Are Democrats Losing the First Amendment?

If Democrats aren’t careful they risk surrendering a core American value to conservatives.

I don’t usually write about partisan politics, because if I did I would never stop, but in this case it deals with the First Amendment.

By way of background, it seems that liberals lost the use of the American flag as conservatives appropriated it as their own. This, no doubt, began in the 1960s when antiwar protesters started burning it.  Liberals have struggled to recover.

Stephen Colbert built an entire satiric show around the concept that waving the flag somehow meant that you were patriotic — while ignoring the values that the flag stands for.

A similar battle is now taking place regarding another potent American symbol, the national anthem.

We may now be seeing yet another version with a battle over the First Amendment. The New York Times decided, in a fit of epic stupidity, to highlight that right wing nut job conspiracy theory propagator Alex Jones hired noted First Amendment attorneys Marc Randazza and Jay Wolman to defend him in a defamation suit from the parents of Sandy Hook massacre victims.  Crackpot Jones claimed the massacre was a hoax.

This is what we lawyers like to call in legalese, logical. Because if you have a First Amendment problem you’re not going to hire a matrimonial or real estate attorney. When I was sued for defamation the first time, in the infamous Rakofsky case, I was part of a large group of lawyers who hired Randazza. There was a damn good reason for it.

But no, the Times decided to highlight the fact that Randazza also represents a Nazi in one of his other First Amendment defenses. Note to the Times, which should know better:  If you’re going to represent free speech issues you are not likely to be representing the late Mr. Rogers and his neighborhood. You will sometimes defend people out on the fringes of society, many of whom are widely detested. Benign language that the majority loves isn’t where free speech battles are fought.

This article was a follow-up to an Adam Liptak article in the Times about the First Amendment being “weaponized” by the right.

Lets be clear:   The First Amendment is not an issue of the left or the right, as all people benefit from its protections.  Those who defend the First Amendment firmly believe that an infringement upon it is an infringement upon everybody’s rights, regardless of whether you come from the left or the right. Lawyers that defend free speech are not really defending the speaker. They’re defending the constitution.

This is not to say that the Democrats are the only fools in this battle over American symbols. The Republicans, for example, have lost the Statue of Liberty as they elevate bigotry over the statue’s central message.  Why it is that Democrats have not created a flag with the torch of liberty to constantly wave remains a mystery to me. This will haunt the GOP for decades to come.  That issue was a gift to Democrats, just as surely as the burning of American flags was an inadvertent gift to Republicans.

And so, dear New York Times, don’t be so quick to make the First Amendment a battleground of partisanship, the way it has for the flag, anthem and statue. It will not end well for those who believe in free speech. And that doesn’t just mean not ending well for you as a major media outlet, but for all Americans.


Are Democrats Losing the First Amendment? syndicated from http://personalinjuryattorneyphiladelph.tumblr.com/

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July 2nd: A Day to Celebrate Juries and Independence

John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is owned by the citizenry of the United States.Each year I have used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.  It was signed two days later, and the date of signing is memorialized on our Declaration of Independence.

Each year I’ve used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.  It was signed two days later, and the date of signing (not voting) is memorialized on our Declaration of Independence.

John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write  posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:

Power to the People (A Declaration of Independence) 

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but please, please, please take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…
————
IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.


July 2nd: A Day to Celebrate Juries and Independence syndicated from http://personalinjuryattorneyphiladelph.tumblr.com/

More SCOTUS; More Tissues

Back in 2009 when Justice David Souter retired, I wrote that I would love to see SCOTUS judges who had actually practiced law with living, breathing, broken humans sitting, at some point, in their offices.

This week, with Justice Kennedy’s announced retirement, Trump said he wanted yet another Harvard or Yale judge. As if we didn’t already have a bench stuffed with them.

Diversity takes many forms. Sometimes it is has to to do with gender, race, religion, etc. But there is another kind of diversity, and that goes with what we actually have done with our lives.

