Amanda Knox again found guilty in 2007 slaying of roommate in Italy

from latimes

Defendant Raffaele Sollecito, center, leaves the court in Florence, Italy, on Thursday. (Maurizio Degl'Innocente / European Pressphoto Agency / January 30, 2014)

By Tom Kington

January 30, 2014, 1:32 p.m.

FLORENCE, Italy -- American student Amanda Knox and her Italian former boyfriend were found guilty on Thursday in the 2007 slaying of her British roommate, Meredith Kercher.

It was the third verdict in the case for Knox, 26, and Raffaele Sollecito, 29, who were found guilty in 2009 of killing Kercher. That conviction was overturned two years later on appeal, only to have the decision later overruled.

Knox was not in court Thursday when Judge Alessandro Nencini sentenced her to 28-1/2 years in prison, more than the 26 years she received at her first trial. She refused to attend the second appeal, which opened in Florence last year, writing to the court from Seattle that she feared being "wrongly convicted."

Sollecito was sentenced to 25 years. He was instructed to hand over his passport and forbidden from leaving the country before Italy’s supreme court confirms the sentence. 

If the guilty verdict is upheld by the supreme court, Knox could face extradition proceedings. But under Italy’s slow-paced justice system, the supreme court is unlikely to hear the case until April or May 2015, said Francesco Maresca, a lawyer for the Kercher family.

Shortly before the jurors took the case Thursday, Knox's lawyers called on them to not overlook mistakes made by investigators. “We are anxious about your verdict,” lawyer Luciano Ghirga told the judge and jurors moments before they filed out to consider it.

Prosecutors had called for sentences of 26 and 30 years for Sollecito and Knox, the exchange student from Seattle who shared a house in the Italian town of Perugia with Kercher, then 21, who was found partially naked in a pool of blood with her throat slashed.

In his final summing-up, a second lawyer representing Knox, Carlo dalla Vedova, lambasted what he called "mistakes" made by forensic investigators. DNA found on a knife in Sollecito’s kitchen and attributed by prosecutors to Kercher could not be verified, Ghirga said.

Losing his customary cool, he said, "Italian sentences don’t depend on probability, but on certainty."

Knox and Sollecito spent four years in jail after their initial conviction before being acquitted on appeal in 2011. However, Italy’s highest court overturned the acquittal and ordered a new appeal, saying the first was riddled with “shortcomings, contradictions and inconsistencies.”

“Amanda has been in touch with us daily,” said Dalla Vedova. “She is very nervous and worried since her life is again jeopardized."

In an interview with Italian television Wednesday, Knox said she would be waiting at home with her family for the verdict with "my heart in my mouth."

"The proof is in the facts. There is no proof I was there when it happened," she said.

Patrick Lumumba, a Congolese barman who was briefly jailed when Knox accused him of the murder, took another view of her absence.

"She is guilty, and she is running away from Italian justice," he said on the sidelines at the Thursday hearing.

The Italian newspaper Corriere della Sera reported that Kercher's sister, Stephanie, had refused to read a letter sent to her this week by Knox.

Sollecito vacationed in the Dominican Republic during the course of the trial, prompting suspicions that he planned to flee Italy, because the Caribbean island has no extradition treaty with Rome. But on Thursday morning, he was in court.

“He wanted to stay home in southern Italy, but we said, 'Everyone thinks you are going to flee,' and he said 'OK, I'm coming,'" said Giulia Bongiorno, a lawyer representing him.

"He has decided to face the situation. He is afraid of nothing, and his presence is a silent scream of innocence," said Luca Maori, another attorney for Sollecito.

http://www.latimes.com/world/worldnow/la-fg-wn-amanda-knox-verdict-20140130,0,177155.story#ixzz2rvFOFUzR

9th Circuit Court of Appeals won't revisit California 'gay therapy' ban

from wtsp.com





SAN FRANCISCO (AP) - A federal appeals court has refused to reconsider its ruling upholding a California law that barred mental counseling aimed at changing a minor's sexual orientation.

The 9th Circuit U.S. Court of Appeals said Tuesday that a majority of its 27 judges voted against scheduling a new hearing. That leaves intact California's first-in-the nation law barring licensed counselors from offering treatment geared toward changing the sexual orientation of minors.

