Urine Isn't a "Noxious or Filthy Substance for Purposes of 1851 Massachusetts Vandalism Law"

In Commonwealth v. Narvaez, decided Tuesday by the Massachusetts high court, the defendant had allegedly deliberately "urinated on the floor both inside and outside of [his jail] cell":

Based on the location of the toilet in the cell, the officer stated that "it [was] apparent that [the defendant] purposely urinated through the cell bars on to the floor outside the cell." The urine had "seeped into the cracks between the floor tiles, potentially causing permanent damage to the sub floor beneath." Because urine, like other bodily fluids, can carry potentially dangerous bacteria and viruses, police hired a cleanup company specializing in cleaning hazardous fluids and spills to clean the defendant's cell.

He was prosecuted for vandalizing a building with a "noxious or filthy substance," which provides,

Whoever wilfully, intentionally and without right throws into, against or upon a … building … or puts or places therein or thereon oil of vitriol, coal tar or other noxious or filthy substance, with intent unlawfully to injure, deface or defile such … building … shall be punished by imprisonment in the [S]tate prison for not more than five years or in jail for not more than two and one half years or by a fine of not more than [$300].

But the court concluded urine didn't qualify:

The term "other noxious or filthy substance" is not defined in the statute. Therefore, we first consider the plain and ordinary meaning of the phrase. "Noxious" is defined as "[h]armful to [one's] health," or "injurious." The term "filthy" is defined as "[c]overed or smeared with filth" and "disgustingly dirty." The Commonwealth contends that where urine so obviously is "disgustingly dirty," our inquiry into the meaning of the term "other noxious or filthy substance" ought to end there. We disagree.

Ordinarily, we do not turn to extrinsic sources of legislative intent where a statute seemingly is clear and unambiguous on its face…. [But w]hat is "noxious," "filthy," "harmful to one's health," or "disgustingly dirty" is equivocal and extremely fact dependent, having no "fixed and rigid signification." It is a term that may have "different meanings dependent upon contemporary conditions, the connection in which it is used, and the result intended to be accomplished." Therefore, the term "other noxious or filthy substance" lends itself to ambiguity, an ambiguity that only is furthered by the oddity of the specific substances that precede the statutory term, oil of vitriol and coal tar.

Section 103 was enacted in 1851.. During this time, the temperance movement was sweeping the country in the decades preceding the Civil War. "The Temperance Movement in the United States was born out of growing public dismay over what was perceived to be alcohol's corrosive effect on societal morality." This moral movement "sought and eventually obtained a prohibition on the sale of alcohol." … This movement … was met with great resistance across the country. The resistance came in the form of riots and outrage. The antitemperance movement was comprised of agitators of violence, threatening to seek revenge on any who supported abstinence from the consumption of alcohol.

Massachusetts too fell victim to this violence, as those opposed to the temperance movement made their opposition well known, often in a "loud and boisterous" manner. In June 1847, four years before § 103 was enacted, four bottles of coal tar were thrown through the windows of two "prominent temperance men." The next night more coal tar was thrown through the windows of a local deacon, doing "great injury to the furniture … [and] paintings" located within the building. "The weapon of choice" so to speak, in carrying out these acts of violence and vandalism, often was coal tar or oil of vitriol. Both substances seemingly were popular not simply for the destruction that they caused in the building into which they were thrown, but also for their potential to injure those inside.

In light of this historical context, the Legislature was forced to take a significant measure to combat the antitemperance violence that began to grow in the decades preceding the Civil War, by enacting § 103 in 1851. To read this statute without such cause in mind would disregard "the mischief or imperfection to be remedied and the main object to be accomplished" by the statute, and would run afoul of the Legislature's intent.

But the historical analysis still does not, by itself, as the plain language of the statute does not, define what the Legislature intended the term "other noxious or filthy substance" to encompass. We must turn to our canons of statutory interpretation to determine the full meaning behind "other noxious or filthy substance," as intended by the Legislature.

