Blackie the Talking Cat

According to the U.S. Court of Appeals for the 11th Circuit, a talking cat is not considered a "person" and therefore is not protected by Bill of Rights. See Miles v. City Council of Augusta, Ga., 710 F.2d 1542 (11th Cir. 1983).

The trial court evidently went through a painstakingly detailed analysis of the Atlanta business licensing ordinance in question. The 11th Circuit, not typically known for it's sense of humor, broke its tradition of dry legal analysis and had some fun with the case. For your amusement and educational edification, here are the key parts of the case:

Miles v. City Council of Augusta
United States Court of Appeals for the Eleventh Circuit
710 F.2d 1542
August 4, 1983

Appeal from the United States District Court for the Southern District of Georgia.
Before Tjoflat, Johnson and Hatchett, Circuit Judges.

Plaintiffs Carl and Elaine Miles, owners and promoters of "Blackie the Talking Cat," brought this suit in the United States District Court for the Southern District of Georgia, challenging the constitutionality of the Augusta, Georgia, Business License Ordinance. Their complaint alleged that the ordinance is inapplicable in this case or is otherwise void for vagueness and overbroad, and that the ordinance violates rights of speech and association. The district court granted summary judgment in favor of the defendant City Council of Augusta. Miles v. City of Augusta, 551 F. Supp. 349 (S.D.Ga.1982). We affirm.

The partnership between Blackie and the Mileses began somewhat auspiciously in a South Carolina rooming house. According to the deposition of Carl Miles:

Well, a girl come around with a box of kittens, and she asked us did we want one. I said no, that we did not want one. As I was walking away from the box of kittens, a voice spoke to me and said, "Take the black kitten." I took the black kitten, knowing nothing else unusual or nothing else strange about the black kitten. When Blackie was about five months old, I had him on my lap playing with him, talking to him, saying I love you. The voice spoke to me saying, "The cat is trying to talk to you." To me, the voice was the voice of God.

Mr. Miles set out to fulfill his divination by developing a rigorous course of speech therapy.

I would tape the sounds the cat would make, the voice sounds he would make when he was trying to talk to me, and I would play those sounds back to him three and four hours a day, and I would let him watch my lips, and he just got to where he could do it.

Blackie's catechism soon began to pay off. According to Mr. Miles:

He was talking when he was six months old, but I could not prove it then. It was where I could understand him, but you can't understand him. It took me altogether a year and a half before I had him talking real plain where you could understand him.

Ineluctably, Blackie's talents were taken to the marketplace, and the rest is history. Blackie catapulted into public prominence when he spoke, for a fee, on radio and on television shows such as "That's Incredible." Appellants capitalized on Blackie's linguistic skills through agreements with agents in South Carolina, North Carolina, and Georgia. The public's affection for Blackie was the catalyst for his success and Blackie loved his fans. As the District Judge observed in his published opinion, Blackie even purred "I love you" to him when he encountered Blackie one day on the street. (Footnote 1)

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Footnote 1 We note that this affectionate encounter occurred before the Judge ruled against Blackie. See Miles, supra, 551 F. Supp. at 350 n. 1.
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Sadly, Blackie's cataclysmic rise to fame crested and began to subside. The Miles family moved temporarily to Augusta, Georgia, receiving "contributions" that Augusta passersby paid to hear Blackie talk. After receiving complaints from several of Augusta's ailurophobes, the Augusta police -- obviously no ailurophiles themselves -- doggedly insisted that appellants would have to purchase a business license. Eventually, on threat of incarceration, Mr. and Mrs. Miles acceded to the demands of the police and paid $50 for a business license.

