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2015.87: Texas’s Disorderly Conduct Statute Unconstitutional

Blog - Tue, 11/03/2015 - 16:32

My client was charged by information with

intentionally and knowingly display[ing] a deadly weapon, namely, A FIREARM, in a public place and in a manner calculated to alarm

This is an accusation of disorderly conduct under Section 42.01(a)(8) of the Texas Penal Code:

Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:

. . . . .

(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;

Content-based restrictions on speech are presumptively invalid under the First Amendment. Is Section 42.01(a)(8) a content-based restriction on speech?

Speech includes expressive conduct.

A statute is a content-based restriction on speech if it regulates speech based on its message, its subject matter, or its intent.

Section 42.01(a)(8) forbids not only the exhibition of firearms to threaten or for no communicative purpose, but also the symbolic speech of exhibiting firearms to make points, including political points, such as the open-carry demonstrations characterized by the media as “alarming.”

A communication “calculated” to have an effect has been described by the Texas Supreme Court (in an opinion not binding in criminal cases) as one that an ordinary reasonable speaker would foresee is likely to cause that effect. Not all speech that is calculated to alarm is intended to alarm, but all speech that is intended to alarm is calculated to alarm.

If the Texas Supreme Court’s definition of “calculated” applies, then sometimes displaying a firearm in a manner calculated to alarm will not be symbolic conduct (because it is not intended to alarm, even though an ordinary reasonable speaker would foresee that it is likely to cause that effect), and is unprotected. But only sometimes.

Because Section 42.01(a)(8) forbids some speech that is intended to alarm based on that intent, it is a content-based restriction on speech and is presumptively invalid. The State has the burden of overcoming this presumption.

The State might meet its burden by showing that the speech restricted by Section 42.01(a)(8) falls entirely into a category of unprotected speech; or it might meet its burden by showing that the statute meets strict scrutiny—that it is necessary and narrowly written to satisfy a compelling governmental interest.

Remember that speech may not be forbidden just because it causes emotional harm. We are allowed to offend each other, to embarrass each other, and even to alarm each other. So speech “calculated to alarm” does not fall entirely into any category of unprotected speech.

What we are not allowed to do is to threaten each other. The nearest applicable category of unprotected speech is “true threats.”

Sometimes displaying a firearm in a manner calculated to alarm will be a “true threat.” But only sometimes. For example: open?carry protesters display firearms in a manner calculated to alarm Moms Demand Action, but they do not intend to threaten injury. Displaying a firearm with the intent to put a person in imminent fear of bodily injury is aggravated assault under Section 22.02 of the Texas Penal Code as well as disorderly conduct under Section 42.01(a)(8). If open-carry protesters intended to threaten imminent injury, they would be committing assault.

The statute is a content-based restriction on speech, so it is presumptively unconstitutional. The speech that is restricted does not fall entirely into a category of unprotected speech. The remaining question is whether the statute satisfies strict scrutiny—whether it is necessary and narrowly drawn to satisfy a compelling state purpose.

The legitimate state interest in Section 42.01(a)(8) is an interest in keeping people from being threatened. This interest is satisfied by other sections of the Texas Penal Code. Forbidding people from “alarming” each other with firearms. The fact that all of the speech that Section 42.01(a)(8) restricts is either forbidden by Section 22.02 (true threats) or constitutionally protected (everything else) militates against the statute being either necessary or narrowly written.

So since the statute is a content-based restriction on unprotected speech, and it is not narrowly written to satisfy a compelling governmental interest, Section 42.01(a)(8) is unconstitutional.

At least, that’s what I’d argue if the State hadn’t dismissed my client’s case.

2015.87: Texas’s Disorderly Conduct Statute Unconstitutional

Mark's Blog: Defending People - Tue, 11/03/2015 - 16:32

My client was charged by information with

intentionally and knowingly display[ing] a deadly weapon, namely, A FIREARM, in a public place and in a manner calculated to alarm

This is an accusation of disorderly conduct under Section 42.01(a)(8) of the Texas Penal Code:

Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:

. . . . .

