Blinq

Yale To The Rescue

O.J.'s got himself a Philadelphia lawyer *

(does Cherry Hill count?)

Hang Up

A Montgomery County legislator wants Pennsylvania to make drivers hang up their phones.

Unless the car has some sort of hands-free device.

State Rep. Josh Shapiro is about to introduce legislation that brings Pennsylvania into line with an increasing number of communities across the country and at least 45 countries worldwide. He says cell phones distract drivers more than anything else on the road, leading to more accidents.

Here's a confession: I am just what Shapiro's talking about.

I'm most dangerous when I wind up behind someone who's crawling in the fast lane, or doing some sort of bee dance across the white lines. Invariably, they're driving while yakking. I make this Talking On The Phone gesture with my thumb and forefinger extended and held to my ear. If really mad, I do this with the other hand at the same time, and shake these modified cuckold signs while yelling something like GET OFF THE PHONE, MORON!

My hands aren't on the wheel during this little demonstration, but I'm a very good driver. Even when I'm on the phone, myself.

I told you the legislation was aimed at me.

Actually, I do drive one-handed, the other cupping a cell phone to my ear. But I'm very skilled. I dial while at the wheel. I text message friends. Check my balance. And what I have to say is very important.

It's my right, right? Unless I happen to run into you.

Shapiro, a freshman Democrat, says he's got 30 co-sponsors - more than double the amount when the bill was introduced in 2002. It died because we don't like anyone messing with our freedoms. We're with Ben Roethlisberger on this one.

A KYW report says Shapiro claims the use of hand-held cell phones played a role in almost 1,200 crashes in Pennsylvania in 2004.  His bill would allow the use of cell-phones in traffic only if a hands-free device is used.  Using a hand-held cell phone while driving would come with a $250 fine.

Shapiro cites a recent National Highway Safety Administration study

"…which says that distracted drivers cause the most crashes. And the number one distraction for drivers is using hand-held cell phones. And the fact is, that our Pennsylvania legislature needs to step up and do something to make our roadways safer.”

Actually some studies have shown even hands-free phones are a dangerous distraction. A study last month out of the U of Michigan found about 2/3rds of those surveyed backed a cell phone ban. Younger people thought driving while on the phone was less dangerous. Four states ban cells for younger drivers and four more prohibit all but hands-free phones, according to the Insurance Information Institute.

When I lived in Europe, most countries had outlawed cells phones for drivers unless the devices were hands-free. I'd be talking to someone, and when passing a police car, would suddenly have to drop the phone onto the seat or risk fines worth hundreds of dollars. A dangerous law, I felt. Never got caught, but eventually almost every country I worked in had adopted the rule, concluding it made people safer.

I remember interviewing a professor in Germany who doubted cell phone bans would make the roads safer. Many other things distract drivers, he said, like men staring at women's breasts. Now that guy made sense.

Who Is The Phila Lawyer?

The term Philadelphia Lawyer has been around since at least 1735, when a clever barrister named Andrew Hamilton traveled to New York and won an early victory for freedom of the press.

The term Phila Lawyer brings to mind more modern liberties.

"Katherine pressed me up against the wall outside the parking lot elevator and shoved her tongue down my throat," begins the latest post from the anonymous local lawyer whose blog has returned after a year's leave.

Phila Lawyer began in December 2004 with beer-soaked, skirt-chasing tales from a big-city practice. And with confessional posts like this, called The Ten Percenter:

You probably wake up like I do every day, amazed that they haven't caught on to the fraud. When will the other shoe fall? It's only a matter of time. I don't deserve these checks. I'm not a team player. I'm not even playing the same sport.

Last week he put up the first of three new posts, and promises to update twice a week after moving his blog archives over to the new site. The new posts are sure to continue the legal parlor game that surrounds the barrister blogger's identity.

Some message board began the rumor that he had died in a car crash. Another posited that his wife had pulled the plug. Or his managing partner.

It's not clear where he's been. But he's hooked up with Tucker Max, who has been making a name in lout lit, and is part of Max's burgeoning empire of bad-boy (and bad-girl) blogs.

