Weekend Updates with EB – May 4, 2024

TRANSCRIPT

Hey there, EB here. Hope everybody’s had a good week. Weather’s been really nice here in South Carolina, hope it’s been good where you are. You know, what is it? April showers bring May flowers. So I think we’re easing on into Memorial Day in the summer months that are really fun. 

So a lot has happened this week, not so much in our state, but around the country. We’re seeing something that I don’t think we’ve seen, really since the Vietnam War and I was five years old when these type of protests came about. And, and and these protests led to a change in American policy. You know, there was the draft in the 60s, there was a lot of 18 year old kids that were being asked to go fight in a foreign war for something that was idealistic, which is to prevent the spread of communism, and then Vietnam never attacked the United States. There wasn’t anything that really was an interest to protect our borders at that time. And so we had a lot of students at the time and professors who felt that under their right to free speech and the right of freedom of association that’s guaranteed from the First Amendment. I mean, that is the number one amendment that we have, which is the right of free speech. And the right of freedom of press, and we’ll talk about tomorrow is, you know, World Press day. And the freedom to have these ideas and express them publicly. So let’s talk about what that means. You know, in the 60s, it got violent. We had Kent State, where in Ohio, the protest got to the point where the National Guard came in, and there was some violent exchanges. And then students were shot. And I think that is what everybody is trying to prevent, and make sure it doesn’t happen. And it all this started basically, at NYU, and Columbia University. And, you know, we had a couple months ago with Harvard and Penn, and it really was Ivy League contained. But now it is almost an every university. Even in South Carolina, we had a little bit of protesting but no violent confrontations, you know, these are private school issues. And a private school, like any private business has the right to establish its own rules, unless they’re getting federal funding, or it’s a state university. They can enact rules that are specific to their university, whether those are because they’re in an urban area, or they’re it’s a rural area. There are rules about protesting, and we go back to the 20s. And there was the Brandenburg case, and the Brandenburg case tested the issue of First Amendment free speech, can you scream fire in a crowded theater? And the answer to that is no. You are entitled to your speech, even if it is hate speech. Even if the speech is offensive, even if it makes people feel small and fearful. What you cannot do, though, is in the course of your speech, create public safety and issues of the physical safety of people who are listening to that speech. So in a movie theater, by yelling fire, people will run the run to the exits. And usually there’s only an exit down by the screen and an exit in the front, one door, two doors and people are going to trample over each other. And so while there is the right of free speech, it can be limited. It’s not absolute. The right to freedom of association is a fundamental right, but again, it’s not absolute. And what we’re seeing is these protests have gone from migrating to look, we are against what Israel is doing in Gaza. We’re against of this wholesale killing of innocent civilians, and that is perfectly permissible, perfectly permissible to debate that it’s perfectly permissible to protest that we want our students to question authority. But what we don’t want is people who are not students, who are coming in as professional agitators and ginning up students to go way beyond what the original premise of the protest was. 

So you have to balance this idea of protesting with, is it going to jeopardize public safety? I mean, I have a friend whose daughter goes to UCLA, they canceled the graduation, the commencement speech they did at USC, you know, they paid a lot of money for their child to go to these schools. And this job was graduating with honors, and there is not going to be a commencement, that to me, means that we’re going too far. And so what we’re seeing is, yes, students have the right to protest. Yes, professors have the right to protest. But public safety has to be taken into consideration. And we’re gonna see how it all shakes out. We’re a society of freedom. And we want our courts to be able to enforce people’s rights to not have their First Amendment rights trampled on. So those are some issues that I think are going on. And, and we need to pay attention to that. This seems like we’re in a powder keg right now. 

So tomorrow is World Press Freedom Day. And so I am a strong advocate of the freedom of the press. I think the fourth estate as they call it, keeps us free. It keeps us to be able to question our government to make sure that they’re enacting laws or enforcing laws in a way that benefits us. And the press is the greatest disinfectant we have and the fact that our forefathers thought that that should be the First Amendment is very telling to us and what we’re seeing is with SLAPP lawsuits and Mandy went through this in our lawsuits by people or organizations to chill, a journalist or a newspaper or a media from publishing something today. There was a an essential SLAPP lawsuit that was threatened and that was Fox News was going to do a documentary, I guess, a four part expert say, on Hunter Biden. And so Fox News was going to do a thing about the Biden crime family on Hunter Biden, and his lawyers threatened Fox News. If you run that documentary, he will be sued. And Fox News decided not to run it now. Is that a slap situation? It is. But what really scares me is in situations of public safety, for instance, in Oh, hyoe When we had the train derailment with all the chlorine that came out in East Palestine in Ohio, there were threatening lawsuits by the municipality against some of the journalists about publishing things, when we start to have that threat. If you publish something, I’m going to sue you. It’s scary. You know, look at Mandy. She’s working at a small newspaper at the island pack. And she’s threatened with a lawsuit. You know, how much insurance do they have? And, you know, does she really want to be embroiled in a lawsuit? And it’ll chill the way you write, it definitely will. You know, I could have been chilled. My first amendment free speech rights, my my right to comment on the Murdaugh matter, I’ve had grievances filed against me for things that I’ve said publicly, they’ve tried to gag me. I was being chilled by Harpootlian and by the people who were involved in the Parker Convenience store. And then recent grievances on you know, for someone who tracked everything I said in COJ and what I’ve said on Twitter, and what I’ve said in front of the news, and, you know, it’s chilling and think of the cumulative effect, if you know, there’s people that are running for office that want to curtail what the press says, and they want to be able to curtail what is put up on TikTok. And, look, I don’t agree with a lot of the fake news stuff, or some of the inflammatory stuff. But that is free speech. And if it crosses the line to jeopardize somebody’s public safety, that’s a completely different thing, then the state has a right to intervene. 

