The New 'On Point'

Does Constitution Permit A 'Little' Sex Abuse?

The full 11th U.S. Circuit Court of Appeals has declined to review whether a male prison inmate suffered cruel and unusual punishment when a female guard forced him to masturbate.

Only Judge Rosemary Barkett contested the court's order denying en banc review of the Eighth Amendment claim of Boxer X, who alleges guard Angela Harris threatened him with disciplinary action if he did not strip and masturbate for her enjoyment while he was incarcerated in a Georgia prison.

"The use of prison disciplinary procedures to extract sexual favors from prisoners is the type of conduct that is at the heart of what the Eighth Amendment proscribes," Barkett said in a dissent.

A three-judge panel dismissed the inmate's claim in January, finding his injury did not meet the "objectively, sufficiently serious" test of prison abuse case law. "A female prison guard’s solicitation of a male prisoner’s manual masturbation, even under the threat of reprisal, does not present more than de minimis injury," the ruling said.

Barkett questioned "what rationale the panel uses to support its position:"

Does the panel opinion stand for the proposition that the sexual abuse of prisoners is not offensive to contemporary standards of decency and human dignity? Is the opinion suggesting that the Constitution permits a “little” sexual abuse?

Her pleas did not move Judge Edward E. Carnes, to whom the Eighth Amendment issue was not of "exceptional importance" meriting en banc review. Boxer X, he noted, can proceed on his Fourth Amendment privacy claim and "the role of our court system in civil cases is not to decide how many analytical angels can dance on the head of a particular injury."

But since when are plaintiffs barred from seeking recovery against a defendant on more than one theory? By belittling Boxer X's alleged injury, the 11th Circuit has truly committed, as Barkett put it, a "precedent-setting error of exceptional importance."

Just Don't Say 'No' to Lunch with This Lawyer

In Phoenix, you'd better accept a lunch invitation from attorney David A. Selden –- or he may file a motion to compel your presence.

Selden, of Stinson Morrison Hecker, thought a lunch would be a good way of unblocking some procedural logjams in a commercial litigation case. "In this day of e-mails and voice mails, you don't get to the bottom of things," he explains.

After opposing counsel Dow G. Ostlund (Tiffany & Bosco, Phoenix) turned him down, Selden filed a "Motion to Compel Acceptance of Lunch Invitation." Ostlund, who distrusted Selden's motives, replied by proposing lunch at a Phoenix steakhouse that isn't open for lunch.

In a jocular July 19 ruling, Maricopa County Superior Court Judge Pendleton Gaines said he had "rarely seen a motion with more merit" and ordered the lunch to be conducted by Aug. 18. "There are a number of fine restaurants within easy driving distance of both counsel's offices," he suggested.

The lawyers, in fact, beat the judge to the punch. By the time the ruling was issued, Selden had hosted Ostlund at his firm's office where they enjoyed a catered lunch.

"I'll use it for leverage any chance I get," Selden says of the compelled lunch motion. "It's another arrow in the litigation quiver."

Baseball's Bid for Fantasy Rights Strikes Out

Major League Baseball deservedly got grand-slammed in a high-stakes intellectual property case as a Missouri judge found that the operator of a fantasy baseball league is entitled to use baseball players' names and performance statistics without a license.

U.S. Magistrate Judge Mary Ann L. Medler set a precedent that not only enables CBC Distribution and Marketing of St. Louis to keep operating its online leagues, but also should help shield the entire fantasy sports industry from publicity rights lawsuits.

"CBC’s mere use of Major League baseball players’ names in conjunction with their playing records does not establish a violation of the players’ right of publicity," Medler said in granting summary judgment to CBC on its claims for declaratory relief.

CBC filed suit in February 2005 claiming that Advanced Media, the Internet arm of Major League Baseball, was seeking monopoly control of baseball statistics associated with players' names. Advanced Media and the players' union countersued for violations of publicity rights.

