Baidu Scores Dismissal of Free Speech Lawsuit

According to The New York Times, Baidua, a popular Chinese search engine, recently scored a simultaneous victory for both censorship of speech and freedom of speech.  A federal district court in New York recently dismissed a lawsuit that sought to punish Baidu for censorship that limits certain pro-democracy search results.  In dismissing the lawsuit, the judge ruled that Baidu itself maintains a First Amendment right to censor pro-democracy webpages from from its own search results. Baidu is the biggest search engine in China with more than 50 percent of the  market share.  However, the Chinese company is required to comply with the nation’s strict regulations over Internet content. As you may recall, in 2010,  Google decided to shutdown its search engine operations in China following ongoing disputes with the nation’s censorship rules. This lawsuit was filed in 2011 and claimed that Baidu was violating United States laws on free speech because its search results had been censoring pro-democracy works for those accessing the site from New York.  The lawsuit sought a mere $16 million in damages for the purported free speech violations.  However, the district court ultimately ruled against the plaintiff and held that requiring Baidu to include pro-democracy webpages in its search results would actually be a violation of the First Amendment Funny how that works, eh? The court compared Baidu’s filtering of search results to a newspaper’s right to exercise “editorial control” over the contents that it publishes. Baidu has simply created a search engine producing results that favor certain types of political speech. The court’s order states that “[t]he First Amendment protects Baidu’s right to advocate for systems of government other than democracy . . . just as surely as it protects Plaintiffs’ rights to advocate for democracy.” 

Abnormal Use at DRI’s Products Liability Seminar

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Well, the annual DRI Product Liability Conference begins tomorrow in Phoenix, Arizona. Big news: We here at Abnormal Use and Gallivan, White, & Boyd, P.A. will be there in person, and we look forward to seeing you there.

Here’s how DRI describes this year’s event:

DRI’s Product Liability Conference is the premier event for attorneys, corporate counsel, and claims professionals who handle product liability cases. Join colleagues and friends at the luxurious Arizona Biltmore for a conference featuring knowledgeable speakers from inside the White House, the South Carolina Court of Appeals, America’s top law schools and product manufacturers, as well as top-tier trial lawyers as they discuss cutting-edge issues in product liability law. Find out what new cases and trends in the law will shape product liability litigation in the years to come, how to communicate quickly and effectively on behalf of a client involved in a crisis, where to score invaluable points while cross-examining an expert witness, and how to counteract the effects of the “reptile theory.”

What better place for a products liability blog to be? Our editor, Jim Dedman, will be attending, so if you see him, be certain to say hello!

The Legacy of Kurt Cobain (A Law Blog’s Perspective)

This past Saturday, April 5, 2014, marked the twentieth anniversary of the self-inflicted death of Nirvana lead singer Kurt Cobain. You may have seen a number of articles and think pieces about the occasion over the weekend. Tomorrow, though, marks the anniversary of the day in 1994 when the world learned of Cobain’s death. That was April 8, 1994, a Friday, which meant that his fans – mostly members of Generation X – began that weekend with the news. Many learned of Cobain’s death from anchor Kurt Loder in this April 8 MTV News broadcast. As far as we here at Abnormal Use are concerned, all that needed to be said about the legacy of Cobain was addressed in 2004 when Spin magazine writer Chuck Klostermann speculated about an alternate history in which Cobain lived. That said, as members of Generation X ourselves (and as lawyers who can’t resist an opportunity to opine on a subject of interest), we feel compelled to comment on the anniversary (despite the fact that Cobain would likely not have appreciated a law blog weighing in on his place in music history). Oh, well.

Cobain was an interesting contradiction. He brought punk rock music to the masses (making 1991 the year that genre finally “broke” into the mainstream). But he clearly disdained the many suburban fans who flocked to his band’s shows. “This is off our first record, most people don’t own it,” he said to the crowd on November 18, 1993 as he introduced “About A Girl” during the recording of Nirvana’s MTV Unplugged in New York. With that statement, Cobain passive aggressively suggested that the general public, who had heaped praise upon him and bought his album in droves for more than two years at that point, was somehow neglectful in not owning 1989′s Bleach, his band’s first record. Basically, if a fan was not the type of person he would have befriended in high school, or if a listener did not share his political and social opinions, Cobain didn’t want their support. An interesting marketing strategy, that. We suspect that if Cobain had lived into the Internet days, we’d be hearing a myriad stories about his rudeness to certain segments of fans (which is consistent with some actual anecdotes we’ve heard about him in the early 1990′s, as well).

