Motherly Law

Too Dangerous to Consume? Hazards of Doing the Dew & Having Some Wip at the Reddi

Considering Junk Food

At this time of year, the start of one year before us and the food-laden holidays and past year behind us, many of us take stock of our diet and exercise routines. We all know which foods we should be filling our diets with, but why is it that ALL seriously delicious, crave-worthy foods are terrible for us? It seems like a really cruel joke.

Although I think that on the whole I eat pretty well, I am often snared by the chocolate traps and can fall very far down in the ooey, gooey, rich chocolate pit {which I don't necessary think of as bad thing}. At least chocolate does have a number of redeeming qualities, which I have mentioned to you before.

However, there are other foods sitting on grocery store shelves looking very innocent, indeed; that are actually deadly {to a mouse} or could be used illegally. How could these corrosive, dangerous items be legal to sell? These junk foods are actually quite often consumed. It might surprise you when you find out what I'm talking about.

Last week, I happened upon two stories regarding food items and the law. Each story is completely different from the other, but both are interesting.

Whipped Topping No Laughing Matter

In the first instance, last week in St. Cloud, MN, a 23 year-old male was arrested driving while impaired from a hazardous substance after he crashed his car into a pole. What was this substance? Well, inside the vehicle were numerous cans of whipped topping.

My first reaction was "what, you can sniff whipped topping?" How crazy is that? Well, as it turns out whipped topping is included on the list of dangerous inhalants.

While the whipped topping contains mostly fat and sweeteners {and no cream}, it also contains nitrous oxide gas. You may be more familiar with its other name, "laughing gas." Yep, that's right; nitrous oxide is the same stuff your dentist might administer to you as an anesthetic. This gas aids in the dispensing of the whipped topping and whipping it at the same time.

There are actually a number of household items that are can be inhaled. Some you are quite aware of, but others may surprise you. They are categorized as gases (nitrous oxide, propane tank gas, chloroform, whipped topping, gases from a refrigerator, etc.) aerosols (contained in spray bottles, such as hair spray, vegetable oil sprays, spray paint, etc.), nitrites (often contained in cleaning products, leather cleaners and scented air fresheners; butyl, amyl and cyclohexyl) and volatile solvents (Often found at home, in schools and in the work place, including glues, paint thinner, degreasers, felt-tipped markers, etc).

Not many consumables on that list. Did you take a good look at other items in the same category as the whipped topping? I bet you'll think twice the next time you spray whipped topping on your pie? But seriously, would you really want to eat this product again?

Do the Dew or Maybe Not

The second story involves a lawsuit. A man alleges he found a mouse in his Mountain Dew. He says he sent the mouse remains he found in his Dew to the folks at PepsiCo for analysis and they destroyed the mouse. The lawyers for PepsiCo came back with an argument that isn't quite what you might expect.

They say that if a mouse had indeed ended up in a Mountain Dew container, the soda would have dissolved the mouse into a jelly-like substance before the consumer ever opened the container; approximately 15 months after bottling. Hmmm. Well, that makes me want to drink this pop.

Let's ponder that for a minute. I'm not talking about a cleaning substance or poison or toxic substance that could dissolve a mouse. I am talking about a consumable; a beverage. OK, so it looks like toxic waste and tastes a bit like what I would imagine Windex might taste like, but still many people do "Do the Dew" quite often.

So, here's the skinny: Mountain Dew contains citric acid that is corrosive enough to destroy teeth and bones in a matter of months {if soaked in the liquid}, as noted by several studies. While citrus fruit juices have more citric acid and the rate of decay of teeth and/or bones would be the same; at least there is vitamin C in the fruit juices. So, will Mountain Dew kill you? Well, it's not going to dissolve your teeth and bones; unless you soak in it for a couple of weeks; and it's not known to be corrosive on your "innards". For the record, I'm not taking any chances.

The Scoop

At the risk of sounding like a food snob, I don't consume these particular foods, and I have to admit I'm really glad I don't'. So, there you have it; a few interesting legal issues involving foods under inconsumable circumstances. Over and out...

Anna

Rudolph The Rich Reindeer: A Quite Different & Slightly Legal Version of Rudy the Red-Nosed Reindeer

You Only Think You Know This Story

You may be familiar with the story of a little reindeer named Rudolph who happened to be born with a birth defect. His nose, instead of being black like other reindeer, was big and red and even glowed like a light bulb.

His red nose didn't bother him or hinder him in any way. Rudy grew and developed just like any other little reindeer, but then one day he went to play with the others. Well, you can imagine how the young reindeer girls and boys teased Rudy about his nose. They had never seen such a nose before and they treated him as an outcast.

