New Jersey Supreme Court decides that if you can express yourself in New York or Pennsylvania, it’s fine to restrict your speech in New Jersey

January 20, 2012

Al Bundy is devastated

There’s plenty to like about New Jersey:  Jon Bon Jovi.  Bruce Springsteen.  The Wegman’s in Cherry Hill, Total Wine, Newark’s Mayor Cory Booker, and the fact that there are so many rest stops on the Turnpike that it makes the first half of my commute to Bar Harbor Maine much more bearable.

Today, however, something in New Jersey is not to be liked, and it’s worse than jug handles or paying the troll toll when crossing the Betsy Ross Bridge to get back into Philadelphia.  The New Jersey Supreme Court issued a decision holding that a borough can restrict free speech because an adult business could potentially be operated in a neighboring state.

This is the story of Boro of Sayreville v. 35 Club, LLC.  35 Club, LLC runs Club XXXV on Route 35 in Sayreville.  Club XXXV is what Al Bundy would call “the nudie bar.”  ‘You know, “where the girlies dance, in their underpants” or “where a buck is enough to see their stuff?”

As a nudie bar, the Supreme Court held that XXXV Club meets what the New Jersey Legislature defines as a “sexually oriented business.” A “sexually oriented business” is a:

 (1)  A commercial establishment which as one of its principal business purposes offers for sale, rental, or display any of the following:

Books, magazines, periodicals or other printed material, or photographs, films, motion pictures, video cassettes, slides or other visual representations which depict or describe a “specified sexual activity” or “specified anatomical area”; or still or motion picture machines, projectors or other image-producing devices which show images to one person per machine at any one time, and where the images so displayed are characterized by the depiction of a “specified sexual activity” or “specified anatomical area”; or instruments, devices, or paraphernalia which are designed for use in connection with a “specified sexual activity”; or

(2)  A commercial establishment which regularly features live performances characterized by the exposure of a “specified anatomical area” or by a “specified sexual activity,” or which regularly shows films, motion pictures, video cassettes, slides, or other photographic representations which depict or describe a “specified sexual activity” or “specified anatomical area.”

c. “Specified anatomical area” means:

(1)  Less than completely and opaquely covered human genitals, pubic region, buttock or female breasts below a point immediately above the top of the areola; or

(2)  Human male genitals in a discernibly turgid state, even if covered.

d.  “Specified sexual activity” means:

(1)  The fondling or other erotic touching of covered or uncovered human genitals, pubic region, buttock or female breast; or

(2)  Any actual or simulated act of human masturbation, sexual intercourse or deviate sexual intercourse.


When Club XXXV opened up in 2007, the Borough of Sayreville filed a lawsuit asking the court to shut it down, because New Jersey law dictates that you can’t have a “sexual oriented business”:

within 1,000 feet of any existing sexually oriented business, or any church, synagogue, temple or other place of public worship, or any elementary or secondary school or any school bus stop, or any municipal or county playground or place of public resort and recreation, or any hospital or any child care center, or within 1,000 feet of any area zoned for residential use.

Club XXXV argued that application of this statute violated its legal right to engage in free speech under the First Amendment, a concept that applies to corporations who want to donate as much as they want to SuperPACs.

Under New Jersey Law, the court has to make a determination of whether there are “adequate alternative channels of communication [for the protected activity] within the relevant market area.”  In other words, if you can take your business somewhere else, the statute isn’t overly restrictive on your First Amendment rights.

To support its position that that Club XXXV had other alternatives, the Borough called Susan S. Gruel, P.P., who, according to the opinion, “is a licensed professional planner with twenty five years of experience and an adjunct professor at Rutgers University.”  Among other things, Gruel testified that the “relevant market area” also consisted of Staten Island in New York.

Club XXXV called licensed professional planner Jason Kasler, P.P., as its expert.  He testified that there were no other real alternatives for the Club XXXV.  His analysis did not include Staten Island, presumably because New York is, you know, in a different state.  Initially the trial court found in favor of the borough.

Without getting into details, the decision to include testimony about whether Staten Island, New York, could be considered part of the “relevant market area” was appealed through the court system for awhile.  Eventually the Supreme Court of New Jersey decided to determine the sole issue of whether Staten Island could be considered part of the “relevant market area.”

The Supreme Court held that “relevant market area” does include other states.

In other words, if you can’t do it in New Jersey, but you can do it in New York or Pennsylvania, it’s not an unreasonable restriction on free speech.  The court explained that:

Our citizens regularly cross into our neighboring states for employment opportunities and entertainment of other kinds, making an analysis that would preclude any consideration of sites in those states unnecessarily restrictive in light of the behavior of our modern mobile populace.

