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Wednesday, December 18, 2013

Partitioning and Rights: The U.S. Supreme Court’s Accidental Jurisprudence of Democratic Process

The title of this post comes from this article arguing that the Supreme Court's unwillingness to develop a jurisprudential theory of democracy has caused it to resolve new doctrinal questions with existing--but inadequate--tools, resulting in "an accidental, haphazard jurisprudence." Here's the abstract:

In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account – a theory – of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, this one was almost immediately occupied. But the Court filled its jurisprudential hole not primarily by invoking principles of democracy – even unstated ones – but by doing instead what reluctant decision makers often do: by reaching for whatever is handy. This reaction took two main forms. First, in the absence of a pertinent theory to guide it, the Court fell back on habit, specifically a habit, developed in its earliest cases, of solving problems of political power and representation by partitioning the electorate – that is, by ordering it subdivided. By resorting reflexively to this approach, the Court soon came to treat partitioning as the preferred solution to most problems of democratic representation. Second, the Court reached for the tools of decision that were most ready at hand, and those tools were individual rights, initially equal protection, then the freedoms of speech and association. But because these tools were ill-suited to the task, the Court ended up stretching First Amendment analysis in these cases beyond its plausible bounds and purposes. A well-ordered democratic state needs a thoughtful and deliberate jurisprudence of democracy and democratic practice. Instead, the Court has provided an accidental, haphazard jurisprudence of habit and availability.

December 18, 2013 in First Amendment | Permalink | Comments (0)

Saturday, December 14, 2013

CRL&P Daily Reads: Dec. 14, 2013

Wednesday, December 11, 2013

California law enforcement arrest operator of revenge porn site

San Diego police yesterday arrested the operator of a revenge porn site and charged him with "31 counts of conspiracy, identity theft, and extortion." According to The Los Angeles Times:

A 27-year-old San Diego man was arrested Tuesday on suspicion of operating a "revenge porn" website and demanding up to $350 to remove sexually explicit photos of women that were often posted by angry former boyfriends or ex-husbands.

 

Kevin Christopher Bollaert was arrested by California Department of Justice agents and is being held at San Diego County jail on $50,000 bail. He faces 31 felony counts of conspiracy, identity theft and extortion.

 

"Online predators that profit from the extortion of private photos will be investigated and prosecuted for this reprehensible and illegal internet activity," said Atty. Gen. Kamala D. Harris.

 

Bollaert allegedly created a website in December 2012 that allows the anonymous posting of nude and sexually explicit photos. The website required that the poster include the subject's name, location, age and Facebook profile.

 

Prosecutors said more than 10,000 images were posted, from California and other states.

As I have said, I believe that laws that subject to criminal liability people who send sexually explicit images of an ex-lover without their consent could be crafted so as to conform to the First Amendment.  This case, however, raises the more difficult question as to whether online publishers of revenge porn ought to be subject to prosecution.

In Bartnicki v. Vopper, the Supreme Court held that the publication of material illegally obtained by a third party is protected by the First Amendment. The Court said: "In this case, privacy concerns give way when balanced against the interest of publishing matters of public importance...We think it clear that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." 532 U.S. 514, 536 (2001). However, the Court emphasized that its ruling applied narrowly to matters of "public concern," and it is still unclear what qualifies as such. One would think that revenge porn wouldn't qualify...

Further, assuming that revenge porn is a matter of public concern, there is the question as to whether revenge porn could be considered to have been illegally obtained by a third party. Arguably, revenge porn generally is not obtained illegally; the third party presumably received the image (or took it himself) from its subject. 

In this case, the site operator charged the victims of revenge porn to have pictures of them removed from his site, which perhaps makes this case easier. But, suppose he took the pictures down willingly; and/or suppose he did not include the names or locations of the victims... 

These issues and others will continue to arise as more states criminalize revenge porn. Lawyers and legislators will have to draw lines differentiating the legal from the illegal, which will make these debates increasingly interesting for legal scholars--but painful for victims. 

CRL&P related posts:

December 11, 2013 in First Amendment, Freedom of Speech, Revenge Porn | Permalink | Comments (2)

Tuesday, December 10, 2013

The New Software Jurisprudence and the Faltering First Amendment

In his upcoming article, Professor Liam O'Melinn explores the First Amendment's applicability to computer code and finds that "the new software jurisprudence" is seriously jaundiced because of misunderstandings about the free software movement. The title of this post comes from his article, of which the abstract states:

Courts have recently begun to respond to the call to provide First Amendment protection for software, with ominous results. A debate has raged over the past several years over whether or not computer code should be considered “speech” and therefore be entitled to the full protection of the First Amendment. An examination of important decisions in recent cases attempting to settle this debate requires a revision of the basic assumption that the First Amendment will offer effective protection to programs, their authors, and their users. While there have been judicial decisions which lend credence to the view that the Constitution can be invoked to protect software, subsequent developments in this area, which I term “the new software jurisprudence,” cast severe doubt on the ability of the First Amendment to shield software effectively. These developments include the faults of previous strains of First Amendment analysis and then add more,with the ironic result that the First Amendment may now be used to justify the suppression of expression rather than to prohibit such suppression. 

 

This line of jurisprudence for software threatens a legal revolution premised on the belief that the specter of copyright infringement represents a perpetual emergency. At the same time, it is evident that this legal revolution will have to contend with a counter-revolution brought about by the free software movement. DeCSS represents only the tip of an iceberg which has thus far escaped real notice by the law, but the movement is becoming so important that it will force itself to be recognized. Indeed, it has already mounted a vigorous and to this point successful assault on the trade secret status of the technology which the movie industry has chosen to protect its content. A full investigation of the importance of this phenomenon lies well beyond the scope of this article; for the moment it must suffice to note that the character of open source software and the people who produce it will challenge the legal and economic assumptions at the heart of the law of intellectual property. Free software is not the product of pirates who steal from others and vend their wares in dark corners. Nor is it brought about by the incentives which, according to conventional thinking, are necessary conditions to creativity. The creation of free software, moreover, is an expressive activity which will leave its impress on the law. 

