Candeub and Volokh on Section 230 and Removing "Otherwise Objectionable" Content From Websites

 At Volokh Conspiracy, Eugene Volokh flags a brief article that he coauthored with Adam Candeub that was recently published in the Journal of Free Speech Law. Here's the abstract:

[Communications Decency Act] Section 230(c)(2) immunizes platforms' decisions to block material that they "consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." The ejusdem generis interpretive canon suggests that "otherwise objectionable" should be read "to embrace only objects similar in nature to those objects enumerated by the preceding specific words."

In this instance, the similarity is that all those words refer to material that was traditionally viewed as regulable in electronic communications media—and was indeed regulated by the Communications Decency Act of 1996, as part of which § 230 was enacted. And restrictions on speech on "the basis of its political or religious content" were not viewed as generally permissible, even in electronic communications.

Candeub and Volokh argue that "otherwise objectionable" material should not be interpreted as a catch all category, but should instead be construed in light of the other terms in Section 230(c)(2)'s list of materials. As a result, they urge that Section 230(c)(2) be read as immunizing Internet companies and websites from restricting "obscene, lewd, lascivious, filthy, excessively violent, or harassing communications," and that the statute not be read to immunize these actors from the removal of content that is objectionable based on its political content.

I think there are several problems with this argument. With the caveats that these are my initial impressions and that it's been a while since I've done intensive research into Section 230, these concerns are listed below. I've tried to list my objections in order of most technical and specific first, followed by broader points.

First, I think the ejusdem generis interpretive canon has less power in the particular context here because Section 230(c)(2) immunizes platforms' decisions to block "otherwise objectionable" content rather than "other objectionable" content. The latter wording would be a clear example of specific terms followed by a general term, and would be in line with most examples in Candeub's and Volokh's article which involve statutes listing examples, followed by "other" things. But the way the statute is actually worded includes the term, "otherwise," which suggests material that is objectionable in ways that are distinct from the preceding examples. Candeub and Volokh do not address this, and their esjudem generis argument therefore seems stronger than the language of the statute warrants, as it implicitly reads the statute as prohibiting "other objectionable" content rather than "otherwise objectionable" content.

Second, this reading takes an overly narrow view of the purpose of the provision it analyzes and the Stratton Oakmont, Inc. v. Prodigy Services Co. case that played a significant role in prompting the inclusion of the provision. In Stratton Oakmont, the plaintiff sued a website message board for defamation based on several allegedly defamatory posts from message board users. The plaintiff alleged that the message board was liable because it exercised editorial control over the message board, noting that the site set forth detailed content guidelines that discourage the posting of "insulting" notes, as well as notes that "harass other members or are deemed to be in bad taste or grossly repugnant to community standards, or are deemed harmful to maintaining a harmonious online community" stating that such content would be removed when brought to the site's attention. The court cited this choice to engage in this editorial control as opening up the site to greater liability than other sites that did not take such measures. 

Congress was aware of this case when it passed Section 230, which Candeub and Volokh recognize. But they only focus on remarks from legislators who cite the blocking of material that is not "family-friendly," which (sort of) lines up with their restrictive reading of the statute. But this narrow focus ignores the extent of editorial restrictions at play in Stratton Oakmont, which included guidelines for the removal of "insulting," [non]-harmonious," and "bad taste" comments. It also suggests a narrow view of "family friendly," content, which may well exclude truthful, politically significant content such as images and discussions of war or terrorism, litigation and legislation over sexual privacy and abortion, and other such political content. Stratton Oakmont illustrated the danger of any sort of editorial policy giving rise to heightened liability, and Section 230(c)(2) was the response. Candeub and Volokh's narrow reading is inconsistent with this broad concern that prompted the immunity provision.

Third, a reading of the statute that removes immunity concerning the removal of political content while immunizing the removal of other content would run into significant First Amendment problems. Those who run websites or forums may have their own political preferences, and may moderate content based on these preferences. Limiting this ability would infringe on those providers' First Amendment rights--an aspect of online content moderation that is often ignored by Section 230 critics (and misinterpreters) who prefer to focus only on the purported rights of users.

To Candeub's and Volokh's credit, they recognize that the First Amendment may be relevant, but set it aside for the purpose of their article. Because of this, though, the article's analysis is in a misleading vacuum.  What is the point of this discussion about ejusdem generis if the First Amendment will ultimately require a different reading? Indeed, the First Amendment may well be relevant to discussions of interpretive canons: to the extent that the narrow reading of "otherwise objectionable" content leads to First Amendment problems, the canon of constitutional avoidance would weigh in favor of an expansive interpretation that avoids this issue.

These are my initial concerns with the conclusions in the article, but I'll be interested in seeing what others have to say--particularly those who are more involved in Section 230 research and litigation than me.

READ MORE - Candeub and Volokh on Section 230 and Removing "Otherwise Objectionable" Content From Websites

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Iowa's Law Targeting "Critical Race Theory"

A few weeks ago, Iowa's governor signed a law that she claimed would address the teaching of "critical race theory." Shortly after she signed the bill into law, the Des Moines Register reported:

Iowa Gov. Kim Reynolds signed a new law that she said will target the teaching of critical race theory and other concepts in government diversity trainings and classroom curriculum.

“Critical Race Theory is about labels and stereotypes, not education. It teaches kids that we should judge others based on race, gender or sexual identity, rather than the content of someone’s character,” Reynolds said in a statement. “I am proud to have worked with the legislature to promote learning, not discriminatory indoctrination.”

Critical race theory, a decades-old legal theory that examines how slavery's legacy continues to influence American society, is not specifically named in the new legislation. But the law would ban teaching certain concepts, such as that the U.S. or Iowa is systemically racist.

The new law, House File 802, goes into effect July 1.

Reynolds' signing comes as other Republicans across the country have said they want to eliminate teaching critical race theory and associated concepts from classrooms. Iowa is among more than a dozen states that have considered legislation this year aimed at eliminating similar concepts from classroom curriculum.

That same Register article notes that Iowa's law is based "nearly word for word" on an executive order issued by the Trump Administration (that is now repealed) that banned certain forms of diversity training for federal contractors. The Register's prior reporting on that order is here, the order itself is here.

There are a number of glaring practical problems with the law, which appear to be based, in part, on the bill's origin in a ban on training for contractors. For one, the law contains no penalty or disciplinary provisions, so it is unclear what would result from a violation of the law. The bill also includes prohibitions on certain types of training, but also includes restrictions for school curricula. While the restrictions on training are somewhat explicit, the restrictions on school districts and their curricula are woefully vague.

These defects, and others, are addressed in the remainder of this post, which walks through the law and tries to make sense of what is being restricted.

The Law's Definition of "Scapegoating," "Stereotyping," and Specific Defined Concepts

To start, the law defines a few key phrases:

Section 261H.7(1)(a) defines "Race or sex scapegoating" as "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex, or claiming that, consciously or unconsciously, and by virtue of persons' race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

261H.7(1)(b) defines "Race or sex stereotyping" as "ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of the individual's race or sex."

Before moving on to other defined terms, a few thoughts on these definitions.

