Justice Louis Brandeis on Free Speech

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

~Justice Louis Brandeis, concurring, Whitney v. California, 274 U.S. 357 (1927)

Brandeis Justice

I sought for the key to the greatness and genius of America

Alexis de Tocqueville

Alexis de Tocqueville was the famous 19th century French statesman, historian and social philosopher. He traveled to America in the 1830s to discover the reasons for the incredible success of this new nation. He published his observations in his classic two-volume work, Democracy in America. He was especially impressed by America’s religious character. Here are some startling excerpts from Tocqueville’s great work:

Upon my arrival in the United States the religious aspect of the country was the first thing that struck my attention; and the longer I stayed there, the more I perceived the great political consequences resulting from this new state of things. In France I had almost always seen the spirit of religion and the spirit of freedom marching in opposite directions. But in America I found they were intimately united and that they reigned in common over the same country.

Religion in America . . . must be regarded as the foremost of the political institutions of that country; for if it does not impart a taste for freedom, it facilitates the use of it. Indeed, it is in this same point of view that the inhabitants of the United States themselves look upon religious belief.

I do not know whether all Americans have a sincere faith in their religion — for who can search the human heart? But I am certain that they hold it to be indispensable to the maintenance of republican institutions. This opinion is not peculiar to a class of citizens or a party, but it belongs to the whole nation and to every rank of society.

In the United States, the sovereign authority is religious . . . there is no country in the world where the Christian religion retains a greater influence over the souls of men than in America, and there can be no greater proof of its utility and of its conformity to human nature than that its influence is powerfully felt over the most enlightened and free nation of the earth.

In the United States, the influence of religion is not confined to the manners, but it extends to the intelligence of the people . . .

Christianity, therefore, reigns without obstacle, by universal consent . . .

I sought for the key to the greatness and genius of America in her harbors . . . ; in her fertile fields and boundless forests; in her rich mines and vast world commerce; in her public school system and institutions of learning. I sought for it in her democratic Congress and in her matchless Constitution.

Not until I went into the churches of America and heard her pulpits flame with righteousness did I understand the secret of her genius and power.

America is great because America is good, and if America ever ceases to be good, America will cease to be great.

The safeguard of morality is religion, and morality is the best security of law as well as the surest pledge of freedom.

The Americans combine the notions of Christianity and of liberty so intimately in their minds, that it is impossible to make them conceive the one without the other

Christianity is the companion of liberty in all its conflicts — the cradle of its infancy, and the divine source of its claims.

Tocqueville gives this account of a court case in New York:

While I was in America, a witness, who happened to be called at the assizes of the county of Chester (state of New York), declared that he did not believe in the existence of God or in the immortality of the soul. The judge refused to admit his evidence, on the ground that the witness had destroyed beforehand all confidence of the court in what he was about to say. The newspapers related the fact without any further comment. The New York Spectator of August 23rd, 1831, relates the fact in the following terms:“The court of common pleas of Chester county (New York), a few days since rejected a witness who declared his disbelief in the existence of God. The presiding judge remarked, that he had not before been aware that there was a man living who did not believe in the existence of God; that this belief constituted the sanction of all testimony in a court of justice: and that he knew of no case in a Christian country, where a witness had been permitted to testify without such belief.”

Day’s World: Day’s Ways

Where there is no vision, the people perish: but he that keepeth the law, happy is he.

~Proverbs 29:18 (KJV)

in his 1801 letter to Benjamin Waring Thomas Jefferson wrote“The will of the people. . . is the only legitimate foundation of any government, and to protect its free expression should be our first object.”

Day’s Ways

1. Restore the U.S. Constitution to its rightful place as the Supreme Law of the land, with nobody above the law.

2. Work together with Russia to defeat ISIS. Let Russia deal with ISIS in Syria. US, stay out.

3. Prosecute pedophiles, no matter what their station in life.

4. Prosecute war criminals, whether American or another nationality.

5. Prosecute false flag perpetrators, political assassins, and their handlers. Investigate the 9/11/01 terror attack with a fully-funded, independent commission. Investigate the Sandy Hook “massacre” with a fully-funded, independent commission. Same for the Las Vegas massacre, Parkland, and others.