More than 15 million people spend an estimated $1.5 billion a year to play fantasy sports, and Medler's opinion shows that baseball's challenge to CBC was little more than an opportunistic lunge at that lucrative market.

Addressing the threshold issue of the case, the judge found none of the elements of the publicity rights tort apply to CBC's leagues. Baseball players, she said in her opinion, "do not earn a living by the publication of their playing record" and "Players' records are readily available in the public domain."

Medler went on to stress that if the publicity rights of baseball players trumped the First Amendment, CBC’s "right of freedom of expression would be totally extinguished." While the defendants claimed they only objected to the use of players' names,

it would be meaningless and useless to its game participants for CBC to report that there were five home runs or ten singles in a baseball game without identifying the players who hit the home runs or singles.

Raid on Apartment to Rescue Tiger Ruled Legal

A federal judge has thrown out an illegal search case against police officers who entered a New York City man's apartment without a warrant and removed his 450-pound Siberian tiger from the premises.

"The word chutzpah ... is now vastly overused in the legal literature," U.S. District Judge Sidney H. Stein said. "Yet in a case such as this ... it is a most appropriate term to use."

Police learned that Antoine Yates was raising the tiger in his fifth-floor Harlem residence after receiving an anonymous tip. Two days earlier, officers had found him near the fifth story elevators with a deep gash in his leg, but he told them he had been bitten by a pit bull.

During an Oct. 4, 2003 raid on Yates' apartment, an officer who had rappelled down the side of the building shot Ming the tiger through a window with a tranquilizer gun. An alligator named Al was also removed from the apartment.

Yates, who has admitted being mauled by Ming and was convicted of reckless endangerment, showed his chutzpah by suing the city on claims that the confiscation of his pets violated his Fourth Amendment rights.

Granting the city's motion for summary judgment, Judge Stein said the officers were immune from liability because their actions "easily comply with the established New York standard ... for when an emergency justifies entering a home without a warrant."

The opinion also addressed Yates' allegation that officers stole his pet dwarf rabbit:

The whereabouts of the rabbit have not been ascertained, but there is no indication in the record that Al the alligator was questioned in that regard. The Court suggests that he may be more knowledgeable on this issue than he has disgorged to date.

Wendy's Cleared of Serving Bacteria Burger

Diane Roney took only two bites out of a Wendy's bacon cheeseburger before losing her appetite and throwing it in the trash. Given the outcome of her food-poisoning case against the fast-food chain, she should have kept it as evidence.

A federal jury took only 30 minutes to decide last week that the burger was not contaminated with E. coli bacteria and did not cause Roney to become violently ill. She was admitted to a hospital with kidney failure the day after sampling the sandwich in March 2001 at a Wendy's restaurant in Saco, Maine.

Wendy's argued that Roney, 57, fell ill from a possible enzyme deficiency and, if she did have E. coli, could have been infected by other food she ate or exposure to schoolchildren who might not have washed their hands after using the restroom.

"Given all of the undisputed facts, a reasonable jury could only speculate that the cheeseburger sandwich was to blame," the company said in a brief.

Roney claimed she ate a burger that was so raw it leaked about a spoonful of blood when she cut it in half. Undercooked meat, particularly hamburger, is believed to be the most common cause of E. coli infection in the U.S.

But proving causation is the major problem for plaintiffs in food-poisoning cases and Roney barely survived a motion for summary judgment.

In a March ruling, U.S. Magistrate Judge Margaret J. Kravnick noted that Roney's case for causation was "complicated" by the fact that "the subject bacon cheeseburger was discarded and, hence, could not be examined for the presence of E. coli bacteria."

Holloway Parents' Case Kicked Out of N.Y.

A judge has barred the parents of Natalee Holloway from suing a Dutch student in New York, possibly leaving them with little recourse in their quest to solve the disappearance of their daughter.

"[T]his court finds that New York is not a convenient forum for litigating the instant dispute which 'has no discernible connection to New York but a very substantial nexus to' Aruba," Manhattan Supreme Court Judge Barbara R. Kapnick said in dismissing the parents' suit against Joran van der Sloot and his father.

