This autumn, I am privileged to serve as a new member of the Freedom of Information Act (FOIA) Advisory Committee, a U.S. federal entity constituted under the Federal Advisory Committee Act (FACA) and administered by the Office of Government Information Services (OGIS), within the National Archives and Records Administration (NARA).
If that alphabet soup has your head spinning, then you have some sense of what it's been like for me to get up to speed in this role. That said, I'm thrilled to have the opportunity and humbled by the expertise of the committee members and OGIS staff with whom I'm serving.
I'll have more to say in time, as we have accomplishments to report. Meanwhile, though, a bit of parody art. At a meeting yesterday of the Implementation Subcommittee, ace OGIS compliance officer and former journalist Kirsten B. Mitchell related an anecdote.
A youthful person had wondered aloud that Fresca is quite old, perhaps dating to the 1980s! And Mitchell said she felt compelled to note that it is even older. In fact, the niche-beloved Coca-Cola Co. soft drink dates to the same year the FOIA was signed into law: 1966. That modest revelation prompted me to generate the above art, based on a contemporary Fresca ad that capitalizes on the drink's age ("Delicious Never Goes Out of Style"). (Above art by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying work of Coca-Cola Co.)
The inaugural public meeting of the 2024-2026 FOIA Advisory Committee, at NARA in September, is posted on YouTube.
A young man I know from Paraguay recently visited the Philadelphia area for a week, his first time in the United States.
I texted to check on him when he returned home to Asunción. He had a great visit, was home safe and exhausted, he texted back, and had seen so much, it would take a while to process it all.
But one question, he wrote.
Hmm.
I guess Americans get in a lot of accidents, I said.
No, actually, I just texted, "🤑." I think that covered it.
Lawyer advertising is the theme of some delightful imaginings in a canine vein by Kensington Campbell: Instagram embed below. See more there or on TikTok. Hat tip @ Molly Sullivan and Frances Fendler.
Reb Masel hosts the Rebuttal podcast at Spotify, Apple, and YouTube. Read more about her at Tubefilter, where she said in fall 2023 that she practices in defense-side civil litigation "for now." If you must know more about Pepperdine Law alumna Reb Masel in the muggle world, the Daily Mailwrote about her in 2022.
A key takeaway of the panel for attorneys: be careful you don't create an attorney-client relationship through social media posts. If giving legal advice, disclaim, disclaim, disclaim.
Florida attorney Richard Rivera said that ethical obligations may arise merely from a viewer's subjective belief that an attorney-client relationship exists. I presume there is a reasonableness check on that, but the objective measure would be lay perception, not the knowledge and experience of the attorney. Thus, a social media post can trigger an attorney's duties of confidentiality and timely response to questions.
Accordingly, Washington attorney Matthew Albrecht warned attorneys to keep up with their inboxes in all media. If a viewer or listener reaches out through a web form, social media direct messaging, etc., asking a question in response to a post, failure to respond promptly can be an ethics violation.
Moreover, an attorney must be wary of questioners who overshare, Albrecht said. They might post comments on a public website that compromise their cases, and the attorney may be obliged to delete the comments to protect the prospective client. A questioner also might provide information that puts the attorney in conflict with prior or existing clients. So an attorney with any online presence should have and adhere to a careful policy for receiving and processing incoming communications.
I wish I could count on a response from a doctor's office when I ask a question. Clearly, the bar for attorneys is higher.
Probably needless to say, some attorneys give advice in mass media that might be accurate in context and not run afoul of ethics rules, but might at the same time invite trouble in problematic misunderstanding. For example, many online videos present Texas lawyers schooling viewers on the use of force in defense of property under the state's generous castle laws. Handy shared one video by a lawyer who described a property owner vs. trespasser confrontation in which the property owner might lawfully "beat her ass."
An Aeroflot plane awaits departure in Almaty, Kazakhstan, earlier this month. EU and U.S. sanctions banned the airline in 2022. RJ Peltz-Steele CC BY-NC-SA 4.0
A joke, belatedly to honor Ukraine Independence Day, August 24.
This summer, traveling in the Caucasus and Central Asia, I crossed a lot of borders. Sometimes back and across again.
I also met a lot of Russians. Most often, we exchanged pleasantries, as if there were nothing going on in the wider world. I didn't want to ask, and they seemed content not to talk about it.
I did meet a number of Russian men who had fled conscription. One fellow, late 20s I estimate, in a craft-beer bar in Bishkek, the capital of Kyrgyzstan, was especially warm company. We never talked directly about Putin's position on Ukraine. But he made clear that he believed Russia's war adventure is socially and economically disastrous for ordinary Russians at home.
Anyway, my friends and I grew accustomed to the questions asked by immigration officials with limited English.
On day 2 of the Judge Ketanji Brown Jackson hearings, Senator Amy Klobuchar (D-Minn.) borrowed a joke from The Daily Show's Trevor Noah.