6. Make it federal law: To hold public office, a person must have only U.S. citizenship.

7. Prosecute bankers who break the law.
8. Audit the Federal Reserve. End the Federal Reserve. Repeal the Federal Reserve Act.
9. Pull the troops from foreign countries who are creating terrorists by killing civilians. Cut the defense budget, and increase the budget for diplomacy.

10. Prosecute those who have politicized the Internal Revenue Service, the FBI, the Department of Justice, and the intelligence agencies.

11. Cut the budget for intelligence agencies.
12. Repeal NDAA, the PATRIOT Act, FISA, and the Affordable Care Act.
13. Outlaw and punish covert overthrows of sovereign nations.

14. Enforce the Posse Comitatus Act.

15. Oppose the push for more socialism in all its forms.

16. Take “journalists” off the CIA’s payroll. Defund the CIA until it stops interfering in domestic issues. Stop Operation Mockingbird.

17. Stop CIA drone strikes that create more terrorists. Defund the CIA to that extent.

18. Stop CIA regime changes. Defund the CIA to that extent.

19. Stop CIA involvement in drug-running and human trafficking. Defund the CIA to that extent.

20.  Stop CIA and NSA’s unconstitutional surveillance of American citizens. Defund the agencies to that extent.

21. Bring anti-trust actions against amazon, the television networks, the media empires, Google, Apple, Facebook, and Twitter.

22. Defund Planned Parenthood.

23. Prosecute criminals who perpetrate election frauds.

24. Prosecute George Soros and his confederates for sedition and for inciting riots.

25.  Make it Law: For each dollar that Congress spends, it must cut two dollars from the federal budget.

26. Make it Law: High school graduates and anyone over 18 years of age must serve two years in the military or do community service for two years.

27. Nationalize or seize (under executive orders) Rothschild holdings worldwide.

28. Do extreme vetting of immigrants in order to protect Americans. Deport  legal immigrants who are convicted of felonies. Deport illegals.

29. Tax arms sales, with the proceeds to go into a fund for veterans’ care.

30. Disclose the Secret Space Program.

31. Although a politically unpopular move, at some time we will have to cut entitlements so we can balance the budget. This will prevent a global financial blowout.

32. Meanwhile, account for the trillions missing from the Pentagon budget.

33. Set up military tribunals for those accused of child sex trafficking, sedition and treason.

34. Seize assets of child sex traffickers, and put the traffickers in prison.

35. Infiltrate Bohemian Grove and videotape crimes committed. Prosecute accordingly.

36. Encourage private businessmen to sponsor entrepreneurship programs in the inner cities.

37. Achieve peace on the Korean peninsula.

~Day Williams

May 19: Executed Criminals’ Last Words (Law and Lawyers)

Day Williams created this graphic depiction of this date.

May 19

Executed Criminals’ Last Words  

 

383.

Well, I hope Percy ain’t going to wet the sponge. Put me on the highway to Jackson and call my Irish buddies. Pog mo thoin. God bless.” [In Irish Gaelic, the phrase “Pog mo thoin,” is translated as “Kiss my ass.”]

~Final Statement of Robert Gleason Jr., executed January 16, 2013 9:08 p.m. by electric chair in Virginia, the first execution in the United States in 2013.

Crime Summary

Robert Gleason Jr. was serving a life sentence for the murder of Michael Kent Jamerson in Amherst County. Prosecutors said that the murder was done to help conceal Gleason’s involvement with a known drug gang. While in prison in 2009, Gleason murdered his cellmate, 63-year-old Harvey Watson Jr. after prison officials refused to move him out of his cell. He pleaded guilty and vowed to continue killing unless he was given the death penalty.

Gleason was placed in high security for the most dangerous inmates, but managed to strangle 26-year-old Aaron Cooper in the recreation yard. Both men were in separate cages. Gleason pleaded guilty again and was sentenced to death. He waived his appeals, and chose to be put to death in the electric chair, which was granted.

 

 

384.

The best time in my life is during this period. If I had to do [it] again, I would not change a thing. I have been touched by an angel’s wings. If I had it to do again, I would change Dwyer’s parents suffering, [he began to cry] because I know they are. I know that is not going to eliminate the pain, because I have a child. [He then thanked his supporters and added:] And if this takes the pain away, so be it. I love you. I’m ready to go. There better not be a mix-up here, (he laughed) I don’t want no stay.