Elizabeth Twitty and Dave Holloway allege that van der Sloot abducted and sexually assaulted Natalee while she was on a class trip to Aruba, a Caribbean island. At a hearing in May, their attorney said the suit was "their last chance for justice, to find out what happened to their daughter."

But Kapnick found the defendants would be inconvenienced if they were compelled to litigate the case in New York, perhaps by being unable to subpoena key witnesses, including law enforcement personnel, who are in Aruba.

The decision is a big victory for the van der Sloots' high-profile attorney, Joseph Tacopino, who argued that the "case belongs in Aruba, period."

"[T]he courts of the Kingdom of the Netherlands, of which Aruba is a constituent part, have been found to present an appropriate alternative forum in which to bring suit," Kapnick said.

Judge's Libel Case Error Leaves 'Sour Taste'

Because the record was "insufficiently fermented" when a trial judge found a prosecutor was not a public official, a federal appeals court has thrown out a $950,000 libel verdict against the Boston Phoenix weekly newspaper.

In awarding the damages to Marc E. Mandel, a former Maryland assistant state's attorney, a jury found the Phoenix was negligent in describing him as a child molester in an article about child custody disputes.

Senior U.S. District Judge Edward F. Harrington had ruled on summary judgment that Mandel was a private figure and therefore did not have to meet the higher actual malice standard that applies to public official plaintiffs in defamation cases.

Ordering a new trial, the 1st U.S. Circuit Court of Appeal said the principle of not drinking wine before its time applies to summary judgment:

[I]t is a deliciously helpful device if properly timed, but one that can leave a sour taste if brought to bear on an insufficiently fermented record.

The factual record at the summary judgment stage of Mandel's case "was too uncertain to warrant a legal conclusion either way about Mandel's status" under libel law, the opinion concluded.

Lawyer Bets On Case Against Fantasy Sports

A Colorado attorney who is also a professional poker player is claiming in a first-of-its-kind lawsuit that Internet fantasy sports leagues are "unlawful gambling schemes," but the courts are unlikely to deal him a winning hand.

Chuck Humphrey

No state has ever prosecuted fantasy sports league operators or players for illegal gambling and three bills recently introduced before Congress that would prohibit Internet gambling include an exemption for fantasy sports.

But in a federal complaint filed in New Jersey, Chuck Humphrey alleges the operators of the Sportsline, ESPN, and TSN leagues receive illegal profits from the "wagers" that players make when they pay to participate in the leagues.

Because league winners are determined by the statistics of actual players in pro sports leagues, Humphrey contends, "fantasy sports are games of chance." Just as bettors on horse races cannot control the performance of the horses,

fantasy sports contestants lack the ability to accurately predict and control the performance of their respectively drafted athletes. Thus, the elements of chance predominate over the elements of skill in determining the distribution of prizes.

Humphrey, a co-founder of the Tournament of Champions of Poker who does not play fantasy sports himself, is suing under a New Jersey law which allows third parties to seek recovery of money lost through illegal gambling.

As far as precedent, he could point to a 1991 Florida attorney general's opinion. While "It might well be argued that skill is involved in the selection of a successful fantasy team," the opinion said, the state's anti-gambling law "prohibits stakes, bets or wagers on the results of any contests of skill."

Fantasy sports league entry fees "are used to make up the prizes" and therefore "clearly appear to qualify as a 'stake, bet or wager' as defined by the courts," the attorney general concluded.

That opinion, however, has never been tested in court and, according to one legal scholar, a due process challenge brought by participants would be likely to succeed because regulation of fantasy sports leagues "poses unreasonable infringement on economic liberties."

Humphrey says "the Internet boom of the late 1990s changed the theretofore predominantly social and entertainment nature" of fantasy sports. But it's still fantasy to suggest players are like gamblers who bet on the outcome of a horse race or a hand of cards.