Hopefully, we won’t see yet another person who has spent a lifetime on the bench or in academia (or combined), and one that has lived a life (from the law-related perspective) with diversified experience.

My 2009 post regarding the filling of the Souter’s seat (by Judge Sotomayor) is re-printed here in full:


The SCOTUS Nominee and The Tissue Box Test

I want to talk about tissues and the law and Supreme Court nominees. As the legal blogosphere and political Washington buzz about the judicial philosophy President Obama will be looking for in a judge to replace Justice David Souter — and what underrepresented social niche the nominee will come from, be it female, black, Hispanic, gay, etc. — what I want to know is if the nominee has ever had a box of tissues on his or her desk. For clients.

I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests.

I want a nominee to know what it’s like to make the rent. To pay an employee. From their own pocket and not someone else’s. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.

Our court is stuffed with Harvard and Yale law school grads, most of whom I think never actually tried a case for a private client, financed a case, or fought for an individual before ascending to the lofty heights of the appellate bench.

Last week Norm Pattis wrote on why we need a trial lawyer on the Supreme Court.He said:

A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison.

We don’t have anything resembling a cross-section of society on the court. We don’t have people who look at broken bodies up front and personal in their offices. That’s why we have the tissue box. It isn’t to wipe our own noses.

At Simple Justice, Scott Greenfield picked up the Pattis theme with this about the birth of the trench lawyer movement:

In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities.

Perhaps life’s experience representing individuals will mean something different to the practitioner-judge than the philosopher-judge when the government strips away rights. Or corporations do a cost-benefit analysis and determine a few deaths aren’t so bad for their product because the profits will still exceed the legal payouts.

If Obama wants a judge who “understands that justice isn’t about some abstract legal theory or footnote in a casebook” then he better find a lawyer who once had that tissue box on the desk for the clients.
———————–


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NY Senate Passes 2nd Bill in 2 Weeks Restricting Free Speech

Dear NY Senate:

What the heck is going on up there in Albany? Last week you passed an anti-cyberbullying bill that restricts free speech and conduct in such a way that, if ultimately signed, is guaranteed to be tossed into the trash heap by courts because it violates the First Amendment.

And this week you do it again?! This time with your Elder Abuse Bill (S.409) that makes it a crime for caregivers (including family) to post photos on social media if elderly, vulnerable seniors aren’t able to give consent.

Now I understand it might have made you feel good to pass such a bill, and you get to boast to constituents that you are doing something about in Albany, but do you realize what you have really done?

For the benefit of those who voted for the bill but didn’t read it, this is what is made into a misdemeanor:

A  PERSON IS GUILTY OF UNLAWFUL POSTING OF A VULNERABLE ELDERLY PERSON ON SOCIAL MEDIA WHEN, BEING A CAREGIVER WHILE PERFORMING THEIR  DUTY  OF CARE  FOR A VULNERABLE ELDERLY PERSON, HE OR SHE POSTS AN IMAGE OR VIDEO OF SUCH PERSON ON SOCIAL MEDIA INCLUDING, BUT NOT LIMITED  TO  FACEBOOK, YOUTUBE,  TWITTER, INSTAGRAM, SNAPCHAT, TUMBLR, FLICKR AND VINE, WITHOUT SUCH PERSON’S CONSENT.

First off, while the First Amendment says that Congress “shall make no law…abridging the freedom of speech,” and the amendment applies to the states, there are still some very limited exceptions to it. But this just isn’t one of them.

The First Amendment is no defense to conspiracy discussions about committing a crime, or defamation, or inciting imminent lawless action, or obscenity or copyright.

I don’t see posting pictures of elderly Ma or Pa on that list. For this bill, if signed, to pass constitutional muster, the Supreme Court would have to create a wholly new category of restricted speech. Do you think they will do that? Or more importantly, did you even analyze that?

My guess is no since this bill passed 61-0, and there are more than a few lawyers in the Senate.

So, let’s day, on disabled Ma’s birthday you (a caregiver) hold a party for her, even though she can only seem-appreciate it. Then you share those party photos on Facebook for your friends and non-attending family members. Guilty of a misdemeanor.

