Donald Trump and Free Speech

This post has nothing to do with my feelings on Donald Trump. I do not think those views are of any importance on a legal blog. But I want to address one thing that Mr. Trump has constantly complained of: that protesters at his rallies are restricting his supporter’s free speech rights.

I most recently noticed this argument made by Dr. Ben Carson when he endorsed Mr. Trump last week. Dr. Carson may be a renowned pediatric neurosurgeon. But he is certainly not a scholar of the U.S. Constitution.

The First Amendment to the U.S. Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A private citizen cannot violate another citizen’s free speech rights.  The First Amendment itself requires state action (“Congress shall make no law . . .”) The United States Supreme Court has affirmed this notion, and has affirmed that the First Amendment applies to the states.

If a state or the federal government passed a law prohibiting Mr. Trump or his supporters from freely exercising their right to assemble and speak on the issues of their choice, then they would be absolutely correct that their free speech rights were being violated. That is simply not the case here.

The free speech rights of American citizens are inviolate. Peaceful protest is of vital importance. Mr. Trump’s supporters may protest his opponents and their supporters. And the opposite is true. No American citizen has the right to silence another’s lawful and peaceful exercise of free speech. And no American citizen has the right to claim their free speech rights are violated when another citizen speaks out against them.

Increasing Danger in the Trucking Industry

The New York Times recently posted an article on the continuing decline of safety and employment practices in the trucking industry. The story reported on by the Times is certainly not a new one.

The article mainly focuses on the “sweatshop” lifestyle of a truck driver. And the article is entirely correct in that regard. In our experience litigating truck wrecks, the drivers are often overworked. The “hours of service” requirements are rarely kept. The Tracy Morgan case is a great example of this problem. But even more, the industry itself puts all of their efforts in the wrong place. As the Times article states:

Often speed is “governed,” with the truck unable to go over a specific speed; in other cases a sensor measures the distance from the front of the truck to the vehicle ahead, automatically braking if the space is deemed insufficient. Some companies even have two-way cameras trained on truck drivers 24/7. (Meanwhile, a new rule limiting a trucker’s workweek to 70 hours, down from 82, has been suspended since 2014.)

Those kinds of regulations do no good. No one is watching the footage — but if they are, I doubt they are gleaning any information from the footage. Good safety practices require a safety culture. The trucking industry would be better served by hiring better employees and training those employees better. There is nothing to gain by keeping your camera on an unqualified driver. At the same time, better pay would help attract better employees.

The trucking industry loves to cry poverty on issues of employee pay and liability insurance. As the Times article also points out, “highway accidents involving semis kill about 5,000 people per year.” But the article does not mention that the minimum limits set by the federal government for interstate trucks has not changed since the Reagan area. A big rig only needs $750,000 in insurance coverage. That amount of money does not bring back an innocent member of the public killed by a truck driver and trucking company’s carelessness. It does not cover the lost wages and mountain of medical bills a critically injured parent faces.

Federal regulations are misplaced. As the Times points out, the federal government recently rolled back new “hours of operation” (i.e., how long a driver can drive in a 24-hour period). They declined to raise the minimum liability limits after the trucking industry cried poverty. Perhaps the race to the bottom on the price of goods is partially to blame — and maybe margins are tight in the trucking industry. But something needs to change. Thousands continue to die on American roadways because Congress and the trucking industry refuses to do the right thing. Safety starts at the top and must permeate down to the bottom.

Caused a Wreck? Cooperate With Your Insurance Company!

Have you caused a wreck? Or maybe you have simply been accused of causing a wreck? First, make sure you let your insurance company know about the wreck. And then cooperate with them every step of the way. For a personal liability policy, an insured (that’s you) does not have the option as to whether or not the company settles a claim brought by the injured party. But if you do not cooperate with your insurance company, you may be left owing money — not your insurance company.

If someone files a lawsuit against you for a car wreck, your insurance company will hire and pay for an insurance defense lawyer to represent you. They will protect your interests in court. But if you do not cooperate, they are able to drop coverage. O.C.G.A. § 40-9-103 requires all insurance companies to state in their policies that an insured (again, that’s you) must “as soon as practicable after the receipt thereof” a lawsuit forward that to the insurance company “and to cooperate otherwise with the insurer in connection with the defense of any action or threatened action covered under the policy.”

Here’s where it gets bad for someone who decides to bury their head in the sand and ignore the lawsuit. The statute goes on to state that:

Noncompliance by the insured with this required provision or endorsement shall constitute a breach of the insurance contract which, if prejudicial to the insurer, shall relieve the insurer of its obligation to defend its insureds under the policy and of any liability to pay any judgment or other sum on behalf of its insureds.

In plain English, this means that if you do not cooperate with your insurance company once you have been sued, your insurance company does not have to defend you and does not have to pay out of your insurance policy for any judgment obtained against you. It means that you will be personally liable for any damages that a jury awards against you. You could be driven into bankruptcy. So if you hit someone, play ball — whether or not you believe the wreck was your fault.