(Although I’m pretty sure it’s technically illegal for us Pennsylvanians to drive into New Jersey to get alcohol.)

Justice Albin wrote a powerful dissent, focusing on the First Amendment:

Today, this Court becomes the first in the nation to suggest that a state can geographically restrict constitutionally permissive expression within its borders, in part, by offering a neighboring state as an alternative forum. A sexually oriented gentlemen’s club, although a disfavored form of expression by many, is nonetheless protected by both the First Amendment of the United States Constitution and Article 1, Paragraph 6 of the New Jersey Constitution.

Justice Albin then framed the issue brilliantly:

At issue is whether New Jersey can tell one of its citizens that a sexually oriented business cannot be operated in a particular location in the State because — as part of this Court’s equation — a neighboring state will accommodate its expressive activities.

Is “go do your dirty bidding in another state” a valid reason to tell someone they don’t have protection under the First Amendment? Then he gets right to the point:

In my view, New Jersey cannot under the federal or state constitution restrict the location of sexually oriented expression without providing that expression a safe haven somewhere within this State’s borders. A sexually oriented business cannot be restricted based on the notion that such constitutionally protected expressive activity is permitted in a nearby state.

New Jersey’s citizens have a federal and state constitutional right to express themselves in their State…”

One has to agree with the learned Justice Albin on this point.

How is it fair to pass speech that isn’t well liked by all, but is protected under the Constitution, onto other states?  The point of the First Amendment is that there will always be some forms of speech that aren’t liked by the majority of people.  That’s why the government is forbidden from unreasonably restricting it.  This decisions essentially allows New Jersey to push unpopular speech into other states.  As Justice Albin said, New Jersey citizens should have a right to express themselves in their own state.

In addition, think about the slippery slope this decision potentially creates.  You can write books, watch movies, and do a lot of things in Pennsylvania and New York…

35 Club, LLC is represented by First Amendment Champion Gregory Vella from The Law Firm of Collins, Vella & Casello, L.L.C.  Thanks to Mr. Vella, the club has operated continuously since 2007 while he continues to fight for their First Amdendment rights.  I therefore forgive Mr. Vella for being a Giants fan under the circumstances.

You can watch Mr. Vella in action here at the oral argument.  You can find a copy of the decision here. Shut Down?

January 19, 2012 has been shut down by the Feds.

… but how is the Internet supposed to get its porn and latest episodes of It’s Always Sunny in Philadelphia and Breaking Bad?

Well, at least I know what to do if caught.

EDIT [20 Jan 2012,  10.40a]: Westlaw Insider has a nice look at the indictment and what it means. “The specific criminal charges in the indictment are two different counts of copyright infringement and three other related conspiracy charges: conspiracy to commit racketeering, to commit money laundering, and to commit copyright infringement.”

Note: I am not supporting internet piracy by any means. But the manner in which the feds simply pulled the plug and seized the assets of its alleged owners seems a bit dubious. Remember, it doesn’t necessarily follow that one supports an underlying alleged criminal enterprise simply because one supports due process rights. 

Social Media for Lawyers is Not (Entirely) a Waste

January 19, 2012

ImageEarlier this week, I read, with a certain degree of amusement, my colleague’s post on why Social Media for Lawyers is Kind of a Waste.

I want to relay a story of my own, as a small retort.

The year was 2010. I was about to graduate from a new TTT just a mile away from Jordan’s alma mater. Like many students in my class, my job prospects were dim. Luckily, I had taken notice of the distinct lack of response to the scores of resumes I’d sent out to any firm who was hiring, and realized that I might have to start preparing a plan B.

I’d spend the previous summer interning at a District Attorney’s office and reading Jay Foonberg’s How to Start and Build a Law Practice. And for my 3L year, I had applied and was lucky enough to be accepted into my school’s clinical with the Philadelphia Defenders Association, where training I was representing clients at preliminary hearings and municipal court trials. But now, just months before graduation, I realized there were things I didn’t know I didn’t know. At the recommendation of an article online, I joined ABA’s Solosez listserve.

Inundated with hundreds of messages a day (many curiously related to hamsters or various political rants), I found it difficult to keep up with it all. Luckily, though, one post caught my eye:

Hi. I am a young lawyer in Philadelphia thinking about opening up a new practice. I look forward to talking about running a practice and learning from you all.



Ahha! Here I was also a young soon-to-be lawyer in Philadelphia, and another young buck was right here thinking the same thing as me! In the same city! I had to learn more.

