Publisher's Notebook

Federal law prohibits making threats to injure someone else.

The statute, 18 U.S.C. § 875(c), has been on the books since the 1930s, and it has been used to prosecute everything from extortion to stalking to basic promises to commit bodily harm.

Government prosecutors in Tennessee made some legal history when they scored a conviction under this statute against a guy who threatened a judge in a YouTube video. The case marked the first time YouTube provided the means to commit the crime.

The defendant, Franklin Delano Jeffries II, was embroiled in a tangled visitation fight. He wrote a song, “Daughter’s Love.”

But this tune wasn’t one of those “Butterfly Kisses”-like paeans to his kid. It wasn’t even a tune in which he was off in his truck and stopped to call from a pay phone to say, “I’m on my way, darling.”

No, it included tender lines such as, “Take my child and I’ll take your life” and “you don’t deserve to be a judge and you don’t deserve to live.”

Jeffries posted the video on YouTube, then sent messages about it to a number of his Facebook friends. He took it down 25 hours later. Too late. His ex-sister-in-law saw it and tipped the judge. The authorities also viewed the video and federal prosecutors went after Jeffries, gaining a conviction under § 875(c).

The 6th U.S. Circuit Court of Appeals affirmed this week in a unanimous panel opinion written by Judge Jeffrey S. Sutton.

Sutton worked through the defense arguments, which included discussion of whether the threat had to be objectively real to a reasonable person or subjectively real in the mind of the victim. And the First Amendment came into play as well.

But the Jeffries case was somewhat unusual. Sutton filed the affirmance, but he filed a second opinion – an “opinion dubitante.”

Wait a minute, you say. You’ve got concurrences and dissents. What is a dubitante?

It’s actually a third category that doesn’t get used very often. It’s a way for the judge to say, “I have some doubts and I’m not entirely happy with this result, but I’m not going to say it’s wrong. But I have some doubts.”

If you’ve never heard of it, you are not alone. A Marquette law prof, Jason Czarnezki, wrote a law review article a few years ago that said as of 2006, there only had been 626 dubitante opinions in American jurisprudence ever. The U.S. Supreme Court has used it 12 times.

What sent Sutton off to the dubitante ball in the Jeffries case?

He wondered if the 6th Circuit had been reading the law right. The statute doesn’t contain a definition of “threat,” which one might assume automatically requires some subjective sense of discomfort from the victim. But the conviction was in line with precedent.

Jonathan Harwell, Jeffries’ lawyer, told an Associated Press reporter that the dubitante opinion may be an invitation to ask the 6th Circuit should look at the case en banc; he is reviewing his options.

As for Jeffries, he is back in jail, Harwell said. He served 18 months for the YouTube video, then had his probation revoked. Presumably he has his guitar with him, but not his computer.

Some intern in New York will never live this one down.

Former NASA astronaut Neil Armstrong died over the weekend, but as noted at JimRomenesko.com, it wasn’t reported that way on the NBC News website:

Tom Tupa, one-time punter for the Washington Redskins, suffered a back injury in 2005 warming up before a preseason game at FedEx Field in Maryland.

Tupa’s career was over. He filed for workers’ compensation, a claim that the Redskins and their insurance company fought vigorously.

The case made its way through the courts. The team and the carrier argued that Tupa’s injury – falling down awkwardly before a game – was not an “accidental injury.” The Maryland Court of Appeals called the legal equivalent of a penalty on that one: Their position was “conspicuously wrong,” the court said.

Also, they said that Tupa had contracted away his right to comp in Maryland by agreeing to be bound by Virginia’s workers’ comp laws.

Also a loser. The court found that Maryland law expressly precludes that kind of waiver.

Tupa’s medical bills will be covered for the rest of his life. He now lives in Ohio, where he is a recreational director.

Read the full scoop

If you’ve got an iPad or an iPhone, or both, you’ll want to check out the Wall Street Journal’s list of tips and tricks every iOwner should know.

For example, you can take a screenshot by pressing two buttons together (the Home button and the on/off button).

Or if you’ve seen and never used the little “Reader” button that appears following the URL once you’ve pulled up a website, do so immediately. It makes reading a website much easier on a mobile device, especially your phone.

A hat tip to the WSJ’s Katie Boehret, who compiled the list. She also appears in a Journal video that provides visuals to some of the tips.

Remember that the new rules are the old rules when you’re blogging, tweeting or posting on Facebook.

Watch what you say about pending cases and your clients.

Don’t solicit business and don’t forget the rules on recommendations.

If you’re a lawyer and looking to use social media as part of your marketing repertoire, those are just a few of the things to keep in mind.

A project of the American Bar Association, the Commission on Ethics 20/20, has spent several years studying revisions to the ABA model ethics rules, with an eye on how technology comes into play.

Longtime legal journalist Bob Ambrogi has put together a list of “10 Tips to Keep Social Networking in Line With ABA Ethics” for the website Legal Technology News.

He covers the items above and offers in a quick primer on the ethics of social media, in light of the coming new rules.

Best to keep in mind his last tip: Use common sense.

The Capitol Bell Tower in Richmond sits nestled in the lower left corner of the Capitol Grounds in downtown Richmond. It has a rich history – it has been in the same location since 1824, and it has been used as a guard house and its bell tolled to warn of approaching Union forces toward the end of the Civil War. Currently it’s home to a very nice tourism office. Check out the Virginia State Capitol History Project for more info.

Probably most frequently in an old city with a lot of wooden dwellings, the tower served to guard against fires — the fire bell was tolled to call out the volunteers to douse any flames.

So last week, history served up a slice of irony. According to Richmond’s WTVR, the Fire Department got a call to head downtown.

Their destination? The old fire bell tower was on fire.

More exactly, some woodwork in place during restoration of the tower was smoldering. Firefighters wet everything down, and damage was minimal.

Image: A vintage post card available on Wikimedia, including strolling women with parasols. Current framing and restoration work not pictured…