After Charlottesville, A Primer to the First Amendment

“I disapprove of what you say, but I will defend to the death your right to say it.” These words are famously attributed to enlightenment era philosopher Voltaire. In a nutshell, this quote guides our freedom of speech guaranteed in the First Amendment. Just before the now infamous rally in Charlottesville, the city tried to move the rally from downtown, citing safety reasons. However a Federal Judge issued an injunction against the city, allowing the rally to continue in the park. Why?

The late Justice Thurgood Marshall once stated “The First Amendment above all else means that the government may not restrict expression because of its message, ideas, subject matter, or content.” Furthermore due to the “Public Forum Doctrine”, the place where speech takes place is important. Places that are traditionally public forums, such as city streets or public parks give way to much greater freedom of speech than nonpublic forums such as a classroom. While the government can place restrictions on speech as to time, place and manner, it must do so in a content neutral way.

What about hate speech? A recent Pew Research Poll found that 40% of millennials believe that the government should prevent people from communicating messages that are offensive to minorities. Unless this hate speech is 1) Incitement to imminent lawless acts 2) fighting words or 3) true threats, then hate speech is protected. The law relies on what is called “The Marketplace of Ideas” to root out hate speech. The theory is that when speech is freely exchanged, ideas will rise and fall on their own merits.

Freedom of speech is perhaps the most important liberty we enjoy. Remember, our forefathers and foremothers were once considered to be espousing radical viewpoints, as were civil rights activists in the 1960s. We would not need first amendment protection for those views which are mainstream and views that would leave our country at a standstill. We need the first amendment to move forward as a country. The best ideas will eventually win out.

Fed Appeals Ct Rules for Fl Man Who Recorded Police

When it comes to recording someone, Florida is a two-party state. That means, generally speaking, one needs the consent of both parties when recording a phone call or conversation. There are, however, broad exceptions to this rule and the 11th Circuit Court of Appeals just carved another large one. In order for the rule to apply, the conversation must be private.

In 2014 James McDonough complained about a specific officer to the Homestead police chief. The police chief invited Mr. McDonough to speak about the incident. McDonough agreed but secretly recorded the conversation. The Miami State Attorney Katherine Fernandez Rundle threatening to charge him if he did it again because his recording was made without the required consent of the other party in apparent violation of the two-party rule.

Not so fast, the federal appeals court said. The court held that there must be an expectation of privacy for the statute to apply. While not ruling on any sort of first amendment issue, it seems as though any time a public official is working in their official capacity, they may be able to be recorded. The court noted that the police chief did not remark that this was a private meeting.

Why the Juice is Loose: Real Legal Analysis of OJ’s Parole Decision

OJ Simpson is perhaps one of the most divisive figures in America today. After his acquittal for murder in the “trial of the century”, he was later convicted of kidnapping and armed robbery in Las Vegas. Prior to the parole decision, media questions were swirling as to whether he would be released or not. Very few commentators actually looked at the legal standard that was going to be applied. Unfortunately, all too often people will “go with their gut” rather than consulting a lawyer to examine the legal standard. Luckily, Nathan Nevins Law has examined that legal standard, and it is obvious as to why the decision was made to grant parole.

The Parole Board in Nevada uses a risk assessment sheet that I have linked to at the end of the article. These are clear and objective legal standards that the Parole Board is supposed to follow. Almost all of them are in Mr. Simpson’s favor. It is a point system based upon things like age, gender, prior violations of supervision, disciplinary conduct, and whether the inmate has completed a treatment course while incarcerated among other things.

To give an example of the lack of true legal analysis that we saw in the lead up to this decision, the media hyperventilated because he was caught masturbating in his cell a month ago, despite zero other disciplinary misconduct during his entire prison sentence. They pondered whether this would stop him from being paroled. Of course, if one actually looks at the parole risk assessment, having one misconduct of any kind is a grand total of zero points.

OJ needed at 5 points or lower to be considered a low risk of reoffending. It seems the only points Mr. Simpson had were 2 points for committing a robbery, 2 points for having a serious history of alcohol abuse, and 1 point for being a male. He received -1 point for his completion of a treatment program and -1 point for being over 41. This makes for a grand total of 3 points.

The Parole Board is also legally obligated to consider support and opposition. While most can bring forth positive comments from well wishers, friends, family and their attorney, a lot fewer can bring forth support from their victim. Bruce Fromong is the only victim still alive from the 2007 robbery. He testified in support of Mr. Simpson’s release.

