun shows. New York and Chicago, which have long restricted handgun ownership and use, had fewer homicides in 2007 than at any other time since the early 1960s. Conversely, policies that encourage the use of guns have been ineffective in deterring violence. Permissive policies regarding carrying guns have not reduced crime rates, and permissive states generally have higher rates of gun-related deaths than others do.

I'm all for approaching a long-running debate from a new angle. It can break the stalemate. Entrenched special interest groups are superb at framing the issue in a way that places their agenda in the best light. But what about the rest of us? Maybe the combination of medicine & money -- commodities that we all fear losing -- will shift this debate.

E-wine & ID

2008-03-21T00:17:00.013-04:00

An interesting decision concerning Wine.com which you can access here (eVineyard Retail Sales-Massachusetts, Inc. vs. Alcoholic Bev. Control Comm'n, SJC-09948 March 18, 2008).

One of the vinous Internet giant's wholly owned subsidiaries, eVineyard Retails Sales-Massachusetts, Inc. (eVineyard), got snagged for delivering -- errr ... selling -- wine to an underage person. The facts are simple. For whatever reason, the Massachusetts Attorney General's Office ran a sting using an underage female (19 yrs. old) to order wine from Wine.com. To place her order, the underage woman opened an account with eVineyard, submitting her name, address, and a fictitious date of birth, which indicated that she was 22 years of age. Well, her order

was processed by eVineyard, and delivered to her by Federal Express, with whom eVineyard contracts for the delivery of all of its orders. In the contract, Federal Express agreed to deliver wine orders to customers in compliance with certain age verification requirements. eVineyard paid Federal Express an extra two dollars per delivery for its carriers to check identification and verify that each recipient is twenty-one years of age or older. eVineyard places labels on its packages informing the carrier that the packages contain alcohol and that a driver should not deliver the package to anyone under twenty-one years of age or visibly intoxicated, and that, if reasonable doubt about age exists, the driver should verify age and record the recipient's driver's license number or other identification. Federal Express also requires that certain labels be used on packages containing alcohol. Federal Express delivered the wine, in this case, to the underage CI without asking for identification or proof of age.

So, following 2 stings, eVineyard ultimately suffers a pair of modest alcohol-license suspensions, while FedEx escapes unscathed on one of those stings. Quite understandably, and in an homage to stare decisis, eVineyard appealed the ruling. It raised three arguments: mootness, statutory interpretation, and entrapment. They're all interesting defenses.

Regarding mootness, eVineyard argued that the license suspension targeted a 2004 alcohol license, and, by 2007, that train had left the station. (The state issues alcohol licenses annually, meaning that the license is good for one year only.) eVineyard applied for a "new" license in 2007, and reasoned that any adverse action against the 2004 license was disconnected to the 2007 license. I like the argument because, where I practice, the State frequently reminds its license holders that they enjoy no vested right in the renewal of those licenses. In other words, you can't claim a property right that extends beyond the year in which the license is issued. I say what's good for the goose.... If you don't get the benefit of an alcohol license in perpetuity, then you shouldn't suffer the detriment of an expired alcohol license in perpetuity: 1 year means 1 year, and, here, Massachusetts targeted 2004 -- not 2007.

Regarding the statutory argument, the Court held:

The plain language of the statute is unambiguous: it forbids both the sale and the delivery of alcohol to minors. The commission's interpretation of the statute as allowing it to proceed separately against both the licensed seller of alcohol, eVineyard, and the licensed deliverer, Federal Express, accords with the statute's language and with its legislative intent.

Regarding the entrapment argument:

eVineyard contends that the sting operation at issue resulted in its first offense, and that there was no evidence that it had a predisposition to sell to minors. It also argues that the CI wrongfully misrepresented her age on the eVineyard Web site, in violation of the commission's investigative guidelines that prohibit decoys from lying about their age. We reject these arguments.

To raise an entrapment defense properly, eVineyard must produce evidence of government inducement. Solicitation by a government agent alone is insufficient to show inducement. (cits omitted.)

