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Close the App Loophole

There are some things worthy of being consumed. Fortunately, the Virginia legislature is still turning its attention to distracted driving. Because drivers do more than text.

The Virginia Lawyers Weekly blog just reminded me that in Virginia, it is still legal for drivers to view apps on their phones like Facebook or Twitter, while they are driving. But the Virginia legislature is paying attention.

Del. Christopher Collins, R-Winchester has introduced House Bill 181 to broaden the existing distracted driving law. It would make it a violation of the law for any use of a cell phone while driving. It would also remove a defense. Currently if a police officer wants to cite you for texting and driving, you could presumably just say that “No, I was just checking my Facebook“.

As Delegate Collins explained,  “This law goes after those individuals who are staring at their phone to the point that it diverts their attention from driving along the road“.

As noted in the blog, Janet Brooking, executive director of Drive Smart Virginia, has indicated that her organization supports the bill.  She explains, “If the bill doesn’t pass, people are going to continue to die,” She referenced that there had been an 11 percent increase in traffic fatalities in the past year in Virginia.

This bill is really about saving lives and changing behavior,” she said. “This is an issue that has to be addressed.

On its face you are probably thinking, “This sounds like a good idea”. Here’s the opposing side according to the blog,

Del. Jeffrey Bourne, D-Richmond, spoke in opposition to the bill on the House floor. He said that while he agreed with the bill in theory, he felt it was written ambiguously and could be used as a precedent for bad acting officers to pull over and harass people, particularly people of color.

My heart goes out to every family who has had to deal with a fatality because of a distracted driving accident,” Bourne said. “But equally important and valuable are those drivers who after a pre-textual stop had a fatal encounter with a bad actor who was charged and responsible for keeping our community safe.

He has introduced a different bill to stop distracting driving, that would make it so that police could only pull people with phones…if they are driving recklessly. I guess his reasoning is a “cause and effect bill“.

So there are two sides of the issue. I am glad that no one is trying to introduce No driving with a coffee cup in hand! Just sayin’!

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And for pic o’ day, all I can say is Hahahahahahahaha!

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Advice From Past and Present

I expect to get an immediate reaction from you! From 1950. “Tips to Look after your husband“.

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I knew that you would have an emotional reaction! Remember, this is what some were thinking in 1950. I don’t expect that these wives really felt like they were “living”.

It’s all about advice. I say that because I keep getting emails that give me all kinds of advice on shopping, “lawyering” and financial ideas. Plus, there are emails trying to get me all riled up politically. And I haven’t even mentioned Facebook posts.

I guess it all comes down to knowing who you should listen to. Like maybe Lincoln should have gotten this advice from an elementary school kid:

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Now that would have been good advice!

Or maybe even good cooking advice!

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This is on my mind, because it is about this time of year, that we decide on what seminars lawyers from the firm should attend for the year. There are all kinds of ways “to do it better”. I just think that you have to stop and really think whether these “experts” have the right way of doing things.

Think about it. In life, who should we listen to?  Don’t you think that sometimes common sense just rules the day. You know what is the right. It’s that inner voice. That’s the advice that we should listen and apply!  And just as the ending of Robert Frost’s poem “The Road Not Taken” ends with…and that has made all the difference!

And for pic o’ day, this picture just strikes a familiar chord with me:

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Justice in the Stadium Basement

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Plus, laughter is good!

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Ok… I know! That is a mean way to start the blog… if you happen to be a Cowboys fan. But it really does tie in to Our Blog today. I promise.

And by the way, the other day I was watching highlights on the NFL Network and heard the voice of Pat Summerall. It made me feel nostalgic. Kinda made me want to go to a store and “Tell them Pat Summerall sent me”.

I am sure there are some who have no idea who Pat Summerall was. Or why I would be wanting to go to a store and say “Tell them Pat Summerall sent me”. I might as well be writing about  meeting family at the airport gate or listening to an eight track tape. And yes, there was something called yellow page advertising. That went out right around the time CDs and cassette tapes were packed in storage. But I digress.

This is really about the Philadelphia Eagles and their old football stadium… and a courthouse in the basement.

Of course, there used to be funny pictures about Eagles fans that no longer apply. The glory of winning.