~Jamie McCoskey, 49 (executed on November 12, 2013 at 6:44 p.m. CDT by lethal injection in Texas)

Victim: Michael Keith Dwyer, 24

 

385.

[Speaking to his family] “Give mom a hug for me and tell her that I love her. Take me home, Jesus. Take me home, Lord. I ain’t left yet, must be a miracle. I am a miracle. Y’all do understand that I came here a sinner and leaving a saint?” He told his son not to cry and told his family he would see them again. He then told the warden that he was ready. He did not acknowledge his victim’s family members.

~Marvin Lee Wilson (executed August 7, 2012 06:27 p.m. CDT by lethal injection in Texas)

Victim: Jerry Robert Williams, 21, murdered on November 10, 1992. Wilson’s execution was the 25th in the U.S. and seventh in Texas in 2012.

 

 

May 12: From Books, Plays and Movies (Law and Lawyers)

Day Williams created this graphic depiction of this date.

May 12

From Books, Plays and Movies  

 

365.

All men make mistakes, but a good man yields when he knows his course is wrong, and repairs the evil. The only crime is pride.

~Sophocles, Antigone

 

366.

If you just learn a single trick, Scout, you’ll get along better with all kinds of folks. You never really understand a person until you consider things from his point of view, until you climb inside of his skin and walk around in it.

~Atticus Finch, played by Gregory Peck in To Kill a Mockingbird

 

367.

Do you think he’s the murderer?

It’s worse than that—he’s an actor!

~Julian Fellowes, Gosford Park: The Shooting Script

 

368.

Hidden away behind the closed doors of aristocratic and bourgeois privilege, concealed under those ultra-respectable masks of black frock coat and veil, the green glow of corruption flickers into sight, steadies, and spreads everywhere, fostered by Lorrain’s horrified and complicitous gaze. This decadent detective is at one with the criminal he pursues, acknowledging openly that the representation of corruption is one of the most pleasurable forms that corruption can take. In this enterprise, art is the mask that both exposes and conceals culpability.

~Jennifer Birkett

 

 

 

 

 

April 26: Humor (Law and Lawyers) “The Case of the Peeing Poodle”

April 26

Humor

 

317.

The Case of the Peeing Poodle

 

This matter arises upon plaintiff insurance company’s Complaint for Declaratory Judgment. It seeks determination of liability under its policy No. PPF-Mo 1-242411, issued to defendant January 29, 1956, for a term of 3 years and which policy contained an attached personal property rider. This rider, with a $25 deductible provision, insured certain listed property against loss or damage.

The defendant had made a claim against plaintiff for damage caused to carpeting and after plaintiff’s complaint was filed, he answered and filed a counterclaim in which he sought to recover $7,500 plus damages for vexatious delay and reasonable attorney’s fee.

The cause was tried before the Court, without a jury.

The law has always been a hard taskmaster and requires of its advocates a serious approach and stern-visaged application.

 

André peeing

When it comes face to face with life, as it unfolds in the drama of the courtroom, the law sometimes reaches its serious, stern results from facts which have been compiled with humor.

So — while the end results of the law are deadly serious — there is about the lawyer (and even judges, occasionally) a spark of the humor of life — and a need for it.

So let it be with this opinion; for, while the end result is most serious to both plaintiff and defendant, what has brought about the necessity for the end result, is most humorous.

Our factual situation obviously had its inception when defendant obtained the insurance policy from plaintiff. If all had proceeded in the normal course of human events from that point on, this suit would never have been brought, for plaintiff insured against and was prepared for the usual expectancies of fire, wind and rain.

But, defendant purchased, and plaintiff issued, the rider, known commonly in the trade as a “floater”.

Now, “floater” provisions are covered by (and in this instance, rightly so) the rules of maritime law, for, the risks are sometimes unusual.

In any event, the policy in question provided generally for damages and loss to the furnishings and personal property of the defendant for reasons other than fire, wind and rain, to-wit, theft and other fortuitous circumstances.

What subsequently transpired after issuance brings into play the “floater” provisions of this policy. Defendant and wife purchased in October 1957 a “French Poodle“, which they appropriately and fascinatingly named André.

According to defendant, André was properly trained and broke and life was pleasant for the defendant and his wife and peaceful for the plaintiff until defendant and wife went on a vacation and left André at a kennel for the duration. When they returned their first thoughts were of André and they promptly brought him back to their chateau, blissful in the reunion.

