There Are Still Idiots In Local Government

The City Council in Gould, Arkansas wants a police state, constitution be damned. More here, which restates pertinent parts of the ordinance adopted contrary to the recommendation of the Mayor and the City Attorney:

The Mayor of the City of Guild shall not call special meetings to discuss City business without two thirds of the City Council’s vote to do so.

The Mayor nor City Council members shall attend or participate in any meetings with any organization in any location without City Council approval by two thirds [vote].

The Gould Citizens Advisory Council by passage of this ordinance is hereby banned from doing business in the City of Gould.

That the said Council is, in effect, causing confusion and discourse [sic] among the citizens of Gould and as a result is contributing to the friction not only between the Mayor and Council but also among the citizens who deserve a cooperative government.

[N]o new organizations shall be allowed to exist in the City of Gould without approval from a majority of the City Council.

READ MORE - There Are Still Idiots In Local Government

Extortion and Insider Trading

There are at least two quite different crimes both involving securing personal gain from other people's secrets. One is a subtype of extortion, where one makes money by promising not to reveal someone else's secret. The other is insider trading, where one makes money by acting on someone else's secret before it is revealed.

Secrets that are the subject of extortion threats are frequently not a crime or even a civil wrong giving rise to liability to publicly disclose. And, revealing a secret from an insider that materially affects the value of its stock to the general public before trading on it is likewise often neither a crime nor a civil wrong. Indeed, in both cases, revealing the secret is often considered a public service and is constitutionally protected. If the person who receives the secret does not act improperly in obtaining it, that person is generally free to disclose it, and even when a secret is obtained illegally, the punishment for the crime is often unrelated to the disclosure or non-disclosure of the secret and is frequently a misdemeanor.

It also isn't necessarily a crime or even civil wrong to profit from revealing someone else's secrets. While it would be a crime to extort cash not to publish information that someone had an affair, making money by selling that story to a gossip magazine or working as a private investigator using only legal means is perfectly legitimate. While trading securities on insider information is illegal, revealing negative inside information about a company in order to get a superior fired so that you can have a shot at that job when the vacancy arises. So it revealing negative insider information about a company so that stock in a competitor of a company becomes more valuable, so long as you already owned the competitor's stock it when you learned the inside information.

Nor is it a profit to keep other people's secrets, even for profit. Lawyers, doctors, mental health professionals, priests, accountants and many government employees are legally required to keep other people's secrets and are paid to do so. However, in those cases, the secrecy is promised in exchange for trust from someone who needs to know the information for reasons that often benefit the person who is the source of the secret, and the profit generally is from the secret's source or from someone who is financially indifferent to whether or not the secret is revealed.

In contrast, extortion and insider trading involve either harm or threatened harm to the source of the secret from others. In the case of both extortion and insider trading, not revealing the secret may harm the public, either because they are denied important negative reputational information about someone, or because they are inaccurately valuing a security and being exploited by someone else as a result of that inaccurate valuation.

READ MORE - Extortion and Insider Trading

Young Juvie LWOP Found Constitutional By Wisconsin Supreme Court

The Wisconsin Supreme Court had declined to find a life without possibility of parole sentence unconstitutional in the case of a fourteen year old convicted of first degree murder, a ruling relevant to Colorado because it also has young juveniles serving life without possibility of parole sentences.

Colorado Compared

The issues are not strictly parallel to those in Colorado, however.

In the Wisconsin case, the trial court had the authority to impose a lesser sentence and declined to do so based on the particular facts, circumstances and mental capacity of the defendant. The crime of conviction also involved personal involvement of the juvenile in the killing.

In Colorado, a juvenile tried as an adult and convicted of first degree murder was automatically given a life without possibility of parole sentence (the death penalty was unavailable) without regard to the facts, circumstances or mental capacity of the defendant, and the judge had no ability to either mitigate the sentence or to make a determination that the juvenile was not eligible to be tried as an adult (a decision vested solely in prosecuting attorneys under Colorado's direct file law at the time). The only role that a judge and jury had in determining the sentence was to determine if the juvenile committed the crime of first degree murder, which in Colorado, includes criminal liability as a participant in a crime that causes a death even if the juvenile was not actually personally involved in the murder itself.

