Mayor de Blasio v. Times Square’s Topless Ladies


Photo by: Justin A. Wilcox
Photo by: Justin A. Wilcox

If you’ve been anywhere near Times Square in recent years, you are surely familiar with the legion of entrepreneurial costumed characters (Elmo, Iron Man, Minnie Mouse, etc.) who graciously offer visitors a hug and a photo opportunity for a price, at times unbeknownst to tourists until the photo is snapped. Topless painted ladies (“desnudas”) have now closed in on Elmo’s action, and the scantily clad ladies are berating tourists for not handing over enough money.

NYC’s Mayor de Blasio and other City officials have vowed to crack down on what has been described as aggressive and predatory panhandling. As Scout Willis showed us, public toplessness is legal in NYC (NOTE: the only States that wholly Law ban toplessness are IN, TN, and UT), but aggressive panhandling is not.

De Blasio emphasizes that both the desnudas and the “furry creatures” of Times Square are engaged in business, rather than creative artistic expression. He told the New York Times that he believes this “opens the door” to regulate them the way the City “would any other business. And we will do so, while still respecting constitutional rights.”

A City Councilman whose district includes Times Square said that Times Square can be quirky and chaotic but it can’t be unsafe and creepy. Indeed, this may be a difficult line to draw. The Councilman has been working on a bill that would place time, place and manner restrictions on the topless and the costumed characters, as the City has done with street vendors in crowded areas like Central Park.

Does the mere fact that the desnudas earn money make them a street vendor, and doesn’t that undercut the artistic value of their brand of entertainment? As this story found its way through the NYC newspapers, I was not too surprised when the Daily News published an “exclusive” story, with gratuitous photos, describing “shady bosses” who handle the desnudas affairs and take a 30-40% share of their earnings. According to the National Employment Law Project, these “managers” lend support to the notion that the desnudas are doing business, and they could perhaps be subject to minimum wage laws. Maybe after NY’s fast food workers get their $15 hourly wage, the topless painted ladies could make a similar pitch?

Notwithstanding the strong opposition to desnudas running rampant, de Blasio and City officials must be careful in crafting a solution. Although the business-over-art argument may look good in the papers, famed civil rights lawyer Ron Kuby doesn’t buy it. “You take two bare breasts, add the request for money which is legal, and you end up with legal behavior,” he told DNAinfo. “Two boobs, one beg, equals lawful.” So, until the City unveils its plan, desnudas and the costumed characters are free to bomb your photos and pocket your money.

WHAT THE DUCK?! A&E, Duck Dynasty & the First Amendment.

To further explain why Phil Robertson’s suspension from A&E is NOT a First Amendment violation, I commissioned my lawyer-friend Rik Sault, to deliver the dirty details. Enjoy the article below.


A&E indefinitely suspended Duck Dynasty star Phil Robertson for sharing his views on homosexuality in the January 2014 issue of GQ. Phil cited the bible, saying that homosexuality is immoral and even likened it to bestiality and terrorism (oh boy!). Though it’s not surprising that Phil holds such a view, it is surprising how quickly this issue blew up. Social conservatives and select Christian groups have come to Phil’s defense, outraged that he is suspended for simply expressing his faith and beliefs. There’s even a website and petition, IStandWithPhil, which calls for A&E to reinstate him. And now, a 2010 video “sermon” given by Phil has resurfaced. In this sermon, he rambles about “gross sexual immorality” and perversions such as “women with women, men with men.”

As my good friend The Dishmaster was quick to point out, this is NOT a First Amendment issue, despite of what social conservatives would have you believe. Louisiana Gov. Bobby Jindal said, “I remember when TV networks believed in the First Amendment.” It is ludicrous to cite the First Amendment here. Although government employees have limited First Amendment protection for their private speech, PRIVATE employees do not. There is simply no First Amendment protection when a private employer fires you for your speech. Phil is free to express whatever extreme religious and social views that he may hold without fear of legitimate government intervention, but A&E can certainly control which public figures it chooses to put on the air. Jindal’s recollection of a time when “TV networks believed in the First Amendment” is wildly misleading. I’m sure A&E believes in the First Amendment. I’d dare say that its choice to suspend Phil is an exercise of its free speech rights. Also, let’s not forget about partisan news outlets: if a Fox News pundit told a major magazine like GQ that he or she lauded the reforms of Obamacare and called for increased funding for food stamps, that pundit would likely lose his job. Furthermore, cable television Stars are accountable to the channel and A&E is accountable not only to its viewers, but also to its advertisers. According to one crisis communications expert, “few advertisers will risk supporting Duck Dynasty because of [Phil’s] devastating remarks and renewed focus on a show that invites ridicule of stereotypical rural families.” A&E’s only failure is its inability to wrangle its stars. This never should have happened.

