Englander's legal argument appears to be in error
by Wesley Fager (c) 2003
CAVEAT: Wes Fager is not an attorney. Please read this notice.
The heart of Sembler's complaint as presented by Englander is this. Ray Bradbury has been stalking the Semblers for several years, he claims, but the Semblers had dismissed Bradbury's antics "as those coming from an individual who was obsessed but harmless." But now, he claims, in recent months Bradbury's actions have taken "a different dimension, becoming so dark and fringe as to outrage common sensibilities." What he is saying is that in the last few months Bradbury has stepped up stalking by placing two ads, one in the St. Petersburg Times, the other on eBay, advertising for sale a penis pump that once belonged to Ambassador Mel Sembler. Stalking? You thought stalking meant following someone around, menacing them. Englander argues that Florida civil statue 784.048(2) defines stalking as " 'to follow' or 'to harass' a person". Englander then concentrates on the "harass" definition of stalking arguing that the ads are a form of harassment and therefore constitute "stalking". He does this by citing Florida's legal definition of "harass" from Florida statue 784.048(1)(a): "conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose." So, seems to me, that Englander's job boiled down to convincing Judge Logan that (1) Bradbury had caused the Semblers substantial emotional distress and that (2) his ads "serve no legitimate purpose."
No doubt that what Ray Bradbury was doing has caused Mel and Betty Sembler distress. Mr. Englander tells the court from the Verified Complaint, from the Motion for an Injunction Without Notice and from affidavits submitted by Mel and Betty Sembler that what Ray Bradbury is doing causes distress to his clients. He states, "these efforts included letter writing, picketing our home, phone calling and stalking the Semblers, our children, our children's families and employees," and, of course, more recently, Englander tells the court that Bradbury has placed the ads. No one can doubt that all this has been stressful to the Semblers. But take Scott Peterson, the California man who is being held in jail for suspicion of murdering his pregnant wife Laci. One can not pick up a newspaper or listen to a TV news broadcast without hearing something about prime suspect Scott Peterson. Certainly each and everyone one of these thousands of articles is stressful on Scott Peterson. He has not even been tried yet, and ultimately he might be found innocent of all charges as he claims he is. So why doesn't he and some enterprising attorney sue all the papers and TV stations because they write and say things about a man who has not yet been convicted of a crime. Certainly the papers and live news reports are causing him great emotional distress? Why? Because he has been arrested--that is a fact. Because the evidence at this time points to him. Because overriding public interest and freedom of the press "serve a legitimate purpose," that's why. Don't you think the reporting of Watergate was stressful to President Nixon? Freedom of the press, freedom of speech, a civic responsibility to protect one's fellows from frauds and scams--these are legitimate purposes. Sometimes our politicians and other public figures do illegal or outrageous things. If we speak out about what they have done, yes it will cause them embarrassment and emotional pain, but there are often very legitimate reasons that one may want to disclose factual data about such personages. Thus while reporting the wrongdoing of people, including our public figures may be stressful to them, if there is a legitimate purpose for exposing these deeds then there is no harassment--at least under Florida law. And this is what has gotten Englander and Judge Logan into trouble in the Bradbury case.