One such canon, ejusdem generis, is Latin for "of the same kind or class." Under this doctrine, "[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." The doctrine is most appropriate where "a series of several terms is listed that concludes with the disputed language." Here, the statute lists two specific terms, oil of vitriol and coal tar, followed by more general language, "or other noxious or filthy substance," i.e., the disputed language. Thus, ejusdem generis applies.

In Commonwealth v. Escobar (Mass. 2018), this court used the doctrine of ejusdem generis to discern the Legislature's intent behind the term "anything of value" to determine whether a defendant committed identity fraud within the context of G. L. c. 266, § 37E (b) (§ 37E [b]). The defendant argued that evasion from criminal prosecution was not "anything of value" within the meaning of § 37E (b) and that, thus, the Commonwealth failed to establish an essential element of the charged offense. This court agreed because where the general term "anything of value" was preceded by the specific terms "money, credit, goods, [or] services," the term "anything of value" in § 37E (b) necessarily must have been intended to be limited only to "that which can be exchanged for a financial payment." The phrase "anything of value" necessarily was added "to encompass any other items that do not appear but are similar to those items that do appear."

Here, coal tar is "tar obtained by distillation of bituminous coal and [is] used [especially] as an industrial fuel, in making dyes, and in the topical treatment of skin disorders." Oil of vitriol is concentrated sulfuric acid. Both are listed on the Massachusetts Oil and Hazardous Material List. Urine is neither listed on the Massachusetts Oil and Hazardous Material List nor similar substantially in form to either of these two substances….

Applying the doctrine of ejusdem generis to § 103, the general term "should itself be controlled and defined by reference to the enumerated categories of [substances] which are recited just before it." Thus, we must construe the term "other noxious or filthy substance" to encompass only those substances substantially similar to the specifically listed items, coal tar and oil of vitriol, both of which were used as items to throw at buildings as part of the antitemperance violence in the decades leading up to the Civil War. {In coming to this conclusion, we note the particularly harsh penalty that accompanies a violation of § 103. The statute permits imprisonment for up to five years in State prison, making the crime a felony. Where violation of the statute constitutes a felony with a substantial potential prison sentence, we believe that our holding more closely effectuates the Legislature's intent behind the statute's enactment.}

Any other view "would … strip the more specific terms of any meaning whatsoever," and would rid them of their limiting effect. Construing the term "other noxious or filthy substance" to include urine "fails to give independent effect to the statute's enumeration of the specific categories of [substances] which precedes it." Put differently, there would have been no need for the Legislature to have used the terms oil of vitriol or coal tar if those terms simply were going to be "subsumed within the meaning" of the more general term "other noxious or filthy substance." …

Congratulations to Rachel T. Rose, who represented defendant. Thanks to Ed Cutting for the pointer.

Comments

[John F. Carr]

It brings to mind the case from a few years ago of a man who spread feces over the wall of a courthouse bathroom and appealed his conviction to the First Circuit. Did he have proper notice that it was wrong to do that?

[Ridgeway]

Was that wrong? Should I not have done that?

[Seamus]

When the court notes that, "[b]ecause urine, like other bodily fluids, can carry potentially dangerous bacteria and viruses, police hired a cleanup company specializing in cleaning hazardous fluids and spills to clean the defendant's cell," isn't it conceding that urine is "[h]armful to [one's] health," or "injurious," and therefore "noxious" within the meaning of the act?

[David Nieporent]

isn’t it conceding that urine is “[h]armful to [one’s] health,” or “injurious,” and therefore “noxious” within the meaning of the act?

No. Setting aside that I think that sentence is most naturally read not as a court finding but rather a recitation of the police's description of events, you completely missed the point: urine could indeed fit a literal definition of the words "other noxious or filthy substance," but that's not the best way to interpret those words.

[Seamus]

No, I didn't miss the point; I just found laughably unpersuasive the arguments used by the court used to support its hyper-narrow application of the principle of ejusdem generis (under which, because anti-temperance activists didn't typically throw bags of dogshit (or human shit, for that matter) through the windows of their opponents, dogshit wouldn't qualify as a noxious or filthy substance within the meaning of the act).