The Government Shutdown — All You Need to Know in a Nutshell


What is a shutdown?

The federal budget generally sets the federal government’s funding levels for the fiscal year. Congress is required by law to pass such a budget annually. Both the Senate and the House must approve, or “pass,” the federal budget before they can send it to President of the United States (“POTUS”), who ultimately signs it into law. Federal government shutdowns occur when POTUS and Congress are unable to agree about budget allocations before the end of the existing budget cycle. When there is not an approved budget in place, the federal government goes into shutdown.

When is the last time the federal government had a shutdown?

17 years ago, during the Clinton administration, the Republicans fought with Clinton about the timetable for the budget. After 21 days, Congress and Clinton agreed to a compromise.

So, has there been a shutdown?

At 12:01 A.M., on Tuesday, October 1st, the federal government began a partial shutdown, with all but essential services curtailed or closed entirely (it says so right on

Who is out of work? What isn’t open?

Between 800,000 and 1 million federal employees have been temporarily furloughed. This includes many civilian employees of the military and most of the EPA’s 17,000 employees.

National museums, parks, and monuments have been closed (including the Statue of Liberty!). The CDC has ceased most of its operations, and federal medical research has been curtailed. The panda cam at the National Zoo, the NASA TV channel, and the NASA website have all been taken offline. (NOTE: For a list of available Federal government services, you can call 1-800-FED-INFO).

Additionally, twenty-eight poison ivy-eating goats were removed from a national park in New Jersey after their owner became worried that the shutdown would close the park where the goats had been dutifully eating the ivy. Truly unfortunate.

Which Federal employees are still working?

All essential employees, including federal air traffic controllers workers, uniformed service members providing medical care, airport security personnel, border patrol agents, prison guards, postal carriers, and disaster assistance workers. Interestingly enough, members of Congress are deemed “essential” and will continue to be paid (however, at least some of their state offices have shut down).

What happened?

This shutdown follows three years of increasingly divided government and growing political partisanship. One of the major points of contention is Obamacare (also known as the Affordable Care Act), which Republicans have voted more than 40 times to repeal or delay. In the midst of this contention, Congress has been unable to pass a budget in a normal way. To keep the government operating last March, it passed a temporary spending measure…but it expired at midnight on Monday.

Vocal conservatives associated with the Tea Party movement used this looming budget deadline as leverage to press for concessions related to Obamacare. Much to the chagrin of some of their Republican contemporaries, the Tea Party folks have tied their continued opposition to Obamacare to their pledge to rein in government spending. Therefore, Republicans in the House sought to “tack” measures defunding Obamacare onto the proposed budget. The House effectively said that if the Democrat-controlled Senate and White House are not willing to delay implementation of Obamacare and/or cut its funding, then it would not allow the budget to go through.

On Monday, the Senate rejected measures passed by the Republican-controlled House that would have delayed key portions of Obamacare (which has been touted by some as the most ambitious US social program in 50 years) while extending government funding for a few weeks (they took down the tack-on in a game of chicken).

Thus, no budget was approved. The Obama administration unveiled the online insurance marketplaces, and people can now sign up for insurance plans under Obamacare. But, because there was no budget, the government shut down.

Who should we blame?

Republicans and Democrats traded blame for the shutdown. President Obama blamed the government shutdown on a “faction” of House Republicans. “They’ve shut down the government over an ideological crusade to deny affordable health insurance to millions of Americans,” the President said. “In other words they demanded ransom just for doing their job.” In his view the shutdown was “completely preventable,” and “should not have happened.”

Senate Republican Leader Mitch McConnell, however, accused Democrats of dragging their feet for days, rejecting bills passed by the House that would have kept the government funded for at least little while longer. At this point, many Republicans maintain that they are simply asking Democrats to come to the table, to “negotiate” on measures to defund or delay Obamacare (even though Obamacare has long since been signed into law). The House requested that a bipartisan conference of lawmakers convene to hash out the crisis, but democratic Senate Majority Leader Harry Reid immediately rejected that proposal this morning. According to the White House, this proposal “shows the utter lack of seriousness that we’re seeing from Republicans.”