Given the wide deference that judicial determination of facts relevant to sentencing is given on appeal, it was therefore far harder for the juvenile in Wisconsin to make an "as applied" challenge to the constitutionality of a life without possibility of parole sentence than it would be to do so in Colorado. Notably, in death penalty cases, non-discretionary death penalty sessions that do not allow juries to individually weight aggravating and mitigating circumstances where a conviction authorizes the death penalty are not allowed, and there is at least some case law that seems to say that just as "death is different," that "juvenile life without parole" is different.

Thus, the only part of the Wisconsin precedent that is really directly applicable to Colorado as persuasive authority is its finding that the United States Constitution does not categorically prohibit the imposition of a life without possibility of parole sentence upon a fourteen year old for first degree intentional murder.

Specifically distinguishing young juveniles was something that might have been relevant to the "unusual" part of the cruel and unusual punishment analysis because only a small portion of juveniles sentenced to life without possibility of parole sentences are young juveniles and fewer states permit these sentences to be imposed on them, either directly, or because they are not eligible to be tried as adults for that crime. But, the Wisconsin Supreme Court, a conservative leaning court by most accounts after the more conservative candidate narrowly won its most recent highly contested judicial elections, chose not to find this sufficient grounds to find that Wisconsin's statute was categorically unconstitutional.

The Larger 8th Amendment Legal Context

In  general, states have very wide discretion to set sentences for criminal offenses committed by adults and juvenile offenders.

This decision comes against a fairly well tested backdrop of precedents on the constitutional boundaries on criminal punishment under the 8th Amendment protection against cruel and unusual punishment and some other constitutional provisions with similar effects.

The federal constitutional issues, although not any other issues raised in the Wisconsin case, could be appealed to the U.S. Supreme Court, which has held unconstitutional a Florida statute that imposed a life without parole sentence in cases that do not involve murder or "crimes against the state" (e.g. treason and espionage) as a violation of the Eighth Amendment protection against cruel and unusual punishment as incorporated to apply against the states under the Fourteenth Amendment to the United States Constitution.

The U.S. Supreme Court has prohibited the use of the death penalty for cases that do not involve murder or "crimes against the state" or for juveniles under the age of eighteen or for the mentally retarded.  For example, it held that the death penalty was not permitted for the rape of a child.  It is not entirely clear to me if the death penalty is constitutional in cases where proof of a murder is not required by is strongly presumed under the circumstances (e.g. a kidnapping where the victim has not been released alive but not been established to be dead), something that is permitted on the statute books in some states but has never been tested under currently applicable constitutional law to my knowledge.  No one is currently on death row for such an offense in the United States, but the justification for such laws is similar to the justification for the death penalty in cases involving "crimes against the state" like espionage.

The U.S. Supreme Court has also held, however, that felony-murder convictions as we as murder convictions based upon personally killing someone or soliciting a murder are eligible for the death penalty (although the role of the person involved is something that a sentencing jury may consider when it decides whether or not to impose a death penalty for a first degree murder), and the U.S. Supreme Court has ceased to make a distinction between young juveniles and older juveniles in eligibility for the death penalty, something that it had done under prior law. The certiorari decisions the U.S. Supreme Court made in its juvenile life without possibility of parole case from Florida had seemed to indicate that at least some justices found a distinction between young juvenile and older juveniles to be meaningful, but it ultimately did not reach that question in that round of cases.

Corporal punishment other than the death penalty, and methods of imposing the death penalty, are at least constitutionally suspect in some cases, particularly if it foreseeably results in, a gratuitous and unnecessary infliction of pain. Similarly, rape as a form of legally authorized punishment by the state is probably unconstitutional. There is also a separate part of the law of cruel and unusual punishment that pertains to the conditions of a sentence of incarceration rather than to the length of the sentence. The most actively litigated controversy in this area is the extent to which long term solitary confinement imposed in the discretion of a prison warden is constitutional. To date, no federal constitutional precedents that I am aware of place clear boundaries on this practice, but it is attracting increasing legislative and judicial attention.