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But they are still funny. So back to our story about justice at the stadium.

We travel to Philadelphia, when they played at Vet stadium. As “legend goes”, Eagles fans were already known for getting out of hand. These were the same fans who had booed Santa Claus and bombarded him with snowballs in 1968. (Here) Of course, they are also the same fans who obviously thought that being excited about winning the Super Bowl meant that it was ok to overturn cars and set fires in the middle of the street. I have never felt like celebrating like that, but maybe it’s just me.

On a Monday Night Football game against the 49ers in 1998, there were approximately 60 fistfights in the stands. Management and ownership had tried to stop the craziness by stopping beer sales in the 4th quarter and providing more security. Nothing was working. It was time to try something new.

Ownership decided to install a courtroom and jail on the premises, in the basement of the stadium. The fans, even by Philadelphia standards, were getting out of hand. On the opening day of this new “justice in the basement”, 20 fans were “processed”.

The way it worked, fans who were breaking the law at the game were taken to Eagles Court to see a judge immediately. They were usually caught in the act of some kind of drunkenness fighting, and basically forced to a guilty plea that led to a fine, somewhere between $150-$300 and/or community service.

More serious crimes would lead to serious criminal charges and court dates. Because it was considered a real court with real justice and law, those who wished to plead not guilty or request a lawyer would also be assigned a court date at the courthouse.

As the story goes, the very first person brought before the judge because of drunkenness in public, went through the process of a hearing/trial. After the judge heard the evidence of the conduct, he asked the man if he had anything to say before he would render his finding and possible sentencing.

The man was clearly drunk and reportedly rocking back and forth. There was even a question about whether he would remember this hearing the next day.

But, he obviously heard the judge. He paused momentarily before answering. The judge asked again, “Sir? Is there anything you would like me to consider or something you want to say?”. The man leaned forward and all of a sudden blurted out, “Troy Aikman is a fa**ot“”. Of course, he said it without stars!

And that started “justice” at the stadium. No word on whether a judge, who was probably an Eagles fan, was influenced by the verbal attack on the Cowboys quarterback.

And finally, for pic o’ day, I am staying with the football theme. This was posted Zach Schwartz. He noticed that a Red Robin cake somehow looks like the coach, Rob Ryan:

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Punishment Punishment??

I could write about Ed… with cherries on his head. What? There are just some things that are difficult to explain. For instance, in 2016, Americans spent a reported $5.3 million dollars buying U.S. flags… that were made in China. Things that make you go hmmmm!

This blog is about punishment legislation in Virginia. Legislator thinking is the confusing part. And I will present some thoughts, but I cannot promise that I can explain it. Of course, you have to remember what they say about the value of free… and that includes free blogging.

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So here we go. FIGHT THROUGH IT WITH ME!

The headline says, “SB 895 Punitive damages; raises cap from $350,000 to $500,000“. In Virginia, this legislative session had a Senate bill that was introduced to increase punitive damages from $350K to $600K. Then, it was amended to an increase to $500K instead.

It “sailed” through the Virginia Senate committee by a vote 24-15. The question is, “why would someone vote yes or no for an increase in punitive damages?”. Here’s how the voting of the senators was registered.

YEAS–Barker, Chafin, Chase, Dance, Deeds, Ebbin, Edwards, Favola, Lewis, Locke, Lucas, Marsden, Mason, McClellan, McPike, Obenshain, Petersen, Saslaw, Spruill, Stanley, Stuart, Surovell, Vogel, Wexton–24.

NAYS–Black, Carrico, Cosgrove, DeSteph, Dunnavant, Hanger, McDougle, Newman, Norment, Peake, Reeves, Ruff, Sturtevant, Suetterlein, Wagner–15

It it now headed to the Virginia House Courts of Justice Committee vote, before heading to the full floor. But again, why would someone be against punishment damages.

Just a couple of thoughts. The punitive damage amount has not been increased in Virginia in 30 years. Insurance is required to cover the punitive damage verdict, if such is awarded by a jury and there is enough insurance to cover it. Also, there is a very high legal standard to meet, to get punitive damages to a jury. Otherwise, a judge will strike it from the case.

So again… what makes a legislator vote against or for it.

