Dem is fight'n words

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

"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 ...

... 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!

"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

"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

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

(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

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?