A three-judge panel of the court said in August that trying to change a minor's sexual orientation through intense therapy appeared dangerous, and that California lawmakers properly showed that efforts to change  sexual orientation were outside the scientific mainstream and have been rejected for good reason.

Liberty Counsel, a Christian legal aid group that challenged the law, said it would ask the U.S. Supreme Court to take the case.

Girl charged as adult in death of boyfriend during sex

from usatoday

Teen admitted strangling man, then cutting him to relieve her stress when he passed out.

(Photo: Provided to The Arizona Republic)

STORY HIGHLIGHTS

• Teen girl told police the sex act with her boyfriend, 43, was consensual
• She said the pair often engaged in acts involving strangulation and cutting before sex
• Police charged Burlew with second-degree murder

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GLENDALE, Ariz. — A 16-year-old girl arrested Saturday in connection with strangling her 43-year-old boyfriend during sexual activities will face trial as an adult after officials agreed to charge her with second-degree murder, according to court documents.

On Saturday night police were called to an apartment complex after they received a call from Tracey Woodside, Jessica Burlew's mother, stating that she believed her daughter's boyfriend, Jason Ash, was dead.

Glendale police say Burlew used an electrical wire to choke Jason Ash during what she claimed to be a consensual sex act. When Ash seemed to have passed out, Burlew told officers she cut him with a razor to get him to respond. She told officers that she continued to cut him to relieve her own stress, according to the documents.

Ash was declared dead at about 5:45 p.m., according to the documents.

Burlew told police she and Ash would often engage in these types of activities prior to sex, according to the documents.

Woodside said she had been home for a time before the death but had left to take out the trash when she received a call from Burlew who said that Ash, 43, was dead and it was "bad."

Burlew told Woodside that she and Ash were playing sex games and he was cut on the arms and strangled with an electrical cord. Burlew claims he did not say the "safety word."

Woodside returned to the apartment to find Ash lying on the bed with a cord around his neck and cuts all over his body. She left with Burlew to call 911 and, with help from dispatch, began to give chest compressions. Burlew fled the scene.

Burlew then returned to a neighboring apartment where she was identified by a resident and taken into custody by Glendale police.

Burlew was interviewed by police and admitted to causing the death of Ash by consensual strangulation. She claimed they engaged in acts like these often before sex.

Burlew also admitted to cutting Ash with a razor blade after she strangled him to try and get a response out of him after she thought he had passed out. She claims she did not get a response so she continued to cut him to "alleviate stress" from the situation.

Police searched the apartment that Ash was found in and discovered evidence of cutting and strangulation, which included an electrical cord around the neck of Ash, medical paperwork addressing self-mutilation involving Burlew, razor blades on the bed and a piece of paper with song lyrics referencing "Change or Die."

Another piece of paper that contained a reference to being a "human sculpture" was also found in the kitchen.

According to Woodside, Burlew spent a lot of time on the computer typing up lyrics. Woodside told police that Burlew has a history of self-harm by cutting.

Federal Appeals Court Says Jurors Can’t Be Excluded Because They Are Gay

from buzzfeed

The 9th Circuit Court of Appeals issues broad ruling providing “heightened scrutiny” protection for sexual orientation discrimination claims.

posted on January 21, 2014 at 12:40pm EST

Chris GeidnerBuzzFeed Staff

 

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Members of the public cast shadows as they line up in front of the U.S. Supreme Court in Washington January 13, 2014. Larry Downing / Reuters / Reuters

WASHINGTON — A federal appeals court Tuesday held that lawyers cannot exclude potential jurors from a jury based on their sexual orientation — a ruling whose underlying rationale could have broad implications outside of the case.

The 9th Circuit Court of Appeals, in a unanimous decision, held that discrimination based on sexual orientation is subject to heightened scrutiny — a decision the court concluded has been made in action, though not in word, by the Supreme Court itself.

In describing the reason for applying the new standard, Judge Stephen Reinhardt examined the Supreme Court’s June decision in Edith Windsor’s case challenging the Defense of Marriage Act. Although equal protection claims brought based on sexual orientation have previously been judged under the lowest level of review, called rational basis, the 9th Circuit held that a higher standard now applies.

Writing for the three-judge panel, Reinhardt wrote:

Windsor review is not rational basis review. In its words and its deed,Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.

