How Scam Blogging Threatens the Law’s Professional Image

I first want to express my sincerest gratitude for the opportunity to appear on the Marquette University Law School Faculty Blog.   I have been a long time reader of the Faculty Blog, and what was true when I first started reading this blog continues to be true now: I have thoroughly enjoyed the quality of content posted here on a regular basis.  We have Alan Borsuk’s timely pieces on public education.  We can watch the fireworks as Professors Esenberg and Fallone debate.  And Dean O’Hear’s posts flag for us new and forthcoming scholarship by members of the Marquette community (to say nothing of his posts tracking cutting edge developments in federal criminal law).  In short, this blog has gotten it right.

Some law blogs, however, are not quite so lucky.  In fact, one trend in law blogs that has garnered nationwide attention this year is an example of blogging gone wrong.  That trend is called “scam blogging.”

Here is an account of how the scam blogging movement came to be. 

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Playing with Fire and an Obama Effigy

People do imbecilic things when alcohol enters the mix.  It is a fact of life.  On one end of the spectrum, drunkenness promotes relatively harmless buffoonery, whether it is singing along to “Sweet Caroline” completely out of tune at the bars on Water Street or repeatedly professing one’s love for his or her friends and family.  Sometimes, the passions of the moment, coupled with inhibitions lowered, push one to act out ill-conceived ideas that the voice of reason would have prevented, such as drunk-dialing.  On the other end of the spectrum, a beer- and liquor-swilling patron’s conduct may cross the line into the unlawful.

As the story develops, the burning of a statue of President Obama in West Allis may be in the company of the latter behavior.   TMJ4 reported that at the Yester Year’s bar, patrons lit a bust of Obama on fire.  The video footage was blurry given the room’s darkness and only focused on the statue placed on the bar, though “hoots and hollers” can be heard in the background.  Though West Allis is investigating whether the burning violated the city’s municipal fire code, the Milwaukee District Attorney’s Office will not charge anyone involved in this incident, and the Secret Service has terminated its own investigation.

This incident may very well not prompt legal action beyond those for possible fire code violations.  One cannot help but wonder, however, if the First Amendment would provide protection for burning an Obama effigy. 

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Does the Threat of Future Copyright Infringement Amount to Irreparable Harm?

Chief among the bundle of rights one obtains in property ownership is the right to exclude others from the use and enjoyment of that property.  This “sole and despotic dominion” that an individual commands over their property is placed in danger, of course, when the property becomes subject to the wants and needs of others.  Absent the owner’s consent (as in the case of licensing) or operation of law (as with adverse possession), a property owner would be able to bring an action for trespass for such intrusions.

A judge holding a defendant liable for trespass perhaps carries the vision of plaintiffs having their rights vindicated, but cases do not end at liability.  The judge must also determine whether further remedies beyond damages are appropriate, including whether a permanent injunction should issue.  Such is a weighty decision touches upon an extraordinary remedy: a court order that a defendant must cease and desist its illegal activity or face punishment for contempt.   That being said, in many property cases, a court order only issuing damages would effectuate a judicial licensing of the behavior.  With that result, the incentives are adjusted such that the right to exclude does not rest with the plaintiff; instead, it is determined only by the extent to which the defendant is willing and able to engage in the trespassing behavior.  As such, the courts have presumptively treated infringement of property rights as worthy of injunctive relief.

That has also been the rule in copyright infringement cases for the last few decades. 

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