Moreover, even if we were to reach the issue of predisposition, we agree with the commission that in the absence of a scienter requirement in the statutes, the "question is not whether eVineyard was predisposed to sell alcohol to persons whom it knew to be underage, but whether eVineyard's [Internet] practices evidenced a willingness to sell alcohol in a manner that could allow minors to make purchases by the simple expedience of misrepresenting their age."
Finally, the operation was conducted by the Attorney General's office in compliance with its own guidelines for sting operations concerning Internet alcohol sales to minors. These guidelines allow decoys to misrepresent their age when ordering alcohol via the Internet, but prevent them from transmitting by facsimile or otherwise providing false identification documents to an Internet retailer. The commission's on-premises guidelines are inapplicable to remote, Internet-based, sting operations, particularly when conducted by the Attorney General's office.

I'm guessing that it's first-day training for FedEx's in-house counsel to reread Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854), a relic contract case taught at most law schools. They'll be reading this case, too.

Religion & Poles

2008-03-18T22:36:00.004-04:00

(Source.) A follow-up to my post below. The picture is entitled, you guessed it, "Peep Show."

Now that just ain't right.

Politics & Poles

2008-03-18T21:12:00.005-04:00

This month Harper's Magazine is featuring Mr. Fish, 178 Cartoons from 2004 to 2008. Mr. Fish, we're told, "lives in Los Angeles, California. He never asked to be born. Occasionally, he laughs his head off. His mother has no idea what he's up to. She cries easily. For more information, date him." He sounds bipolar, but I'm not willing to date him to confirm.

I'm sure that, within a 1,000 or so words, someone could offer some clever comment capturing the impact of this cartoon. Not me. I'll defer to the caption (too small to read), which says "According to the most recent poll."

That's not why people go into politics, is it?

Percy L. Julian, Jr., Esq.

2008-03-02T10:48:00.003-05:00

"The legal community — particularly the First Amendment field — lost a giant recently in Wisconsin-based civil rights attorney Percy L. Julian Jr., who died Feb. 24 in Madison at age 67," laments David L. Hudson, Jr. of the First Amendment Center here. I considered Percy a friend, and the comments offered by Jeff Scott Olson and H. Louis Sirkin in the article are spot on: Percy was a talented lawyer, and an extraordinary gentlemen. In a sad coincidence, I e-mailed Percy last week, picking his brain about recovering attorney's fees under 42 U.S.C. Sec. 1988. (Percy has always taken time to educate -- and console -- me.)

Now I know why my friend did not respond.

Stuff

2008-02-23T21:58:00.004-05:00

"Breasts are not genitalia, and drivers don't gawk at the word 'love' — a First Amendment problem," is the title of an Althouse post. In case you're wondering, the buttocks is not genitalia either, although some have believed it so.

"Millions May Be at Stake in Suit Over Hit NBC Game Show" appears in a Law.com article, which begins:

Text messages, cell phones, TV game shows, Howie Mandel -- none of these could have been contemplated by Georgia's colonial lawmakers when they first passed a law allowing gamblers to recover their losses through lawsuits.

The current version of the law, found at Office of Contract and Grant Administration §13-8-3, is at the center of a case against NBC Universal and the producer of Mandel's hit show, "Deal or No Deal," to be heard Tuesday before the state Supreme Court."

Strip-club mogul remains an enigma," appears in tomorrow's edition of the Atlanta Journal Constitution. It's about Jack Galardi:

Welcome to Galardi Nation, a smoky, windowless empire that stretches like a plus-size G-string from Nevada to Florida to the Carolinas, at times numbering two dozen clubs. Five operate in metro Atlanta, including the just-opened Pink Pony South, in Forest Park, with its two-tier showroom and upstairs sushi bar.

While his dancers are on full display, the 76-year-old Galardi remains one of the most successful and controversial local moguls you've likely never heard of.

My firm has represented Mr. Galardi's interests over the years; I'm a fan. It's a nice article.

Texas sexual device ban held unconstitutional

2008-02-13T09:20:00.003-05:00

The Fifth Circuit Court of Appeals just reviewed Texas's obscenity statute, and here's how the opinion begins:

This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices. The district court upheld the statute’s constitutionality and granted the State’s motion to dismiss for failure to state a claim. We reverse the judgment and hold that the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.