The "scapegoating" notion is more limited than it may first appear, because it only addresses instances where fault, blame, or bias is attributed to a particular race or sex, or members of a race or sex, because of that person's race or sex. This includes the portion of the definition that addresses conscious and unconscious bias--the definition only applies if that bias is because of the biased person's race or sex. While I am not an expert on the subject, it is my understanding that most discussions of bias often focus on biases being prompted by those being targeted or evaluated, rather than by the holder of the bias. This means that people of all races may have a particular, stereotyped view of a particular race--for example, both White and African-American police officers may hold an unconscious bias against African-American suspects and think that they are more likely to be dangerous. Because such a bias is not dependent on the race of the bias-holder, it would not be encompassed by the definition in the law.

The section on Race or sex stereotyping includes the notion that "privileges" cannot be ascribed to an individual because of their race or sex. This appears to apply to any notion of white privilege, male privilege, or similar concepts. If "Race or sex stereotyping" is prohibited, such a prohibition would prevent teaching or training that teaches people to recognize these types of privilege.

The law then addresses, "Specific defined concepts," which includes:

(1) That one race or sex is inherently superior to another race or sex.

(2) That the United States of America and the state of Iowa are fundamentally or systemically racist or sexist.

(3) That an individual, solely because of the individual's race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

(4) That an individual should be discriminated against or receive adverse treatment solely or partly because of the individual's race or sex.

(5) That members of one race or sex cannot and should not attempt to treat others without respect to race or sex.

(6) That an individual's moral character is necessarily determined by the individual's race or sex.

(7) That an individual, by virtue of the individual's race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.

(8) That any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of that individual's race or sex.

(9) That meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

(10) Any other form of race or sex scapegoating or any other form of race or sex stereotyping.

I haven't dug into the history of this bill or of the Trump Order on which it was based, so I am not sure where this list of defined concepts comes from. There is a bit of overlap with tenets of critical race theory (again, based on my limited knowledge and exposure of it), but this list is largely imprecise, all over the map, and prone to abuse.

To start, the terms "racist" and "sexist" aren't defined. It's therefore unclear whether those notions refer to conscious, intentional racism and sexism, unconscious bias, or disparate impacts of policies and practices that result from historic racism that is no longer as overt (or legally sanctioned) as it once was. For example, concept number 9--the notion that "meritocracy" is racist or sexist--could be implicated by training or teaching that points out that standardized tests tend to favor more privileged white people. While those who write these tests and use these tests in admissions practices likely aren't sitting down and saying "I can't wait to write/evaluate this test in a manner that disadvantages racial minorities!" the imprecise and undefined wording of the statute seems to go beyond this, and prohibit discussion of disparate impacts based on race or sex.

This causes problems for other concepts on the list, including number 2, which addresses fundamental and systemic racism of the United States and the state of Iowa. Perhaps those who hear charges of systemic racism think that critics are accusing most or all people in government of being intentionally biased against particular groups. But such explicit, biased actions are often hidden behind racially-coded proxies (e.g., heightening police presence in "high crime" areas; discussions of "inner cities," and many more examples). Systemic racism may also manifest through facially neutral laws or policies that end up having a disparate impact as a result of historic power structures and discrimination. All of this may be characterized as systemic racism, and all of this may be encompassed by this concept--which is a shame, because there is a great deal of truth behind these concerns.

Affirmative action may also be covered by this list to the extent that its opponents describe it as "reverse racism." If affirmative action is framed as taking away opportunities for, say, white people in favor of racial minorities, it can easily fall under concept number 4, which prohibits adverse treatment because of race or sex.

Number 8 is also particularly concerning: while it is limited to the concept that people "should" feel discomfort of guilt because of their race or sex, it will likely be implemented to prohibit the teaching of any concept that happens to cause such discomfort in members of the audience. The teaching itself may not demand that those in the audience feel discomfort or shame--it may instead call on them to view the world from a different perspective, recognize their privilege, and consider how their seemingly benign conduct may cause greater harm than they realize. Many people confronted with these notions will likely feel uncomfortable, though, which will likely lead them to accuse the teacher of asserting that they should feel uncomfortable. This concept may therefore be used to ban the teaching or training of any concept that happens to cause discomfort in certain audience members and creates a significant potential for abuse.

What Practices Does the Law Affect?

While the law devotes a lot of space to defining stereotyping, scapegoating, and specific concepts, the scope of the law appears, at first, to be limited. Section 25A.1 applies to training by and for members of governmental entities or agencies. It requires that the heads of those agencies:

ensure that any mandatory staff training provided by an employee of an agency, governmental entity, or governmental subdivision, or by a contractor hired by the agency, governmental entity, or governmental subdivision does not teach, advocate, encourage, promote, or act upon stereotyping, scapegoating, or prejudice toward others on the basis of demographic group membership or identity.

I have no idea what this means, primarily because it uses only portions of terms defined at length elsewhere in the law. This provision prohibits the teaching, advocating, encouraging, or promoting of "stereotyping" and "scapegoating." First, this does not explicitly prohibit the teaching of the "Specific defined concepts," nor does it even explicitly prohibit "Race or sex stereotyping" or "Race or sex scapegoating"--as it only uses the (undefined) terms, "stereotyping" and "scapegoating." Are those terms broader than the defined terms? Do they encompass the same behaviors, but with applicability to demographics beyond race and sex? It's unclear. Second, the broad "encouraging" and "promoting" terms may encompass a far broader set of behaviors than actually teaching the specific defined concepts or notions that fall under those defined Race or sex stereotyping/scapegoating. This blog post, for instance, by criticizing the definitions and breadth of the specific defined concepts, may be viewed as "encouraging" or "promoting" those concepts. These imprecise terms will likely result in overcautious behavior by those arranging for training, resulting in the unnecessary chilling of speech (for more background on the problem of vagueness in the First Amendment context, see here).

This section tries to save itself with a list of items it purports not to do, including preventing agencies and entities from promoting diversity and prohibiting a curriculum that teaches sexism, slavery, racial oppression and segregation, and related topics. But the failure to define the scope of what is prohibited and what is not prohibited leaves everything vague--are the restrictions supposed to be read broadly? Are the exceptions supposed to be read broadly? If there is an apparent conflict, which provision wins out?

These problems, which apply to training by and for members of governmental entities or agencies, apply to the law's restrictions on school districts as well. Section 279.74 includes the same vague language--prohibiting any curriculum or student training that "advocate[s], encourage[s], promote[s], or act[s] upon specific stereotyping and scapegoating toward others on the basis of demographic group membership or identity." Again, none of these terms are defined, and the broad "encourage" and "promote" language urges a broad reading that will result in restricted curricula. While the law does not explicitly say that teachers are prohibited from teaching the specific defined concepts, I'd be willing to bet that those who drafted the law would think that doing so would "encourage" or "promote" stereotyping or scapegoating.

The only restriction in the law that mentions the defined terms is the restriction on "each public institution of higher education," from allowing training that happens to "teach, advocate, act upon, or promote specific defined concepts." Why the section about higher educational institutions is the only one that explicitly mentions the "specific defined concepts" is unclear.

This law purports to take on "Critical Race Theory," a notion that the bill's proponents almost certainly do not understand. It takes an imprecise, scattershot approach at banning the teaching and training of various concepts. Through its use of broad notions of "encouraging" or "promoting" undefined notions of "stereotyping" and "scapegoating," the law will almost certainly chill a great deal of speech--including the teaching of facts and well-accepted concepts that happen to make certain audience members uncomfortable. I won't get into the law's constitutional implications and whether it would survive a challenge, as this post is long enough as it is, but it's a shame to see the passage of such a shortsighted and poorly written law.