I am not familiar with constitutional precedents on a minimum age at which adult criminal punishments are constitutional.  Most states observe some lower bound and exercise discretion to refrain from doing so in a large share of cases where it might have the constitutional authority to do so.  But, there is probably some point at which, for example, a life without possibility of parole sentence imposed for a murder committed by a very young juvenile, perhaps a six year old, would be held to be cruel and unusual.

Furthermore, the constitutionality of a non-discretionary life without parole sentence for an adult convicted of first degree murder, whatever its character, has been upheld in hundreds, if not thousands, of cases. Similarly, no serious challenges have had success challenging life sentences where there is a possibility of parole, or long sentences for a term of years, for either juveniles or adults for anything but the most trivial offenses when committed by non-recidivist offenders. I am not aware of any case law that addresses the question of whether a juvenile's criminal record is relevant to the 8th Amendment constitutionality of a very long sentence for a fairly minor crime committed as an adult, in part, because few states do this in practice. 

Cases under California's three strikes law have established that a life without possibility of parole sentence, even for petty theft, when committed by an adult who has been convicted of two prior serious (but non-violent) adult felonies, is not an unconstitutional violation of the 8th Amendment's protection against cruel and unusual punishment.  Very long sentences, although not life sentences, for minor first time drug possession convictions, have also been upheld as constitutional.  The only practical limitations on criminal sanctions for minor offenses are procedural - a right to a jury trial (in cases where a sentence could be to more than six months of incarceration) and of indigent parties to an attorney (if incarceration can be imposed as part of the sentence) must be available if sentences of a certain severity are a possibility upon a conviction.  As a general rule, an individual can be arrested and detained briefly consistent with the constitution, even for petty offenses for which incarceration is not available as a sentence upon conviction.

I know of no cases that have found that a sentence to prison for a term of years for one or more offenses that is so long that it amounts to a life without possibility of parole sentence is unconstitutional, although it makes logical sentence that this would be the case in some very long juvenile sentences for offenses other than murder or "crimes against the state" (e.g. a sentence of 120 years in prison without possibility of parole until 90 years have elapsed for a rape committed by a seventeen year old defendant).

A few cases have found unconstitutional criminal statutes that impose a longer sentence than the sentence imposed for an unequivocally lesser crime or an identical crime committed by someone with another constitutionally irrelevant difference in status under the equal protection clause of the 14th Amendment, rather than under any sort of proportionality principal of the 8th Amendment. But, those cases has largely involved idiosyncratic fact patterns.  Somewhat meaningful limitations on the size of punitive damage awards in civil cases relative to the amount of compensatory damages awarded have also been imposed as a matter of constitutional law in some circumstances.

Finally, there is a great deal of jurisprudence under the federal criminal code and U.S. Sentencing Guidelines over what sentences within the statutory maximum sentence authorized by a jury are "reasonable" or in contrast, constitute an abuse of discretion by a judge and does not adequately justify a departure from the sentencing guidelines.  These cases have invalidated sentencing decisions that are well within the boundaries of statutory maximum penalties for offenses that have been held to be constitutional, but also sometimes invalidate sentences for being too lenient.  But, these cases are questions of statutory interpretation rather than constitutional limitations on sentencing.

One of the most controversial parts of the U.S. Sentencing Guidelines jurisprudence is the part that has upheld the constitutionality of judicial consideration of acquitted conduct or uncharged conduct in imposing a sentence less than or equal to the statutorily authorized sentence for the crimes of conviction.  So, for example, someone with no prior criminal record convicted of a low level felony larceny count that might ordinarily garner a short sentence of incarceration (perhaps a year in prison) under the U.S. Sentencing Guidelines can constitutionally be given the maximum sentence available for someone with a long criminal record and large dollar value theft under that offense (perhaps twenty years in prison), if the judge believed that the individual also murdered someone, even if the jury acquitted the defendant of that charge.

