Monthly Archives: April 2012

What Are The Limits On Free Speech?

limits on free speech in the U.S.
Defamation law attorney Aaron Kelly answers questions about the limits on free speech.

What do speech, press, religion, and petition freedoms afford U.S. Citizens?

The freedoms to speech, press, religion, and petition guarantee that each U.S. citizen can express themselves safely and openly. It means we can:

  1. Publicly disagree with authorities;
  2. Practice a religion, of our own choosing, without fear of persecution;
  3. Have a media industry that reports on government mistakes and happenings;
  4. it means we can gather, and en masse, to let our voices be heard on social and political matters.

Are There Limits On Free Speech?

There are limits to freedom of speech, and those limits boil down to public safety and honesty. The classic example of unprotected speech is screaming fire in a crowded room when there is no fire, as the welfare of the citizenry becomes paramount. Another example: protests require permits to ensure proper safety requirements are met.

Religious Issues & Limits on Free Speech

As for religion, well, that’s a little more nuanced, as many religions hold beliefs contradictory to secular la. But one thing is for sure, the courts don’t like ruling on religious matters.

Anonymous Defamation

A big issue these days is online defamation.  People are less careful about what they say online. Moreover, from a procedural standpoint, Internet anonymity presents another layer of litigation, as plaintiffs must first uncover the legal names of their accusers. In anonymous situations, many people use a freedom of speech as a defense to keep their names from entering public records; sometimes it works, sometimes it doesn’t.

Online Censorship Timeline

Easy, since the beginning. Well, maybe not Tim Burners Lee beginning, but for arguments sake, let’s just say that once the public merged onto “the information super highway” (remember when that was the phrase), it was on. In the early years, copyright infringement and defamation were used as litigation tools  to censor online content. And back then, before the DMCA and Section 230 of the CDA, website operators were not protected from third-party liability.

How Can We Fight Online Censorship?

I wish I had the answer! If I did, I’d be living la vida Gates.

But in all seriousness, it’s a complicated question because the possible permutations are endless. Generally speaking, what we need are laws that both allow for Internet freedom, foster innovation, and protect businesses from unfair and deceptive defamation.

What are some common censorship targets?

Depends on where you are. I wrote a story a couple of weeks ago about a guy who was charged with defamation for talking unkindly about the King of Thailand online. Would that ever happen in the United States? Probably not. Heck, some of the most successful Web outlets were built on the backs of government criticism.

To sift through slander and libel laws from different countries, head to International Defamation Database.

If you’re only interested in U.S. law and limits on free speech, head here to the U.S. defamation database, which includes federal standards, plus a summary of laws for each state.

 

CISPA Explained By Internet Lawyer

CISPA explained by Internet lawyer
CISPA explained: If you’re concerned about online privacy, you should be concerned about CISPA.

2016 Update: When we first published this article, CISPA had Americans fuming; but, the bill ultimately failed. In 2015, politicians reintroduced CISPA, without significant changes. As such, this “CISPA explained” blog post from 2012 still holds true. 

***Original Article***

Remember the PIPA and SOPA drama? Well, now we have the Cyber Intelligence Sharing Protection Act  (CISPA) — yet another attempt to curtail cyber crimes. A proposed amendment to the National Security Act of 1947, CISPA was introduced in October 2011, and like SOPA and PIPA, is currently being tweaked and re-drafted to address public concerns.

CISPA Explained In Plain English

D.C. Lawmakers have initiated H.R. 3523, CISPA. It’s being sold as a “defense weapon” in the battle to prevent cyber attacks.

Two CISPA Provision Proposals Have People Talking

If passed, the law would allow:

  1. Government agents to access digital accounts, read and interpret personal emails, and then act as they see fit.
  2. ISPs and social media platforms to disseminate personal data to the government without penalty.

CISPA specifics aren’t all that specific. The verbiage is vague, but includes allowances to bypass current online privacy exemptions. If passed, the concern is that “Big Brother” would be able to monitor, censor, and disrupt any online communication it deems upsetting.

Why Professionals Are Concerned About CISPA

A spokesperson for the Center for Democracy and Technology, Kendall Burman, says Congress is considering several cyber security bills, but she’s worried that CISPA could negatively impact the open Internet.

CISPA’s authors insist its purpose is to thwart baddies by sharing certain threat information between digital platforms and the intelligence community. And while cyber attack threats are a reality, CISPA, by design, allows the government to act upon arbitrary evidence.

Will The Government Become Over-mighty?

According to the Center for Democracy and Technology, CISPA gives ISPs the right to forward private communications straight to the U.S. government, privacy protections be damned.