But you can’t deny his talent. He mixed the elements of light hearted pop with heavy grunge and punk (in a far, far more sophisticated and appealing way than what passes for punk, or the inappropriately named “pop punk” genre, these days).  Even within the same song, he would shift from melodic and almost quiet poppiness to heavily distorted and loud guitar, and in so doing, create an extraordinarily catchy tune. Although he downplayed his lyrical abilities (telling interviewers that the lyrics were the last part of a song he would develop, sometimes as late as the day the song was to be recorded), his words, often contradictory themselves, were more thought provoking than he would claim them to be. In addition to his own merits, he introduced a generation of young music listeners to bands they’d never before encountered such as the Melvins, Shonen Knife, Scratch Acid, Daniel Johnston, the Raincoats, and the Wipers. On the aforementioned Unplugged album, he covered the Meat Puppets, Leadbelly, the Vaselines, and even David Bowie. Back in the early 1990′s, there was no Internet (at least not one that was accessible to the general public), and the task of finding new music – especially that which was not promoted on MTV or discussed in Rolling Stone or Spin – was a challenge indeed. In those days, a decision by a musician as famous as Cobain to don a t-shirt promoting a previously obscure band had an immense effect, and thus, fans of Nirvana, if they elected to do so, could explore Cobain’s own musical influences and save such bands from the ash heap of music history. On this very point, Anthony Carew of About.Com once wrote:

In 1992, in a pre-internet era, the ability to find out about fringe acts was limited to what your local record-store was like. Information was a limited commodity, and wearing someone’s t-shirt made a statement long before last.fm profiles did the work for you. In this day and age, when the internet offers the possibility of everyone being an obscure music expert, there’s no comparable act; if Jack White had worn an Ariel Pink t-shirt to the 2005 MTV VMAs, no one would’ve batted an eyelid.

A historical irony: Sometimes, the types of fans Cobain disdained might discover the records and artists he himself held dear.

Whatever the case, on this somber anniversary, to Cobain, we say requiescat in pace.

A few other thoughts and memories on this occasion:

In the 2000 film High Fidelity, based upon the book of the same name by Nick Hornby, John Cusack plays world weary record store owner Rob Gordon. In film, Gordon remarks, “Some people never got over ‘Nam, or the night their band opened for Nirvana.” That’s more profound than you might realize, especially if you know someone who was a member of band who actually did open for Nirvana.

Like many, I spent much of the night of April 8, 1994 driving around my city (Houston, Texas) listening to Nirvana songs on the radio. Of course, the deejays couldn’t resist repeatedly playing the “No, I don’t have a gun” line from “Come As  You Are,” the second single from Nevermind. I remember thinking that it was obnoxious for them to be doing so.

In December of 1993, I had the chance to see Nirvana perform in Houston. It was a Monday night (a school night), so I decided to skip the show. Big mistake, obviously.

Cobain does make it into case law and you’ll find his name if you do a result of same. In United States v. Wecht, No. 06-0026, 2006 WL 1669879, at *1 (W.D. Pa.  June 13, 2006), the court addressed the motion to suppress of famed pathologist Cyril Wecht. According to the opinion in that case, federal agents took possession of a number of Wecht’s files, including “29 unlabeled boxes which contained Dr. Wecht’s private autopsy files in accordion folders, including files on various high profile matters including the deaths of Marilyn Monroe, Elvis Presley, Tammy Wynette, Kurt Cobain, and other notable celebrities and public figures.” Wecht is known in JFK assassination conspiracy circles as a fierce critic of the Warren Commission. But there’s more: Courtney Love Cobain, as Administratrix of the Estate of Kurt Cobain, was a party to Neighbors & Friends of Viretta Park v. Miller, 940 P.2d 286 (Wash. Ct. App. Div. 1997), a case in which “[t]he Neighbors and Friends of Viretta Park, an unincorporated voluntary association, and several individuals who live in the vicinity of Viretta Park  . . . brought this lawsuit against the City of Seattle, its Parks Superintendent Holly Miller, and Howard and Sheri Schultz seeking declaratory judgment that vehicles are barred from the Viretta Park right of  way, and that the City did not have the authority under the plat dedicating the Park to allow the Schultzes to utilize the Park right of way for vehicular access to their property.” We’re not entirely sure why the estate was a defendant in that matter. (Side note: The defendants in that case prevailed on their laches defense. How about that?).