(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;

Content-based restrictions on speech are presumptively invalid under the First Amendment. Is Section 42.01(a)(8) a content-based restriction on speech?

Speech includes expressive conduct.

A statute is a content-based restriction on speech if it regulates speech based on its message, its subject matter, or its intent.

Section 42.01(a)(8) forbids not only the exhibition of firearms to threaten or for no communicative purpose, but also the symbolic speech of exhibiting firearms to make points, including political points, such as the open-carry demonstrations characterized by the media as “alarming.”

A communication “calculated” to have an effect has been described by the Texas Supreme Court (in an opinion not binding in criminal cases) as one that an ordinary reasonable speaker would foresee is likely to cause that effect. Not all speech that is calculated to alarm is intended to alarm, but all speech that is intended to alarm is calculated to alarm.

If the Texas Supreme Court’s definition of “calculated” applies, then sometimes displaying a firearm in a manner calculated to alarm will not be symbolic conduct (because it is not intended to alarm, even though an ordinary reasonable speaker would foresee that it is likely to cause that effect), and is unprotected. But only sometimes.

Because Section 42.01(a)(8) forbids some speech that is intended to alarm based on that intent, it is a content-based restriction on speech and is presumptively invalid. The State has the burden of overcoming this presumption.

The State might meet its burden by showing that the speech restricted by Section 42.01(a)(8) falls entirely into a category of unprotected speech; or it might meet its burden by showing that the statute meets strict scrutiny—that it is necessary and narrowly written to satisfy a compelling governmental interest.

Remember that speech may not be forbidden just because it causes emotional harm. We are allowed to offend each other, to embarrass each other, and even to alarm each other. So speech “calculated to alarm” does not fall entirely into any category of unprotected speech.

What we are not allowed to do is to threaten each other. The nearest applicable category of unprotected speech is “true threats.”

Sometimes displaying a firearm in a manner calculated to alarm will be a “true threat.” But only sometimes. For example: open?carry protesters display firearms in a manner calculated to alarm Moms Demand Action, but they do not intend to threaten injury. Displaying a firearm with the intent to put a person in imminent fear of bodily injury is aggravated assault under Section 22.02 of the Texas Penal Code as well as disorderly conduct under Section 42.01(a)(8). If open-carry protesters intended to threaten imminent injury, they would be committing assault.

The statute is a content-based restriction on speech, so it is presumptively unconstitutional. The speech that is restricted does not fall entirely into a category of unprotected speech. The remaining question is whether the statute satisfies strict scrutiny—whether it is necessary and narrowly drawn to satisfy a compelling state purpose.

The legitimate state interest in Section 42.01(a)(8) is an interest in keeping people from being threatened. This interest is satisfied by other sections of the Texas Penal Code. Forbidding people from “alarming” each other with firearms. The fact that all of the speech that Section 42.01(a)(8) restricts is either forbidden by Section 22.02 (true threats) or constitutionally protected (everything else) militates against the statute being either necessary or narrowly written.

So since the statute is a content-based restriction on unprotected speech, and it is not narrowly written to satisfy a compelling governmental interest, Section 42.01(a)(8) is unconstitutional.

At least, that’s what I’d argue if the State hadn’t dismissed my client’s case.

2015.86: Texas First Amendment Update

Blog - Sun, 11/01/2015 - 14:02

In Ex Parte Fournier, the Court of Criminal Appeals rejected an actual-innocence claim from a guy who had gone to prison for violating Section 33.021(b). I hadn’t had a lot of hope for the actual-innocence claim—I figured the state would find a way to wire around the damage done to it by Ex Parte Lo so that it wouldn’t have to pay millions in civil claims. Judge Yeary dissented, joined by Judge Keller; they would hesitate to give Ex Parte Lo retroactive effect on the theory that there may have been some constitutional applications of the unconstitutional statute—some of the speech punished under Section 33.021(b) was not constitutionally protected.