Government Immunity Only Harms Citizens

Governments are largely immune from liability for their wrongful conduct. This is due to a legal doctrine known as “sovereign immunity” — more simply termed “government immunity.” Under sovereign immunity, a government is completely immune from any lawsuit involving a discretionary action. In the case of the Flint, Michigan water disaster, the state of Michigan and the City of Flint are most likely immune from any liability. As a result, Reuters has reported that plaintiffs’ lawyers are largely passing on claims against the city despite the monumental harm that children living in Flint have suffered.

This doctrine goes back to the English common law which provides the basis for most of the long-held legal doctrines that have developed in the United States. Sovereign immunity essentially means “the King can do no wrong.” And as all Americans know, the government — just as its citizens — often does wrong. But there is no recourse in most situations. What are the parents of children suffering from lead poisoning in Flint to do? They are already overwhelmingly poor. They are overwhelmingly uninsured. There are little opportunities for advancement. And the very same government that poisoned their children will get away with it. The same holds true in Georgia.

Atlanta Child Prostitutes

In Atlanta, there is a scary problem: young boys and girls are being forced into prostitution. They run away or are taken from their home and forced to service countless men for their pimp’s profit. Unfortunately, the FBI has stated that Atlanta is the biggest city for sex trafficking in the United States. As the AJC article linked above relayed, the FBI recently conducted a sting where 149 victims were recovered nationwide, including a 12 year old victim. According to several organizations, the life expectancy of a child sold into sex slavery in the United States is just three years. In Atlanta in particular, nearly 50% of those seeking child prostitutes come from the suburbs north of the perimeter. It is likely that someone in your very neighborhood helps perpetuate this horrific conduct by “hiring” these child prostitutes. Most johns know that the prostitutes are minors, and are still not dissuaded.

A recent AJC article provides the real life story of a Sadé, a 16-year-old girl that got caught in a sex trafficking ring in downtown Atlanta after touch surfing with friends in 2006. She was on her way home to her mother when a man pulled up to her and asked if she wanted a ride. Once she got into the car, the man pulled a gun and told her she she “won’t be coming home.”  After being forced to prostitute for several months, she got lucky and was arrested — before being dumped back out on the street. Sadé was only found when a police officer friend of her mother spent his time off for two months combing the street for her before he found her at a bonding company. He found her just before her pimp was going to ship her to New York. This story is not unusual — it happens every single day on the streets of Atlanta.

Lloyd and I recently met with a great organization called Civil Lawyers Against World Sex Slavery. CLAWS is determined to turn the tide on this problem by using the civil justice system to drain the financial resources of pimps and predators. The criminal justice system is not able to keep up with this problem. I urge all readers to look into this organization and consider reaching out to provide any assistance. We vow to do the same.

Food Safety and Fast Casual Restaurants

Food safety is an ever-present problem. Lately Chipotle has been in the news constantly for outbreaks of illness across the country. Their stock value has tumbled. As reported by Bloomberg today, several other “fast casual” restaurants faced similar problems in 2015. Relevant to Atlanta, this includes Panera and Zoe’s Kitchen (honorable mention goes to Potbelly, one of my favorite sandwhich shops from college in D.C.). And this morning many news outlets reported that the brand new, first-ever NYC location for Chick-fil-A was closed for a day due to a number of health code violations including the presence of fruit flies, inability to maintain cold food temperatures, improper storage of an empty container, and unsanitized wiping cloths (In the case of Chipotle, it appears that vegetables and/or improperly stored/prepared foods contributed to the e.coli outbreak.) No outbreaks of illness have been reported yet regarding the Chick-fil-A closure.

Is our food becoming less safe? Yes and no. As food preparation standards, health code standards, and technology have made cooking more “scientific”, society has been able to set standards that assure less people will become ill. But as mass-produced farming and mass chains of restaurants become the norm, the simple truth is that outbreaks which were previously small become much larger and widespread. When the same meat or vegetable supplier provides the same product to a chain of stores across several states, it stands to reason that if the batch of food is bad in some way, it will result in illnesses across several states. As a result, where one person might have gotten sick twenty years ago, that same foodborne illness might result in 100 sick people today. As a result, companies like chain restaurants must implement stringent and closely followed procedures for testing food to ensure that their customers are safe.

Car Deaths Increase in Georgia

As reported by the Atlanta Journal-Constitution today, the number of car deaths in Georgia has increased this year for the first time in nine years. The article suggests that single-car wrecks are largely to blame for the increase. I am not surprised. How many times are you sitting in traffic when you look in your rear-view mirror and notice that the car behind you is driven by someone looking down at their phone?

