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California Court of Appeal Carves Out "Low Value" Exception to First Amendment (Catsouras v. State of California Highway Patrol)

Catsouras v. State of California Highway Patrol (opinion here; case discussion here), a newly-issued California Court of Appeal Opinion, raises important First Amendment issues.  In Catsouras, two California Highway Patrol officers forwarded crime-scene photos of an 18-year old who died after crashing her father's stolen Porsche into a guide rail.  The surviving family members sued the CHP officers, alleging invasion of privacy.  

Siding with the family, the Court of Appeals departed from decades of California caselaw.  Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59 ("It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded, that is, plaintiff must plead and prove that his privacy has been invaded.  [cites] Further, the right does not survive but dies with the person.") 

Worse still and relevant to bloggers and media outlets alike, the Court reached its conclusion on dubious First Amendment grounds.

The CHP officers argued, as anyone of us might, that they had a First Amendment right to disseminate the crime-scene photographs.  Perhaps their judgment could be questioned.  Perhaps their superiors should sanction them for forwarding crime-scene photographs.  Indeed, no one is claiming that the CHP officers did not make an error in judgment.  None of that should matter, given that the First Amendment guarantees us the right to speak truthfully about whatever we like.  We may not lie, and we may not like fire in a crowded theater.  Otherwise, though, we are free to say what we will.

Recognizing that the CHP officers forwarded unaltered photographs, the Court of Appeal still ignores their First Amendment defense.  The Court acted as a super-censor: "Here, the picture painted by the second amended complaint is one of pure morbidity and sensationalism without legitimate public interst or law enforcement purpose."  Slip op. at 17.

Where is the "sensationalism" exception to the First Amendment?  The First Amendment provides that "Congress [and the States, vis-a-vis the Fourteenth Amendment] shall make no law ... abridging the freedom of speech []."  Even morbid and sensational speech is protected.

By allowing the lawsuit against the CHP officers to proceed, the Court of Appeal has made all of us unfree.  Is your blogging morbid and sensationalistic?  Some of mine is certainly hysteric.  May the Court of Appeal, post hoc, extinguish my First Amendment rights because they don't like one of my posts?  Under Catsouras's reasoning, what is stopping them?

Nikki Catsouras: Elevating the Dead's Right to Privacy Over the Living's Right to Free Speech

Nikki Catsouras was the product of an indulgent Orange County, California lifestyle.  When she was 18, she took her father's car without his permission (he called 9-1-1 to report her) and took it on a joy ride.  She got the Porsche up to 100 miles-per-hour and clipped another car, before crashing to her own death.

The California Highway Patrol recovered her body and the car.  They took a bunch of pictures of the death scene.  A couple of CHP officers forwarded these pictures to civilians.  Eventually, the pictures made their way around the Internet: They went viral.

Some sociopaths forwarded the pictures to the Catsouras family.  Some people even created an e-mail account in Nikki Catsouras' name, and sent e-mails saying things like, "Look at me!" 

Cruel stuff, though the legal issue presented in Catsouras v. State of California Highway Patrol should have been easy to resolve.  Download Catsouras Opinion [Disclosure: Counsel for the individual CHP officers is a close personal friend, and I consulted with him the Section 1983 issues - which the defendants prevailed upon, and which are not discussed in this post.]

The Catsouras family sued the CHP officers for invasion of privacy and intrusion into seculsion.  They claimed that a dead person had a right to privacy.  Shockingly, they won.  Catsouras is a disastrous opinion for the First Amendment.

Legally, the opinion goes through all of the right law - and then ignores it.  The Court of Appeal recognizes that under California case law, only the living may sue for an invasion of privacy.  The Court of Appeal also recognizes that in analogous situations, the dead have no rights.  For example, the living cannot defame the dead.

One cannot, then, question the intellectual integrity of the Court of Appeal.  They are unafraid of saying, "Here is the path of law.  We're going to take the law on a different path."  The Court of Appeal opinion is honest, but incorrect.