In principle, the largely unrelated line of cases imposing limits on conduct that can be subject to criminal sanctions at all also imposes constitutional limitations on criminal sentencing, but these limitations are mostly unrelated to the line of cases related to cruel and unusual punishment.  Notably, the U.S. Supreme Court has declined, for example, to prohibit criminal defamation statutes in circumstances where civil liability for defamation would be permitted.

Clemency

Of course, Governors of states that impose juvenile life without possibility of parole sentences, and the President in the case of federal juvenile life without possibility of parole sentences, can commute a life without parole sentence to a lesser sentence or pardon the individual and have them released from incarceration. These decisions are not bound by precedent in any way.

Colorado's Governor Ritter convened a new panel to advise him on juvenile clemency and grant a few instances of clemency based upon its recommendations, but including two juvenile life without possibility of parole sentences in Colorado. The weight of the decision on the other cases currently rests on Governor Hickenlooper's shoulders for the several dozen juveniles serving these sentences in Colorado (no new juvenile life without parole sentences can be imposed in the state; newly sentenced juveniles convicted of first degree murder are eligible for parole after forty years).

READ MORE - Young Juvie LWOP Found Constitutional By Wisconsin Supreme Court

Planet GOP

What motivates people like 11 Colorado State Senators (almost the entire GOP caucus in the State Senate): Kent Lambert, Bill Cadman, Scott Renfroe, Mark Scheffel, Keith and Steve King, Nancy Spence, Kevin Grantham, Ted Harvey, Mike Kopp, and Kevin Lundberg, to sponsor "Birther" legislation? (In fairness, the legislation proposed, which is prospective, does not itself on its face question the legitimacy of President Obama's current tenure in office.)

What makes Republicans like Scott Gessler, our Secretary of State, convinced that there are massive numbers of illegal immigrants voting our elections, in the absence of evidence that this is happening (or does he really believe it)?

What drives Republicans like Retired General William Boykin to forward an agenda arguing that Islam is Satanic and shouldn't be included in the freedom of religion?

Why do so many Republicans support succession? Why do so many think contrary to the historical fact, that the Founders were evangelical Christians trying to create a Christian nation?

Why do so many Republicans think it is O.K. to pass laws that are clearly unconstitutional either because they violate the Supremacy clause and assert a state right to disregard binding federal law, or because they violate well established precedents like Roe v. Wade?

Why do so many Republicans claim that President Obama is a Muslim? If one wanted to sully the President's religious credentials, surely the claim that he was a closet atheist, given his adult conversion to Christianity after a secular youth would have been more plausible and atheists are almost as despised by Americans as Muslims in public opinion polls.

How did the Republican party manage to secure a lock on the crazy absurd positions and ideas so fervantly opposed to our constitutional traditions, while claiming a banner of greater patriotism?

Really, factually incredible claims simply don't have the same political currency in the Democratic party that some factually incredible claims do in Republican circles. Really, the Democratic party is far more comfortable with the framework established by mainstream constitutional law than Republicans. Even when Democrats disagree with authoritative interpretations of the constitution in areas such as corporate free speech rights in political debates, they generally don't argue that their view is the absolute law which other parts of the political system are free to ignore. Republicans, in contrast, seem to delight in proclaiming a fantasy constitution to be the real one.

Democrats live with a world view that is bounded by a sense of legal and factual reality; an important subset of Republicans seem entirely divorced from both.

It is hard to hope for politics based on a reasoned search for the truth when a significant share seem to be delusional in many cases. How does one build common political ground with people who don't seem to be playing by the same rules?

Not all Republicans, especially among the rank and file in professional and managerial ranks in America fit this stereotype. But, a surprisingly large number do seem to be a fit for it.

