Saturday, January 31, 2009

Topless is Dangerous

Johnny Carson used to say there is no such thing as a new joke; just old jokes reborn, revived, restored, and retold. As you trespass through the years, you see how many battles that are being fought today have been fought yesterday. In fact, I think you know you are getting old when you not only see the first remake of a movie, but the second.

It has been a while since we read about a Palm Beach ordinance which snagged a lawyer who used to jog shirtless in Palm Beach. Nevertheless, I have a vague recollection of the furor and stir that it caused the uppercrust community of Palm Beach Lakes Boulevard.

It has even been a while since the city of Hollywood in Broward enforced that ordinance banning men from dancing with their private parts in a 'turgid state.' But as I was surfing through the Blogosphere for features for our Broward Law Blog, I came across an interesting ordinance out of Easton, Maryland.

Not only is it illegal for men to go topless in Easton, Maryland, it's illegal for "any person." Babies, too? Boys ? After all, equal enforcement! Here's the law:

Sec. 18-9. Required dress, upper torso, penalty.

(a) It shall be unlawful for any person, whether male or female, to appear upon the streets, sidewalks and highways, or in any public building of the Town of Easton unless he or she is wearing a shirt, blouse or similar article of wearing apparel designed to cover the upper torso of said person.

(b) The penalty for violation of this Section shall be ten (10) days in jail or a fine of not more than One Hundred Dollars($100.00). (Ord. No. 70,  1 and 2, 6/17/74.)10 days in jail! Here's a link to the Town Code.

Good to know that community has no other problems to worry about, huh? I bet they have a baggy pants ordinance, too. Please, laws like this are soooooooooo
stuuuuuuuuuuuuuuuupid, why do we bother? Why do we bother?

Thursday, January 15, 2009

New Grow House Laws Snare Innocents in Florida

New Florida Grow House Laws Snare Innocent Families in Florida

By Norm Kent

January 15, 2009

On July 1st of 2008, Florida enacted a new law which enhanced penalties for marijuana grow houses. Authorities heralded it as the ‘Marijuana Grow House Eradication Act.’ It is just another excuse to lock decent people up for longer times.

There are some provisions of the act which bring back the dark days of the draconian Rockefeller drug laws in New York, legislation which sent small marijuana growers to jail for thirty years. Some might first be getting out today.

Law enforcement argued that they needed the new law because of the increasing number of grow houses operating in the state and violent crime which tend to be associated with these operations. Sure they did.

“Grow houses are not only furthering this dangerous drug trade within our state, they are bringing violent crime into our neighborhoods,” said Attorney General McCollum. “This new law will help protect our families and communities.” No, it won’t.

There was no accompanying empirical or independent study or statistical backup to lend truth to the public statements of Mr. McCollum. Nor was there any journalist anywhere in the state that took him to task or asked for documentation to sustain his claims. They just regurgitated and repeated the pablum they were fed by law enforcement.

The new law makes it a second-degree felony to grow 25 or more plants, no matter how small or large those plants are. Baby seedlings or mature daddies, 25 plants can get you 15 years. It used to take 300 plants to reach that harsh a penalty. Put it in perspective. If you lived in California, and you were given a medical marijuana card, you would be allowed to grow up to six plants of your own. Thus, if the cast of Real World was growing its own medicine in San Francisco they could film some great episodes. If they were doing it in St. Pete, Florida, they could be doing those episodes for the next 25 years from the State Penitentiary.

The Florida law also changed to make it a first-degree felony to grow 25 or more plants in a home with children present. That penalty is now 30 years. Already, I am representing a 50 year old gentleman, who was a schoolteacher in Miami for 20 years; who retired because of a disability. He grew his own pot in an outdoor shed behind the garage, apart from his children, used it for himself, and knew nothing about the law. He is now facing the rest of his life in jail.

“Marijuana is the most commonly used illegal drug in America and we must take a stand against the for-profit growers who were previously exploiting higher thresholds,” said one of the bill’s sponsors. “By lowering the number of plants necessary for criminal charges, we’ve given Florida’s authorities valuable tools in the fight against these criminal operations,” he foolishly added. No, they have not given law enforcement any more tools. They have just given decent people longer sentences for essentially innocent conduct.

Many of the larger grow houses I have seen over the past 30 years as a criminal defense lawyer are truly marijuana cultivation operations designed solely for entrepreneurial reasons and major marketing. Exclusive homes in gated communities worth hundreds of thousands of dollars have been rented, sealed, and converted into home grown hydroponic laboratories.