And indeed some of the speech punished under Section 33.021(b) was not constitutionally protected; that speech was forbidden under other statutes as well. The state chose to prosecute that speech under the easy-to-prove-and-unconstitutional Section 33.021(b) rather than under a more-difficult-to-prove-but-constitutional statute. The State, rather than the accused, should bear the consequences of this decision.

I expect that Yeary’s argument will resurface when we kill other void penal statutes. Until it is definitively rejected by the court, it highlights the importance of lawyers making First Amendment challenges pretrial, getting trial-court rulings in every case.

Speaking of other void penal statutes, here are some of the challenges we have going:

  • Texas Penal Code Section 33.021—the balance of the online-solicitation statute (pre-9/15), which forbids fantasy solicitation and solicitation of people whom the defendant knows not to be children. I had high hopes for the First Court of Appeals in Wheeler; those hopes were dashed when the court essentially reissued its Maloney opinion with Lo dicta added in. I’ve filed a petition for discretionary review with the Court of Criminal Appeals. If the court refuses discretionary review, I have several other 33.021 cases in the appellate pipeline, in the 3rd, 7th, 9th, 10th, and 11th Courts of Appeals. Neither Maloney nor Wheeler is binding precedent in those courts, so they may be more receptive than the First was to applying the correct presumption, of unconstitutionality, to this content-based restriction on speech.
  • Texas Penal Code Section 33.07—the online-impersonation statute, which forbids using someone’s name online without consent but with intent to harm them. The 208th District Court court in Ex Parte Stubbs agreed with us that the statute is unconstitutional, the State’s appeal is pending in the 14th Court of Appeals. Toby Shook and I have a case pending in Dallas County as well. The State had dismissed two other Online Impersonation prosecutions in the face of constitutional challenges; they committed to defending the statute on appeal in Stubbs before Judge McSpadden granted relief.
  • Texas Penal Code Section 32.51—the fraudulent-use-of-identifying-information statute, which forbids using someone’s name (or anything else about them) without consent but with intent to harm them. This is going to be a big one. I have cases pending in trial courts in Galveston, Harris, Fort Bend, Lubbock, Denton, McLennan, Montgomery, and Wharton Counties. I had briefed the issue, but the State dismissed the indictment the day their brief was due.
  • Texas Penal Code Section 42.01(a)(8)—disorderly conduct by exhibiting a firearm in a manner calculated to alarm. The State dismissed this case as well.
  • Texas Penal Code Section 21.15—improper photography. The Court of Criminal Appeals held half of this statute unconstitutional last year; we’re going after the other half, which forbids taking or broadcasting bathroom or dressing-room images with the intent to invade the privacy of the complainant or arouse or gratify the sexual desire of any person. My appeal is pending in the Fourteenth Court of Appeals; the State’s brief is due November 18th.

When the State starts prosecuting people under Section 21.16 of the Texas Penal Code—Unlawful Disclosure or Promotion of Intimate Visual Material, Texas’s new revenge-porn statute, effective September 1, 2015—I’m sure Texas lawyers will keep me in that loop as well.

2015.86: Texas First Amendment Update

Mark's Blog: Defending People - Sun, 11/01/2015 - 14:02

In Ex Parte Fournier, the Court of Criminal Appeals rejected an actual-innocence claim from a guy who had gone to prison for violating Section 33.021(b). I hadn’t had a lot of hope for the actual-innocence claim—I figured the state would find a way to wire around the damage done to it by Ex Parte Lo so that it wouldn’t have to pay millions in civil claims. Judge Yeary dissented, joined by Judge Keller; they would hesitate to give Ex Parte Lo retroactive effect on the theory that there may have been some constitutional applications of the unconstitutional statute—some of the speech punished under Section 33.021(b) was not constitutionally protected.