Reindeer Have Feelings Too

Well, actually it was even worse than making him feel like an outcast. They didn't ever leave him alone. They made jokes about him; they taunted him; they butted him with their little antlers; and they called him names. They were ruthless in the way they bullied poor Rudy. The other cruel reindeer basically cut him off from all reindeer contact; completely isolating him from society.

His father, Donner, was one of Santa's top reindeer. He didn't understand his son with the red nose and didn't think much of the teasing. Donner, a big, strong jock buck, simply told his son to "buck up" and butt back, which really wasn't very supportive.

Rudy ended up quite depressed. He wouldn't eat; he had trouble sleeping; he felt hopeless; and he refused to go to school or out to play with the other young reindeer. Instead, he spent all of his time in his room listening to Britney Spears' Blackout album over and over, which just made him feel worse about his troubles. He sat on his bed with his lights off and his red nose lighting the room.

Santa owned all of the reindeer and he was aware of Rudy's red nose and the physical and mental bullying that went on. In all his years of reindeer ownership he had never seen such a nose. He considered him to be a weak link, an embarrassment and just didn't care how he was treated. In fact, he himself, that right jolly old elf, even gave a hearty "ho, ho, ho" over some of the cruel jokes and nicknames for Rudy, which Rudy heard. Having Santa against him was the last nail in the coffin.

The Lawsuit

Rudy decided to consult with the outcast elf, Hermey, who originally wanted to be a dentist, but after realizing that you have to stick your hands in other elves' mouths, decided to become an attorney and represent the down trodden and outcast characters in the World of Fiction. Hermey decided that Rudy had a good case for Intentional Infliction of Emotional Distress.

While this cause of action is typically quite difficult to prove, Hermey felt that with the specific instances of ridicule and Rudy's doctor certified bouts of depression, Rudy had a good case. Hermey had to show:

1. Santa and his reindeer, hereinafter referred to as Defendants, acted intentional or recklessly; and
2. Defendants' conduct was extreme and outrageous; and
3. Defendants' actions were the cause of the distress; and
4. Rudolph T. Reindeer, hereinafter referred to as Plaintiff, suffers severe emotional distress as a result of Defendants' conduct.

Hermey was a very good attorney with a very convincing argument, and Rudy won the lawsuit.

Part of the damages awarded to Rudy included the right of first refusal to lead Santa's team of reindeer on foggy Christmas Eves as long as he is able. Additional damages included having a Christmas song, children's story and movie written about Rudy's plight as an outcast reindeer due to his uniqueness. The movie must be played on every television channel at least once during the Christmas holiday season for eternity. Of course, Santa had to pay 3.4 million dollars in damages, as well.

The Scoop

So, what happened to poor Rudy? Why he went down in history as the first {but not the last} reindeer to sue Santa and win. But the newly wealthy Rudy didn't let it all go to his nose....er, um, I mean head. No, he became an advocate for all special needs and bullied cartoon and book characters.

Rudy went on to work the speaker's circuit, charging half a million to speak. He became the wealthiest, best known reindeer ever. And Hermey....why, he never wanted for clients again. He became the Gloria Allred of fictional characters. And they all lived happily ever after....except for Santa, perhaps. Over and out...

Anna

On A Soapbox: Suing Mom?

Worst Mommy in the World

I am not the most patient mom in the world. I'll admit it. I have been known to lose my temper. It's true. I have, at times, been called "the worst mommy in the WORLD!" by my hot-headed, tantrum-throwing offspring. I've been judged and sentenced to time out or prison, whatever that is to a 5 year-old. I have sometimes agreed with the sentences pronounced upon me...sometimes.

But my children are still young, impetuous and unschooled in life, and I expect that in time they'll grow and mature and understand that life isn't fair; they don't get everything they want whether they deserve it or not; and that they won't always deserve, or need, the things they may think they simply cannot live without.

Extreme and Outrageous Behavior

I pray that my kids will understand these things and love me regardless of how much {or how little} I spend on them. I sincerely hope my kids don't ever sue me because I wasn't the "world's best mommy" in their view every day.

You think it's absurd that I would hope such a thing? Because seriously, what kind of values am I teaching my kids, right? What kind of brat would sue a parent over such trivial and unimportant issues? Who, indeed? Well, I'll tell you precisely who: Stephen A. Miner II and Kathryn Miner, now 23 and 20, respectively, of Barrington Hills, a wealthy Chicago suburb.