In spite of the fierce finger-pointing, some lawmakers are deeply embarrassed.

Some have said they plan to donate their salaries to charity, or even forego their pay. “This is a black eye on our government at all levels,” said Republican Representative Michael Grimm of New York. “I think it’s a low point for us.”

Interestingly, a Reuters/Ipsos poll taken before the shutdown showed that 24% of Americans would blame Republicans, while 19 % would blame Obama or Democrats. Meanwhile, 46% percent said everyone would be to blame.

Can I expect a tax refund?

What I want to know is whether every taxpaying citizen gets a tax refund as a result of this shutdown? I pay substantial sums out of each of my paychecks so that I can enjoy the panda cam, as well as parks filled with ivy-eating goats. But now I’ve been denied a full-day of all that, and who knows how many more.

Stop-and-Frisk Gets Stopped: Grab the Facts Now

Mayor BloombergOn August 12, after a 10-week trial, a Federal Court found that the NYPD violated the 4th and 14th Amendment rights of hundreds of thousands of New Yorkers, largely black and Hispanic men, by stopping them without reasonable suspicion.

The suit was brought by various plaintiffs after growing constitutional concerns about the NYPD’s stop-and-frisk policies under Bloomberg and Police Commissioner Ray Kelly. The number of police stops climbed steadily after Bloomberg took office in 2002, climbing from 97,296 to a peak of 685,724 in 2011. Approximately 88% of these stops did not result in an arrest or summons, and more than 86% of those stopped were black or Latino.

At trial, 12 plaintiff-witnesses described 19 out of more than 4 million stops which occurred between 2004 and 2012. The plaintiffs argued that their testimony proved that the NYPD “laid siege to black and Latino neighborhoods… leaving people afraid to leave their homes,” and that the NYPD used “race as a proxy for reasonable suspicion.” But the City countered that the plaintiffs “failed to show a single constitutional violation much less a widespread pattern or practice.”

The plaintiffs’s case was aided by a smoking gun: a taped statement in which an NYPD Deputy Inspector told another officer to stop and frisk “the right people, at the right time, at the right location.” When the officer asked for more specifics, the Deputy Inspector replied, “I told you at roll call, and I have no problem telling you this, male blacks 14 to 20, 21.” Ouch!

The City tried to mitigate this statement by explaining that the officer was so advised “not because law abiding blacks are more suspicious generally but because robberies and grand larcenies in (the area) were reportedly being committed by black males ages 14-21.” But that doesn’t seem very reassuring in the face of such a blatant directive to stop young male blacks.

The case also included testimony from New York State Senator Eric Adams, a former NYPD officer, who said that on two occasions Commissioner Kelly publicly stated that he uses police stops to “instill fear” in young blacks and Latinos, and that every time they leave their homes they will be stopped. Ouch, again!

After finding the City liable for systemic constitutional violations, the Judge – with encouragement from the U.S. Justice – Department appointed a monitor to oversee the NYPD. All along the City has maintained that a monitor is an unnecessary interference which will hurt police morale and create even more paperwork for the officers.

The newly appointed monitor is Arnold & Porter’s Peter Zimroth, the husband of actress Estelle Parsons (who played Roseanne’s mother in Roseanne).

In spite of this huge blow, the City – or at least the current administration, there will be a new mayor by next year – maintains that the NYPD’s policies are both lawful and effective. Last week it filed a notice of appeal in this as well as a related stop-and-frisk case.

Can Drug-Sniffing Canines Confiscate Your Cannabis?

Same-sex marriage is not the only hot-button topic on the Supreme Court’s desk. Just before its historic two-day scrutiny of the marriage issue, the Court handed down a decision limiting the ability of police to use drug-sniffing dogs around a person’s home.

In ‘Florida v Jardines,’ a detective had a trained dog sniff near the base of the front door of the defendant’s South Florida home, after receiving an anonymous tip that there was marijuana growing inside. The detective obtained a search warrant after the dog “alerted” an issue. Upon searching the home, police found more than 179 live marijuana plants, and the defendant was arrested for an attempt to escape out the back door. He was charged with marijuana trafficking and grand theft for stealing electricity to run the highly sophisticated grow operation.

