Is Your Facebook Party Photo on a Billboard?

Several years ago, in my book Issues In Internet Law,  I wrote about Alison Chang, a 15-year-old Asian-American girl who had her photo snapped by Justin Wong, a church youth counselor, as Alison helped out at a church-sponsored car wash in Dallas, Texas. Wong posted the photo to his Flickr account. Brenton Cleeland, who lives across the world in Australia, was walking down a street in Adelaide when he saw Wong’s photo of Alison blown up on a billboard at a bus stop  (click for image) with a small note at the bottom stating it had come from Wong’s Flickr account. Cleeland snapped a shot of the billboard and posted it on his own Flickr account.

Apparently, an Australian ad agency decided rather than hire a model for its new ad campaign for Virgin Mobile, it would simply search Flickr’s collection of photos to find one it liked. They must have liked Alison’s photo a lot, because her image was cropped out of the photo, flipped, and blown up to appear on the billboard in Adelaide, which touted the double-entendre “virgin–to–virgin” text services beneath Alison’s photo and above her photo, in large letters read: “Dump Your Pen Friend.”

Alison saw her face on the billboard for the first time when she landed on Cleeland’s Flickr page. “hey that's me! no joke. i think i'm being insulted...can you tell me where this was taken,” the surprised girl wrote beneath her photo.  Cleeland replied, “I'm quite surprised that you were not in the least informed that your photo was being used! The photo was taken on Churchill Road, Adelaide, Australia. I believe that it's being used as part of a national campaign - there are a lot of other slogans and photos being used, I think some of the others are from Flickr as well.”

Wong had used a Creative Commons Attribution 2.0 license on photos posted to his Yahoo Flickr photo-sharing account. That particular license allowed any use, even commercial, as long as he was credited. So while it was technically legal for the agency to appropriate the photo, neither Alison nor the photographer were notified or compensated for its use, and Alison expressed she felt the photo had disparaged her. The case is discussed in my book, Issues In Internet Law. 

Until today, I thought the Chang case was the most egregious incident of photo appropriation from the Internet, but a new example has surfaced that carries a double whammy. In 2008, University of North Carolina student-body president Eve Carson was abducted, robbed, and murdered. Today, her official student body president portrait (click here), taken by a university photographer, was apparently taken off the Internet and used without permission of the deceased student’s family or the copyright holder, UNC. Like Alison Chang’s photo, Carson’s photo also appears on a foreign billboard promoting a business, in this case, Jubeerich Consultancy, an Indian company offering "overseas study opportunities and placement services" (click for image). The school and the murdered girl’s family are understandably upset about the blatant misappropriation of her photo for commercials purposes. Unlike the Chang case, there appears to have been no Creative Commons license allowing commercial use.

In an ironic and even more distasteful move, the NewsObserver, which reported the story, reprinted the billboard with Carson’s photo and placed a “Buy Photo” link (click here for image) beneath it, allowing readers to purchase a print of the photo (matted and framed) or have it placed on a coffee mug, mousepad, deck of playing cards, or drink coasters. It strikes me as a bit hypocritical to rail against a foreign company using Carson’s photo for commercial purposes while simultaneously selling the dead girl’s photo to be used on a deck of cards ($34.95) or a drink coaster (4 for $24.95). I wonder how the poor murdered girl’s parents feel about people setting their beers on a coaster bearing their daughter’s face? Way to go, NewsObserver!

The moral of the story is be careful posting those photos online; you don't know where they may end up.

Faster Than A Speeding Bullet -- NOT!

"Looks like you were wrong about that Trayvon Martin kid," Mr. 60s said to me at Starbucks today. "Heard on TV he attacked Zimmerman and broke his nose. Snuck up behind him and punched him in the face. Zimmerman had to shoot the kid in self-defense."

What Mr. 60s had heard was a police leak of George Zimmerman's statement. I suppose it's easier to accept the killer's version of events when the only other witness lies dead at his hands. Dead men tell no tales, as the saying goes. I'd be slightly more inclined to believe Zimmerman's account if he had gone on TV, or YouTube, and told his story. Since he was not arrested and is unlikely to be, there's no reason not to present his side to the public, if only to clear his name and salvage his reputation... unless he's afraid he can't bluff with a losing hand.

"How do you sneak up on someone who's chasing you?" I asked. "Especially since there was only a 60-second gap between the end of Martin's phone call and police finding his body. Do you mean to tell me, in that 60 seconds, he doubled back around the block and surprised Zimmerman? Hard to surprise someone while you're talking on the phone unless the other guy is deaf. Then there's Martin's girlfriend, on the other end of the phone. She says Martin didn't say goodbye and hang up. She says the call ended abruptly and it sounded like his headset had fallen off his head. That would make sense if Zimmerman had been the one to surprise Martin."

"It was self-defense," Mr. 60s replied. "The boy hit him."

"If Zimmerman is telling the truth, which seems implausible, you may be right," I said. "But if so, the one acting in self-defense was Martin."

Mr. 60s frowned. "How you figure that?"

"I'm a teenager. A strange guy is following me in his car. He gets out of the car and he's 10 years older and a lot bigger than me. And he's got a gun. Now I'm getting scared. I try to act normal, keep talking on the phone, but I'm walking away fast. I want to put some distance between us. He keeps stalking me, but I think I've lost him. That's what I tell my girlfriend. Then, I hear him behind me again. He's huffing and puffing, but he's just a few feet away, holding that gun. He's too close now. If I run, he'll shoot that gun he's holding, and at this distance he can't miss. Too late to run; I'm not faster than a speeding bullet. He's going to kill me. I don't have a gun or a knife. All I have to defend myself is my fists. I'm going to pop him in the face and...

"BAMM!"

Mr. 60s grimaced.

"If Zimmerman had been facing you down with a gun, what would you have done?" I asked.

"Why, if anyone pulled a gun on me, I'd beat the basta..." He paused.

