Marshall H. Tanick
BridgeTower Media Newswires
“Catch your dreams before they slip away,
Dying all the time.”
— The Rolling Stones,
“Ruby Tuesday” (1967)
The Rolling Stones have made their mark in shaping litigation.
The Stones’ lyrics have been cited on numerous occasions by courts in rendering a wide variety of rulings. While not quite as often as Bob Dylan or the Beatles, referenced quadruple and twice as often as the Stones, respectively, Mick and his mates round out the top half-dozen of musical performers referenced by court and law review articles, according to a scholar who keeps track of such momentous matters. A. Long, “The Uses and Misuses of Popular Musical Lyrics in Legal Writing,” 64 WASH. & Lee L. Rev. 831 (2007).
The Stones and other contemporary musicians have a large and growing footprint in jurisdictions ranging from the U.S. Supreme Court to lower tribunals.
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Mick matters
While citations to the Stones in case law and academic journals have been legion over the years, a pair of matters exemplifies how they have shaped the law.
A New York trial judge, known for his colorful contributions to case law, cited the Stones in Colonial Credit Corp. v. Beyers, 2015 N.Y. Slip Op. 50513 (Feb. 20, 2015) (unpublished). The judge, who has a penchant for quoting from movies and references to pop culture (such as the character SpongeBob SquarePants) in his rulings, imposed some small but stinging monetary sanctions on four law firms and debt collectors for unlawful collection practices by bringing multiple lawsuits against the debtor long after judgment had been obtained and docketed. He bemoaned that his fellow jurists confronting the pending lawsuits were “facing their ‘19th Nervous Breakdown,’” and to address the stress, they needed “Mother’s Little Helper” to alleviate the angst of the unnecessary litigation.
Not content to cite these two Stone’s tunes from 1966, the New York jurist noted that guitarist Keith Richards is married to a woman from Staten Island, not far from the courthouse where the calumny occurred. He then concluded with a flourish, offering the sardonic lamentation for the losers that “You can’t always get what you want, but, if you try sometimes, you find, you get what you need,” lyrics penned by Jagger himself in 1969 for the song “You Can’t Always Get What You Want.”
A decade ago, the Kansas Supreme Court used Jagger jargon in a convoluted workers’ compensation case in Hill v. Kansas Department of Labor, 210 P.3d 647 (Can. 2011). Decided on April Fool’s day, the ruling remanded to an administrative agency determination of whether to impose a fine on an employer for misclassifying employees as independent contractor to avoid workers’ compensation liability.
Responding to the employer’s contention that it was caught in a crossfire of an unclear and opaque statutory scheme, the court put its tongue in its judicial cheek, reciting the lyrics from Jagger’s “You Can’t Always Get What You Want” melody.
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Stone suits
While the Stones have had their share of involvement in legal disputes, both personally and professionally, the magazine that bears their name, The Rolling Stone, has attracted much more attention recently in the judicial system.
The publication averted a class action brought on behalf of more than 100 rock bands which claimed that their names and images were improperly used for commercial purposes in a magazine insert interspersed with advertising by a tobacco company in Stewart v. Rolling Stone, 181 Cal. App. 4th 664 (Cal. Ct. App. 2010). The magazine successfully asserted a First Amendment freedom-of-expression defense to the lawsuit. Despite the suffering of “some distress” by the musicians due to the juxtaposition, they had “not demonstrated … actual malice,” necessary to sue under California’s version of the anti-SLAPP law.
The magazine’s discredited story about an alleged but disproven gang rape at a University of Virginia fraternity house, Phi Kappa Psi, has yielded the first of what may be multiple lawsuits. Last month, an associate dean at the school, criticized for inaction in the aftermath of the incident, hit the magazine with an 80-page complaint, seeking nearly $8 million for defamation related torts. Eramo v. Rolling Stone, (Charlotte Circuit Court, VA. May 12, 2015). After the fraternity also announced this spring its intention to sue the namesake magazine for damaging its reputation, a pair of Minnesota connections to the case surfaced.
Two academics with sterling journalistic credentials in Minnesota have raised red flags against the fraternity’s planned litigation. Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law, warned that the organization could experience the “downside” of an extensive discovery of its social and recreational practices if it sues. Lucy Dalglish, a former Twin Cities newspaper reporter who became dean of the Philip Merrill College of Journalism at the University of Maryland, questioned whether the requisite “actual malice,” meaning knowing or false reckless disregard of the truth, under the New York Times standard can be proven. “Fraternity supports U-Va. Chapter,” Washington Post, April 7, 2015.
The outcome of these and other similar cases will not be known for some time as they slowly proceed through the litigation process like, well, a rolling stone.
Meanwhile, the indulgence, perhaps over-indulgence, by courts in relying upon Rolling Stones and other rockers evokes a remark attributable to Mick Jagger: “Anything worth doing is worth overdoing.”
As for this analysis, two other Jagger lines may be appropriate. For detractors, he’s “telling me more and more … useless information” from the signature “Satisfaction” song. For the less jaded, Jagger has said: “A good thing never ends,” a paraphrase of a remark from pianist Liberace. Going well beyond mere satisfaction, he famously observed: “Too much of a good thing is wonderful.”
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