These spoiled, rotten brats {in my opinion}...ahem...siblings sued their mother. What did they claim she did to them as children? Were there allegations of locking them in the closet; leaving them in the car until 2 a.m. while she sat in a bar drinking; physically, sexually or mentally abusing them, withholding food or shelter from them? No, these two claimed emotional distress and sought damages for her alleged "extreme and outrageous" behavior. Here are some of the specific instances that lead to these claims by said Plaintiffs: The Respondent, a.k.a. Mom, allegedly:

• Told Steven when he was 7 that she would call police if he didn't buckle his seat belt.
• Failed to send college care packages and birthday cards for many years, and when she sent cards, failed to include cash.
• Changed her last name, causing distress at school events.
• Sent Steven a birthday card showing a bunch of tomatoes, one with googly eyes, with the caption: "Son I got you this birthday card because it's just like you … different from all the rest!"
• Haggled over the amount spent on Kathryn Miner's party dresses.
• Called Kathryn Miner at midnight while she was at homecoming and told her to come home.
• Played favorites with the kids.

~Source: ABA Journal, August 29, 2011

Family Dynamics

So, where was the father of these shallow kids when they were contemplating suing dear ol' mom? Where, indeed? Why he was one of the attorneys who helped to bring this suit to court. Their father represented them in this lawsuit. Ah, this is starting to make more sense, isn't it?

When little Steven and Kathryn were and 7 and 4, their parents divorced. Steven Miner, Sr., their father, was awarded full custody of young Steven and the two parents shared custody of their young daughter. Clearly, there are still some issues that should probably be resolved in therapy or during long, open-hearted, emotional conversations with each other.

This week, an Illinois appellate court dismissed this case finding that the mother's alleged conduct was neither extreme nor outrageous. The Court further stated that a ruling in favor of the children "could potentially open the floodgate to subject family child rearing to ...excessive judicial scrutiny and interference" as quoted in the ABA Journal, August 29, 2011.

The Scoop

This frivolous, petty, overly litigious claim not only wasted the time and money for all involved, but as nj.com points out it also lessens the very real and tragic stories of kids who are truly abused and mistreated by their parents.

The mother, Kimberly Garrity, other than perhaps having her heart broken by her malcontent offspring, also could have gone broke fighting this lawsuit. From several articles I read, it looks like Ms. Garrity will not recoup her attorney fees in this matter. And yet, the Plaintiffs, who supposedly lost this battle, won't have to pay much, if anything, considering Daddy was their attorney. So, who really won?

Hmmmm, something stinks here. Clearly, there was some abuse here. The Miners, all three of them, abused the judicial system in trying to settle a personal and very petty score. Over and out...

Anna

Your Liability: Inflatable Bounce Houses

Torts

Negligence is defined as "the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. Source: Black's Law Dictionary, 9^th Ed.

Now this takes me back to my 1^st semester of law school; Torts class with Professor Peter B Kutner. No, I don't mean the pastry kind of tortes. A tort is quite simply a civil wrong; a breach of duty owed to another. Torts are a big part of the first year of law school; one of the basic building blocks of law. Negligence is a tort.

When one is negligent in action {or inaction, as the case may be} and causes an injury to a person or property, one is liable to the one sustaining such injury. This is all simply put, and of course, each case is unique in circumstances, etc., but in general it's that simple.

What determines whether someone was negligent in a situation is the illusory reasonable person. The reasonable person is a hypothetical person used as a legal standard to determine whether someone acted in a negligent manner. The reasonable person acts sensibly, does things without serious delay and takes proper but not excessive precautions. Source: Black's Law Dictionary.

In my 1L {First Year of Law School} section we playfully imagined the prudent "Reasonable Person" as a super hero of sorts with a cape and a giant R on his chest running around doing sensible things. But in truth, the reasonable person is not mightier, smarter or better than everyone else, just always alert, always aware and always doing the "reasonable" thing in any given situation.

Liability Issues

When it comes to bounce house injuries and liability there is no sure answer as to whether someone would be liable if a person was injured in conjunction with the bounce house activity while attending a party at your home; or if a person was injured by you or your child while jumping in a bounce house elsewhere; or if you or a family member was injured at a bounce house business or at a private party, etc. Each case is unique and if a lawsuit was filed following an injury that case would be decided in a court of law based on the particular facts as applied to the law.

With that said, here are a few tips when it comes to negligence and liability and bounce houses:

• If you sign a waiver, you are accepting the risk associated with the activity itself, but you are NOT accepting the risk associated with a negligent act on the part of the business or someone associated with that business. You can still file a lawsuit if you are injured due to negligent maintenance, set up or management, etc. of the bounce houses, regardless of whether you signed a waiver;
• If a risk of danger or injury is obvious or should be obvious to a person using the premises and an injury occurs, that is generally not considered negligence;
• If an injury occurs in or around a bounce house, liability may lie with the operator of the bounce house, owner of the structure and/or business where it's located, the manufacturer and/or other jumpers or invitees, depending on the particular circumstances;
• If you rent a bounce house for your home, business or event do be sure to follow all rules provided to you and use reasonable caution in operating and monitoring the bounce house. If you follow all rules and closely monitor the usage of it while on your property and under your care, you will decrease the chance of injury and the chance that you are liable for any injuries;
• You should check to see if the operator or owner of the bounce house has insurance covering injuries. Also, if you are inviting people to your house to use a rented bounce house, check with your own insurance company covering your property. An umbrella policy could be useful in this circumstance, as well. Read more about umbrella insurance policies here in a past post;
• As a parent, it's your duty to protect your child. If you see something that seems dangerous feel that the structure is in ill repair or the operator is being unsafe or not monitoring the use of the structure, use reasonable judgment and remove your child from the bounce house; avoid injury, if possible; and
• Remember accidents do happen; not every injury is due to someone else's negligence.