READ MORE - Iowa's Law Targeting "Critical Race Theory"

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Impossibility, What

If you're looking for inspiration in the California Civil Code this weekend, look no further than section 1597:

IMPOSSIBILITY, WHAT. Everything is deemed possible except that which is impossible in the nature of things.

The first two words of the statute appear to have been dictated by someone who had expected an impossible contract to be performed, but just learned that the entire contract was void under California law.

I prefer the statute standing alone with no further explanation. But readers interested in learning more can start by knowing that it is not legally impossible to build and operate a sawmill, while ensuring that no sawdust or debris from the mill fall into a stream. Peterson v. Hubbard, 9 P. 106, 107 (1885). It is, however, impossible to grade and level a parcel of land on which there are many trees without removing some of those trees. Greathouse v. Daleno, 57 Cal. App. 187, 190 (1922).

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North Dakota's Maxims of Jurisprudence

A while back, I blogged about California's and Montana's maxims of jurisprudence. These are collections of statutes, or subsections of statutes, that set forth various maxims, canons of construction, or presumptions to aid in the interpretation and application of the law. Typically, the text accompanying the maxims notes that they are intended to aid in the just application of laws, and do not qualify any existing laws.

As a result of another weekend spent inside, I learned that North Dakota also has a statute setting forth a similar list of maxims. North Dakota Century Code § 31-11-05 sets forth North Dakota's maxims of jurisprudence:

The maxims of jurisprudence set forth in this section are not intended to qualify any of the provisions of the laws of this state, but to aid in their just application: 

1. When the reason of a rule ceases so should the rule itself. 

2. When the reason is the same the rule should be the same. 

3. A person must not change that person's purpose to the injury of another. 

4. Anyone may waive the advantage of a law intended solely for that person's benefit, but a law established for a public reason cannot be contravened by a private agreement. 

5. One must so use one's own rights as not to infringe upon the rights of another. 

6. One who consents to an act is not wronged by it. 

7. Acquiescence in error takes away the right of objecting to it. 

8. A person cannot take advantage of that person's own wrong. 

9. A person who fraudulently has dispossessed himself or herself of a thing may be treated as if the person still had possession. 

10. A person who can and does not forbid that which is done on that person's behalf is deemed to have bidden it. 

11. No one should suffer by the act of another. 

12. One who takes the benefit must bear the burden. 

13. One who grants a thing is presumed to grant also whatever is essential to its use. 

14. For every wrong there is a remedy. 

15. Between those who are equally in the right or equally in the wrong the law does not interpose. 

16. Between rights otherwise equal the earliest is preferred. 

17. No person is responsible for that which no person can control. 

18. The law helps the vigilant before those who sleep on their rights. 

19. The law respects form less than substance. 

20. That which ought to have been done is to be regarded as done in favor of one to whom and against one from whom performance is due. 

21. That which does not appear to exist is to be regarded as if it did not exist. 

22. The law never requires impossibilities. 

23. The law neither does nor requires idle acts. 

24. The law disregards trifles. 

25. Particular expressions qualify those which are general. 

26. Contemporaneous exposition is in general the best. 

27. The greater contains the less. 

28. Superfluity does not vitiate. 

29. That is certain which can be made certain. 

30. Time does not confirm a void act. 

31. The incident follows the principal, not the principal the incident. 

32. An interpretation which gives effect is preferred to one which makes void. 

33. Interpretation must be reasonable. 

34. When one of two innocent persons must suffer by the act of a third, the one by whose negligence it happened must be the sufferer.

North Dakota also has two other statutes (both accessible at the link above) which set forth conclusive and disputable presumptions. Section 31-11-03 is the list of forty disputable presumptions which contains several familiar concepts such as: "That a person is innocent of a crime or wrong" (subsection (1)); "That higher evidence would be adverse if inferior is produced" (subsection (6)); and "That a printed and published book purporting to contain reports of cases adjudged in the tribunals of the tate or county where the book is published contains correct reports of such cases. (subsection (34)).  The list also contains some presumptions that the familiar reader will recognize from other states' lists of maxims of jurisprudence, such as: "That Private transactions have been fair and regular" (subsection (19)); "That things have happened according to the ordinary course of nature and the ordinary habits of life" (subsection (28)); That a thing once found to exist continues as long as is usual with things of that nature" (subsection (31)); and "That the law has been obeyed." (subsection 32)).

These maxims are virtually identical to most of California's maxims of jurisprudence, and are even listed in the same order.  There are some minor changes in the wording, primarily changes that make North Dakota's list gender neutral.  North Dakota's list overlaps with California Civil Code sections 3509 through 3543.  Missing from North Dakota's list are the following California sections:

3545. Private transactions are fair and regular.

3546. Things happen according to the ordinary course of nature and the ordinary habits of life.

3547. A thing continues to exist as long as is usual with things of that nature.

3548. The law has been obeyed.

As noted above, all of these missing maxims are included in North Dakota's list of forty disputable presumptions.

The statutes appear to be cited with relative frequency--often in cases involving equitable claims or defenses, such as equitable estoppel or the defense of unclean hands.  While a body of case law exists in support of these defenses, the statutes appear to provide a quick, go-to resource for a simple statement of the rule being applied. But as noted in the statute itself, the maxims have little independent force beyond that which is already set forth in statute or precedent.

READ MORE - North Dakota's Maxims of Jurisprudence

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Montclair Passes Broad Ordinance to Combat "Distracted Walking"

The city of Montclair in Southern California recently passed an ordinance that bans crossing the street while talking on the phone, looking at the screen of an electronic device, or wearing headphones or earbuds on both ears (regardless of whether they are playing music).

Many outlets have reported on this ordinance. I learned about it this morning from a teaser for a local public radio report that you can find here. Illustrious publications such as the LA Times reported on the ordinance. Local outlets as well report on it here and here.

Because I'm a lawyer with a blog and not a "journalist," I'm going to depart from the standard practice that all of these reports have in common, which is to fail to provide a link to the text of the ordinance. Here it is. You're welcome. Here, also, are the minutes for the December 4, 2017 meeting where this Ordinance was approved.  The minutes contained the ordinance number (17-791), which finally led me to the text. (Two links to the text in one post. I'm out of control.) 

To make things even crazier, here's (most of) the text of the municipal code sections that the ordinance added to the Montclair Municipal Code (and which became effective on January 3, 2018):

8.02.010. Definitions. 
As used in this Title, the following definitions shall apply. For purposes of Title 8, these definitions shall supersede any other definitions of the same terms elsewhere in this Code.  

Emergency Responders include, but are not limited to, public safety officers of either a municipal or county police department or fire department, emergency medical technicians, paramedics, private ambulance service responders, emergency management workers, and federal and state law enforcement and fire service officers on duty and responding to an emergency service request.  

Mobile Electronic Device means any handheld, head- or body-mounted, or portable electronic equipment capable of providing wireless and/or data communication between two or more persons or a device for providing amusement, including but not limited to a cellular phone, smart phone, text messaging device, paging device, personal digital assistant, laptop computer, video game, video/audio player, digital photographic device, or any other similar electronic device. 

Pedestrian means a person who is afoot or who is using any of the following: (1) a means of conveyance propelled by human power other than a bicycle; or (2) an electric personal assistive mobility device.  