Phila Lawyer's latest work begins with his having to attend continuing legal education class, which he likens to watching cement harden:

I always bring a sack of newspapers, magazines, timesheets and the Blackberry to busy myself, but no matter how many Weekly World News, Inquirers, FHMs, SIs, SPINs, Times, Newsweeks, Maxims, and Economists I read, and no matter how many time sheets I fill out, and no matter how many emails I send, I will be compelled to pay attention to the seminar for at least about one of the eight hours I'm there. I chalk this up to fear. As a child and young adult, I was constantly serving detentions for talking during assembly or doodling in class. I know they can't send me to the principal's office anymore, but I still have this lingering sense that someone is looking over my shoulder. I think some prefect is going to grab the Blackberry from my fingers and yank me out of my seat by the ear. "You'll be getting a big fat zero for today's assignment, mister, and you can plead for your license to the Supreme Court."

Anyway, over three longish posts, he makes a case for bookmarking quoting from "Oh La La" by the Faces, name-checking Otter from Animal House, Dan Marino and David E. Kelly, and dissing annoying types from law school. He recalls in clinical detail a particularly robust date with a woman he describes as a polar bear:

Not because she was huge and alabaster white, but because she, and those like her, hunt men the way polar bears hunt meat. Polar bears rarely see prey on the tundra, so when they see anything alive they can get their paws on, they kill it.

So, who is this clever barrister?

Dismissed, Denied.

Tucker Max may be a lout, but he's no libeler, says a federal court in Philadelphia.

A federal judge has tossed the case against Max, whose popular Web site celebrates his boozy carousing. On Friday, U.S. District Court Stewart Dalzell dismissed the claim by local publicist and event planner Anthony DiMeo III, who had contended his reputation suffered from comments made on TuckerMax.com after his New Year Eve party went awry. (For more background, see The Blueberry Heir v The Web's Bad Boy.)

DiMeo said Monday he is likely to appeal and pursue those who commented on Max's site.

The judge's decision reaffirms that a Web site proprietor is protected from libel actions based on comments visitors make, either by name or anonymously. And it provides for more lively reading than one will  encounter in a year of reading such things.

The decision begins, "Tucker Max describes himself as an aspiring celebrity 'drunk' and 'asshole' who uses his Web site, tuckermax.com, to 'share (his) adventures with the world.' Anthony DiMeo III, who says he is an heir and co-owner of a large New Jersey blueberry farm, threw a New  Year's Eve party this past December that, apparently, ended in a shambles."

The event, organized by DiMeo's publicity firm, Renamity, turned out to be the "party from hell," the judge wrote. The four-hour event with food and open bar at Le Jardin, located in the Philadelphia Art Alliance gallery, ended early -- and after more than twice the 325 invitees showed, the liquor ran out, and revelers turned unruly, stealing two artworks, tearing sconces, trying to  make off with a donations box.

Commenters on Max's site were relentless. DiMeo sued Max for six posts that commenters made on his site's message board. The posters wrote things like "I hope you die soon" and wished he met the end of a Magnum. They mocked DiMeo's manhood and disparaged him professionally, the suit contended. In addition to defamation, DiMeo sued under a criminal statue that bars people from anonymously using a telecommunications device to harass someone. The judge ruled that a Web site's message board was not covered by latter, which was a recent amendment to the Communications Decency Act of 1934.

DiMeo conceded that Max did not write the offensive comments, but contended that by having the ability to edit or censor them, he is legally responsible for any libels they express. Dalzell rejected that argument, saying by punishing a Web proprietor for monitoring comments would "deter the very behavior that Congress sought to encourage."

While Dalzell wrote that "there is no question that tuckermax.com could be a poster child for ... vulgarity," he found the law must protect "the coarse conversation that, it appears, never ends.

Read Myelectionanalysis for the reaction of a blogger who, like Max, went to Duke Law School, and mines the judge's decision for "one of the best smackdowns I’ve ever seen in a judicial order."

That blogger writes: I honestly laughed out loud twice while reading the opinion, which is twice more than I’ve ever laughed while reading a judicial opinion. My favorite line has to be "after viewing the tuckermax.com message boards, which are read by people using screen names like 'Jerkoff,' 'Drunken DJ,' and 'footinmouth,' the intended audience could not mistake the site for the New York Times. In short, it palpably is not serious."

Max, reached by phone in Los Angeles, was characteristically charming in victory:

"It was the legal equivalent of a bitch slap I think it's fair to say. The judge made sure these sorts of cases won't be brought again in his district. DiMeo will think twice before he slaps a frivolous suit on a legitimate expression of free speech."