Both the trail and appellate Florida courts suppressed the evidence, finding that the police engaged in a Fourth Amendment search without probable cause. The Supreme Court agreed. By a 5-4 vote, the Court held that the use of a trained police dog to investigate a home and its immediate surroundings constitutes a “search” within the meaning of the Fourth Amendment — which prohibits unreasonable searches and seizures, and gives US citizens a right of privacy. Therefore, under the Court’s holding, bringing a trained dog near the home requires a warrant.

Writing for the majority, Justice Scalia explained, “A police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do… . But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else.”

Scalia elaborated, “To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to -– well, call the police.”

According to the majority opinion, using a drug-sniffing dog outside someone’s front door is no different from using thermal imaging technology to peer inside a home without a warrant, a practice that the Court rejected in 2001.

In a concurring opinion, Justices Kagan, Ginsburg and Sotomayor agreed with Scalia’s reasoning that the home is the “first among equals” under the Fourth Amendment, but they would also limit the use of drug-sniffing dogs based on an individual’s reasonable expectation of privacy.

Kagan, the author of the concurrence, offered the following analogy to “clinch” the case on both privacy and property grounds:

“A stranger comes to the front door of your home carrying super-high-powered binoculars. He doesn’t knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home’s furthest corners… In just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one. Has your ‘visitor’ trespassed on your property, exceeding the license you have granted to members of the public to, say, drop off the mail or distribute campaign flyers? Yes, he has. And has he also invaded your “reasonable expectation of privacy,” by nosing into intimacies you sensibly thought protected from disclosure? Yes, of course, he has done that too.”

Justice Alito authored the dissent, which was joined by Chief Justice Roberts, as well as Justices Kennedy and Breyer. According to the dissent, the detective in Jardines did not conduct a Fourth Amendment search simply by bringing a trained dog to the defendant’s door. The dissenting opinion focused, in part, on the long history of police work by dogs. Alito further opined that no one reasonably expects privacy regarding odors emanating from the home that may be smelled from a nearby location. In rejecting the notion that a line should be drawn between the olfactory capabilities of humans and those of canines, Alito noted that some humans have a much better sense of smell than others, and some humans are trained to detect and distinguish certain odors. He went so far as to cite an article from Johns Hopkins University Magazine entitled A Primer on Smell.

Alito’s dissent evinced particular alarm by Kagan’s suggestion that people may have a reasonable expectation of privacy with regard to odors even outside the home. He opined that police should not be required to have a warrant before acting on the “alert” of a trained dog on a public sidewalk or in the corridor of a building to which the police and their dogs have gained lawful entrance. Alito also worried about limiting the ability of police to use dogs for detecting explosives or a violent fugitive. He found “no ground for hampering legitimate law enforcement” in this way.

Despite its analysis, the dissent does not offer a persuasive argument for the proposition that “legitimate law enforcement” is hampered by requiring a warrant before bringing a trained dog near one’s home. If police really think it is worth the effort to drop by your place with a drug-sniffing dog, then the least they can do is some good, old-fashioned police work, like a stake-out or procuring a reliable snitch. In Jardines, if the investigating detective’s anonymous tip was sufficiently reliable, he easily could have obtained a warrant before bringing a dog to the defendant’s home; I doubt those 137 marijuana plants were going anywhere with quickness.

The majority — a mix of conservative and liberal Justices — surely got it right. Requiring a warrant before allowing a nosy dog to snoop around one’s home certainly constitutes the right to privacy protected by our Fourth Amendment. Otherwise, police would be free to brazenly roam through people’s yards and apartment building hallways with dogs ready to sniff out secrets. And that just seems un-American.

A copy of the full decision can be found HERE

Visual Effects Industry Dying — No Piece of the Pi

Life of PiDuring the 2013 Oscar telecast, the visual effects (VFX) winner for “Life of Pi,” Bill Westenhofer, had his speech interrupted when he began to talk about the pending bankruptcy of the film’s California-based visual effects house, Rhythm & Hues. Mr. Westenhofer was clearly attempting to bring attention to an issue worthy of the nearly 500 protesters (many of them laid-off Rhythm & Hues workers) outside the building that night.