Personal Audio Equipment means any device placed in, on or around a person's ears capable of providing an audible sound, including but not limited to headphones or ear buds.  

Viewing means looking in the direction of the screen of a mobile electronic device.  

Chapter 8.28 PEDESTRIANS  

8.28.020. Pedestrian Use of Mobile Electronic Devices.  

A. No pedestrian shall cross a street or highway while engaged in a phone call, viewing a mobile electronic device or with both ears covered or obstructed by personal audio equipment.  

B. Upon presenting evidence, it is an affirmative defense to any citation for a violation of subsection (A) that the cited person was engaged in, or making, a "911" emergency communication with a mobile electronic device.  

C. Emergency responders viewing a mobile electronic device, or whose ears are covered or obstructed by audio equipment, while in the performance and scope of his or her official duties are exempt from subsection (A).  

D. Persons with medically prescribed hearing aides [sic] are exempt from subsection (A).  

E. Any person who violates any provision of this Chapter is guilty of an infraction violation punishable in accordance with Chapter 1 .1 2 of Title 1 of this Code.

A few things.

Montclair City Manager Edwin Edward Starr said that he wanted to address "distracted walking" in the city, and that he eventually found Honolulu's distracted walking ordinance which was passed in 2017. (For the record, the LA Times did not link to the text of Honolulu's ordinance, but the Daily Bulletin did).

I too had heard of Honolulu's ordinance, which I blogged about here. I concluded that while Honolulu's ordinance could give rise to some strange situations and maybe abuse of discretion in its enforcement, it was narrow enough that these problems either would not arise, or at least only have a minimal negative effect. Starr claims that he "took cues" from the Honolulu ordinance, but it is unclear what this means, as Montclair's ordinance prohibits far more conduct than Honolulu's ordinance.

Honolulu banned looking at the screen of an electric device while crossing the street. This makes sense because if a pedestrian is looking at the screen, they are not looking elsewhere -- such as to either side to ensure that no cars are coming, or ahead to see if the "Walk" sign is indeed lit. Montclair, on the other hand, bans looking at screens, but also bans talking on phones and having headphones on both ears while crossing the street. These activities may distract pedestrians to a certain degree, but they at least involve circumstances where the pedestrian not necessarily looking at the screen, and therefore far less likely to be blindsided by a car or to fall into a pothole.

Not Montclair's ordinance, however.  Montclairs broad ban means that anyone who is jogging while listening to music must now remove their headphones before crossing a street. The ordinance does not defined "engaged in a phone call," so it is not clear if simply putting a phone down by one's side before crossing the road is fine, as the phone is still "engaged" in that call. The safest bet would be to hang up your phone while crossing the street, so good luck if you are on the phone asking for directions to anywhere in Montclair.

While Starr and his staff who drafted the ordinance attempted to curtail its foolish overreach to exempt people with hearing aids from the ban's gratuitous scope, they even failed at this.  The ordinance states that people with medically prescribed "hearing aides" are exempt from the ban.  This apparently refers to the rare circumstance in which a doctor decides to address a patient's hearing loss by prescribing two or more assistants to follow the hard-of-hearing person around and yell any words that the person may not have heard, or scream at the person to alert them to quiet noises that may otherwise be missed. I think it would have been better had they exempted people with "hearing aids," but I'm not the municipal-code-drafter.

If Montclair had copied and pasted Honolulu's ordinance, that would have been fine. But the ordinance that Montclair passed prohibits a far greater range of conduct, which could give rise to selective enforcement of the law. After all, if the number of people who violate the ordinance is far greater than the number who may be practically cited, it falls on law enforcement to decide when to enforce it and against whom the ordinance should be enforced. This makes it all the more likely that the law will be enforced along racial or class-based lines.

"But it's only a $100 fine!" a supporter of the ordinance may say. To which I respond: $100 is a significant amount for some, these penalties could add up since they prohibit such a routine activity, and fines are often accompanied by various court and administrative fees that expand the amount that people end up needing to pay.

"But the city is going to put 'stencils' on every crosswalk corner warning people not to use phones!" a supporter may argue. To which I respond: the sign itself should be enough to alert people, removing the need for an ordinance, and the city's plan to put up "decals depicting a no-cellphone symbol below the words: 'Don't be Distracted'" is misleading because those decals imply that only cellphone use is prohibited when, in fact, the ordinance prohibits far more.

Honolulu's ordinance banning looking at screens while crossing the street was fine, if perhaps unnecessary. Montclair's ordinance is sloppy, overly-broad, and should never have been passed.

READ MORE - Montclair Passes Broad Ordinance to Combat "Distracted Walking"

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Honolulu Bans Looking at Cell Phones While Crossing The Street

NPR reports here and here on a recent ordinance passed by the City and County of Honolulu that prohibits people from "viewing" "mobile electronic devices" while crossing a street or highway. From NPR:

Police in Honolulu on Wednesday will begin writing tickets for people who get distracted by their cellphones while walking in a crosswalk. Honolulu is the first major city in the country to pass such a law, citing a high rate of pedestrians being hit in crosswalks.

"Starting today, texting while walking in a crosswalk can get you a ticket," Hawaii Public Radio's Bill Dorman reports for our Newscast unit. "In fact, a downward glance at a screen of any kind will cost you — a phone, a tablet, a video game."

Under the new law, the only legal reason for a pedestrian to use a cellphone while crossing a street or highway would be to call 911 to report an emergency.

One of the NPR reports claims that Fort Lee, New Jersey banned texting while crossing the street a few years ago, but its only support for this claim is a link to a story where police say that they are cracking down on pedestrians who are in the road illegally and are also on their phones. There is no indication that looking at a device without engaging in some other illegal activity was banned.

Because this apparently is the first major restriction of crossing the street while looking at devices, this post takes a deep dive into the ordinance. There are some quirks and questions that the ordinance raises, and I lay them out in painstaking detail after the break.

The text of the ordinance is here. Initially I was surprised, as it seems that the new ordinance bans viewing mobile electronic devices while walking but now permits driving while viewing mobile devices (as the prior restriction on driving while using mobile electronic devices is repealed). After a bit more digging, however, it appears that this is not the practical effect, as Hawaii has a statewide ban on driving while using mobile electronic devices. So while Honolulu may no longer have an ordinance banning driving while texting, the practice is still illegal.

Most outlets reporting on the ordinance state that it bans texting while crossing the street. It does, but the scope of the ordinance is broader than that. The ordinance applies not only to cell phones, but to any electronic device that either: (1) is capable of providing wireless or electronic communication between two or more people; or (2) is capable of "providing amusement."  The ban includes but is not limited to cell phones, pagers, PDAs, laptops, video games, and digital cameras. The ordinance also states that it does not include "audio equipment." 

This definition of "mobile electronic device" is of particular interest and concern to me, as I am one of the seven or eight remaining people in the country who does not use a smartphone to listen to music while walking. Instead, I use an iPod Nano -- and before you ask, yes, that's what I used before Baby Driver made listening to those devices cool again. The iPod Nano has a screen that displays information about each song, and that you can use to scroll through to select songs. iPods are not included on the list of banned devices - although the list is not exclusive, and the iPod has a screen and buttons that mirror some functions of smartphones. But, there is a strong argument that the iPod is "audio equipment," as its primary function is to play music.