Ironically, the pending legislation in Congress does not exempt online poker from the Internet gambling prohibition.

Anti-Gay T-Shirt Case Heats Up 9th Circuit

The case of a California high-school student barred from wearing an anti-gay t-shirt on campus has taken an ironic turn as five conservative members of the 9th U.S. Circuit Court of Appeals accused their most liberal colleague of censorship.

The court's liberal flag-bearer, Judge Stephen Reinhardt, wrote for the 2-1 majority in a controversial April 20 opinion that found the student's sartorial expression of his views was not protected by the First Amendment. The back of the t-shirt proclaimed, "Homosexuality Is Shameful."

This week, Reinhardt returned to the fray, exchanging barbs with conservative Judge Diarmuid F. O'Scannlain, as the full 9th Circuit announced it would not reconsider the case of Harper v. Poway Unified School Dist.

In a dissent signed by four other conservatives, O'Scannlain said the panel majority had perpetrated an "unprecedented" expansion of the U.S. Supreme Court's Tinker standard, which limits protections for student speech.

"[U]nder the panel majority’s decision, school administrators are now free to give one side of debatable public questions a free pass while muzzling voices raised in opposition," O'Scannlain complained, and

No Supreme Court decision empowers our public schools to engage in such censorship.

7th Circuit Ruling Chilling to Abused Minors?

The 7th U.S. Circuit Court of Appeals failed to consider the potentially chilling implications of a decision that allows employers to make "inquiries into the maturity" of minors suing them for sexual harassment.

In the case of a 16-year-old ice-cream store worker who had sex with her supervisor, the court held that consent is not a defense to liability because the plaintiff was below the age of consent when the alleged harassment occurred. The supervisor, Matt Nayman, was convicted of statutory rape.

"Congress may have felt that to recognize such a defense in a [Title VII] discrimination case would be 'blaming the victim' with a vengeance," Judge Richard A. Posner noted in the opinion.

But Posner, one of the country's most eminent judges, went on to say that in the damages phase of a trial, Oberweis Dairy "should be permitted to put Nayman’s conduct in perspective" by arguing contributory negligence.

The harm suffered by the plaintiff, identified only as Jane Doe, could be "minimal" if she was "sneaking around behind her mother’s -- and her employer’s -- back and thus facilitating Nayman’s behavior," Posner said, and

Though inquiries into the maturity of individual minors are ... bound to be fraught with uncertainty, a jury should be able to sort out the difference between an employer’s causal contribution to the statutory rape by its employee of a 16-year-old siren (if that turns out to be an accurate description of Doe) and to similar conduct toward, say, a 12-year-old.

The likely effect of this ruling, nevertheless, is to open the door to a "blame the victim" strategy. What's to stop defense counsel from inquiring into the victim's sexual history to establish whether she is a "siren" or not?

Timid Judge Lets State Secrets Trump Privacy

The Bush administration's effort to squelch cases related to NSA surveillance activities would have suffered two defeats in less than a week if U.S. District Judge Matthew F. Kennelly of Chicago had shown a little more backbone.

Kennelly expressed doubts about the government's argument that a case filed by the ACLU on behalf of AT&T customers should be dismissed under the state secrets privilege to protect national security.

The plaintiffs, led by author Studs Terkel, allege AT&T violated the Electronic Communications Privacy Act by providing records of phone calls to the NSA's super-snoopers.

But in a July 25 opinion, Kennelly held that the case "implicates the state secrets privilege" and is distinguishable from Hepting v. AT&T, in which a San Francisco judge five days earlier found the same privilege does not apply to a case involving the monitoring of the content of phone calls.

While U.S. District Judge Vaughn R. Walker said the existence of the monitoring program, having been confirmed by President Bush and others, is "hardly a secret," Kennelly said media reports about the alleged disclosure of phone call records "amount to nothing more than unconfirmed speculation."