Klobuchar remarked on the significance of a woman taking a seat on the U.S. Supreme Court to attain a 5-4 gender balance for the first time. Of 115 confirmed justices in American history, Klobuchar counted, 110 have been men. Klobuchar said that she had "reminded" Trevor Noah on The Daily Show of similar statistics relative to service in the U.S. Senate: "Of the nearly 2,000 people who have served, only 58 have been women. And he responded that if a night club had numbers that bad, they'd shut it down." Here's the 38-second clip:
It was Noah who actually quoted the Senate statistic from a book, Nevertheless, We Persisted(2018), an anthology for which Klobuchar wrote a foreword and which she touted at the time. Noah followed up, "I've been to gay clubs that have better ratios of men to women." Klobuchar took the occasion in 2018 to speak against the Brett Kavanaugh nomination, pending at the time. She put the appearance on Facebook.
Klobuchar appeared on The Daily Show also in 2017 and in 2019, the latter while running for President. But none of those appearances marks the funniest intersection of Klobuchar and Noah in popular culture. That honor goes to a 2019 tweet by Noah in which he lampooned Klobuchar for overusing a joke on the campaign trail.
Senators' interrogations of Jackson on Tuesday and Wednesday this week were at times cringeworthy, to use my wife's word. In particular, the questioning by Senators Ted Cruz (R-Tex.) and Josh Hawley (R-Mo.) were difficult to endure; even National Review Senior Fellow Andrew C. McCarthy, who opposes Jackson's appointment on other grounds, described Hawley's attack as "meritless." The affair rubs in for me David Brooks's recent lament in The Atlanticon the divide between today's rabid right and the meritorious social value of genuine conservatism.
Both Stephen Colbert and Trevor Noah are off this week, so between the stresses of a contentious Senate hearing and the ongoing war in Ukraine, I am sorely missing my daily doses of escapist levity. Fortunately, The Daily Show's Desi Lydic deposited a dose of satire on the web for us; don't miss it.
Trevor Noah and Dulcé Sloan had some fun on The Daily Show this week with TikToker Tessica Brown, who is considering suit against Gorilla Glue after using it on her hair sent her to the hospital.
I have some Gorilla Glue right on my desk. I love the stuff, except how it hardens in the bottle before I can use it all, an apparently intractable malady of super glues. I got out my reading glasses, and the tiny print on mine says:
WARNING: BONDS SKIN INSTANTLY. EYE AND SKIN IRRITANT. MAY PRODUCE ALLERGIC REACTION BY SKIN CONTACT. Do not swallow. Do not get in eyes. Do not get on skin or clothing. Do not breathe in fumes. KEEP OUT OF REACH OF CHILDREN. Wear safety glasses and chemical resistant gloves. Contains ethyl cyanoacrylate. FIRST AID TREATMENT: If swallowed, call a Poison Control Center or doctor immediately. Eyelid bonding: see a doctor. Skin binding: soak skin in water and call a Poison Control Center. Do not force apart. For medical emergencies only, call 800-....
Image by RJ Peltz-Steele CC BY-SA 4.0 with no claim to underlying content
No mention of hair, so I guess the warning label will have to be longer now. The hair incident prompted a Twitter response from Gorilla Glue, lamenting the misuse and wishing Brown well.
Whether and when to acknowledge an unapproved use of a product always has been an intriguing problem in the practice of product liability defense. Foreseeability is a key part of the product liability test in many states, so a maker with actual knowledge of an off-label use is sometimes wrangled into having to warn against the absurd. That leads to some funny results, as evidenced by the label collection that my friend Prof. Andrew McClurg has maintained since before the internet was a thing, now a feature on his legal humor website.
In the analog days, a sharply worded letter might have been an adequate response to the customer who wrote in with helpful intention to suggest how effective oven cleaner might be for mole removal. Woe be to the product maker whose goods turned up in a book such as Uncommon Uses for Common Household Products, which taught people how to MacGyver products to exceed their design intentions. (And there's a small but fascinating sub-genre of publisher-defense cases at the intersection of product liability and First Amendment law.) At that point, it was time to update the warning label, if not issue an affirmative press release, because it would no longer be plausible to argue lack of foreseeability to a jury. The anticipatory defense would have to shift focus to other theories, such as unavoidable dangerousness and consumer responsibility.
The democratization of mass communication through the internet and social media has accelerated the timeline. So now we see quick responses to individual incidents, such as Gorilla Glue's on Twitter.
The instant case is not firmly in the genre of unintended uses, because Brown intended at least to use the glue for its adhesive property. Still, I'll go out on a reasonably secure limb and say that any lawsuit arising from the instant incident, at least upon the facts as reported so far, would be frivolous. More likely, the TikToker in question has accomplished her mission by being the talk of the electronic town.
UPDATE, Feb. 13, 2021: Princess Weekes at The Mary Sue cautions us not to be manipulated by defense tort reformers into too readily siding against Brown, like in the Hot Coffee case. I don't think I've been so co-opted, but such an admonition is always well advised.
