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James M Henderson Sr.

James Henderson’s Answers

208 total

  • Is there a statute of limitations for slander and defamation of character?

    This would be for the state of California. I have some family members who have ceaselessly spread lies about me over the years, hurting my relationship with other relatives.

    James’s Answer

    One year is the limitation on actions for defamation.

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  • Do I have a case for being punished for freedom of speech?

    Our child was kicked out of pre school because we spoke to other parents about our concern over the use of rubber tire mulch in the playground. Once the owner of the school found out that we started a petition to see if other parents were concern...

    James’s Answer

    You mention that the owner of the school terminated the relationship.

    If the school has an individual owner, it is likely that you are dealing with a private school

    If you are dealing with a private school, then you have not suffered the loss of a constitutionally protected right.

    That doesn't mean that there is nothing that can be done in these circumstances. It only means that the right to freedom of speech is a guarantee against interference with your speech by government actors.

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  • Illegal to write books in Illinois?

    I really don't understand. There is a law against writing disturbing fiction. It does not matter if you publish it or not. What if one was to write a book about a little bear that got lost? If no one dies in the story but someone finds the "being ...

    James’s Answer

    I'd like to see the law to which you are referring.

    There are laws against "disorderly conduct" and against "disturbing the peace."

    I am not familiar with any law that prohibits the production of disturbing written materials. Such a law would not square well with the principles of liberty of the press and freedom of speech embodied in the First Amendment, applicable to Illinois because of the Fourteenth Amendment. Nor would they square well with Illinois' own constitutional protections for freedom of speech and of the press.

    If you have reference to the law, post it for further consideration.

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  • How do I sue someone for slander?

    I wish to sue Gov. Chris Christie for slandering the good people of Colorado on their behalf, over his statements about the people who live here and the people who visit our beautiful state. Thank You.

    James’s Answer

    There is a criminal libel statute in Colorado. Perhaps one of your District Attorneys will consider charges?

    “(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.
    (2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.
    (3) Criminal libel is a class 6 felony.”
    Colo. Rev. Stat. § 18-13-105 (2005)

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  • Is it legal for people to openly discuss their religious views with you at work does this count as harassment

    A coworker recently converted to Christianity so now past week and a half he's been telling me how I'm going to burn in hell and how I'm a heathen telling me to convert to his religion and it's really disrupting my work I don't know how to properl...

    James’s Answer

    The best way to handle these matters in the first instance is to state that you do not wish to discuss such matters, and refuse to do so at work.

    If that does not end the effort, and if you feel as though you are being harrassed, I agree that you should speak with an immediate supervisor, or, if the co-worker is your supervisor, with Human Resources, if your place of employment has an HR department.

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  • Based on gay marriage Supreme Court ruling. Is it legal to carry a firearm? 14th amendment

    The Supreme Court ruled that the laws can't apply to some but not all . Now apply this to 2a

    James’s Answer

    Frankly, we won't know for some time whether the Obergefell decision can be used effectively for that purpose.

    The idea is "on the radar."

    What would need to happen, of course, is the development of test cases and ensuing litigation and appeals.

    I'm including some links below to the general discussions of this implication of Obergefell.

    At the present time, I would NOT assume such to be the case. You may wish to contact the National Rifle Association (there link is below too), or the leading law firm working on 2nd Amendment issues, Gura and Possessky.

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  • Can I get sued for slander?

    Another person at work invited me over to his friends house to hangout and play video games. Soon as everyone arrived they began to pitch and try to sell me and my wife into "travel ventures international." Needless to say I was very irritated, an...

    James’s Answer

    Truth is an absolute defense.

    Yes, they can sue.

    If it is a pyramid scheme, you will prevail.

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  • Does a state or city ordinance against profanity violate the constitutional right to free speech?

    this also assumes it doesn't constitute disturbing the peace.

    James’s Answer

    An ordinance prohibiting profanity, based solely on the words spoken, would very likely be unconstitutional.

    I linked an article below from the Freedom Forum that notes a small number of exceptions where the First Amendment might not be offended by a rule that did not protect swearing. One example is the so called fighting words exception. Under fighting words, the first amendment protections normally applicable do not apply; imagine, for example, the consequence of not curbing some speech that is so offensive that a person's natural and immediate reaction is a violent assault. Again, that is an exception, and the linked article explains.

    I've also attached the leading case on the topic: Cohen v. California. Cohen was convicted on a disturbing the peace violation. To protest our involvement in Vietnam, he wore a jacket with the message, "f&@k the draft" on it, including in the courthouse. The Supreme Court explained:

    "It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be reversed."

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  • Is it illegal for a person to make a post on Face Book that a person is HIV positive, even if that person isn't HIV positive?

    A girl on Face Book posted that i was HIV positive, and I'm not. Everyone read the post and now the whole town will think I'm HIV positive. I screen shot her post and all the comments that were made, and i saved it to my flash drive for evidence. ...

    James’s Answer

    Louisiana was home to at least one leprosarium, or facility for the care of persons with leprosy. Leprosy is a "loathesome" disease. I mention that because, in the long view of judge made law, telling people that someone suffers from leprosy, if a false statement of fact, is considered "defamation per se." This means that, where a person filing a defamation law suit would normally have to prove that they have suffered damage as a result of the publication of a false fact, a person that has had another falsely allege that they have a "loathesome" disease did not have to prove that they were injured. In fact, in such cases, the court would instruct the jury that, if it found that the allegation was false, then they had to find that the person was injured as well.

    Both the falsity of the allegation, and the fact of harm or injury, are elements necessary to prove a defamation claim (along with publication). Per se cases are just a subset of all defamation cases, and include the "loathesome" disease allegation (along with allegations that a person committed a crime, that a person was immoral or unchaste, or that a person who is a licensed professional (law, medicine, dentistry, etc) is incompetent in their profession. So, in these "per se" cases, the possibility that a false allegation DOES NOT HARM the victim is considered so small, so unlikely, that the law simply concludes that by proving that the allegation was made and that it was false is sufficient.

    I do agree that such cases are going to be expensive to bring to conclusion. I think that 5000.00 is not unlikely to begin a case. But if you are thinking of bring such a case, prosecuting it from filing the claim to jury verdict and success on appeal, you would be talking about many many many times the 5000.00 is legal expenses.

    The cease and desist letter is a good start. A demand letter that conditions any consideration of releasing the perpetrator from the danger of a lawsuit on their issuing a retraction is also something to consider. I realize you may see this as incurable. But, having the post pulled down (which facebook should do) and having the maker of the statement state that they falsely claimed you had HIV would do a lot to cure the perception they've created of you in your community.

    I doubt that there are nonprofit organizations that would take on such a matter, but you might consider contacting your State's ACLU chapter, and organizations that litigate against discrimination on the basis of health status.

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  • Do these Supreme Court decisions protect me from being fired?

    Pickering v Board of Education (SCOTUS) created a "protected speech test" which states that speech relevant to the public interest and which does not unduly interfere with the operation of an employer is protected speech and cannot be used to fire...

    James’s Answer

    As the others answering here have suggested, more information would be required to properly answer your question.

    Are you an employee of a government agency?
    What were the nature of the comments?
    Where/when/what manner were the comments communicated in?

    All these would help to provide the necessary factual backdrop to apply Pickering and related cases.

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