Now, some will say that I've mischaracterized the Opinion.  "Mike," you might say, "the Court of Appeal did not hold that the dead have a right to privacy.  Instead, the Court of Appeal held that the surviving family members have a right to privacy on behalf of the dead." 

Yet your characterization fails, because a third party cannot have a right greater than that of the first party.  Think of it as a principal-agent issue.  

If I sue on behalf of a corporation, I cannot claim to have greater rights on the corporation's behalf than the corporation has on its wod.  Yes, that's an awkwardly-worded sentence, because it's an obvious concept.  Water is wet.  There are other examples.

Imagine you get into a car accident.  Your insurance company refuses to settle the case, because they are jerks.  You may have a bad-faith insurance cause of action claim against my insurance company.  You may assign this cause of action to the person who initially sued you.  Indeed, plaintiffs will often say, "We will dismiss our lawsuit against you in exchange for your lawsuit against the insurance company."

In making the assignment, however, the third party can only sue to obtain the relief you could have obtained had you kept the cause of action for yourself.  The party you've assigned the cause of action to, in other words, has no more nor no less rights than you have.  They stand in your place - no higher, and no lower.

In Catsouras, the family ued for invasion of privacy.  Yet Nikki Catsouras had no privacy rights.  She's died.  

The dead have no rights.  In Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, a newspaper published an obituary that revealed the decedent's criminal history.  The decedent's family sued, alleging invasion of their privacy and intentional infliction of emotional distress.  The family lost.  The Hendrickson court noted:

It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded, that is, plaintiff must plead and prove that His privacy has been invaded. (Coverstone v. Davies (1952) 38 Cal.2d 315, 322-324, 239 P.2d 876; Werner v. Times-Mirror Co. (1961) 193 Cal.App.2d 111, 116, 14 Cal.Rptr. 208; James v. Screen Gems, Inc. (1959) 174 Cal.App.2d 650, 653, 344 P.2d 799; Kelly v. Johnson Publishing Co. (1958) 160 Cal.App.2d 718, 722, 325 P.2d 659; Metter v. Los Angeles Examiner (1939) 35 Cal.App.2d 304, 310, 95 P.2d 491; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, s 342, p. 2605.) Further, the right does not survive but dies with the person.

In Catsouras, the Court have reached the same result.  Namely, the living may not sue to vindicate rights that do not exist.

Now, perhaps the family has its own privacy right in the dead?  If so, what is the precedent?  If someone installs a spy camera into my shower, my privacy rights have actually been violated.  I can sue.  

Yet if my family attempted to sue, claiming, "We have a privacy right in Mike's private parts," they'd get sanctioned.  My privacy rights belong to me alone.  And, once I'm dead, I will have no privacy rights.

Thus, from a common law legal perspective, Catsouras is flawed.  It's also flawed from a First Amendment perspective.

The CHP officers did not lie, cheat, or steal.  They revealed true facts about a dead person.  A living person has a First Amendment right to speak truthfully - about the living and the dead.  

Now, courts will often apply some balancing test between the right to privacy and the First Amendment. Even so, how can the balance be tiled towards the favor of a dead person.  Again, Nikki Catsouras is dead.  The CHP officers are the living.  Catsouras elevates the dead over the living.

Old People Lack Wisdom

One of the more troubling myths is that, "With age, comes reason."  Aristotle did his best work at 37.  Marcus Aurelius wrote Meditations in his 40s.  Nevertheless, we all grow up being told to respect our elders, because they are so wise.  I've received little wisdom from my elders, which is why I was reading Aristotle at 19 rather than listening to old people tell me I really should respect authority.

Indeed, society simultaneously preaches that with age comes wisdom while enacting laws protecting the elderly from scams.  If an old person is so freaking wise, why protect them from scams?  They'd never fall for a too-good-too-be-true offer.  

Well, science is debunking the myth that older is wiser:

The study used brain-scanning equipment to compare the brains of younger adults to older adults as they played a fast-paced investment game. Examining the responses of older adults, Kuhnen and colleagues found a correlation between risky investments and reactions in the brain’s reward circuitry, specifically a region in the emotional brain called the nucleus accumbens.