What is going on? Is this really a stable ideology, or a case where a small, tightly disciplined cadre of of extremists have taken hold? For how many are these beliefs sincere and heartfelt, and for how many is this calculated hypocricy and stagemanship?

I know some of the outlines of where some of these ideas have roots in intellectual history, their political roots, and the origins of the political identity of people who now identify as the conservative Republican right wing. But, that doesn't make it seem any less bizzare when I encounter it. How did ideas from Glen Beck recycled from a John Bircher political philosopher gain such much currency with so many people? Why was the intellectual environment so fertile for these ideas? How did right wing media and mainstream media (there scarcely is any truly left wing media) become so disconnected from each other? Why has the outcome of the Civil War been so hard for so many to accept a century and a half later?

Europeans aren't rushing to talk radio stations proclaiming that the monarchies deposed in the 1870s are still the legitimate governments of their countries today and winning majority support in polls of members of major political parties. Why are an important subset of Americans engaged in the same exercise?

Why are Tea Party members so angry at government's existence and operations? Does it make any sense for what is at its roots, as the name suggests, an anti-tax party, to be thriving at a point when taxes are already at sixty year lows?

Why is the public so succeptible to mass political hysteria? Is there something in the political process that is encouraging this kind of sentiment? Or, is this kind of sentiment inextricably intertwined with democracy itself? What does it take to make the masses see crazy talk for what it is?

READ MORE - Planet GOP

FTC Regulations On Blogging Clarified

On December 1, 2009, Fair Trade Commission regulations concerning product endorsements in blogs took effect. A clarification of those regulations was issued in June 2010 by the FTC.

The regulations most notably say:

"I’ve read that bloggers who don’t comply with the Guides can be fined $11,000? Is that true?

No. The press reports that said that were wrong. There is no fine for not complying with an FTC guide."

I find that statement itself to be a bit deceptive, because there is certainly some penalty for someone for engaging in deceptive advertising, failure to comply with the guideline when it applies put someone at great risk of being deemed to have engaged in deceptive advertising, and it is not at all obvious when you are considered to be the "advertiser" who can be fined for engaging in deceptive advertising, and when you are not.

READ MORE - FTC Regulations On Blogging Clarified

Righthaven Loses Fair Use Suit At Trial Court Level

Steve Green reports in the Las Vegas Sun that US District Judge James Mahan has ruled that the Center for Intercultural Organizing, an Oregon nonprofit, did not infringe on copyrights when it posted an entire Las Vegas Review-Journal story on its website without authorization and that there was no harm to the market for the story.

Mahan stressed that his ruling hinged largely on the CIO's nonprofit status and said the copyright lawsuit would be dismissed because the nonprofit used it in an educational way, didn't try to use the story to raise money, and because the story in question was primarily factual as opposed to being creative. 'The market (served by the CIO) is not the R-J's market,' says Mahan.

This is the second fair use defeat for Righthaven and is significant since it involved an entire story post rather than a partial story post. Green says that Righthaven's strategy of suing 250 web site and demanding $150,000 in damages plus forfeiture of the web site's domain name has clearly backfired and now Righthaven, the self-appointed protector of the newspaper industry, has left the newspaper industry with less copyright protection than if they never filed their lawsuits at all.

Slashdot summarizes the story here. (Hat Tip: Colorado Pols).

Righthaven is also making aggressive efforts using the same business model with regard to quotations from Denver Post articles.

This is a positive development for a blogger being sued for the non-commercial use of a single Denver Post photo, where attorneys' pressing copyright violation suits argue that use of a complete picture, even if it is only one in the context of a periodical full of pictures, can never constitute fair use. Text is much more easily excerpted.

Of course, since this ruling is simply a trial court ruling, Righthaven can, and surely will, appeal to the United States Court of Appeals for the 9th Circuit. At that point, the 9th Circuit will evaluate the case under the applicable law given the facts found by the trial court.

A prior motion to dismiss defeat for Righthaven is discussed here.