"[T]he Court is persuaded that requiring AT&T to confirm or deny whether it has disclosed large quantities of telephone records to the federal government could give adversaries of this country valuable insight into the government’s intelligence activities," Kennelly concluded.

That "unconfirmed speculation," however, is surely more than enough to convince any adversary to avoid using AT&T's services, particularly when added to the confirmation of the monitoring program and the very specific disclosures by Qwest, another phone service provider.

According to counsel for former Qwest CEO Joseph Nacchio, the government repeatedly approached Nacchio seeking access to phone records, but he refused after learning that the feds had no legal authority to support their demands.

Kennelly discounted the Qwest disclosures because Terkel "concerns AT&T, not any other telephone companies." But it doesn't take much to infer that AT&T, the nation's largest provider, was involved in the same program.

Distress Claim Allowed in Dog Stomping Case

Claims for negligent infliction of emotional distress are not limited to those asserted by bystanders, the Wisconsin Court of Appeals has ruled in the case of a four-year-old boy whose pet dog was stomped to death by a 13-year-old neighbor.

The teenager allegedly jumped and landed with both feet on the dog while playing with the younger boy in Superior, Wisc. Citing the four-year-old's direct involvement in the incident, a trial court judge refused to let his family plead a claim for NIED.

But the appeals court said the judge had interpreted a 1994 precedent too narrowly. In Bowen v. Lumbermens Mutual, 517 N.W.2d 432, the estate of a boy killed when his bicycle collided with a vehicle sought damages for the emotional distress he suffered by being aware of the imminent collision.

"Bowen acknowledged a direct claim for negligent infliction of emotional distress, but rejected that particular claim on public policy grounds,” the appeals court stressed in Camp v. Anderson.

Judge Gregory A. Peterson, writing for the court, said the plaintiffs could not recover damages for the distress the four-year-old suffered as a bystander to the stomping because a dog is “property” under the law. The direct claim involves the lurid allegation that, at one point, the teenager chased the other boy with a feces-covered cattail.

Month of Misery for Same-Sex Marriage Cause

Today's 5-4 decision of the Washington state Supreme Court to uphold the state's Defense of Marriage Act completes a thoroughly miserable month in the courts for advocates of same-sex marriage.

Since July 6, as the table below illustrates, five state high courts and a federal appeals court have ruled against gays and lesbians who wish to marry. Whatever momentum the same-sex marriage cause had coming out of a landmark 2003 victory in Massachusetts has come to a screeching halt.

In Washington state, trial court judges in King and Thurston Counties had struck down the 1998 law defining marriage as the union between a man and a woman because it denied the plaintiffs the fundamental right to marry.

But the Supreme Court found the law constitutional, with the plurality opinion clinging to the illusion that limiting marriage to opposite-sex couples is reasonably related to promoting procreation and family stability.

Justice Mary E. Fairhurst chastised the majority in a dissent, saying they had "condone[d] blatant discrimination ... in the name of encouraging procreation" and questioning how "giving same-sex couples the same right that opposite-sex couples enjoy injure[s] the State’s interest in procreation and healthy child rearing."

"[T]here is no logical way that denying the right to marry to same-sex couples will encourage heterosexual couples to procreate with greater frequency," she pointed out.

Of course, there may be little room for logic in the same-sex marriage arena. And if same-sex marriage advocates lose pending cases in California and New Jersey, that Massachusetts decision in Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (2003), will go down as one of legal history's great anomalies.

Court Dilutes Protection for Disabled Workers

The Massachusetts Supreme Judicial Court has given employers a green light to fire mentally disabled employees for workplace misconduct even if the disability caused the misconduct.

"[A]n employer does not violate [state discrimination law] by terminating an employee for egregious misconduct stemming from any recognized handicap (as opposed to termination for the handicap itself)," the court said in the case of a former Harvard University employee who has bipolar disorder.

The school fired Michael Mammone from his position as a Peabody Museum staff assistant after he verbally abused administrators while suffering an episode of mania.