“We found older adults made more mistakes,” Kuhnen says. “They seem unable to represent value accurately in the nucleus accumbens area.”

“When you take a long time to think, it is not clear the emotional brain will play as important a role,” she says. The results also challenge the popular notion that older adults are inherently conservative investors, Kuhnen says.

More here.  The United States Senate is loaded with old people.  The average age of a Senator is 62:

The Congressional Research Service says the current Congress is "possibly the oldest" of any in U.S. history, and the average age in the Senate is 62. Lautenberg is one of 11 Senators who are over 75, and one of 26 who are at least 70.

How much wisdom comes out of the Senate?  

Certainly turning the country over to wunderkind like Rolfe Winkler would be a very bad idea.  Someone should be kicked in the balls a few times before being given any actual responsibility.  (One reason Obama and Bush should never have been elected is because both lacked rich life experiences.)

Disregarding what people in their 20s have to say because, "They're just kids," simply evidences an absence of wisdom.  Which, given what the science says about aging, really shouldn't surprise any of us.

We Are in the Second Great Depression

Under the U-6 unemployment numbers, the United States is at 17.3% unemployment. Basically, we are living in the Great Depression. 

There are no bread lines because of unemployment benefits, welfare, a huge federal employment sector where the employee can print its down money, and greater aggregate wealth. Lots of jobless people are living with employed parents and friends.  How many of you with jobless children are helping them out?  Exactly.

Thus, the argument that Ben Bernanke saved us from a Second Great Depression by giving trillions to Wall Street is not only unsupported by the evidence (they can't prove that he did); it's also logically unsound.

Ben Bernanke is a traitor who should not be facing Congress for re-appointment.  He should be facing a jury for criminal treason charges.

Calorie Restriction, Resveratrol, and Intermittent Fasting

Would you like the extend your life, and decrease the odds of dying from cancer or a heart attack?  I have a simple, scientifically-proven solution for you.

Caloric restriction is an effective intervention for delaying age-related disease and extending good health into later ages of the mammalian lifespan. Much interest in caloric restriction (CR) has centered on its unique life-extending effects, but increasingly, its impact on age-related disease and biomarkers of the aging process have received attention. In mammals, CR has been found to combat inflammation (Kalani et al., 2006), reduce endogenous levels of oxidative stress (Yu, 2006), increase insulin sensitivity (Anderson and Weindruch, 2006), decrease core body temperature (Mattison et al., 2003) and promote elevated resistance to stress treatments (Bruce-Keller et al., 1999; Apte et al., 2003). Taken together, these effects appear to combat many diseases of aging. Mammals that consume 30–40% fewer calories exhibit a lower incidence of Type 2 diabetes (Astrup, 2001), neurodegenerative disorders (Logroscino et al., 1996; Patel et al., 2005), hearing loss (Someya et al., 2006) and cardiovascular disease (Fontana et al., 2004). An especially important effect of CR is tumor suppression and reduced mortality due to cancer (Kritchesky, 2001; Hursting et al., 2003; Klebanov, 2007),

Well, if you are still paying attention, ask yourself: Why haven't you heard about Calorie Restriction (CR).  Shouldn't CR be everywhere?  

You haven't heard about CR because of this text (which I didn't highlight for you): Mammals that consume 30–40% fewer calories.  

Calorie Restriction is not easy.  It requires a person to be hungry during nearly every waking hour.  For many, that is no way to live.  There is a way to mimic Calorie Restriction's effects without starvation.

Instead of doing CR, you could combine Intermittent Fasting with resveratrol supplementation.  

Intermittent Fasting.

One can receive many of the same benefits of CR through Intermittent Fasting (IF).  IF works simply: You don't eat for 16-32 hours.  When you eat, you eat nutrient-dense, nutritious foods until you are full.

For me, I eat my last meal at 8 or 9 p.m.  My last meal is usually a small serving of lean protein and mixed nuts.  My next meal is sometime around noon or one.

Oh, but wait: Isn't that how Americans eat?  Large dinner, skip breakfast, get fat?  And aren't you supposed to eat 5-6 meals a day.  Well, yes and no.  