But the home-like serenity was soon shattered, for madam soon spied André with his leg hoisted in masculine canine fashion and his purpose had been, and was being, accomplished. Madam did not testify, but defendant said she told him of the occurrence and he promptly surveyed the living room, dining room and hall and found signs of André’s misfeasance. His next step was to notify his insurance agent and make claim under the “floater” provisions of the policy.

There was some dispute between the parties as to whether proper notice was given and claim made, but the Court is convinced that defendant gave notice within the terms and provisions of the policy and plaintiff cannot escape liability on that point.

Plaintiff did send an adjuster to the premises to survey the effects of where André, the French Poodle, had popped in, piddled and popped out. In fact, he testified that André gave a “command performance” while he was there.

Also, a rug specialist was sent to the premises and he too made a survey. He found spots ranging in diameter from the size of a “dime” to nine inches, and in number from 75 to 80. He testified that one or two could have been repaired, but not that many, for it would have been impossible to match the yarn in the rug and the patches and repairs would have been as obvious as André’s tell-tale marks. He also said that the spots would have been readily noticeable from the time they dried and that they extended throughout the living room, dining room, hall, stairway and were on the rug, furniture and drapes; which gives rise to the conclusion that André had the run of the house.

The owner of the kennel, where André spent just two weeks, gave as his opinion that a dog with good habits would not lose them in two weeks; that he properly cared for the dog and had provisions for outside relief facilities for the dogs in his kennels; and, that four to five times a day would be a maximum amount of calls to nature for any dog, including André.

Plaintiff brought this declaratory judgment suit to determine its liability for threatened prosecution by the defendant and contended that this was just too many incidents to be liable for.

Defendant answered and denied, claiming surprise in André’s change of habits and further contended that there were but four or five incidents and the rest of the spots were pure dribbles, and he counterclaimed for total loss of carpeting and for damages in the amount of $7,500 therefor.

At the rate of four or five calls per day, at best it would have taken André about sixteen days to make all the spots. But, on the theory that each incident is entitled to a dribble or two, it could probably be said, without fear of contradiction, that the spotting represents ten to twelve incidents and probably over a period of a week. In that length of time if the spots had not been seen, they at least should have been recognized by other sensory perception.

A review of the search books to the law reveals no cases in point. Either there never was a poodle as prolific as André, or, before such insurance, people caught them, put their nose in it and threw them outside. Thus, we have a case of first impression.

The testimony is that André met his demise, by truck, some few weeks after his prolific, piddlin’ propensities were discovered and he, therefore, can never be made aware of his place in history unless he rests in some Valhalla from whence he can eat, sleep and answer his calls to nature, while still permitted to glance back occasionally to review the results, devastation, chaos and the indecision caused by his handiwork.

The unprecedented problem requires some decision, for the law, right or wrong, must conclude litigation. I would conclude this episode in the following manner:

For one or two occasions of André’s imprudence we might expect the plaintiff to be liable, even though it is stretching the credulity of any sage of the law to put permission and right upon liability where a person gives a canine pet the right to perambulate and pounce unrestrained throughout the house. Such privileges, even to a poodle, seem more the part of valor than of wisdom, especially where the playpen is a $7,500 rug and expensive furniture and drapes.

The law has always allowed each dog its first bite, for then the owner is put on notice of its dangerous tendencies. I would even go one or two better in incidents such as this and would have allowed recovery for two or three incidents. This would give the insured some opportunity, through sight or smell, to discover the occurrence, prevent its repetition and make claim for that which seems a fortuitous circumstance or event.

But, to allow for such prolific indiscretions, ad infinitum, is beyond credulity and borders onto wanton recklessness and disregard for which a person should not be rewarded. While André might not be expected to know the terms and conditions of plaintiff’s policy, it seems most fantastic that defendant should be able to contend that André’s indiscretion was fortuitous.

Judge Hand, in Mellon v. Federal Ins. Co. said: “Even in an all risk policy, there must be a fortuitous event—a casualty —to give rise to any liability for insurance.”

In the law, fortuitous means by chance and by accident. It seems to me that it is just by accident that André didn’t do what he did, much before the alleged occurrence, and, if by chance he didn’t, it was just too much, and too often, to require plaintiff to pay for it.