Under that heightened scrutiny, in which equal protection claims are considered more carefully by courts reviewing challenged actions, the court concluded thatBatson — a Supreme Court case barring juror strikes based on race — also applies to strikes based on sexual orientation.

Reinhardt wrote:

This appeal’s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial.

In the current case, the court concluded that Abbott Laboratories had decided to strike a juror because he was gay in a lawsuit brought by SmithKline Beecham over a licensing agreement relating to HIV medication. Examining the history of discrimination faced by gays and lesbians, Reinhardt then applied that to the questions raised about the potential juror’s exclusion, writing:

Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals. They tell the individual who has been struck, the litigants, other members of the venire, and the public that our judicial system treats gays and lesbians differently. They deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.

Read the decision:

This article was updated, with the final update at 1:25 p.m.

28 year old calls former teacher when statue of limitations expires

from youtube

‘Raging Bull’ Case Reaches the Supreme Court

from variety.com

JANUARY 19, 2014 | 06:40PM PT

Ted Johnson

Senior Editor@tedstew

Disputes over film rights are a dime a dozen in Hollywood. Most of them are dismissed. So it will be a rarity on Tuesday, when the Supreme Court hears oral arguments in a case over the rights to “Raging Bull,” the 1980 Martin Scorsese movie about boxer Jake LaMotta.

Paula Petrella claims she has an interest in the movie given that in the 1960s and early 1970s, her father Frank Petrella wrote a book and two screenplays based on LaMotta’s career, either on his own or in collaboration with the retired prizefighter. The nine justices, however, won’t be deciding on the thorny lineage of “Raging Bull,” but whether Petrella waited too long to press her copyright infringement claim against MGM.

The “doctrine of laches” — the concept that lawsuits can’t be brought to court if there is an unreasonable delay — is one tool that studios have used to promptly get a summary judgment in their favor. In Paula Petrella’s case, she filed her suit in 2009, but a district court and the 9th Circuit Court of Appeals applied the doctrine of laches in ruling that she waited too long.

The Copyright Act has a three year statute of limitations, and because MGM has continued to release “Raging Bull” in various formats, Petrella’s claim fell within it. But the courts held that because she was made aware of her potential rights to the work as far back as 1991, ten years after her father’s death, she was unreasonable in her delay in filing suit.

Unlikely as it is that her case made it to the highest court, the Supreme Court’s decision has potentially significant implications for Hollywood. “This is, economically, a very significant issue, because it has to do with when you can sue for copyright infringement,” said Jay Dougherty, professor of law at Loyola Law School and director of the university’s entertainment and media law institute.

The studios say the case is an issue of fairness. Because they own vast libraries that are continually being released in new platforms, they are constantly resetting the clock for copyright and its statute of limitations. Without laches as a defense, there would be the constant threat of authors, their families and their estates coming out of the woodwork to lay claim to ownership of certain projects. In MGM’s case, the studio spent $8.5 million distributing and promoting the movie on the assumption there was no dispute over its ownership.

“When plaintiffs unreasonably sit on their rights and sue only after [a studio or distributor]  have devoted significant resources to making the copyrighted material profitable, laches serves important interests of fairness and finality, without which the validity of a work’s further distribution would remain permanently in doubt,” the MPAA said in an amicus brief to the high court. They were joined by the Assn. of American Publishers, the National Cable & Telecommunications Assn., and the Software & Information Industry Assn.

The case, the studios say, has parallels to the legendary battle over the rights to James Bond. Kevin McClory collaborated with Ian Fleming and another writer on the screenplay to “Thunderball.” McClory secured certain rights to “Thunderball” in a settlement in the 1960s, but he asserted in litigation in the late 1990s that he had a claim for damages and profits from every James Bond film released by Danjaq Prods. But the district court and the 9th Circuit ruled in 2001 that his claim was barred by laches, even though the Bond movies continued to collect money in rereleases. They said that his wait of decades to press the claim was “unjustified and unreasonable.” Many witnesses and records were gone by then, and Danjaq had since invested millions in the Bond franchise, the court noted.

Similarly, MGM argues that many of the potential witnesses have died, including Petrella’s father, and Jake LaMotta is too elderly to testify. The 9th Circuit, in finding that she waited too long, cited one of her explanations for the delay, that “the film was deeply in debt and in the red and would probably never recoup” and she “did not know there was a time limit to making such claims.”