It's recognized that, in constitutional law, the answer often depends on how the question is framed. In this case the questions were posed this way:

Plaintiffs claim that the right at stake is the individual’s substantive due process right to engage in private intimate conduct free from government intrusion. The State proposes a different right for the Plaintiffs: 'the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.'

It looks like the court of appeals didn't like the State's picture, and it didn't buy the frame.

Liberty 1, Absurd Legislation 0.

Georgia law continues to honor the Sabbath

2008-02-12T12:06:00.000-05:00

"Despite public sentiment, Sundays likely to stay dry for now," is an article which appears in today's Atlanta Journal Constitution. If you haven't heard, Georgia is contemplating (again) a Sunday sales bill that would allow communities to decide whether they want to allow beer, wine and liquor retail package sales on Sundays. (Georgia is one of three states that ban Sunday sales of alcoholic beverages at stores, i.e., you can purchase a beer for consumption on the premises of a restaurant on Sunday, but you cannot purchase a six-pack from a grocery store that day.)

So what's the deal? According to the article,

Two-thirds of Georgians who answered a recent poll said they want the right to vote on allowing stores to sell beer, wine and booze on Sunday.

A free-market Republican caucus that includes several state Senate leaders calls the Sunday sales vote a "no-brainer."
...
However, religious conservatives have strongly opposed such sales, saying alcohol shouldn't be peddled on the Christian sabbath. Some liquor store owners, including those with political connections to Gov. Sonny Perdue and Cagle, have also opposed the idea. Liquor store opponents don't want the expense of being open on Sundays just so grocery and convenience stores can make more sales.

What a political laugh-off. The alliances and competing interests here remind me of the "wine shipping" cases. It's a sabbath/commerce split. On the one (invisible) hand, you've got the "free-market Republican" who wants to supply a product to serve a demand. On the other (clasped) hand, you've got the "born-again evangelical," who is often a Republican, who does not want to blemish the Sabbath.

No matter how arcaine or abstract the theory, I've been taught, "Don't check-in your common sense at the door." Opponents of the Sunday sales bill have one theory: It just doesn't feel right to offer package sales on Sundays. That's it. To support that theory requires reading scripture. Respectfully, those wishing to honor the Sabbath (by banning retail alcohol sales on Sundays) have left their common sense at the door, and they're floating various theories -- secular, mind you -- to justify the prohibition.

Am I missing something? Or do Georgia's Sunday sales opponents fund NASCAR Sundays, which are brought to you by All Things beer and Viagra?

Virginia Beach police seize photos from Abercrombie store

2008-02-03T12:06:00.000-05:00

If I didn't know Virginia Beach, I'd have guessed this was a publicity stunt. But it's not. According to the article from Hampton Road's PilotOnline.com (via The Drudge Report),

Police, saying they were responding to citizen complaints, carted away two large promotional photographs from the Abercrombie & Fitch store in Lynnhaven Mall on Saturday and cited the manager on obscenity charges.
Adam Bernstein, a police spokesman, said the seizure and the issuance of the summons came only after store management had not heeded warnings to remove the images.
The citation was issued under City Code Section 22.31, Bernstein said, which makes it a crime to display "obscene materials in a business that is open to juveniles." He did not say what was being done with the pictures and when the manager, whose name was not released, is scheduled to appear in court.
...
Bernstein confirmed that one depicts three shirtless young men from the back, walking through a field. The man in the lead appears to be about to pull up his jeans, which have slipped down enough to reveal his upper buttocks.

Few (maybe no one, if they're rational) would disagree that children are off-limits when it comes to pornography production. That's not up for debate. That prohibition, however, doesn't seem to fit this scenario. The ad does not involve children, and it does not involve pornography. (In no legal sense is the ad obscene.) I think that Virgina Beach's ordinance, though entitled "Display of obscene materials at business establishments open to juveniles," aims to ban sexually explicit displays in the presence of children. Let the debate ensue.

I like what you're saying, so I won't zone you out.

2008-02-01T12:55:00.000-05:00

Over at The Volokh Conspiracy Ilya Somin has posted that Berkeley is "considering enacting a zoning ordinance to restrict [military recruiters'] location[s] in much the same way as other cities use zoning to restrict or ban businesses selling pornography." He writes:

Conservatives are justifiably outraged by the proposed Berkeley measure. I share their indignation. However, it is striking that advocates of the Berkeley measure use most of the same arguments for it as many conservatives use to justify zoning out adult businesses and other enterprises they disapprove of.