 

As time goes on, the free software programmers will require a revision of the now familiar role of equity in copyright law. The high quality of the software they create, coupled with its truly democratic rights of access, will provide the most telling challenge to the notion that only monopolistic economic incentives can lead to creative excellence. Finally, as their favorite mode of expression works a revolution not only in the way we communicate but in our very conception of property, they will effect fundamental changes in the way in which the law links expression and function . Unfortunately, it is not clear that the First Amendment will help them in their work. The courts have promised to develop legal and constitutional standards appropriate to the character of software, but in this effort they have largely failed. When they begin to focus less on the specter of piracy and more closely on the nature of software and the democratic access to information which it promotes, they will come closer to developing a novel and vital jurisprudence and to fulfilling their promise.

December 10, 2013 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 10, 2013

Allegedly illegal strip searches in Milwaukee jail could cost the city millions; man acquitted of drug charges files a civil rights suit against FBI alleging malicious prosecution; police face civil rights suit after officer pleads guilty to child porn; jail staff knew diabetic woman in their care needed insulin perhaps days before she died; Miami Gardens police allegedly used excessive force and denied medical treatment to arrestee; and, man was killed by a police officer who had accidently been tased by another officer.

Atlantic says Obama misled MSNBC's Chris Matthews on NSA surveillance; Guardian reflects on how the debate over surveillance has changed since Snowden's leaks; Nobel-winning writers say NSA surveillance is compromising freedom; Bill Clinton worries about the NSA's collection of economic data; and, NSA makes tech companies worry about profits.

Federal judge holds journalists have no constitutional right to be embedded with military; and, ACLU says prison officials violated the First Amendment by denying reporters access to prisoners after a riot.

Gun manufacturers doing better than before Newtown.

Same-sex couples race to challenge Texas's same-sex marriage ban; and, this graph shows geographical online efforts to promote gay-rights.

 

December 10, 2013 in Civil Rights Litigation, Excessive Force, First Amendment, Fourth Amendment, Freedom of Press, Freedom of Speech, Gun Policy, Prisons and Prisoners, Same-sex marriage, Strip Searches, Web/Tech | Permalink | Comments (0)

Monday, December 9, 2013

Pennsylvania lawmaker expected to introduce bill criminalizing revenge porn

Pennsylvania may be the next state to consider whether to enact legislation criminalizing revenge porn--generally, the non-consensual distribution of nude or sexually explicit photos or videos with the intent to cause emotional distress. State Sen. Judy Schwank (D) is expected to introduce a bill that would make revenge porn a second-degree misdemeanor:

"The nature of these acts is particularly personal and malignant, and the abuse can be devastating to victims, who nationally have lost jobs, had relationships with family and friends severely damaged and found themselves stalked by strangers," Democratic state Sen. Judy Schwank wrote in a memo to other senators seeking co-sponsors for her bill.

 

Currently, authorities can try to punish people through existing laws such as harassment, but Schwank said that isn't always easy and doesn't carry enough penalties.

 

"Even harassment charges apparently would apply only if there is a repeated course of conduct despite the reality that a single Internet posting can result today in an infinite number of viewings," Schwank wrote in her co-sponsorship memo.

 

She said her legislation would make posting such images a second-degree misdemeanor, which is a grade higher than harassment. If the victim is a minor, the penalty would be steeper, a third-degree felony.

Last week, Delegate-elect Marcus Simon introduced a revenge porn bill in the Virginia General Assembly, which the House of Delegates is expected to consider in January. Several other states are considering similar bills, but only California and New Jersey actually have passed such laws. 

With websites peddling revenge porn reportedly growing, these bills seek to provide protection to victims for whom remedies are usually inadequate.

Victims of revenge porn are typically women--like this teacher who was recently suspended from teaching after the school discovered a nude photo of her on a revenge porn site. However, this is not always the case. Recently, a male doctor was the victim of a vengeful ex-lover who retaliated by posting pictures he had sent her. According to The Cincinnati Enquirer:

He was a doctor having an affair with a married patient he was treating for depression.

 

He sent her lewd pictures and videos of himself. When their affair ended, she accused him of retaliating by getting her fired. She responded by posting online the explicit pictures and videos he’d sent her. Then, he asked a judge to force her to keep his pictures private.

 

The case, playing out before Hamilton County Common Pleas Court Judge Norbert Nadel, illustrates the new privacy battles being waged after bitter breakups and relationships forged in an increasingly online world. Similar cases have helped spawn a new catch phrase – “revenge porn” – and have caused legislators to change laws in some states.

 

“The reason for its increase is convenience,” said lawyer John Garon, director of the Northern Kentucky University Law + Informatics Institute. “The camera has become part of the bedroom.”

 

Amelia’s Dolly Beattie is suing Terrence McCoy. She accuses McCoy of taking advantage of his status as her doctor while having sex with her.

Opponents of such legislation typically are concerned that these laws chill protected speech. But, as CRL&P has argued, such forecasts seem improbable. Revenge porn is capable of such narrow defintition that carefully crafted legislation likely would not affect protected First Amendment speech.

CRL&P related posts:

December 9, 2013 in First Amendment, Freedom of Speech, Revenge Porn | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 9, 2013

Senate likely to extend ban on plastic guns, but nexus of gun-control debate has shifted to the states; and, four of five members of the city council in rural Rhode Island town face recalls after recommending changes to process for issuing concealed weapons permits.

Obama about ready to announce changes to NSA surveillance program; major tech companies submit open letter to Obama and Congress demanding new limits on NSA's freedom-harming surveillance; Snowden might testify before the EU Parliament's committee on civil liberties; local law enforcement is using software in NSA-style monitoring of cellphone data, and here's how it does it; and, Sen. Paul calls for a renewed commitment to the Fourth Amendment.

Rutger's basketball player alleges civil rights violations against former coach for allegedly repeated verbal and physical abuse; and, New Orleans settles civil rights lawsuit alleging man was falsely arrested and held for five months.

Editorial lambasts New Mexico prison for placing 71-year-old in solitary confinement for one month on suspicion of bringing meth into the facility.