[Dr. Ed 2]

Back then it would have been horse manure, of which there usually was an ample supply in the streets.

But, no matter how disgusting, manure is not going to explode into flames if it finds a source of ignition (numerous in the Boston home of the 1850s) nor is it going to both blind your wife and take the side of her face off if it hits her -- which sulfuric acid WILL do.

[Dr. Ed 2]

Remember that there are laws against breaking other people's windows -- they just aren't felonies.

[Brett Bellmore]

Well, urine, by itself, is not particularly noxious. I don't believe I've gone a day in my life without urine in direct contact with some of my internal organs, it can't be all THAT noxious or injurious.

And, in fact, absent a urinary tract infection, urine is actually one of the very few genuinely sterile substances you'll encounter in daily life. Worth remembering if you're ever stuck in the wilderness and have a desperate need to flush out a wound.

So, while it's true that it could be contaminated with bacteria, so could spilled milk, and probably more likely.

[Bob from Ohio]

"urine, by itself, is not particularly noxious"

Go in your living room, pee on the couch, I think your wife would find it pretty "noxious"

"urine is actually one of the very few genuinely sterile substances you’ll encounter in daily life"

Myth.

"Is Urine Sterile? Fact vs. Fiction
If drinking urine was your survivalist backup plan, we’ve got some bad news. The rumor that your pee is sterile is, well, a rumor.
Scientists have found that urine in healthy individuals naturally contains bacteria, so urine isn’t quite as “clean” as myths have led us to believe." healthline [Medically reviewed by Deborah Weatherspoon, Ph.D., MSN — By Rachel Nall, MSN, CRNA on January 8, 2021]

[Brett Bellmore]

Why the hell would drinking urine be on anybody's survivalist backup plan?

[defaultdotxbe]

Gotta drink something.

[JJJSSS]

"Survivalist" was the wrong word there. It had been advice for people stuck in a place with no water, presumably to slow fluid loss

[John F. Carr]

Urine may be the least infectious bodily secretion or excretion.

[Bob from Ohio]

"Urine may be the least infectious bodily secretion or excretion."

Tears?

Urine has bacteria, its not harmless.

[Brett Bellmore]

Yogurt has bacteria, too.

[Intelligent Mr Toad]

But very slow-growing bacteria.

[Rossami]

re: "isn’t it conceding..."

Not even slightly. Assume that you and I have a personal disagreement in which I overreact outrageously. The court acknowledging what I did is in no way a concession that my reaction was reasonable or appropriate.

In this case, hiring a cleanup company specializing in hazardous fluids was a rather ridiculous overreaction given that they don't routinely employ the same company to clean their staff toilets, etc. Nor, I'm sure, did any of the officials who made that decision use extreme biocontainment protocols when changing, for example, their own children's diapers. Urine is simply not "hazardous" in any meaningful way.

[Brett Bellmore]

Bingo. Pissing on the floor isn't ideal, but urine ain't the Andromeda Strain, either. No sane person freaks out over urine this way.

[Dr. Ed 2]

“No sane person freaks out over urine this way.”

This was the Massachusetts State Police….

And -- ideally -- you have your lockup built with a code-complaint floor which includes "waterproof flooring." And you don't leave prisoners unattended for 4 1/2 hours without checking on them, particularly one known to be drunk, and possibly also on lord knows what else. (There are regs about that...)

[Dr. Ed 2]

"...therefore “noxious” within the meaning of the act?"

Look at the two substances mentioned in the statute -- coal tar and oil of vitriol. Coal tar is Creosote, which is also flammable and this was before electricity when homes were lit with gas lights and kerosene lamps -- open flames. Oil of vitrol is concentrated sulfuric acid, corrosive to human flesh and most everything else.

And they were throwing this stuff through people's living room windows...

[rloquitur]

The Romans used processed urine to brush their teeth and clean their clothes.