READ MORE - Righthaven Loses Fair Use Suit At Trial Court Level

Questioning Patriotism For Fun and Profit

Liberals already control many aspects of American life, and they have undue influence on the Internet. . . . people who use e-mail or other services from companies such as Google, AOL, Yahoo, Microsoft and Apple are unwittingly helping the liberals. These companies are, and will continue to be, huge supporters of those who are damaging our country.

The influence of these companies also extends internationally, where the liberal grip on the Internet has been demonstrated anew in the turmoil in Egypt. There, according to media reports, it is playing a key role in stirring up the mass protests that are clogging the streets of Cairo and other Egyptian cities such as Alexandria and fueling demands for the immediate ouster of President Hosni Mubarak . . . the movement is being manipulated by those who favor a hard-line, Iranian-style, Islamic theocracy. . . . Google executive Wael Ghonim, just released from 12 days of Egyptian detention, confirmed that he was responsible for the Facebook page that ignited "the revolution of the youth of the Internet."

This is the same Google where CEO Eric Schmidt is a personal friend of President Barack Obama. . .

Is that where you want your money to go? I didn't think so, so I started the very first conservative e-mail service provider. . . . Your purchase will help me promote true Reagan values to win back our country in 2012.

Liberals have gone too far to influence the Internet and the political process.

- Michael Reagan, son of President Ronald Reagan, professional pundit, and newspaper columnist (Source: Aurora Sentinel, February 9, 2011, page 9.)

Who knew that it was unpatriotic to financially support Internet companies by having a free gmail, hotmail, or yahoo e-mail account?

Who knew that there was a Democratic and a Republican way to provide e-mail accounts?

Who knew that preventing traffic jams was more important then ending dictatorships?

Who knew that it was unpatriotic for a private American corporation to support democracy in a totalitarian state?

Who knew that you could get paid for writing a newspaper column that is an infomerical for your own business?

Who knew that liberals control American life and the Internet too?

What Did Reagan Say?

What are "true Reagan values" anyway? What did Ronald Reagan had to say on the subject of religious people taking the streets to secure democracy with the help of shared information from Internet that his son is so wary of?

Information is the oxygen of the modern age. It seeps through the walls topped by barbed wire, it wafts across the electrified borders.

Without God, democracy will not and cannot long endure.

Freedom prospers when religion is vibrant and the rule of law under God is acknowledged.

Democracy is worth dying for, because it's the most deeply honorable form of government ever devised by man.

A people free to choose will always choose peace.

Above all, we must realize that no arsenal, or no weapon in the arsenals of the world, is so formidable as the will and moral courage of free men and women. It is a weapon our adversaries in today's world do not have.

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.

Then again, some of Reagan's messages on the issue can be interpreted in more than one way:

The greatest security for Israel is to create new Egypts.

READ MORE - Questioning Patriotism For Fun and Profit

Goldman's Regulating Reputational Information

Internet law blogger extraordinaire Eric Goldman's book chapter on regulating reputational information is now available at SSRN. Per the abstract:

This essay considers the role of reputational information in our marketplace. It explains how well-functioning marketplaces depend on the vibrant flow of accurate reputational information, and how misdirected regulation of reputational information could harm marketplace mechanisms. It then explores some challenges created by the existing regulation of reputational information and identifies some regulatory options for the future.

I particularly like his operational definition of "reputational information," as:

[I]nformation about an actor’s past performance that helps
predict the actor’s future ability to perform or to satisfy the
decision-maker’s preferences.

and his notion of “reputation systems” that aggregate and disseminate reputational information to consumers of that information, as a discrete concept.

He notes that immunity from liability and the reputation of reputation systems themselves may be more effective than government regulation of reputational information, but identifies emerging concerns such as "ex ante consumer gag orders" in contracts with vendors and service providers, which may deserve scrutiny under void as against public policy doctrines or may require statutory regulation.