I think that those against the punitive damage increase, view it as an issue that is related to being pro-business. If you vote against it you must be helping Virginia in bringing more new businesses to the Commonwealth. Also, you are keeping insurance rates down, because you are helping to keep verdicts down. Verdicts that insurance would otherwise have to pay. Does that sound like good logic?

I think you probably know where I am leaning, but I will say that I am all for bringing new businesses to Virginia; and I do want insurance rates to be lower. In the coming days, I will have some follow-up on the insurance rate issue. Believe me! I want lower rates!

Now here is what we know. When you are starting a business in Virginia or you are thinking about coming to Virginia to do business, you are not asking anyone, “Do you know how much I will have to pay in punitive damages?”. Why? Because no one believes that they will do such acts that are so egregious, that they will be responsible for punishment damages. No one asks “I wonder what will happen when I drive drunk the next 13 nights“.

Punishment damages also serve to protect Virginia citizens. We do not want companies coming to Virginia and intentionally hurting its citizens with their conduct or their products. Remember, it’s not about doing something that causes injury with a mistake or accident… it’s about causing harms with reckless disregard. The legal term includes “willful and wanton” which basically means a conscious or intentional act. That’s why a legislator should be protecting Virginia citizens.

I look at those legislators who have voted “no” and I think, “why don’t they care about their constituents?“. Do they also want to protect drunk drivers?

Now that probably seems a bit harsh. But, I am guessing they do not even realize why they are voting against an increase, for something that has been in effect for 30 years. These same legislators are probably not telling Dominion Power to roll back rates to 1980.

A business who does such bad intentional acts should not be able to get away with it, by simply being responsible for $350K. That is nothing to many businesses. Otherwise, and they can just factor bad behavior into their budget.

As to the insurance increase; if a policy is on an individual, they only have to cover the amount of coverage that is written. In Virginia, a minimum policy is $25K. If it is a business, then typically there are assets to cover a verdict. In the instance when there is coverage… they have already charged significant premiums to cover these insurance amounts. So there should be no increase.

Have I convinced you either way? Well, let’s just all hope that we do not deal with people or businesses that commit such acts that are even worthy of consideration for a punishment damage verdict. In the meantime, it will be interesting to see what the House thinks about this issue and whether the increase will ultimately become law.

On a different note for pic o’ day… this can be explained!

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I Love Being Random!

If you skim through the news, you realize that it is just random and usually not good news. Sometimes the stories are just good stories. Sometimes you just see things and say “that’s right” because it is.

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For this blog, I just thought that I would randomly throw some news at you. After last night’s State of the Union address… are you ready?

Speaking of State of the Union, were you humored with the misspellings of the invitations? (NY Times) “State of the Uniom.” That is classic! I remember when the Washington Nationals made a mistake on their shirts that said Washington Natinals. I still call them the Natinals!

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It just makes me laugh.

Here’s some news from the department of irony. From PilotOnline comes a story of a doughnut robber, who had previously won a police donut-eating contest. If he had only stolen the donuts!

And finally, I find this story to be a head-shaker. The Professor and the Madman! Have you ever thought about how the Oxford Dictionary was written? Probably not. But here is some background that might make you look at it differently.

Professor James Murray was the credited editor of the Oxford English Dictionary  Dr. William Chester Minor, an American surgeon who had served in the Civil War, was considered one of the most prolific contributors to the dictionary.

He sent thousands of unsolicited hand-written quotations from his home. But, they could not get him to come to the location where the Dictionary was being put together.

Finally, Professor Murray decided to meet him. It was then that Murray would finally learn the truth about Minor. Not only was Minor an amazing wordsmith… he was also an insane murderer who was locked up in Broadmoor.

At that time, Broadmoor was considered as England’s harshest asylum for criminals and dangerous lunatics.  As it was later described… The Professor and the Madman is the unforgettable story of criminal madness and genius that contributed to one of the greatest literary achievements. The Oxford English Dictionary. And as Paul Harvey would say… Now you know the rest of the story!

And finally for our pic o’ day… this one is a thought-provoker!

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Politics and the Puppies?

Where should we start? Because this blog is a little bit about dogs at the racetrack. And there may even be a little gambling mentioned. So where should we start? How about this as a starter? (Or maybe I just wanted to post this just because it’s Potamus)

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This really is a blog about politics and the puppies. Hence the title! Although, I just saw a highlight of Tom Brady with his hair strangely darkened, and I wish I could write about that. Just sayin’!