Mr. Simpson will likely be released sometime in October, 2017. We have heard “legal analysts” and other talking heads postulate for weeks as to whether he would be granted parole or not. However after actually looking at the appropriate legal standard, after actually doing the research, it is clear as to why they made their unanimous decision.

Link for Nevada Parole Risk Assessment: http://parole.nv.gov/uploadedFiles/parolenvgov/content/Information/NV_ParoleRiskAssessmentForm.pdf

The Lawsuit for Smokable Med Marijuana in Plain English

Last November, over 70% of people voted for medical marijuana. Last month, the legislature created rules for medical marijuana that specifically banned smokable marijuana. Last week, John Morgan sued the state, arguing that these new rules were unconstitutional. Nathan Nevins Law has been able to get a copy of the lawsuit that was filed in Tallahassee and we are ready to break down the arguments made in the lawsuit for smokable medical marijuana in plain English.

First, the text of the constitutional amendment specifically does not allow for smoking in public. This suggests that smoking marijuana in private should be legal. Second, the text of the constitutional amendment defines marijuana the same as the criminal code, which includes a green leafy substance. The statute narrows the definition of marijuana and specifically excludes “marijuana in a form for smoking.” In other words, the constitutional amendment defines medical marijuana as A, B and C, while the statute tries to define it only as A and B. Last, the constitutional amendment defines the process as to qualifying for medical marijuana as up to a licensed physician. The lawsuit contends that the legislature is substituting their medical judgment for that of a licensed physician by banning smokable marijuana.

Remember, the Florida Supreme Court only has to agree with one of the three arguments presented in order to allow for smokable medical marijuana in the future. While it will take many months to get an answer from the Florida Supreme Court, Nathan Nevins Law will be tracking this and many other current legal issues along the way. Stay tuned!

Coming Soon? The Textalyzer Checkpoint

The “Textalyzer” is a tablet like device that plugs into a smart phone to scan data. Lawmakers in multiple states are seeking to pass legislation to utilize this Textalyzer device. Opposing these laws are privacy champions, who argue that this effort to crack down on distracted driving is classic government overreach. We have heard of DUI checkpoints but are “Textalyzer” checkpoints coming soon?

This new device can tell police if a motorist placed or received any calls, opened any apps, or sent any messages. It would give police exact times of the usage as well. For those that have had loved ones in accidents due to texting and driving, allowing this device is a no brainer. In 2015, nearly 3,500 people died in the United States as a result of distracted driving. They argue that privacy activists fears are not warranted because: 1) Many of the bills proposed, including the bill in the New York legislature, only allow the Textalyzer after an accident or collision and 2) The device can simply detect “swiping and typing”, not content.

This does not stop many from crying foul and arguing that Textalyzer’s use will become more widespread. They argue that this is just another way for the government to collect personal data. Opponents say that there are many methods that are far less intrusive to obtain phone records. Police can already ask a judge to issue an order for cell phone records. Privacy advocates also argue this device is not reliable enough for law enforcement use. (It has not been approved for law enforcement usage yet.) Still others argue that even if there are safeguards, this device will be abused by individual officers, nor do they trust the Government to keep the data safe from hackers.

Texting and driving is already illegal in 47 states. We will have to wait and see how many decide to adopt this new technology. Do not be surprised if in the next decade we begin to hear of “Textalyzer” checkpoints.

Today’s Business Epidemic: Poorly Drafted Contracts

There is an epidemic today in business: poorly written contracts. The proliferation of the internet has only made this problem worse. These contracts are often completely unenforceable. That means they will not stand up in court. A large part of my firm’s practice involves creating and reviewing business contracts, and I cannot begin to tell you how frustrating it is when another business proposes a poorly written contract. A business should not have to guess as to their obligations under a contract. These bad contracts are sometimes created by someone who is not even an attorney!

Good contracts should usually include the following:
1. A clear understanding of each parties obligations
2. How to deal with problems when they arise
3. The length of the agreement and the penalties for a breach
4. Unambiguous writing
5. Definitions of any technical terms

A good contract will save you from future pain down the road. The cost of litigating a bad contract after a breach will almost always be much more expensive than paying to create a good contract in the first place. Remember, an ounce of prevention is worth a pound of care.

Top 10 Reasons You Need A Will NOW

When you talk about estate planning, many people incorrectly think it is only for the ultra wealthy. At bare minimum, everyone should have a will. Below are the top 10 reasons you need a will NOW.