The Scoop

So, in the end it's up to you to decide when it's safe and when it's not safe for your child to play in and around a bounce house. Many people have left comments here, on Twitter or on Facebook this week saying that they were just at a bounce house or are attending a party this week at a bounce structure business, etc. It's would be hard to avoid them altogether. They are at schools, at churches, almost all children's events have them and many birthday parties, large family gatherings and business activities for employees and families rent them.

Bounce structures are everywhere. The number of injuries sustained involving bounce houses continues to grow with their popularity. Is it simply a trend? Will bounce houses begin to go away, especially after the negative news stories of late involving injuries and catastrophe? We'll see, but for now, follow the rules, watch for unsafe conditions and monitor the situation while your kids are in the bounce structure. Over and out...

Anna

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*The photo is of a bounce structure I just happened on as I was driving yesterday. It's looks to be part bounce house/part slip and slide. Either way, you can see from the photo that it was not anchored to the ground, but merely sitting there.

** The information in this post is not in any way to be considered legal advice. Nothing in this article creates an attorney-client relationship.

 

Dirty Little {Hidden} Toxins: Exposure to Lead in Bounce Houses

Dirty Hands

My Darling Boys are always sticking their fingers in the mouths or grabbing a snack with their fingers and eating it after playing at the park or in the dirt before I can clean off their hands or send them to the sink for a thorough washing.

This grosses me out and sends thousands of warnings messages through my neurons. I try to stop them and get their hands clean before it happens, but it invariably does happen. Darling 2 will say, "Why, Ma?" as he sticks little goldfish crackers in his mouth with his filthy little hands. And yet, they have survived and a little dirt is OK, but it's all the chemicals and germs that scare me. And now, another danger to be wary of...

Hidden Bounce House Dangers

We are aware of the threat of lead in old paint, in toys, in jewelry and on strands of Christmas lights, but here's one that might surprise you: beware of dangerous levels of lead in inflatable bounce house vinyl. Last August, the CA attorney general's office filed a lawsuit against 8 bounce house manufacturers claiming there are unsafe levels of lead in the vinyl. In February, a settlement was reached with 2 of the major suppliers to reduce the lead in the vinyl, making it safer for about half of the bounce houses.

The lawsuit was filed after the Center for Environmental Health tested dozens of bounce houses. The advocacy group focused on the vinyl of the structures; the very thing that makes them bouncy. The group used Field Portable XRF analyzers with X-rays to determine the chemical makeup of solid objects. What they found was surprising.

Lead Exposure

The tests revealed that the vinyl tested contained lead in levels of 5,000 parts per million to 29,000 parts per million. These number far exceed the federal limit of 90 to 300 parts per million. These levels are potentially toxic.

Lead is a cumulative poison; every little bit exposed to can make a big difference in the long run, particularly for kids. The Centers for Disease Control and Prevention (CDC) states that exposure to lead can lead to learning disabilities, behavioral problems and seizures, coma and even death, in cases of extreme exposure.

Precautions

If you choose not to boycott bounce houses altogether, based on this issue and others, then be sure to wash hands and face after your child is finished in the bounce house and before eating. What happens is the lead dust gets on a child's hands and face and clothes, the child then gets out and grabs a drink or eats some food and ingests the lead dust in the process.

The two manufacturers who agreed to the settlement in California also agreed to test their structures that are already in circulation for rental for parties and events and replace those with dangerous levels. However, the safe assumption is that your child may be exposed to lead when using a bounce house. So, make sure to wipe your child's hands and face after playing in a bounce house.

The Scoop

We can choose to be overly cautious or throw caution to the wind or settle somewhere in the middle. We fall in the middle ground. I'm not a fanatic about washing hands every three minutes; I let me kids play in the dirt; we swim in lakes; and haven't had all of our toys tested for lead or other dangerous chemicals. Yep, we're living on the edge. Over and out...

Anna

Coffee with Anna Vlog #2: Banning Kids from Restaurants and Targeting the Happy Meal

 

This vlog business is much harder than you would imagine. Sorry for the delay. I had loud kids and a barking dog to contend with this morning. Perhaps, I should ban them from my "recording studio."