DiMeo said the case is not over. By email, he wrote:

I respectfully disagree with the judge's decision and feel this matter will be taken to the next level....Tucker Max should not only expect a possible appeal to this one judges decision, but select members of his TuckerMax.com following should expect individual lawsuits to be filed against them for the countless false, inaccurate and misleading statements they have clearly posted on Mr. Max's web site. Without a doubt, these type of legal battles are very, very costly... but, to me, it's most certainly worth it to make people like Tucker Max pay for their wrongful actions. Tucker Max demeans women and promotes character assassinations; and this is something we must not allow in our society.

This is not an issue of free speech, as Mr. Max and his following would characterize it. The material on Tucker Max's website is offensive, non-newsworthy, and disseminated with reckless disregard. It's time for Tucker Max and his following to accept the consequences of their illegal actions. Tucker Max has exploited my good name, character and solid reputation for his own personal gain.

Ms. Smith Goes To Washington

Slate's Dahlia Lithwick performs a helpful public service and translates the U.S. Supreme Court's action yesterday in the matter of Anna Nicole Smith into a format more friendly to cable news shows.

Understanding that the court's narrow attention to the juicy inheritance case makes it unlikely fodder for a Nancy Grace panel of experts, Slate has the Supremes address such camera-ready topics as:

Did Anna Nicole Smith truly love J. Howard Marshall?

Did she look good at oral argument?

How's that diet working for her?

Is it time for another reality show for her?

The Blueberry Heir v The Web's Bad Boy

(6.29.06 UPDATE: Case dismissed.)

Can you wish on an Internet site that someone meets "the end of a Magnum?" Or tell them, "I hope you die soon?" How about accuse them of "possible fraud" or ask if they've paid a local politician a bribe? What if you do it anonymously? Or under a made up name? What if your Web administrator writes this stuff?

A defamation lawsuit filed in Philadelphia Common Pleas Court asks these questions, and pits local publicist and man-about-town Anthony DiMeo III against Tucker Max, a New York writer and man-about-town, who uses his web site to chronicle long nights of drinking and debauchery. And apparently annoy DiMeo endlessly.

Call it the Blueberry Heir v the web's bad boy.

DiMeo, 30, is suing Max, also 30, saying Max's widely-read web site has libeled him repeatedly.

Max, a Duke Law school grad who is representing himself, says he's done nothing of the sort.

Max has gained some notoriety for his writing, landing his book "I Hope they Serve Beer in Hell," on the New York Times best seller list (No. 26) and finding himself in court for publishing a full-frontal account of his sex life with a former Miss Vermont. He won, and has posted the gory details about the case on his site as well.

He describes himself on his website as an #$%hole. His emails carry this blurb from the Times: "...highly entertaining and thoroughly reprehensible..."

Juicyness aside, the case has the potential to test the constitutionality of the recent change to the Communications Decency Act of 1934 that makes it illegal to "annoy" someone anonymously on the Internet.

For the past two years posters on TuckerMax.com have ridden DiMeo for the way he uses his own web site to promote his parties, his acting career, his Renamity pr firm, his being heir to a blueberry farm in South Jersey. DiMeo's suit, filed by attorney Matthew B. Weisberg, of Morton, Pa., asks for $150,000 in compensatory damages as well as punitive damages of another $1 million.

Tucker Max's comment section lit up after DiMeo made the news in January for his $100-per-head New Years Eve party at Le Jardin where attendees grew unruly after alcohol ran out, well before midnight. He has since sued the restaurant, and the restaurant has made a counter claim.

Commenters on TuckerMax.com rode DiMeo hard, Max acknowledges. Weisberg said the words hit him in his pocket.  "One of his businesses is a pr firm," Weisberg said. "As you may know, he hosted a New Year's Eve party which made it into the papers as being riotous. The contract with an alcohol distributor didn't provide enough alcohol. If one of your businesses is pr, and it is solely a business based on reputation, and you are being accused of criminal conduct, or simply being harassed, why would I want to hire someone who himself has been portrayed poorly in the public?"

Weisberg also represents DiMeo in a libel suit against Philadelphia Weekly and columnist Jessica Pressler, who parodied one of his annual holiday greeting cards.

By contending that Max's site violated the new law that prohibits anonymous annoyances on the Web - the Violence Against Women and Department of Justice Reauthorization Act of 2005  - the comments also represent criminal behavior, the lawyer alleged. He added, "I am only interested in money. I don't care about Tucker Max going to jail. It's how can I compensate my client, and make sure (Max) does not do like things again."