1. Decide who gets your assets.
2. Decide who will be guardian to your minor children.
3. Choose your executor that will wind down your estate.
4. Reduce legal costs at probate by spelling out how to administer your estate.
5. Allows for charitable donations.
6. Gives peace of mind to loved ones by making your wishes clear.
7. Specific instructions as to sentimental or valuable personal property.
8. Make sure an unmarried partner is taken care of.
9. Provide for pets.
10. Set funeral wishes.

What is a Living Will?

A living will is a planning decide that can give you peace of mind. It is a written device that explains what types of medical treatment that a person would want at the end of life if they are unable to speak for themselves. This legally binding document that will let medical professionals know as to decisions including whether to be on mechanical ventilation, or to allow for a feeding tube, among many others. Quality of life and cost to family are some of the considerations people think about when making these critical decisions.

Importantly, a living will often override a power of attorney or a health care surrogate’s decisions if done properly. This is one of the reasons why it is so important to hire a professional to create these documents. An attorney can advise you on how these documents interact with each other and ensure these documents do what you want them to. Usually the online forms are not worth the paper they are printed on, due to not being created by attorneys or executed incorrectly. If you have any questions about how to plan your medical decisions, call us today.

Why Contract Law Requires Cosby Walk Free

Even if comedian Bill Cosby is convicted there is a strong chance his conviction will be overturned on appeal. While this author has no opinion as to whether Mr. Cosby did what he is accused of doing, the trial judge made a likely fatal legal error in this case, requiring the charges to be dismissed.

Bill Cosby testified in a civil deposition back in 2006, waiving his constitutional right to remain silent. Why did he do this? Former District Attorney Bruce Castor entered into a permanent non-prosecution agreement with Cosby in 2005 in order to try to help the accuser recover financially. Mr. Castor testified under oath pre-trial that such an agreement existed and was in fact permanent.

Despite this, the judge sided with the government’s argument that there was no agreement in writing and that only a judge can grant prosecution under state statute. However, with few exceptions, a contract does not have to be in writing to be enforceable. This is basic contract law. This law firm recently assisted on a trial where there was a contract dispute despite no written contract. Both the jury and the judge correctly found there was a valid enforceable agreement.

Furthermore state law cannot trump due process considerations. Back in 1972, in Santobello V. New York, the United States Supreme Court reasoned that when a criminal defendant waives constitutional rights in order to come to an agreement with the government, that agreement is enforceable as any other contract would be. They called it the “Constitutional Law of Contracts.” In Santobello, the government reneged on a sentencing promise after the defendant waived his right to a trial and entered a plea. The court reasoned that the same remedies for a broken contract apply.

In Santobello, the defendant was merely allowed to withdraw his plea. However for Cosby it is impossible to turn back the clock and pretend that testimony never occurred since for Cosby the cat is out of the bag and also he already settled that civil case. The only just remedy for a broken contract in this case is specific performance, which means forcing the parties to hold up their side of the bargain– ie enforcing the non-prosecution agreement.

If the Jury comes back not guilty, all of these legal issues will never be fleshed out. Regardless of what the jury decides, contract law requires Mr. Cosby’s case to be dismissed.

Why Your LLC Needs an Operating Agreement

Lots of small businesses decide to become LLCs. When that business has more than one owner, an operating agreement is crucial. Handshake agreements and free forms cannot replace careful planning. Often disagreements can arise between business partners when it is too late to work through them. Here are some issues that can be solved with an operating agreement for an LLC:

  • What percentage of the LLC does each member own?
  • Who will manage the day to day affairs of the LLC?
  • How will profits be distributed?
  • In what proportion will profits be distributed?
  • How can members sell their portion of the LLC?
  • What are the voting rights?
  • Can members compete with the company?

Think about a two person LLC. John and Greg agree to a 50-50 split on everything. They’ve been working together for years. They started the LLC together. Two years later, with the business booming, John decides to sell their share to someone completely unknown to Greg. Without an operating agreement, Greg is powerless to stop John’s sale. Now John is partners with someone he knows nothing about.

While hiring a lawyer may not be on the top on the list for a small business, it really should be. These issues are much more difficult and more expensive to deal with once they become issues. It is like ignoring going to the doctor to treat a small issue and finally going when you need major surgery. Figuring out and planning out these issues are crucial for any small business. That is why your LLC needs an operating agreement.