[Mr. Bumble]

...and if the Biden administration continues on its merry way we may be collecting it as a source of urea which is now required in diesel vehicle's pollution control systems.

[Jonathan Affleck]

I am in a similar dispute over an 1869 Massachusetts law.

1. Nature of Digital Literary Property Needs to Be Clarified (Question: 1)

When the District Court asserted Joachim did not present property for common carriage in the sense of M.G.L. c. 159 § 1, the District Court wiped out Joachim’s monetary claim by abuse of discretion and undermined legal protections for purchasers of digital merchandise. The wrongness of the District Court’s legal conclusion must be demonstrated.

Samuel Morse received letters patent (1,647) to the telegraph on June 6, 1840[11] before Alexander Graham Bell received letters patent (174,465) to the telephone on March 7, 1876.[12] Morse’s patent was later subject of O'Reilly et al. v. Morse et al., 56 U.S. 62 (1853), whose proceedings also concluded before Bell received his patent.[13]

Not only is it an unsound legal conclusion, but the District Court makes an argument that violates causality when it asserts the General Court of Massachusetts excluded denial of common carriage of digital personal literary property from penalty under M.G.L. c. 159 §§ 1 & 2 because voice was not “other property” in original intent of the legislators.

The District Court seems to believe these legislators prophesied Alexander Graham Bell would invent the telephone seven years later.

Controversies, which pertain to personal literary property (or common law copyright), go back at least to the time of Milton’s publication contract with Samuel Simmons for Paradise Lost in April 1667 and continue in Estate of Hemingway v. Random House, 53 Misc. 2d 462, 279 N.Y.S.2d 51 (N.Y. Sup. Ct. 1967); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218 (1985); and Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987).

In 1976, Congress amended the Copyright Act and almost entirely absorbed common law copyright into statutory copyright. See 17 U.S. Code § 301. Some space remains for common law copyright at least in California and Massachusetts as the following two case seem to indicate:
• Hemlock Hat Co. v. Diesel Power Gear, LLC, Case No.: 19-cv-02422-AJB-AHG (S.D. Cal. Nov. 25, 2020) and
• Lyons and Homecoming Farm, Inc. v. Gillette, Case No.: 11-12192-WGY (DC District of Massachusetts, Memorandum and Order, July 31, 2012.[14]

While statutory copyright provides in personam rights, common law copyright included at least in part in rem property rights[15] to personal literary property. Such rights were long-established at the time of ratification of the US Constitution and are protected by Amendment IX. Without a Constitutional amendment in rem property rights cannot be extinguished and remain relevant in the context of a social medium platform to:
1. the issue of common carriage of unpublished digital personal literary property and
2. the issue of conveyance of unpublished digital personal literary property from one person to another or from one person to the public.[16]

Since the 1840s, a plaintiff prevailed over a telegraph (a message common carrier of digital personal literary property) for:
1. denial of common carriage or
2. failure to deliver a writing or personal literary property
well before Massachusetts General Law, Chapter 159 §§ 1 & 2 were enacted in 1869.[17]

When the District Court uses a voice precedent like Am. Tel. & Tel. Co. v. IMR Cap. Corp., 888 F. Sup. 221 (D. Mass. 1995) to deny Joachim has a valid monetary claim against each social medium platform (App. 6-7), this assertion cannot represent a correct legal conclusion based on sound legal reasoning and precedents of federal and state telecommunications law.

When a writer uses a common carriage letter-transportation service to cause a letter to be received by the letter’s recipient, the writer conveys his personal literary property to the recipient. In the early 20th century Congress realized the medium (or substrate in patent law terminology) for personal literary property need not be paper, and a statute like 17 U.S. Code § 102 was modified to reflect new technology.

