How to Avoid Losing Child Custody Like Alex Jones

Infowars personality and conspiracy show host Alex Jones has been engaged in a custody dispute with his ex-wife, Kelly Jones, since their divorce in 2005. The couple had three children, ages 9, 12, and 14. Jones is famous for his angry rants on air, during which he talks about topics such as “9/11 is an inside job” or “Sandy Hook is a hoax.” Jones gained prominence last year when Mr. Trump appeared on his show.

At the end of April 2017, the jury awarded the couple joint custody of their children, but with the children’s primary residence changed to their mother’s residence. The ruling was made after almost two years of restraining orders, protective orders, subpoenas, and depositions.

Mr. Jones’s show has been a drag on his custody battle. Ms. Jones’s attorneys have used video tape evidence of Mr. Jones’s rants as evidence that he is mentally unfit to be a parent. They compare Alex Jones to cult leaders and that the children are being turned into cult followers. The father’s attorneys argued to the jury that their client was merely a “performance artist” and that the videos were merely an act.

Unfortunately, Mr. Jones himself never got the memo that his show was merely “satire.” In another video filmed after his attorney’s opening arguments, Mr. Jones proudly announced “I 110 percent believe what I stand for.” A psychologist testified that Mr. Jones was diagnosed with narcissistic personality disorder, a disorder in which the patient has an inflated ego and has a constant need to be admired and a lack of empathy for others.

Alex JonesShould Parents With Mental Disabilities Retain Custody of their Children?

The most interesting issue here, assuming that Alex Jones is not acting, is whether Mr. Jones has narcissistic personality disorderand whether that narcissism would prevent him from properly raising his children.

Custody cases are always to be decided in the children’s best interests. This is the standard in all custody cases and attorneys should always be arguing that time with their client is in the children’s best interests. However, for many years society has made many assumptions about what is best for the children. These assumptions can be unconstitutional if they violate a constitutional right. For instance, firearms can be dangerous to children, but merely owning a gun cannot be said to violate a child’s best interest. Similarly, assumptions about race, religion and gender must often be challenged.

Disorders and disabilities are more difficult for a court to assess. On one hand, having a parent with a disorder or disability might inhibit a parent from being fully able to raise a child. On the other hand, merely assuming a parent is an unfit parent because of a disability would not be valid. For instance, a parent who is wheel-chair bound might not be able to engage in physical sports or run up a staircase to chase a little boy. However, the opposing party must offer proof that the parent’s wheelchair is actually preventing the parent from carrying out his or her parental responsibilities and not just assume that the disability is inhibiting a parent-child relationship.

If Alex Jones has narcissistic personality disorder, the question is whether Mr. Jones’s disorder is causing harm to his children. From the trial testimony, it sounds like Mr. Jones’s issue is that he requires a constant need to be right, even if that need results in him sabotaging his legal fight for his children. Such a personality could be overly dominating, especially for young children. The question for the jury is whether a dominating personality is merely a strict father who wants the best for his children or a man who wants his children to tell him he is right and correct in all things. If it’s the latter, Mr. Jones should not have custody.

There’s a Moral to This Story

So what lessons can we draw from Mr. Jones’s case? First, do not sabotage your attorney, especially if the other side is arguing that you’re insane. Contradicting your attorney is never a good idea, as the opposing side can use your own words against you and your legal team. Second, provide as much evidence as possible. Walking into an attorney’s office and complaining about how crazy your ex-spouse behaves is not nearly as effective as walking into an attorney’s office with witnesses, police reports, or video tape of how crazy your ex-spouse behaves. Of course, not every ex-spouse runs an internet show out of his or her house, but if the behavior is truly that terrible, it might be worth calling the police to get a report.

Starbucks is Found Liable for Yet Another Hot Coffee Case

A Jacksonville, FL jury has ordered Starbucks to pay $100,000 to Joanne Mogavero after Mogavero was burned by their coffee. In 2014, Mogavero purchased a 20 ounce Venti cup of coffee through the local Starbucks drive-through. After the cashier handed Mogavero the cup to her, the lid popped off as Mogavero was about to pass the cup to her son. The coffee spilled out and Mogavero was covered in 190 degree coffee. Mogavero visited a plastic surgeon to treat the first and second degree burns to her stomach, thighs, and groin, but the surgeon told her she would have to live with the scars.