And indeed some of the speech punished under Section 33.021(b) was not constitutionally protected; that speech was forbidden under other statutes as well. The state chose to prosecute that speech under the easy-to-prove-and-unconstitutional Section 33.021(b) rather than under a more-difficult-to-prove-but-constitutional statute. The State, rather than the accused, should bear the consequences of this decision.

I expect that Yeary’s argument will resurface when we kill other void penal statutes. Until it is definitively rejected by the court, it highlights the importance of lawyers making First Amendment challenges pretrial, getting trial-court rulings in every case.

Speaking of other void penal statutes, here are some of the challenges we have going:

  • Texas Penal Code Section 33.021—the balance of the online-solicitation statute (pre-9/15), which forbids fantasy solicitation and solicitation of people whom the defendant knows not to be children. I had high hopes for the First Court of Appeals in Wheeler; those hopes were dashed when the court essentially reissued its Maloney opinion with Lo dicta added in. I’ve filed a petition for discretionary review with the Court of Criminal Appeals. If the court refuses discretionary review, I have several other 33.021 cases in the appellate pipeline, in the 3rd, 7th, 9th, 10th, and 11th Courts of Appeals. Neither Maloney nor Wheeler is binding precedent in those courts, so they may be more receptive than the First was to applying the correct presumption, of unconstitutionality, to this content-based restriction on speech.
  • Texas Penal Code Section 33.07—the online-impersonation statute, which forbids using someone’s name online without consent but with intent to harm them. The 208th District Court court in Ex Parte Stubbs agreed with us that the statute is unconstitutional, the State’s appeal is pending in the 14th Court of Appeals. Toby Shook and I have a case pending in Dallas County as well. The State had dismissed two other Online Impersonation prosecutions in the face of constitutional challenges; they committed to defending the statute on appeal in Stubbs before Judge McSpadden granted relief.
  • Texas Penal Code Section 32.51—the fraudulent-use-of-identifying-information statute, which forbids using someone’s name (or anything else about them) without consent but with intent to harm them. This is going to be a big one. I have cases pending in trial courts in Galveston, Harris, Fort Bend, Lubbock, Denton, McLennan, Montgomery, and Wharton Counties. I had briefed the issue, but the State dismissed the indictment the day their brief was due.
  • Texas Penal Code Section 42.01(a)(8)—disorderly conduct by exhibiting a firearm in a manner calculated to alarm. The State dismissed this case as well.
  • Texas Penal Code Section 21.15—improper photography. The Court of Criminal Appeals held half of this statute unconstitutional last year; we’re going after the other half, which forbids taking or broadcasting bathroom or dressing-room images with the intent to invade the privacy of the complainant or arouse or gratify the sexual desire of any person. My appeal is pending in the Fourteenth Court of Appeals; the State’s brief is due November 18th.

When the State starts prosecuting people under Section 21.16 of the Texas Penal Code—Unlawful Disclosure or Promotion of Intimate Visual Material, Texas’s new revenge-porn statute, effective September 1, 2015—I’m sure Texas lawyers will keep me in that loop as well.

2015.85: Reputation Management Expert Patrick Zarrelli Weighs In

Blog - Fri, 10/30/2015 - 09:15

Thus spake Patrick Zarrelli:

We called you honestly and professionally about our client. We work in cyber bullying, a real field, that’s important. You instantly began to swear at me, after admitting that you and Greenfield are friends who support each others blogs for SEO purposes. In this case to SEO under my clients name for advertising. Then when I told you why I called, and you realized you had exposed yourself and Greenfield in possible unethical advertising practices you freaked. Based on this article I cant tell your still angry and its clouding your judgment.

There is nothing honest or ethical about this article or your advertising techniques. Now you say im on cocaine because I dare call you on the phone politely? That’s really dishonest my friend. Im sorry your so angry, but what you are doing here is dark, unethical, and not benefiting of a lawyer or the bar you licensed under.

All it is, is text book, cyber bullying. Posted for no other purpose except to hurt others, and encourage your friends, and fellow unethical marketers, to join in on the personal attack of an honest person.

