Amos v. Andy
Needing a Halloween party costume in 1983, Louisiana district judge Timothy Ellender borrowed an orange jumpsuit and a pair of handcuffs from the local parish sheriff, and–accompanied by his wife, wearing a police officer’s uniform–went dressed as a prison inmate. It was supposed to be a bit of harmless self-deprecation, an apologetic Ellender has ever since insisted. And the Louisiana Supreme Court has now decided to take him at his word on that. “In choosing these costumes,” a 5-2 majority of the court determined last week, it was Ellender’s intent “to be humorous by implying that Mrs. Ellender, who was newly married to him and who was reportedly young and attractive, had her husband under her control.” Nothing in the nature of an “affront to the African-American community” was contemplated.
Get the joke?
Maybe this will help: Ellender’s Halloween costume also featured a fake afro–what his lawyer later called a “black clown wig,” designed to top off the otherwise typical uniform of your average “white convict.” Only for some reason this particular “white convict” had a really dark, shoe polish-like substance smeared all over his face. Here, again, the Louisiana Supreme Court’s December 13 ruling: “When Judge and Mrs. Ellender arrived at the party, their costumes did not generate the laughs they had expected. Judge Ellender remarked upon this, and Mr. Martin”–the judge’s brother-in-law and host, who just happened to be dressed as Buckwheat at the time–“offered the judge some black makeup to enhance his costume.” After all, as Ellender observed during testimony before the Louisiana Judiciary Commission in June of this year, “coloration” helps “accentuate the humorous nature” of a comic wardrobe. Blue would’ve worked fine, too.
Now you get the joke? Gosh, a racial caricature? That never occurred to him.
Oddly enough, the Louisiana Judiciary Commission wasn’t buying this explanation. Four months ago the commission charged Ellender with having trick-or-treated in “a racially stereotypical manner that perpetuated the notion of African-Americans as both inferior and as criminals.” Because Ellender had thus violated various canons of judicial conduct, raised questions about his ability to deal fairly with black defendants, and cast the Louisiana courts in an unflattering light, the commission recommended that the state supreme court suspend him from the bench for a year without pay.
Odder still, Louisiana’s top jurists last week: (1) adopted a radically different interpretation of Judge Ellender’s behavior, “accepting his statements” concerning the Halloween stunt’s innocent motives “as true”; and (2) basically went ahead with the suspension and salary-forfeiture punishment anyway. “We agree” that Ellender meant no harm, the Supreme Court’s majority acknowledged. Still, the justices are “greatly troubled” by the incident’s attendant bad publicity and think Ellender deserves the “discipline” of a minimum half-year ban from active duty. Moreover, the full, 12-month suspension may yet be imposed, the court warns Ellender, should he fail to “enroll in a course at one of the local universities which will allow him to gain insight into the attitude of other racial groups.” There are “several sociology departments” in the area whose offerings fit this bill, the majority opinion advises, “including but not limited to Nicholls State.”
Historical note: Nicholls State University is named for Francis R.T. Nicholls, white “redeemer” governor of Louisiana following Reconstruction, and later chief justice of the state supreme court whose notorious 1892 segregated-railcars ruling was eventually upheld in Plessy v. Ferguson.
Maybe that’s the joke?
Knockers v. Knockoffs
Also making legal news December 13: A federal court in Orlando struggles with the question whether certain employers might be entitled to a form of trademark protection for their employees’ really, really big breasts.
“The Court must begin its discussion” of this issue, writes U.S. District Judge Anne C. Conway, “with the Hooters Girl.” And the court must therefore immediately dive deep into the metaphysics of Hooterness, apparently. “As the Plaintiffs themselves have said,” Conway observes, “‘The Hooters Girls are Hooters. . . . In other words, without the Hooters Girl, there would be no Hooters.”
It’s simple, really: Hooters, the “sports bar” network, has sued WingHouse, a competing chain of establishments, for allegedly ripping off the distinctive look and feel–or “trade dress”–of the plaintiff franchise’s restaurants. It’s shameless, complains Hooters. WingHouse has copied the “rough-hewn rustic interior woodwork, including light colored wooden walls and floors.” WingHouse has copied the “table-top setup consisting of a wooden vertical paper towel spool, wood-weave platewear, and table tents.” WingHouse has even copied the “road signs displaying clever sayings.”
And oh, by the way, WingHouse has also hired waitresses of the top-heavy variety–a gambit that threatens to seriously encroach upon that part of the Hooters customer base whose loyalty can’t be secured by vertical paper towel spools alone. Hooters seeks relief from this plague of mammary clones.
But Judge Conway says no, not so fast. “The Court . . . concludes, as a matter of law, that the WingHouse Girl, with her black tank top and black running shorts, is not a ‘knockoff’ of the Hooters Girl,” who sports a “white tank top” and “orange nylon running shorts,” thank you very much. Besides which, who does the Hooters Girl think she is? Her “predominant function is to provide vicarious sexual recreation, to titillate, entice, and arouse male customers’ fantasies.” In short, she is “primarily functional” and “this essential functionality disqualifies the Hooters Girl from trade dress protection.”
Oh, oh. Cat fight.
Rabkin v. Scrapbook
An item in this space two weeks back has brought us an indignant letter from reader Rhoda Rabkin of Ithaca, New York, who finds it beyond belief that an “estimated 5,000 Canadians (plus Bob Dylan)” really did turn out “in below-freezing weather to jeer President Bush during his state visit to Ottawa” on November 30. Be those 5,000 Canadians as they may, the Bob Dylan Mrs. Rabkin knows and loves would never have joined their jeering. “More likely,” she suggests, “some careless writer has confused a great American songwriter with Dylan Penner, a Toronto-based organizer of the anti-Bush protests.”
Actually, The Scrapbook has never heard of this Dylan Penner fellow. What happened was that we read a pro-American Canadian blogger’s account of anti-Bush “hooligans” in Ottawa, among whom, said he, were “more New Yorkers than Canadians, and Bob Dylan.” Searching the web for confirmation of this Dylan spotting, we found–on the Canadian Broadcasting Corporation’s site–Ottawa reporter Paddy Moore’s hour-by-hour diary of that day’s protests. One entry reads as follows: “10:31 a.m.–Bob Dylan plays on [Parliament] Hill as Air Force One lands at Ottawa’s airport.”
In retrospect, Moore probably meant only to suggest that a Dylan recording was playing on the p.a. system, and that pro-American blogger–along with our own “careless writer”–misinterpreted him. If so, The Scrapbook humbly apologizes both to Mrs. Rabkin and Mr. Dylan for the mixed-up confusion.
Martin v. Reality
Speaking of mixed-up confusion and Canadians, there was the following nugget buried in the 21st paragraph of a Dec. 16 Washington Post story on the latest Pentagon antiballistic missile test:
Prime Minister Paul Martin said in television interviews Tuesday night that his country will participate in a U.S. missile defense system only if it does not have to contribute money, no missiles are based in Canada, and Canada has a say in how the system is run.
Martin, the Post observes, has thus “spelled out a strong Canadian position.”