Internet companies speak out against former Cincinatti Bengals cheerleader's defamation suit after federal judge allows it to proceed.

Lexington facing protests after booking for its New Years Eve party a DJ who previously ran a revenge porn site.

 

December 9, 2013 in Civil Rights Litigation, First Amendment, Fourth Amendment, Freedom of Speech, Gun Policy, Prisons and Prisoners, Revenge Porn, Universities and Colleges, Web/Tech | Permalink | Comments (0)

Saturday, December 7, 2013

CRL&P Daily Reads: Dec. 7, 2013

Thursday, December 5, 2013

School suspends teacher after receiving tip that her photo appeared on revenge porn site

A Cincinnati-area school has placed one of its teachers on administrative leave after receiving a tip that a nude photo of her had been posted on a revenge porn site, according to USA Today. Although the Female-victim-of-domestic-001school has not released the teacher's name, it did send email to staff and parents of its students explaining the situation. Thus, by simply deducing which faculty member has been absent, the school community could easily determine her identity.

Several states are considering whether to enact laws criminalizing revenge porn, but only California and New Jersey have actually passed such laws. Anti-revenge porn activists also will ask Congress to enact federal laws to protect victims of revenge porn.

Opponents have expressed concerns that such laws will chill protected First Amendment speech on the internet, while others worry that such laws  will reach "fine art." But, narrowly tailored legislation criminalizing only the nonconsensual posting of nude images likely would not have that affect.

CRL&P related posts:

December 5, 2013 in First Amendment, Freedom of Speech, Revenge Porn | Permalink | Comments (0)

Wednesday, December 4, 2013

CRL&P Daily Reads: Dec. 4, 2013

Tuesday, December 3, 2013

Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto

The title of this post comes from this article arguing that the Supreme Court's decisions constraining the erection of state-sponsored religious displays have served as a heckler's veto on liberties protected by the Establishment Clause of the First Amendment. Here's the abstract:

Although the First Amendment explicitly protects individuals only against laws made by “Congress,” the Supreme Court has long held that, under the Due Process Clause of the Fourteenth Amendment, the states are forbidden from “depriving” persons of the fundamental individual liberties protected by the First Amendment. Thus, under the so-called doctrine of incorporation, a particular provision of the First Amendment (as well as of the rest of the Bill of Rights) “is made applicable to the states [only] if the Justices are of the opinion that it was meant to protect a fundamental aspect of liberty.’”


Sadly, however, in the landmark decision of Everson v. Board of Education, rather than incorporating a fundamental individual liberty under the Establishment Clause, Justice Black and the Supreme Court instead incorporated an extra-constitutional metaphor with a very tainted historical pedigree. Sometimes the Court even applies the metaphorical “Wall of Separation Between Church and State” in ways that actually restrict, rather than protect, liberty.


Remarkably, in one class of cases the Court has gone so far as to interpret the Establishment Clause as requiring it to act as a judicial censor issuing heckler’s vetoes, judicial decrees which grant one group of citizens the power to deprive another group of citizens of an opportunity to view and enjoy a state-sponsored display or memorial in a public park or building.


The purpose of this article is to search for liberty under the incorporated Establishment Clause and to seek to discern when liberty is advanced and when it is restricted by Supreme Court decisions concerning passive displays and monuments erected by state government as part of a pluralistic public culture.

 

December 3, 2013 in First Amendment | Permalink | Comments (0)

Monday, December 2, 2013

CRL&P Daily Reads: Dec. 2, 2013

Sunday, December 1, 2013

Green, Constitution parties join LPO's suit challenging constitutionality of Ohio's new ballot-access law

Unsurprisingly, the Libertarian Party of Ohio's (LPO) disdain for Ohio's new ballot-access law is shared by the Ohio Green Party and the Ohio Constitution Party, both of which are attempting to join the LPO's suit challenging the constitutionality of the new law. As CRL&P has noted, the lawsuit alleges the law prevents minor parties from holding party primaries, and that it requires minor party candidates to obtain 28,000 signatures--and a minimum of 500 signatures from 8 of Ohio's 16 congressional districts--in order to appear on next year's ballot. Further, beginning in 2015, the law will increase that requirement to 56,000 signatures.

Republicans claim that the law simply responds to the void left after the U.S. Third Circuit Court of Appeals' 2006 decision in Libertarian Party of Ohio v. Blackwell in which the court invalidated the states prior ballot-access law. However, critics contend that the new restrictions are aimed at aiding  Gov. John Kasich's reelection campaign.

In a recent poll, Gov. Kasich leads Democratic challenger Ed Fizgerald 44 to 37 percent.

CRL&P related posts:

 

December 1, 2013 in Election Law, First Amendment, Freedom of Assembly | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 1. 2013

Saturday, November 30, 2013

Qualified Immunity and the First Amendment Right to Record Police

The title of this post comes from this article arguing that judges in First Amendment civil rights cases in which the plaintiff recorded public police activities should first determine the merits of the plaintif's claim. Only after the court has considered the merits should it proceed with defendants' claims to qualified immunity. Here's the abstract:

Recording-policeThis draft article explores Pearson v. Callahan, 129 S. Ct. 808 (2009), in the context of recent nationwide litigation over the First Amendment right to record police officers in public. Pearson v. Callahan gives judges considering a qualified immunity defense to a civil rights lawsuit the discretion to never reach the merits of the lawsuit, deciding only that the right is not “clearly established.” The Court’s opinion in Pearson uprooted Saucier v. Katz, 533 U.S. 194 (2001), which required courts to address the merits before deciding whether a defendant is entitled to qualified immunity.

The doctrinal shift from Saucier to Pearson coincides with an increase in civil rights litigation nationwide concerning the First Amendment right to record police officers in public. Two recent Circuit Court cases, Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) cert. denied, 133 S. Ct. 651 (U.S. 2012), and Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), have affirmed such a right. While the First and Seventh Circuits have laudably addressed the merits of whether the right exists, all other circuits to address the issue have decided only on immunity grounds, i.e. whether the right is “clearly established.” The focus on immunity has a chilling effect on free speech, in particular the role of citizens to oversee law enforcement officials. The article calls for a return to Saucier's merits-first adjudicatory model in First Amendment civil rights cases to avoid chilling such protected speech.