Bullshit, Zarrelli.

You are not a “professional.” You are a born loser trying to muddle by, a socially retarded 36-year-old man-child with a string of failures who is still trying to figure out why the world has stopped handing things to him on a silver platter.

That’s okay. Most people are more or less like that. People who smoke a lot of weed don’t mature; this is not a world that hands things to people on silver platters; most entrepreneurs fail serially.

You called to try to extort me with threats of frivolous grievances. You asked me if I was Greenfield’s friend, and I told you I was. I’d never deny that. I hung up on you, and you called back to continue making your threats. You claimed that you knew more free-speech law than me, and I told you not to threaten, but to do it. The rest—SEOing your client’s name for advertising—is but a product of your fevered imagination.

Greenfield wrote a blog post about you this morning. One post. The only time he has mentioned your name.  He published two hours ago. When I google your name—just <Patrick Zarrelli>—Greenfield’s posts comes up in the #5 slot, after your carefully cultivated social-media pages. When I google <Patrick Zarrelli reputation management> it’s the first hit. Nobody had to do any SEO to make that happen; I hadn’t linked to it until just now. It’s just Scott’s blog, which Google absolutely loves.

Scott’s blog has Google Pagerank 6. You do not have anything that compares. His post about you will be at the top of Google search results by the end of the day, and it will stay there for as long as you want to keep playing.

Google loves Scott’s blog (and likes mine, but not in that way) because it isn’t marketing. Scott gets up early every morning and writes two or three blog posts about whatever the hell he wants to write about. People read him, and think, or laugh, or become outraged, and they comment and share. There is no call to action, no bragging about his legal talent or his latest win. Scott isn’t writing to get clients, he’s writing because writers gotta write.

Scott and I both wrote about your purported client Gary Ostrow because Ostrow did something that was in our respective wheelhouses: he put out a press release claiming to be taking high-profile cases. That press release is still there.

Why would that be interesting to us? Because not everybody thinks like you and Gary Ostrow do. Not everyone sees everything as marketing. Some of us think that educating and entertaining, being educated and entertained, are more important than attracting more money.

Anyway, there is no way in the world that pointing and laughing at Gary Ostrow’s foolishness (or yours) is going to bring Greenfield or me a single client.

So anyway, I guess that’s a digression. A little insight for you.

A man does not threaten to do things. If you’re going to do something, do it. If you’re not, don’t.

I don’t like being threatened. If you happen to threaten me, I will not respond with threats. I will brush it off, or I will strike.

I don’t like being grieved. I’ve been grieved before for the content of my blog. I’ve even been sued for the content of my blog. Nothing has ever taken. The inconvenience has ranged from piddly to moderate.

I don’t like having people tell me what I can and can’t say. I’d suffer major inconvenience rather than cave to a censor. There are blogging lawyers who would cower in the face of a grievance threat; I am not one of these lawyers. Defending free speech is what I do for a living; I’m not going to give up my own free speech for convenience’s sake.

So when you tried to extort me by threatening to file a grievance against me for the content of my blog, I have to admit that it pushed my buttons. I could have told you that it’d push Greenfield’s buttons as well.

As a result, your client’s reputation has suffered. You’ve made it about yourself, and your client’s reputation will suffer more because he is yoked to you.

It’s not my job to teach you anything, Patrick—that should have been your parents’ task—but I offer a pointer for the other aspiring reputation managers who might stumble across this post. Because criminal-defense lawyers are the OG reputation managers:

Know your audience. Before you make a run at a guy, figure out what is going to help your client most. You only get one chance to get it right, and if you get it wrong and try to threaten a guy who won’t be threatened, you’ve failed. When it comes to reputation management, success is fleeting, but failure is forever.