The gist of appellant's argument is that the Augusta business ordinance contains no category for speaking animals. The ordinance exhaustively lists trades, businesses, and occupations subject to the tax and the amount of the tax to be paid, but it nowhere lists cats with forensic prowess. However, section 2 of Augusta's Business Ordinance No. 5006 specifies that a $50 license shall be paid by any "Agent or Agency not specifically mentioned." Appellants insist that the drafters of section 2 could not have meant to include Blackie the Talking Cat and, if they did, appellants assert that section 2, as drafted, is vague and overbroad and hence unconstitutional.

Upon review of appellants' claims, we agree with the district court's detailed analysis of the Augusta ordinance. The assertion that Blackie's speaking engagements do not constitute an "occupation" or "business" within the meaning of the catchall provision of the Augusta ordinance is wholly without merit. Although the Miles family called what they received for Blackie's performances "contributions," these elocutionary endeavors were entirely intended for pecuniary enrichment and were indubitably commercial. (Footnote 3). Moreover, we refuse to require that Augusta define "business" in order to avoid problems of vagueness. The word has a common sense meaning that Mr. Miles undoubtedly understood. (Footnote 4)

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(Ed. Note: It appears that the court is not as good at arithmetic as it is at humor. Either that or the omission of a "footnote 2" was a deliberate and subtle joke that is lost on me.)

Footnote 3 - This conclusion is supported by the undisputed evidence in the record that appellants solicited contributions. Blackie would become catatonic and refuse to speak whenever his audience neglected to make a contribution.

Footnote 4 - As found by the district court, Mr. Miles had previously inquired as to the necessity of obtaining a business license in Charlotte, North Carolina, and in Columbia, South Carolina. 551 F. Supp. at 353.
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Appellants' attack on the vagueness of section 4 of the Augusta ordinance, which permits the mayor, in his discretion, to require a license, is not properly before this Court. As the district court indicated, defendants sought to enforce only section 2 of the ordinance in this case. 551 F. Supp. at 354.

Finally, we agree with the district court that appellants have not made out a case of overbreadth with respect to section 2 of the ordinance. Appellants fail to show any illegal infringement of First Amendment rights of free speech (Footnote 5) or assembly. The overbreadth of a statute must be "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 2918, 37 L. Ed. 2d 830 (1973). Appellants' activities plainly come within the legitimate exercise of the city's taxing power.

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Footnote 5 - This court will not hear a claim that Blackie's right to free speech has been infringed. First, although Blackie arguably possesses a very unusual ability, he cannot be considered a "person" and is therefore not protected by the Bill of Rights. Second, even if Blackie had such a right, we see no need for appellants to assert his right jus tertii. Blackie can clearly speak for himself.
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Homage

For those who haven't seen this yet, this is a phenomenal video. Test question: How many people are singing on stage? (Hint - it's not 1, and it's not 7.)

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Social Networking Liability

Social networking sites are the latest fad. Occasionally, we read about someone getting fired for blogging from or about work, and recently we all read about the Chicago tenant who is being sued by her former landlord for tweeting about the premises being "moldy". But most people think, "that's a one in a million thing - nobody really gets in trouble for twittering, or facebooking, or even really for blogging."

I guess it depends on what you mean by "nobody". According to "OMG: Why Social Media Can Make A Lawyer Nervous", "a survey this year shows that 8 percent of the 220 companies surveyed had fired an employee for on-the-job activity on social media sites." That's 18 out of 220 companies. Personally, I wouldn't call that a really small number, and that fact that it is growing steadily year after year should also be of concern.

I recommend reading the linked article. And before sending that tweet making that oh-so-amusingly wry observation about your boss, or posting that camera phone pic of you and your buddies abusing the copier or bathing in the sink after hours, you might want to repeat that admonition made famous by the remake of "The Fly": "Be afraid. Be very afraid." Read More......

Tech Support Flow Charg

Have you ever suspected that the tech support drone on the other end of the phone really has no clue about your problem and is just randomly looking up stuff on the Internet?