READ MORE - Goldman's Regulating Reputational Information

Greeley-Evans School Board Member A Menace

We knew Brett Reese was a bad example when the Greeley-Evans School District 6 Board of Education member (elected in November 2009 with a fourth place finish out of five candidates with 9,648 votes to a four year term) used his low power radio station to run an anti-Martin Luther King, Jr. letter with heavy conspiracy theory overtones.

His decision to bring a concealed weapon to school board meetings heightened our concern and was circumvented by the rest of the board by scheduling school board meetings in school and having a policeman on hand to address his fears for his personal safety.

But, he crossed a line when he told a fellow radio station owner that he would get in a "shoot out" with him in a voice mail (a recording of which is available at the link) which was interpreted as a threat, and a Judge agreed with a the fellow radio station owner that this interpretation of Reese's statement was reasonable under the totality of the circumstances (including Reese's recent oddball behavior and the assassination attempt on a Democratic Congresswoman in Tuscon), despite Reese's claim that the statement wasn't intended as a threat.

As a result the temporary restraining order obtained against Reese was made permanent by the judge in his case. He has been ordered to forever "stay at least 100 yards away from his business competitor KFKA 1310 AM radio general manager Justin Sasso's home, business and body, and permanently revokes a concealed weapon permit that Reese has had for more than two years.

Restraining orders are civil, rather than criminal (although a failure to comply with one is both a civil and criminal wrong), so the burden of proof to have one imposed is lower than in a criminal case and there is no right to a jury trial on one (as injunctions fall within the "equitable" part of a court's jurisdiction). While it is called a "permanent restraining order," it can be modified or lifted with court permission in a motion brought as often as once every four years. "Threatened bodily harm" is a ground for issuance of a civil protection order (the proper legal name for one in Colorado). A temporary order must allege an "imminent danger" arising from the threat, but a permanent one issued after an evidentiary adversary hearing on the matter need not show that the danger is imminent. Instead, it is merely necessary to show that "the defendant has committed acts constituting grounds for issuance of a civil protection order and that unless restrained will continue to commit such acts."

The judge found that Reese did make a threat and that he would continue to make threats if not restrained.

One could legitimately argue as a lawyer to interpret Reese's statements as a threat, or a mere metaphor, but I can't say that the judge was clearly wrong in finding that this was a threat. Reese's multiple recent controversies show him to be a volatile individual with bad judgment, and nobody forced him to call up his competition and say what he did at a time when his willingness to use a gun was all over the papers.

If there is an appeal of the ruling, the question before the appellate court will not be whether or not they agree with the decision made by a trial court judge considering the question "de novo," but whether his interpretation of the facts and law was so off base that it must be reversed on appeal (there are several standards of review that apply in this kind of situation with similar meanings, such a determination that there was an "abuse of discretion," a determination that "no reasonable finder of fact," could reach the same conclusion, or a holding that a finding of fact was "clearly erroneous", and I am not going to exhaustively research which one is correct for this post). Since the decision was made by a county court judge, the first appeal from the decision would be to a single district court judge in Weld County, and the next appeal would be to the Colorado Supreme Court.

None of this, of course, forces Brett Reece to resign from his office as a school board member, although the example he is setting for the students in the district is growing increasingly bad. He can be removed upon resignation, loss of residency, conviction of a felony, a court finding that he is "insane or otherwise mentally incompetent" to "such a degree that the person is incapable of serving as a school director," death, or unexcused failure to attend three or more consecutive school board meetings. But, all of this makes ample fodder for a recall effort, should strongly encourage Reece to resign his post, and certainly hurts his shot at getting re-elected. A recall petition requires signatures of 40% of the voters who voted in the last school board election, which is a little hard to determine directly from the outcome of the election, since voters were allowed to vote for up to four candidates, but some, no doubt, did not vote for a full slate of four candidates, but would require approximately 4,900 signatures in the sixty days after the approval of the petition form.

He claims to have received death threats and to have lost advertisers at his radio station as a result of the controversy.

If there is a recall, at least the clerk and recorder will know what to do, having just conducted a school board recall election this past December.