The main source of contention for the visual effects industry lies with foreign tax subsidies and cheap labor that draw jobs overseas. The employees represented their outrage with signs that read “we want a piece of the Pi,” and “respect for VFX.”

Over the course of the week, the protest has spread via Twitter and Facebook. In a display of solidarity, the VFX community has plastered social media pages with blank green screens to show what effects-heavy films would look like if we no longer had VFX artists and designers to create elaborate digital worlds and action sequences; films like “Avatar” and “Life of Pi” were largely shot against green screens, with the backdrops created in post-production. An industry blog, VFXSoldier, has served as a hub for members of the VFX community to vent and gather information.

Dave Rand, an artist from Rhythm and Hues, explains that the aim of the ongoing protests is “awareness… We are trying to enlighten the studios that they are taking their racehorse and beating it to death.”

And cutting Westenhofer short at the Oscars was rubbed some folks the wrong way. “It’s particularly galling that the FX guy, speaking about a protest that was happening outside that directly addresses the financial realities that are starting to damage the FX community in a way they may not be able to fully recover from, was cut short at a ceremony where they actually had a computer-animated character give away an award on live television,” wrote Drew McWeeny, an editor at HitFix.

In a press room interview at the ceremony, the award-winning Westenhofer got the chance to elaborate on his concerns. “The visual effects are definitely in a challenging position right now… I wanted to point out that we aren’t technicians. Visual effects is not just a commodity that’s being done by people pushing buttons. We’re artists, and if we don’t find a way to fix the business model, we start to lose the artistry,” he said.

The protests lodged by the VFX community seem to be timely, if not long overdue. Rhythm & Hues is not the only high-profile FX house to take a hit recently. According to The Hollywood Reporter, Pixomondo, a German company that won an Oscar for “Hugo” last year, is closing its offices in London and Detroit because of financial strain. Moreover, DreamWorks Animation is set to cut about 350 jobs — that’s 15 percent of its staff.

I suspect that changes in how movies are made have progressed so rapidly that the industry as a whole, and Hollywood in particular, have not been able reflect on what it all means for the future –- both short and long term. As for the dysfunctional business model, many suspect that for last 10 years, the biggest FX houses have only wielded 5-6% profit margins. Some observers suggest that a highly competitive bidding process has created a race-to-the-bottom, with FX houses accepting very low bids to do what might become award-winning work. Moreover, the increasingly unpredictable production schedules add to an already existing strain for both the FX houses the VFX community in general.

The VFX community has done a great job in getting heard, and here’s hoping the industry takes note. When a business model demands change, the first step is awareness, and the next step is to induce desperation. If it’s true that studios will be left with nothing but a tigerless green screen, someone will wake up.

Lindsay Lohan v. Pitbull — The Blame Game

Lindsay_LohanIn 2011, Lindsay Lohan filed suit against Pitbull for using her name in the lyrics to “Give Me Everything,” in which Pitbull proclaims, “I got it locked up like Lindsay Lohan.” Lohan alleged that this violated her privacy and publicity rights and caused her emotional distress.

Late last week, Lohan’s lawsuit was dismissed. US District Judge Denis Hurley ruled that the lyrics are a protected work of art under the First Amendment, and that even though the song was created and distributed to make a profit Lohan’s name was not “used for ‘advertising’ or ‘purposes of trade’ within the meaning of the New York Civil Rights Law.”

In Pitbull’s countersuit, his attorneys asked the court to sanction Lohan for filing a frivolous claim. The judge did not find Lohan’s suit to be frivolous, but he did impose a $1,500 fine on Lohan’s Long Island attorney, Stephanie G. Ovadia, for an “affront to the court,” — the briefs she filed were plagiarized from various sources. The judge said that “the vast majority of the opposition appears to have been taken from other sources without any acknowledgment or identification of those sources.” Moreover, while trying to defend or excuse the plagiarism, Lohan’s attorney made certain representations to the court that the judge found to be “undoubtedly false.”

In a smashing display of grace under fire, the Long Island attorney – who hired another attorney, Pery Krinsky, for the sanctions motion – tried to blame an attorney from Queens for the plagiarism, submitting that the Queens attorney acted as co-counsel for Lohan in the suit against Pitbull.