The undefined "audio equipment" term is a holdover from the prior version of the ordinance which banned using electronic devices in vehicles. There, the term's application made a bit more sense -- you wouldn't be violating the ordinance if you were adjusting the volume of the radio in your car, for instance. But now that the ordinance has been reworked to apply only to viewing devices while walking, the scope of "audio equipment" is less clear.

The current ordinance's origin as a ban on devices in cars also raises some interesting questions about the how to interpret the terms of the ordinance. Under the original ban on devices in vehicles, the argument that the ban applies to looking at iPod screens seems more compelling in light of the "audio equipment" that already exists in nearly all vehicles, making it less likely that the "audio equipment" term applied to an iPod that one might bring into the car. Could this argument apply to the current version of the ordinance, which keeps the same "audio equipment" term, but repeals the various references to vehicles, or does the "audio equipment" term need to be reinterpreted in light of the rewording of the ordinance? I wouldn't be surprised to see this ordinance generate innumerable articles and books in which legal scholars do battle over the meaning of "audio equipment," and whether Michael Smith could be arrested for scrolling through his "Trial" playlist while jogging across the street (by no coincidence, my "Trial" playlist doubles as an excellent soundtrack for a run). To any law review editors in my audience who may receive these articles, please make sure that they cite to this blog post.

Another important term in the ordinance is "viewing," which the ordinance defines as "looking in the direction of the screen of a mobile electronic device." This means that speaking on a cell phone held to one's ear while crossing a street does not violate the ordinance. It would also apply to pedestrians who look at the back of their phones while crossing the street, in the event that anyone is interested in engaging in a particularly petty and pointless form of civil disobedience.

My issues with wording aside, there are arguments both for and against passing ordinances like this. On one hand, I understand the urge to cull the hordes of smartphone zombies that crowd city streets. People staring at phones run into objects and people, fail to cross streets in a timely manner, and may end up walking into the path of oncoming traffic in extreme circumstances. And putting down the phone for the several seconds it takes to cross a street is not a particularly heavy burden on pedestrians. On the other hand, the law may strike some as paternalistic and overreaching, and pedestrians may argue that they can remain alert to their surroundings while texting or emailing. And if pedestrians are injured in a traffic collision while on their phones, the doctrine of comparative negligence will likely reduce the damages that they can claim from the driver who injured them, as there is a strong argument that they should have been paying more attention.

Ultimately (again, problems with the language aside), the ordinance seems fine to me, as long as it remains limited to instances of pedestrians crossing the street and looking at screens on devices. This narrow set of circumstances should be easy enough for pedestrians to understand, and limited enough to avoid selective (and often biased) enforcement of the law. And as someone who wants to get as much money as possible from the driver who may one day crash into me in the madhouse that is downtown Los Angeles, I already model my own behavior after Honolulu's ordinance so that I may avoid a reduction of my potential damages due to a comparative negligence defense.

READ MORE - Honolulu Bans Looking at Cell Phones While Crossing The Street

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A Survey of State Laws Against Glue Sniffing and Driving Under the Influence of Glue

After writing yesterday's post on this story about a man arrested in Cedar Rapids, Iowa for allegedly driving while sniffing fumes from an aerosol can, I decided to do a little more research into glue sniffing laws in other states. As I noted in yesterday's post, Cedar Rapids' ordinance does not apply to any substances other than glue or cement, so any non-adhesive, aerosolized substances that people may inhale to get high are not covered by the ordinance. Additionally, I was unable to find any provisions in Iowa law regarding driving under the influence (operating while intoxicated) that clearly applied to driving while under the influence of inhaled glue or other aerosolized substances.

Cedar Rapids' ordinance banning glue sniffing states:

62.29 - GLUE SNIFFING.

(a) As used in this section the term model glue shall mean any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors.   

(b) No person shall, for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system, smell or inhale the fumes from any model glue; provided, however, that this section shall not apply to the inhalation of any anesthesia for medical or dental purposes.                           

(c) No person shall possess, buy, sell, transfer possession, or receive possession of any model glue for the illegal purposes set forth in subsection (b) hereof.

While I concluded that Cedar Rapids' ordinance did not apply to the conduct described in the article, there are other, more expansive, state laws on glue sniffing that Cedar Rapids may want to imitate if it wants to broadly ban the huffing of fumes from glues and aerosols.

Tennessee and Indiana both have laws that outlaw not only the sniffing of glue, but of other substances as well. The relevant subsection of Tennessee's law, for example, states:

40-6-391(a)  No person shall, for the purpose of causing a condition of intoxication, inebriation, elation, dizziness, excitement, stupefaction, paralysis, or the dulling of the brain or nervous system, or disturbing or distorting of the audio or visual processes, intentionally smell or inhale the fumes from any glue, paint, gasoline, aerosol, chlorofluorocarbon gas or other substance containing a solvent having the property of releasing toxic vapors or fumes; provided, that nothing in this section shall be interpreted as applying to the inhalation of any anesthesia for medical or dental purposes, or to the use of nitrous oxide to implement the distribution of beverages or other foodstuffs for commercial purposes.

Unlike the Cedar Rapids ordinance, Tennessee's law lists a number of substances other than glue, including "aerosol." Another wider-reaching law on glue sniffing can be found in Indiana:

IC 35-46-6-1: "Model glue" defined

Sec. 1. As used in this chapter, "model glue" means a glue or cement containing toluene or acetone, or both.

IC 35-46-6-2: Inhaling toxic vapors

Sec. 2. A person who, with intent to cause a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses, ingests or inhales the fumes of:

 (1) model glue; or

(2) a substance that contains:

            (A) toluene;

            (B) acetone;

            (C) benzene;

            (D) N-butyl nitrite;

            (E) any aliphatic nitrite, unless prescribed by a physician;

            (F) butane;

            (G) amyl butrate;

            (H) isobutyl nitrate;

            (I) freon;

            (J) chlorinated hydrocarbons;

            (K) methylene chloride;

            (L) hexane;

            (M) ether;

            (N) chloroform; or

            (O) halothane; or

(3) any other chemical having the property of releasing toxic vapors;

commits inhaling toxic vapors, a Class B misdemeanor.

Indiana's law is interesting because the stand-alone provisions regarding model glue are entirely unnecessary, as the "Inhaling Toxic Vapors" section applies not only to model glue, but also to "a substance that contains" toluene or acetone -- which includes "model glue," defined as a "glue or cement" that contains those chemicals.

 

What about driving under the influence of glue? For that, we go to the relevant sections of the law banning driving under the influence in Georgia:

O.C.G.A. 40-6-391 (2010)

40-6-391. Driving under the influence of alcohol, drugs, or other intoxicating substances; penalties; publication of notice of conviction for persons convicted for second time; endangering a child  

(a) A person shall not drive or be in actual physical control of any moving vehicle while: 

(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;

(2) Under the influence of any drug to the extent that it is less safe for the person to drive;

(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;

(4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;

(emphasis added)

 

Massachusetts also bans driving while under the influence of "the vapors of glue," although the law and applicable jury instructions do not provide a definition for the term.

 

If you were curious about various laws across the country after reading yesterday's post on glue sniffing, this post has hopefully been of some help to you. Additionally, all of this should make for excellent party conversation, so go forth and educate your friends on our nation's various laws prohibiting the inhalation of glue fumes, aerosols, and other chemicals.