Fortunately, since school boards have multiple members, all of whom seem to be united against him on the issues he has identified as key to him, in part because he is apparently a difficult when it comes to carrying out his board duties in addition to being known for close to the line rhetoric (“That's how you make a successful business. You don't reinvent the wheel. You go steal it.”), and in part because he is world's apart in policy attitudes from the other board members (he strongly opposed the most recently property tax increase for the district and home schools his own three children); so he probably isn't capable of doing much harm even if he serves out his full term of office.

He far right conservatism, by the way, isn't limited to guns and Martin Luther King, Jr. Consider this question he poses at a GLBT forum:

How is it that sexual deviance, such as homosexuality and bisexuality, are different and OK when incest among consenting adults, polygamy and group marriage is considered in our society not OK and a means of sexual deviancy?

Suffice it to say that his comments on this issue, and on MLK, Jr. would not be helpful to the district if it faced an employment discrimination lawsuit.

READ MORE - Greeley-Evans School Board Member A Menace

The Problem Of Apathetic Copyright Owners

One of the big problems in the current regime of copyright, and more generally, intellectual property, is that the economic value of the right to be licensed is often modest relative to the transaction costs that go into locating an order and reaching a licensing agreement. This is a particular problem now, because the information technology revolution, in the patent area, and the Internet, in the content area, has favored innovations and new works that involve very small contributions from very large numbers of protected intellectual properties. The fair use doctrine addresses some of this problematic territory, but is not a comprehensive solution to the "micro-licensing" problem, nor is it a solution to the orphan copyright problem in which the copyright owner cannot be located to conduct negotiations with at an economically practicable price, or the apathetic intellectual property owner problem, in which the copyright owner is simply too distracted or busy to focus on a licensing possibility, even if it would make economic sense.

All of these problems flow from the default assumption in property law that non-responsiveness regarding a use of property means that it is a crime to use that property without express permission. But, since intellectual property can have more than one user at a single time, and is for practical purposes less amenable to locating an owner (e.g. because unlike real property it is often not "possessed" in a tangible sense and is not subject to annual taxation that keeps contact information current), this may not be an appropriate default assumption for intellectual property.

To the extent that intellectual property owners do not have ulterior non-economic motives for their behavior (and further, to the extent that we are not interested in providing strong legal protections to such ulterior motives out of free speech and anti-trust law concerns), it is reasonable to suppose that transaction costs and owner identification difficulties are important barriers that tempt those wishing to use intellectual property to neglect to obtain licensing rights at a market rate for the intellectual property, and that transaction costs are a key reason that intellectual property owners don't bother to make it easy to obtain licensing.

In circumstances where these transaction costs are avoided with a centralized and regularized system, such as the one used by newspapers within the Associated Press, or the one used by radio stations licensed by the major recording studios in omnibus agreements, the volume of individually low value use of intellectual property that would otherwise belong to someone else is very high and economically significant in the aggregate, and no one involved finds the absence of individualized consent to licensed uses from the authors of the works troubling.

One way to prevent copyright from posing the barrier it does to productive intelletual property activity in cases of micro-licenses, orphan works, and apathetic copyright owners would be to change the default rule from one requiring affirmative express consent, to one that would allow a license to be entered into according to some standardized default rate arrangement, similar to the one that exists for artists who wish to do a cover version of a song today without the owners permission, with royalties deposited into an account with the registrar of copyrights or patent office, as the case might be, until claimed by the owner, upon deliver of a notice of intent to use a work that does not receive a response within some reasonable time period, perhaps a month.

Apathetic owners who received a notice and ignored it, would have funds deposited at a standard rate into an account for their benefit that they could claim at any time. Owners who felt that the standard deal with inadequate could respond to the notice and expressly deny permission to use the work within the time period, or for any future new use of the work for which a standard rate contract had been established due to non-response the first time around.

This would be a middle ground between a pure property by analogy regime, and one that reconceptualized intellectual property as something actually more akin to a right to bring suit for unjust enrichment.

READ MORE - The Problem Of Apathetic Copyright Owners