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TALLAHASSEE, Fla. -

A bill allowing a person to fire a warning shot at an attacker without penalty is waiting for Gov. Rick Scott's signature, but a group that protects First Amendment rights is asking Scott to veto the measure because you might never know who has fired a shot.

The "warning shot" bill passed both the House and the Senate, but First Amendment Foundation President Barbara Petersen said what's not in the bill is its biggest problem.

"There will be no record of what happened or how it happened or why it happened, and that's a great concern," said Petersen.

The bill allows for all records to be expunged if someone who fires a warning shot is found innocent. Petersen said that could lead to a laundry list of other issues that would go undetected.

"Misdeeds, prosecutorial misconduct, law enforcement misconduct, a bad investigation, an unlawful arrest," Petersen said.

Most of the Senate debate on the warning shot bill focused on the expungement of records.

Sen. Chris Smith tried to amend the bill to keep the data from getting thrown out.

"It's the wrong thing, it's the wrong thing to get rid of these records," said Smith. "I want to be able to track this. I want to have all the evidence out there."

Sen. Charles Dean, a former sheriff, disagreed.

Excerpt from:
First Amendment Foundation says you may never know who fired shot

Originally Published: April 15, 2014 10:32 AMModified: April 15, 2014 2:56 PM

Executives at Novi-based Lotus Bancorp Inc. will not be able to claim a First Amendment right to use racist remarks about customers and their banks board members in a lawsuit in Oakland County Circuit Court.

Judge Denise Langford Morris has denied a motion by the defendants' attorneys to add the claim of a First Amendment privilege in their defense of a lawsuit brought by two bank customers who alleged that racist behavior by the executives violated the law and led, at least in part, to troubles they had in a dispute over a commercial loan.

Wednesday, the judge will hear two motions in the case, one by defense attorneys to dismiss the suit, and the other by the plaintiffs' attorneys to grant a partial summary judgment.

An attorney for Lotus, Michelle Wezner of the Royal Oak-based law firm of Howard & Howard Attorneys PLLC, had argued last Wednesday that two executives at the bank should be allowed to claim a First Amendment right to send emails describing Asian Indians as chimps and saying they are better dead than alive.

Wezner said the emails werent proof that bank President Neal Searle and Executive Vice President Richard Bauer were unfair in their treatment of customers but were, in part, emotional rantings over frustrations with their Indian board of directors that werent meant to be seen by the general public.

I can be the biggest jerk in the world and say awful, horrible things, but I cant act on it, said Wezner. The emails, she said, indicates they may be jerks, but they didnt act on it. The plaintiffs were treated really well on their loan. All we have is some really awful emails.

Morris denied the motion, saying in part:

The Court, having reviewed the applicable law and being fully advised in the premises, finds that the proposed amendment would be futile because the statements complained of are not entitled to protection under the First Amendment.

In addition, the Court finds that this request, made more than one year after the complaint was filed and after the close of discovery, constitutes an inexcusable delay that would be prejudicial to plaintiffs. It is hereby ordered that defendants motion for leave to file first amended affirmative and special defenses to add (a) First Amendment defense is denied.

Read the original here:
Lotus Bancorp execs' racist emails aren't protected by 1st Amendment, judge rules

Originally Published: April 15, 2014 10:32 AMModified: April 15, 2014 2:56 PM

Executives at Novi-based Lotus Bancorp Inc. will not be able to claim a First Amendment right to use racist remarks about customers and their banks board members in a lawsuit in Oakland County Circuit Court.

Judge Denise Langford Morris has denied a motion by the defendants' attorneys to add the claim of a First Amendment privilege in their defense of a lawsuit brought by two bank customers who alleged that racist behavior by the executives violated the law and led, at least in part, to troubles they had in a dispute over a commercial loan.

Wednesday, the judge will hear two motions in the case, one by defense attorneys to dismiss the suit, and the other by the plaintiffs' attorneys to grant a partial summary judgment.

An attorney for Lotus, Michelle Wezner of the Royal Oak-based law firm of Howard & Howard Attorneys PLLC, had argued last Wednesday that two executives at the bank should be allowed to claim a First Amendment right to send emails describing Asian Indians as chimps and saying they are better dead than alive.

Wezner said the emails werent proof that bank President Neal Searle and Executive Vice President Richard Bauer were unfair in their treatment of customers but were, in part, emotional rantings over frustrations with their Indian board of directors that werent meant to be seen by the general public.

I can be the biggest jerk in the world and say awful, horrible things, but I cant act on it, said Wezner. The emails, she said, indicates they may be jerks, but they didnt act on it. The plaintiffs were treated really well on their loan. All we have is some really awful emails.

Morris denied the motion, saying in part:

The Court, having reviewed the applicable law and being fully advised in the premises, finds that the proposed amendment would be futile because the statements complained of are not entitled to protection under the First Amendment.

In addition, the Court finds that this request, made more than one year after the complaint was filed and after the close of discovery, constitutes an inexcusable delay that would be prejudicial to plaintiffs. It is hereby ordered that defendants motion for leave to file first amended affirmative and special defenses to add (a) First Amendment defense is denied.

Read more:
Lotus bank execs' racist emails aren't protected by 1st Amendment, judge rules

Tuesday, April 15, 10:22 AM EDT

From The News Service of Florida

The bill (HB 89), which has passed the House and Senate, has drawn widespread attention because it would allow people to show guns or fire warning shots in self-defense if they feel threatened.

The bill also would allow criminal records to be expunged if people are found to have acted legally in self-defense and prosecutors do not pursue charges.

Barbara Petersen, president of the First Amendment Foundation, wrote to Scott that the bill has grave implications for public oversight of our judicial and criminal justice systems and is contrary to the public interest.

The expunction provision not only limits public oversight, but potentially could serve as a tool for obscuring law enforcement and prosecutorial misconduct, while also hindering the development of court precedence essential to understanding how and when the proposed use of force law applies, Petersen wrote.

See the article here:
First Amendment Foundation asks governor to veto 'warning shot' bill

Would that the First Amendment actually said: Congress shall make no law ... abridging the freedom of speech, or of the press and centuries from now we solemnly trust these sacred rights will continue to prevail with appropriate application of wisdom and common sense pertinent to their context.

Arguably, there would never even have been a need for Oliver Wendell Holmes to point out that, The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater.

Of course it wouldnt unless free speech were an absolute. It absolutely isnt.

Alas, the Founding Fathers were neither perfect nor perfectly prescient neither John Roberts nor Sheldon Adelson was foreseen.

We do the best we can in 2014 without channeling the enlightened but necessarily Fallible Fathers of 1789. Common sense isnt specifically noted in the Constitution, but we preclude it at our own 21st century risk.

It would be societally embarrassing to add an amendment stipulating common-sense recourse, but a 28th Amendment settling the score on money and free speech would more than suffice. From Citizens United to McCutcheon, the democracy-devolving case is already being made.

Democracy for sale is a clear and present danger and results when the political arena morphs into the purview of billionaire ideologues and vested interests. American exceptionalism shouldnt be disingenuous code for money talks.

Its past time to just flat out say that money is not speech under the First Amendment, any more than corporations are people.

Of course, they arent. But it needs codifying, along with the right to limit what individuals and corporate entities can spend on elections, to pull us back from especially the Super PAC brink.

The time for a common sense, common good, limits-on-obscene spending amendment is upon us. Actually, the Moneyball era is engulfing us.

Read more from the original source:
ONeill: Time for a campaign finance amendment