 

[Author's note: while I have not yet submitted this post to the legal journals, let alone received any offers of publication, I do not think it presumptuous or premature to state that this post is almost-certainly forthcoming in a prestigious law review. Congratulations to you, dear reader, on seeing it here first.]

READ MORE - A Survey of State Laws Against Glue Sniffing and Driving Under the Influence of Glue

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Driving Under the Influence of Glue?

I like to check in on what's happening in my old home state of Iowa, and in doing so today I was drawn to this KCRG story on an (allegedly) very stupid and irresponsible driver:

A Cedar Rapids man was charged with Driving Left of Center and Glue Sniffing.

An officer was traveling westbound in the 4500 block of 1st Avenue East around 5 p.m. on August 29 when they saw a car driven by James Knight, 58, traveling in the left lane veer into the right lane.

The car crossed the dotted line and the driver corrected it, but then crossed the solid yellow line dividing the westbound lanes with the center turn lane.

The officer saw the driver holding a canister and suspected Knight may be huffing. He followed the car and when it stopped, the officer got out of his squad car and approached Knight's car.

The driver appeared to be passed out or had blacked out. When the officer knocked on the window, the driver appeared startled and the car began to roll forward.

The officer told the driver to put the car in park but the driver didn’t seem to understand and appeared to be in some intoxicated state.

The vehicle rolled forward and hit another parked car.

The officer was able to put the car in park. Knight was holding an aerosol can and denied huffing the gases out of the can.

When the story's headline contains "glue sniffing," it's difficult not to click.

Knight's reported behavior is more dangerous than driving over the center line, so it is understandable that the authorities wanted to charge him with something more than simply driving over the center line. Knight probably cannot be charged with driving under the influence (or operating while under the influence, to use Iowa's language) as this statute (Iowa Code 321J.2) is limited to those under the influence of alcohol or drugs. "Drug," is conveniently undefined under Iowa's OWI laws. Unless there is an extremely expansive definition of "drug" elsewhere in the Iowa Code that applies, the language of the OWI statute appears to foreclose charging Knight with this offense, which is most likely why Knight was not charged with OWI.

But does Knight's conduct constitute "glue sniffing?"

To answer this, we need the text of the Cedar Rapids City Ordinance that bans glue sniffing. You can find it here, and the complete text of the ordinance is as follows:

62.29 - GLUE SNIFFING.

(a) As used in this section the term model glue shall mean any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors.   

(b) No person shall, for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system, smell or inhale the fumes from any model glue; provided, however, that this section shall not apply to the inhalation of any anesthesia for medical or dental purposes.                           

(c) No person shall possess, buy, sell, transfer possession, or receive possession of any model glue for the illegal purposes set forth in subsection (b) hereof.

Knight was reportedly in possession of an "aerosol can," and was presumably suspected of huffing gasses out of the can. People can get high from huffing or sniffing fumes from aerosol cans, as noted by the National Institute on Drug Abuse. But while the end result of sniffing these fumes may be similar to the result of sniffing glue, King's alleged conduct does not appear to fall under the scope of the glue sniffing ordinance.

Based on the language of the ordinance, it does not seem to apply to instances where a person sniffs fumes from an aerosol can to get high. The ordinance defines "model glue" as "any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors." This definition is irritating, since it essentially uses the word "glue" to define "glue." While a number of chemicals are named, and while the catch-all at the end of the definition includes other toxic vapors, these chemicals are restricted to chemicals contained in "glue or cement." While I am not an expert on what is going on inside of an aerosol can, Wikipedia informs me that the cans contain small particles or liquids that are dispersed with a propellant, which creates the pressure that forces the particles/liquid out of the can as a spray. This sounds like quite the opposite of glue or cement, which have high viscosity.

It's possible one might attempt to apply the "or other solvent or chemical having the property of releasing toxic vapors" portion of the model glue definition to an aerosol can. But this reading is not correct, since this catch-all provision is part of a list that modifies the terms "glue" or "cement." The most subtle revision to the statute that could support such an interpretation would be to separate the named chemicals from the catch-all -- for example: "the term model glue shall mean any glue or cement containing toluene or acetone, or other solvent or chemical having the property of releasing toxic vapors." If this is what the ordinance said, Knight's conduct could potentially fall under it. As written, however, sniffing or huffing from an aerosol can does not fall under the language of Cedar Rapids' glue-sniffing ordinance.

[UPDATE - 8/30/2017]

A friend surprised me with a sudden outpouring of his proclaimed knowledge and enthusiasm for glue and its diverse potential forms. He informed me that glue does not necessarily have high viscosity, and that rubber cement, for example, could become fluid enough to be aerosolized if enough of a solvent were added to it. Indeed, here is a "Multipurpose Adhesive Aerosol" that I found with some quick Googling! I suppose that the law could be interpreted to apply to aerosolized adhesives, as glue can be defined by its function of binding objects together, although it most commonly refers to a substance that absorbs water and becomes a viscous solution with strong adhesive properties. Perhaps the courts will one day address these pressing questions regarding the true definition of glue.

Of course, it is doubtful that Knight was sniffing aeresolized glue, unless he somehow even less intelligent than initially thought. Such a practice would carry the risk of gluing his nose shut while attempting to get high, an outcome that would not only be inconvenient and painful, but that would also prevent Knight from continuing to sniff the aerosol. I suspect that if Knight indeed was using an aeresolized substance to get high, it was likely a substance other than the aeresolized adhesive that I linked to above.

READ MORE - Driving Under the Influence of Glue?

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No, It is Not Legal to Smoke Marijuana While Walking On the Sidewalk in Downtown Los Angeles

...or in any other California city or town for that matter. On November 8, California passed Proposition 64 (text of the Proposition here, analysis here) which legalized the recreational use of marijuana. The LA Times reports on the passage of Prop 64 here. From the LA Times:

The approval of the ballot measure creates the largest market for marijuana products in the U.S. It comes six years after California voters narrowly rejected a similar measure. Activists said passage would be an important moment in a fight for marijuana legalization across the U.S.

“We are very excited that citizens of California voted to end the failed policy of marijuana prohibition," said Nate Bradley, executive director of the California Cannabis Industry Assn. "Proposition 64 will allow California to take its rightful place as the center of cannabis innovation, research and development.”

Discouraged law enforcement officials said they will closely monitor implementation of the ballot measure.

At this point, it looks like the sites I typically link to for California laws have not yet been updated to reflect Prop 64's passage. I will add links to those sections when they become available. For now, the text of the news laws is available in the text of the proposition itself.

The central statute in Prop 64 is the newly created Health and Safety Code 11362.1 which states:

(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
 

(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;
 

(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products;
 

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;
 

(4) Smoke or ingest marijuana or marijuana products; and  

(5) Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 21 years of age or older without any compensation whatsoever.
 

(b) Paragraph (5) of subdivision (a) is intended to meet the requirements of subdivision (f) of Section 863 of Title 21 of the United States Code (21 U.S.C. § 863(f)) by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute marijuana accessories.

(c) Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.

What was I thinking with my extremely specific, negatively worded title? True, it has been a little off-putting that in the three days since Prop 64's passage I have:

1. Walked through a cloud of marijuana smoke to get to the front door of my office building in the center of downtown Los Angeles;
2. Walked past a young professional in a suit on the sidewalk in downtown Los Angeles in the early evening who was smoking marijuana while chatting with friends;
3. Had the privilege of being stuck behind a slow person taking up the entire sidewalk (which, in itself, should be a crime) who also happened to be smoking marijuana.