2015.85: Reputation Management Expert Patrick Zarrelli Weighs In

Mark's Blog: Defending People - Fri, 10/30/2015 - 09:15

Thus spake Patrick Zarrelli:

We called you honestly and professionally about our client. We work in cyber bullying, a real field, that’s important. You instantly began to swear at me, after admitting that you and Greenfield are friends who support each others blogs for SEO purposes. In this case to SEO under my clients name for advertising. Then when I told you why I called, and you realized you had exposed yourself and Greenfield in possible unethical advertising practices you freaked. Based on this article I cant tell your still angry and its clouding your judgment.

There is nothing honest or ethical about this article or your advertising techniques. Now you say im on cocaine because I dare call you on the phone politely? That’s really dishonest my friend. Im sorry your so angry, but what you are doing here is dark, unethical, and not benefiting of a lawyer or the bar you licensed under.

All it is, is text book, cyber bullying. Posted for no other purpose except to hurt others, and encourage your friends, and fellow unethical marketers, to join in on the personal attack of an honest person.

Bullshit, Zarrelli.

You are not a “professional.” You are a born loser trying to muddle by, a socially retarded 36-year-old man-child with a string of failures who is still trying to figure out why the world has stopped handing things to him on a silver platter.

That’s okay. Most people are more or less like that. People who smoke a lot of weed don’t mature; this is not a world that hands things to people on silver platters; most entrepreneurs fail serially.

You called to try to extort me with threats of frivolous grievances. You asked me if I was Greenfield’s friend, and I told you I was. I’d never deny that. I hung up on you, and you called back to continue making your threats. You claimed that you knew more free-speech law than me, and I told you not to threaten, but to do it. The rest—SEOing your client’s name for advertising—is but a product of your fevered imagination.

Greenfield wrote a blog post about you this morning. One post. The only time he has mentioned your name.  He published two hours ago. When I google your name—just <Patrick Zarrelli>—Greenfield’s posts comes up in the #5 slot, after your carefully cultivated social-media pages. When I google <Patrick Zarrelli reputation management> it’s the first hit. Nobody had to do any SEO to make that happen; I hadn’t linked to it until just now. It’s just Scott’s blog, which Google absolutely loves.

Scott’s blog has Google Pagerank 6. You do not have anything that compares. His post about you will be at the top of Google search results by the end of the day, and it will stay there for as long as you want to keep playing.

Google loves Scott’s blog (and likes mine, but not in that way) because it isn’t marketing. Scott gets up early every morning and writes two or three blog posts about whatever the hell he wants to write about. People read him, and think, or laugh, or become outraged, and they comment and share. There is no call to action, no bragging about his legal talent or his latest win. Scott isn’t writing to get clients, he’s writing because writers gotta write.

Scott and I both wrote about your purported client Gary Ostrow because Ostrow did something that was in our respective wheelhouses: he put out a press release claiming to be taking high-profile cases. That press release is still there.

Why would that be interesting to us? Because not everybody thinks like you and Gary Ostrow do. Not everyone sees everything as marketing. Some of us think that educating and entertaining, being educated and entertained, are more important than attracting more money.

Anyway, there is no way in the world that pointing and laughing at Gary Ostrow’s foolishness (or yours) is going to bring Greenfield or me a single client.

So anyway, I guess that’s a digression. A little insight for you.

A man does not threaten to do things. If you’re going to do something, do it. If you’re not, don’t.

I don’t like being threatened. If you happen to threaten me, I will not respond with threats. I will brush it off, or I will strike.

I don’t like being grieved. I’ve been grieved before for the content of my blog. I’ve even been sued for the content of my blog. Nothing has ever taken. The inconvenience has ranged from piddly to moderate.

I don’t like having people tell me what I can and can’t say. I’d suffer major inconvenience rather than cave to a censor. There are blogging lawyers who would cower in the face of a grievance threat; I am not one of these lawyers. Defending free speech is what I do for a living; I’m not going to give up my own free speech for convenience’s sake.