I will never forget the time that I went to watch the greyhounds race in Florida. I did not know what to expect. I just kept hearing that I needed to “go watch the puppies run”.

When I arrived, I noticed many retired grisly old men with their racing sheets. They had their cigars and drinks and were planning their bets.

I asked a table of men how they knew which dog they were betting. One said that, “I go down to the track to look at the dogs. If I see one of the trainers with a garden hose, filling the dog’s mouth with water, I know that is not a dog that is supposed to win that day”. 

In 2014, 17 greyhound dogs tested positively for cocaine. At least 383 racing dogs have at Florida racetracks since 2013.(Miami Herald)

According to the article, one farmer who told authorities that in 2002, Florida greyhound trainers were paying him $10 a head to “dispose” of aging, slow or gimpy dogs? The old farmer estimated killing between 2,000 and 3,000 greyhounds over the years, shooting them in the head with a .22-caliber rifle and then tossing their remains into a ditch.

You might be disturbed by this because you are a dog lover, but I write about this for an even greater theme.

You might wonder why there is still dog racing in Florida. It’s true, there is a large movement to do away with it. But the rationale is that it creates jobs. Yes… JOBS.

I have learned that there are a lot of societal ills that can be explained, if they create jobs. Pipelines through oceans and forests create jobs. Natural gas drilling creates jobs. Removal of regulations on businesses creates jobs.

At some point, legislators need to look at the big picture. Cleaning up an oil spill does create jobs, but is that really something that should cause pride?

And that’s my brief foray into politics.

And finally… My friend, Mike Thomas, posted this on Facebook and I had to put it in the blog!

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Life Expectancy Table Thought

Injury cases that I take to trial, typically include a claim for a permanent injury. In those claims, I introduce a life expectancy table from the code; so the jury can consider how long my client is expected to live and the length of effect of the permanent injury.

If you really stop and think about a life expectancy table, it’s not in the positive thinking department. Unless you think, “No worries… I am going to outlive that!”.

But the reality of a life expectancy table is that it really could also be named a death expectancy table. How do we really deal with that thought.

Several years ago I saw a story that I saved, that deals with a man who was dealing with the fear of death.

A sick man turned to his doctor as he was preparing to leave the examination room and said, “Doctor, I am afraid to die.  Tell me what lies on the other side.”

Very quietly, the doctor said, “I don’t know”.

The man replied, “You don’t know?  You’re, a Christian man, and don’t know what’s on the other side?”

The doctor was holding the handle of the door. On the other side came a sound of scratching and whining. As he opened the door, a dog sprang into the room and leaped on him with an eager show of gladness.

Turning to the patient, the doctor said, “Did you notice my dog?  He’s never been in this room before. He didn’t know what was inside.  He knew nothing except that his master was here. But, when the door opened, he sprang into the room without fear.

I know little of what is on the other side of death,  but I do know one thing… I know my Master is there and that is enough.”

I love that thought.. even though it does make me wonder why a dog is wandering around a doctor’s office. 🙂

The story reminds me of this saying of comfort:

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On the light side, our pic o’ day is about time. For me, it has such a familiar ring to it!

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Noose in the Neighborhood

You don’t expect to come to a legal blog for some Uber humor. Right?

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And much like leaping into an Uber, let’s leap right in to our topic today. I thought I would get crazy and actually write about a case where the Virginia Supreme Court is going to rule. (Richmond.com)

The Supreme Court of Virginia is scheduled to hear arguments this week over whether a man broke the law, when he hung a black-faced dummy in his front yard. It is a question of free speech versus intimidation.

Why is this getting attention? As background, from 1877 to 1950, there were more than 4,000 lynchings of African-Americans in Southern states.  84 of those were in Virginia.

In 2015, Jack Eugene Turner was convicted of violating a state law that specifically prohibits hanging a noose to intimidate. He used a rope to hang an effigy of a black man from a tree in his front yard in 2015 in plain view of the street. A black stuffed dummy hanging from a rope! Is that free speech?

Not surprisingly, Turner is white. He was upset at his black neighbors.