Dear Jordan:

I am a soon-to-be graduate of law school also in Phialdelphia. Where in the city are you?

Truly Yours,


To which I received a response:


I am in the Fishtown section of the city.


And I responded:

No shit! Me too! Let’s get a drink!

In the series of emails that followed, I found out that Jordan and I lived on the same street, two blocks from each other, we both enjoyed the same beers, and frequented the same bars.

Now, two years later, we’re beginning a new law venture together, thanks to “social media”.

So while I agree that a lawyer may not need an iPadvideos on the firm site, or an exciting twitter account to bring in business, social media can be a valuable tool to introduce yourself to people you might not otherwise have met.

Who knows what could happen as a result?

Share this post on Twitter. I welcome all comments and criticism – @FishtownLawyer.

I was going to write a post about SOPA / PIPA…

January 18, 2012

But Scott Greenfield did it first, and pretty much summarizes how I feel about the law:

Unlike others, I am not a believer that information demands to be free, in the sense of copyright being an archaic concept and infringement an entitlement.  I believe that people who create content are entitled both to own it, monetize it and prevent others from stealing it.  Yes, stealing it.  If someone else created it, then it’s not yours to do with as you please, no matter how much you want to or think you ought to be allowed to.  If you want content, create your own.

But believing in the virtue of protecting the creation of content does not, by any stretch of the imagination, mean that these shockingly overbearing laws are the means by which enforcement of content ownership should be protected.  The internet has created innumerable problems with enforcement of copyright, with servers far away delivering content to any computer for the asking.  It’s inadequate to ask nicely that people not steal.

Yet the answer to this problem isn’t to wield a hammer so large and powerful that it will undermine the internet, shut down upon demand and without recourse any website, no matter how large and significant or small and inconsequential.  Worse still, the hammer is placed in hands so untrustworthy, so self-serving and manipulative, that the potential for damage to digital society is beyond anything imaginable.

Not much I can add to that.

Like it or not, piracy is theft.  It’s a problem.  And people aren’t going to stop stealing stuff just because we asked them nicely.  And if you’re a young lawyer reading this, you might also consider that piracy could be construed as theft by deception.  (I’m not aware of any lawyers getting into disciplinary trouble for downloading content illegally, but it wouldn’t shock me if it happened, either.)

That said, the answer isn’t giving the government unlimited power to censor the internet.

Social Media for Lawyers is Kind of a Waste

January 16, 2012

This is not what makes lawyers good at what they do

The year was 2008. I had just graduated from a good law school (Temple) and finished a clerkship for a prestigious firm downtown. I had read online about how to get clients, and therefore, I knew everything there is to know about building a practice and how to be a lawyer. I was going to be a rainmaker!

Or so I thought.

I had just secured my first full time legal job working for a small firm in a Philly suburb. One of my bosses was a guy named “James”. James was not the warm and fuzzy type, but he was a good person. James was a man of few words, but he said what he meant. If James said he was going to file a motion, he would file a motion. If James said he was going to get a judge involved, he meant it. James often started his day at 7:30am and ended it well after 8:30pm. In that time, James managed to return all his phone calls and respond to emails.  James never spoke out of turn or faked what he didn’t know.  Because of that, James garnered a great deal of credibility with everyone.

James also had a busy practice with good clients. The practice of law had rewarded James for his effort and skill, as he now had many boats and vacation houses where he preferred to spend his time.

You wouldn’t know how good of a lawyer James was at first glance. James rarely wore a suit to the office or acted pompously. He never bragged about his abilities, either — he didn’t even have a website. Instead, James focused on lawyering.

At first glance, I thought James was a country bumpkin who should learn how it’s done by the big city lawyers. I had just graduated from a good law school and clerked for a prestigious downtown Philadelphia law firm. I was going to teach this guy how to generate clients and run a practice in the modern age, baby!

Yes, put differently, I was going to teach a lawyer with 20 years of experience, many jury trials, and a thriving law practice how to do his job.

How little did I know…

At some point, I approached James about ramping up his practice. We would need Twitter, Facebook, a website, a blog, and maybe a newsletter. Oh, and Apple products. Lots of Apple products. The more Apple products, the better. In fact, let’s just re-do the entire office in Apple.

“Sounds very… modern. I’m not interested,” James said.

What?! How could he not want to get “modern”? How can this guy expect to get clients without an iPad? Or at least an iPhone? How can we compete!? I just did a search on the internet, and only LOSERS aren’t harnessing the power of social media! Right?!