The problem with Americans isn't that we skip breakfast.  It's what we ultimately break our fast with.  

If you break your fast from Carl's Jr. with a Hostess in the morning...Well, no offense, but there are probably other posts to be reading. 

I break my fast with protein powder and fish oil; or blue berries and kefir, or some other healthy combination of lean meats, dairy, and nuts.  

Intermittent Fasting can be hard.  Unhealthy food is delicious and tempting.  Food scientists know how to manipulate you into eating more.  It's scientific fact that junk food is delicious and toxic.

Most worthwhile activities are challenging.  Intermittent Fasting is no different..


Resveratrol has been all over the news.  In animals, resveratrol expands lifespan and decreases diseases incidents.  Resveratrol saved my dad from the daily agony of benign prostatic hypertrophy, and there's substantial research showing that resveratrol can prevent prostate cancer.

Vitamin D and fish oil.

Vitamin D (and, no, you don't get enough from milk) and fish oil are so insanely good for you that I am not going to talk about it.  There is so much science behind vitamin D and fish oil that any discussion would be banal.

If you're not already taking 3-6 grams of fish oil and 2,000 IUs of Vitamin D a day, you're literally killing yourself.  I use Carlson's brand fish oil and Vitamin D, both of which you can purchase here.

Does it work?

I don't know.  I'm too young to have prostate issues.  My blood work is insanely good.  My HDL level is 68, even though I eat egg yolks, and full-fat milk.

Subjectively, I feel fantastic.  Since starting IF and resveratrol, I feel like a wild animal.  I am more active (unusual given I have a family of depressives), less inhibited - less tame.  There is research that hunger triggers movement:

ScienceDaily (Dec. 21, 2009) — A body that is provided with food too often gets caught up in the maelstrom of a lack of exercise, obesity and ultimately diabetes. The trigger is a molecular switch that is controlled by insulin, a new study by scientists from ETH Zurich has revealed.

That which expands life has the wonderful side effect of enhancing it.

How you live today and how you will die tomorrow is your business.  It is possible to have a longer and better life.  It's up to you.


Prop Trading: How Goldman Sachs Gambles With Your Money

One of the most scandalously delicious ways in which Wall Street cheats taxpayers is through prop trading.  This is good stuff, so stick around.

The Federal Reserve loans money to Goldman Sachs at 0.25% interest.  That's not a typo.  Goldman Sachs borrows money interest free from the Federal Reserve.

Instead of lending that money to small business, Goldman Sachs takes the free money, and makes stock market bets.  That's all "prop trading" is.  Simple stuff.

If Goldman Sachs makes a losing bet (as it did when it gambled with AIG), then we have the Bailouts.  

If Goldman Sachs makes a winning bet, it keeps 100% of the profits.  Goldman Sachs, using taxpayer money, made a lot of winning bets in 2009.  Thus, in a week or so, it will start distributing $23 billion to bankers.  Taxpayers will not share in the profits, even though Goldman Sachs would not exist - let alone be earning record profits - had taxpayers not directly and indirectly bailed out Goldman Sachs.

Why is Goldman Sachs given free money to play the markets?  Wouldn't you like some free money to go day trade?  That's all they do at Goldman Sachs - day trade.  They do it well, but make no mistake: Goldman does not make long-term investments.  They make millions of quick bets each day.  It's high-frequency day trading.

 There is no good reason to give Goldman free money, though there is a reason why the Federal Reserve does.  Goldman Sachs owns Congress and the White House.  Goldman Sachs proves that might makes right.

After a devastating loss in Massachusetts, Barack Obama and other Democrats realized that Americans are tired of Wall Street winning, and the taxpayers losing.  Thus, Obama allegedly is going to prevent Goldman Sachs from taking interest-free loans:

In perhaps his most daring move, he is calling for a modern-day version of the Glass-Steagall Act, which in 1933 separated commercial and investment banking. The new separation would prohibit standard commercial banks from engaging in proprietary trading using funds from their commercial division.