On the circuit court level, Turner got six months in jail for violating the “noose statute”. He argues that his free speech rights were violated and that state law only bars displays of nooses on public land, not private property. His conviction was affirmed at the Appellate Courts. Now, his case heads to the Virginia Supreme Court.

The Virginia attorneys disagree, arguing that the noose was meant to intimidate, and did instill fear in his neighbors. His attorney disagrees.

While race relations are at the forefront of nearly every news cycle, courts should not stray from following the law as it is written, albeit at times unpopular or controversial. The law in this matter is clear,” wrote Turner’s lawyer, C. Holland Perdue III.

In asking the justices to hear the case, Perdue wrote in his appellate brief, “While I agree with the court of appeals and the trial court’s rationale that hanging a noose and a ‘dummy’ is reprehensible and offensive, both have erred on the side of public opinion and not the law. Poor and distasteful speech must be protected.

He went on to write,“Private property affords the owner exclusive and absolute rights to display any symbol or symbols regardless of how reprehensible or offensive we may find them and these symbols are protected speech“.

According to the article, Christopher P. Schandevel, an assistant attorney general, wrote to the supreme court justices that, “Turner hung a black-faced dummy in a noose from a tree in his front yard to intimidate his African-American neighbors, with whom he had been feuding.

The display had its intended effect — causing Turner’s neighbors to fear that Turner might harm them or their children,” Schandevel reported. “Expressive conduct is generally protected by the First Amendment, but expressive conduct that communicates a ‘true threat’ is not. Intimidation constitutes a ‘true threat’ when it is designed to place people in fear of death or bodily harm,” he wrote.

Originally, Turner was convicted of violating the 2009 Virginia law that bars the display of a noose on a highway or other public place “in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.” The charge is a Class 6 felony. That is the conviction that he is appealing.

The briefs set forth the arguments well. All I can say is, can you imagine coming home to a neighbor who has that hanging in his yard?

And for pic o’ day, because we are currently hiring additional lawyers and staff, this seemed topical… and it made me laugh:

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Hammer Meets Nail!

How about a Christmas picture to get Our Blog week started?

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When I received that… I laughed!

Here’s what we know on a Monday. No one wants to hear how someone’s fantasy football team did over the weekend, and no one wants to hear about how much money someone made in bitcoin. Right?  (Yes, I know. That was just random)

We want useful!!! Something that effects us. Thus, I will be a bit random now to get to our ending point.

So let me mention my weight loss idea. On Friday I decided to punish myself for gaining a couple of pounds. I know it sounds crazy, but stick with me.

Recently, I ordered some custom shirts from a men’s shirt company that is located in India. I sent them my sizes. When the shirts arrived, they all felt tight. I was stuck. Send them back and spend almost as much in shipping as I spent on the shirts? Give them away? Or, torture myself. I went with the torture weight loss program of shirt tightness.

With a sport coat on, you probably wouldn’t notice. Me? I felt the tightness all day. One piece of lettuce felt like too much food. I knew I needed to lose at least 3 pounds! It’s the little things. Like not just digging into the Christmas cookies that show up at our office. Which brings me to some poetry for the blog to make us wicked smart!

One of my favorite poems is For The Want of a Nail.

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

 I connect that thought to the court system. The 2017 statistics are not out yet but; in 2016, the Virginia Supreme Court issued opinions on 15 injury case appeals. This included death cases and malpractice verdicts.

In those 15 cases, the injured party only won twice. In the sports world, that is a 2-13 record. That is part of a continuing trend in Virginia. Over the last several years, the defense is winning at the appellate level of the Virginia Supreme Court by historic margins.

What do these statistics mean? Stay with me on my stream of consciousness.

Following Tuesday’s election, democrats were celebrating the victory of a an elected Democrat in Alabama. In Congress, it means that Republicans hold a slim 51-49 Senatorial advantage. It makes it difficult to push legislation through unless everyone votes along party lines. Similar to getting judges approved.

There is a similarity in Virginia. Selection of Virginia state court judges occurs through legislative election. Virginia is one of only two states that use this method in choosing judges. The other state is South Carolina.

It’s why  there are court challenges regarding this past November’s elections to determine whether Republicans or Democrats will control the Virginia House of Delegates. Right now, the difference stands at a Republican majority of 51-49, with a possibility of that still flipping.