But all of this looks legal right?

Not so fast. Newly created Health and Safety Code section 11362.3 states:

(a) Nothing in Section 11362.1 shall be construed to permit any person to:

(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Section 26200 of the Business and Professions Code.

(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.

(3) Smoke marijuana or marijuana products within 1,000 feet of a school, day care center, or youth center while children are present at such a school, day care center, or youth center, except in or upon the grounds of a private residence or in accordance with Section 26200 of the Business and Professions Code or Chapter 3.5 of Division 8 of the Business and Professions Code and only if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present.

(4) Possess an open container or open package of marijuana or marijuana products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(5) Possess, smoke or ingest marijuana or marijuana products in or upon the grounds of a school, day care center, or youth center while children are present.

(6) Manufacture concentrated cannabis using a volatile solvent, unless done in accordance with a license under Chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code.

(7) Smoke or ingest marijuana or marijuana products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(8) Smoke or ingest marijuana or marijuana products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation except as permitted on a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation that is operated in accordance with Section 26200 of the Business and Professions Code and while no persons under the age of 21 years are present.

Smoking marijuana is prohibited in any public place, unless the place is a business registered to sell marijuana (a quick summary of the exception in Business and Professions Code section 26200). This means that people walking down the sidewalk in a city or suburb or outside of a home or office building are in a public place and therefore violating Section 11362.3, which is an infraction (under the newly created Health and Safety Code section 11362.4).

Notably, while Section 11361.1 states that permitted marijuana possession or use cannot serve as a basis for search or seizure by law enforcement, Section 11361.3's prohibition on marijuana use in public and possession of open containers of marijuana in vehicles covers most conduct that would have served as the basis for such searches and seizures before Proposition 64's passage. Those who thought that Prop 64 would reduce incidents of search and seizure due to officers' detecting the scent of marijuana were therefore mistaken.

Those considering taking advantage of California's new marijuana laws should consider smoking marijuana as a combination of smoking cigarettes and drinking alcohol. You cannot smoke cigarettes inside of (most) businesses or (in Los Angeles) on restaurant patios -- and you cannot smoke marijuana in these locations either. You cannot drink a beer while walking down a sidewalk -- and you cannot smoke marijuana while walking down the sidewalk either. You cannot drive with an open container of alcohol -- and you cannot drive with an open container of marijuana either.

Would-be marijuana smokers should treat smoking marijuana as subject to the combined restrictions on alcohol and cigarettes, and should therefore avoid smoking in public -- particularly if they are in downtown Los Angeles during the early morning or evening hours when I am most likely to be outside. We'll all be better off that way.

READ MORE - No, It is Not Legal to Smoke Marijuana While Walking On the Sidewalk in Downtown Los Angeles

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Illinois "Pidgey's Law" an Overly Hasty, Muddled Attempt at Regulating Augmented Reality

Several news outlets have reports on this bill (AB 6601) recently introduced by Illinois State Representative Kelly Cassidy. Nicknamed "Pidgey's Law," the bill was introduced in response to reports that players of the augmented reality game, Pokémon Go, were trampling the habitats of endangered species in a federal park.

From the Chicago Sun Times:

Cassidy introduced “Pidgey’s Law” on Wednesday during a news conference at the Loyola Dunes Restoration Site. Named after one of the game’s bird Pokémon, the bill aims to crack down on location-based game developers to remove problematic gaming sites from their maps.

. . .  

If passed, “Pidgey’s Law” would give game developers up to two days to remove a location-specific site from its game if that site’s property owner, manager or custodian requests its removal. After that, developers would be fined up to $100 each day until the stop is removed. 

The bill is in response to a Pokéstop — real-life locations gamers can visit for in-game perks — that rests at the center of the dune restoration area, which is protected under state and federal law. The stop, based on an art installation that stood there a few years back, sometimes draws players off the designated path into areas where some endangered wildlife lives. 

The hundreds of Pokémon Go players who frequent the area each night have caused increased littering and vandalism as well as occasional trampling of the wildlife when rare Pokémon appear in the augmented reality of the game.

Other news outlets report on the bill here, here, and here. A common theme in all of this reporting is that the purpose of the bill is to remove in-game landmarks (in Pokémon Go these are known as Gyms and PokéStops) from private property or environmentally sensitive areas at the request of property owners or managers.

But is this what the bill actually does? Below are the pertinent sections of the bill. To make efficient use of these extensive quotes, I've emphasized the terms that are either undefined or that cause problems:

Section 10. Site or location removal. 

(a) Within 2 business days of receiving a request from the real property owner, manager, or custodian, the developer of a location-based video game shall remove from its location-based video game an ecologically sensitive site or location, historically significant site or location, site or location on private property, or site or location otherwise deemed as dangerous by the real property owner, manager, or custodian.

(b) In requesting that a site or location be removed from the location-based video game, the requesting property owner, manager, or custodian shall submit a request to the developer of a location-based video game that specifies in sufficient detail the site or location to be removed from the game, and reason for the requested removal. 

Section 15. Removal procedure.  

The developer of a location-based video game shall provide an easily accessible procedure for removal of ecologically sensitive sites or locations, historically significant sites or locations, sites or locations on private property, or sites or locations otherwise deemed as dangerous by the real property owner, manager, or custodian from its location-based video game. 

Section 20. Enforcement.

(a) A real property owner, manager, or custodian may bring a civil action to enforce the provisions of this Act. 

(b) A developer of a location-based video game who knowingly violates this Act is subject to a civil fine of up to $100 for each day of violation.

The bill includes a few definitions, but not enough:

Section 5. Definitions. For the purposes of this Act: 

"Developer of a location-based video game" means any person or business entity which has made or developed and owns the rights to a location-based video game, including any person or business entity which acquires the controlling intellectual property rights to the location-based video game from another person or business entity. 

"Ecologically sensitive site or location" means any area designated by federal, State, or unit of local government for protection from development or damage due to the presence of endangered species or threatened species as defined in Section 2 of the Illinois Endangered Species Protection Act. 

"Historically significant site or location" means any site or location that has been designated by federal, State, or unit of local government for preservation as a landmark, or any other site or location that the federal, State, or unit of local government may designate as historically significant. 

"Location-based video game" means a game primarily played on a mobile device, including, but not limited to, smartphones and tablets, that encourages users to travel to specific real property sites, locations, or coordinates for the purpose of achieving specific goals within the game.

The biggest problem with the bill is that it fails to define "site or location," much less what it means to "remove" a "site or location" from a location-based video game. While the phrase may make sense in the context of the physical world, in the context of an augmented reality game the phrase is fatally unclear. Should the game developer remove a feature from the game's map, such as a PokéStop, Gym, or in-game landmark? Or does the phrase refer to property or coordinates in the physical world -- thereby requiring the developer to remove a set of coordinates or location from the in-game map altogether?

I very much suspect that the bill intends to remove landmarks and features that only exist within the augmented reality of the game. But by failing to write a law that expresses this intent, developers are left with the much more expansive mandate that they modify their games' maps to entirely remove the coordinates and features of locations that fall under the bill's scope, which, I suspect, would be far more difficult than removing in-game features alone.