I nodded. "Because you'd be defending yourself... from an armed man who had stalked you, chased you, and put you in fear for your life. Self-defense is for victims; not those who stalk them, chase them, and kill them." I sipped my Frappuccino.

Mr. 60s was silent for a moment. Then he spoke up. "You said you think Zimmerman's getting off?"

"Zimmerman's not going to be convicted because the police have botched up this case so badly a prosecution would never stand up in court. They didn't test Zimmerman for alcohol or drugs, didn't confiscate the gun and run forensics on it, didn't interrogate all the witnesses who called 911 to report the incident, have no record of having properly canvassed the scene... I could go on, but you get the point. Zimmerman admitted he killed Martin, but cases require evidence and it's too late now to collect the salient evidence. Chris Serino, the lead homicide investigator, wanted to charge Zimmerman at the time, but now..." I shook my head. "They can have a trial, but he won't be convicted."

"I still think he deserved to be shot," Mr. 60s said. "I heard the boy got suspended from school. Sprayed graffiti at school. Maybe smoked pot. Got caught with some jewelry in his backpack once."

"I don't know what he did in the past. All I know is, the night he died, he didn't have pot or jewelry, only an iced tea and a bag of Skittles. The only thing that's relevant is, on that night, an unarmed boy walking down the street was stalked, chased, and killed by an older, larger man with a gun. You can pick anyone walking down the street, shoot them, and then find something they've done in their past to make them look bad. But all that matters is what happened that night."

I stood up, pulled my hoodie over my head, and turned my back to Mr. 60s as I headed to my car.

BAMM! 

Incident in a Small Town

Wendy Dorival is the Sanford, Florida police department's volunteer coordinator. Last August, she spoke at the Retreat at Twin Lakes, the gated community where George Zimmerman shot and killed Trayvon Martin. Zimmerman had asked her to speak about setting up a Neighborhood Watch group.

In her PowerPoint presentation, Dorival told the audience, the Neighborhood Watch's role is just that - to watch and report to police. The volunteers’ role, she said, is “being the eyes and ears” for the police, “not the vigilante.” Neighborhood watch volunteers “are not supposed to confront anyone. We get paid to get into harm’s way. You don’t do that. You just call them from the safety of your home or your vehicle.”

She made a point of saying Neighborhood Watch volunteers should never use guns. The National Sheriffs’ Association, the Neighborhood Watch program's national sponsor, leaves no doubt: guns have no place in a watch group. Its manual repeatedly states: “Patrol members do not carry weapons.” There's a reason for that: volunteers lack police authority and police training - they are private citizens.

If I saw a physically larger man stalking me with a gun, I'd be scared, especially if I were unarmed. Mr. 30s, at Starbucks on Sunday (see previous blog) asked, "Why didn't he just call 911? He had a phone with him."

Good question. That was the one aspect of the case that troubled me. After all, I was taught in second grade, always run to Officer Friendly, if I were lost or in trouble. But Officer Friendly isn't always friendly, especially if he's white and you're not.

In Mississippi, two white men kidnapped a 14-year-old black boy, pounded his face into raw meat, shot him in the head, and dumped his broken corpse, with a weight tied around his neck with barbed wire, into the Tallahatchie River. The year was 1955. An all-white jury acquitted them of Emmett Till's murder in about an hour. In a magazine interview, the killers said the black boy had dared to whistle at a white woman... on his way home from a general store to buy a candy bar.

W.E.B. Dubois, a century ago, wrote: "Daily the Negro is coming more and more to look upon law and justice, not as protecting safeguards, but as sources of humiliation and oppression. The laws are made by men who have little interest in him; they are executed by men who have absolutely no motive for treating the black people with courtesy or consideration; and, finally, the accused law-breaker is tried, not by his peers, but too often by men who would rather punish ten innocent Negroes than let one guilty one escape."

In my short story, "Incident In A Small Town", James Michael Brown, an angry young black man, find himself transported from 1956 Alabama to an alien land. I wrote:

"He had assumed they were taking the sensible approach in seeking out the dominant life forms of this land. But what if — when they found the creatures that ruled this planet or dimension or whatever it was — they were hostile? James Michael Brown had learned a long time ago not to run to the white sheriff for help. Who were they running to now?"

Deep down, I knew the answer to Mr. 30s' question. I had even written a story about it. But when he asked me, I couldn't come up with an answer. But then again, I was thinking like a white man. James Michael Brown would have known better.

Will Geraldo Shoot Me If I Wear My Hoodie?

Gerald Michael Rivera, a Jewish kid from Brooklyn, the son of a cab driver and waitress Lillian Friedman, who changed his name to Geraldo and “went ethnic” to create a TV persona that included the infamous Al Capone vault exposé (a live hour of television devoted to discovering Capone’s much hyped secret vault contained nothing more than an empty beer bottle), admitted his comments on Trayvon Martin were “politically incorrect”. No, Gerry Rivers, they were just plain old stupid.

The once semi-respected journalist-turned-Fox News Channel commentator said Friday the hoodie worn by the unarmed black teenager when he was killed by a trigger-happy vigilante was as much responsible for his death as the man who shot him.

When I first heard this, I dismissed it as another pitiful attempt by an aging TV entertainer to capture a few headlines in the 24-hour news cycle and regain a smattering of relevance. After all, I seldom took Jerry Rivers and his brand of sensationalist journalism seriously when he was in his prime and while the Fox News Channel is the perfect outlet for someone of his caliber, I no more expect to view real news on Fox News than I expect to see a real fox stroll across the screen (the latter being far more likely).

Now, Rivera is entitled to his opinion, and far be it from me to impeach the credibility of a “journalist” fired from ABC News, dubbed by Newsweek as a “Trash TV” talk show host (Newsweek, Nov. 14, 1988, p. 78), who aired such classic fare as “Men in Lace Panties and the Women Who Love Them", lied about being at the scene of a friendly fire incident in Afghanistan when he was really 300 mile away, revealed military troop movements during the Iraq War, and currently hosts a daily radio show sandwiched between Don Imus and Rush Limbaugh. I don’t need to impeach his credibility because he has done a far better job of that than I ever could.