Joachim and the public have an Amendment IX right to non-discriminatory common carriage, which he wishes to use to convey and dedicate his unpublished digital personal literary property to the public. Not only does each defendant violate common carriage law, but each Defendant violates 42 U.S. Code § 1982. In so doing, each Defendant applies contractual Terms of Service differently and with unlawful discrimination to separate groups of users and violates 42 U.S. Code § 1981.[18]

NOTES

11. Samuel E. B. Morse, Improvement in the Mode of Communicating Information by Signals by Electro-Magnetism, US1647A (‘647), June 6, 1840. The telegraph is a digital transmission technology.
12. Alexander Graham Bell, Improvement in Telegraphy, US174465A (‘465), March 7, 1876. [“Telephone” became a common generally meaningful term after 1876.] While telegraphy is a digital transmission technology, the voice telephone network was purely analog until 1962. See Engineering and Technology History Wiki, “Digital Transmission” in Telephone Transmission.
13. No major Internet technology patent exists that is comparable to the ‘647 patent or to the ‘465 patent. This absence suggests technology has not changed significantly and mostly looks different.
14. The case discusses common law copyright infringement but leaves open issues (a) of in rem rights to personal literary property and (b) of the conveyance of ownership of unpublished personal literary property to another person or to the public.
15. In rem rights to personal literary property hardly differ from in rem rights to real estate. Constitutional amendment extinguished in rem property rights to a chattel slave.
16. § 230 states that a 1996 Interactive Computer Service (ICS) is not a publisher of third-party content. Unpublished literary property remains unpublished even after transport by either an ICS or a social medium platform. While a 2022 social medium platform fails to meet the definition of a 1996 ICS, the social medium platform is neither a broadcaster nor a publisher just as neither telegraph nor telex service is either publishing or broadcasting. A user sees on his display unpublished digital personal literary property, which he has by means of an explicit sequence of HTTP REQUESTs requested the social medium platform to provide to him by means of message common carriage. An Internet mail service like Google Gmail works similarly. A 2022 social medium platform has a frontend user interface differing slightly from the frontend of an Internet mail service because the former has a whizzier interface than the latter. The backend of one hardly differs at all from the backend of the other. If one telex service differed from another telex service only because one service had a niftier interface than the other, the two services would not be subject to different sets of laws. The FCC ruled in 1979 that Email was a common carriage service (see p. 35). The services of Gmail and a 2022 social medium platform hardly differ from USPS ECOM and must be considered common carriage services.
17. In the early days of telegraphy, some doubted that a telegraph provided common carriage because a telegraph service provided a true paper copy of a paper text, but eventually the law recognized that a telegraph provided message common carriage either of the message information of the original paper text or of the signals into which the original paper text was transformed at the originating telegraph office. It was possible to hold the same debate about voice transmission by telephone (voice telegraphy), but by 1876, few denied that original telegraphy or voice telegraphy constituted common carriage even if telephone voice common carriage does not carry a cognizable discrete message, which is literary property. Because of technological development, this debate is barely understood today. A good summary of early telegraph law can be found in T. W. D., “The Law of Telegraphs and Telegrams”, The American Law Register (1852-1891), Vol. 13, No. 4, New Series Volume 4 (Feb., 1865), pp. 193-212, republished by The University of Pennsylvania Law Review.
18. See the discussion of discriminatory application of TOS in Joachim’s Reply to Medium’s Appellee’s Brief, which can be found in PACER or via its QR code in Appendix E – QR Codes (App. 51).

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

IANAL and find that fascinating. Thanks.

[David Nieporent]

He is also not a lawyer, or a sane person; it's fascinating only in the ways that ignorant zealotry can be.

Pretty much everything he wrote was his own personal version of law, unconnected to anything any court has ever said.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Who? If you're referring to the author of that long comment, some examples would be useful.

[David Nieporent]

It's word soup. Many of the statements are incomprehensible due to his use of personal jargon; some of the statements are true in isolation, but have no connection to the statements around them; others are just completely false.

Deconstructing it is more trouble than it's worth, given that courts have already repeatedly laughed at each and every one of those arguments.

[Jonathan Affleck]

David, What do you know?