I also flagged vague language throughout the bill, such as the requirement that a request "specifies in sufficient detail" the location to be removed (sufficient by what measure?); the definition of a location-based video game as a game that "encourages" players to go to locations to achieve "specific goals" (is the random generation of a catchable digital creature on a map "specific" enough?); and a site or location "deemed as dangerous" by a property owner, manager, or custodian (does this mean that the property itself is dangerous, or that the placement of an in-game landmark leads to danger?).

And let's not overlook the bill's muddled and contradictory definition of "Developer of a location-based video game." The definition (initially) purports to cover only those who develop and own the rights to the game, but then goes on to say that this includes those who acquire the ownership rights from another. This second, acquiring class, only has one of the necessary features of the initial definition, but is deemed to be covered by the definition through the use of the term "including." This definition is contradictory and does violence to the term "including," and should therefore be done away with.

Finally, setting aside the muddled text of the bill, there does not seem to be a pressing need for it. Niantic has a system for requesting removal of PokéStops or Gyms from the game. While there appears to have been a breakdown in communication or administration in the case of one park, this hardly warrants the passage of a law mandating a feature that already exists -- albeit now with the inclusion of an arbitrary two-day deadline. 

Representative Cassidy, like Senators Klein and Savino of New York, is proposing an overly broad, overly strict solution to an exaggerated problem. Hopefully, the rest of the Illinois legislature is less-willing to jump on the bandwagon of hastily drafted laws governing augmented reality games.

READ MORE - Illinois "Pidgey's Law" an Overly Hasty, Muddled Attempt at Regulating Augmented Reality

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Fred Flintstone, World Records, and Rules With Shifting References

While the rest of the country was watching the Democratic National Convention yesterday, my attention was drawn to a far more dramatic series of events: an ongoing set of videos in which contenders attempt to seize the world record for the fastest drawing of Fred Flintstone.

This article at Cartoon Brew set this whole thing off. The article featured this video by Myron Smith in which he claimed to hold the world record for the fastest drawing of Fred Flintstone:



This prompted an enthusiastic response from Lev Cantoral, a former classmate and mock trial teammate of mine, who claimed to beat Smith's record in nearly half the time:



Which, in turn, prompted this awful response from Wyatt Duncan:



And this cynical, yet hopeful, response from Nick Maida:



Frankly, I don't know why anybody was watching the Democratic National Convention while this was happening. For my German-speaking readers, I think that part of this saga is covered here as well.

But this is a law blog, or at least, that's what I keep telling people, so what does this have to do with laws -- or rules of any kind? In this post, I will explore an initial question people may have: are these videos and purported records "official" in any way? Next, I will explore how these videos and the shifting quality of the drawings in them illustrate a criticism of viewing laws or constitutions as living documents with flexible frames of reference.


All of this Fred Flintstone madness made me wonder whether any of these videos are "official" world records of any kind. After a bit of searching, it appears to me that to be an "official" world record, the record needs to be sanctioned by some sort of organization. The most popular organization to do so is Guinness World Records.

Does Guinness recognize a record for fastest drawing of Fred Flintstone? To save you, dear reader, the time, I signed up for a Guinness World Records account under the guise of seeking to establish a new individual record. Once my account was established, I conducted a search of "Fred Flintstone" (both with and without quotes) and was unable to find a category of record for drawing the character. There was a form I could fill out to request a new category of record, but I declined to make this request in light of my relatively slow and shoddy drawing abilities.

As far as Guinness is concerned, there does not appear to be an existing record category for fastest drawing of Fred Flintstone. Sorry Wyatt. In theory, he, Lev, or I could put in an application and hope that the independent group of powers-that-be decide that hasty Fred Flintstone drawings are deserving of recognition. But as far as I know, nobody has done this yet.

So the contest isn't official by Guinness standards, It is, however, governed by rules of the people who wrote the initial article. The fine people at Cartoon Brew laid out this set of rules for those wishing to obtain recognition for a world record:

• must use a blank piece of paper
• must show paper to the camera during the attempt
• must draw Fred’s head and upper torso
• must follow form of current world record holder
• must provide video evidence

This is the legal landscape that Cartoon Brew created for the Fred Flintstone contest. Incidentally, these rules, and their operation as shown in the videos above, illustrate a problem with views of statutes or constitutions as living, evolving documents. While an evolving view may permit a law or constitution to adapt with changing technology, traditions, and social realities, allowing interpretation to become too depending on a shifting reference point may lead to the deterioration of the law's interpretation.

The "must follow form of current world record holder" rule illustrates this trend toward deterioration, as evidenced by Wyatt Duncan's attempt to beat Lev Cantoral's record. Cantoral's drawing was good -- should I have been presented with the finished product, I would have thought that it was a drawing of Fred Flintstone. Duncan's, on the other hand, was not.

But Duncan appeared to generate his abomination by relying on the template that Cantoral set. Duncan, accordingly, appears to have followed the rule that he follow the form of the current world record holder. If Duncan became the world record holder as a result, does this mean that a future attempt by Cantoral needs to follow the template of Duncan's poorly-rendered, eyebrow-less, armless horror of a Fred Flintstone?

The wording of Cartoon Brew's rules seem to suggest so, as the only reference point for the "form" of Fred Flintstone is that which was previously drawn. There is no mention of quality or standards (other than the vague, requirement that Fred's head and torso be shown), and, most disturbingly, there is no appointment of an outside law blog author as a third-party judge who can independently determine whether a drawing rises to a level of quality to be deemed a true representation of Fred Flintstone.

Accordingly, under the system Cartoon Brew created, this contest is destined to devolve into a series of shoddier and shoddier attempts -- a consequence that Maida readily acknowledged by referring to the drawings as "dumb little doodles." The legal system Cartoon Brew created has a dramatically-shifting frame of reference, which leads its rules into eventual meaninglessness.

How far removed is the Fred Flintstone contest from rules and laws based on what a "reasonable" person would do or expect? And if such laws are interpreted based on changing technology, traditions, and practices, will these laws break down in a similar fashion?  Will "reasonable" expectations of privacy under the Katz test for Fourth Amendment protections deteriorate in a world where developing technology and a vast increase in the sharing of information lead to the potential elimination of any sense of privacy? Does widespread distribution and use of infrared technology render Kyllo's prohibition on police use of the technology meaningless? Is the privacy of everything I type into an email or calendar reminder that is run by third party internet provider or website forfeit under Smith's third party doctrine?

As contestants continue to draw Fred Flintstone, under the overly flexible rules, the drawings will likely deteriorate until the world record holder's product is nothing more than a series of squiggles and blogs.  In the world of law, courts and precedent may serve as a third party adjudicator for what is reasonable. But if the definition of reasonableness is tied to social expectations, changing realities will necessitate a change in courts' rulings, lest they risk a loss of credibility. Precedent, grounded in reasoning that is subject to change, will ultimately lose its authority. This change may not happen in a day, but the shifting standards by which the laws are defined illustrate that laws and rules with flexible reference points are subject to change -- and that this change may not be for the better.

In the world of Fred Flintstone, I suspect that Lev Cantoral will muster the skill and speed necessary to bring the standards of these drawing back to something recognizable. One can only hope that judges and legislators in the legal world are able to fulfill their analogous role.

READ MORE - Fred Flintstone, World Records, and Rules With Shifting References

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