When they are inadvertently discovered, law enforcement makes an entry only to find no one lives there, and the place was being used to solely grow pot which would be commercially marketed for a profit. If pot is going to be against the law, you can understand that type of operation being targeted. Greedy people violating the law go to jail.

The new law enhances penalties. The difference in changing the law is significant, because what the legislature has done is gone from targeting entrepreneurial operations to including individuals simply trying to cultivate their own medicine. The less you grow, the more you are likely to now face a greater penalty.

Two of the individuals I currently represent are domestic partners who purposely started a grow house in their backyard exclusively because, at the age of 45, they did not “want to go purchasing pot on the streets in their car during the dark of night.” My client said they thought this was the smart and safest way not to commit a crime, but to “tend to their own garden.” And the price they pay for a safer way to acquire pot is a speedier way to go to jail for a longer time.

Another individual I represent who was growing pot is an artist. He and his wife have two children. They are painters. They paint, they smoke, they raise their children. At six a.m. one morning last summer, agents from the Drug Enforcement Agency knocked on their door to say they were investigating grow houses.

Separating wife and husband, they argued they smelled pot and had a right to enter. They warned the couple that “if they did not cooperate,” they would have to take their children to the local family services agency, the typical bureaucratic disaster in this city that it is in your own. They reminded them that under the new law they could lose their children and face 30 years in prison. The couple had no guns, ran no gangs, and committed no violent acts. They grew some weed to fulfill a passion they had engaged for 20 years. These are the types of people these new laws target.

In this operation, the one law enforcement authorities bragged about as Operation D Day, sixteen agencies combined on one single day in Florida to bust 150 grow houses which would have netted purportedly $41 million worth of marijuana plants. I guess we will never know now. Overall, on that day, April 28, over 9,000 plants were seized and 135 arrests were made throughout the state.

A review of the county wide press releases said very little about finding any guns, weapons, AK-47s, or rifles. About ten guns were found in South Florida, and a bullet proof vest. If you were Noel Llorente, you might have needed one.

Mr. Llorente, you see, lives in Opa-Locka with his wife, Isabel. He was leaving for work when unmarked cars pulled up, DEA agents jumped out, yanked him out of his vehicle, threw him down with guns drawn, handcuffed him, and then stormed into his home searching for drugs, smashing in the front door along the way. Panicked, Isabel tried to call 911. Agents grabbed the phone from her. A few minutes later, agents realized they were in the wrong house. Whoops!

“Sorry, they told me, Sorry,” Noel Llorente said. Then the agents went on their way. “So it goes,” said the Little Prince, “so it goes.”

Marijuana is, of course, against the law in Florida. The agencies had a right to make the arrests, conduct the seizures, and raid the grow houses. They were doing their job enforcing the law. We cannot castigate them for doing their duty. We can condemn, censure and criticize the legislators who enhanced the penalties for the acts, instead of adjusting the laws to respond to the practical realities of marijuana use.

Authorities correctly point out there is an emerging trend that identifies an increasing number of indoor cannabis operations statewide. One law enforcement officer said that the number is growing exponentially, at a rate they will never catch up to. Well, does that also not say to those same agents of justice that people see their prosecution as an injustice? If so many are defying the law, should we not be reducing the penalties rather than enhancing them?

I understand that law enforcement correctly stated that many ‘Cuban nationals’ were arrested in this operation, intimating that it is all part of a foreign conspiracy.
I understand too, that each county sheriff talked about how some of these major grow houses have led to more serious crimes.

I understand also that if Floridians were allowed to grow their own plants in their own backyards without the threat of law enforcement breaking in their doors and taking away their children there would be no need for Cuban nationals or terrorism.
Finally, I understand how the terrible law terrifies the decent citizen and creates the very terrorism the government seeks to end. There is a very simple way to end the problems these law enforcement officers want to cease. Legalize the pot they criminalize. Medicalize it as over a dozen states have now done.

Thomas Jefferson once said that “That government which governs least governs best.” And like his friend, George Washington, not to shabby an American himself, Thomas Jefferson was a hemp farmer.

Maybe America today needs more cultivators and more grow houses, not less. Maybe like the patriots who threw tea off a British ship in a Boston harbor, the families who have grow houses in their backyards are today’s revolutionaries. Maybe tomorrow, history will prove them right.