Distracted driving has become a disaster. As cars continue to come with additional safety equipment such as the ability to drive themselves in traffic, us human drivers will likely become even less attentive. But cars will not be driving themselves for some time to come. What will happen in between? People relying on a car that cannot yet drive itself? I fear that if this occurs, we will be seeing an even higher number of car deaths on Georgia roads each year. How is it possible that as cars become safer, we become less safe on the road? You may be reading this article from the very device that is to blame for this problem.

Arbitration: Heads They Win; Tails You Lose

As news media across the country is beginning to warn in increasing numbers, arbitration is a loser’s game for the consumer. This is an unfortunate truth that most litigators have known for years.

A series of Supreme Court decisions in the first few years of this decade eroded consumers’ rights to trial by jury in most disputes against large corporations. For example, all cell phone contracts now carry boilerplate language which forces a consumer with a dispute into arbitration and forbid lawsuits. Why is this such a problem for those other than those who honestly owe debt to a company? Imagine a company which improperly charges millions of customers an illegal service charge. Ordinarily, a group of upset consumers could band together and form a class action lawsuit which would litigate the issue on behalf of all affected customers. Now, each individual customer would need to arbitrate the dispute. Arbitration is private, out of court, and always tilted towards the company. A private arbitrator (usually selected and hired by the company) decides the dispute without a jury. How often does the consumer win? And when the dispute is over a few dollars, arbitration is not a winning tactic for all but the most aggrieved consumer. So the consumer files no arbitration, and the company pockets the money. Over tens of millions of transactions by the company, this money adds up in great sums.

Bottom-feeding debt buyers have for years feasted on harassing the unwary and uneducated by buying up bad debt and attempting to collect on that debt in unscrupulous ways. The New York Times recently reported on the actions of Encore Capital Group in Maryland. The company (one of the largest debt collection agencies in the country) operated in Maryland without a license to collect debt in that state.  They file frivolous lawsuits against unknowing citizens, often don’t even serve them with the court papers, and then obtain judgments against these debtors. As the Times wrote:

In short, Encore and rival debt buyers are using the courts to sue consumers and collect debt, then preventing those same consumers from using the courts to challenge the companies’ tactics. Consumer lawyers said this strategy was the legal equivalent of debt collectors having their cake and eating it, too.

Unfortunately, these debt buyers also purchase the loan contracts themselves — which include arbitration provisions. As a result, they are able to file these baseless lawsuits (e.g.., filed after the statute of limitations has lapsed or for debt not due) and then hide behind the arbitration clauses to insulate themselves from behind held accountable for their own bad behavior. The Times story is full of scary statistics — only 12% of these cases involve the debt buyer holding sufficient documentation, a number of times when the debt buyer has sued the wrong person, and judgments taken down when the “debtor” is not present. And debt buyers don’t seem interested in curbing this behavior; as arbiration gives these companies ever-increasing protections from the law, it seems that this conduct gets worse. It will only stop when consumers stand up and challenge this reprehensible conduct.

One Hundred Million Christmas Drivers

According to the Washington Post, AAA has reported that over 100 million Americans will travel by vehicle more than 50 miles between Christmas and New Years. This record number is in part due to a rising economy and very low gas prices.

The Post also reported that law enforcement agencies are “stepping up” their enforcement of traffic violations. The Post cites the National Safety Council for this starting statistic: traffic-related deaths were up through the first 10 months of 2015 compared with the same period in 2014. They further warn that this could be the deadliest Christmas period on the roads since 2009.

Our office happened to receive the 2015 copy of the National Safety Council Injury Facts book. I perused the motor vehicle injury section of the book in preparing this post and noted that, unsurprisingly, holidays are the time when motor vehicle collisions spike. Alcohol is a major cause. But as people take to the roads again in a recovering economy going new places, it is quite possible that the epidemic of distracted driving will further serve to endanger people on the roadways. Keep an eye out, drive at a safe speed, and drive defensively.

Decatur Residents: Make Scott Boulevard Safer

Anyone who lives, works, or frequently travels in the Decatur area knows that Scott Boulevard is a dangerous road for drivers. With big hills and long straightaways, the portion of Scott between North Decatur and Scott Boulevard’s intersection with Ponce de Leon Avenue feels more like a race track sometimes. The speed limit of 40 miles per hour is merely a suggestion to many. And Westchester Elementary School sits right on Scott Boulevard just south of the Clairmont Road/Clairemond Avenue intersection with Scott.

It never occured to me how dangerous the road is for pedestrians too. After all, I have only seen the road from my car (except when going to Venetian Pools as a kid.) Browsing the local news sites today, I came across an article in Decatur Metro asking for signatures for a petition to make Scott Boulevard safer for pedestrians (i.e., students). And now that I think about it, the sidewalks are completely inadequate for pedestrians. They are narrow and overgrown. Cars are flying by. And young children are trying to walk to school.

I encourage all Decatur residents to sign the petition, which can be found here. A city should never shy away from making a roadway or sidewalk safer. And when small children are involved, this is absolutely a no-brainer.