So when you tried to extort me by threatening to file a grievance against me for the content of my blog, I have to admit that it pushed my buttons. I could have told you that it’d push Greenfield’s buttons as well.

As a result, your client’s reputation has suffered. You’ve made it about yourself, and your client’s reputation will suffer more because he is yoked to you.

It’s not my job to teach you anything, Patrick—that should have been your parents’ task—but I offer a pointer for the other aspiring reputation managers who might stumble across this post. Because criminal-defense lawyers are the OG reputation managers:

Know your audience. Before you make a run at a guy, figure out what is going to help your client most. You only get one chance to get it right, and if you get it wrong and try to threaten a guy who won’t be threatened, you’ve failed. When it comes to reputation management, success is fleeting, but failure is forever.

2015.84: Dear Gary Ostrow

Blog - Thu, 10/29/2015 - 20:13

Dear Gary,

I had forgotten, to tell you the truth, that I’d written this little bagatelle about your ridiculous Gary Ostrow Lawyer Announces He Is Taking on All Celebrity Criminal Cases in Florida press release. It’d been a couple years, and it wasn’t a big deal at the time. It attracted a few comments then slipped my mind.

Then I got a phone call today from some guy calling himself Patrick Zarrelli. He claimed to be doing reputation management on your behalf. He said something about cocaine—I can’t be sure whether he was talking about himself or about you.

Anyway, this Patrick Zarrelli guy threatened to file a grievance against me if I didn’t take the post down.

I tried to explain to Zarrelli that I’m a First Amendment lawyer and that I’ve been unsuccessfully grieved and sued for the content of this blog. He didn’t seem to catch the gist; he kept threatening, acting like he thought he knew the law. There was some mumbo-jumbo about it not being “hot news,” so that I had to take it down. Apparently he has lawyers in his family, so he’s an expert. I know: crazy, right? (Do you think it was the cocaine talking?)

I don’t play well with extortionists, so I told Zarrelli to go ahead and file his grievance. I may have dropped an f-bomb or two—Gary, don’t you hate it when people threaten to do stupid things instead of just doing them? I know I do.

Anyway, Gary, I thought you’d like to know that some stupid asshole calling himself Patrick Zarrelli is going around trying to fuck up your reputation while claiming to be your agent. Despite the judgment errors in your past (which are legion—we all make mistakes), I doubt that you are dumb enough to hire this Zarrelli character to try to push me around.

Are you, Gary?

Anyway, you might want to get ahead of this one, since if Zarrelli makes the same call to Scott Greenfield, all hell is likely to break loose.

Love,

MB.

p.s. Can you cook?

2015.84: Dear Gary Ostrow

Mark's Blog: Defending People - Thu, 10/29/2015 - 20:13

Dear Gary,

I had forgotten, to tell you the truth, that I’d written this little bagatelle about your ridiculous Gary Ostrow Lawyer Announces He Is Taking on All Celebrity Criminal Cases in Florida press release. It’d been a couple years, and it wasn’t a big deal at the time. It attracted a few comments then slipped my mind.

Then I got a phone call today from some guy calling himself Patrick Zarrelli. He claimed to be doing reputation management on your behalf. He said something about cocaine—I can’t be sure whether he was talking about himself or about you.

Anyway, this Patrick Zarrelli guy threatened to file a grievance against me if I didn’t take the post down.

I tried to explain to Zarrelli that I’m a First Amendment lawyer and that I’ve been unsuccessfully grieved and sued for the content of this blog. He didn’t seem to catch the gist; he kept threatening, acting like he thought he knew the law. There was some mumbo-jumbo about it not being “hot news,” so that I had to take it down. Apparently he has lawyers in his family, so he’s an expert. I know: crazy, right? (Do you think it was the cocaine talking?)

I don’t play well with extortionists, so I told Zarrelli to go ahead and file his grievance. I may have dropped an f-bomb or two—Gary, don’t you hate it when people threaten to do stupid things instead of just doing them? I know I do.