CRL&P related posts:

 

November 30, 2013 in 42 U.S.C. § 1983, Civil Rights Litigation, First Amendment | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 30, 2013

Three-judge panel reverses dismissal favoring City of Chicago in case alleging it responds more slowly to 911 calls made by Blacks and Hispanics.

WaPo explains how recent abortion decisions affected the Senate's debate over the filibuster.

Columbus Dispatch explores Ohio Bureau of Motor Vehicles panel criteria for reviewing vanity plates.

Voting rights activists claim Los Angeles County redistricting discriminates against Latinos; and, Cleveland Plain Dealer editorial board says pending voting bills restricting early voting and mandating ballot uniformity are voter suppression measures.

French parliament wants to impose new fines on solicitors of prostitution services.

 

November 30, 2013 in Abortion, Election Law, First Amendment, Freedom of Speech, Right to Vote | Permalink | Comments (0)

Thursday, November 28, 2013

CRL&P Thanksgiving Reads: Nov. 28, 2013

NSA has been monitoring the porn-watching habits of suspected radicals, which The Atlantic's Friedersdorf claims is bad for democracy; NSA soon will be split up; The Progressive discusses 'The NSA's New McCarthyism'; Ambinder has a cool NSA org chart; and, Nice, Canada. Real nice.

Cleveland Plain Dealer calls on Senate to oppose pending stand-your-ground bill; Iowa gun club will remain next to school; and, woman sentenced to 20-years in prison after firing a warning shot to deter her allegedly abusive husband released the night before Thanksgiving.

Congresswoman Fudge asks Holder to investigate Ohio's new voting laws; African-American youths pay higher 'time-tax' at the polls; and, Kentucky could be the next state to enact a voter ID law.

Federal judge decides NYPD must proceed with case of Occupy protester claiming an officer grabbed her breast.

 

November 28, 2013 in Civil Rights Litigation, Election Law, First Amendment, Fourth Amendment, Gun Policy, Right to Vote, Voter ID | Permalink | Comments (0)

Wednesday, November 27, 2013

CRL&P Daily Reads: Nov. 27, 2013

Revelations about the extent of the NSA's surveillance program could put international data-sharing agreements at risk; federal judge hears arguments regarding the release of DOJ documents on the legality of NSA's surveillance program; The Atlantic explores the inception of the NSA; and, Microsoft will change encryption to prevent NSA surveillance.

Texas National Guard will allow same-sex couples to apply for benefits immediately; gay teen banned from mall at which he allegedly was attacked; Kentucky couple fined one cent for remaining in county clerks office after closing time to protest same-sex marriage ban; and, judge okays terminally ill woman's request to marry her female partner before Illinois same-sex marriage law becomes effective.

Colorado Democrat resigns after gun-rights advocates successfully petition for her recall; and, Plain Dealer guest columnist argues that Ohio legislature should pass gun-safety laws to prevent children from accessing guns.

Voters claim Lousiana segregated African Americans into one racially-gerrymandering congressional district.

SCOTUS to hear arguments as to constitutionality of ACA's contraceptive rule; and, it will consider the First Amendment rights of Bush protesters alleging official's attempts to disperse them were not supported by valid security interests.

 

November 27, 2013 in Department of Justice, Election Law, First Amendment, Fourth Amendment, Freedom of Assembly, Freedom of Press, Freedom of Speech, Gun Policy, Same-sex marriage | Permalink | Comments (0)

Tuesday, November 26, 2013

Julian Assange unlikely to face U.S. charges over publishing classified documents

The title of this post comes from this Washington Post article reporting that WikiLeaks founder Julian Assange is unlikely to face criminal charges for releasing classified documents. The article begins:

The Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists, according to U.S. officials.

The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

Justice officials said they looked hard at Assange but realized that they have what they described as a “New York Times problem.” If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper, according to the officials, who spoke on the condition of anonymity to discuss internal deliberations.

 

November 26, 2013 in Department of Justice, First Amendment, Freedom of Press | Permalink | Comments (1)

Monday, November 25, 2013

The New Speech

The title of this post comes from this fascinating article inquiring into the potential for First Amendment challenges as technological developments produce new speech platforms. Here's the abstract:

Could the government prevent Facebook from deleting an individual’s Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Demand that some user information or data be deleted, withheld, made inalienable, non-transferable, ungatherable or uncollectable? Engage in detailed regulation of the intellectual property and privacy relationships that inhere between individual users and the platforms they engage?


6373_K0wXihVG_o-600x424Each of these questions implicates the First Amendment, and as each question reveals, the same stresses that strained the institution of property when Charles Reich wrote The New Property in 1964 confront digital speech in 2014. The most important “speech” of the next century will be generated, intermediated, transformed, and translated by massive computers controlled by powerful institutions: petitions in front of the shopping mall replaced with “Likes” on Facebook and “Votes” on Reddit; sports leagues replaced by leagues of Counter-Strike and Call of Duty; broadcast and cable news replaced by interactive, algorithmically-generated, computer-curated granularly distributed news memes spread via blogs and aggregators.

As more of the activities that were once exclusively the province of the physical world become the province of the digital, more of the issues that once confronted the distribution and allocation of rights in property will confront the distribution and allocation of rights in speech. While the great speech debates of the twentieth century were about the content of speech — that is, what one could say — the great speech debate of the twenty-first century will be about what counts as speech and whose speech counts. Will it be that of institutions and algorithms, or individuals and organic communities?

These are questions courts are already confronting and they are getting the answers wrong. In contrast to scholars who by turns either deemphasize the transformative nature of the New Speech or argue that courts will have little impact on its growth, this Article argues that potentially critical judicial missteps are already occurring. Just as the needs of modern industrial society were delayed and often stymied by the judiciary of the early twentieth century, if we fail to consider the implications of the speech decisions courts make now, the needs of the modern information society may be delayed and stymied by the judiciary of the early twenty-first.