When reached for comment; however, the Queens attorney said he was not co-counsel for Lohan. “I do not believe in blame games,” he said, adding that he filed papers with the court that affirmed he was not co-counsel. “My affidavit clearly says that I was not an attorney for her.”

There are at least two lessons to be learned here. One, rap is an art, so don’t hesitate to express yourself. Two, Lindsay Lohan should not be allowed to choose her own attorney.

Is Padilla Retroactive: Can Immigrants Avoid Deportation?

Written by: Rik Sault, Guest Contributor

20130225-133406.jpgIn 2010, the United States Supreme Court held that criminal defense attorneys must inform their non-citizen clients of the deportation risks associated with accepting a guilty plea to certain crimes.
That decision, Padilla v Kentucky, was based on the Sixth Amendment right to counsel in criminal proceedings, and the test for ineffective assistance of counsel laid out in Strickland v Washington. It provided immigrants convicted of deportable offenses an opportunity to overturn their convictions if their criminal defense attorneys failed to tell them that pleading guilty may lead to mandatory deportation.

Since that time, attorneys and judges alike have been puzzling over whether the rule in Padilla is retroactive — that is, whether it applies to convictions finalized before the 2010 Padilla decision.

Last week, in a 7-2 decision authored by Justice Elena Kagan, the High Court finally provided its answer to that quandary. In Chaidez v United States, the Court held that the rule of Padilla is not retroactive.

Under the Court’s “new rule” retroactivity analysis, a case creating a brand new rule, which can not be readily discerned from prior cases, is not retroactive. To the contrary, a case does not announce a new rule if it simply applies the principle that governed a prior decision to a different set of facts.

The majority in Chaidez determined that Padilla set forth a new rule because it answered a question about the reach of the Sixth Amendment right to counsel “in a way that altered the law of most jurisdictions.”

Kent Scheidegger, of the Criminal Justice Legal Foundation, who filed an amicus brief in Chaidez, explained that Padilla “overturned well-settled law to create a new ground to attack final criminal judgments. While this is arguably a desirable change for the future, it should not overturn decades of judgments properly entered under the law in effect at the time. This is particularly true in a case such as this one, which would have potentially voided the convictions of thousands of aliens who pled guilty to avoid a longer sentence.”

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, finding that “Padilla did nothing more than apply the existing rule of Strickland v Washington in a new setting, the same way the Court has done repeatedly in the past: by surveying the relevant professional norms and concluding that they unequivocally required attorneys to provide advice about the immigration consequences of a guilty plea.”

In spite of the High Court’s ruling that Padilla is not retroactive, there may nonetheless be room for the states to apply Padilla retroactively, as the two dissenting Justices would do. Last year New York’s Appellate Division, First Department ruled that Padilla is retroactive until at least 1996, when the Illegal Immigration Reform and Immigrant Responsibility Act established the modern scheme of mandatory deportation. Criminal defense attorneys who represent immigrants in New York have been quick to point out that the Court of Appeals — New York’s highest court –- is not bound by the Supreme Court’s recent Chaidez decision. That’s because in 2008 the Supreme Court held, Danforth v Minnesota, that state courts can decide, based on state law, to apply a Supreme Court decision retroactively even if the High Court itself does not. That means that the Court of Appeals is free to rule that, under the New York Constitution, Padilla applies retroactively in New York state cases. And other states are free to do the same.

Lance Armstrong Steps Down — Did He Dope? — A Summary of USADA’s Findings

20121017-100734.jpgThe United States Anti-Doping Agency’s 202-page report entitled, “reasoned decision,” charging Lance Armstrong with running “the most sophisticated, professionalized and successful doping program that sport has ever seen” has caused a media firestorm. The report found “conclusive” and “undeniable” proof that Armstrong not only doped extensively throughout most of his professional career — particularly when he rode to seven straight Tour de France victories from 1999-2005 — but also supplied the banned drugs and pressured his teammates to stay on a doping program.

Although publicly maintaining his innocence, Armstrong — who has never tested positive for any performance-enhancing substances — decided not to fight the USADA charges. In August, six months after federal prosecutors announced that a grand jury had finished considering the matter (and levied no criminal charges), he withdrew from USADA’s arbitration process. Because he withdrew from the arbitration, the agency banned him from Olympic sports for life and stripped him of his record seven Tour victories. By way of contrast, five cyclists who cut a deal each accepted six-month suspensions after giving statements in the investigation.