One cannot stand by and see damage being done, allow it to be done and then collect for the total loss. In other words, one cannot be present and see a fire when it first originates and at a time when something could be done to extinguish it, then go off and allow the damage to be done and attempt to collect for the total damage. Such conduct constitutes culpable negligence and precludes a recovery.

An insurer is not liable for reckless and inexcusable negligence. Neither is an insurer liable for losses resulting from inherent vice, defect, or infirmity in the subject matter insured.

Further, defendant had an obligation under ¶20 of the policy in question to safeguard the property insured thereunder. Under the terms of the policy defendant cannot recover where he discovered, or should have discovered, the damage long before it reached its final extent, in time thereafter to have safeguarded the property and have kept the damage to a minimum.

In the case at bar, defendant allowed and permitted the damage to become so extensive that he is now claiming a total loss, whereas, plaintiff, if liable at all, should have been exposed only to a minimal loss.

I would say that defendant, because of such gross negligence and indiscretion in permitting André to roam the house at will, hoisting his leg at random, probably yipping and yiping in his canine Utopia, should not be allowed to recover. Certainly, a dog can be controlled by his master, and while a master cannot expect perfection from a dog, even a poodle, he should be ever aware to keep him from expensive parts of the house where he might do damage with either end.

Further, defendant here should not be allowed to collect for a total loss which he himself could have kept at a minimum by the exercise of a little discretion, observance or care.

So, in the Eastern District of Missouri, while we love our dogs, let it be the law that we don’t collect for so many puddles made by poodles, even under the floater provisions of a policy with maritime law as precedent.

It is this Court’s conclusion that:

Judgment should be entered declaring that plaintiff is not liable under the terms and provisions of its policy of insurance for the damage caused to the carpeting in question under the circumstances proven and existing in this case.

Further, that defendant should not be allowed to recover upon his counterclaim against the plaintiff.

In other words, I am saying to the defendant, “You cannot recover”.

To the plaintiff, “You may continue your policy in peace”.

To the beloved little French poodle, the proximate cause of this litigation and discourse, I say, “Paix á toi aussi, André.”

This Memorandum Opinion shall be filed as the findings of fact and conclusions of the Court herein and judgment will be entered in accordance herewith.

~Justice Weber, Aetna Insurance v. Sachs, 186 F.Supp. 105 (U.S.D.C., E.D. Missouri 1960)

 

318.

Opinion written in verse inspired by the holding of the case–that a juror could not be disqualified even though his wife was a cousin of both the plaintiff’s and defendant’s wives.

‘Foul, foul play,’ the defendant cried.

‘That I by kinsman be not trammeled

Let the issue again be tried

Before another jury impaneled.

Remember how from John at Runnymede

The Charta was forced and wrested

That no matter what the issue or the deed

By my peers it must be tried and tested.

With juror mine adversary durst

Try the cause, whose wife is second cousin to my wife

And to plaintiff’s wife a first.

A new trial, sire, I demand to settle strife.’

‘No foul play do I find or see,’

The judge replied. ‘Foreman’s wife to thine

And to plaintiff’s wife may kinsman be,

But to Doug and thee no kinship do I find.

 

Thus, it doth not appear

For any cause or reason told

That the juror was not thy peer

The case to try and verdict mold.

Moreover, when kinships we sought to learn

It doth not appear that as best befits

One who would a kinsman spurn

Thou revealed that cousin did on the panel sit.

 

Thy day in court thou hast had,’

The judge asserted, ‘and law commands

That, no error made, whether good or bad,

The issue tried and settled stands.’

 

              ~Fisher v. Lowe, 333 N.W.2d 67 (Mich. Ct. App. 1983)

April 9: Drama and Television

Day Williams created this graphic depiction of this date.
April 9
Drama and Television

278.
D.A. Adam Schiff: A prosecution based on debt re-financing. That’s going to get you real far with the jury.
Stone: I’ll lay it out for them. I’ll draw them a Monopoly board.
D.A. Adam Schiff: Yeah, I’d like to see them get from “Park Place“ to “Go.”
~Law and Order, “The Serpent’s Tooth”

279.
My Pa did not put me up to this! I put me up to this!
–Joe to Enos Milford (from Short Shanks), Bonanza, “The Hayburner”

Money Matters.05b