Anyway, Gary, I thought you’d like to know that some stupid asshole calling himself Patrick Zarrelli is going around trying to fuck up your reputation while claiming to be your agent. Despite the judgment errors in your past (which are legion—we all make mistakes), I doubt that you are dumb enough to hire this Zarrelli character to try to push me around.

Are you, Gary?

Anyway, you might want to get ahead of this one, since if Zarrelli makes the same call to Scott Greenfield, all hell is likely to break loose.

Love,

MB.

p.s. Can you cook?

2015.83 Dean Boland’s Threats Untethered From Truth

Blog - Sun, 10/25/2015 - 12:04

I did not enter into any agreement called a “deferred prosecution agreement” nor even words to that effect.  This statement is false and defamatory and damaging to my professional reputation.

. . . . .

I never entered a deferred prosecution agreement with the government.  This statement is defamatory and causing me real, financial harm which is calculable.

Dean Boland, October 2015.

On the criminal side, the government alleged that Boland’s conduct violated federal criminal child pornography laws, leading to a deferred prosecution agreement with him.

. . . . .

In his deferred prosecution agreement, he suggested as much, stipulating that he “downloaded at least four … images, from the Internet, depicting four … real, identifiable minors in innocent poses,” and then “digitally manipulated such images … to appear that each of the … minors was engaged in sexually explicit conduct.” R.73-1 at 10. In his apology, he added, “I do recognize that such images violate federal law.” Id. at 12.

—Doe v. Boland, 630 F.3d 491 (6th Cir. 2011).

Dean Boland’s denial that he entered into the deferred prosecution agreement quoted by the Sixth Circuit was in the context of a demand that Scott Greenfield revise or remove this sympathetic post. Scott had, when Boland approached him before, expressed a willingness to remove the post if it would do him any good:

I responded to Boland by telling him that if he was able to persuade the others to take their posts down, I would remove mine. If not, then there was nothing to be gained.

That was a wholly unnecessary kindness on Scott’s part, which Dean Boland must have interpreted as weakness, because his next move was to lie to and threaten him. Like Scott, I had some sympathy for Boland when he got dinged for trying to concretize a legal point. But whatever consideration he might have had, he threw that away. And in doing so he might just have made things worse.

2015.83 Dean Boland’s Threats Untethered From Truth

Mark's Blog: Defending People - Sun, 10/25/2015 - 12:04

I did not enter into any agreement called a “deferred prosecution agreement” nor even words to that effect.  This statement is false and defamatory and damaging to my professional reputation.

. . . . .

I never entered a deferred prosecution agreement with the government.  This statement is defamatory and causing me real, financial harm which is calculable.

Dean Boland, October 2015.

On the criminal side, the government alleged that Boland’s conduct violated federal criminal child pornography laws, leading to a deferred prosecution agreement with him.

. . . . .

In his deferred prosecution agreement, he suggested as much, stipulating that he “downloaded at least four … images, from the Internet, depicting four … real, identifiable minors in innocent poses,” and then “digitally manipulated such images … to appear that each of the … minors was engaged in sexually explicit conduct.” R.73-1 at 10. In his apology, he added, “I do recognize that such images violate federal law.” Id. at 12.

—Doe v. Boland, 630 F.3d 491 (6th Cir. 2011).

Dean Boland’s denial that he entered into the deferred prosecution agreement quoted by the Sixth Circuit was in the context of a demand that Scott Greenfield revise or remove this sympathetic post. Scott had, when Boland approached him before, expressed a willingness to remove the post if it would do him any good:

I responded to Boland by telling him that if he was able to persuade the others to take their posts down, I would remove mine. If not, then there was nothing to be gained.

That was a wholly unnecessary kindness on Scott’s part, which Dean Boland must have interpreted as weakness, because his next move was to lie to and threaten him. Like Scott, I had some sympathy for Boland when he got dinged for trying to concretize a legal point. But whatever consideration he might have had, he threw that away. And in doing so he might just have made things worse.

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