MGM is represented by a team that includes Mark A. Perry and Blaine Evanson of Gibson, Dunn & Crutcher and Jonathan Zavin and David Grossman of Loeb & Loeb.

Other groups see this case as more than just an issue over rights to movies. Dish Network, Echostar Corp., DirecTV, TiVo and the Consumer Electronics Assn., among others, have weighed in to argue that the decision has potential implications for new technology, for the companies that make the products and the consumers that use them.

“A plaintiff who declines to sue on version 1 of a product should not be permitted to wait years and then assert the same infringement theory against version 5,” the companies wrote in a joint amicus brief. “Not only the innovator, but consumers who believe they are making fair-use copies, gain settled and reasonable expectations of peace and repose.” They even argued that a consumer could discover that the DVR he or she has been using is being “challenged as unlawful.” Without laches, the result is that a company is “not protected by the statute of limitations until three years after the last consumer stops using the device.”

But the 9th Circuit, which covers California and western states, is the most favorable of all the appellate courts in supporting laches as a valid reason to dismiss copyright infringement claims. In fact, their ruling in Petrella’s case is viewed as an example of why the circuit has a reputation among many plaintiffs’ lawyers as the “court of appeals for the Hollywood circuit”, and too favorable to media conglomerates. Some of the circuits don’t allow laches to be used as a defense at all, so copyright cases adhere to the three-year statute of limitations. That split between the circuits is generally viewed as a big reason why the Supreme Court took the case.

Petrella’s attorneys, Stephanos Bibas and Glen Kulik, write that “allowing laches to bar all injunctive relief would permanently deprive copyright holders of their property right to exclude infringers. It would effectively grant infringers free licenses for decades, overriding the Copyright Act’s compensation requirements and limits on compulsory licensing.”

They add, “The separation of powers leaves it to Congress to determine which claims are timely. Courts may make timeliness determinations only when Congress has failed to do so.”

Groups like the Authors Guild, the American Society of Media Photographers and the Songwriters Guild of America have sided with Petrella, arguing in an amicus brief that the “presence of the rolling three-year period reflects a balance of competing interests: that of compensating authors for their work …on the one hand, and that of calming disputes on the other. The rolling period prohibits infringers from receiving a windfall after a long period of unauthorized exploitation, thereby preserving the incentive to create.”

They also are joined by the Obama administration, as Solicitor General Donald Verrilli suggested that just because a studio or other defendant “makes substantial investments in a work does not establish that it would have been better off if the plaintiff has filed suit earlier.” MGM will be able to keep profits earned outside the statute of limitations period — that is to say, before 2006. And Petrella’s team has argued that it actually is more to the advantage to a plaintiff to file a suit closer to the time when a project is being released, because that is more likely when it will collect its biggest box office and homevideo grosses.

If the high court sides with Petrella, her case would then likely go back to a lower court to decide the merits of whether she has an ownership interest in “Raging Bull.” That is when a court will shed light on the real backstory of how one of the most acclaimed movies of the 1980s, a gem in MGM’s massive library, made it to the screen.

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As trial nears, 9th Circuit Court accused of favoring Hollywood

from latimes

Does the 9th Circuit Court favor Hollywood studios? The question arises as a screenwriter's daughter wages a copyright battle with MGM.

U.S. 9th Circuit Court Chief Judge Alex Kozinski bristles at the suggestion that the court takes sides in cases involving Hollywood. "We get a lot of cases, but we go every which way," he said. (Gina Ferazzi / Los Angeles Times / March 26, 2009)

By David G. Savage and Maura Dolan

January 18, 2014, 7:13 p.m.

WASHINGTON — The California-based 9th U.S. Circuit Court of Appeals is known for progressive rulings that champion individual rights over government and corporations, but when it comes to show business, the "Hollywood Circuit" — as it has been dubbed — stands accused of routinely siding with the home-turf entertainment industry.

Judges famously sided with film studios in the early 1980s when the studios sued Sony for infringing their copyrights by selling the Betamax video recorders. Had the Supreme Court not reversed the decision, the home video industry might never have been born.

In another case, the majority sided with "Wheel of Fortune" TV personality Vanna White when she claimed her "right to publicity" had been violated by a commercial spoof featuring a robot with a blond wing who stood next to big block letters.