That impacts laws. That impacts appointments. Which means… that could impact how a Supreme Court justice might apply laws during appeals. That’s not to say that any of the above opinions would have changed. But, in the federal system, it’s not unusual to see a ruling by a 5-4 decision.

Elections can impact judicial appointments. Appointments could potentially impact appellate decisions. It’s why every vote does count. It’s the little things.

And I decided to close with a pic o’ day that is not holiday related. But is is a blog tip…or something!

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“Walk, Don’t Run To The Nearest Exit”

History.com gives us the account of the Brooklyn Fire on December 5, 1876. (wikipedia account)  It was an event that killed almost 300 people. Deaths that were later attributed to negligence of the owners, designers of the building, and management of the Brooklyn Theater. Here’s a brief recitation of the events and it effects thereafter.

The Two Orphans, was a popular play, causing almost all of the 900 theater seats to be filled that night.  It was between the 4th and 5th Act, with the stage back curtain still down. A gas light ignited some extra scenery stored behind the stage, near some straw. The stage manager initially did not realize the significance of the flames. Because there were no buckets of water, and the water hose was not working, he directed the stage hands to extinguish the fire with long stage poles. That was not successful, and the flames began to spread.

In spite of the flames and smoke, the actors continued to stay in character. Many in the audience grew restless,  but many thought that it was all part of the play.

Soon, the actors fell out of character. The Brooklyn Daily Eagle later reported that the primary actor said to the crowd, “There is no danger; the flames are a part of the play.”As she spoke,” the Eagle reported that “a burning piece of wood fell at her feet, and she uttered an involuntary exclamation of alarm. This broke the spell which had heretofore held the audience.”

Panic erupted and the stage manager J. W. Thorpe appeared, urging everyone to exit in an order manner. But, the audience was now thoroughly panicked and ignored the people on the stage.  Because a narrow staircase was the only the exit from the balcony  and that there were no fire escapes; the stampede resulted in many being crushed, while others were trapped. When firefighters arrived, it was too late. And 1/3 of the audience could not exit in time.All this had occurred in approximately 10 minutes.

Later, it was estimated that approximately 300 people died. A dangerous condition had been created with no safety precautions, in the event of a fire. Looking back, it was foreseeable and preventable. The attachments above give further detail in the design of the building and the negligence of management. Further details of the actors, including one who ran to his dressing room and tried to climb out of his window… only to get stuck in the window and ultimately die.

In 1919, Supreme Court Justice Oliver Wendell Holmes wrote in an opinion (Schenck case) about the first amendment application and free speech that no free speech safeguard would apply to someone “falsely shouting fire in a theater and causing panic“. Thereafter, people took that wording from that opinion to mean that shouting “Fire” in a crowded theater was against the law, with no protection of free speech.

In 1969, the Supreme Court heard the case of Brandenburg v. Ohio . It involved a Ku Klux Klan leader, Charles Brandenburg, who had been charged with inciting group members at a rally. He had used inflammatory language and racial slurs including calling “revengeance,”.  Ohio prosecutors had interpreted his speech as a call to violence. Thus, using the same Schenck case regarding shouting “Fire“, prosecutors charged Brandenburg as breaking the law without the protection of free speech.

Brandenburg continued to claim that the First Amendment protected his speech. The Supreme Court agreed with him, in contrast with the earlier Schenck decision.

According to the opinion, advocacy, even when it encourages law-breaking, helps the marketplace of ideas. Based on this opinion, it was clarified that shouting Fire in a crowded theater was protected by free speech… even though it is not a sensible idea.  There is one caveat to that, lest you think I am encouraging wild hollering at the theater!

If prosecutors can prove that someone incites “imminent lawlessness” by falsely shouting “Fire” in a crowded theater, then they can still be charged and convicted. Merely shouting “Fire” is protected. A change/clarification since 1969.

I know I got a little carried away with lots of words for this blog. But… this day in history grabbed me with lots of effects on the law. I will try to be shorter tomorrow… with lots of pic o’s to make up for it!! I promise!

Which leads me to the feeling that we need something of a smile for our pic o’ day. Isn’t life Grand!

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