After Mogavero filed suit, Starbucks attempted to have the case dismissed by arguing that since Mogavero had already accepted the cup from the cashier and was holding the cup when it spilled, that Starbucks could not liable for the accident. The judge allowed the case to proceed to trial. At trial, a Starbucks representative testified that the company received about 80 complaints a month about pop-off lids.

The jury found Starbucks to be 80% liable for the accident and the remaining 20% to be attributable to Mogavero herself.  The jury awarded $85,000 for the

Starbucks

physical impairment and pain and suffering as well as $15,000 for the plaintiff’s medical bills. Starbucks has denied any wrongdoing and has announced it is planning an appeal.The Evolution of Hot Coffee Cases

The Evolution of Hot Coffee Cases

Arguably the most famous personal injury suit is the 1992McDonalds “hot coffee” case.  In that case, an 80 year old woman received third degree burns after the coffee spilled on her.  Her attorneys were successful in arguing that coffee served at 180-190 degrees was unreasonably dangerous.

Over the decades, other hot coffee spill cases have been brought against large corporations such as McDonalds, In-N-Out, and Starbucks. The latest Starbucks case differs slightly from the original McDonalds case. Although the temperature of the coffee in both cases are the same, 190 degrees, Mogavero’s attorneys chose a different route.

Instead of focusing on the temperature of the coffee, the plaintiff’s attorneys here focused on the pop-off lids that caused the spill. Attorneys and judges prefer to focus on precedent, or prior cases, to argue a successful case. However, this successful departure from the norm will benefit consumers in the long run, as plaintiff lawyers now have more than one tool to strike coffee companies with. Conversely, defendants will have to prepare for this new line of assault.

Corporations Should Stop Using the “Control” Argument

On the defense side though, the arguments are parallel. In 1992 and 2017, the focus for the defense is that the customer had control and the corporation no longer did. Since the customer was holding the coffee cup, it was the customer’s fault and therefore McDonalds/Starbucks cannot be liable.

In both cases though, this argument is severally flawed.  First, most states have adopted comparative negligence, which means that juries can assign liability based on percentage.  Attacking the other side is not a good strategy if, at the end of the day, the company is still stuck with 80% of the bill. It’s less than 100%, but still a substantial amount to pay up.

The second flaw with this approach is that it doesn’t really stop the plaintiff from building up a potential case.  In a negligence suit, the customer must show that 1. the company had a duty to be careful, 2. that the company failed in that duty, 3. that failure caused the customer harm, and 4. the harm resulted in injury to the customer. Arguing that the customer had control and therefore the company is not responsible for its product afterwards would invalidate every defective product case. If a microwave burst into flames on its own accord shortly after a customer purchased it, the company selling the microwave would be potentially liable, regardless of whether the appliance burned in the parking lot or at home.

Both McDonalds and Starbucks relied on a “control” argument to dig themselves out of hot coffee cases. If consumers are adapting and winning, companies should avoid using losing arguments.

Sessions Wants to Go After Marijuana, But Congress Isn’t Interested

The legal house of cards on which the marijuana industry has built itself–legal at a state level but illegal federally–is one which has garnered much discussion. Built on promises of a hands-off policy from the Obama administration, the business of medical and recreational marijuana has exploded in states across the nation. Medical marijuana is legal in 29 states as well as the District of Columbia. Recreational use of marijuana is legal in 8 states. All of these laws have led to booming industries which have one thing in common, the federal government could swoop in at any moment and shut them down with criminal charges.

The 2013 memo from the Obama administration, making it clear they would not prosecute marijuana offenses which were legal under state law, opened the door for this industry. By the same token, the policies of the Trump administration and its Attorney General (AG) Jeff Sessions could slam that door shut. The industry has rightly feared how Jeff Sessions would approach such laws due to his history of extreme opposition to marijuana as a whole. He has been quoted saying that”good people don’t smoke marijuana,” said that marijuana is nearly as bad as heroin, and even is on record as saying that he thought the KKK were good people until he “learned they smoked pot.”

The position implied by these statements has been mirrored in his behavior as AG. In February he warned that “states, they can pass the laws they choose…I would just say it does remain a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not.” In a more recent policy memorandum, Sessions required all of his federal prosecutors to “charge and pursue the most serious, readily provable offense.”  This memo means that prosecutors must seek approval from a superior before seeking anything but the most serious charges available–even for low-level crimes.

