Just jumping in here, so excuse me if I missed something in the exchange. It's pretty dense up there...
But I wanted to say: the problem I see with using the above Nimmer article in relation to the ICE seizures is that to be truely analogous this case not would the F.B.I. had to have seized the "machinery" of the companies against whom they had probable cause, but also all of the "machinery", "inventory", and "business records" of every other legitimate business (for whom no probable cause was found)that had the misfortune to be located in the same ZIP code.
I have been very very broke in my life. I have lived through times when I could only eat one "meal" a day and that meal was a day old donut or a bag of popcorn.
I knew people who worked in the "boiler rooms". They made phone calls and bullied scared old people into sending them their life's savings. Of course they offered me a job with them. Of course they told me it would be easy and I would make a lot of money.
I did not take it. No matter how broke or hungry I was I would never steal a little old ladies life savings.
Trust me when I tell you that I would also never take a job that supported an unconstitutional police state.
I feel for you, but hunger should never be used to make people do morally wrong things.
"Nobody took your bag from you or forced you into a scanner"
Suggest you look into this: http://bit.ly/fVaHT7
"We road (sic) the train from Deland, FL to Savannah, GA.
When we got off in Savannah, there were TSA agents out on the platform that told us to go inside to get our (checked) luggage...We told them we just got OFF the train. They said they didn't care, that if we entered the building, we were subject to search."
These people did not fly on a commercial airline.
Or this: http://bit.ly/cDheKL
"The Transportation Security Administration (TSA) is warning that any would-be commercial airline passenger who enters an airport checkpoint and then refuses to undergo the method of inspection designated by TSA will not be allowed to fly and also will not be permitted to simply leave the airport"
So if you go to the airport in good faith, and only learn of the porno scanner and freedom grope once you get there, you are not legally allowed to back out slowly.
Or this: http://bit.ly/dw9XOu
"Okay, so now they were detaining me as I was leaving the airport facility"
Or this: http://bit.ly/aDLTOu
"One officer examines the child's shirt before touching his lower body during the search as his helpless father watches at Salt Lake City International Airport"
Or this: http://bit.ly/gvC1fN
"I was informed that opting out was not an option and that I needed to leave the airport"
I could just go on and on and on.
If you *really* do not want to get searched, move to Canada.
> And more importantly, even if such a law were to pass, it would be completely unenforceable
Perhaps you mean: would lose on appeal after much sound and fury.
Any police force can pretty much enforce whatever law it wants to and is unstoppable unless some armed force (private citizens or some other police force) wants to get into an armed conflict with them.
Just which police force do you think would draw their guns to prevent NH State Troopers from putting a TSA agent in handcuffs? It does not have to even be at the airport, these agents live in NH, they can't stay at the airport 24/7...
No... if this law gets passed, and NH has the political will for a test trial, you better believe it will get enforced.
"My point was that I seriously doubt Lofgren knew that generally the U.S. is immune to defamation "
Why do you seriously doubt this? Do you know something about Ms. Lofgren's abilities as a lawyer that I do not?
All I know is that she graduated J.D. cum laude, and among many other things a staff assistant to Congressman Don Edwards, in whose office she worked on, among other projects, the attempted impeachment of Richard Nixon. So I assume she would have studied United States v. Nixon where Nixon claimed immunity from rule of law regarding his disinclination to turn over the Watergate tapes. In this case the Supreme Court rejected Nixon's claim to "an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."
What I am saying is that Ms. Lofgren is likely to have studied the question of immunity of public officials from prosecution.
I am not sure of the time-line, but I suspect she also was familiar with U.S. v. Isaacs, wherein the 7th. Circuit Court of Appeals upheld the conviction of former Gov. Otto Kerner, stating in their judgment that "there is no such legal theory as ďabsolute immunity from criminal prosecution of a public official recognized by the courts in the United States."
So you may wish to reconsider, or at suspend, your opinions on both Ms. Lofgren and the absolute immunity of public officials from prosecution.
I will simply point out that any fool can use Westlaw (and I count myself amongst those fools) but a rigorous legal analysis requires more than just one citation.
The Westfall Act and the various provisions of 28 U.S.C. would also at first glance seem to preclude any award of damages to Steve Jackson Games (Steve Jackson Games, Inc. v. United States Secret Service) and yet Jackson prevailed with the District court awarding $50k in damages and $250k in legal fees no less. This award withstood appeal,and so we must conclude that immunity under 28 U.S.C. is not unlimited and may not be assumed i all cases.
It is also worth pointing out (and I will below) that the raid and seizures on Jackson were conduced under the justification of preventing the dissemination (publication) of a "stolen" document from Bell South. Sound at all familiar?
"There is also nothing in there that specifically forbids it"
This will ultimately be for the Supreme Court to decide. However, the assertion of Golan et al. is that the First Amendment specifically forbids it through the "Congress will make no law" wording.
As to whether "Times" means multiple times r not, again that is for the Supreme Court to decide.
The Anonymous Coward asked for someone to spell out - without using FUD - how this lawsuit has any bearing on the First Amendment. I attempted to do that. I was not attempting to argue the merits of the case. I am not a constitutional lawyer.
I'll give it a shot (making the First Amendment connection):
The reasoning needs to built up one block at a time to be clear, so please bear with me.
Let's start by remembering that we have a legal hierarchy. The Constitution is the ultimate document. All laws made by Congress are subordinate to the Constitution, and one of the (if not *the*) prime purposes of the Supreme court is act as a check and balance on Congress.
The Supreme Court has the responsibility and obligation to evaluate laws if a compelling case is made that the law is is not consistent with the Constitution, and they have the power to rule any law unconstitutional and therefore invalid.
Article 1 Section 8 of the constitution allows Congress to "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
The First Amendment guarantees every American citizen the right to perform, publish, and distribute the speech of their choice.
Importantly: there is nothing in the fist amendment that specifies that the publisher must be the *author* of the speech the choose to publish. Nor is there there any mention of ownership of rights of creative works.
The Golan challenge says that the authors of the writings in question already had their "exclusive Right" for the "limited Time" and that once that limited time had passed the First Amendment guaranteed any American Citizen the Constitutional right to publish those writings.
It maintains that the Uruguay Round Agreements Act (a law, passed by Congress, and therefore subordinate to the Constitution) abridges the Constitutional right guaranteed in the First Amendment, and is not valid under Article 1 Section 8 because that Constitutional provision had been satisfied, and that Section 1 Article 8 in no way shape or form authorizes congress to re-assign exclusive rights to something that is already in the public domain.
So to summarize:
As a law, the Uruguay Round Agreements Act must not abridge any Constitutionally guaranteed right. Golan et al. say that it does abridge their Fist Amendment right to publish or perform any-dam-thing that they feel like publishing or performing whether they wrote it or not. and that there is nothing in the Constitution that overrides their right (particularly not Article 1 Section 8) therefore that part of the Uruguay Round Agreements Act is unconstitutional and therefore invalid.
Actually, I have to add my voice to those who think that Hogan is within bounds on this one.
I followed the link. I tried to find the commercial (and didn't) but with the information in hand, it seems to me that he was reasonably concerned about an implied endorsement.
This isn't a fan film here. This is a commercial. So was his successful case against Post Foods. In his shoes I would not want them exploiting my reputation either. Not just for the money, but because I would want to choose my endorsements.
A quick YouTube search shows over 100k hits for Hulk Hogan, over 500 of which seem to be fan films using action figures. We have not heard about him trying to get any of these removed.
He does not seem out of control, or rabid or anything like that. He seems to me to be measured and reasonable. The reporting at Hollywood Reporter however... maybe not so much.