Now, the court's alleged pro-Hollywood slant is being cited again by a screenwriter's daughter who on Tuesday will ask the Supreme Court to overturn a 9th Circuit decision that blocked her copyright claim against Metro-Goldwyn-Mayer in a dispute over the 1980 movie "Raging Bull."

When it comes to copyright infringement claims from artists, entertainment companies haven't lost a single case at the 9th Circuit in 20 years, according to Los Angeles lawyer Steven T. Lowe.

"The studios and networks always win," said Lowe, who is supporting Paula Petrella, the daughter of Frank Petrella, who, along with boxer Jake LaMotta, wrote a 1963 screenplay that was said to be the basis for the Oscar-winning film.

Some of the court's own jurists acknowledge the 9th Circuit's unusually aggressive stance on the issue. "Our circuit is the most hostile to copyright owners of all the circuits," Judge William Fletcher wrote last fall, even as he joined judges in rejecting Petrella's claim.

Chief Judge Alex Kozinski has also taken the court to task at times for being overprotective of the entertainment industry. In his colorful dissent in the 1992 Vanna White decision, Kozinski wrote that the majority's "Orwellian" decision to give the game show hostess a new property right to stifle a parody that merely evoked her image was a "dangerous" precedent.

It was Kozinski who quipped in that case that, "For better or worse, we are the court of appeals for the Hollywood Circuit." His point didn't seem to be about a pro-Hollywood bias, but instead that the 9th Circuit has a special obligation to strike the right balance in copyright cases because of its jurisdiction over the entertainment capital, where many such claims arise.

But over the years, the label stuck.

Today Kozinski bristles at the suggestion that the 9th Circuit takes sides.

"We get a lot of cases, but we go every which way," Kozinski said in an interview. "I don't think we are particularly protective of studios."

But being so close to the nation's movie-making capital also means many of the judges are familiar with Hollywood and sometimes rub elbows with producers and stars. Kozinski, whose son is a film editor, made a cameo appearance in "Atlas Shrugged: Part II," appeared in three documentaries and has his own IMDb (Internet Movie Database) page.

"I cut my teeth being on 'The Dating Game' when I was 18," Kozinski said. "If you grow up out here, it is in the blood…. It is hard to live many years out here without being inured to the blandishments of Hollywood." (For the record, Kozinski, or Bachelor No. 2, got the date.)

He holds movie nights at the 9th Circuit courthouses in Pasadena, San Francisco and occasionally Seattle, where judges and lawyers pitch in for pizza and beer, watch films and hear from scriptwriters and other industry insiders about the movies. Director George Lucas used to provide the court with films before they came out on DVDs, he said, and Kozinski has dined with Clint Eastwood, "a very sweet, humble guy."

He said it is important to protect the rights of ownership to speech because it encourages more speech. If speech is not protected by copyright, he warned, there will be less incentive to produce it.

"It's a fine balance, and all my colleagues are quite sensitive to it," he said. "The best way to hurt the system is to favor one side or the other."

David Nimmer, an expert on copyright law who teaches at UCLA, said the 9th Circuit has a "spotty record" on copyright law, but that doesn't mean the studios always win. In 2010, the 9th Circuit ruled against a studio in a breach-of-contract claim by two screenwriters who said the movie "The Last Samurai" with Tom Cruise was based on their screenplay. The court also sided with music file-sharing program Grokster in 2004, saying it was not liable for users' copyright infringement.

Nimmer said it was not hard to imagine that certain industries might enjoy a hometown advantage in some circuits, but he could not say that the 9th tended to favor studios over artists.

"I would not say they are hostile to copyright infringement claims," Nimmer said.

On Tuesday, the Supreme Court will hear the case of Petrella vs. MGM. A win for Petrella would mean she could continue her copyright claim against MGM.

After her father died, Petrella renewed the copyright for the screenplay in 1991, just inside the 28-year deadline set in the Copyright Act. But it wasn't until 2009 that she sued MGM, contending the continuing distribution of the film violated her copyright.

Lawyers for the studio said Petrella had waited too long to sue. A district judge and the 9th Circuit agreed and threw out her suit. The decision relied on an old doctrine known as "laches," under which judges sometimes reject claims if they believe the plaintiff deliberately chose to wait in filing a suit.

MGM's lawyers said the studio had spent more than $8.5 million since 1991 to advertise, market and distribute "Raging Bull," and it was not fair for Petrella to then claim she was due a portion of the profits.