So tomorrow, let’s think about the press and how important it is to us. Remember, when growing up, we had three channels, three, six and 10, in Philadelphia, and we had PBS on 12. And then we had three UHF channels. Now you guys are so young. I mean, you’ll never realize what I’m saying. But today, we have cable news. And we we get it from so many different sources, CNN, from Fox, from MSNBC, from CNBC, where we get news and and we become so educated on the issues. You know, when I was a kid, the only way you got your news was from 630, to seven from Walter Cronkite or Tom Brokaw or reading the newspaper. But now we’re fed podcasts and, and updates. I get these news updates all the time. So tomorrow, let’s just pause, be thankful that we have this ability to have people educate us on issues of public importance. And if the government decided to start regulating them or preventing them from doi  ng it, we would be starting to live in a police state. So sorry, I got on the soapbox. But it’s it’s really important that we protect the rights of young kids to be able to protest. Look, you know, have I seen a Ku Klux Klan rally? No. Have I seen white aryans march and protest? Yes, I have. Did I like it? I hated it. Did I go to watch it? Oh, I sure did. And I let them know how much I didn’t like it verbally. And I was a big guy, you know, smaller now. And if somebody would have came up to me, I probably would have gotten a fight with them. 

So we’re going to go into the law library, and we’re going to talk about a non compete agreement and how does that relate to conflict of interest? That was a question in one of our listeners asked, it does not, they are two totally different things. A conflict of interest is a legal term that a lawyer should never put himself or herself in conflict with the client, a lawyer owes 100% fidelity to the client can never put his or her interests over the client’s interests or anyone else’s interest. So you can have an actual conflict of interest or a possible future conflict of interest. So, I am in a case right now, where I represent a husband who has been charged criminally, and the wife got a hold of his phone. And there was some things that were erased off that phone. Now I owe my duties are to the husband, that is my client. And I could not advise the wife as to what her options were, you know, is that a situation where you could be an accessory after the fact for racing something off a phone, you know, we’ve talked about litigation hold where if you’re in litigation, you everything’s got to be paused, no erasing. And so I was in a potential conflict of interest. And so I advise the wife to go seek separate counsel on what her obligations are. Because my fidelity is owed only to the husband. And so a conflict of interest is, whoever I signed that retainer agreement with whoever I am representing, that’s who I represent. And I can’t put anybody else’s interest over. And I have had many, many legal malpractice cases with Ronnie where somebody decides to represent both a buyer and a seller in a transaction, and it presents a conflict of interest. And the lawyer is going to get in trouble pick a client and stay with it. What ends up happening is client a lawyers like to pick winners and losers. And if they start representing somebody, and it’s a losing situation and the money’s with somebody else, they’ll try to figure out a way to get to that person you can’t do. So that’s conflict of interest. 

A Covenant Not to Compete, is you make a contractual promise to somebody, whether it’s an employer, or if you’re an independent contractor, to somebody who contracts with you, that you will not compete with that entity that is paying you whether they’re paying you a W two salary as an employee, or they’re paying you 1099 Money, that you will not compete with their business, that is the dumbest thing in the world, the sign. Painters should never do that, you know, you go into a company, and you learn how to be a computer programmer. You don’t want to lose your livelihood, and then all of a sudden, you get fired. And these covenants Not to Compete say you can be terminated, but voluntarily and involuntarily, and you’re still bound by a Covenant Not to Compete, and you work for 12 years as a computer programmer. And now you can do that. Fortunately, on April 23, we talked about this on our show, the FTC said that it prohibits all non compete agreements for employees at all levels, with only limited exceptions. And one of the things I talked about is if you sell your business, that’s a different story. Because you’re getting a lot of money. You could be bound by a Covenant Not to Compete and this applies retroactively. And prospectively, so covenants not to compete, you should look at your if you have an employment agreement look to see if you have one. What is going to be interesting is if there’s a non solicitation agreement, as opposed to a non Covenant Not to compete. So let’s say you’re in the real estate injury industry, no, you won’t become covenant and out of being a realtor, but can you serve as certain customers? So I think a customer agreement will be valid if it’s limited to one or two major customers, but not 50. We want free enterprise. Bare Knuckle type of competition is good for our society. I do think though, that if it’s a trade secret situation like the coke formula, you’re not allowed to go from coke to Pepsi and give Pepsi the coke formula if you know it. So a trade secret is much much different than a Covenant Not to Compete. A trade secret is some kind of specific formula or information that is not available to the public. It’s it’s it’s nothing that you came to the company with. It’s something that you We’ve learned from the company and they treat it as it is confidential and proprietary. And they put a lot of walls around it. So it’s going to be interesting. But for all employees out there, it is a great ruling that there is no more Covenant Not to Compete. Now I’m sure those people that own companies are pretty upset, because they’re worried that somebody’s going to use their know how, and then open up. Right next door. You know, one of my favorite shows was Curb Your Enthusiasm. And Larry, Larry opened despite store spike coffee shop next to mocha Joe. Now, can you imagine if you have a steel fabricating business, and you come up with a way to cut things faster and do everything, and somebody then leaves you and opens up a steel business, the same fabrication business right next door, uses your know how, and is able to do it cheaper, more effectively, and take all your customers so it’s going to be a lot of litigation, I think over the coming years over this but all in all, it’s a good thing. So with that said, I’m sorry, it took so long to tell you all my things, but I think these are important times, certainly with the First Amendment rights of protest of speech and the press. 

So with that EB out.

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