But here’s the problem. While I believe in free speech and I believe Rivera has a right to his opinion, he has a much larger platform than most of us, myself included. That means his words are guaranteed to reach a massive audience and within that audience is a subset of listeners called “low information” viewers. These are people who don’t read in-depth newspaper and magazine articles for perspective on issues, or read books or encyclopedias to learn the background and nuances of issues, instead relying on snippets of news, headlines, “talking points” by biased commentators, and the echo chamber of biased news media (be it conservative talk radio and Fox on the right, or liberal publications and MSNBC on the left) that present only one perspective and repeatedly reinforce that perspective and only that perspective.

I was at Starbucks Sunday, editing a draft of the upcoming 7th edition of Issues In Internet Law, when I got pulled into a conversation with some nearby strangers discussing the Trayvon Martin case. One was a Jewish man in his late 60s, another a Hispanic man in his 40s, and the third, a white man in his mid-30s.  Mr. 40s insisted Martin, the unarmed teen walking home from a convenience store could have been at fault instead of the armed man stalking him because “no one knows what really happened.” I pointed out, as I did in my column the other day, we have a fairly detailed timeline showing him leaving the store, on the phone for four minutes with his girlfriend (verified by both her and phone company records) and his body found by police one minute after the end of that phone call (verified by police records). But Mr. 40s, a low-information viewer, dismissed these facts because they had not appeared in his universe of limited news. He relied on headlines and generalities to form his opinions, and argued “the case is being tried in the media”, preferring the media ignore the news story… as he has. I countered I would prefer to see the case tried in a court of law, not in the media, but that it was not possible for the killer to have his day in court if the police refused to arrest him.

“Whose side are you on?” Mr. 60s asked me.

“The side of justice,” I replied.

 He sneered at my answer.

I added, “A child was killed. Your friend says we don’t know what happened. That’s why the shooter should have been taken to the police station. He should have been tested to determine if he was under the influence of alcohol or drugs. The gun should have been retained by the police as evidence, not allowed to be kept by the shooter. A proper investigation should have been conducted, including canvassing of witnesses and forensic examination of the scene and the weapon. Then, based on that, a determination whether to charge the shooter for murder should have been made at that point. If an arrest was warranted and made, he should be entitled to have his day in court to explain or justify his actions. But that’s not what happened.”

Mr. 60s then gave me his misinterpretation of Florida law, a subject I know a bit about. Whenever I corrected him on blatant misstatements, he insisted he was right and I was wrong. There was no margin for error in his mind; his “knowledge” came direct from what he had gleaned from his low-information snippets. “Besides, the boy was wearing a hoodie. You know they dress that way because they want to be like gangsters. Running with his face covered in a ski mask, I’d be scared of him too. He (Zimmerman) had a right to shoot him to defend himself.”

“It wasn’t a ski mask,” I told the low-information viewer. “It didn’t cover his face. It’s a sweater with a hood. My mother bought me one for Christmas. The boy didn’t even pull the hood up until it started raining. He was walking, not running. And it wasn't self-defense.”

Mr. 60s was annoyed I had the temerity to bring facts into the conversation. The three men agreed Zimmerman had been justified in shooting Trayvon Martin, a boy armed only with an iced tea and a bag of Skittles candy, because he wore a hoodie. If it was a good enough justification for Geraldo Rivera on Fox News, it was good enough for them.

I nodded my understanding. “So clothes really do make the man?” I pointed to a young woman in a short skirt seated nearby. “So, if a woman’s miniskirt is short enough, she’s asking to be raped? If a man walks down the street in a suit and a Rolex, it serves him right if he gets mugged?”

“It wasn’t just the hoodie,” Mr. 30s chimed in. “He had baggy pants sagging like all the gangsters.”

I looked askance at him. “I’ve read a lot on the case and haven’t seen any descriptions of his pants. Where did you learn that?”

He shrugged. “I just heard, is all.”

I have jury duty on Thursday. The thought of low-information juries deciding people’s fates scares the hell out of me. Meantime, I’m heading back to Starbucks today. I’m going to pull my Christmas gift out of the closet, dust it off, and wear my hoodie. I hope I don’t get shot while sipping my Frappuccino and munching on Skittles. Thanks, Geraldo.

Blind Justice

I don’t like the idea of a special category of “hate crimes”. To me, a crime is a crime; murder is murder. The victim is still dead. Is the shooter of Trayvon Martin guilty of a hate crime? That’s irrelevant. An innocent boy walking down the street was stalked and shot to death. All that should matter is whether it can be proved the shooting was premeditated, or committed with intent to kill the victim.

There is strong evidence of premeditation when a self-styled vigilante prowls the streets armed with a weapon looking for trouble. Sometimes trouble is not hard to find, as Bernhard Goetz could attest. The media dubbed the 37-year-old self-employed electrical engineer “The New York Subway Vigilante” in 1984, after he pulled out a .38 caliber Smith & Wesson revolver from beneath his windbreaker and gunned down four black teens in a subway car who had demanded he give them money. But Goetz’s circumstances  differed from Zimmerman’s. Bernhard Goetz was a thin, bespectacled man, whereas George Zommerman was a huskier, younger man who did not wear glasses. Goetz was minding his own business, sitting on the subway, when he was accosted by four black teenagers; Zimmerman proactively chose to patrol the streets in search of “suspicious” individuals. Goetz had been mugged and injured three years earlier by a teen gang at a subway station and presumably had a legitimate fear for his safety at subway stations. As for premeditation, Goetz even confessed to police his intent was “to murder them, to hurt them, to make them suffer,” and that he had coldly and methodically fired a second round into one of the wounded youths, left paralyzed and brain damaged by the shooting. Nonetheless, Goetz was acquited on 17 counts of attempted murder and assault.

