YouNeedaHelmet When Your Article Gets Old

Over three months ago my boss sent me an urgent email. He needed an article for a newsletter “right away, as in today”. I hate pressure as much as the next guy, so I was really annoyed (toned down language in case my mother reads this). However, I struggled to put something of quality together. As of yet, there has been no newsletter published and this article is growing older by the minute. Rather than let it die, I’m going to post it here.

Facebook and the Law

We all love facebook, right? We use it to keep in touch with family and friends. We post our statuses share our pictures, jokes and links. We chat and check in at our favorite locations. It’s great fun. However, our facebook profiles say a lot about us. How many of us think about how our information can be used by third parties? How much of our privacy are we risking by using facebook and other social networking sites?

Facebook is clearly a public forum, therefore all information published on the site is available to the general public and can be legally used in criminal or other investigations. This is obvious in a situation where a person claiming a permanent disability under worker’s compensation statute posts status updates and photos on his arduous Trek Across Maine ride. After the June 15, 2011 “Vancouver Riot” which broke out after our Bruins beat the Canucks in Game 7 of the Stanley Cup finals, police were overwhelmed with thousands of  email tips with links to facebook and other social media postings. Many of these have been used in the investigation and presumably will be introduced as evidence in subsequent prosecutions.

So, it’s a given that the police can and will use facebook, but what about the implications in civil cases particularly in the discovery process? Modern discovery rules are very broad allowing for discovery of just about anything that may lead to admissible evidence. In Offenback v. L.M. Bowman, Inc., 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011) the plaintiff sued the defendants for personal injuries resulting from an automobile accident. The damages complained of included inability to work and limited “ability to sit, walk, stand, ride in a vehicle, bend, stoop, push, pull, and lift. He claimed that he could not drive for any period of time and [was] physically limited as to riding his bicycle or motorcycle.” The defendant’s attorneys requested discovery of his facebook account. His attorneys claimed the information was not relevant.

During an in camera review here’s what the judge found the plaintiff’s facebook account revealed:

• Plaintiff has posted a number of photographs or updates that reflect he continues to ride motorcycles and may have on more than one occasion traveled via motorcycle between his home in Kentucky and Pennsylvania. In particular, our review found a photograph posted on March 14, 2011, which appears to show Plaintiff with a Harley Davidson motorcycle that other posts suggest that he purchased in or around July 2010.

• On or about October 1, 2010, Plaintiff posted information to his account that suggests he may have traveled to West Virginia via motorcycle.

• On July 22, 2010, a post on Plaintiff's "Profile" page suggests that he had taken, or was planning to take, a trip to Pennsylvania  on his motorcycle.

• On October 29, 2010, a photograph was posted to his account that may show Plaintiff hunting and in possession of a 10-point buck that he or another hunter had shot and killed.

• On August 29, 2010, Plaintiff's "Profile" contains an update in which he posts photographs and comments suggesting that he may have recently ridden a mule.

• On July 7, 2010, Plaintiff posted pictures of a Harley Davidson motorcycle that it appears he may have purchased shortly before the pictures were posted.

• On July 1, 2010, Plaintiff included "motorcycles" among his interests that he posted to his Facebook  profile.

• Between March 16, 2010, and March 18, 2010, friends or relatives of Plaintiff posted comments to his profile that suggest Plaintiff had traveled from Kentucky to Pennsylvania, either by motorcycle or automobile.

It should be no surprise that the plaintiff was ordered to provide that facebook data to the defendants although the judge did add that other information, specifically “routine communications with family and friends, an interest in bluegrass and country music, a photography hobby, sporadic observations about current events, and a passion for the Philadelphia Phillies”, was not relevant.

The Anthony Case and Ignorance of the Law

I wasn’t going to touch this one, but #YouNeedaHelmet when you read some of the appalling and misguided comments about the Casey Anthony verdict. As everyone on the planet who hasn’t been living under a rock knows Casey Anthony was found not guilty of murder, aggravated child abuse and manslaughter for the death of her daughter. Here’s a fairly good news report on Tuesday’s court proceeding - http://www.huffingtonpost.com/2011/07/05/casey-anthony-trial-verdict_n_890173.html#s303265&title=Casey_Anthony_Verdict

Many things bother me about the public nature of this trial and the outrage following the acquittal. A subtitle to a news article read  “jury finds Casey Anthony did not murder her toddler.” We all should know that is not what a jury “finds” in a criminal trial. The jury finds the facts and the judge applies the law. Understanding the system and how it works is key to reflecting on the outcome.

There’s no question that facts of this case are egregious.  A two-year old child’s remains were found in a plastic bag five months after her grandmother reported her missing. Casey never reported a missing child to the police. She didn’t even admit her daughter was missing for a month.  She lied repeatedly and both her stories and her actions were, quite frankly, bizarre. Then there’s the shovel thing and the odor in the trunk business. But are those facts sufficient to convict Caylee Marie Anthony’s mother of her murder? Was she guilty beyond a reasonable doubt? The jury said no.