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How to lose customers

I had a lesson from AT&T today in what really bad marketing looks like, aka "how to drive away a customer". This was somewhat ironic as I had just read "Is AT&T losing its grip on the iPhone?" The article suggests that Apple is likely to ditch AT&T as the exclusive iPhone carrier, and that if they do, AT&T is going to suffer because a whopping huge number of customers don't like them. My own experience with them has been spotty, but this one was ... well, someone in marketing needs to be fired. Really. Maybe it's not marketing, in which case whoever is responsible should be fired. But they should still fire someone in marketing just because.

Here's what happened. On Saturday, I drove up to Whistler, BC for a friend's wedding. I came back on Sunday afternoon. I made only 2 calls and did nothing unusual with my data plan. I checked email, didn't send any, looked at facebook and posted one short update, and looked at Twittelator. That was about it.

Today, I got 2 back to back texts from AT&T. The first puzzling thing was that they claimed I had a "high data usage" while abroad and that I should call AT&T to avoid service interruption.

Huh? Service interruption? WTF?

The messages gave me a phone number in the 916 area code, saying it was a "free" call. That area code is in California, hardly local and not generally free. I suspected a phishing scam, and was concerned that whoever the sender was knew that I'd been out of the US.

I called 611. That's the actual number to call from my cell to get AT&T service. The wait wasn't long and I spoke with a customer service fellow. I told him about the texts. He was a nice enough chap, but not the brightest bulb in the chandelier so he just kept insisting that 916 calls are free because that's where AT&T's service center is.

Now, exactly how is a customer supposed to know this? In the past, I've gotten texts advising to call an 800 number, or even to dial 611, but I've never been asked to call a non-local number "for free". This was obviously not this poor guy's decision, so I let it drop after he had confirmed that yes, that's an AT&T number and they don't charge for it. So, not phishing. Good news.

I told him about the content of the text messages and he "researched" my account. He then said, "Oh, yes, you don't have an international data plan so you have 15MB usage while in Canada."

Okaaaaayyyy ... so?

He paused expectantly, so I had to ask him what that meant. He said that I had a nearly $350.00 charge for that usage. He paused again, as if that explained everything.

Again, WTF? (still in my head, but louder this time).

I told him that was an absurd amount to charge for ordinary data usage. It is multiples more than what I get charged for much greater usage in the US. He said, "Well, they charge more for international usage."

I told him that if AT&T planned to bill me that amount, I would drop them as my carrier. He repeated placidly that I don't have an international data plan and they charge more for international usage.

Yes, I heard that the first time. We beat around that bush about 3 more times. I was ready to hang up, resign myself to the extortion, and start looking for a new carrier. Then he said, as an afterthought, "We could add the plan for you and you would only pay $25.00."

Have I mentioned WTF?

I only said the first word of that. "What..", I said?

He repeated himself without adding any new information. I asked him to explain what he was talking about. I had to ask a careful series of specific questions, but he eventually revealed that he could add the international data plan to my account so that I would only pay $25.00 rather that $350, and that if I don't travel a lot, he could make the international data plan expire on 9/6 - in one week.

So basically, he was saying that they're not going to charge me $350, they're going to charge me $25. But it took him 10 minutes of pissing off the customer to get to that point.

This all begs the question of why he didn't just say up front, "It looks like you've got a $350 charge on here for international data usage. Most customers don't know about that usage increase when they cross the border, so we have this nifty plan that saves you $325. Would you like me to add that to your calling plan?"

Or better yet, they could have teed that up clearly in the text message they sent.

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Life+20 Explained

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The court of appeals found that while "mere judges" cannot hope to understand the complexities of advanced early release math, expecting the Parole Board to nail down an individual's life expectancy, and release him 15 years before he dies, just doesn't work.

The court of appeals made the effort to go beyond simply explaining the dry issues of "indefinite sentencing". It is good to have such a clear and succinct case telling us that "life + 20" does not mean that the prison has to keep the body for 20 years after the inmate dies, and that multiple life sentences do not rely on reincarnation.