Another Internet advocacy group, the Electronic Frontier Foundation, has also expressed concerns for CISPA’s potential impact on the future of the Internet and seeming lack of consideration for individual privacy.

CISPA contains very few restrictions on what information can be collected or the manner in which it can be used. If a company can convincingly claim its actions were motivated by “cyber security purposes,” they can, theoretically, cut into the privacy of any individual.

If You Can’t Say Something Nice About the Government, Don’t Say Anything At All!

Consider this: under the proposed CISPA law, companies like Twitter, Google, AT&T and Facebook could forward your confidential info to the Pentagon if they’re pressured by the government. As long as the government can claim suspicion of wrongdoing on your part, and construe it as threatening, your info is now their info.

The Likelihood Of CISPA Passing

That’s CISPA explained.

Will it pass? Time will tell. Currently, Capitol Hill is supportive, and many tech companies are fine with it, too. Let the lobbying begin!

Kelly / Warner Law handles all manners of Internet law issues.

Starting A Business In Arizona: Business Formation Options

starting a business in Arizona
When we opened our doors, we mainly worked with people starting a business in Arizona. But things grew. Today, not only do we help Arizona’s entrepreneurs, we also assist startups and individuals across the United States, Canada, Asia, Australia and the UK.

But even though the firm has grown beyond Arizona’s borders, we don’t neglect our roots.  So, in that spirit, here’s an introductory guide to “starting a business in Arizona.” We hope you find it helpful.

Starting A Business In Arizona: Business Formation Options

The success of a business is rooted in its foundation, and like a tree, a business is only as strong as its roots. So in order to firmly supplant your business in its niche, pick the right company structure.

Arizona Business Formation Options

  1. Sole proprietorship
  2. Limited Liability Companies (LLC)
  3. General Partnerships
  4. Limited Liability Partnerships (LLP)
  5. C-Corporations (C-Corp)
  6. S-Corporation (S-Corp)

Each of these entities have their advantages and disadvantages. Let’s take a look.

Technical Note: A sole proprietorship is the most basic structure under which you can operate a business, but it isn’t a legal entity; it’s simply the label used when business owners personally take responsibility for a company’s debts.

Starting A Business In Arizona: Limited Liability Companies (LLC)

A Limited Liability Company, or an LLC, is a type of business that is “separate and apart” from its owners (also known as members). An LLC shields owners from a degree of personal liability, but retains operational simplicity and flexibility.

Limiting personal liability is one of the most enticing factors for choosing an LLC, as it can shield the personal assets of an owner if creditors ever try to collect on the debts of the business.

The flexibility of forming an LLC is also alluring, as there are no annual report requirements, annual fees, or secretarial requirements, like board meeting minutes. It’s also easier to distribute profits and management duties under an LLC.

Tax Tip: Limited liability corporations are exempt from federal taxes imposed separately on an LLC, thus eliminating double taxation problem.

Starting A Business in Arizona: General Partnerships

A general partnership is made up of two or more parties who are responsible for the business. Each partner shares the assets, liabilities, and management responsibilities. Unlike a corporation, it doesn’t require any formal filing or registration to exist. It merely takes two or more persons joining together to own and operate a business.

The risk: it can end just as easily as it began. The death of any of the partners, or the desire to force dissolution by any partner, can end the business.

Starting A Business in Arizona: Limited Liability Partnership

Limited Liability Partnerships, or LLPs, combine elements of corporations and partnerships. An LLP provides some protection to its partners from personal liability. Unlike a general partnership, formal requirements and annual reports must be formally filed. Profits from the LLP are distributed among the partners for tax purposes.

Limited Partnerships (LP’s) are similar to LLPs, except the partners are generally not liable for company debts, so long as certain managerial standards are met. In effect, a Limited Partner provides capital and receives a share of the profits, but doesn’t participate in direct management of the business.

Starting A Business In Arizona: C-Corporation

A C Corporation (“C-Corp”) is what many of us think of when we hear the word “corporation”. A C-Corp is made up of an unlimited number of shareholders, and there are no restrictions on the types of owners. The C-Corp is managed by its officers, who report to the C-Corp Board of Directors. Generally, shareholders are not personally liable for the obligations of the corporation.

C-Corps are formal structures requiring annual shareholder and directors meetings. C-Corps are also subject to double taxation and significant governmental regulation.