While Englander goes to great length to show that Bradbury satisfies part 1 of the legal definition of harassment in Florida, he fails in part 2 of the definition: "serves no legitimate purpose." He pleads his case for part 2 in paragraph 23 of the Verified Complaint. Here is his argument:
In other words Lenny Englander told the court that what Mr. Bradbury is doing "serves no legitimate purpose" because it "serves no legitimate purpose!" That's it. Unless I'm missing something here in the legal sense, it would appear to me that Mr. Englander has not proved his point. Worse yet, Judge Logan accepted that apparent worthless and meaningless argument. Could the judge have been rushed through it and not caught it? Mr. Englander signed the motion for a temporary injunction on August 26. Judge Logan signed the order for the temporary injunction at 10:45 AM on August 26. That means that, assuming court starts at 9:00 AM, or so, Englander waited his turn to talk to Judge Logan like everybody else. Then when he finally did meet with the judge he gave him five documents: the unsigned order for an injunction (4 pages), the motion for the injunction (7 pages), a supporting affidavit by Melvin Sembler (4 pages), a supporting affidavit by Betty Sembler (4 pages), and the Verified Complaint (8 pages). And then Englander plead the case for his clients and told the judge why there was extraordinary circumstances and sufficient legal proof for cause that Bradbury should not be allowed to defend himself. At an absolute maximum Judge Logan may have had 1 hour and 45 minutes to review 29 pages of legal documents and hear verbal pleadings. But more realistically, he may have had just a few moments to read the documents and hear the pleading. The judge had denied Ray Bradbury the opportunity to defend himself because Lenny Englander had said Bradbury's actions "serve no legitimate purpose" because Bradbury's actions "serve no legitimate purpose!"
more need be said as far as the temporary injunction, if it is in error,
because Leonard Englander would not have proved his case. But Bradbury's
actions do, in fact, as absurd as it may seem, serve a legitimate purpose.
His letter writing, picketing, television appearances and the 1990 front
page article written on him in Creative Loafing led to investigations
by local TV stations which led to the closing of Straight. Ray Bradbury's
penis pump in and of itself serves no useful public interest except as
a drawing card to call attention to the story behind it. The ad for his
penis pump drew untold numbers of curiosity seekers whereupon they learned
of the horrors of Straight. Though Bradbury got no bids he did get eMails
like this one from "juicyfruitmambo" dated August 5, 2003, a
person he had never before met, who wrote to say: I just wanted to
tell you that, thanks to your "ad" I am now aware of Straight
Inc. and all its horrors. In paragraph 23 of the motion for a temporary
injunction without notice, Englander states that the injunction will not
be contrary to the public interest. But that simply is not true. The public
does have an interest in knowing the backgrounds of the public officials
who represent us. As of October 5, 2002 you will find these words on Melvin
Sembler's biographical web page for the US Embassy in Rome: Sembler
is also renowned for his activism in the anti-drug movement. In 1976,
Sembler and his wife Betty founded STRAIGHT, an adolescent drug treatment
program. During its 17 years of existence, STRAIGHT successfully graduated
more than 12,000 young people nationwide from its remarkable program.
] If Mel Sembler wants to crow about what he has done for America's youth,
then certainly Ray Bradbury and anyone else in the know should be allowed
to tell what Mel Sembler has really done for America's youth. And if they
use a bull horn, a billboard or a penis pump to draw listeners in, so
what, under the gravity of what Sembler's Straight program has done.
No one ever placed a bid on the item, but then no one will ever know how many thousands of people learned the story of the horrors of Straight from the ad, either. Already the pump is listed on a site that gives the most bizarre items ever advertised on eBay. And since the lawsuit ABC Action News in Tampa has done a segment on the story and says they will follow it through to its conclusion in court, and the Saint Petersburg Times did a front page story on the penis pump lawsuit. Significantly both news venues mentioned Straight with the Times stating that in July 1993 complaints about the Straight juvenile treatment program made by the man named Ray Bradbury led to an audit by state health authorities that found "a propensity for abuse or excessive force to be used" at Straight. Thanks to the publicity of the penis pump ad there are today numerous web page articles about Mel Sembler which relate to the horrors of his Straight program and these articles continue to grow. As Ray Bradbury told this writer before Judge Logan gagged him, "it's a shame it took a penis pump to bring to light the tragedy of the lot of Straight survivors". The fact is that the crimes of Straight are so heinous and the endorsement of Straight by very prominent Republicans so pandemic, that as the publicity of PumpGate grows there is the potential of it causing major damage to the George Bush presidency and to Jeb Bush's governorship. Watergate is a symbol or name stopper that will forever be linked to the attempts of a President to cover up a crime. PumpGate is not about Mel Sembler's former penis pump. It is a symbol that has already come to represent the attempts of a very powerful political figure to hide what he has done.