Speaking of conspiracies, you’ve probably heard the nonsense espoused by some who contend that Cobain was murdered. Tom Grant, a former Los Angeles Sheriff’s Office detective turned private investigator, is the foremost among them. He’s turned this theory into an income generating mechanism for himself. On his website, he sells a book, more of a large pamphlet of sorts, really, which he has called The Kurt Cobain Murder Investigation. As civil litigators, we’ve seen a lot of lousy, lazy, and poorly developed expert opinion reports in our time, but this one may take the cake. The one word that kept recurring to me as I read Grant’s work was Daubert.

Also worth reading today: “Remembering April 8, 1994” by Chuck Norton of Dead Journalist.

Friday Links

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We hope you enjoyed Tuesday’s April Fools’ Day post, entitled Tuesday’s “In Employment Case, Texas Trial Court Holds That Retweets Are, In Fact, Endorsements As A Matter Of Law,”  as much as we enjoyed writing it. In celebration of the occasion, we direct your attention to the comic book cover above, that being The Spirit #357.  As you can see, it is rather appropriate (and it’s a Will Eisner cover to boot!). Further, in the interests of completism, we present these links to our four past April Fool’s Day Posts:

North Carolina Court Declares Harlem Shake ‘Over,’ Enjoins YouTube From Accepting Further Videos Depicting Same” (April 1, 2013).

American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law” (April 1, 2012).

Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011).

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010).

On another note, over at Evan Schaeffer’s Legal  Underground, Evan Schaeffer has a post entitled: ”Charlie Daniels Has Recorded an Album of Dylan Tunes?” In said post, Evan muses:

The Sirius/XM station “Outlaw Country” has been playing the Daniels’ version of “Tangled Up in Blue” quite a bit during the past week.

It’s not bad. Keeping in mind that this isn’t a music blog, per se.

Let us be the first to say that law blogs should be free to stray into the topic of music. Back in 2011, we here at Abnormal Use dedicated a full post to the life and death of the rock band R.E.M. and created the ultimate list of “Songs about Lawyers, Judges, and Attorneys.” So we’re fully on board with music lawyer blogging. By the way, Evan started his blog way, way back in January of 2004, meaning that it just celebrated its tenth anniversary. That’s no small feat, and we congratulate him on that achievement. His very first post, from January 28, 2004, was “New to the Blawgosphere,” and you can revisit it here. In fact, one of our favorite legal blog music posts was done by Evan in February 2004, just a few days after he officially launched his blog. That post, of course, was ”Federal Judge Sways to Rhythm of Talking Heads,” in which he analyzed and annotated United States v. Abner, 825 F.2d 835 (5th Cir. 1987), the famed appellate opinion in which the author embedded more than a few Talking Heads song names.

South Carolina Supreme Court Releases Opinion on College Football Seat License Fees

As it was then, and so it is now, we here at Abnormal Use care deeply about college football.  Avid readers may recall or our 2011 post discussing a parking fee dispute that arose between the University of South Carolina and a fan that purchased a lifetime membership into the Gamecock Club. While a clever revenue raiser, lifetime memberships are a challenge because they, well, last a lifetime.  So it is no surprise that a dispute over the Gamecock Club’s lifetime membership once again makes its way through the South Carolina judicial system. That case is Lee v. University of South Carolina, et. al., No. 2012-212567 (S.C. April 2, 2014), released yesterday by the South Carolina Supreme Court.