1. Do you understand the difference between a legal argument and a legal opinion?

2. Do you know what a law of nature is?

Not only did the District Court opinion violate stare decisus of common carriage law, but it violated laws of physics.

3. Have you learned what message common carriage is?

David thought I made up the phrase.

4. Did you find out what the 1956 Consent Decree is?

5. Do you know anything about common carriage?

6. Have you learned what bailment is?

7. Do you know anything about Internet technology, network technology, packet switching, message switching, or digital information transmission?

8. Do you understand ejusdem generis?

Personal literary property has forever been included in the class of property and merchandise that MGL c 159 s 1 lists. For at least 20 years before and ever since MGL c 159 s1 was enacted Massachusetts state courts have treated digital personal literary property as a type of personal literary property. The US Code caught up to Massachusetts around 1910.

[David Nieporent]

1. I suppose, though I have no idea in what idiosyncratic way you use those terms.
2. Sure, though I have no idea in what idiosyncratic way you use that term.
3. You did. (Anyone can verify that by googling it and seeing that Joachim here is the only one who has ever used it.)
4. Did I "find out"? No. Did I already know about the two different prominent consent decrees from 1956? Yes. Are either of them relevant to this discussion? No.
5. Yes.
6. Yes; they taught that in law school. (The thing you didn't go to.)
7. Yes. Do you think any of that is legally relevant? If so, you perhaps should've gone to law school and learned better.
8. Yes.

"Personal literary property" has not "forever been included" in anything, if for no other reason that this is yet another term you made up rather than an existent legal term. (One can infer what you mean by it from context, but that doesn't make it a thing.) Also, here's a free tip if you ever want to be a successful litigant (not on this topic; that's hopeless): if you're going to tell a court that there's a long line of cases supporting your position, you ought to cite them rather than just asserting that.

[Jonathan Affleck]

1. If David believes I use the terms differently from standard legal usage, David is confused. I was an internal pre-Breakup AT&T technology and common carriage expert -- informally I belonged to coterie of über-experts. AT&T sent me to take classes at four law schools, and I'm a patent agent. I doubt David qualifies to sit for the patent agent registration examination (patent bar exam).

2. I have degrees in physics. I can prosecute a deep science patent application, and I use the phrase "law of nature" as a physicist uses the phrase. I sometimes have to correct a court on its usage of the phrase "law of nature". Senator Tillis has told me that my input into fixing the problem with § 101-eligibility doctrine has been helpful.

[Jonathan Affleck]

3&4. In the 1956 AT&T Consent Decree in a section, which addresses telegraphy, the phrase "message common carrier" can be found. David did not read the Consent Decree.

Here's a search to try. One will find literally thousands of references to common carriage of messages, common carriers of messages, message common carriers, message common carriage and variants, which all discuss the same service or action, which includes a letter common carrier like USPS or FedEx.

https://tinyurl.com/QMessage

There is still a controversy over the common carriage status of SMS. SMS stands for Short Message Service. Most people don't understand issue. Short Message Service is a common law message common carriage service, but the FCC has vacillated on defining it to be a statutory telecommunications common carriage service, which the FCC regulates.

From a legal standpoint telegraph or telex message common carriage differs only insignificantly from the message common carriage service that a social medium platform provides. Yet the "lawyer" believes the 1956 AT&T Consent Decree is irrelevant to this discussion.

5. If the "lawyer" believes that a social medium platform does not provide message common carriage, he did not understand the law school classes on common carriage.

We have previously seen the problem that clouds the "mind" of the "lawyer".

From my petition to SCOTUS for a writ of certiorari, which is to be filed on Dec. 7, footnote 10.