This Article is an effort to explore the ways in which speech platforms represent a new challenge to the First Amendment, one that will require it to bend if we are to prevent the Lochnerization of the Freedom of Speech. It ties together various threads — the power of automation, the centrality and power of Internet media platforms, the doctrines developing in the courts, the actual acts of censorship in which these platforms regularly engage, and the core purposes the First Amendment was designed to serve — to make a sustained argument that we must think seriously about restructuring and dejudicializing the First Amendment if we are to avoid seeing the First Amendment transformed into a powerful shield for the very sorts of censorship it was written to prevent.

 

November 25, 2013 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

Saturday, November 23, 2013

CRL&P Daily Reads: Nov. 23, 2013

Friday, November 22, 2013

CRL&P Daily Reads: Nov. 22, 2013

Thursday, November 21, 2013

Remembering Tinker: The right to vote as expressive conduct

A CRL&P reader recently brought to my attention the Tinker Tour, an ongoing event by the Student Press Law Center to educate students about their First Amendment rights. The tour commemorates Unknown-2the 1969 Supreme Court decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, in which the court affirmed the First Amendment right of high school students to wear black armbands in protest of the Vietnam War.

On Tuesday, Mary Beth and John Tinker visited their former high school to speak to students. The Des Moines Register reports:

The Tinkers were among five Des Moines students suspended in December 1965 for wearing the black armbands.

The siblings received hate mail after their 1965 suspension. The window of the family car was shattered by a brick. Someone threatened to bomb their home. But with the help of American Civil Liberties Union attorney Dan Johnston, they continued to fight for their rights.

After attempts to repeal the decision were shot down by the local school board, the Tinkers, along with then-16-year-old Roosevelt High School student Christopher Eckhart, took their case to court.

The resulting 7-2 U.S. Supreme Court decision guaranteed that students today have the right to express their opinions without fear, said Mike Hiestand, an attorney with the Virginia-based Student Press Law Center, a sponsor of the Tinker Tour.

Tinker is particularly interesting for what the case says--or doesn't say--about what expressive conduct qualifies as speech under the First Amendment, which, of course, depends on context. Writing for the Court, Justice Fortas found "that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment"; the wearing of the bands "was closely akin to 'pure speech.'" Ibid. at 505. Specifically, the Court observed that the students wore the "black armbands...to exhibit opposition to this Nation's involvement in Vietnam" at a time when the justness of that involvement was being hotly debated. Ibid. at 510-11. ("They wore [the armbands] to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them." Ibid. at 514. ). "[W]e do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet," wrote Justice Fortas. Ibid. at 513.

CRL&P readers know that I believe that the right to vote ought to be protected First Amendment speech. The Tinker case is another example of protected expressive activity that does not materially differ from public voting.

Although voters today choose candidates on the basis of a complicated set of policy issues, this certainly was not the case in the American colonies and the early American Republic. In Voting in Provincial America, Robert J. Dinkin emphasizes "the major concerns of the state were confined to providing defense against external enemies and keeping internal order." As such, the task of voters "was to choose from among rival candidates the men he believed to be the best leaders[.]"

At that time, voting itself had persuasive value. As Richard R. Beeman describes in his book The Varieties of Political Experience in Eighteenth-Century America, viva voce voting commenced with the most prominent men voting first. As such, candidates hoping to win elections would court these men in hope that their support on Election Day would convince voters down the line to support them. George Washington learned this lesson the hard way, losing his first election badly. But, he changed his strategy, and several years later won a seat in the House of Burgesses. As Beeman wrote: "The strategy of marshaling a prominent display of support early in the election was, at least in this case, highly successful, as Washington raced to an early lead that only grew as the day wore on."

Public voting evinced voters' support for candidates and parties, and such practices continued until the end of the 19th century. The Court has granted First Amendment protection to similar expressive acts, as it did in Tinker. Now, the Court ought to extend such protection to the right to vote as well.

For more on the Tinker's story, see Kali Borkoski's commentary on SCOTUSblog.

CRL&P related posts:

 

November 21, 2013 in First Amendment, Freedom of Speech, Right to Vote, Schools | Permalink | Comments (1)

CRL&P Daily Reads: Nov. 21, 2013

Wednesday, November 20, 2013

Criminalizing revenge porn need not violate the First Amendment

Here's one woman's account of her experiences with revenge porn. Notably, her former boyfriend started an eBay auction with nude photos of her, and he linked the auction to several of her employer's Facebook pages. Because she was a professor, co-workers were not alone in viewing the images--several students saw them too.

A year and half later, the images appeared on a porn website.

 

Eventually, she was diagnosed with PTSD and her therapist recommended that she request medical leave. She did. But, her employer was not sympathetic.

The article begins:

UnknownIn February 2010, my ex-boyfriend, Joey (name changed) and I had a fight over a skirt I wore to work. He deemed the skirt too short. He shamed me, called me a hooker, and accused me of sleeping with all my male friends. After watching his jealousy and possessiveness steadily increase over our seven-month relationship, I was at my breaking point. We were over.

The day after the fight, Joey called me at 11:53pm. He was livid. He said he was looking on my Facebook page and from what he could see it was clear I was sleeping with at least three other guys. I tried to rationalize with him, to convince him he was mistaken. But he was too far-gone to hear me.

He threatened to start an eBay auction. If I didn't tell him the truth about how many other guys I was sleeping with, he said he was going to auction off a CD of 88 naked images of me that I allowed him to take after three months of relentless pressure. He said he would send links to the auction to my friends and family, to people at the college where I teach. I shook with desperate fear. I knew no words would change his mind. Joey had flown into a rage, uncontrollable and impervious to reason. I knew my fate, and my only defense was to call the police. I begged and pleaded for him not to carry out his threat.

Then he said the words that would change the course of my life: "I will destroy you."

I called the Baltimore County police and through my sobs tried to explain what was happening and why I needed help. The dispatcher sent an officer to my home who looked down on me as I explained that I wanted him to stop a threat. It was the first of many times I would be told, "There is nothing I can do. No crime had been committed." And at that point, no crime had been committed. I was frantic over a threat, which to the bored officer was nothing to worry about. To me, it was a portent of the misery I'd soon suffer.