The French Cycling Federation supports the USADA decision, stating that Armstrong’s refusal to contest the accusations “sounds like an admission of his guilt” (the Federation also wants reimbursement of Armstrong’s prizes obtained during the Tour de France and other competitions – to the tune of 2.95 million Euros). Similarly, the president of the World Anti Doping Agency (WADA) believes that Armstrong’s decision not to appeal the USADA’s decision indicates that there is “substance” to the charges. The Union Cycliste Internationale (UCI), the ruling body which oversees the Tour de France, has yet to ratify the USADA findings, but since Armstrong has given up the fight I can’t think of any reason why they would not do so.

As I perused the report itself – which is readily available on a USADA website – it struck me that it contained a fair amount of hyperbole and colorful quotes (for the media’s convenience, perhaps). “It was not enough that his teammates give maximum effort on the bike, he also required that they adhere to the doping program outlined for them or be replaced,” USADA said in its report. “He was not just a part of the doping culture on his team, he enforced and reinforced it.” Chilling.

In a statement accompanying the report, USADA — an NGO started back in 1999 — ensured that it conducted a fair and thorough investigation, and that it was unaffected by outside pressure or celebrity status. Though I have no reason for doubt, I can’t help but think that Lance Armstrong is the biggest fish that USADA will ever have the opportunity to fry. And it seems that they did not hold back on their own spin, value judgments, and eloquent vilification of the long-admired (formerly admired?) sports hero.

But that’s just the report, let’s talk about the evidence it was based on. I was both happy and somewhat surprised to see that all the of evidence — over 1000 pages, as the USADA is quick to point out — was available online. This accessibility struck me as either the height of transparency or the depths of public smearing in a case that is not only subject to appeal but that is being actively challenged by at least three team members implicated in the twisted tale.

Notwithstanding my qualms with USADA’s mode of presentation, the voluminous evidence is overwhelmingly damning — especially because Armstrong is not challenging it. USADA found 26 witnesses to help explain the elaborate doping scheme purportedly used by Armstrong and the US Postal Service team; this included sworn statements from 11 of Armstrong’s former teammates, six of whom have never had any public dispute with him.

The USADA report confirms many stories we have heard before and, as a whole, paints a vivid picture of the doping culture that dominated Armstrong’s team during his Tour winning streak; riders said they felt that they needed to dope to stay at the top of the sport and stay on the team.

His former teammates talked about consuming vials of testosterone oil during races and even blood-doping (a process whereby blood is extracted, filled with enhancement drugs, and then transfused back into the cyclist). By way of example, teammate Tyler Hamilton stated that, during the 1999 Tour, the team was using EPO, a hormone that induces red blood cell production, every three or four days; pre-loaded syringes were injected quickly and then discarded by a team doctor. For the 2000 Tour, Hamilton, Armstrong, and other riders allegedly took a private jet to start a blood-doping regimen, a new process they used to avoid detection at a time when there was heightened scrutiny of all riders.

In addition to the witness statements, the USADA investigation also uncovered a paper trail, including $200,000 in payments from Armstrong to Italian doctor Michele Ferrari, a sought-after trainer of the time who was notorious for dealing in EPO.

UCI has only a few weeks to decide whether it will ratify the USADA’s decision. And the director of the Tour de France has declared that if UCI does ratify, there will be no replacement winner named for years 1999 through 2005; some speculate that that is because it now looks like everyone was doping, and no one deserves the win.

And then there are the team members who have not given up, who are challenging USADA’s report at an arbitration hearing . One of them is Armstrong’s former manager, Johan Bruyneel, and he has good reason. The report pegged him as the focal point of the doping programs in Armstrong’s teams through 2010. I am very curious to see how he fares; if he wins that would certainly add a whole new level to this ordeal.

As it stands, I think that Armstrong doped, and I think he probably went to great lengths to cover it up. Even though he may have had sound reasons for declining to challenge the USADA report, it strikes me as a suspicious — and Un-American — to cop-out. He is certainly not without resources and, to me, it seems like has a lot to lose. He is a legend largely because of his wins. Why would he give them up without a fight?

Update: In the wake of the USADA report, Armstrong stepped down as chairman of the Lance Armstrong Foundation (LIVESTRONG), and Nike terminated its contract with armstrong. It is a sad day in history.