Under the earlier precedent of Garrity v. United Airlines, 421 Mass. 55 (1995), a handicapped employee who engages in egregious workplace misconduct can be held to the same standard as a nonhandicapped employee who engages in similar misconduct.

Mammone argued that Garrity applies only to misconduct resulting from drug or alcohol dependence. But Justice Robert J. Cordy, writing for a 5-1 majority, refused to create "significantly different levels of disqualifying disability-related misconduct based on whether the misconduct stems from alcoholism or some other disability."

The opinion affirmed a trial judge's summary dismissal of Mammone's claims that he was terminated because of his disability.

In a dissent, Justice John M. Greaney said a reasonable jury could conclude that

the conduct for which the plaintiff was terminated was not "egregious misconduct," but rather a manifestation of his bipolar disorder, an illness over which he had no control and which was aggravated by confrontational treatment by a supervisor who should have known better.

"The court's decision will make life even more difficult for those attempting to hold down a job while suffering with a mental illness," Greaney warned.

The 9th U.S. Circuit Court of Appeals recently took a more humane approach to a similar issue in Dark v. Curry County, which reversed summary dismissal of the case of an Oregon truck driver who was fired after suffering an epileptic seizure on the job.

"[W]ith few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination," the court said, quoting from its earlier decision in Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128 (2001).

Groups including the National Disability Rights Network supported Mammone. If the Garrity rule applies to his case, they said in an amicus brief, "individuals with mental health disorders ... will be vulnerable to irrational prejudice harbored by their employers."

Failure to Back Up Files Costs Screenwriter

An aspiring screenwriter who lost some of his work when a phone company technician installed DSL on his computer will net only $27,000 in damages after a California appeals court ruled he was negligent in failing to back up and protect his data.

A jury awarded Nicholas Boyd $60,000 in compensatory damages and $33,000 in punitives, finding the SBC technician negligently deleted files from his computer during the installation. A data recovery specialist was unable to recover entire drafts of two of his screenplays.

Boyd argued on appeal that the compensatory award was insufficient, particularly as a German production company had agreed to pay him $2.7 million for three scripts, and he was entitled to 100 percent of the award. The jury decided he was 55 percent at fault for his losses.

But in an unpublished opinion, the 2nd District Court of Appeal affirmed the award and said the jury's finding of contributory negligence was reasonable.

The plaintiff, who admitted backing up one script on a floppy disk, "could have easily backed up his other work on floppy disk, but he neglected to do so," the court noted.

Worse still for Boyd, the panel tossed the punitives award, ruling that "The jury’s finding of fraud, oppression or malice was not permissible."

Court Won't Unring Bell in Judge's Bias Case

In a highly technical reading of a jurisdictional issue, a federal appeals court has found that an Oklahoma Supreme Court justice who accused his colleagues of age discrimination does not have a remediable injury.

Marian R. Opala filed his unusual suit in order to undo the result of the court's November 2004 election for chief justice. The incumbent, Joseph M. Watt, was reelected to another two-year term after the court changed the eligibility rule.

Under Ex Parte Young, 209 U.S. 123 (1908), state officials are not immune from being sued in federal court if, among other things, the plaintiff is seeking prospective –- not retroactive -– injunctive relief.

"Any remedy the federal courts could fashion would not redress Justice Opala’s injury," the opinion said, because a declaration that the new eligibility rule is unconstitutional "would not place Justice Opala in the position he was in on November 3, 2004."

Opala did not attend the meeting at which the other justices adopted the rule change and duly voted for Watt, choosing to sit it out in protest.

Border 'Vigilante' Beats Civil Trespassing Case

Immigrants rights activists might need to adjust their legal strategy after an Arizona jury found that alleged border vigilante Roger Barnett did not trespass on a neighbor's property while he detained a group of Mexican migrants.

The Tucson-based Border Action Network (BAN), which accuses Barnett of mistreating immigrants he has rounded up on his Cochise County ranch since the late 1990s, has helped bring lawsuits against the rancher in state and federal court.