Starting A Business in Arizona: S-Corporation

An S-Corp is an entity taxed under sub-chapter S of the Internal Revenue Code. Like a C-Corp, it’s a legal entity with shareholders. Unlike a C-Corp, however, an S-Corp can’t have more than 100 U.S. shareholders; nor can it be owned by other C-Corps, trusts, LLCs, or partnerships. Under most circumstances, an S-Corp pays no income taxes and the corporations income or loss is passed through to the stockholder.

One of the biggest disadvantages to an S-Corp, similar to a C-Corp, is that it is very formal. An S-Corp must be approved by the IRS, and it must hold annual meetings of shareholders and directors.

Need Help? Get In Touch.

When contemplating starting a business in Arizona, seek the advice of a competent business formation attorneys, like Daniel Warner and Aaron Kelly, who can guide you through the process. They’re friendly, discreet and can give you the best business advice on how to best structure your business for the best profit opportunities.

Famous Defamation Cases: A Wayne’s World Trip To The Past

Let’s Talk About Some Famous Defamation Cases!

Defamation is a negligent, false statement of fact that harms.

Defamation is a negligent, false statement of fact that harms.

These days, most defamation lawsuits involve an online statement, review website, tweet, or a Facebook post. To change things up, let’s take a “Wayne’s World” trip, and look back at a couple of famous defamation cases from the analogue days.

So, hop in the AMC Pacer (kitted out by Emmett Lathrop “Doc” Brown, Ph.D., of course) — and let’s do this!

Famous Defamation Case #1:Crown v. John Peter Zenger: Truth Becomes A Viable Defense Against Defamation Charges

Famous defamation cases: John Peter Zenger
A 19th-century rendition of the John Peter Zenger famous libel lawsuit.

Back in Ben Franklin’s day, William Cosby wasn’t a disgraced comedian, he was the British governor of New York. What thing do the two Cosbys have in common? Controversy swirled around both. The revolution-ready residents of colonial New York didn’t care for ol’ Bill; probably because he was accused of rigging the 1734 elections and pocketing people’s taxes.

Then New York Weekly Journal editor, John Peter Zenger, wanted Cosby booted from power and published anonymous flame articles about the Governor. Craving revenge, Cosby formally petitioned for a public burning of the NYWJ. But the Assembly denied Cosby’s request. In the wake of defeat — and a fan of totalitarianism — Bill enlisted one of his buddies, Justice DeLancey, to revoke Zenger’s attorney’s license and imprison the editor. Easy-peasy.

Not so fast.

Benjamin Franklin heard about the famous defamation case and dispatched Andrew Hamilton — tout suite — to represent Zenger. Hamilton ultimately won by arguing that “truth should be an absolute defense against libel charges” — a judicial principle which still applies in libel lawsuits today.

Famous Defamation Case #2: Hustler Magazine, Inc. v. Falwell: First Amendment Showdown

Famous defamation cases: Falwell v. Hustler
One of the most famous libel lawsuits in history involves Hustler Magazine and Rev. Jerry Falwell.

Back in the 80s, when Gordon Gecko was the guy to admire, Hustler Magazine published a parody piece that spawned one of the most famous defamation cases in U.S. history.

An ersatz liquor ad for Campari entitled “Jerry Falwell Talks About His First Time”  featured a faux interview with fundamentalist Protestant minister Jerry Falwell.

Much to the chagrin of the Rev., the parody suggested an inappropriate Oedipal relationship involving an outhouse deflowering and a bottle of Campari.

A disclaimer appeared at the bottom of the page read: “Ad parody—not to be taken seriously.”

Nevertheless, Falwell sued Flynt and Hustler for invasion of privacy, libel, and intentional infliction of emotional distress. The jury decreed Flynt innocent of the libel charge but awarded Falwell $150,000 for the charge of intentional infliction of emotional distress.

Flynt subsequently appealed to the Fourth Circuit who sided with Falwell. So, Flynt went to the Supreme Court, who ultimately ruled that parody and satire are protected by the First Amendment. Also, since the ad didn’t convey any reasonable false statements of fact, the bench dismissed the defamation charges.

And there you have it, legal time traveler — two summaries of two famous defamation cases from the past. Want to read about more celebrity defamation battles? Head here!

WickedFire Testimonial

Internet lawyer testimonialKelly / Warner is the firm to trust for legal advice. They’re one of those few firms that many of the bigger players use but don’t boast about because, well, who wants to give away their best secrets. I trust him and use him.

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ladies loop logoKelly / Warner is a priceless tool when it comes to Internet and business law needs.  Their know-how and experience in Internet law has given my business the protection it needs to operate in today’s digital world.  I highly recommend Kelly / Warner to anyone in need of Internet business lawyer.