To build on this, Sessions’ memo clarifies that the policy requires federal prosecutors to pursue whatever charges will yield the longest sentences–especially charges that have mandatory minimum sentences. This position is directly opposed to the policies of AG Eric Holder under the Obama administration–they had a policy of avoiding mandatory minimums with nonviolent drug offenses. Holder, and many others, have  strongly criticized the new position.  Holder specifically described it as “dumb on crime;” emphasizing the ineffectiveness of mandatory minimum sentences when it comes to achieving fair outcomes or improving public safety.

Holder is not alone in his criticisms of how Sessions has been handling drug offenses and marijuana specifically. Congress has made this abundantly clear in the last several weeks as they have made moves to shut down Jeff Sessions’ ability to pursue either his attacks on state law or mandatory minimums.

SessionsNo Money, No Problem

Every year, Congress prepares a budget which basically determines what the government will provide monetary support to. This year, targeting state laws on medical marijuana is not on the list.

Section 537 of Congress’ 1,665-page spending bill specifically forbids Sessions and the Department of Justice from using any funds whatsoever to prevent states from “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” These sort of sections aren’t really targeting Sessions specifically, there’s been a similar section in the budget every year since 2014.  However, this year it’s likely to have more impact than ever before.

The section specifically lists which states are off Jeff Sessions target list. Alabama, Alaska, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, the District of Columbia, Guam, and Puerto Rico are all free to follow their own laws when it comes to medical marijuana. The list of states is important partially because of who it does not include.  Indiana and North Dakota have passed new medical marijuana legislation in the past weeks and months respectively.  It is notable that neither of them are on list.

No funding basically hamstrings Sessions when it comes to targeting medical marijuana in states where it has been legalized–with the exception of North Dakota and Indiana. This leaves businesses built around medical marijuana safe from criminal charges in most states. However, it does nothing to keep Sessions from going after businesses built around the legalization of recreational marijuana.

Legislation May Target Heightened Sentencing As Well

In more recent news, the last few days have seen a bipartisan bill introduced in Congress.  This new bill sets its sights on mandatory minimums.  Introduced by Republican Senator Rand Paul, Republican Representative Thomas Massie, Democratic Senator Patrick Leahy, and Democratic Representative Bobby Scott, the bill is a reintroduction of the Justice Safety Valve Act. First introduced in 2013, the law allows judges to ignore mandatory minimum sentences where there are mitigating factors to support that choice.

Those introducing the bill have specifically called out Sessions approach to mandatory minimums. Senator Paul has been quoted saying that “mandatory minimum sentences disproportionally affect minorities and low-income communities, while doing little to keep us safe and turning mistakes into tragedies. As this legislation demonstrates, Congress can come together in a bipartisan fashion to change these laws.” This is a position mirrored in statements from those introducing the law alongside Paul.

Congress has shown that they are not interested in supporting Sessions in a crackdown on marijuana laws–either through legislation or sentencing. However, the industry is far from out of the reach of the Department of Justice.  What’s more, Sessions has made clear that drug offenses will be a priority for the DoJ under his watch. As long as marijuana remains federally illegal, any business built on state law promises will be at the whims of the federal government. Only time will tell if the industry will be able to reach true stability.

Not a Hate Crime, WV Supreme Court Determines about Attack on Gay Men

In April 2015, Steward Butler was in his car at a stoplight when he saw two men kissing on the sidewalk. He directed homophobic comments toward them, then exited his car and punched both men in the face. He was charged with battery, as well as violations of an individual’s civil rights under West Virginia Code Section 61-6-21(b), which makes it unlawful to injure a person because of that person’s “sex.” Though Butler was found guilty of battery, the lower court ruled he had not committed a civil rights violation under Section 61-6-21(b) because his assault on the men was not based on their “sex,” a term the court asserted was unambiguous and could not be expanded to include “sexual orientation.” The West Virginia Supreme Court upheld the ruling.

Sex v. Sexual Orientation

In reaching its decision, the Court explained that because use of the word “sex” in the statute was unambiguous, it should not be subject to interpretation and its plain meaning should be applied. Further, a word used in a statute is not deemed ambiguous merely because the parties in the case do not agree on its meaning.

The Court asserted that because the word “sex” was not defined in the statute, it was required to apply the “common, ordinary and accepted meaning.” In this case, it argued, “sex” and “sexual orientation” have different meanings. Referencing dictionaries to explain the difference, the Court explained that “sex” involves the physical structures such as genitalia and functions that separate males and females. By contrast, “sexual orientation” is about an individual’s sexuality or predisposition when it comes to sexual behavior and activity with other males or females.