But stalking an innocent boy, chasing him down in contravention of police instructions, and allegedly shooting him is another matter. The self defense claim is bogus. Zimmerman,  a 28-year-old adult, weighed at least 30 pounds more than the 140 lb. 17-year-old Trayvon Martin. Zimmerman could have physically overpowered him without a gun; or, more sensibly, he could have driven away in his car or waited for the police to arrive, as instructed. Instead, he chose to stalk the boy, chase him, and shoot him. That is not self defense.

Depending on the facts presented at trial, and the shooter’s mens rae (his intent and state of mind at the time he committed the act), such an act might be manslaughter, premeditated first degree murder, or felony first degree murder (aggravated stalking being the underlying felony). Much has been made in the media reports of Florida’s Stand Your Ground law, which states a person who is attacked has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force if he  reasonably believes it necessary to prevent death or great bodily harm or to prevent the commission of a forcible felony. Bottom line: it doesn't apply here. Zimmerman was not attacked by Martin; in fact, it appears the other way around, seeing as Zimmerman is the one with the gun and Martin is the one with the bullet hole. Zimmerman was not attacked; he left the safety of his car, stalked an innocent boy, and allegedly shot the unarmed child. He had no reasonable belief he was in danger of death or bodily harm— he was an adult and physically bigger than the unarmed, skinny child, who was attempting to flee, not attack. Nor had Martin committed a felony, nor was there any indication he intended to; he was too busy running for his life. The Stand Your Ground law is a red herring. It is irrelevant to the facts of the case and cannot serve as a defense.

But let’s play devil’s advocate. Let’s assume Zimmerman is a citizen concerned about crime in his neighborhood. Maybe there’s a lot of crime in Sanford, I don’t know, although presumably a gated community is safer than an open one. The police response time – one minute in this case – is outstanding, which should make it a safer community. Zimmerman became involved in his Neighborhood Watch. That’s commendable. Most people don’t get involved in their communities. However, it is unclear from the reports if this was an organized Watch program, if it was police-sanctioned, or if it had any members other than Zimmerman. Over the past 15 months, George Zimmerman made 46 calls to Sanford police to report “suspicious” individuals. Maybe he was overzealous in his role as Junior G-man, or perhaps he was paranoid about crime. If there had been break-ins or muggings in his neighborhood (it is unknown if there were any in his gated community, but Sanford as a whole is ranked as less safe than 97% of other cities), then he might have had good reason to make so many reports. Actually, that is what he was supposed to do if he saw suspicious activity – call the police and let the professionals handle it. Zimmerman did the right thing on the first 45 calls. It was the last call, when he disobeyed police instructions not to pursue Trayvon Martin, when he ran after the boy with a loaded 9mm gun, when he cornered the unarmed boy and allegedly shot and killed him—that was when the aura of civic duty receded and the issue of premeditation reared its head. Was George Zimmerman roaming the streets, armed and ready, looking for someone to shoot?

Maybe race was an issue with Zimmerman. It almost certainly was with the Sanford police department. I cannot imagine a black man driving around with a 9mm gun, stalking a white child on the street, chasing him down, shooting the unarmed white boy, and not being arrested, let alone charged by police. No way. I cannot picture police letting a black man leave the scene of the killing of a white child WITH HIS GUN, for Pete's sake!

I can almost understand Zimmerman. Perhaps he was paranoid, especially if there had been crimes committed in the neighborhood; delusional, imaging himself a vigilante protecting his neighborhood; suspicious of someone who looked out of place in a non-black community. Maybe his judgment was impaired by drugs or alcohol (of course, we’ll never know, since police failed to test him at the scene). But even viewing Zimmerman in the most favorable light, and I believe it to be artificial lighting at that, there is no way I can excuse the conduct of the Sanford police department. Zimmerman should have been arrested, charged, and given the opportunity to justify his actions before a jury, who could then determine his culpability, if any.

That said, we need to place a value on human life, irrespective of color or nationality. It does not matter what color Trayvon Martin was. He was a child and his killing was wrong. It doesn't matter that Sgt. Robert Bales is a white American and that the nine children he brutally murdered were Afghans. Killing children is wrong; it is an abomination, and it does not matter if they are white or black, American or Afghan. It is equally irrelevant if their killer bears more resemblance to us than do their victims. I don’t want to hear Bales’ Post Traumatic Stress Disorder or insanity defense. He murdered babies, children, women and then dragged the bodies together and set fire to them. I don’t care that he’s an American soldier and his victims were “just foreigners”. His victims are no less people because they are not “one of us”. Nor is he immune from justice because he is “one of our boys”. Being a U.S. soldier doesn't cut any slack with me. I want him strung up by his testicles and flayed. And if you’re black and you think White America doesn't care when a black child is murdered, you’re wrong. Many of us do care. The sad part is the institutional bias responsible for a double standard that would put a black shooter of a white child on death row, but let a white shooter of a black child walk away – uncharged with any crime.

This should not be viewed as a hate crime. All crimes are hate crimes. No one robs or murders you because they like you. But perpetrators and victims of crimes should be treated without regard to color or nationality (or religion, gender, or sexual preference). The statue of Lady Justice wears a blindfold because justice must be dispensed objectively and impartially, without regard to the identity of the parties.

Sadly, prejudice is a fact of life, and a varying degree of bias is ingrained in all of us. Our football team is better than the other team; our country is better than any other (ever notice in news reports, how a ship sinks killing 300 passengers and five Americans – because obviously, the five American lives are valued more than 300 foreigners); our religion is better than the others because, after all, it is the real one and they can’t all be right; and of course, our race is first among equals. There is a famous All in the Family episode where Archie Bunker is trapped in an elevator with a Puerto Rican man, his pregnant wife, and a well-dressed, erudite and articulate black man. The blue-collar Archie makes a comment to the Puerto Rican, who reminds Archie, Puerto Rico is part of the U.S. and “I’m an American citizen, equal to you.” Archie pouts and, pointing to the black man, replies “Equal to me? You ain’t even equal to him!” The point being, while America may be the great melting pot, there exists a societal class pecking order, with WASPs at the top. Today it is politically incorrect to speak of it, but I grew up in a town where Jews were barred from certain clubs and blacks could not swim in the public swimming pool.