The facts were these: In 1990, George Lee III purchased a $100,000 life insurance policy, naming the University of South Carolina the sole beneficiary, in exchange for an opportunity to purchase basketball and football tickets for the duration of Mr. Lee’s life.  In an effort to generate more revenue, the University instituted the Yearly Equitable Seating (YES) program and began requiring all Gamecock Club members to pay a seat license fee prior to purchasing season tickets. Mr. Lee did not care for the seat licensing fee and filed a declaratory judgment action. The trial court entered judgment for the University of South Carolina and the Gamecock Club, but yesterday, the South Carolina Supreme Court reversed the trial court, finding that the University breached its 1990 Agreement with Lee by requiring Lee to pay the YES fee in order to retain the opportunity to buy tickets.  The Court in reaching its conclusion found that:

 The language of the Agreement is clear.  As long as Lee performs his contractual obligations, the University must provide him with the “opportunity to purchase” season tickets to University athletic events as described in the Agreement. The Agreement contains no limitations or conditions on this contractual right. Thus, by requiring Lee to pay the seat license fee before purchasing season tickets, the University has attempted to impose an additional term that the parties did not agree upon. This unilateral attempt to modify the Agreement is impermissible.

Undoubtedly, as the University of South Carolina’s football program continues to improve, the school will look for ways reap the financial benefit.  While the Gamecocks continue to win on the field, it is may be time to abandon efforts to profit further from their lifetime members’ seats and parking spaces (as that approach appears to lead to litigation).  In order to pay for the ability to play Sandstorm more than the Vols play Rocky Top, South Carolina should increase the price of the official Head Ball Coach Visor.

Music Re-Recordings: Inferior or New Classics?

Most of us consider music to have reached its prime during the days of our youth.  Be it the 60′s, the 70′s, or even the 80′s, music of one’s formative years is arguably the best a person will ever hear.  Today’s music just doesn’t cut it.  Instead, we download the songs of yesteryear on iTunes or have our Sirius/XM radios perpetually set on the 90′s channel.  (Those were the days.). Others go so far as to purchase “as seen on TV” compilations like “We Love the 80′s” or, better yet, “Monster Ballads.”  After all, who could ever complain about having the world’s greatest music in one accessible CD?  Believe it or not, there is actually a proposed class of angry music-lovers who have filed a new lawsuit in a New Jersey federal court against Tutm Entertainment (d/b/a Drew’s Entertainment), the producer of the monumental “Hits of the 80′s” and “Hits of the 90′s” albums. Why is the proposed class so angry? According the the complaint filed by Celeste Farrell, the named plaintiff for the proposed class, purchasers of these albums aren’t getting the classics they grew to love but, rather, “poorly re-recorded songs.” Specifically,Farrell alleges:

Instead of conveying the source of the recording to allow the consumer to make an informed purchase decision, Tutm provides no information on the Albums’ cover or back label to indicate to the consumer that the songs are not the original songs.

We here at Abnormal Use have not listened to these albums, so we cannot comment on the quality of the re-recordings and cover versions contained on them. But, we don’t see how anyone could really complain about any recording of “Ice, Ice Baby,” whether it be the original or a new version? That said, when people fall in love with a song, they fall in love with a particular version of that song (usually the first version of it they ever heard which, of course, is typically the original version). Anything else might as well be “new music.” We can understand purchasers hoping to get the same when buying these compilation albums.

Whether Tutm’s conduct in selling these albums without a disclosure is fraudulent, however, is another question. Sure, Tutm may have known purchasers would expect the original recordings. But, they also may have thought people could be equally as excited about new recordings of the classics? After all, isn’t Motley Crue still touring? Whatever the case, we’re not sure that covers of “Jessie’s Girl” or “Take on Me” should be litigated in federal court.

In Employment Case, Texas Trial Court Holds That Retweets Are, In Fact, Endorsements As A Matter Of Law

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As you know, we here at Abnormal Use adore Twitter, and we often write about the perils of social media in litigation. That said, we were a bit unprepared for the trial court’s summary judgment ruling in Frost v. New Public News, L.L.C, No. 2014-CV-12052 (21st District Court of Harris County, Texas, April 1, 2014). In that case, a Harris County, Texas district court judge held that retweets are, in fact, endorsements as a matter of law.