In the first case to go to trial, Donald Mackenzie, manager of the Wind Tree Ranch, alleged that in October 2003 he found three armed individuals dressed as Border Patrol agents with about 30 migrants at the water well on his property. He realized only later that he had, in fact, encountered Barnett, his brother Donald and wife Barbara.

"[The Barnetts] came to the well to keep and capture prey, and nobody allowed them to be there for that purpose," plaintiff's counsel Jesus Romo Véjar, who is affiliated with BAN, said in his closing argument.

But it took a Cochise County Superior jury only 15 minutes to reach a verdict in favor of the Barnetts, who claimed they were dressed as civilians and denied that they captured the migrants at the well.

Jurors said immigration politics did not influence their decision. But Donald Barnett's lawyer certainly played the immigration card when he told the jury that people like Mackenzie who put out water stations might be encouraging migrants to cross the border illegally.

Romo Véjar, moreover, may have erred in not seeking a change in venue from Cochise County, where immigration is such a hot-button issue and Barnett has plenty of sympathizers.

"All you need is a couple of sympathetic people on the jury and you’re dead," a former Arizona judge told the Sierra Vista Herald.

In a second BAN-supported case set for trial in October, a Cochise County man alleges Barnett threatened him and his young daughters with an assault rifle after accusing them of trespassing on his land.

The plaintiffs, BAN says on its Web site, will "take the stand to talk about the nightmares, fears and damage caused by the Barnett brothers" and "expect that lessons learned from the Mackenzie trial will help justice stand up against outrageous vigilante activities on the border."

One of those lessons might be to get the trial out of Cochise County.

'Alleged Cheater' Turns On Dating Gossip Site

A Pittsburgh attorney likely will get nowhere with his libel suit against the operator of DontDateHimGirl.com because the derogatory comments about him in its online forum were posted by third parties.

DontDateHimGirl promotes itself as a site that "lets women publicly out the men who allegedly cheat on them." The anonymous comments about Hollis ranged from "he's a DOG" and "Often dresses shabbily for a lawyer" to "He gave me an STD" and "His crib is a dump."

Joseph ''has created a very malicious communications medium,'' plaintiff's counsel told the Miami Herald.  "She has to know what it has become -- that it is being used for vindictive purposes."

But the defense will certainly argue that Joseph is protected under the federal Communications Decency Act, which applies broadly to Internet content providers who do not exercise editorial control over third-party postings.

HIV Infection Ruling Opens 'Pandora's Box'?

A 4-3 majority of the court found liability for infecting a sexual partner extends not only to someone who knows he has the virus, but also "to those situations where the actor, under the totality of circumstances, has reason to know of the infection."

Under that "constructive knowledge" standard, the plurality opinion of Justice Marvin R. Baxter said, an HIV-positive woman identified as Bridget B. who claims she was infected by her husband is entitled to question him about whether he engaged in unprotected, extra-marital sex and had symptoms consistent with HIV infection.

But two justices argued strongly in favor of limiting liability to cases of actual knowledge, with Justice Carlos R. Moreno slamming the majority for ignoring the unique context of HIV and "rushing into the complex terrain that constitutes AIDS policy."

The "novel cause of action for transmission of HIV based on a constructive knowledge standard," he warned in his dissent,

potentially licenses invasions into the sexual privacy of all sexually active Californians and may even invite abuse of the judicial process ... [W]ith this decision the majority has opened a Pandora’s box.

In a concurrence, Justice Joyce L. Kennard saw "no need to decide the level of knowledge necessary to trigger the tort duty," saying the "ordinary test of relevance" was applicable to discovery in the case.

Bridget B. tested positive for HIV in October 2000, only three months after marrying John B. The Supreme Court majority limited discovery to the six-month period preceding August 2000, when John B. tested negative, because the latency period for development of HIV antibodies is believed to be no longer than six months.

ON POINT shares Moreno's concern that constructive knowledge is simply too loose and vague a standard to apply to such a sensitive area as HIV infection.