Other States Have Included “Sexual Orientation” in Their Statutes

The Court went on to say that most of the states have enacted hate crime statutes, and there is an irrefutable distinction between “sex” and “sexual orientation” among the states. Six states, including West Virginia, use the term “sex” or “gender.” With respect to 20 of the states, the legislature used the term “sex” or “gender” in addition to the term “sexual orientation.” Six other states mention only “sexual orientation.” Some states use the terms “sexual orientation” in addition to “gender expression” or “gender identity.” Finally, certain states do not use any of these terms. Moreover, the Court pointed out that there have been prior court decisions on the matter involving states that use only the word “sex” in their hate crime statutes, and in these cases the courts did not define it to include or exclude “sexual orientation.”

Hate Crime

West Virginia’s Legislature Has Indisputably Left Out “Sexual Orientation”

According to the Court’s analysis of the legislature’s intent, it is undeniable that the term “sexual orientation” has been purposefully left out of the state’s hate crime statute. Since the statute’s enactment in 1987, the legislature has failed to add the term “sexual orientation.” Thus, the Court asserted, it must recognize the legislature’s intent to not include “sexual orientation” in the statute.

Dissenting Justices: Majority’s Take on the Law is Wrong

Justice Workman and Justice Davis wrote a dissenting opinion, arguing the majority opinion showed a detrimental misunderstanding of the phrase “because of . . . sex” in the statute. The Court is required to look at the entire language of a statute, and in this case, the dissenting Justices assert, the victims were assaulted because of their sex. In a hate crime situation, it is the bias and motivation for the crime that are ultimately punished, and the victims were clearly attacked because they were not behaving in a manner their assailant perceived men should behave with other men.

Justices Workman and Davis supported their argument with a case that came under Title VII of the Civil Rights Act of 1964. There, a female manager was denied partnership at her accounting firm and told she should act and appear more feminine. The case came before the U.S. Supreme Court, which concluded the phrase “because of . . . sex” in the federal statute included mistreatment due to gender stereotypes. According to Justices Workman and Davis, the woman was discriminated against not just because she had the anatomical parts of a female, but because she did not conform and act in the manner she was expected to as a woman in a corporate setting. But for her sex, Justices Workman and Davis argue, the woman in the accounting firm would not have been discriminated against. Likewise, but for their sex, the two male victims in this case would not have been attacked by the defendant.

That Victims Suffered “No Injustice” Is Highly Questionable

The Court stated in its opinion that, despite the dismissal of the hate crime charges, there was no injustice because the two counts of battery against Butler were upheld. This remark is undoubtedly an oversimplification of the meaning of hate crimes and what justice means for its victims.

Trump, Tired of Losing, Focuses on Changing Libel Laws

President Trump has made no secret of his war on the media–repeatedly criticizing what he calls “fake news.”  His opinions on reporting are well documented. So perhaps it’s no surprise that his administration has come out against laws which protect both free speech and free reporting. The Trump Chief of Staff recently mentioned in an interview that the Trump administration has sought to change how defamation laws–and especially libel laws function.

As of now, there have been no concrete steps taken to do this beyond the statement that the administration has been considering how it could change these laws. This position is something many have seen coming. Trump has said, even before he was elected that he desired to “open up our libel laws so when [media] write purposely negative and horrible and false articles, we can sue them and win lots of money.”

This would certainly help Trump himself, as he is a frequent flier when it comes to bringing or threatening defamation lawsuits–especially unsuccessful ones. With 43 different threatened defamation lawsuits and 5 lawsuits which he has actual brought, he is no stranger to defamation law. His lawsuits cover a variety of situations but all have one thing in common–no court has ever ruled in his favor on a defamation lawsuit.

With his long losing streak, Trump now seeks to change the rules in his favor. However, as he has learned with many of his executive orders, without an act of congress it is unlikely that he has any power to make the changes he desires. What’s more, much of defamation law is based in state law which further complicates things for Trump’s would be changes. So, with the law in little danger of changing in the immediate future, let’s look at how defamation law currently works and a little bit of Trump’s history with defamation lawsuits.

TrumpHow Defamation Laws Work

Defamation itself is an enormous topic to cover, the law around it varies state by state and could fill volumes. However, we can at least give you a bit of a summary on the way it works. Defamation is a general term for a situation where somebody makes a false statement that damages your reputation. Slander can be generally understood as spoken defamation while libel can be understood as written defamation. A general claim of defamation requires the plaintiff to establish that a statement was made which: 1) negatively impacted the plaintiff’s reputation; 2) clearly referenced the party suing; 3) was communicated to at least one person who is not the plaintiff; 4) at least one person communicated the statement understood what the statement meant and who it referred to; 5) damaged the plaintiff’s reputation; and 6) wasn’t true.