Paul Volcker has been trying for weeks to drum up support — on Wall Street and in Washington — for restrictions similar to those passed in the Glass-Steagall Act in 1933. That law separated commercial banking and investment banking, so that the investment arm could no longer use a depositor’s money to purchase stocks, sometimes drawing money from a savings account, for example, without the depositor’s knowledge.

Make no mistake: Goldman Sachs is not merely gambling with depositor money.  Goldman Sachs is gambling with your money.  They are not even paying interest on the loan - unless you count 0.25% as interest.  

Will Obama actually do anything?  I used the word allegedly advisedly.  

First, we shouldn't take Obama on his word.  Why is he only now stopping the ludicrous practice of enriching Goldman Sachs at taxpayer expense?  It's not because he wants to; it's because he has to.

Second, Obama could immediately demand that the Federal Reserve stop giving free money to Goldman Sachs.  Chairman Ben Bernanke wants to keep his job.  Obama need only say, "Ben, stop giving Goldman Sachs interest free loans."  End of story.

Why hasn't Obama done so?  How many more months or years will Obama "fight" for reform?  Every day Obama "fights" for reform is yet another day Goldman will play the markets with your money.  

Take nothing Obama says on honor, as he is not a honorable man.  That it took a defeat in a give-away election proves that Obama is a Wall Street shill.  

The election loss has proven that Obama is fearful.  He and the Democrats want to remain and power, and supporting Wall Street is a threat to their remaining in power.  

The President and Congress do not care about you.  They care only about themselves - and their re-election campaigns.  Make it clear to your Congressperson that you will vote against them unless they pressure Obama to stop giving free money to Goldman Sachs.

Writing a Congressperson is usually a frivolous and self-indulgent activity.  Today, however, it matters.  They are paying attention.

For the first time since 9/11, the government is not making us afraid, but instead is afraid of us.  Keep writing and calling your legislatures.  Let them know that free money for Goldman Sachs is bad for America, unacceptable in a democracy, and disastrous to any incumbent's re-election campaign.

Big Brother Strikes Back

Many people feared digital technologies, especially the omnipresence of video cameras.  Remembering the Cliff Notes of 1984, they screamed, "Big Brother is watching!"  Yet videos actually worked to the benefit of the citizenry.  

Most of us have nothing to fear from surveillance.  Your life isn't interesting.  Government agents are not watching you masturbate in the bathroom.  Nobody cares.  

Occasionally, though, videos can offer you freedom.  There are now hundreds of cases of document police misconduct, and dozens of cases where videos provided an alibi to a criminal defendant.  Remember the Duke Lacrosse case?  One of the defendants was saved by an ATM video that established that he could not have been present when the (non) rape occurred.  

Citizen journalist, too, have become a sort of Little Brother.  Everyone with a camera is tape recording arrests.  In many cases (as with the recent New York Jets fan arrest), the videos show evidence of an unlawful arrest.  

The government, unfortunately, is fighting against transparency.  Big Brother wants its cameras back:

Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three police officers struggling to extract a plastic bag from a teenager’s mouth. Thinking their force seemed excessive for a drug arrest, Glik pulled out his cellphone and began recording.

Within minutes, Glik said, he was in handcuffs.

“One of the officers asked me whether my phone had audio recording capabilities,’’ Glik, 33, said recently of the incident, which took place in October 2007. Glik acknowledged that it did, and then, he said, “my phone was seized, and I was arrested.’’

The arrest is an abuse of police discretion.  Just because you can arrest someone doesn't mean you should.  It's clear that the police were not concerned with wiretapping qua wiretapping, but instead retaliated against the young lawyer for documenting police abuse.

Currently there is no First Amendment news gathering exception to wiretapping laws.  Thus, depending upon how Massachusetts' wiretapping law reads, the arrest will likely be upheld.

Judges should wonder, though, why police are so afraid of video cameras.  These same judges, your honor, appear in your courtroom each day.  You credit everything they testify about.  

Why are police officers terrified of cameras?  As police say: Privacy is for people with something to hide.  What, then, are police officers trying to hide?