Who knows, if I am right, maybe someday someone will make a TV show about it and call it ‘Weeds’. Then the show will win awards, people will laugh at it, and we will all look up and say how stupid these laws were. After all, families who grow together, grow together.

Norm Kent is a Fort Lauderdale criminal defense and constitutional rights attorney who can be reached at A member of the Board of Directors of NORML (, Norm also blogs publicly about legal issues at

Monday, January 12, 2009

Bloggers Have A Right to Anonymity

Courts Are Beginning to Address Anonymity of Bloggers

January 10, 2009

By Norm Kent

In New York City last week, a Vogue model made headlines not by being on the cover of a new magazine but by being referred to as a ‘skank’ on a rather inconsequential and insignificant blog.

The model, Liskula Cohen, has now filed a lawsuit against Google and its website, seeking the identity of the anonymous blogger.

Although the entire blog was generated on a single day and it contains a total of solely five posts, the blog entries refer to the model derogatorily as a "ho," a “#1 skanky superstar,” and otherwise depict her as sexually promiscuous, dishonest, and unclean.

Because the site is hosted through Google's Blogger service, Cohen is asking the court to order Google to disclose identifying information including the blogger's name, address, telephone number and email.

As a policy matter, Google does not reveal bloggers' identities without a court order. "We take great care to respect privacy concerns and will only provide information about a user in response to a subpoena or other court order," a spokesperson said.

On January 5, the court issued an "order to show cause," which requires Google to appear before the court on January 26 for arguments about whether disclosure of the blogger's identity should be ordered.

New York attorney Steven Wagner represents Cohen, who in the past appeared on the cover of Australian Vogue. He alleges in the complaint that the blog posting is defamatory, libelous, and costing his client possible employment.

Wagner acknowledged that it is no easy legal task to identify bloggers who lob insults anonymously, but re-asserted his position that the publications were defamatory “and you shouldn’t just get away with this.”

If Mr. Wagner were practicing in South Florida and reading the JAABLOG, he could find work very quickly. But he would have a tough legal road ahead of him.

While Florida has no uniform standard to go by, courts around the country apply at least a two-pronged test before requiring the release of the name of a blogger, if it can even be found. First, the Plaintiff has to show that the blogger’s remarks are defamatory. For a statement to be defamatory, it first must be false, and then it has to expose a person to ridicule, contempt, or injure him in his business or trade.

Second, once the plaintiff establishes defamation, the court then balances the strength of his underlying legal claim and the need for disclosure against the strength of the blogger's claim to First Amendment protection. Courts have recognized that the right to speak anonymously is a fundamental part of the First Amendment right to free speech, and accordingly some level of scrutiny is required before stripping an anonymous Internet speaker of that right. It is a tough road to hoe; a high burden to meet.

When considering a subpoena or other discovery request seeking to unmask a speaker, courts have to balance these two competing rights. But courts have struck the balance in different ways, and the result is a number of different legal tests for deciding whether or not to allow a blogger/speaker's identity to be revealed. These tests or standards can be placed into roughly two categories: (1) high-burden tests and (2) low-burden tests.

Every state is of course different, but most are leaning towards protecting the rights of anonymous bloggers. Many states are mandating a high burden for the Plaintiffs, and appropriately protecting bloggers rights. You can read more about this at the Electronic Frontier Foundation website.

Florida has few cases on point thus far. As you can see from the New York suit, it does not require a blog as prolific as JAABLOG to initiate an action. If defamation is alleged, the legal issue to be determined is whether a blog could be judicially directed to turn over to a court the ISP addresses of anonymous authors if subpoenaed. The answer is yes, it could happen, but there are many hurdles to climb. That is the situation facing Google in New York today. They will fight the subpoena, as we would do here.

A factor that might affect what test or standard applies is the character of the speech activity over which you are sued. Some lawsuits clearly implicate important First Amendment concerns -- criticism of public officials or government policies, whistleblower activities, to name a few. That would seem to protect the bulk of the communications on this JAABLOG.

I think you can reasonably predict that a court is more likely to apply a high-burden standard when "core" First Amendment values are involved, and less likely to do so when the issues appear personal or otherwise unrelated to matters of public concern.

I think that the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, I believe an author's decision to remain anonymous is an aspect of the freedom of speech protected by the First Amendment. Nevertheless, when you are significantly causing harm to another, courts will have to weigh your right to anonymity versus the purported victim’s right to redress his grievances.