You should note that the bill doesn’t clearly say when the photos had to be taken. It’s a crime if just three conditions are met: that the subject of the picture is a “vulnerable elderly person,” that the person sharing it is a caregiver, and that the sharing is “without such person’s consent.”

So let’s say that on Veteran’s Day you share a photo of your disabled WW II father for whom you sometimes care. He’s 20 years old in that long-ago-taken pic and in uniform. You are proud of his service as part of the Greatest Generation. Guilty of a misdemeanor.

And the same is true for sharing any other photo for such people taken during their lifetimes: From childhood, parties, weddings (including their own), vacations, anything you can think of.

Since New York has about 20 million people, do you appreciate the scale of how many misdemeanors are being created for sharing a photo of a disable loved one? Even if the Supreme Court did create a new category of restricted speech for this, the bill is both vague and over broad.

If this was a new category of restricted speech — you can’t post photos of incapacitated people without their consent — then the slippery slope also says it is OK to criminalize the posting of photos of other incapacitated people. Like kids. How many kid pictures are shared on social media?

The justification for this bill is that the posting of photos of disabled elderly people has become a problem:

Recent media reports have highlighted occurrences of a caretaker
taking unauthorized photographs or video recordings of a vulnerable
elderly person, sometimes in compromised positions. The photographs
are then posted on social media networks, or sent through multimedia
messages. Such action, dehumanize individuals and create an
environment that perpetuates a disrespectful and/or potentially
abusive attitude. Caretakers are required to provide care and services
in an environment that all individuals are treated as human beings.

How big is this problem that you think it justifies a change in the First Amendment that affects millions of people sharing loving photos of their elderly parents?


NY Senate Passes 2nd Bill in 2 Weeks Restricting Free Speech syndicated from http://personalinjuryattorneyphiladelph.tumblr.com/

NY Senate and Cyberbullying, Part 2

Last week I saw a tweet come into my feed from the NY Senate about the 56-0 passing of a cyberbullying bill. I quickly knocked out a post ripping it for two reasons: The complete lack of a definition and the fact that it violated the First Amendment.

That post was picked up by Scott Greenfield.  Then Greenfield’s post was seen by Tim Cushing at Techdirt. Which in turn was seen by Eugene Volokh. A little old school blogging as people added thoughts.

Now I have more to add: The first being a semi-correction that includes some  additional criticism of the Senate. But the second is some actual praise.

First, as Volokh pointed out, the bill was an amendment to the Education Law, and the Education Law has an existing definition of cyberbullying that is defined elsewhere. The first of the Senate’s failings was the lack of a reference to that definition section.

That lack of a reference, Greenfield points out today in likewise doing a second post on the subject, threw us both off as this isn’t the way New York usually drafts its statutes. As Greenfield notes:

Had it been the Senate’s intent to borrow the definition from another section of the Education Law to create its new crime, and, indeed, to establish the basic elements of the offense as would be minimally necessary for a crime to pass constitutional muster, there should have been a reference in the new crime to the definition upon which it relies. This is how New York laws are drafted, how a criminal offense is framed as to contain the bare minimum required to establish the elements of the offense.

It never occurred to Turk or me that there would be a New York law devoid of a definition or elements which would leave it to us to go searching the laws to figure out whether there was some definition, something to establish the elements of the offense, lurking in the darkness somewhere else. You don’t do that. You don’t create a crime and omit either the definition or an express reference back to the section setting forth the definition upon which the legislators relied.

This failure of form, hoping for an implicit reference to the definitions section that exists elsewhere, is the lesser of the two problems. Because that existing definition is so chock full of vagaries as to render it unconstitutional as a criminal statute. These are the provisions (as originally made into law for school administrative purposes, not criminal purposes):

the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that
(a) has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being; or
(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or
(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or
(d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.
Acts of harassment and bullying shall include, but not be limited to, those acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. For the purposes of this definition the term “threats, intimidation or abuse” shall include verbal and non-verbal actions.