"Ms. Petrella delayed filing suit for 18 years, until key witnesses died or became unavailable, thereby impairing MGM's ability to defend itself against her meritless claim of infringement," said Mark A. Perry, a Washington lawyer who will represent the studio before the high court.

Last summer, University of Pennsylvania Law Professor Stephanos Bibas appealed Petrella's case to the Supreme Court and cited the 9th Circuit's unusual stance toward copyright claims. He noted the Copyright Act does not set a time limit on such claims.

Lowe, the Los Angeles attorney, said the Supreme Court's decision would affect future cases and could send a message to the 9th Circuit. "It would have a lot of symbolic importance, to say you can finally take up a case against the studios."

david.savage@latimes.com

maura.dolan@latimes.com

Copyright © 2014, Los Angeles Times

http://www.latimes.com/local/la-me-court-hollywood-20140119,0,3465326.story#ixzz2qoc5Vq8k

Appeals court overturns defamation award against blogger

from latimes

A panel of 9th Circuit judges rules that bloggers have the same 1st Amendment protections as traditional news media.

By Maura Dolan

January 17, 2014, 8:02 p.m.

SAN FRANCISCO — A federal appeals court unanimously overturned a defamation award against a blogger Friday, ruling that 1st Amendment protections for traditional news media extend to individuals posting on the Web.

"The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities," Judge Andrew D. Hurwitz wrote for a three-judge panel of the 9th U.S. Circuit Court of Appeals.

The panel said its holding was the first of its kind within the 9th Circuit, though other circuit courts have held that individuals have the same free speech rights as the news media.

"This case is the first one from a federal court of appeals that specifically protects the rights of bloggers," said UCLA constitutional law professor Eugene Volokh, who represented blogger Crystal Cox on appeal.

Friday's ruling paved the way for a new trial for Cox, who accused a company of illegal conduct on several websites she created. The 9th Circuit said Cox "apparently has a history of making similar allegations and seeking payoffs in exchange for retraction."

Obsidian Finance Group, an Oregon firm that advises financially troubled businesses, and Kevin D. Padrick, one of its principals, sued Cox after she accused them of fraud, corruption and other misconduct in connection with a bankruptcy by one of Obsidian's clients. A court appointed Padrick to serve as the Chapter 11 trustee in the bankruptcy, and charged him with marshaling the assets of the bankrupt firm to pay off clients whose money had been misappropriated in a Ponzi scheme, the 9th Circuit said.

Cox's blog posts "raised questions about whether they were failing to protect the defrauded investors because they were in league with their original clients," the court said.

A district court in Oregon held that all but one of Cox's posts was constitutionally protected opinion, but allowed a trial on a blog that accused Padrick of having failed to pay taxes that his client company owed.

Cox represented herself at the trial, and the jury awarded the plaintiffs a total of $2.5 million in damages. Cox appealed. She did not contest the jury's finding that her post was false and damaged reputations, but she argued that she could not be held liable unless the jury first determined that she had acted with negligence or malice.

The 9th Circuit said the jury should have been instructed to decide whether Cox had behaved negligently because her posts involved a matter of public concern but were not aimed at a public official.

Under settled law, a public official who seeks compensation for defamation must prove that the defendant acted with "actual malice," publishing a statement known to be false or with reckless disregard for the truth. The court said bankruptcy trustees are compensated from the assets of the Chapter 11 estate they administrator, not the government, and therefore are not public officials.

A finding of malice would be required, though, before a jury could award monetary damages for presumed but unproven harm to the plaintiffs' reputations, the court said.

The panel rejected Obsidian's claims that Cox's other blog posts were defamatory. She accused Obsidian of paying off "media" and "politicians" and said the company might have hired a hit man to kill her.

She used terms such as "thugs" and "evildoers" in almost stream-of-consciousness sentences, the court said. The rants were so extreme that no one would have taken them for objective fact, the court said.

"While we are obviously disappointed in the ruling, we do note that the court concluded that there was no dispute that the statements were false and defamatory," lawyers for Obsidian said in a prepared statement. "Ms. Cox's false and defamatory statements have caused substantial damage to our clients, and we are evaluating our options with respect to the court's decision."

maura.dolan@latimes.com

Copyright © 2014, Los Angeles Times

http://www.latimes.com/local/la-me-blogger-1st-amendment-20140118,0,3524030.story#ixzz2qoZedD9e

Oklahoma same-sex marriage ban struck down by federal judge

from latimes



By Matt Pearce and Hailey Branson-Potts

January 14, 2014, 6:17 p.m

A federal judge in Tulsa struck down Oklahoma's ban on same-sex marriage Tuesday but suspended his decision while it's appealed to higher courts.