I have always been persuaded that courage is standing up and identifying yourself, not cowering in a closet. As a person, you grow and mature by the adversities you engage. I would defend a blogger’s right to do so anonymously, but I would never want to be in that position myself.

According to the nonprofit Media Law Resource Center, there have been over 150 documented civil court actions involving bloggers. At least seven cases have resulted in verdicts against bloggers, with cumulative penalties totaling $18.5 million. But I would not lose sleep over this. The Internet is growing exponentially every moment, with thousands of new blogs getting created on the Internet every day.
By the way, the blog itself is not liable for the libel. Federal laws protect it. While newspapers can still be sued for the residual publications of libel, blog sites such as these are shielded under the Communications and Decency Act, specifically Section 230.

Still, if you blog frequently and loosely, make an effort to understand liability. There are limits. It’s kind of like the speedometer on your car. Just because the odometer goes up to 180 mph does not mean you should always drive your car down Broward Boulevard at that speed.

Exercise a little discretion and caution and you will further your rights to post anonymously and induce courts to continue to protect them. What you learn today might protect you from a lawsuit tomorrow. Besides, it might protect me from having to go to court to defend your first amendment right to be a jerk. You have that right, and let’s face it, many of you use it.!

Thursday, January 1, 2009

Maxims for the New Year

Rules and Maxims for the New Year

by Norm Kent

1. Auto industry executives have joined baseball players as the most overpaid professionals in the world. Just as I am sure that there are some fantasy league l general managers who could run teams better than baseball executives, I bet there are a lot of auto dealers who have been selling cars for the past 30 years that could have done a lot better than those big shots in Detroit did.

2. Our government can’t fight a war, clean up after a hurricane, or regulate a single industry. We don’t just need term limits for politicians, we need SAT tests.

3. The kid you played stickball with in a schoolyard when you were six years old may grow up to be a crook at 50. Every era in American history has been poisoned by corrupt thieves who made off with a fortune while you paid the price.

4. Anyone who smokes may not deserve to get cancer but they sure do not deserve money from jurors for getting sick. You don’t need labels to tell you to stop smoking.

5. If Barney wants to marry Bill and live together in Wilton Manors, no straight couple in Tallahassee has a right to vote on an amendment saying they cannot.

6. Speaking of which, one of the rights the justices ruling on the constitution have forgotten to protect in the past two hundred years is the ‘pursuit of happiness.. .’

7. If pot is so bad, how come more Americans died last year from ice cream cones and spinach?

9. The only time in the last eight years our Vice President was on target was when he shot his lawyer friend while hunting.

10. There is no question that George Bush was loyal to Laura, but when you look at what a mess the country is in maybe he should have taken some pointers from Bill Clinton and screwed around a little more.

11. Rush Limbaugh belongs in jail for trafficking in oxycontin, not on the air trafficking in hate.

12. I do not care how many times Brittany Spears goes into rehab, and Hulk Hogan’s family or Anna Nicole Smith’s should not be your role models. Try your mom instead.

13. I don’t care if he was a Vietnam war vet, I do not need to feel sympathy for a 60 year old man who says he is homeless because of post traumatic stress disorder from a war forty years ago. Get over it. Move on.

14. In real life, all crime is not solved in 48 minutes like you see on ‘Law and Order’ and ‘CSI’. Sometimes bad things happen to good people and bad people go free and the good unfairly suffer.

15. When everyone in your world has abandoned or left you, your family will be by your side to ridicule you, laugh at you, and say ‘I told you so.’

16. Alexander the Great conquered half the world by the time he was 21, and he did not have a cel phone.

17. I still have a lover’s quarrel with the world, but I can no longer see that world without reading glasses. I am not sure the golden years are golden. I think they are more like the beginning of the end. Make sure you enjoy the ride while you can.

18. If all the politicians in America are too stupid to figure out a way to provide health care for every American, can we at least devise a method to take care of every kid?

19. If you have to perform under the name of Lady Ga Ga this year, no one will know who you are in 10 years.

20. Laugh more. Eat less. Drink Coca Cola. Drive Safe. Save the Earth. Don’t expect to win the Lottery and avoid the inane, banal hosts who infest the air waves on New Year’s Eve.

21. One final thought for the start of the year. You love your dog. He loves you. I saw this plaque: Try to live your life being the kind of person he thinks you are.