In order to be defamatory, the statement must also be made as if it were factual as opposed to a opinion. This is because the truthfulness of an opinion is irrelevant if it is clearly the subjective opinion of just one person. However, where somebody says they have an opinion based on specific facts then the facts supporting their opinion can themselves be defamatory.

There are several situations where the requirements of proving defamation can be enhanced. Public officials, such as politicians, can only sue for defamation if the person making statements about them knew what they were saying was false. Public figures, celebrities and the like, can only sue if a person knew or should have known their statements were false. The statements must have been made with actual malice–purposefully made to harm the plaintiff’s reputation. Whether somebody is a public figure is generally based on their fame and notoriety. However, where somebody voluntarily puts themselves in the public eye on an issue–for instance by holding a press conference or bringing a lawsuit–they can make themselves a public figure for purposes of that particular topic.

There is a privilege, a sort of defense against defamation lawsuits, for statements published in a reasonable manner where there is public interest in the topic –often referred to as a newsworthiness exception. This means that the news can inaccurately report events–especially breaking news which has just come to light–so long as it doesn’t do so with the intent to harm a specific person’s reputation.  This is very hard to prove and is essential to the operations of quite a few news outlets.

There are a number of other defenses and privileges which protect a person from a defamation claim; as well as situations where something is more likely to be defamation based on the content of a statement; something known as per se defamation. However, they are too complex and numerous to fully discuss here. Suffice it to say, defamation is an area of law with substantial potential for misuse and abuse to attack the speech of others. It is crucial that people can protect their reputations. However, the law includes a great deal of protections against lawsuits encroaching on a person’s First Amendment rights. One of the most substantial of these is highlighted in a few of Trump’s own defamation lawsuits–Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws.

Trump’s Use and Abuse of Defamation Lawsuits

As we’ve seen above, Trump loves to sue or countersue for libel However, he has never won any speech related lawsuit he has ever brought, never mind a libel case. The closest he’s ever come is an arbitration award after the opposing lawyer essentially committed malpractice in his poor handling of the case  One of the recent of these came up in the lawsuit brought against him for fraud over Trump University.

After the lawsuit was brought against him, Trump a counter claim of libel against those suing him. This claim was targeted by an Anti-SLAPP motion. Anti-SLAPP is a type of motion created in response to a trend of large corporations targeting critics with bogus defamation claims, knowing how costly the lawsuits were to defend these suits were brought essentially knowing they had no chance to win to chill speech. Thus, Anti-SLAPP was created to create a motion–before the expensive part of litigation–requiring a plaintiff to show that their lawsuit is brought with a reasonable probability of winning instead of being used to chill speech or make it hard for a plaintiff with less money to sue. After an appeal, Trump’s libel action was dismissed based on such an Anti-SLAPP motion.

This was the first time one of Trump’s defamation lawsuits was struck down on these grounds, but it does represent the culmination of a history of using defamation lawsuits in this manner. Previously, Trump unsuccessfully sued the Chicago Tribune and its architecture critic for–lo and behold–criticizing his decision to attempt to build the tallest building in the world and the design of his buildings. As a public figure, and one specifically famous for his buildings, the lawsuit had essentially no chance to begin with as there was absolutely no evidence of actual malice. What’s more, as a critique, the entire article was the opinion of the critic–once again making the lawsuit patently ridiculous. The court thoroughly dismantled Trump’s case. New York has no Anti-SLAPP laws outside of government proceedings, thus Anti-SLAPP wasn’t used although–under most statutes–it would have almost certainly won. Another lawsuit that smacks of Anti-SLAPP was when Trump sued an author for libel after he said in a book that Trump was not, in fact, a billionaire–although he himself completely failed to prove this an untrue statement in depositions on the case. In later interviews Trump told the press that he was happy to lose after five years in the courts, saying “I spent a couple of bucks on legal fees but they spent a whole lot more. I did it to make [the author’s] life miserable, which I’m happy about. This was basically an outright confession that he had abused defamation lawsuits to do the exact thing Anti-SLAPP prevents.

Trump has quite a history of frivolous lawsuits in general, but defamation has always been his weak point. It’s no surprise that he wants to target libel laws as weakening the protections against abusive defamation lawsuits would let him easily continue his current trend. Thankfully, such changes would require much more than he can accomplish on his own. For now, our speech is safe.