The following table shows how the seven justices split on the appropriate standard for the tort of negligent transmission of HIV:

Aide Follows Dots, Claims Brando Will Fake

Marlon Brando was "incapable of signing anything" on the day he changed his will and gave control of his $22 million estate to former movie studio chief Mike Medavoy and two other executors, Brando's caregiver alleges in an explosive fraud complaint.

Angela Borlaza says she was present when accountant Larry Dressler and attorney Charles A. Larson came to Brando's Beverly Hills home on June 18, 2004 –- less than two weeks before the Hollywood legend died. The visitors "told [Borlaza] they were there to change the will," the Los Angeles County Superior Court complaint says.

In a codicil to the will which bears Brando's signature, he removed longtime retainers Jo An Corrales and Alice Marshak as his executors, replacing them with Medavoy, Dressler (who is Medavoy's brother-in-law), and Avra Douglas (a friend of Brando's daughter Rebecca).

But according to Borlaza, Brando was "incapacitated, confused, medicated and non-communicative at the time of the alleged signing ceremony" and she never saw him sign any documents. Moreover, having been trained by Brando to recognize his signature, Borlaza "is informed and believes" that he did not sign the codicil on June 18, 2004.

Brando apparently used a "secret code" to authenticate his signature, placing "certain dots (.....) between various letters of his name" when signing documents.

The "Marlon Brando Sr" signature on the Aug. 28, 2002 will shows dots inside the "B" and the "S"; the equivalent signature on the codicil does not.

Brando "lacked the mental capacity required to understand what was transpiring at his residence on June 18, 2004," Borlaza insists.

The plaintiff, who started working for Brando as a cook in 1995, claims that as a result of the change in executors, she was defrauded out of a San Fernando Valley house that Brando had bought for her.

Brando's holding company had title to the home, but, Borlaza says, Corrales knew it was rightfully hers and

had Corrales been allowed to serve as the executor of the Decedent's estate and had a fraud not been perpetrated on the Creditors, Beneficiaries, Interested Parties and the Court, as a result of the offering of the June 18, 2004 codicil into probate, title to the property would have been transferred into the Plaintiff's name by Corrales.

Since Brando's death, the executors, represented by Larson, have sold off many of his assets. Most controversially, they made a $2-million deal with a Tahiti-based businessman who plans to develop Brando's beloved South Pacific island, Tetiaroa, as an "eco-resort."

Brando "had a large estate and being in control of his estate was and is a prestigious job and valuable job," Borlaza's suit says, alleging that the executors "have received and will continue to receive, for years to come, substantial financial gain for controlling the Marlon Brando empire."

High Court Backs Prison's 'Mind Control' Rule

In its latest assault on civil rights, the U.S. Supreme Court has given the green light to prison officials to impose even the most draconian of restrictions on inmates in the name of the deprivation theory of rehabilitation.

Under Turner v. Staley, 482 U.S. 78 (1987), restrictive prison rules are permissible if they are "'reasonably related' to legitimate penological interests" and are not an "exaggerated response" to such objectives.

But a majority of the High Court made what a dissenter called only a "peremptory" effort to apply that test to a rule forbidding "worst of the worst" inmates in Pennsylvania's Long Term Segregation Unit (LTSU) all access to newspapers, magazines, and photographs.

Summarily dismissing the challenge of an inmate, the plurality opinion authored by "liberal" Justice Stephen G. Breyer abjectly deferred to a prison official's "professional judgment that the Policy deprived 'particularly difficult' inmates of a last remaining privilege and that doing so created a significant behavioral incentive."

In a dissent, Justice John Paul Stevens noted the complete lack of evidence that the deprivation theory of behavior modification "has any basis in human psychology, or that the challenged rule has in fact had any rehabilitative effect on LTSU inmates."

Behavior modification "could be recited, routinely, to immunize all manner of prison regulations from review for rationality," agreed Justice Ruth Bader Ginsburg in the other dissent.