This social order is still institutionalized. “Driving While Black” is a valid reason in many white neighborhoods for a black driver to be pulled over and questioned by police. In my short story “Obama Nation”, I open in a future society dominated by blacks where a white man rushes past an opulent black neighborhood, fearful some resident might phone the police to report a “suspicious white man” in their  suburban neighborhood. It was classic role reversal, just as I cannot imagine a black man driving around with a 9mm gun, stalking a white child on the street, chasing him down, shooting the unarmed white boy, and not being arrested, let alone charged by police.   

Guilty of Walking While Black

Trayvon Martin had accompanied his father to visit his father’s fiancé who lived in a gated community in Sanford, Florida. The NBA All-Star basketball game was about to start and he walked to a nearby convenience store, where he purchased an iced tea and a package of Skittles candy. The 17-year-old headed back. He whipped out his cell phone to chat with his girlfriend, as he had several times that day, as teenagers in love often do. He placed his phone in his pocket and spoke through a headpiece. At some point, it began to rain. He hung up, but promised to call her back, after he had run for cover from the rain. Trayvon called her back at 7:12pm. They spoke for four minutes. At 7:17pm, police arrived to find Trayvon, lying on the ground, bleeding from a gunshot wound that had killed him instantly.

By all accounts, Trayvon was a typical teenage boy. He obviously liked sports, chocolate, and the reports of his "on-and-off phone calls all day to his girlfriend" are reminiscent of the high school puppy love many of us experienced at that age. He was like most of us; except most of us are not gunned down on suburban streets. Trayvon’s killing, and what happened afterward, should be of concern to all of us.

George Zimmerman, 28, lives in Sanford. He moved there a decade ago from Manassas, Virginia with his parents. He attended Seminole State College and hoped to join the local police department. That didn’t happen. In 2005, he was arrested for fighting with a state alcohol agent at a bar. A month later, court records show a woman petitioned for an injunction against him, citing domestic violence.

But George still wanted to play cops and robbers. He got a gun, legally licensed, and became a Neighborhood Watch volunteer. I don’t object to owning a gun to protect your home, but I’m not sure if volunteers should be allowed to roam the streets with loaded 9mm guns. Last I heard, one needed an additional concealed weapons permit to carry a gun on the streets of Florida. Over the past 15 months, George Zimmerman made 46 calls to Sanford police to report “suspicious” individuals. He was either zealous or paranoid… or both. On February 26, he made his last call to Sanford police to report another suspicious individual – Trayvon Martin.

I don’t know what made the teenage boy “suspicious”. I doubt it was the iced tea… it gets hot in Florida, even at night. And teenage boys eating candy, well, that strikes me as normal. Talking on a cell phone is practically the norm these days, too. Oh, wait. I forgot to mention Trayvon was black. That didn’t seem important to me. Maybe it was important to George Zimmerman.

Zimmerman is a Latino. In the tape recording of his call to police, Zimmerman is heard to mutter what sounds like a racial epithet. I listened to a digitally enhanced version of the tape, and I clearly heard “fucking coons”, but since it was an altered tape, I cannot attest to its veracity. I also heard the unenhanced recordings:

Zimmerman (out of breath): “These assholes always get away.”

Police Dispatcher: "Are you following him?"

Zimmerman: "Yeah."

Police Dispatcher: "We don't need you to do that."

Zimmerman: “Okay.”

Zimmerman ignored the police instructions not to chase Trayvon Martin. He left his car, armed with a 9mm gun, and pursued him. Despite being able to drive away, Zimmerman would later claim self defense in the shooting. Trayvon’s girlfriend, on the phone with him at the time, filled in the blanks.

"Oh he's right behind me, he's right behind me again," Trayvon told her, according to the Martin family attorney.

“Run!” she replied.

“'I'm not going to run, I'm just going to walk fast," Trayvon reportedly told her.

“Baby, be careful, just run home.”

"I think I lost him." Moments later, Trayvon said, "He is right behind me again. I'm not going to run, I'm going to walk fast."

She heard Trayvon ask, “Why are you following me?" and a man’s reply, “What are you doing around here?" Zimmerman did not identify himself as a Neighborhood Watch volunteer. All Trayvon saw was a 240lb. Latino man pointing a 9mm gun at him. It was the last thing he ever saw.

His girlfriend heard an argument before the phone call went dead. She speculated the headset fell from his head during the scuffle. White neighbors interviewed later on TV reported hearing frantic screams for help, then a gunshot, and then… silence.

Zimmerman was questioned by police and released without any charges. ABC News reported Zimmerman, despite his slurred speech on the tapes, was not tested for drugs or alcohol, as is routine in many homicide cases. However, Trayvon’s body was tested for drugs at the morgue. Zimmerman’s statement was not taken by a trained homicide detective but rather by a narcotics detective.

Trayvon's 16-year-old girlfriend was so traumatized she had to be hospitalized that night. Trayvon's father searched frantically for his son. Sanford police did not tell him Trayvon's body lay in their morgue (he reportedly found out three days later), nor did they answer his calls to Trayvon’s cell phone, nor did they dial any of the phone numbers on Trayvon's phone to notify his next of kin. They were too busy testing his body for drugs. After all, he was a black teen, so that presumably made it reasonable to assume he was on drugs. Skittles are highly addictive, you know. Trayvon’s test results came back clean.