There is, of course, much validity to the State's observation that the language of sentencing is impressionistic at best and cannot realistically be expected to be otherwise. The abacus of industrial time and good behavior time, manipulated so adroitly by correction and parole authorities, is something largely beyond the ken of mere judges. The special language of life imprisonment, moreover, has unique semantic hazards of its own. Any sentence of more than life is but a symbol by which the judge tries to communicate to the parole authorities, should the parole authorities care to know, that the judge thinks that parole should be used sparingly. A sentence of life plus twenty years does not suggest that the warden may not release the body to the undertaker until twenty years after the prisoner's death. Consecutive life sentences do not contemplate reincarnation. Much of what a judge says about life imprisonment is more the language of poetry than the language of mathematics.

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Contempt

Attorneys and others who end up in court for one reason or another are always wondering at some level what "contempt of court" means. Some examples are obvious. Yelling invective at the judge will do it for you. Reporters all know that refusing to answer a question when ordered to do so by the judge will land you in jail on a contempt charge. But what about more subtle things, like farting in court?

Will just one gas attack do it? What if it's SAD, the well-known acronym for "Silent And Deadly"?

Thanks to Joe Francis, the producer of the inexplicably successful "Girls Gone Wild" video series, we now know the answer to those burning questions. Or at least, some of them. I can't say it better than this excerpt from a motion urging the court to find him in contempt.

As the court will see from reviewing the video clips of Francis’ deposition, his utter contempt for the judicial system is apparent, including his repeated attempts to disrupt the deposition with flatulence,” the lawyers wrote.

"Disrupt the deposition with flautulence"? Now that's a quote for the ages. You can bet that somehow, somewhere, somewhen, that phrase will leave my mouth in some formal setting. Perhaps a deposition. Or a trial! I can hardly wait!

Francis's contempt for the court and judicial proceedings goes far beyond just flatulent protest. You can read about more of his antics at the Las Vegas Sun. Suffice it to say that his antics will cost him several million dollars at last count - and he is also looking at a stint in the county facilities.

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Date My Avatar

This comes to us courtesy of The Guild, the howlingly funny send up of on-line gaming starring Felicia Day.

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Deflating Judge

Judge Robert Nalley, a Maryland Circuit Court judge, had had enough of budget, planning, personnel and other management responsibilities. He wanted to be back in the trenches, doing something meaningful for the noble cause of Justice.

So when opportunity knocked, he answered. One fine day he saw a scofflaw parked in a no parking zone outside the courthouse. HIS courthouse. Courageously taking matters into his own hands, and without even calling for backup, the judge - or perhaps I should say the erstwhile judge (I try to get "erstwhile" into a post at least once a year) - freed the imprisoned air that was trapped in the scofflaw's tires. I can imagine him wafting it away, muttering "Fly! Fly away and be free!"

It is unknown whether Nalley thought that he was liberating the air unseen, but what we do know is that the air's owner, upon returning to the car, called the police to let them know that SOMEONE had flattened her tires. The Sheriff's office investigated and found witnesses, including one who had a cell phone video.

Judge Nalley submitted his resignation yesterday as chief court administrative judge. Or it could have been today. Hard to tell from the article. His resignation letter doesn't say anything about his annoyance about scofflaws parking in no parking zones. His reason is that he is tired of administration and wants to be back in the trenches.

It is important to note that he isn't resigning as judge, just as the chief administrative judge. He will remain a judge, presumably so that he can take the occasional foray into the those trenches he loves so much, and free more air from the nasty people imprisoning it those hot, musty tires. It is comforting to know that even when the police won't ticket parking scofflaws, the intrepid judge is out there, prowling along on his rounds, keeping a wary eye out.

No word yet on whether criminal charges are pending, or whether the air's original owner, a court house staffer, is planning to sue him. The other shoe is on its way down, to be sure. Where will it drop? Stay tuned!

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