“I have enough business, thanks.”  Typical of James, to respond to something in with a few deliberate and thoughtful words.

James also had a point.  He had a lot of business, despite lacking an iPad. How did that happen? Was James just lucky?

A few years later, it dawned on me. It’s because James is an excellent lawyer. He focused his time and energy into becoming good at what he does, and other people recognized him for it. He didn’t focus his time on gadgets and toys.

James did a good job for his clients, who continued to come to him for legal advice and referred him work. Judges grew to respect his abilities, and knew that when he said something in court, it was true. Opposing counsel knew James was a man of his word, and that he should not be taken lightly. Clients knew their matter was being handled in the best way it could be.

That’s why people continue to come to James. Not because he has a flashy website, not because he has an iPad, not because they read his newsletter or blog.  Clients retain James because they know he’s good. It’s that simple.

Three years later, James finally has a website. Still no Twitter, no Facebook, and no iPad.

His practice continues to flourish.

I’m not surprised.

Jaaam (The Fresh Prince Remix)

January 15, 2012

This made my day.

Thanks to Sean McGettrick.

A Guide to Philly Cheesesteaks

January 15, 2012

As a Philadelphia resident, I’m often asked, “Which is the best cheesesteak? Pat’s or Geno’s?” My answer? Neither. Don’t get me wrong, Pat’s and Geno’s are a good situation after a Phillies game or when you want a steak at 4am. However, I think there are some better options.  In terms of Pat’s v. Geno’s, I think they both taste the same.

So, on that note, here are a few things about cheesesteaks and sandwiches from a Philadelphian that I think everyone should know…

1. Cheese wiz does not make a steak “Philly.” Cheese wiz is actually gross and it will make your steak gross. I don’t know where this “tradition” began, but it’s not tasty. Try getting your steak with provolone or cheddar. “Wiz wit” is the popular phrase people say at Pat’s and Geno’s, and it means “cheese wiz with onions.” I’m thinking provolone, with. That’s a good steak.

2. Pat’s and Geno’s are not the only option for cheesesteaks. They are just popular and open all night. A few places I like better are Tony Luke’s, John’s Roast Pork, Jim’s on South Street, Johnny’s Hots, and even Slack’s Hoagie Shack. Abbaye in Northern Liberties has a gourmet cheesesteak, and it’s awesome. Anthony’s Cafe on Girard Avenue has a surprisingly good steak. I’m sure I’m missing many good options, but my point is that Pat’s and Geno’s are not the only place to get a good steak in Philadelphia (though it’s hard to go wrong with any form of cheese, steak, and bread). If you come into town and want to try and an authentic Philly cheesesteak, we probably will not be going to Pat’s or Geno’s. My go to steak option is Tony Luke’s on Oregon Avenue; there’s parking and a sit down restaurant.

3. A Philly cheesesteak does not use ground meat. Instead, the meat is more like a Steak Umm. A Philly cheesesteak uses sliced meat. The signature of a Philly cheesesteak is sliced meat on high quality bread. The bread is the real key to the steak.  The best steak shops have the bread specially made, usually in South Philly.  

4. A Philly cheesesteak never has lettuce and tomato on it. Putting lettuce and tomato on a cheesesteak makes it a “cheesesteak hoagie*.” Which I’m sure is perfectly fine if you’re John Kerry, I guess. But it ain’t a Philly cheesesteak. You can, however, add things like broccoli raab, long hots, mushrooms, etc. to a Philly cheesesteak. Personally, I like mine with raab, mushroom, onion, and hots. (*A “hoagie” is what New Yorkers and other parts of the country blasphemously call a ‘hero’, ‘wedge’, or ‘submarine’.)

5. Cheesesteaks are not the only great Philadelphia sandwich. Philly is also known for its roast pork sandwiches. My favorite can be found right in my neighborhood at the Memphis Tap. Philadelphia also offers some great other meals like hots (my favorite are found at Johnny’s Hots), hoagies, and other delicious Amish cuisine found at Reading Terminal Market.  

So there you go, people.  Next time you’re in Philadelphia and want a good sandwich, consider expanding your horizon beyond Pat’s and Geno’s.  Whatever you do, do not put lettuce, tomato, or wiz on your steak.  Now go forth and eat!  

Holly Eats has a great writeup about all things food and Philly.  