So let’s say that Student A passes Student B in the hall. A smiles at B. Then A texts to B, “I’ll see you on the playground at lunch!”

Are they friends? Enemies? Was A flirting with B? Threatening B? Does A simply want to hang out with B? Should B be afraid? Enthralled? Bored to tears?

Would this conduct and speech “reasonably be expected to cause a student to fear for his or her physical safety?”

Would this conduct and speech, unreasonably and substantially interfere with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being?

Who the hell knows?

And if you can’t figure out whether something is a crime or not, then the law is vague. And it is likewise over broad as it will sweep up into its net perfectly innocent conduct and speech.

But there is another part to this posting. And that part is praise.

The praise is not for the bill, but for the Senate’s use of Twitter to quickly and cheaply disseminate information in an easily accessible form to the public.

For all the howling and caterwauling about how bad Twitter is, filled with bots, trolls, and those who think they will somehow “win” arguments and “own” their opponent, the one thing it is particularly good at is the rapid dissemination of information by public bodies.

That is how I easily found the bill’s Senate passage, and that is what allows us to publicly debate it’s merits.

So. The bill itself gets an F, but the Senate’s information distribution gets an A+.

 


NY Senate and Cyberbullying, Part 2 syndicated from http://personalinjuryattorneyphiladelph.tumblr.com/

Help Applying for Disability Benefits with a Mental Illness

Mental Illness Insurance Benefits in PhiladelphiaIt is certainly good to know that there is help for individuals who may not be able to work. When the term disability insurance is mentioned, it is common to associate these words with physical limitations. However, it is also quite common to obtain benefits because of a serious mental health issue that impedes the ability to work. In fact, the Blue Book used by the Social Security Administration (SSA) highlights nine specific disorders that qualify for disability benefits, although there is a vast amount of additional qualifying disorders.

The Nine Disorders Recognized by the SSA

Affective Disorders

Anxiety Disorders

Autism and Disorders Related to Autism

Mental Retardation

Organic Mental Disorders

Personality Disorders

Schizophrenia and Psychotic Disorders

Somatoform Disorders, and

Substance Addiction

Some of these disorders may seem to cover a broad range of illness, but each one comes with a specific set of criteria that must be met in order to qualify an individual for benefits. Each and every facet must match the criteria, and a person must prove that their illness entirely hinders their ability to engage in gainful employment.

It is absolutely vital that an individual is seeking treatment for their disorder while attempting to claim benefits. Because of the very nature of most mental disorders, claiming can be terribly difficult, and it becomes imperative to hire a skilled Philadelphia disability insurance lawyer to ease the process. The complications involved are excruciatingly intricate, and a highly skilled attorney knows exactly where to begin.

Obtaining Representation to File for Benefits

There are several other disorders that will qualify a person for disability benefits, and they are laid out in the SSA’s Blue Book and detailed thoroughly. Nevertheless, it can be quite tiresome to traverse the lengthy, complicated pages to see if you meet the specific requirements. This can be a painful process for someone of sound mind let alone someone who is suffering from a mental disorder. Hiring a qualified attorney who is knowledgeable in all areas of disability insurance should be your first step if you believe you qualify.

The most important reason for hiring a disability insurance lawyer is not only because of the complicated application process, which can take weeks alone but also because most claims are initially denied. Fortunately, you can rest assured that your denial is quite common, and there will be at least three chances to appeal. However, appealing a denial by yourself is a very difficult road, and you will greatly increase your chances of another denial without representation.

At Edelstein, Martin & Nelson, we are highly familiar with each and every portion of the process. We understand the likelihood of a denial, and we know exactly how to help you go about filing a successful appeal. Our experienced and professional attorneys realize that the process is not easy, and the SSA does not like to hand out benefits to anybody. While we can appreciate their reasons, we understand the difficulty that people with serious mental problems are dealing with. We take it upon ourselves to help the mentally disabled acquire the help and compensation that they need. If you or a loved one are suffering from a mental disorder and are unable to work, please contact us at 800-300-0909 or 215-731-9900 to schedule a free consultation today.