For example, the Berkeleyites claim that the measure is justified on the basis of community morality in Berkeley, where much of the very left-wing population finds military recruiters offensive. As Berkeley Councilmember Dona Spring puts it, "I do want to do something, whatever we can do, to shut down an agency that offends our public standards." Conservatives similarly argue that local communities that find adult businesses offensive should be able to ban them for that reason. If conservative local majorities should be able to use zoning law to enforce their moral values, why shouldn't the left-wing local majority in Berkeley be able to do the same thing?
...
[T]hey should not use the heavy hand of government to force out enterprises merely because they find them offensive. Zoning might be able to play a valuable role in providing certain local public goods and in restricting businesses that cause genuinely severe harm to their neighbors. But mere community disapproval - whether by the right or the left - should not be enough to justify such restrictions.

I so agree. I notice, though, that the proposed zoning ban would apply to both government and private military recruiting offices. Certainly the zoning measure is flawed as it applies to private recruiters. And it lacks no better basis when it comes to government recruiters. I'm curious to hear how a local or state actor restricts the speech of a federal actor. Interesting stuff!

Everything is new(d) again

2008-01-31T11:47:00.001-05:00

I've been working and playing.

My playtime has been with our first baby, Ms. Audrey Jane Wiggins. She's a hoot. Born on January 8, she's been a non-stop machine, keeping her parents (especially mom) busy changing, feeding, rocking, gazing and laughing. I love it when Audrey smiles, even if the grin's just a "gas release," as I'm told.

My worktime has been conducting year-end office adjustments and of course litigation. 2008 is going to be great! We're revamping some in-house systems, and going to take the changes to our clients (and opposing counsel) soon.

For now, an article appears in today's NYT entitled, "A Befuddlement of Liquor Laws" by Eric Asimov.

The laws governing direct interstate shipments from wine retailers to consumers are confusing, arcane, inconsistent, often ignored and rarely discussed. The topic comes up now because of the efforts of one online wine merchant, Wine.com, to squelch fellow merchants it suspected of breaking the laws by which it says it was abiding.
In what amounted to its own sting operation, Wine.com last summer ordered wine from several retail merchants and asked them to ship it to states where such shipments are illegal. Upon receiving the wine, Wine.com then sent letters to state regulators turning in the transgressors.

I can't say that I blame Wine.com for tattling, even if they're the narc that spoils the transcontinental party. Some of the alcohol laws governing the three-tier system (i.e., separating retailers, distributors and manufacturers) amount to economic protectionism, but if Wine.com plays by the rules, shouldn't its competitors? [Insert joke here.]

Another good article, entitled "Sex Sells," appeared in The Economist this week. It happens that the American Economic Association just participated in a gathering of social scientists in New Orleans to discuss, among other riveting topics, sex.

The star attraction there was Steven Levitt, an economics professor at the University of Chicago and co-author of “Freakonomics”, a best-selling book. Mr Levitt presented preliminary findings* from a study conducted with Sudhir Venkatesh, a sociologist at Columbia University. Their research on the economics of street prostitution combines official arrest records with data on 2,200 “tricks” (transactions), collected by Mr Venkatesh in co-operation with sex workers in three Chicago districts.

The results are fascinating. Almost half of the city's arrests for prostitution take place in just 0.3% of its street corners. The industry is concentrated in so few locations because prostitutes and their clients need to be able to find each other. Earnings are high compared with other jobs. Sex workers receive $25-30 per hour, roughly four times what they could expect outside prostitution. Yet this wage premium seems paltry considering the stigma and inherent risks. Sex without a condom is the norm, so the possibility of contracting a sexually transmitted infection (STI) is high. Mr Levitt reckons that sex workers can expect to be violently assaulted once a month. The risk of legal action is low. Prostitutes are more likely to have sex with a police
officer than to be arrested by one.