These first few weeks are certainly based on trial and error. So, please stick with me as I work out the kinks and format. My biggest problem is brevity. I want it to be conversational and not strictly here are the points: bam, bam, bam, done. This is long, but I stay on point and cover only the two news items. I think I will have to choose just one news item to discuss in the future.

I will continue to work on the length of the video and other fine details, but today it was this or nothing. I've got work I've got to get to now. I hope you enjoy it, and if you don't that's fine too. Please let me know your thoughts, but again, please be nice either way. Over and out...

Anna

Exposed: Privacy Rights

The Open Door Policy

When you have little kids in your home privacy is not something you get much of, especially if you are the mama. Our bathroom door is rarely closed, and if it is, that probably means one of the Darlings is up to no good.

If I shut a door in our home it seems to act as a beacon, calling to the Darlings to stop whatever they are doing, approach the closed door and yell, pound, push toys under, cry, jab fingers and toes under and generally have a fit. I end up getting less privacy with closed doors at our house. It leaves me feeling exposed and weary; never quite getting "alone time" at home.

Need for Privacy

Privacy is something each of us craves starting from a very young age. Some may need more privacy than others, but everyone does require it in some amount. This could mean actual physical privacy to attend to private matters or collect one's thoughts or pray or read or make a phone call, etc.; or the privacy could regard information, accounts, records and documents. Either way, we, the citizens of the United States of America, expect privacy in our lives.

In comparison to the rest of the world, the U.S. affords quite a bit of privacy to its citizens. Of course, over the years our rights to privacy have been diminishing thanks in large part to the Internet, societal habits and terrorism. We have accepted the long lines at airport security, the never-ending list of passwords, the creation of the Department of Homeland Security and other semi-invasive measures in order to protect the majority of our privacies and freedoms.

Protected Rights

While the U.S. Constitution does not specifically provide for any right to privacy, the Bill of Rights does include rights to privacy: the 1^st Amendment protects specific personal issues, including privacy of beliefs, the 3^rd Amendment grants privacy in the home, protecting against soldiers being housed in one's home, the 4^th Amendment ensures privacy of one's body and property, guaranteeing no unreasonable searches and the 5^th Amendment protects one's private information, guarding against self-incrimination.

Various state and federal laws also ensure privacy rights such as the Children's Online Privacy Protection Act (COPPA), the Gramm-Leach-Bliley Act (GLB) and the Health Insurance Portability and Accountability Act (HIPAA). Additionally, the Privacy Act of 1974 protects privacy rights through "the collection, maintenance, use, and dissemination of personally identifiable information about individuals that is maintained in systems of records by federal agencies." Source: Wikipedia.com

Invasion of Privacy

The term "invasion of privacy" is a tort, or civil wrong, and includes four types of wrongs. These are causes of action for which someone who feels he or she has suffered from an invasion of privacy can file a lawsuit against another:

1. Intrusion of solitude and seclusion. Intrusion of solitude is when one person exposes another person to unwarranted publicity. Intrusion of seclusion happens when a person physically, electronically or by other method interferes with the private affairs or space of another;
2. Public Disclosure. This type of invasion of privacy occurs when a person exposes private information to the public when such exposure would offend a reasonable person;
3. False Light. False light is similar to defamation. Here, a non-public person's private information is revealed, which puts that person in a false light. Generally, this involves information that is highly offensive and embarrassing to a reasonable person;
4. Appropriation of name or likeness. This invasion of privacy occurs when a person uses the name or likeness of another for his advantage and/or monetary gain.

Other, more controversial rights to privacy include the right to an abortion, the right to marry and the right to die. At some point I'm sure I'll cover each of these subjects too.

The Scoop

As stated in Article 2, §10 of the Montana Constitution, "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." We must carefully guard our rights of privacy, in regards to our homes, our persons and our information. Over and out...

Anna

The Law with a Side of Bacon: Social Media Breakfast MSP Panel Discussion on Law & Social Media

BACON

 It's What's For Dinner

 

 

Early Wake Up Call {For This Night Owl}

This morning I participated in the Social Media Breakfast Social Media and the Law panel discussion moderated by Albert Maruggi. Joining me on the panel were three esteemed members of the bar; Teresa Thompson, James Quinn, and Jon Garon. Thomson Reuters sponsored this meeting of SMBMSP. It was a lively discussion of many areas of the law that impact how social media is used and consumed.

Much of the discussion centered on employment issues and use of social media, both as a means of business marketing and a person's private account. We briefly touched on how the courts are using social media as material to be included in discovery requests and as a part of the jury selection process.