Sanford police had the phone records but never questioned Trayvon’s girlfriend. According to ABC News, “police dismissed eyewitness accounts, failed to investigate the shooter’s background, and immediately accepted (his) claim of self defense.” Sanford police withheld seven 911 tapes from eye witnesses for two weeks until forced by public pressure to release them. There should have been an arrest followed by an investigation. The police chief’s statements, later contradicted by the taped evidence, are cause for a further investigation of a police cover-up.

Everything I have written is factual. As a journalist, I learned to report facts. My opinion will come in tomorrow’s blog. But I’ll leave you with my favorite expression from law school: Res ipsa loquitur – a Latin phrase in law meaning “the thing speaks for itself.”

Zimmerman admits in the tapes the boy was “a teenager”. He was told by the police dispatcher not to pursue the boy, yet he did so anyway, carrying a loaded gun. The unarmed boy’s voice is clearly heard on the tape crying for help. There is a gunshot. No more screams for help are heard and the boy is dead. Why was Zimmerman armed in the first place? He was not a police officer or security guard, but rather a self-appointed vigilante. This was not self defense: he was in a car and could have driven away. The moment he exited the car, armed with a weapon in pursuit of the boy, he became the stalker and self defense does not enter the picture.

Res ipsa loquitur.

Ripping Off the Fig Leaf

Several sources, including the Electronic Freedom Foundation, are crowing about PayPal backing away from its announced censorship policy. The EFF has gone so far as to proclaim: "PayPal has announced a new speech-friendly policy for online book sales, reversing plans to shut off payment processing to publishers of certain forms of erotic literature." Not so fast.

True, PayPal Communications Director Anuj Nayar's latest public statement has addressed several of the concerns I pointed out in this blog, but while it has modified its policy (or in Nayar's Doublespeak, "clarified" it), the policy is still in effect: "The policy will prohibit use of PayPal for the sale of e-books that contain child pornography, or e-books with text and obscene images of rape, bestiality or incest." I maintain it is unacceptable for a payment processor to exercise editorial control over content. While Nayar addressed my point on banning entire classes of publications rather than specific books and reversed PayPal's position, and seemed to be steering away from "text-only" publications, it is not enough. PayPal should not have a kill switch on creative expression. Artwork, including "images", are a form of artistic expression and often convey concepts and ideas. Next, they'll be justifying placing fig leaves on photos of Michelangelo's "David".

 

If the Supreme Court cannot adequately define "obscenity", then I certainly do not trust PayPal to do so. O.K., I'm done with the PayPal affair (I hope). Deadlines beckon. Until next time...

The Past As Prologue

I've devoted a fair amount of blog real estate this week to the PayPal censorship issue, even though it does not directly target my work. I have never written about incest or bestiality, two of the three topics banned by PayPal, and have seldom included the subject of rape in my oeuvre. But any attempt to limit free expression concerns me, because once it is established, the boundaries can change. Today, the forbidden topics may be bestiality, incest, and rape. Tomorrow, they may add contraception and abortion. In a decade, the list may be several pages long.

As an author, I cannot wait until the censors come for my work. Martin Niemöller, a Protestant pastor and social activist, explained why it was necessary to speak out against those who threaten freedom: “In Germany, first they came for the communists, and I did not speak out, because I was not a communist. Then they came for the socialists, and I did not speak out, because I was not a socialist. Then they came for the trade unionists, and I did not speak out, because I was not a trade unionist. Then they came for the Jews, and I did not speak out, because I was not a Jew. Then they came for me — and by that time no one was left to speak out.”

Freedom is a word encompassing many rights, the most important being freedom of expression – the right to speak or write one’s thoughts. Freedom of expression can be repressed by those in a position of power. Sometimes that power comes from government and other times it comes from market dominance, an unequal playing field where one entity or a handful of parties call the shots.

This is not new. In the 19^th century, we saw the rise of industrialism and corporations. Alas, Mitt Romney, corporations are not people, but they are owned by a very few, very wealthy group of people. William Hearst, Joseph Pulitzer, Andrew Carnegie, J.P. Morgan, Henry Flagler, Cornelius Vanderbilt, and John D. Rockefeller, to name a few of what the Gilded Age dubbed the Robber Barons. Teddy Roosevelt led the charge, not merely up San Juan Hill, but against the Robber Barons. The trust-busters targeted  Rockefeller’s Standard Oil and other monopolies and oligopolies, and laws like the Sherman Anti-Trust Act placed limits on growth of corporations within the country. Stymied, corporations in the 20^th century acquired other businesses up and down the supply chain, moving from horizontal integration to vertical integration. This led to the formation of enormous conglomerates and presaged the rise of multinational corporations in the mid-to-late 20^th century, enabling them to turn outside their geographical limits. Faced with prohibitions on advertising cigarettes in the U.S., corporations realized America was merely a division of a much larger corporate enterprise. As multinational conglomerates, they simply focused their marketing on other countries, especially third world nations lacking such restrictions. The “over-regulation” by the U.S. government decried by pro-corporate Republicans could be sidestepped in the name of ever increasing profitability by targeting less developed, less protected international markets.

Ever stop to think why a multinational corporation, BP – British Petroleum – was drilling for oil on American shores in the first place? Despite the public relations campaign about “the cleanup”, the oil spill did irrevocable damage to the ocean floor, the coast, the wetlands, and the indigenous species that will have lasting, negative repercussions for the next 200 years, having destroyed an entire ecosystem. That’s right, the British did more harm to our country during the three months of unabated oil spillage in the Deepwater Horizon disaster of 2010 then when they invaded Washington, DC in 1814 and burned the Capitol to the ground. Didn’t we fight two wars to keep them out of our country? But history is soon forgotten and replaced by Orwellian  public relations. British Petroleum, to put a less threatening face on the visage of a multinational corporation, changed its name to Beyond Petroleum. There, that’s better then, isn’t it?

