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Grex > Cyberpunk > #139: Discussion of the Subtext of the 6th Circuit's Ruling |  |
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other
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Discussion of the Subtext of the 6th Circuit's Ruling
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Nov 28 18:53 UTC 2000 |
Here's the text: http://www.cyberspace.org/lawsuit/ruling.txt
Diving right in, I read the following paragraph as the most telling:
"Since final conclusions on the ultimate issues involved in the lawsuit
are premature and inappropriate at this stage of the district court
proceedings, we must assume that the district court was speaking
tentatively only, in the context of viewing the likelihood of plaintiffs'
ultimate success on the merits of their claims. Indeed, the final
paragraphs of the opinion speak in those terms."
I interpret this statement as a commentary on and rebuke of Judge
Tarnow's effusive condemnation of Mich. Pub. Act 33, to wit: "...the Act
offends the guarantee of free speech in the First Amendment and is,
therefore, unconstitutional."
The appeals court finds Judge Tarnow's ruling to be within the limits of
the law, but only by what appears to be the slimmest of margins. In
fact, the ruling's wording seems to suggest that the court would rather
have ruled in favor of the State of Michigan, but was unable to
contravene established precedent which dictated otherwise.
The wording to which I refer is, "Because the district court cited and
relied upon opinions of the United States Supreme Court that arguably
support its conclusion that plaintiffs would likely succeed on the merits
of their claim, we are unable to say that the district court abused its
discretion when it granted the preliminary injunction." Specifically, I
refer to the word "arguably" near the beginning of the statement. It
looks as though, by that reference, the court is offering the appellants
a potential route to pursue in Judge Tarnow's court in the trial on the
merits of our suit.
The upshot is, as I see it, that the Appeals court feels that our suit is
founded on legal precedent which might conceivably be overturned if the
State of Michigan wished to adapt its tactics and pursue the case to the
extreme end. I'm no legal scholar, but that's what I read between the
lines.
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[I would love for this to be a serious and substantive discussion of the
meaning and implications of this ruling. Accordingly, please read the
ruling in full before commenting (preferably twice -- it's short), and
also please link any outside sources and references so that we can all
follow along. Thanks!]
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| 9 responses total. |
gelinas
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response 1 of 9:
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Nov 28 19:32 UTC 2000 |
I think you attach negative connotation to "arguably" that is not present.
In fact, in my experience, "agruably" carries *positive* connotations.
Who appealed to this court? If the appeal asked that the injunction be
overturned, then the court's negative construction, "we are unable to say that
the district court abused its discretion," seems to me appropriate: "We can't
do what we have been asked to do."
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raven
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response 2 of 9:
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Nov 29 07:19 UTC 2000 |
The article on Slashdot seems to imply this is a posative ruling for free
speech as well, see: http://slashdot.org/yro/00/11/28/1438210.shtml
IANAL so dodn't ask me. :-)
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raven
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response 3 of 9:
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Nov 29 07:21 UTC 2000 |
Now linked to cyberpunk your conf on computers and social controversy.
j cyberpunk at the next Ok: prompt.
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mdw
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response 4 of 9:
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Nov 29 11:51 UTC 2000 |
The way they read it, the quibble they were picking was that something
stated as "fact" in the injunction was actually a fact to be settled in
the trial itself, which as it hadn't happened was still only a
probability rather than a certainty. It seemed rather more nit-picking
than anything else, at least to me.
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aaron
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response 5 of 9:
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Nov 29 22:10 UTC 2000 |
This is a review of a preliminary injunction, under the "abuse of discretion"
standard. The court's language reflects that it found no evidence of an
abuse of discretion by the trial court, in issuing the injunction.
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janc
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response 6 of 9:
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Dec 4 19:18 UTC 2000 |
The web page http://www.cyberspace.org/lawsuit/ruling.txt is a horrible
mess. Long lines, and missing text. Is there a legiable copy of this
somewhere?
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janc
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response 7 of 9:
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Dec 4 19:27 UTC 2000 |
OK, there is a cleaner link at http://www.cyberspace.org/lawsuit/ruling.htm
l
but it still starts in the middle of a sentence.
This really doesn't say anything much. I don't think it rebukes Judge
Tarnow for writing a stronger opinion than is strictly necessary at the
preliminary injunction stage, though it points out that he did so. The
reason for doing that, I think, is that Judge Tarnow sees this as ending
in a summary judgement based on his prelminary judgmenti, so he put some
meat in that.
It's just denying the specific terms of the appeal that the state made.
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janc
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response 8 of 9:
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Dec 4 19:31 UTC 2000 |
Oh, I see. The text is all there. I was confused by the footnote being in
the middle of the text. I'd personally recommend to whomever HTML'ized this
that the page break be elminated and the footnote be moved to the bottom of
the page. Legiability is more important that strict reproduction of the
faults of paper documents.
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other
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response 9 of 9:
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Dec 5 18:17 UTC 2000 |
Done.
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