Max, meanwhile, argues that nothing said on his web site is libelous. He says that he is not responsible for comments that posters made on his web site - even if they were defamatory. Lawyers for the Electronic Frontier Foundation and Ralph Nader's Public Citizen Litigation Group take the same position.

"I see this lawsuit as an attempt to intimidate and stifle free speech on the Internet," Max said. "Dude, I don't see myself as a hero or champion or crusader. I'm just a dude who writes funny stories on the Internet."

Paul Alan Levy, an attorney specializing in free speech on the Internet for the Public Citizen Litigation Group, read the lawsuit at Blinq's request, and concluded:

"It's hard to see much of a defamation claim in much of this stuff. Writing 'You are the biggest piece of #$% I have heard?' that's not defamatory. It may be nasty. That is opinion."

It is less clear, he said, whether it's defamatory to post that someone was guilty of possible fraud or of bribing a politician, but Max uttered neither of those comments, and so is not liable, Levy said. Levy called the annoyance law clearly unconstitutional - a view shared by the Electronic Frontier Foundation.

"If some of these comments were put on by an employee of Tucker Max, that seems to be a different question," he said. 

Coz For Action

Bill Cosby has been parodied on The Simpsons, South Park and The Family Guy, caricatured a dozen times in Mad Magazine and portrayed by three generations of cast members on Saturday Night Live - Eddie Murphy, Kenan Thompson and (!) Adam Sandler.

So why are his lawyers zeroing on a popular Web-based animated series called "House of Cosby" that's written for free by a 25-year satirist?

That is a question blogger Andy Baio wants to know.

Baio received a cease and desist letter from The Philadelphia-born Coz's lawyers, informing him that by linking "The House of Cosbys," he is violating the comedian's rights of publicity and misappropriating his name. They describe the series as "deeply offensive." Baio isn't buying it.

The blogger, who started posting the animations on his site in November after Cosby's attorneys went after the series creator, Justin Roiland, and Channel101.com, the site that distributed it, says the First Amendment protects him. It's satire, he writes, and fair play. Baio did comply with attorneys' demand that he no longer offer sound files from an out-of-print lp called Cosby Talks to Kids about Drugs.

This summer the attorneys contacted Roiland and Channel101.com. Dan Harmon, Channel101's co-creator, described his thinking:

When I received a cease and desist from Cosby's attorneys, my initial response was to deactivate the video because I was sad that we had offended a brilliant comedian. That's how naive I was.

Then I ran into a certain legendary producer at a party who yelled at me for rolling over, told me there were important principles at stake, so I violated the order and put the videos back up, effectively calling Cosby's attorneys' bluff.

So they threatened C.I. Host, the company that houses our server, a company with nothing to gain from principles, and C.I. Host told us to take House of Cosbys down under threat of pulling the plug.

Baio has taken a different tack. He's not only keeping the "House of Cosbys" available on his site; he has asked readers to send in links to other parodies of Cosby that have run in various mediums, and has posted a fan-made "House of Cosby's" episode devoted to the cease and desist letter.

The Phillist, which wrote about this yesterday, as did the New York Times, describes that episode as "entirely unsafe for work. Consider yourselves warned." You can find it here.

Baio explained his position on his site on Friday:

House of Cosbys is parody, and clearly falls under fair use guidelines. I'm not taking it down, and their legal bullying isn't going to work. They claim that hosting these videos "violates our client's rights of publicity as well as other statutory and common laws prohibiting the misappropriation of an individual's name, voice and likeness and unfair competition." Sorry, but the First Amendment protects satire and parody of a public figure as free speech. Also, the right of publicity only applies to unauthorized commercial use, and not a work of art or entertainment.

Barrister, Can You Spare A Dime?

Was sympathetic last week when reading that law school applications are down at many top institutions.

Why? No, nothing to do with law being dangerous.

The high cost of college and then law school was the likely culprit. Students have too much debt already.

Perhaps aspiring attorneys should see this:

Starting salaries at big Philadelphia firms are on the rise.

Get an offer at Wolf, Block Schorr & Solis-Cohen, and you start at $125,000 a year.

Same for Duane Morris, which hiked its first-year associate salaries from $115,000, retroactive to Jan. 1.

Not to be outbid, Morgan, Lewis & Bockius went up to $135,000 - the highest reported starter salary at the city's firms.

Enough to afford medical insurance while hunting.