Lawsuit filed against Eulogy, Khyber Pass, Paradigm Restaurant, Field House, and Lucy’s Hat Shop in connection with shooting of Villanova student

January 15, 2012

Gerald Ung (left), Eddie DiDonato, Jr. (right). Photo from Above the Law

Above the Law is reporting that a lawsuit has been filed against Eulogy Belgian Tavern, Khyber Pass Pub, Paradigm Restaurant & Bar, Field House Sports Bar, and Lucy’s Hat Shop in connection with the shooting of  Eddie DiDonato Jr., a former lacrosse player at Villanova and the son of a partner at Fox Rothschild.

The shooting was initially notable because the shooter, Gerald Ung, was a law student at Temple. This was perhaps the first reported incident of Temple on Villanova violence, other than the annual Mayor’s Cup (considering that both are my alma mater, I’m not sure where that leaves me.).  According to Above the Law, Mr. DiDonato was shot six times and now suffers from partial paralysis of his lower extremities.

Ung was criminally charged for the shooting. However, the jury found Mr. Ung acted in self defense and acquitted him.

The lawsuit against the bars alleges that Mr. Ung was visibility intoxicated, but the bars continued to serve him alcohol in violation of Pennsylvania’s Dram Shop Act. The suit further alleges that the bars did not have adequate training programs and operating procedures in place at the time of the shooting. Above the Law has archived the Complaint here

The suit was probably filed against the bars because Mr. Ung does not have enough money to compensate Mr. DiDonato for his injuries. Instead, Mr. DiDonato will pursue the bars, who will almost certainly have insurance policies or sufficient assets to compensate him.  

Mr. DiDonato is represented by Robert Mongeluzzi, a well known Philadelphia plaintiffs’ attorney with a reputation for winning large verdicts. (not to make his head swell).  

I’m not going to comment on the merits of the suit, but I will say that all of those bars are fine watering holes if you’re willing to brave Old City.  I prefer to stay in Fishtown or Northern Liberties.  

Update:  Max Kennerly wrote a very interesting and detailed piece about this incident.  

How I Dealt with My Barking Dog – A Case Study of the Philadelphia Dog Barking Law –

January 14, 2012

Fritz - Public Enemy No. 1.

I’ve been suspicious for some time that a number of our local journalists troll the forum for article ideas  – whether annexed sidewalks, internet cafe gambling, or local tire lots.

My suspicions were recently confirmed the other day when, out of the blue, I got a call from a Daily News journalist about this thread. Apparently, the City Howl has received a number of complaints from readers whose neighbors have dogs that never. Stop. Barking. When neighbors try to get these issues remedied, they often get passed around from 311, to the police, to the SPCA, to ACCT. They want relief and canine justice under law.

Believe it or not, Philadelphia does have an anti-barking law  – found at Philadelphia City Code §10-403(6):

Animal Sounds. No person shall cause or permit more than 5 expressions of sound from one or more animals (such as individual barks from one or more dogs) during a five minute period from any property audible at a distance greater than 50 feet from the property boundary. This shall not apply to zoos, veterinary hospitals or clinics, animal shelters, a circus or other licensed entertainment venue, or a facility used for educational or scientific purposes, such as schools and laboratories.

Apparently, the fine for violating this section begins at $100 for a first violation and goes up to $700 for a fourth or subsequent violation. Not chump change.

As the owner of a tiny, barky rescue mutt named Fritz, I became concerned that I might be held responsible for his actions. So I had a stern talking to with him where I explained that barking is clearly against the house rules.

He continues to refuse to listen. I don’t want to be held responsible for his actions. So, looking at the language of the statute, I’ve figured a way out of liability – a lawyer letter to my dog.

So, Fritz, I now write this letter to you, that you understand the difficult circumstances you’ve put me in.

Dear Fritz:

This letter is a follow up to our conversation earlier this week, when I explained to you that barking is clearly against the House Rules (hereinafter referred to as “Rules”).

Despite my repeated corrections and newspaper-nose-whaps, you continue to violate the Rules regarding barking more than 5 times during any five minute period, where the aforesaid barks are audible at a distance greater than 50 feet. Please be advised that I neither permit nor cause you to bark in such a manner. Continued barks will be met with corrections and newspaper-nose-whaps until you comply with the Rules. Be considerate of your neighbors and use your inside voice.

Please note that I will not be held responsible for any fines or citations for your continued violations of Philadelphia City Code §10-403(6). I will be prepared to call Heidi, your sister, as a witness against you to prove that you had prior notice of your violations.

Unless I hear from you in writing to the contrary within ten (10) days of the date of this letter, I will assume that you agree to indemnify me from any such aforementioned fines or citations.

Please do not hesitate to contact me with any questions.

Very Truly Yours,

cc: Heidi the Dog.