Sources:

https://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm

https://www.ssa.gov/benefits/disability/

The post Help Applying for Disability Benefits with a Mental Illness appeared first on Philadelphia Disability Insurance Lawyer.

Help Applying for Disability Benefits with a Mental Illness syndicated from http://personalinjuryattorneyphiladelph.tumblr.com/

New York’s New and Improved (?) “Anti-Cyberbullying” Bill

It’s known in the New York Senate as Bill S1318A. And it passed the Senate unanimously yesterday, by a vote of 56-0. Must be pretty good, huh? Unanimous!!!

It’s an anti-cyberbullying bill and who would ever want to be against something like that! I mean, bullying is bad, cyber or not, right?

Just one teensy little problem seems to have escaped the drafters, however. This “cyber-bullying” that they wish to make a misdemeanor has a flaw. I’m almost embarrassed to mention it, but here goes.

Cyber-bullying doesn’t seem to have a definition.

Here’s the entire pertinent text:

 S 12-A. CYBERBULLYING. 
1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
A.  MINOR SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL UNDER THE AGE OF EIGHTEEN.
B. PERSON SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL.

2. ANY PERSON WHO KNOWINGLY ENGAGES IN A REPEATED COURSE OF  CYBERBUL-BULLYING OF A MINOR SHALL BE GUILTY OF AN UNCLASSIFIED MISDEMEANOR PUNISHABLE  BY  A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT NOT TO EXCEED ONE YEAR, OR BY BOTH SUCH FINE  AND  IMPRISONMENT.

There is, of course, lots of conduct that that we can all agree is bullying, right?  A kid gets taunted by classmates for his less-than-personal personality, and it’s a no-brainer, right?

Well, almost right. I mean, friends do this kind of stuff to their good buddies after all.  It isn’t just for enemies.

But still, let’s say it is an “enemy” of sorts — two kids that actually hate each other. How do they know where the line in the sand is located as to what is legitimate and what isn’t?

So if Kid A wants to say that Kid B’s support of Trump is “idiotic” or “moronic,” or that Kid B seems to be a clueless asshat for believing what s/he believes, would that conduct, if done online, be cyber-bullying? How about if it didn’t involve politics at all, and was purely personal?

Don’t we have a right to call each other schmucks?

The lack of an adequate definition is an obvious problem, and one that is already known to New York because our top court struck down such a bill in 2014 in People v. Marquan M. — and that bill actually attempted a definition:

  1. “any act of communicating … by mechanical or electronic means,”
    • “including posting statements on the internet or through a computer or email network,”
    • “disseminating embarrassing or sexually explicit photographs;”
    • “disseminating private, personal, false or sexual information,”
    • “or sending hate mail,”
  2. ”with no legitimate private, personal, or public purpose,”
  3. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

How, exactly, is a person to know if their conduct/speech is a problem if there’s no definition? We lawyers like to call such statutes vague or overbroad. They either don’t tell you exactly what conduct is criminal (vague) or they word the statute so broadly it sweeps perfectly constitutional conduct into its orbit of criminal conduct.

And now we have version 2.0 of a bill with no definition, and this is supposed to be better than version 1.0?

Since the matter was covered by Eugene Volokh back in 2014 when its first iteration was deep-sixed by the Court of Appeals, I feel no need to re-write what he already tapped out on his keyboard. You can read it here:  New York’s highest court strikes down cyber-bullying law

It was likewise covered by Scott Greenfield:  NY Court of Appeals Holds Cyberbullying Law Unconstitutional

And there’s a Syracuse Law Review article on the subject.  And the NY Civil Liberties Union.

And, for the legislators that might not want to read the works of lawyers, there’s even a Wikipedia entry for the case.

There is no point passing version 2.0 of a law that will one day be ruled unconstitutional.