The auction went live the following afternoon. I received about three emails from eBay informing me that, "Joseph Mann thought you might like this item on eBay" The link read: (Name of college)MD English Professor Nude Photos!

The concern with revenge porn is not the image, as such. In Jenkins v. Georgia, the Supreme Court ruled that nudity was not obscene (one of the original exceptions to protected First Amendment speech): "There are occasional scenes of nudity [in the film Carnal Knowledge], but nudity alone is not enough to make material legally obscene[.]" 418 U.S 153, 161 (1974).

As always, context matters. Screaming "fire" in a crowded theater is not protected First Amendment speech when there is no fire. But, if the concession stand has erupted in flames...

In Brandt v. Bd. of Education of City of Chicago, 480 F.3d 460 (6th Cir. 2007), Judge Posner observes:

Although freedom of speech and of the press...are often loosely paraphrased as "freedom of expression," and clothes are certainly a way in which people express themselves, clothing as such is not--not normally at any rate--constitutionally protected expression...Self-expression is not to be equated to the expression of ideas or opinions[.]

Whether clothing is protected speech, of course, comes down to the context in which the clothes are worn. "Merely wearing clothes inappropriate to a particular occasion could be a political statement," writes Judge Posner; or, "If Irish people were forbidden to wear green on St Patrick's Day, a natural form of protest would be to wear green on that day."

Because revenge porn legislation deals with the non-consensual publication of images and/or videos, the context is different from pornography that is protected by the First Amendment. 

The principle concern with revenge porn legislation is that it will chill protected speech. As Wisconsin Public Radio reported when revenge porn legislation was introduced there, "[S]tate Rep. Fred Kessler, D-Milwaukee, is concerned the bill is too broad and might restrict people's freedom of expression by limiting the creation and distribution of fine art."

This is a stretch. Revenge porn legislation would forbid the non-consensual publication of nude images, not the publication of nude images. Just as an artist could not yell "fire" in a crowded theater and then claim First Amendment protection for video taken as people flee to safety, an artist should not be able to invoke an ambiguous art justification for the non-consensual publication of nude images. Artists using such images are not producing art, they're creating pain. It's a "scouge." As Justice Scalia has written, "[A] physical assault discloses that the attacker dislikes the victim[,]" but that does not transform the assault into protected First Amendment expression. Nevada Comm'n on Ethics v. Carrigan, 131 S.Ct. 2343, 2350 (2011).

Indeed, as UCLA professor Eugene Volokh has written

I do think that a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts. While I don’t think judges and juries should be able to decide, on a case-by-case basis, which statements about a person aren’t of “legitimate public concern” and can therefore be banned, I think courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.

I agree. I, too, dislike granting judges the authority to determine what constitutes valid artistic, literary, or political expression. Miller v. California, 413 U.S. 15 (1973). But, what would be (or should be) forbidden by legislation criminalizing revenge porn is not the value of nude images. 

CRL&P related posts:

 

November 20, 2013 in First Amendment, Freedom of Speech, Revenge Porn | Permalink | Comments (1)

CRL&P Daily Reads: Nov. 20, 2013

NSA ignored courts on conduct of domestic surveillance; Supreme Court won't hear challenge to NSA domestic surveillance; and, Rep. Sensenbrenner claims NSA's surveillance program threatens America's economy.

Albuquerque voters reject ban on abortions after 20 weeks; and, Supreme Court won't block Texas abortion law that has caused some clinics to close.

Divided Ohio Supreme Court upholds school district's firing of teacher who refused to remove religious materials from his classroom.

Ohio House committee approves new 'stand your ground' law; gun owners in San Fancisco claim city's large-capacity magazine ban violates the Second Amendment; and, Ohio city looks to repeal several gun laws after legal challenge by gun-rights advocates.

Christian Science Monitor explains how voter ID laws affected 2013 elections; PolitiFact Texas labels claims that no problems resulted from state's new voter ID law 'mostly false'; and women are more likely to be disenfranchised under North Carolina's new voter ID law.

Iowa city required to release records from closed meetings.

Juveniles file a federal lawsuit against Florida county and private prison contractor alleging extremely harsh conditions and overuse of pepper spray.

Governor expected to sign Illinois's law legalizing same-sex marriage later today.

Iowa woman wrongfully terminated for alleging workplace discrimination wants her job back.

 

November 20, 2013 in Abortion, Election Law, First Amendment, Freedom of Religion, Freedom of Speech, Gun Policy, Right to Vote, Same-sex marriage, Science, Voter ID | Permalink | Comments (0)

Tuesday, November 19, 2013

Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere

The title of this post come from Professor Richard Hasen's upcoming article arguing that federal courts ought to use a more exacting analysis of voting laws disproportionately affecting one party's voters. Here's the abstract:

North Carolina, Texas, and other states with Republican legislatures have passed a series of laws making it harder for voters to register and to vote. In response, the United States Department of Justice has sued these states, claiming that the laws violate portions of the Voting Rights Act protecting minority voters. When party and race coincide as they did in 1900 and they do today, it is hard to separate racial and partisan intent and effect. Today, white voters in the South are overwhelmingly Republican and, in some of the Southern states, are less likely to be willing to vote for a Black candidate than are white voters in the rest of the country. The Democratic Party supports a left leaning platform that includes more social assistance to the poor and higher taxes. Some Republicans view such plans as aiding racial minorities.

Given the overlap of considerations of race and considerations of party, when a Republican legislature like North Carolina’s passes a law making it harder for some voters to vote, is that a law about party politics or a law about race? As I explain, if courts call this a law about party politics and view it through the lens of partisan competition, then the law is more likely to stand, and the fight over it will be waged at the ballot box. If the courts call this a law about race and view it through the lens of the struggle over race and voting rights, then the law is more likely to fall and the fight will be settled primarily in the courts. 