By erasing geographic borders, the  20^th century multinational corporation has been enabled to transform yet again, into a more powerful entity, unshackled from its geographical restraints. The rules and taxes of its home country are easily avoided by doing business in other nations and banking the profits in offshore banks. Environmental catastrophes  –  collateral damage in the blind pursuit of greed in the name of corporate profits and maximization of shareholder wealth  –  result in limited backlash when a policy of NIMBY – Not In My Back Yard – is adhered to. If someone else’s coastline is devastated, if someone else’s babies die because a multinational corporation used exploitative and deceptive tactics to foist its baby formula on third world mothers to boost its profitability by 72 percent, if someone else’s citizens in the third world die of lung cancer because they are marketed cigarettes in ways that are illegal in this country, so what? Corporations can get away with murder – literally – as long as they don’t defecate in their own backyards.

In my book, Issues In Internet Law, I discuss the borderless nature of the Internet, which transcends geographic boundaries, and the rise of the new nation-states. The 21^st century entities, powerful as they may be, are yet a harbinger of the new nation-states of the 22^nd century. Perhaps the boundaries are being redrawn and the nation-states of the 22nd century will not be America, France, and China, but rather Google, Yahoo! and eBay — for the Internet giants have created fiefdoms that transcend nationality and function under their own rules. Certain companies have emerged as “first among equals” in discreet categories online. While they are other auction sites, eBay is the one most associate with online auctions, and hence provides the largest congregation of buyers and sellers. There are many search engines, but only one constantly has to protect its trademark from being used as a verb synonymous with Web searching, as in “Did you Google it?” Sites like Amazon, YouTube, eBay, Google, Yahoo!, and PayPal are ubiquitous in their reach — Iranians and Israelis meet on eBay to sell items, and Greeks and Turks upload their videos to YouTube.

Citizens of different countries, while physically present in those countries, have joined together to become citizens of online communities. But each online community, like the YouTube community for example, establishes and enforces its own rules for membership and participation within that community. From ISPs to social networks, private companies — not governments — through their Terms of Use agreements and by their internal policies dictate their own rules for worldwide users. Just as PayPal has this past week with its censorship edict.

The rules are not always clearly stated, if at all; enforcement is inconsistent and may vary based on the specific service representative interpreting her company’s policies or invoking her own personal biases — leading to arbitrary and capricious outcomes. Unlike democratic government, there is no guarantee of due process or equal protection, and no one to whom to appeal decisions made by the private company. Uploaded user content can be removed without notice and accounts terminated without a hearing. “Justice” becomes a commodity dispensed at the discretion of the private firm. Disputes are adjudicated behind closed doors by nameless individuals, who function as judge, jury, and executioner. They can delete user content they find “objectionable” or “controversial” regardless of its legality. Or, as in PayPal’s case, prevent what it deems objectionable content from even appearing in the marketplace.

One consequence of private businesses controlling public forums in cyberspace is the First Amendment limitations on government infringements on free expression do not apply to them, as Joe Konrath has pointed out. An ISP or Web site’s Terms of Use agreement grants it sole discretion to refuse or remove any content, without due process safeguards of notice, hearings, and a right of appeal. Should these private companies be vested with so much unchecked power? Will they use it wisely and fairly? Or will they be guided by the corporate profit motive and the whims of whomever sits in the plush leather chair of the corporate boardroom?

If history is any guide – and it usually is – then we should be concerned. We should speak out. I have. Now it’s your turn.

The Spin Starts Here

PayPal has finally responded to criticism of its censorship threats. Anuj Nayar, director of communications at PayPal, was in full spin control on the PayPal blog. "There’s been some chatter about PayPal’s decision to not allow the sale of certain “erotica” content using our service," Nayar says. Chatter? More like outrage. Don't you love it when spinmeisters attempt to minimize their critics?

He continues: "Here are the facts... PayPal is a strong and consistent supporter of openness on the Internet, freedom of expression, independent publishing and eBook marketplaces." Whoa, hold it right there, partner! A fact is a true statement. If that were true, there wouldn't be any controversy, would there? You can't be a censor and claim to support free expression in the same breath.

Nayar claims "an important factor" in PayPal's decision to threaten to drop customers who sell certain books is "that this category of eBooks often includes images." Now, let's put aside for the moment that images are also a form of expression, and also ignore the fact that few modern novels are actually illustrated, and ask even if 3% are illustrated, and even if a portion of these images are objectionable to Mr. Nayar, does that justify censoring the remaining 97% of books in these categories?

He goes on to argue: "This type of content also sometimes intentionally blurs the line between fiction and non-fiction." I have trouble with this statement. Fiction is make-believe and nonfiction is reality. Most of us can tell the difference. One category Nayar objects to is rape. Does that mean PayPal will censor fiction like Alice Sebold's best seller "The Lovely Bones"? Or will it censor an author's true account of her rape published as nonfiction?

Mr. Nayar states: "Some feedback we’re getting is a belief that PayPal is forcing its moral beliefs on others and restricting people’s right to free speech. We can tell you with 100 percent conviction that this is not our intention." I'm sorry, Mr. Nayar, but when you set yourselves up as censors, based on your own standards of what readers should or should not be allowed to read, that is EXACTLY what you are doing. You can't hide it with spin.

"PayPal is a payments company. The right to use PayPal’s service is not the same as the right to speak." Ah, the truth begins to slip through his lips. PayPal, is a subsidiary of eBay, a public company, and it may attempt to repress speech. But at least be honest about doing so.

Nayar claims PayPal is "protecting PayPal from the brand", that is, presumably the taint of the merchandise purchased through PayPal. But you can't have it both ways, Mr. Nayar. PayPal cannot be a payments company and "protect its brand". VISA is a payments company. If one uses his VISA card to order a risqué DVD, throw a bachelor party at a strip club, or rent a hotel room for an evening of debauchery, VISA does not worry these charges are tarnishing its brand. Payment companies are content-neutral. Banks don't inquire how you earned your money before they let you deposit it. When you pass judgment on what people buy or sell, you can no longer shield yourself by claiming to be a payment company. You've crossed a line. When you tell readers what they can't read, booksellers what books they can't sell, and writers what they can't write, you've crossed a much more important line. And as a writer, and one who cares a great deal about free expression, I'm calling you on it.