I wish we had had more time to discuss the FTC Guidelines regarding disclosure, defamation issues and blogging, whether to trademark and whether there's a need to acquire an insurance policy as a social media participant. That's the beauty of the law; one discussion leads to a host of other interesting legal issues.

The Scoop

So, what's with the bacon and BLTs? Bacon is a part of the Social Media Breakfast's logo/theme. So, Thomson Reuters gave each panel participant a package of Hormel's Fully Cooked Bacon {and a deluxe edition of the newest version of Black's Law Dictionary, published by West, and engraved with each person's name, weighing a full 10 pounds; I'm not exaggerating...I weighed it}.

My Darlings and my dogs were most excited about the bacon. And that's what we had for dinner; BLT's. The bacon is fully cooked, but I still crisped it in the microwave for 2 minutes. It was really tasty; which is much more than I expected from fully cooked bacon that doesn't have to be refrigerated until opened. And just to be on the safe side with the FTC and the disclosure guidelines: Thomson Reuters gave me the bacon as a gift. I followed the directions on the box, ate it and enjoyed it!

Enjoy the weekend. We, in Minnesota, are beginning to see the ground... without snow on it. That's not the case in my yard, but maybe by Monday. Over and out...

Anna

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Social Media Faux Pas: Defamation Lawsuits

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Our Comfortable Connection: The Information You Post Online Could Be Used Against You

Social Media Faux Pas: Defamation Lawsuits

Exposed

Have you ever thought {after the fact} you shouldn't have said or written something and wished you could take it back? I certainly have. Well, the advent of Social Media platforms like MySpace, Facebook, Twitter and blogs just made those types of faux pas even harder to smooth over, ignore or forgive and forget.

I had intended to write about digital legacies today; that is, what happens to online accounts, websites, etc. when the owner of the accounts dies. While that topic is quite interesting and sure to affect most of us, I'm tabling that post until next week when I discuss other estate planning issues. Instead, I want to talk about a few other social media issues that have been brought to my attention as I prepare for a panel discussion.

On Friday, I will be joining 3 other attorneys on a panel at the MSP Social Media Breakfast hosted by Thomson Reuters. The topic up for discussion is social media and the law. This is a broad subject and will allow for various points to be brought up ranging from employment issues to copyright infringement to use of information from social media accounts in the courts and on and on.

Case Studies

A few months ago, I wrote about courts recently allowing information from personal Facebook accounts to be included in discovery requests. Courts have ruled information on such sites is not confidential even if it's viewable by only certain people or "friends" of the account holder. There are more and more social media issues making their way into the court system.

In the last few weeks, there have been several news stories involving social media and lawsuits. Two of the three I'm going to focus on are actually occurring locally. All three lawsuits involve someone publishing a statement or statements online about another person that didn't go over well with the person in question; in other words, all involve alleged defamation.

• Moore v. Hoff a/k/a Johnny Northside

Hoff authors a well-read blog, The Adventures of Johnny Northside, here in the Twin Cities. Moore filed suit against Hoff back in 2009 claiming he had defamed him in a post and allowing his comment page to become a "defamation zone" that ended up costing Moore his job. This lawsuit was finally tried in court last week. A jury found in favor of Moore, directing Hoff to pay $60,000 in damages to Moore. Hoff has vowed to appeal.

According to court documents and Johnny Northside, the trouble started when Hoff reported that Moore had been involved in mortgage fraud. Hoff argued that his statements and readers' comments regarding Moore were protected speech, but jurors disagreed. Hoff maintains the statements he published were true.

• Spooner v. The Associated Press

NBA Referee Spooner filed suit against the Associated Press and one of its sports reporters, Jon Krawczynski, just yesterday. This suit, filed in the U.S. District Court for the District of Minnesota, also centers on an alleged defamatory statement.

This claim is based on a tweet by AP reporter Krawczynski made during a Minnesota Timberwolves game in January. According to the Complaint, the tweet said, "Ref Bill Spooner told Rambis he'd 'get it back' after a bad call. Then he made an even worse call on Rockets. That's NBA officiating folks."

Spooner claims he did not say that to Rambis {The MN Timberwolves coach} and further alleges that this tweet caused him to be subjected to a disciplinary investigation by his employer and disparaged his professional reputation as a NBA referee.

• Rojas v. Schneider

Schneider has built an entire blog on exposing everything she can about a level 2 sex offender who molested her minor daughter several years ago. In fact, she has included negative information about every member of his family. It's not clear whether these accusations regarding Rojas' family are true or not, but Rojas has filed suit against Schneider because he can't get a job and he blames it on her blog. Now let's recall that Rojas is a level 2 sex offender, which probably has a bit to do with not being able to land a job. Nonetheless, he has filed suit and Schneider has now filed a counter-claim against Rojas.