The race versus party bifurcation is unhelpful, and the solution to these new battles over election rules — what I call "The Voting Wars" — is going to have to come from the federal courts. Courts should apply a more rigorous standard to review arguably discriminatory voting laws. When a legislature passes an election administration law (outside the redistricting context) discriminating against a party’s voters or otherwise burdening voters, that fact should not be a defense. Instead, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. The achievement of partisan ends would not be considered a good reason (as it appears to be in the redistricting context). These rules will both discourage party power grabs and protect voting rights of minority voters. In short, this new rule will inhibit discrimination on the basis of both race and party, and protect all voters from unnecessary burdens on the right to vote.

CRL&P related posts:

November 19, 2013 in Election Law, First Amendment, Right to Vote, Voter ID | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 19, 2013

Sunday, November 17, 2013

CRL&P Daily Reads: Nov. 17, 2013

Friday, November 15, 2013

Federal judge suspends Ohio's restriction on petition circulators

Earlier this year, Gov. John Kasich (R) signed into law a new restriction requiring circulators of candidacy petitions to be residents of Ohio. The law states:

Except for a nominating petition for presidential electors, no person shall be allowed to circulate any petition unless the person is a resident of this state and is at least eighteen years of age. O.R.C. 3503.06(C)(1)(a).

In September, the 1851 Center for Constitutional Law challenged the law on the grounds that it violated the First Amendment, and last week the Libertarian Party of Ohio (LPO) joined the suit.

Today The Columbus Dispatch reports that a federal judge has suspended this provision:

A federal judge late yesterday blocked enforcement of an Ohio law that said only Ohioans can collect signatures to qualify issues or candidates for the ballot.


In granting a preliminary injunction, Judge Michael Watson of the Columbus division of the Southern District said the law is a First Amendment violation.


“It is well established that even a temporary violation of First Amendment rights constitutes irreparable harm,” Watson said.


The court respects the state’s prerogative to regulate petition circulation, Watson wrote, but that does not permit legislation that violates the Constitution.


“Plaintiffs have shown a substantial likelihood of success on the merits,” Watson wrote.

The Libertarian Party of Ohio (LPO) and the 1851 Center had requested the preliminary injunction preventing Secretary of State Jon Husted (R) from enforcing the provision citing the Sixth Circuit U.S. Court of Appeals ruling in Nader v. Blackwell, in which the court held that requiring circulators of candidacy petitions to reside in the state violated the First Amendment. 545 F.3d. 459, 475 (6th Cir. 2008).

Yesterday's decision comes just a week after Gov. Kasich signed into law further restrictions on the ability of minor parties to gain access to the ballot. The new restrictions would require minor party candidates to obtain 28,000 signatures to be placed on the ballot in 2014, and the criteria for ballot access would increase after 2015.

The LPO's lawsuit includes allegations that the new law impermissibly restricts it from holding a party primary. The party seeks a preliminary injunction preventing Sec. Husted from removing the LPO from Ohio's primary and general election ballots in 2014.

CRL&P related posts:

 

November 15, 2013 in Election Law, First Amendment, Freedom of Speech | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 15, 2013

Ten homeless people file civil rights lawsuit to keep city from evicting them from a local landfill.

NYC's stop-and-frisk policy results in conviction in just 3 percent of cases.*

Disabled man sues city under ADA for right to keep his service dog--a pit bull.

California judge rejects challenge to local ordinance banning the use of 'sign waver' advertisements.

Pennsylvania judge rejects request to block challenge to the state law banning recognition of same-sex marriages; Hawaii judge upholds state's new same-sex marriage law; and, transgender woman's employment discrimination case is tossed.

Victims call for legislation criminalizing revenge porn.

Jimmy Carter says the U.S. should abolish the death penalty.

* Correction: A helpful reader observed that the second link above was incorrect. It previously stated that New York City's stop-and-frisk policy leads to sentences of 30 days or more in just 1.5 percent of the cases, but the rate is actually much lower than that. In fact, the AG's report states on page 3:

Less than one in seventeen SQF arrests, or 0.3% of stops, resulted in sentences of more than 30 days of imprisonment.

 

November 15, 2013 in 14th Amendment, Civil Rights Litigation, Equal Protection Clause, First Amendment, Freedom of Speech, Revenge Porn, Same-sex marriage | Permalink | Comments (3)

Thursday, November 14, 2013

Occupiers file civil rights claim against Philadelphia PD

Members of Occupy Philadelphia recently filed a lawsuit against the city's police commissioner and a number of officers alleging violations of their civil rights.

Nearly two years ago, police arrested 31 protesters after shutting down the camp they inhabited across from City Hall. After the protesters dispersed, police reportedly followed a group of them and arrested them in the early morning on the grounds that they would disrupt traffic.

Last year, a Municipal Court judge aquitted the protesters of all charges.

The members claims include false arrest and violations of their First Amendment rights.

The Philadelphia Daily News reports:

One of the more active of scores of protest encampments that arose in fall 2011 to protest income inequality and related issues, Occupy Philadelphia camped out in Dilworth Plaza adjacent to City Hall for 55 days. The city shut down the camp - which numbered several hundred Occupiers at the peak - to make room for renovation work.


After police raided the Dilworth site on Nov. 30, 2011, cops - including mounted officers - followed Occupy protesters for several hours and finally arrested the group just before 5 a.m. on 15th Street near Callowhill, claiming the demonstrators would snarl rush-hour traffic.


Since then, other Occupy members who were arrested over the 55 days - including 12 busted at a sit-in at a Wells Fargo branch lobby in Center City - have been found not guilty.


Krasner said the 26 plaintiffs are seeking economic damages for their allegedly false arrest, as well as changes in city policy to allow protesters to exercise their right of free assembly in the future. The group is also represented by Lloyd Long and Paul Hetznecker.


 

November 14, 2013 in Civil Rights Litigation, First Amendment, Freedom of Assembly, Freedom of Speech | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 14, 2013

Northern Illinois University student has been arrested after police discovered an AR-15 rifle and a handgun in his dorm room; federal agents claim gun made by a 3-D printer could threaten security; Iowa gun store owner has been arrested after selling fully automatic machine gun; Milwaukee youth help city officials develop strategies to reduce gun violence; and a Florida woman pulls a gun on a journalist.