I know it may look good to constituents to say  “We are trying to do something!”, but it would be nicer to see at least a couple of folks say, “I’m not going to waste the taxpayer’s money with a bill that most surely will end out on the trash heap.

 


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What is a Lump Sum Buyout?

Lump Sum Buyout in PhiladelphiaEvery year, numerous people are forced out of work because of a longstanding disability. When this happens, obtaining disability insurance is an absolute must. In Philadelphia, acquiring a highly skilled Philadelphia disability insurance lawyer is the smartest first step toward getting benefits. However, many people do not realize what all of their options are after obtaining disability insurance.

A large percentage of people collecting disability benefits are not aware that they can always opt for a lump sum buyout. This can be a greatly beneficial decision, although, like anything else, it has its pros and cons. You absolutely must take your time in making such a life-changing choice.

The Good

One major reason you may want to choose a lump sum buyout is in case you want the ability to invest in your future. The ultimate determination comes down to your current financial situation and what you may be planning to do in the years to come. Many buyouts will end up getting you more money than you would have acquired through monthly payments, tax-free. On the other hand, some will get you less. This all bodes well for the unparalleled need to have a qualified attorney negotiating your buyout.

Investments are typically a great idea if you want to start a new business or invest in your children’s future. A lump sum buyout can help you pay your children’s college tuition fees or other investments that may seem to bring you substantial gains. Security and peace of mind is another reason you may want to think about a buyout. If you are in a situation where you’re concerned about your family’s security, a buyout might be the perfect option for you. Additionally, it might serve you to take a buyout because by doing so, you will no longer be subjected to the possibility of having your benefits cut-off, nor will you need to perpetually prove your disability.

The Bad

While there are seemingly more good reasons than bad, there are a few things you may want to consider before accepting a buyout. If you or your family have a history of longevity, and your previous profession has a lifetime payout, it might be a better idea to stick with the monthly payments. The most apparent reason to keep with the payments is that of budgeting. It can be extremely tempting to use a large sum of money right away, and wastefulness is certainly a large reason to consider keeping your payments as well. Lastly, you might end up considering an offer that is worth far less than your policy. For these reasons, careful consideration and a knowledgeable attorney are crucial to making your decision.

At Edelstein, Martin & Nelson, our attorneys know all of the ins and outs to negotiating a beneficial lump-sum buyout. We pride ourselves on our devotion to getting you the best deal possible for you and your loved ones. If you are on disability and considering a buyout, call 800-300-0909 or 215-731-9900 to schedule a free consultation today.

Sources:

http://www.psers.pa.gov/Retired/Pages/TaxesOnBenefit.aspx

https://www.ncbi.nlm.nih.gov/pubmed/14728640

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What You Should Know About Short-Term and Long-Term Disability Benefits

Disability benefits in PhiladelphiaThere is nothing fun or entertaining about finding yourself in need of disability insurance. It’s an unfortunate situation to be in, and everything around it is complicated to boot. For this reason and others, buying a standalone policy before you are injured is definitely the smartest option. However, obtaining a Philadelphia Disability Insurance Lawyer and doing some research are the first steps you should take.

The Differences Between Short and Long-Term Disability Benefits

First, be aware that it can take four to six weeks just to complete the application process for disability insurance. There are phone interviews and medical exams, and everything about it is time-consuming. Once you are prepared for that, it is terribly important to know which kind of benefits you need. The choice may seem apparent based on your injury, but it is always helpful to be confident in your decision.

Short-term disability benefits are specifically for an injury that is expected to be fully healed within three to six months. Most employers offer some sort of short-term disability coverage, although some companies do provide long-term benefits. Long-term disability benefits are reserved for cases in which an injured person is expected to remain injured for a period of time longer than six months and up to as much as decades. This is the basic difference between short and long-term benefits, but there is more to understand.