Another finding, described as "controversial," is that "prostitutes do better with pimps—they work fewer hours and are less likely to be arrested by the police or preyed on by gang members." This perhaps counterintuitive fact occurs, according to one paper, because "pimps pay above the minimum rate required by sex workers in order to attract, retain and motivate the best staff." If you forget (for the moment) that prostitution is outlawed many places, then the scenario makes sense. If you ask me, the laws of business forge the laws of morality; not the other way around. It's kinda like paving the sidewalk where the footpath develops.

A few other interesting links (courtesy of How Appealing):

Judge won't supress statements by suspect in obscenity case

I guess that sinning & winning don't go hand-in-hand.

"Rumrunners, Moonshiners and Bootleggers" is ...

2007-12-08T13:28:00.000-05:00

... the name of The History Channel program that I just watched. The promo:

Heroes who fight tax collectors and moral crusaders, or just common criminals? Like it or not, America was built by rumrunners, moonshiners, and bootleggers--even founding father John Hancock was a smuggler. In the 1920s, Prohibition turned fishermen into rumrunners and two-bit gangsters into millionaires, and moonshine haulers in their souped-up cars helped create NASCAR. Rare archival footage and photos help weave the compelling tale of our nation's love-hate relationship with illegal alcohol.

One bootlegger-turned-NASCAR-racer featured is Robert Glen Johnson, Jr. a/k/a Junior Johnson. He's credited with inventing the "bootleg turn," in which a driver escapes a pursuer by sharply putting his speeding car into a 180-degree turn on the highway, then speeding off in the opposite direction before his pursuer can turn around -- at least according to Wikipedia. Junior was convicted in 1956 of moonshining, and was pardoned in 1986 by Ronald Regan for that crime. That's just before NASCAR really, really took off. Hmmm.

The show also highlights the evolution of the Revenuer. This is interesting stuff (some good pictures). The modern-day Revenuers, I believe, play a more nuanced role in government than their predecessors. That's a good thing because it was a dangerous job -- but just one of many dangers encountered under The Noble Experiment.

I was at the library, Ociffer

2007-12-03T20:40:00.000-05:00

After pulling over a weaving car, the officer asks, "Have you been drinking?" The driver answers yes. Then the officer asks, "Where?" Well, look out if your establishment's name is the next sound heard. I just read "N.J. Sharpens Liquor-law Policing," in USA Today. It begins:

The state of New Jersey has a question for motorists stopped on suspicion of drunken driving: Where did you have your last drink?
Police must send the answers to state investigators looking for bars and restaurants where libations flow too freely. (P) New Jersey is the latest jurisdiction to adopt the tactic. This year, Texas started a smaller program, and Boulder, Colo., used last-drink data to get bars to be more careful about whom they serve. At year's end, the Washington State Patrol will publish its annual list of top 'last drink' locations.

What a clever tactic to curb drunk driving. And nightclub attendance. Establishments which push alcohol sales first, and food sales second, are going to sell proportionately more alcohol than their counterparts. That's fine. The problem, as New Jersey's police no doubt have found, is that some establishments fail to toe the mark when it comes to withholding alcohol from noticeably intoxicated persons. NJ's enforcement effort does not offend me from an establishment owner's perspective -- if the officers are working with the establishments to curb the problem. After all, it is not illegal (or even negligent) for waiters and bartenders to serve drinks to persons who then become drunk. Most restaurants have little problem plopping a bottle of red on a two-top. Or even a pitcher of margarita. Who's to say whether the customers will consume their beverages responsibly; it is the drinkers who must take responsibility for their decisions.

That said, it is negligent (in many states, like Georgia) to serve a noticeably intoxicated person who you know will be driving soon. A high-end, NJ drinking establishment might go to lengths to prevent its customers from drinking and driving, while a low-end restaurant might do the opposite, promoting irresponsible drinking. According to the USA Today article, the bar need not worry because:

The agency uses the last-drink data only to steer investigators to apparent problem spots, not as evidence to justify license revocations or fines.

Places are inspected only if they are named repeatedly as a last stop. He said the ABC has a list of 10 top targets, all of which have at least five hits in the 1,000-entry last-drink database.

When inspectors visit, they can charge establishments only with violations they actually see.