So, what does that acquittal mean? It means this case is over. Period. End of story. I am amazed how many seemingly educated, thoughtful people have been clamoring for a retrial and/or an appeal by the state of Florida. Are these the same people who were shooting illegal fireworks off at all hours of the night this past weekend celebrating our independence and our American way of life? Have they ever read the Constitution? Do they understand what it says, and, more importantly, what it means? I’m saddened to discover that they do not.

There are many troubling aspects to this media circus of a criminal proceeding.  The graceless Nancy Grace is and has been a distraction if not a disgrace. Pun intended. The legal taking heads on the cable news networks have soundly and severely criticized Casey’s defense team and Jose Baez, in particular. These may be topics for another post, but let me end with this. We may never know what “really” happened but the jury has spoken. Let’s respect that.

You Need a Helmet if You’re Target

That’s right. Target needs a helmet and I need one every time someone asks me if I’ve joined the boycott of a business that has been nothing but supportive of equal rights in the past. My father was a union man and I learned at an early age never to cross a picket line, but there’s a big difference between a line of striking workers and a line of people who are merely playing nasty politics. Targets is caught in the cross-hairs of a very big gun aimed, and please pardon me for this, at the wrong target.

The day after the U.S. Supreme Court handed down the 5/4  Citizen’s United decision, I was surprised at the large number of tweeters and bloggers ranting about the result. How could all of those individuals have had the time to read an extremely long judicial opinion replete with concurrences and a 90 page dissent, study it, analyze it, and write confidently about it so quickly?  Unfortunately, most of them had not read it. However, this isn’t the place to expound upon complex legal issues, the scope of the First Amendment, the significance of 5/4 decisions, and the intricate, inner workings of the third branch of government. The bottom line is that case made it legal for any organization, whether a non-profit, a union or a corporation, to spend its money on political advertising and campaigns.  Justice Kennedy wrote "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

So what did Target do? The corporation made a perfectly legal $150,000 contribution to MN Forward, a Minnesota organization promoting economic development and job growth. Why would they do that? I’m going to go out on a limb here and say it’s because Target, headquartered in Minnesota, is a business and economic growth is good for business.  MN Forward gave money to several candidates from both major parties, including one Tom Emmers, who is pro-business but opposed to marriage equality. Good for Emmers; bad for Target.

Target Corp. has long had a reputation for being gay friendly. It provides benefits for domestic partners of its employees. It sponsors the annual Twin Cities Gay Pride Festival in Minnesota. It scored 100% on the Human Rights Campaign Foundation's Corporate Equality Index in 2010. MSNBC, the so-called liberal news channel, refused to air MoveOn.org’s big Boycott Target ad. Target apologized. (Note to self- possible blog topic - You Need a Helmet when reading about people apologizing for things they did even if they weren’t wrong)

The boycott was a bust. Why? The entire thing was unfair and the organizers simply picked the wrong target. I’m off to Target now. Don’t yell at me as I go in and, please, don’t throw anything at my head in case I’m not wearing my helmet.

Life’s Tough. Get a Helmet!

One of my favorite curmudgeonly expressions is “Life’s Tough. Get a Helmet.”  When I first thought about this blog I wanted that for my title. Alas, it was taken (because life is tough), so I went with “You Need a Helmet.”

But do you really need a helmet?  In Maine you don’t need a helmet to operate a motorcycle if you are over 17. Unless the park or facility in which you’re riding requires one, you don’t need a helmet to skateboard.  However, since 1999 Maine has had this law on the books in Title 29 -

§2323. Bicycle helmet use; passenger seat use

1. Use of helmet.  A person under 16 years of age who is an operator or a passenger on a bicycle on a public roadway or a public bikeway shall wear a helmet of good fit, positioned properly and fastened securely upon the head by helmet straps.

2. Passenger seat.  A bicycle passenger must be seated properly in a bicycle passenger seat.

I can’t help but think back to an earlier time before seat belts and air bags when we kids got to ride in the open back of a pick-up truck so long as we didn’t stand up or make too much noise. My Dad taught me how to ride a bike without training wheels on a rutted, dirt road. There were no helmets. All I had for protection was his hand on the back of that seat. By the time I’d finished yelling, “Don’t let go, Daddy”, I was pedaling solo down the road with the wind in my hair, the sun on my face, and an exhilarating feeling of accomplishment. It was a great day!

Here’s a picture showing what would be three bike law violations today.

• No helmet for operator


• No helmet for passenger


• No passenger seat

Didn’t we have fun? Well, my baby sister looks a bit nervous, but I’d do it again in a heartbeat. Wouldn’t you, Sis?