The ruling is the latest in a series of legal victories for same-sex marriage proponents around the country.

U.S. District Judge Terence Kern's ruling stemmed from a lawsuit filed in 2004, the same year Oklahoma passed its constitutional amendment with 76% of voters in favor of banning same-sex marriage.

Kern's ruling said Oklahoma's ban violated the 14th Amendment of the U.S. Constitution. He cited comments from state Republicans in 2004 in ruling that Oklahoma's amendment was intended to discriminate against gays.

"Moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law," Kern, a Bill Clinton appointee, wrote in the ruling, which called the ban "arbitrary" and "irrational."

Oklahoma joins Utah in awaiting a federal appeals court's decision on whether gay and lesbian couples can wed in two of the nation's most conservative states.

The Oklahoma lawsuit was brought by two longtime couples seeking to strike down the state's ban and the federal Defense of Marriage Act, which restricted recognition of same-sex marriages. One couple had married in another state; the other had not.

“We want the state of Oklahoma to marry us,” Sharon Baldwin told the Los Angeles Times in an interview. “I am at least a fourth-generation Oklahoman, and Mary at least a sixth-generation Oklahoman. It doesn't occur to us that we should have to leave our state.”

She said she and her partner, Mary Bishop, had a unofficial commitment ceremony 14 years ago in Florida. They have been together 17 years. 

The couples sued the federal government and a county clerk who had denied one couple a marriage license. The clerk, Sally Howe Smith of Tulsa County, was defended by attorneys from the Alliance Defending Freedom, an Arizona-based Christian legal group.

Kern's ruling was delayed when the U.S. Supreme Court took up the Defense of Marriage Act, striking down part of that law in June and making part of the Oklahoma lawsuit moot.

In his opinion, Kern had particularly sharp words for the Alliance lawyers' arguments that Oklahoma's ban protected the sanctity of marriage.

"Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country," Kern wrote.

Kern added that such a justification for a same-sex marriage ban was "insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships."

But wedding bells won't be ringing in Oklahoma just yet, as they did in Utah last month when federal Judge Robert Shelby in Salt Lake City shocked the state by invalidating a similar ban.

Hundreds of Utah couples rushed to wed, but the legal status of those unions is in limbo because the U.S. Supreme Court put Shelby's decision on hold and halted same-sex weddings in the state while an appeals court considers the case.

That court, the U.S. 10th Circuit Court of Appeals based in Denver, is the same appeals court that presides over Oklahoma. It is already set to hear arguments in the Utah case and decide whether gays and lesbians have a constitutional right to marry.

The 10th Circuit’s decision will govern the Oklahoma case as well, since the issues are identical. But the cases are not likely to end there. The losing side almost certainly will appeal to the U.S. Supreme Court and seek a final ruling on the constitutional issue.

Baldwin said she and her partner were "indignant" over the state's same-sex marriage ban. “How dare they think that my rights are subject to their vote?” she said. 

Alliance Defending Freedom senior counsel Byron Babione, in a statement provided to the Los Angeles Times, blasted Kern's ruling and his finding that marriage was what Babione called "little more than special government recognition for close relationships."

"A court should not impose this novel view of marriage on the people of Oklahoma," Babione said. "We will review the decision with our client, the Tulsa County clerk, and consider her next steps.”

Kern acknowledged that the Supreme Court, in its ruling last summer, had stopped short of guaranteeing marriage as a constitutional right for same-sex couples. But times are changing, he noted.

"There is no precise label for what has happened in Supreme Court jurisprudence" since the mid-1990s and culminating with the court's decision to strike down parts of the Defense of Marriage Act last summer, Kern wrote.

"But this court knows a rhetorical shift when it sees one," Kern said, then proceeded to strike down Oklahoma's ban.

Times staff writer David G. Savage contributed to this report from Washington.

http://www.latimes.com/nation/nationnow/la-na-nn-oklahoma-marriage-20140114,0,4029993.story#ixzz2qQwAzqPP

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