You Can't Say That!

What is censorship? Many people insist only government can be a censor. Joe Konrath wrote an entire blog  about how PayPal’s threats to cut off publishers and book sellers unless they ceased selling certain books was not censorship because PayPal was a business, not a government. Say it ain't so, Joe! With apologies, Mr. Konrath, you’re wrong.

(Waiting for a thunderbolt to strike for having the audacity to offend The Pompous One).

Since I’m still standing, unscathed, let me grab a dictionary.  Merriam Webster's Collegiate Dictionary: "Censor: One who supervises conduct and morals: as a) an official who examines materials (as publications or films) for objectionable matter; b) an official (as in time of war) who reads communications (as letters) and deletes material considered harmful to the interests of his organization. Censorship: The institution, system or practice of censoring; the actions or practices of censors; esp. censorial control exercised repressively."

Hmmm, no government mentioned there. Let's keep looking. Ugh, this one's heavy. Oran's Dictionary of Law: "Censorship: 1. The denial of freedom of speech or freedom of the press. 2. The review of books, movies, etc., to prohibit publication and distribution, usually for reasons of morality or state security."

No elected officials there, either. Not even the county dog-catcher. Let's try Encarta Encyclopedia:

"Censorship: supervision and control of the information and ideas circulated within a society. In modern times, censorship refers to the examination of media including books, periodicals, plays, motion pictures, and television and radio programs for the purpose of altering or suppressing parts thought to be offensive. The offensive material may be considered immoral or obscene, heretical or blasphemous, seditious or treasonable, or injurious to the national security."

Darn. But Joe Konrath can't be wrong! He’s the god of wannabe writers! (It must be true; I read it on his blog!). Gotta keep trying!

Academic American Encyclopedia: "Censorship is a word of many meanings. In its broadest sense it refers to suppression of information, ideas, or artistic expression by anyone, whether government officials, church authorities, private pressure groups, or speakers, writers, and artists themselves. It may take place at any point in time, whether before an utterance occurs, prior to its widespread circulation, or by punishment of communicators after dissemination of their messages, so as to deter others from like expression. In its narrower, more legalistic sense, censorship means only the prevention by official government action of the circulation of messages already produced. Thus writers who "censor" themselves before putting words on paper, for fear of failing to sell their work, are not engaging in censorship in this narrower sense, nor are those who boycott sponsors of disliked television shows."

At last! I knew that Big Government had to stick its snout in somewhere! But even this last definition explains government can be one of many censors. In its narrowest sense, the word may mean what Joe says it does. But in every other sense, it means anyone can be a censor. Including PayPal. Censorship is more egregious when committed by government, or, as in the case of PayPal, by an entity with near-monopolistic control.

Now, before Joe debates the definition of “monopoly”, I realize PayPal is not a monopoly – yet. But it has achieved a position of market dominance – to the point where many smaller booksellers would find it infeasible to sell online – such that its edicts will have a chilling effect on free speech. Writers will not be able to sell their books if they stray from PayPal-approved subject matter – that’s the bottom line.

A Werewolf Raped His Teenage Sister...

You can't read this.

Sorry, you'll have to leave now. Go away. You don't have permission from PayPal to read my blog today.

PayPal has set itself up as the arbiter of what you and I should be reading. Or, more specifically, not reading. PayPal warned several online publishers and booksellers, including Smashwords, it would "limit" their PayPal account unless they removed e-books "containing themes of rape, incest, bestiality and underage subjects" from their Web sites.

What PayPal is doing affects me, and it affects you. A corporation has decided to censor what writers publish and what you read. A bunch of pencil-pushing geeks in the credit card processing business have decided THEY know what's best for you. THEY will choose the topics you can read and the ones you can't. THEY will decide which books are published... and which aren't.

PayPal, a subsidiary of eBay, is a major payment gateway for online booksellers. It has market dominance and cannot be easily ignored. It has few viable competitors. This affects a huge number of books, authors, and booksellers.

There are certain subjects I, like the pencil-pushing geeks at PayPal, choose not to read about. But that's the point: in a democracy, we get to choose. No one makes that choice for us.

PayPal/ eBay is a major player in U.S. commerce, handling billions of dollars in online transactions. I think it would be appropriate for Congress to launch an investigation into this matter. Rep. Edward Markey has been on the forefront of Internet-related issues. You can e-mail him and share your thoughts.

Full Disclosure: Neither I nor Amber have received any letters from PayPal, my books are not offered on Smashwords, and my stories do not have themes of incest or bestiality (do werewolves count?) and I am not even sure what "underage subjects" are. However, I have begun work on "The PayPal Affair", a story that promises to be filled with themes of rape, incest, bestiality and underage subjects. And pencil-pushing geeks.

The Top TV Dramas You’ve Never Seen

There you have it. We’ve wrapped up the month of February, celebrating The Top TV Dramas You’ve Never Seen. Of course, the choices were all based on my opinion, so you may not agree, but hey, it’s my blog, lol. I hope I’ve steered you toward some dramas you will seek out and enjoy, and that you’ll click on the ancillary links at the bottom of each post to view the film clips, visit the associated Web sites, and even purchase the DVDs or watch the shows on YouTube.

In case you missed it, here’s the complete list:

1. I, Claudius
2. Secret Army
3. Poldark
4. Upstairs, Downstairs
5. EastEnders
6. The Fugitive
7. House of Cards trilogy
8. Playhouse 90
9. Roots
10. Garrow’s Law
11. Los Plateados
12. Tom Brown’s Schooldays (1973 series)
13. Life On Mars (U.K. version)
14. Cadfael