Some background (from the court’s summary judgment order): Houstonian Elliott Frost served as the entertainment editor of The New Public News, one of those alternative news weeklies found in large metropolitan areas. As such, he reviewed films, authored record reviews, and generally commented upon the slings and arrows of the local and national entertainment industry. Just a few weeks ago, on Oscar night, when Academy Awards host Ellen Degeneres asked viewers to retweet her now infamous Hollywood selfie, Frost dutifully complied with the request from his official Twitter account. He later stated that he “only did so ironically, you know, because who still watches the Oscars in any other way?” The following day, the paper’s executive editor, Charles Cain, terminated Frost, noting that by retweeting Ellen’s selfie, he had endorsed it, thereby making a mockery of the paper’s “removed – and bemused – detachment from that which we cover.” Frost’s Twitter account was closely associated with and used to promote his work at The New Public News, and his Twitter biography identified him as the publication’s entertainment editor. However, the last sentence of his Twitter biography read: “Retweets ≠ endorsements.” See In re Application of the U.S. for an Order Pursuant to 18 U.S.C. |2703(d), 830 F.Supp.2d 114, 118 (E.D. Va. 2011) (“In addition to posting their own tweets, users may send messages to a single user (‘direct messages’) or repost other users’ tweets (‘retweet’)”).

For those who might not be familiar with Twitter, that caveat is invoked by Twitter users, primarily reporters, to preserve some semblance of journalistic objectivity.

Almost immediately after his firing, Frost retained an attorney and filed a lawsuit alleging wrongful termination in violation of public policy, intentional infliction of emotional distress, and the novel alienation of reputation cause of action (based on Frost’s belief that the paper’s characterizations of his actions had made him “seem uncool,” thereby depriving him of the benefits of his carefully constructed facade.). For its part, the defendant answered, asserting various affirmative defenses, but relying principally on the notion that Frost’s retweet was, in fact, an endorsement and inconsistent with the paper’s editorial philosophy. The parties submitted cross motions for summary judgment and a hearing was held early last week. (When asked about the great speed of this litigation, which went from the filing of a petition all the way to a summary judgment hearing in a matter of weeks, both parties replied that celerity was necessary to resolve the dispute before coverage of the twentieth anniversary of the death of Kurt Cobain could begin.).

In an affidavit submitted with his motion for summary judgment, Frost presented evidence of a storied career in journalism, which began a decade ago as a cub reporter for the Hill Valley Telegraph and a brief stint at the music desk of the New York Inquirer. He chronicled his long history of film and record reviews and noted that he always made certain to disdain a once subversive artist or director just at the precise moment he or she verged on mainstream success. Cain, in his own affidavit, noted that promoting the “commercial villains of Hollywood” via retweet was a “cardinal sin of the alt-newsweekly” and that the only commentary required of the Oscars this year was “the expression of woe at the death of Philip Seymour Hoffman.” Cain concluded: “When it comes to preserving our publications indie street cred, we simply cannot permit a managerial level employee to foster good will for or approval of the antics of mainstream Hollywood actors.” (Despite Cain’s affidavit testimony, Frost’s lawyer noted at the hearing that Cain is a big fan of “House of Cards,” featuring Kevin Spacey, who is prominently featured in the photograph which was the subject of the retweet in question. “[Cain] binge watched that show the second it was uploaded to Netflix,” Frost’s lawyer claimed.).

The trial court sided with the newspaper employer.  In its order granting summary judgment for the defendant, the trial court noted that the central issue in the case was the “status of the retweet.” Relying in part on Texas Rule of Evidence 801(e)(2), which provides that a statement is not hearsay if it is “offered against a party and is a statement which the party has manifested an adoption or belief in its truth,” the trial referenced, by analogy, the long tradition in the courts of finding that another’s statement was adopted by the declarant. He also turned to the plain meaning of the word “retweet,” and in so doing, examined the dictionary definitions of certain terms:

Webster’s Dictionary defines “tweet” as “a chirping noise,” while Dictionary.com tells us that the prefix “re-” “occur[s] originally in loanwords from Latin, [and is] used with the meaning ‘again’ or ‘again and again’ to indicate repetition . . . .” By retweeting the tweet of Ms. Degeneres, Plaintiff promoted her statement “again,” thereby adopting it as his own and rendering his purported disclaimer ineffective. Once Plaintiff formally adopted a statement which stood in stark contrast to the editorial mission of his employer, the Defendant was empowered to act and terminate his employment. Under the facts of this case, the termination was not, and could not be, in violation of Texas public policy. See Lovecraft v. Zuckerburg, 645 S.W.3d 173, 175 (Tex. App. – Austin 2011, pet. denied) (noting that once a Facebook user “likes” a status, comment, or photograph on Facebook, said user is estopped from contending that he or she dislikes it); In re: Friendster Litig., 567 F. Supp. 2d. 13 (D.S.C. 2004) ( “One is bound by one’s admissions on social media. Always.”); Cf. Appian Way, Co. v. Caecillius, Inc., 143 S.W.3d 521, 525 (Tex. App. – Houston [14th Dist.] 1997, no pet. h.) (noting that in cases involving the interpretation of Latin prefixes greater weight is always given to the party defending the claims at issue). As for Plaintiff’s argument that his Twitter biography rebutted any presumption of endorsement, the court need only look to the Texas Civil Practices & Remedies Code, which expressly states that any purported liability waiver containing the “≠” symbol is void under Texas law. See Tex. Civ. Prac & Rem. Code § 175.001, et. seq. Thus, we are forced to construe the Twitter biography as if there was no such attempt at waiver.

The Plaintiff has already announced his plan to appeal, and his attorney contends that they may petition the intermediate courts for a writ of mandamus to ensure that Frost returns to work and oversees any Cobain anniversary coverage.

The Plaintiff was represented by the Beaumont, Texas office of Goodman, Lieber, Kurtzberg & Holliway, L.L.P., while the defendant was represented by the Houston office of Gage Whitney Pace, L.L.P.

Under Armour and Nike Settle Trademark Infringement Lawsuit

Since we are in the midst of March Madness, we here at Abnormal Use take this opportunity to relay a recent apropos settlement involving two sports brand powerhouses. According to the Baltimore Sun, last month, Under Armour and Nike settled a trademark infringement lawsuit arising from Nike’s use of the certain phrasing in its advertising.  In its complaint filed early last year in federal district court in Maryland, Under Armour alleged that Nike launched an advertising campaign that appropriated “I Will” prominently and repeatedly, which suggests Under Armour’s longstanding use of its iconic “I Will” tagline for its similar performance products.  Under Armour claimed that Nike used slogans such as “I will finish what I started” and “I will sweat while they sleep” in various social media ads.  The company also complained that Nike used a variation of Under Armour’s phrase “protect this house” by using the Nike tag line “I will protect my home court.” As one might expect, the terms of the settlement were not revealed.  (The Sun quotes Under Armour as saying only: “The litigation has been resolved on a confidential and mutually agreeable basis.”). But one can only imagine the settlement amount was a drop in Nike’s proverbial bucket of revenue.  Quite frankly, when we here at Abnormal Use first got wind of the “I Will” dispute, we thought it was Under Armour’s, not Nike’s, use of the phrase that was causing such flack.  Why?  “I Will” is an appropriate and clever response to Nike’s universally known command “Just Do It.”

Friday Links

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Okay, so we’re going old school today with All-American Comics #62, published way, way back in December of 1944.  According to Wikipedia, All-American Comics was the brainchild of All-American Publications, a predecessor company of the more well known DC Comics. On the cover, we see the original Green Lantern presiding as a judge with gavel in hand while Doiby Dickles, a Green Lantern sidekick, is acting a prosecutor, apparently, although we’re not certain of the identity of the witness, presumably the defendant.

The Drug and Device Law blog doing Throwback Thursday is the best thing ever. See here.

The Hollywood, Esq. blog brings us this story: “Teller Wins Lawsuit Over Copied Magic Trick Performance.”

Heads up! Yesterday, the senior resident superior court judge of the Mecklenburg County, North Carolina superior court division issued the following administrative order:

In order to promote the efficient and timely disposition of matters appealed from the Clerk of Superior Court and to prevent the development of a backlog of pending appeals, the undersigned Senior Resident Superior Court Judge for the 26th Judicial District enters the following Order.