The Wow! Factor influenced early telegraph decisions. “In two early cases, Parks v. Alta Cal. Tel. Co., 13 Cal. 422 (1859), and Mac Andrew v. The Electric Co., 17 C. B. (Eng.) 3 (1855), they were held to be common carriers; but in other early cases the courts, when they considered the nature and power of electricity, thought it so strange, wonderful and incomprehensible, that no ordinary human care or skill could possibly suffice to control it perfectly, and, deeming it therefore unjust to hold telegraph companies bound by the strict rules which govern common carriers, sought out reasons for making a distinction between these new carriers of thought and the old carriers of merchandise.” Benjamin F. Rex, “Liability of Telegraph Companies for Fraud, Accident, Delay and Mistakes in the Transmission and Delivery of Messages,” The American Law Register, May, 1884, Vol. 32, No. 5, New Series Volume 23 (May, 1884), p. 282, URI:. By 1869 the Wow! Factor had dissipated.

[Jonathan Affleck]

6. I attended 4 of the top law schools. I considered the material trivial in comparison to theoretical physics, but I will concede that I was focused on those areas of use to AT&T.

7. It depends on the legal area, with which one is dealing. STEM is intrinsic to Title 35 and Title 47. To which title does 47 U.S. Code § 230 belong? Even the "lawyer" might be able to guess.

An Explanatory Example from the Petition to SCOTUS for a Writ of Certiorari

The following question-and-answer may clarify the legal situation.

Question: Does a notice board accessible to passers-by – in the entrance of a supermarket for example – offer a common carriage service? If not, how does Twitter differ from a notice board beyond Twitter’s attachment to a network that offers public access?

Answer: The described public notice board is a material board to which a shopper affixes a material message. The material board provides neither message switching nor message common carriage. Twitter provides store-and-forward message switching as well as message common carriage among users. Twitter temporarily stores a message in a backend database system (bailment) while the message is on the way to an end-user by means of message common carriage.

Discussion: The question confuses frontend model (a pure concept or abstract idea ) with a material notice board. The frontend model makes it easier for an end user to interact with Twitter’s backend system.

In other words, Twitter’s service has no similarity to the material notice board. The question shows lack of comprehension of Internet technology.

Hosting is not speech of a social medium platform. Storing digital personal literary property in a backend server of the social medium platform hardly differs from temporary storage or bailment of a paper letter in a satchel at a USPS sorting location or at a FedEx office until the paper letter can be sent on its way to its destination by common carriage.

8. The "lawyer" does not understand ejusdem generis. The concept of literary property has been around since the 17th century and becomes the basis of common law copyright. I cite a number of authorities that deal with literary property. The latest authority came from 2020.

How does literary property become an issue in Martillo v. Twitter?

Let's apply ejusdem generis. Literary property was property and merchandise under the 1869 Massachusetts common carriage statute. From the 1840s through the 1860s and ever after, Mass. Courts put telegraph messages (digital literary property) in the category of literary property and considered a telegraph to be a digital message common carrier under the 1869 statute. By the doctrine of ejusdem generis, a tweet, post, comment, or reply carried by a social medium platform comes under the 1869 statute.

The "lawyer" does not understand the technology enough to apply the doctrine of ejusdem generis.

[Jonathan Affleck]

The latest proof for the petition to SCOTUS for a writ of certiorari can be found at the following URL.

I probably worked on such a petition before the "lawyer" was even born.

https://tinyurl.com/PBOOKLET

The law has not changed since the 1950s, but there have been some developments that the "lawyer" is incapable of understanding.

[dwb68]

So the REALLY intersting thing is the five year jail time as it relates to gun rights in 1851.

Did anyone convicted lose their gun rights? If so, permanently?

I bet not.

boom.

[Jonathan Affleck]

In 1851, the federal government could not limit the right of the people to keep and bear Arms, but a state government could.

[dwb68]

That doesn't answer the question. Most states had a version of the 2nd amendment in 1851.
The question is whether they saw a conflict with their own constitutional guarantee.

[Dr. Ed 2]

Mass Constitution, Article XVII.

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. "

[Jonathan Affleck]

Mass Constitution, Article XVII seems to provide much less than the general ban on infringement that the US Constitution Amendment II provides.

I looked around for an historical survey for Massachusetts gun control laws but found no such survey.

[Dr. Ed 2]

Actually.....