Private or Employer-Provided Insurance

It is important to realize that if you are depending on your employers’ short or long-term benefits, that you will be receiving far less than your current income in benefits. Most employer-provided benefits are capped at 50% of your income, and that is also taxed heavily at a rate of 25%. If you are going at it alone before you are disabled, the best option is a standalone policy that will give you at least 60% of your income, tax-free. Nevertheless, this attractive option can also be wretchedly expensive, so it is always completely understood why many people do not purchase disability insurance, privately.

The Benefits of Having a Disability Insurance Lawyer

No matter which financial boat you are in, obtaining an experienced lawyer is by far the best option. An experienced can first help ease the initial process of applying for benefits, which is tedious and time-consuming. Moreover, a large percentage of claims are denied when someone does not have an attorney, and a disability attorney is crucial to obtaining benefits after a denial.

Long-term disability claims are often delayed or denied completely for unfair reasons. These delays/denials are called, “Bad faith claims,” and a knowledgeable attorney knows exactly how to fight them. Long-term disability insurance companies will not tell you the unfair reasons why your claim has been denied, and therefore it is crucial to fighting for your compensation with qualified representation.

At Edelstein, Martin & Nelson, we understand how insurance companies play the game. We recognize their determination to save themselves from paying you what you deserve, and we know how to handle them. Our attorneys will fight on your behalf in order to obtain the compensation you need for your disability. If you are in the market for disability insurance or have recently become disabled, call 800-300-0909 or 215-731-9900 to set up a free consultation today.

Sources:

https://www.ssa.gov/forms/ssa-16.html

https://www.cga.ct.gov/2004/rpt/2004-R-0280.htm

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SSD VS SSI and Other Disability Questions

SSD VS SSI in PhiladelphiaIf you have been disabled and are unable to work in Philadelphia, like any other state, you are probably wondering about which type of disability insurance you are going to be eligible to receive. The most important differential to understand in the variance between SSD and SSI has to do with how much (if any) you have paid into disability insurance while you were able to work.

SSD or Social Security Disability is a benefit amount you are afforded based on your previous contributions. If you had paid into SSD from your paychecks while working, your benefits may take this amount into account. You are likely better off if you had prepared for a disabling injury before the injury occurred. SSI or Supplemental Security Income follows the same definition as SSD, however, your income and assets will determine your eligibility.

Other Questions

After suffering a serious, but not catastrophic injury, many people wonder exactly how disabled one needs to be to collect disability insurance. The answer is a range, but that you must be unable to perform your work duties due to the injury for a period of at least 12 months. The Social Security Administration recognizes most forms of sudden and serious physical or mental impairments.

The mention of the Social Security Administration or SSA brings up another popular question. Many people wonder exactly who is determining their eligibility for benefits. The SSA makes that determination, however, it is important to know which factors affect their decision. These factors are things like; nature of the injury, work history, medical records, age, and whether or not you can reasonably perform other work duties.

Of course, people who know that they qualify will have additional questions such as, can my family members collect benefits? The answer here is based on which family members you are concerned about. Your children (minors), and your spouse are typically qualified. Although it may be that your spouse needs to be responsible for a dependent child. In any event, you must be in contact with a highly experienced and qualified attorney, which brings us to another common question.

Numerous people wonder if they need an attorney. This is a reasonable inquiry, and the simple truth is that no, you do not initially need an attorney. However, the vast majority of disability claims are denied right off the bat, and obtaining compensation after a denial is extremely difficult without representation. If you file a claim without an attorney, you have a very high chance of being denied. After being denied, you need to file an appeal, and only a qualified Philadelphia disability insurance lawyer can guide you every step of the way through this unfortunately complex process.

At Edelstein, Martin & Nelson, we fully understand the immense complications that often arise during a claim for disability benefits. It is terribly important to understand which kind of claim you are filing, and our attorneys are ready to assist you down this unnerving path. If you have been disabled due to an accident at work or otherwise, it is crucial that you contact an experienced disability attorney. Call 215-731-9900 or 800-300-0909 to schedule a free consultation today.

Sources:

https://www.ssa.gov/disability/

https://www.usa.gov/federal-agencies/social-security-administration

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