It's worth noting that Washington state, the venue in this matter, repealed its libel laws in 2009. I was unable to find Rojas' Complaint or find what law his claims are based on.

I will be keeping an eye on these cases and any others that may pop up as they make their way through the court systems.

Avoiding a Lawsuit

Each of these cases has a very different set of facts, but all involve social media and alleged defamatory statements. Whether you have a blog, Twitter account, Facebook account or any other social media networking site account this is something to think about before hitting the publish or share button.

While social media is a new thing, defamation is not. And the same laws apply, even if the location and access of the defamatory material has changed. I found an article with great pointers about steering clear of a lawsuit, entitled How to Avoid a Social Media Lawsuit; bear in mind it was written from a corporate standpoint.

The basic idea is still the same. It doesn't matter if you write or tweet or post about parenting, food, sports, local events, fashion or a potpourri of subjects; you should always choose your words carefully. And think twice before publishing, especially if you are particularly emotional about the subject matter.

The Scoop

While these types of lawsuits in the social media realm are still a rarity, it may become more common place as our online society evolves. However, the reality is that suing bloggers and tweeters {with exception to corporate types like the AP & their sports reporter} isn't going to pay off in the end; quite literally. Most social media participants don't have deep pockets like that of a magazine or TV station, for instance; the type of entity more traditionally slapped with a defamatory lawsuit. I know I certainly don't...in case you were wondering. Over and out...

Anna

A follow-up note to today’s post:

Black’s Law Dictionary defines the following as:

Defamation n. 1. The act of harming the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement's falsity and the defendant's fault. 2. A false written or oral statement that damages another's reputation. See libel; slander

Libel n. 1. A defamatory statement expressed in a fixed medium, esp. writing but also a picture, sign, or electronic broadcast. Libel is classified as both a crime and a tort but is no longer prosecuted as a crime. — Also termed defamatory libel. 2. The act of making such a statement; publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words. See defamation. Cf. slander

Slander n. 1. A defamatory assertion expressed in a transitory form, esp. speech. Damages for slander, unlike those for libel, are not presumed and thus must be proved by the plaintiff (unless the defamation is slander per se). 2. The act of making such a statement. See defamation. Cf. libel

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Celebrating Christmas: The Plastic Reindeer Rule; Analysis of Lynch v. Donnelly

A Season's Greeting

I celebrate Christmas. And I love everything about this holiday. I love getting our Christmas tree from the same tree guy every year. I love listening to Christmas music on the radio (the only time I ever turn my dial from 89.3 the Current) and singing along with the familiar carols. I love getting out the ornaments and thinking about the history of each one. I love baking and eating Christmas cookies. I love reading Christmas story books with my boys. I love how Darling 1 has had "Twas the Night Before Christmas" memorized since he was 2 years old. I love getting out my nativity scene music box; the one I've had since I was 5 years old. I love retelling the story of Mary and Joseph and the birth of Baby Jesus to my Darlings. I love shopping for all the dear ones in my life. I love the good cheer that exudes from most people around this time of year. I love the cold and the snow that signal that Christmas is near here in Minnesota. I love getting Christmas cards in the mail. I even love the hustle and bustle in the shops and malls. I really love everything about this holly jolly season.

And while I go about with "Merry Christmas" on my lips from the day after Thanksgiving until the day after Christmas, I am quite aware that others celebrate Hanukkah, winter solstice, Kwanzaa, a purely secular Christmas with Santa, Rudolph, gift giving and merry making with family and friends, or perhaps celebrate nothing at all around this time of year. And to that I say, "Thank God." After all, historically we are a democracy built on freedom of religion and the right to be different from each other; a great melting pot of people. Let's not forget that the Pilgrims came to America to have the freedom to practice their religion as they saw fit and not have to conform to someone else's religious views.

A Wall of Separation

However, our country is historically a deeply religious country, and while we separate church from state, the U.S. Supreme Court has acknowledged the vital role religion has played in our country, and further acknowledges that our country accommodates all faiths and religions and bears no hostility to any particular religion or lack thereof.

The concept of the separation of church and state, also known as the Establishment Clause, began with a letter written by Thomas Jefferson in 1802 to the Danbury Baptists, a religious minority in CT. In this letter, Jefferson states, "Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State."

In other words, Jefferson, a fervent Christian, so deeply believed that his government should have no involvement in his religious views or practice that he thought it best to keep religion and the practice thereof out of government functions, buildings and laws.

Based on this "wall of separation" a great many lawsuits have been brought before the Federal Circuit Courts and the U.S. Supreme Court. During this week, the week leading up to Christmas, a religious holiday and also a federal holiday, there is one case in particular that sticks out in my mind.

