No Stones unturned -- courts get satisfaction

Marshall H. Tanick, The Daily Record Newswire

You’ve got the sun, you’ve got the moon, and you’ve got the Rolling Stones
—Keith Richards

As the final tunes of the concert by the Rolling Stones wafted from the TCF Bank Stadium on the University of Minnesota campus and the venerable band moved on to other sites in its Zip Code Tour, the group continues to be the subject of judicial cites.

The appearance comes at a time when the 71-year old leader of the band, Mick Jagger, and his longtime travelers, Ron Wood, Charlie Watts and the inestimable Keith Richards, are making waves in jurisprudence in addition to the sound waves emanating from the stage.

The lyrics of the Stones have been cited on numerous occasions by courts in rendering a wide variety of rulings. While not quite in the league with Bob Dylan or the Beatles, referenced quadruple and twice as often as the Stones, respectively, Mick and his mates round out in 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.

Mick matters
While citations to the Stones in case law and academic journals have been legion over the years, a pair of cases exemplifies the practice. They reflect how Mick and his colleagues matter in some legal circles.

This winter, 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 v. Beyers, 2015 N.Y. Slip Op. 50513 (Feb. 20, 2015) (unpublished).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, like the character SpongeBob SquarePants, in his rulings, imposed some small but stinging monetary sanctions on four law firms, no less, 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 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.”

That phrase, incidentally, has a Minnesota nexus. An Excelsior drugstore owner claimed to have made the remark to Jagger when the aspiring rocker was unable to find an a item at the pharmacy during one of the group’s appearances at the Excelsior site in the early 1960s, which Jagger later included in the memorable melody. But an alternative version has a Stone’s fan making the response to Jagger about his inability to get a cherry Coke at the same pharmacy.

A few years 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.

Dylan decisions

While the Stones have yet to permeate the hallowed halls of the U.S. Supreme Court, a song with their name in it has, through a reference by no less rock ‘n’ roll authority than Chief Justice John Roberts. The chief spiced up a dissent in a rather low-profile collection case, like the New York lawsuit, brought by an assignee of pay phone companies in Sprint Communications v. APCC Services, Inc., 554 U.S. 269 (2008). Decided near the end of the tribunal’s term seven years ago, the case allowed the action to proceed, despite the
chief’s objection that the collection claimant lacked standing under Article III of the U.S. Constitution.

To embellish his point, Roberts referenced “Like a Rolling Stone,” the iconic song by Dylan, although the chief stumbled, perhaps intentionally, on the lyrics. Opining that the claimant did not have a sufficient stake in the outcome of the case to support standing, he remarked: “When you got nothing, you got nothing to lose” from Dylan’s breakthrough 1965 ditty. In fact, the wording in the song is “when you ain’t got nothing, you got nothing to lose.” But the chief may have cleaned up the grammar to avoid two plights: using a disfavored word, as well as averting an equally undesirable double-negative.

To bolster his credentials, the chief justice, now a real rock maven, this term pointedly referenced another musician, hip-hop artist Eminem, in oral argument at the beginning of December in a more volatile criminal case, Elonis v. United States, No. 13-983 (December 1, 2014). The case was a federal terrorism prosecution and conviction of a Pennsylvania man for posting remarks on the Internet imbued with threats of violence directed against his estranged wife, the FBI, and a school attended by his children, which the defendant claimed contained hyperbolic metaphors.

The chief questioned the prosecution here, whether under his theory of the case Eminem could be criminally charged for his lyrical rendition of a father, going through marital discord, urging his young daughter to “make a nice bed for mother at the bottom of the lake” in his song “97 Bonnie and Clyde.” His inquiry drew some gasps and giggles, and lots of Googling from the onlookers and outside observers.

Eschewing homage to the rap singer, the chief wrote the opinion for the court last week. It reversed the conviction on grounds that the ‘‘reasonable person” instruction given to the jury to gauge the threatening nature of the postings was improper and that conviction requires that the person charged with the terroristic offense actually be “aware of some wrongdoing,” a view that prompted a lone dissent from Justice Clarence Thomas, who regarded the postings as “true threats” subject to prosecution and conviction on an objective, rather than subjective, standard.

Dylan also pops up in another high court opinion, a concurrence by Justice Antonin Scalia in City of Ontario v. Quant, 560 U.S. 746 (2010), also decided in the waning days of a term. Noted for his operatic interest, rather than rock, he joined the majority decision upholding discipline of California police officers for misuse of personal purposes of employer-provided text messaging devices. But he decried, in Dylanesque terms, the majority’s refusal to address privacy-related concerns due to its reluctance to get in the way of the vector to our fast paced technological developments. “The times they are a-changin’,” he pointed out to his colleagues, citing the title of the lead song on Dylan’s 1964 album by the same name.

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 an insert in a magazine, 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 last fall 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). The fraternity also announced this spring its intention to sue the namesake magazine for damaging its reputation. Two academics with sterling journalistic credentials 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 newspaper reporter and now dean of the 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.

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.”

Musicians cited more frequently than the Stones
Bob Dylan
The Beatles
Bruce Springsteen
Simon & Garfunkel
Woody Guthrie
Marshall H. Tanick is an attorney with the Twin Cities law firm of Hellmuth & Johnson, PLLC.