Again, this seems fair. The policy might, one day, turn into selective enforcement (SE). But the SE argument is an establishment-specific one. In the meantime, what better way to discourage irrational selection than to have a computer lay out the Top 10.

Among the ABA Journal's Blawg 100

2007-11-29T16:34:00.000-05:00

This is cool: Editors of the ABA Journal have selected Meeting the Sin Laws as one of the top 100 best websites by lawyers, for lawyers. Lawyers are being asked to vote on their favorites in each of the Blawg 100’s 12 categories. Voting ends Jan. 2, 2008. But enough.

One of my favorite legal blogs (which is much better than mine, no question) doesn't appear on the list. It's Marc Randazza's The Legal Satyricon. It never ceases to entertain and educate. Plus he says stuff that I'm too chicken to say. Think Larry David meets Giuseppe Peano meets the Judiciary.

I know that the ABA Journal's list is limited to "blawgs." If, however, the list had included traditional sites, one would have been the First Amendment Center. It's home to heavy-hitting scholars like David L. Hudson, Jr. and Charles C. Haynes. At David's Web site you'll find his books covering topics from sports to courts. Impressive and entertaining.

Anyway, I'm flattered to learn that my blawg has, at least, 2 readers. Very cool.

The "adult" in adult entertainment

2007-11-23T16:40:00.000-05:00

If you're a grammar snob, or maybe you're just terrified of sounding less-than-literate, check out The Grammarphobia Blog. Yesterday's entry: adult entertainment. There we learn that "[t]he use of 'adult’ as a euphemism for sexually explicit (as in 'adult cinema' or 'adult entertainment') dates from only 1958, according to the OED. The earliest published reference for 'adult' used to refer to the elderly (as in 'adult home') dates from 1968."

Many nouns are perceptually sullied when paired with the adjective "adult." To name a few: diaper, education, living facility, directory, game, joke, toy, novelty, and of course, entertainment. You hear "diaper" and think about cute babies. Throw the moniker adult in before it, and you're trying to change your mental channel. That's just one adult's opinion.

Which year(s) were YouPorn?

2007-11-19T19:45:00.000-05:00

An interesting article, Obscene Losses, by Claire Hoffman appears in this November's online edition of Conde Nast Portfolio. It begins:

DVD sales are in free fall. Audiences are flocking to pornographic knockoffs of YouTube, especially a secretive site called YouPorn. And the amateurs are taking over. What’s happening to the adult-entertainment industry is exactly what’s happening to its Hollywood counterpart—only worse.

From there Ms. Hoffman chronicles the adult entertainment film industry's seemingly generic (or, shall we say, mainstream) struggle with the Information Age:

As the portion of Americans with broadband connections (47 percent and growing) continues to rise, consumers are becoming increasingly addicted to the immediate gratification of Web video. But suddenly, there’s a chasm between porn consumption and porn sales. While sales of internet-based adult entertainment grew 14 percent last year, to $2.8 billion, that figure would be substantially higher if there wasn’t so much free competition, especially from the user-generated adult sites.

Much like the TV networks, movie studios, and record labels on the other side of town, porn companies are also engaged in a frantic attempt to diversify their offerings, filleting their films into smaller pieces that can be easily sold via an ever-shifting variety of digital distribution channels. From the pay-by-the-minute model on video-on-demand sites such as Adult Entertainment Broadcast Network and Hotmovies.com, to the four- to six-minute clips edited for mobile devices, the industry is looking to take the 90-minute sex videos from its old business strategy and carve them into bite-size moneymakers.

This is 'crazy talk' for a recession-proof business, right? It seems the AE industry's plight for mainstream acceptance has achieved -- or is coming closer to achieving -- mainstream access. (Is that what they carefully wished for?) From the 'brick & mortar' side of AE, and whether AE operators will admit it, limiting ports of consumer access (i.e., supply) has been the business of adult business. From the intellectual property side, it's been assumed that only producers could afford to distribute AE videos. So, if one can both access and distribute adult entertainment from their own port, what's to happen to producers and participants in adult entertainment? That's been the fear of musicians and actors since the dawn of copyright. And they're doing just fine.

The New Age might raise the quality of productions, or it might constrict the chosen distribution channels (Internet). Or it might do both.