There is a backstory to this -- Boston was quite tumultuous in the decade before the Civil War, with a Know Nothing Governor (Gardner) being elected in 1854. It was a split between the Protestants and the Irish Catholics, and it got ugly. The temperance movement came out of the Protestant churches and it was closely allied with the Abolitionist movement. (Remember that Boston's Black population were also Protestants.)

The Irish (by then the largest ethnic group in Boston) liked to have boisterous alcohol-fueled events -- and the "Proper Bostonians" didn't. And as to slavery, not everyone in Boston favored ending it because the slave-picked cotton was fueling all the mills along all the rivers in Massachusetts, and that was people's jobs and livelyhoods.

My guess is that the WASP cops confiscated the guns.

[Jonathan Affleck]

Boston has the oldest municipal police department. This organization was established in 1854.

[Michael P]

Could urine be "noxious or filthy" if the defendant knows it carries a transmissible disease or if they throw a large container of it through a window? In either case, this would make it much more like the original behavior that the law was written to address.

[Dr. Ed 2]

"Both are listed on the Massachusetts Oil and Hazardous Material List. Urine is neither listed on the Massachusetts Oil and Hazardous Material List nor similar substantially in form to either of these two substances…."

For once, the SJC got it right....

[Rossami]

re: "knows it carries a transmissible disease"

Still not "noxious or filthy" as defined in the law above for all the reasons articulated in the judge's opinion. Possibly actionable under other laws, though.

re: "if they throw a large container of it through a window"

Under the terms of this law, volume alone still doesn't make it "noxious or filthy". But since urine is mostly water, a sufficiently large quantity (say a bucketful) could be actionable, again under different laws, for the property damage that it causes.

[Intelligent Mr Toad]

Actually, the bladder is pretty well immuno-policed, and urine itself is not hospitable to many forms of unicellular life (too much salt, usually). Until about a decade ago, the medical consensus was that unless you have a bad UTI, urine is usually sterile! Now we have learned that there are resident bacteria inside the bladder, but most of them are slow-growing and difficult to culture; we only know about them because of very sensitive technology for detecting small amounts of their DNA.

Doctors actually used to advise people: if you're going camping, and you suffer a severe cut or wound somehow, and don't have any sterile water or access to a fire for boiling water, get someone to pee on the wound.

[Intelligent Mr Toad]

(Maybe that's what Trump thought he was up to with the Russian prostitute...)

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Or maybe it tells more about what the Hillary disinformation crowd was up to when they invented it out of whole cloth.

[rloquitur]

"Intelligent [sic] Mr Toad"

[Dr. Ed 2]

The only reason you can’t drink your urine is that it contains things that your body needs to get rid of — mostly byproducts of protein consumption (e.g. urea) and excess salts. Reintroducing these chemicals that the body needs to get rid of would simply exacerbate the initial need to remove them.

Now as to drinking urine that has had these chemicals removed from it -- if you can get past the "yuck" factor -- that is being done and I believe commercially in parts of California....

[KenveeB]

So if the police put a defendant in a cell that's covered in urine and he complains he was put in a filthy cell, the court will tell him no dice, right?

[reasonableone1959]

Time for the legislature to come to the rescue and define "noxious or filthy" in 2022. There is nothing wrong with the Court's method of statutory construction - it is textbook law; "originalist" jurisprudence as opposed to "legislative." It is the statute that fell short for lack of updating.

[ReaderY]

It’s a reasonable application of the doctrine. If “noxious or filthy” had their usual meaning, then the language enumerating the examples would be surplussage, and all language in a statute must have some meaning. And it’s also reasonable to suspect that the legislature didn’t intend to make common annoying acts like urination, or pranks like shaving creaming people’s windows or throwing annoying but not clearly harmful things, to be considered a 5-year violent felony.

Particularly since in 1851 water closet toilets were a luxury for the rich, and getting rid of ones waste by throwing it out the window onto the street, the ubiquitous urban method since ancient times, was still common enough that it’s highly doubtful the legislature was intending to make it a felony.