IT IS ORDERED that, in all appeals from decisions of the Office of the Clerk of Superior Court of Mecklenburg County, the appellant shall contact the Caseflow Management Division of the Trial Court Administrator’s Office of the 26th Judicial District not later than 30 days from the date of the appeal to schedule a hearing before a Superior Court Judge. A failure to comply with this Order shall result in a summary dismissal of the appeal, and the matter shall be remanded to Clerk of Superior Court.

Finally, we were saddened to hear the news of the recent death of character actor James Rebhorn. Two years ago, he kindly agreed to an interview with us on the occasion of the twentieth anniversary of the release of My Cousin Vinny, in which he appeared as an expert witness. You can read that interview here. In fact, The Guardian quoted a paragraph of our interview in its obituary of Rebhorn. Rest in peace.

Court of Appeals Puts Unnecessary Quotation Marks Around “Facebook”

Okay, so we don’t usually write about family law cases here at Abnormal Use, and it’s been a while since we wrote about events from the state of Nebraska. Yesterday, while perusing cases mentioning Facebook, we stumbled across In re Interest of A.W. & L.W., No. A-13-540 (Neb. Ct. App. Feb. 25, 2014), a recent case in which the court of appeals found “that the evidence clearly and convincingly established that termination of [the father’s] parental rights was warranted pursuant to [the relevant statute] and that termination was in [the children’s] best interests.” Yes, this is a case involving a father’s appeal of the trial court’s termination of his parental rights and the appellate court that affirmed that decision.

Chiefly, the case concerns the frequency of the father’s contacts with his children – or the lack thereof. This being the modern age, some of those contacts occurred via social media. Here’s some excerpts from the opinion itself:

After moving to Las Vegas, [the father] claimed that he attempted to maintain contact with his children through his uncle’s “Facebook” account. However, according to [the father], 2 weeks after he moved, [the mother] learned that [the father] had been using the uncle’s “Facebook” account and blocked the uncle from her and the children’s “Facebook” accounts. [The father] made no other attempts to contact his children during the time that he resided in Las Vegas until he moved to Larchwood, Iowa, in 2012, at which point he had two visits with his children: a 2–hour supervised visit on March 31, 2012, and a 1 1/2–hour therapeutic visit on January 4, 2013, supervised by [another adult]. [The father] did not see his children after the January 4 visit, despite his requests to have visits.

[The father] claimed that he did not contact his children while he was in Las Vegas after [the mother] blocked his uncle’s “Facebook” account because he thought that [the mother] had a protection order against him and he would have to contact his children through her. During the time that [the father] was in Las Vegas, [the mother] did not receive any communications from [the father], his friends, or relatives regarding arranging visitation with the children, even though [the father] had [the mother's] e-mail address which was known to [the father] prior to his move to Las Vegas and remained the same. Further, [the father] did not send the children any letters, cards, or presents during that timeframe.

[The father] first contends that the county court erred in finding that he had abandoned his children pursuant to § 43–292(1). He contends that he did not abandon his children for the relevant 6 months immediately prior to [the mother's] filing of the complaint for modification, which requested termination of his parental rights, because he continued to pay child support and attempted to contact his children through “Facebook” during that 6–month time period.

[The father] admits his efforts at maintaining contact with his children from November 2010 until March 2012 were minimal. He testified that he attempted to contact [the children] through his uncle’s “Facebook” account for about 2 weeks after moving to Las Vegas, but then he claimed that [the mother] discovered he was using the “Facebook” account and blocked his uncle from her account and the children’s accounts. [The father] admits that after the initial 2 weeks that he was in Las Vegas, he did not contact the children but claimed that he did not make additional attempts to contact his children for 1 year because he believed that [the mother] had a protection order filed against him.

Nothing extraordinary there, right? Certainly, it’s not unusual for references to Facebook to make their way into litigation, particularly family law cases, where the parent’s everyday decisions and lifestyle may be at issue. Most of us communicate using the Internet generally, or social media specifically, and a case analyzing one’s communications will likely stray into Facebook, Twitter, and the like.

But here’s the thing: It’s 2014. Why is the court of appeals placing scare quotes around the word Facebook? Isn’t Facebook such a prevalent and prominent website that we can now refer to it without quotation marks? By our count, the court mentions Facebook seven times in the opinion, and each time it does so, it places unnecessary quotation marks around the company name. Why?