Lynch v. Donnelly

1. The Facts

In 1983, a few residents of Pawtucket, R.I. and members of the American Civil Liberties Union (ACLU) filed suit against the City of Pawtucket for allowing a City owned crèche, or nativity scene, to be included in a Christmas holiday display in a local nonprofit-owned park. The crèche was not the only piece included. Also present in the park display: "a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that read 'SEASONS GREETINGS.'" These city-owned figures and decorations, both secular and non-secular, had been on display every Christmas season for the 40 years prior to this lawsuit.

1. The Court's Decision

In a 5-4 Decision, the Court held that Pawtucket did not violate the Establishment Clause by including a crèche in the holiday display:

"the city has a secular purpose for including the crèche in its Christmas display and has not impermissibly advanced religion or created an excessive entanglement between religion and government. The display is sponsored by the city to celebrate the Holiday recognized by Congress and national tradition and to depict the origins of that Holiday; these are legitimate secular purposes. Whatever benefit to one faith or religion or to all religions inclusion of the crèche in the display effects, is indirect, remote, and incidental, and is no more an advancement or endorsement of religion than the congressional and executive recognition of the origins of Christmas, or the exhibition of religious paintings in governmentally supported museums. This Court is unable to discern a greater aid to religion from the inclusion of the crèche than from the substantial benefits previously held not violative of the Establishment Clause. As to administrative entanglement, there is no evidence of contact with church authorities concerning the content or design of the exhibition prior to or since the city's purchase of the crèche. No expenditures for maintenance of the crèche have been necessary, and, since the city owns the crèche, now valued at $200, the tangible material it contributes is de minimis. Political divisiveness alone cannot serve to invalidate otherwise permissible conduct, and, in any event, apart from the instant litigation, there is no evidence of political friction or divisiveness over the crèche in the 40-year history of the city's Christmas celebration."

Lynch v. Donnelly, 465 U.S. 668 (1984)

 

1. The Analysis

The Court used the three-prong test from Lemon v. Kurtzman, a 1973 case. The Lemon test has three elements: 1) whether the statute has a secular purpose; 2) whether the principle or primary effect of the statute advances or inhibits religion; and 3) whether the statute fosters "an excessive government entanglement with religion.

The Court decided that the crèche along with all of the secular decorations included did not advance religion. In fact, the Court held the crèche was merely one of the symbols of our country's traditional Christmas celebration when the decorations were viewed as a whole. Hence the reason this decision was dubbed the "plastic reindeer rule," which is to say that if there are a variety of secular items along with a nativity scene representing traditional Christmas celebration, the display alone, not accounting for other factors that may be present, doesn't violate the Establishment Clause.

The Court recognized the undeniable role religion has played in American life and government. The Court further noted that, "To forbid the use of this one passive symbol while hymns and carols are sung and played in public places including schools, and while Congress and state legislatures open public sessions with prayers, would be an overreaction contrary to this Nation's history and this Court's holdings."

The "plastic reindeer rule" has stood the test of time despite lawsuits and lower court rulings that have tried to incorporate a more exacting test or rule.

Other Significant Holiday Cases

• County of Allegheny v. American Civil Liberties Union, 492 US 573 (1989): The Court held that a single crèche with accompanying banner declaring, "Gloria in Excelsis Deo" displayed in a courthouse was in violation of the First Amendment's Establishment Clause. On the other hand, an eighteen foot menorah and forty-five foot Christmas tree together with a sign proclaiming "liberty" on display outside a government building were not unconstitutional.
• Kaplan v. City of Burlington, 496 US 926 (1990): A solitary menorah displayed in a city park during Chanukah was found to be in violation of the Establishment Clause due to the lack of additional secular symbols combined with the clearly religious symbolism of the menorah.
• ACLU v. Schundler, 520 US 1265 (1997): The Court found Jersey City in violation of the Establishment Clause because it had on public display only a menorah and crèche. The Court slapped them with a permanent injunction. Jersey City then added a wooden sled and figures depicting Santa Claus and Frosty the Snowman to its display. The Court did then modify the injunction after this attempt to secularize the display, but the Third Circuit made a point to note that the Jersey's City religious statement was still clear. This Court's ruling attempted to establish a more stringent holiday display test than the Supreme Court has done, thus far.

The Scoop

I have always enjoyed this line of cases. And every time I pass by a public holiday display I think of the "plastic reindeer rule" and all that encompasses. Maybe you will too now. Have a delightful holiday week if in fact you will be celebrating anything this weekend. I have decided to post a Motherly Advice post on Thursday and take the rest of the week off. I will summarize the Sunday Spotlight Article and post a new one on Sunday. By the by, if you have yet to weigh in with your opinion or read the great comments, please drop by this week's Sunday Spotlight Article now. Over and out…

Anna

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