Occupy Wall Street — ONE YEAR LATER

(Credit: Reuters/Brendan McDermid)

Monday was the one-year anniversary of the Occupy Wall Street movement. A few hundred Occupiers celebrated by roaming lower Manhattan, clogging intersections, and chanting loudly about the ills of Wall Street. The day’s events were a far cry from last year’s Occupy protests, when thousands gathered. (Notably, the NYPD showed little sympathy for the waning movement; over 100 Occupiers were arrested by Monday afternoon, mostly on disorderly conduct charges.)

Jeff Reeves, a financial industry guy and editor of Investor Place, recently proclaimed the death of the Occupy movement. And he mourned its passing because, in his opinion, “the cause of banking reform and regulation has never been more relevant.”

But I don’t think Mr. Reeves needs to worry too much. The Occupy movement may be down, but it’s certainly not out (at least not yet). Allow me to recap some of its more momentous moments in the past several months.

In May, Occupiers staged a brief sit-in at the New York State Attorney General’s Manhattan office, complaining about a lack of transparency and progress in federal investigations of “Wall Street criminals.” The protesters claimed that they were trying to propel the efforts of the NYS Attorney General, who is a co-chair of President Obama’s Residential Mortgage-Backed Securities Working Group, and assure that his investigation into irresponsible conduct was as strong and thorough as necessary.

Later that month, Occupy Wall Street sued NYC Mayor Michael Bloomberg and the NYPD for seizing about 3,000 books from its “People’s Library” during the surprise clearing of Zuccotti Park last fall. The federal lawsuit seeks damages of $47,000 to replace the books, library furnishings, computers, and electronic equipment; it also seeks to vindicate the plaintiffs’ rights under the First, Fourth, and Fourteenth amendments.

In July, two NYC law schools (Fordham and NYU) issued a report entitled Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street. The report details 130 alleged incidents of excessive force by the NYPD, as well as additional unjustified arrests, abuse of journalists, and unlawful closure of parks to protestors. According to Katherine Glenn, an adjunct professor at Fordham Law and a lead author of the report, NYC’s response to the Occupy movement “actually violates international law and, as such, sets a bad example to the rest of the world.” She hopes that the City will heed the advice contained within the report, and set things right “through reforms that reflect just and accountable policing practices.”

In addition to scrutiny of the NYPD and the City’s policies with respect to protesters, the Occupy arrests have also entangled Twitter in a bit of a legal quandary.

Back in April, a Manhattan Criminal Court Judge (M. Sciarrino Jr.) denied an arrested occupier’s attempt to quash a subpoena that the D.A. sent to Twitter for tweets the Occupier allegedly sent as he and others marched over the Brooklyn Bridge last fall (that particular march resulted in more than 700 arrests).

“The widely believed (though mistaken) notion that any disclosure of a user’s information would first be requested from the user and require approval by the user is understandable, but wrong,” the judge wrote, at the time, in People v. Harris, 2011NY080152. He ordered an in camera inspection of the tweets before distribution to the prosecution and defense.

At first, Twitter was reluctant to turn over the Occupy protester’s documents. But this month, just in time for the Occupy anniversary, Twitter did turn over his tweets and subscriber information, under the threat of a stiff contempt fine. The Criminal Court judge promised, however, not to review the tweets until another judge, hearing additional arguments from Twitter, rules on a stay of the order to produce them.

The case is being watched because of its implications for the new frontiers with respect to law enforcement’s access to social media postings. Although Twitter gave up the Occupier’s tweets for now, it is going forward with its fight; Twitter claims that its users have the right to oppose production of their information and content to law enforcement by virtue of its terms of service, federal law, and constitutional protections. It maintains that the Occupier’s tweets, though publicly posted, are nonetheless protected by the Fourth Amendment.

Prosecutors have argued, amongst other things, that neither the subpoena nor the judge’s order to turn over the tweets violates the Fourth Amendment because the Occupier can’t have a reasonable expectation of privacy to information he publicly and intentionally broadcast to the world.

Oh, and although I am not sure it made the news, I myself witnessed a marching Occupy Staten Island event. The short procession — 20 people at most, I’d say – carried a drum, a flag, and (I think) a pirate hat. They were getting on the Staten Island Ferry as I was deboarding. So consider, Mr. Reeves.