Sen. Rubio is scheduled to speak at a conference led by an anti-gay activist; Indiana woman has been denied access to her partner who is currently unconscious in the hospital; and five Senagalese women could face as much as five years in prison because they are lesbians.

Supreme Court considers whether law enforcement officials violate the Fourth Amendment when they search an apartment after one roomate denies them entry but another later permits it; and TSA's profiling program is ineffective.

Students decry lack of diversity at UCLA; and federal court hears oral argument on University of Texas's addmission policy that considers race.

Former Dolphin's offensive lineman Jonathan Martin might sue the team for harassment and discrimination.

ProPublica documents China's efforts to censor Twitter messages.

 

November 14, 2013 in Affirmative Action, First Amendment, Fourth Amendment, Freedom of Speech, Gun Policy, Same-sex marriage, Search, Seizure | Permalink | Comments (0)

Wednesday, November 13, 2013

CRL&P Daily Reads: Nov. 13, 2013

Tuesday, November 12, 2013

Fair Warning

The title of this post comes from this article arguing that courts have employed a limited First Amendment analysis to protesters' right of fair warning by police officers. Courts, however, have not explicitly adopted this standard, and as a result the amount of protection under the fair warning doctrine remains ambiguous. Here's the abstract:

Protesting has become an integral part of American politics, so much so that federal Courts of Appeals have recently restricted police officers’ power to arrest demonstrators who have concededly violated otherwise valid statutes and regulations. Specifically, courts have found that, where demonstrators may reasonably, yet mistakenly believe that police officers have permitted their conduct, officers must give “fair warning” before arresting or dispersing those demonstrators. In § 1983 suits, courts have even found that demonstrators’ right to fair warning is “clearly established.” While the right to fair warning may be clearly established, its doctrinal roots are not. Ordinarily, the requirement of fair warning, grounded in the Due Process Clause, guides courts in their application of statutes. The cases mentioned above, however, consider not the content of statutes — indeed, the statutes’ applicability is frequently conceded — but instead the conduct of police officers and demonstrators. As a result, the courts that have recognized demonstrators’ rights to fair warning have not clearly specified whether the First Amendment, the Fourth Amendment, or the Due Process Clause creates that right. Identifying the source of this right is more than an academic exercise. Such identification will help courts expound the right’s contours and determine its future application. Ultimately, this Article argues that courts have unconsciously employed the right to fair warning as a less sweeping form of First Amendment review, one that applies First Amendment principles to officers’ enforcement of a statute, rather than to the statute itself. Only by attributing the right to fair warning to the First Amendment can courts both explain existing doctrine and vindicate the principles that earlier decisions have recognized when invoking that right.

 

November 12, 2013 in First Amendment, Fourth Amendment | Permalink | Comments (0)

School officials decide not to censor student shirts commemorating late classmate

Officials in one Michigan school district have reversed their decision forbidding students to wear T-shirts honoring a classmate who recently died of leukemia. School administrators originally had told the students that they could not wear the shirts because of the emotional impact--the shirts might have exacerbated the grief felt by some students. But, students and parents complained, and the school district acquiesced.

The article begins:

A southern Michigan school district has reversed its decision to bar students from wearing T-shirts honoring a 12-year-old classmate who died over the weekend following a long battle with cancer.


At least a dozen students showed up to Lakeview Middle School in Battle Creek on Monday wearing blue or orange T-shirts to honor sixth-grader Caitlyn Jackson, who died Saturday after fighting leukemia for years, the Battle Creek Enquirer reported[]. Blue was Caitlyn's favorite color and orange is worn to honor those like her with leukemia, and some of the shirts were from various benefits for Caitlyn over the years.


When students arrived at school, administrators asked them to change out of the shirts, turn them inside-out or tape over Caitlyn's name.

Notably, district officials originally justified the prohibition under measures created to deal with crises. As the Associated Press reports:

[The school's finance director] said the district decided Sunday to not allow the T-shirts in keeping with its crisis management plan, which bars permanent memorials on the belief that they can remind students of their grief and make it worse. Parents weren't informed of the decision.

I doubt that student-made T-shirts qualify as "permanent memorials" (although a more pointed definition of the terms might be necessary), and I question the virtue of the district's policy.

Schools not only teach intellectual skills, but they also serve to socialize students for future integration into society and the workforce. Dealing with grief and loss are necessary components of that socialization process.

Further, emotionally trying experiences often are not private matters. Many people will have to deal with the loss of a co-worker or a classmate. Natural disasters often disrupt whole communities; and, as the 9-11 attacks demonstrated, the pain and trauma of a single event can significantly impact entire regions, even the country.

After completing primary and secondary school, students hopefully have developed the intellectual and emotional skills to manage their future education and/or careers even in difficult circumstances. I find it difficult to believe that ignoring grief is the best way to prepare students for that eventuality.

Moreover, the administrator's ban on the shirts likely violated the First Amendment speech rights of the students who wore them. Some students certainly feel grief due to the death of a classmate, but the T-shirts probably do not detract from their educational experiences.

Sorrowful students will continue to feel the attendant pain of losing a friend. But, the now-empty desk creates that sadness. Not the T-shirts.

 

November 12, 2013 in First Amendment, Freedom of Speech, Schools | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 12, 2013

Sunday, November 10, 2013

New Jersey court ruling another blow to gay conversion therapies

The title of this post comes from this article reporting that a New Jersey judge has upheld the state's ban on gay conversion therapy, ruling that the ban does not infringe upon protected First Amendment rights. According to the judge, "[A] state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services." The article begins:

Echoing a similar ruling in California earlier this year, a New Jersey judge has upheld the state’s ban on so-called gay conversion therapies for minors.

In August, New Jersey Gov. Chris Christie signed into law a bill outlawing the controversial therapies, making the Garden State the second to do so after California. California’s ban, which was passed in 2012, was upheld in federal court in August.

The New Jersey law prevents any licensed therapist, psychologist, social worker or counselor from using sexual orientation change efforts with children under age 18.

 

November 10, 2013 in First Amendment | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 10, 2013

Gov. Christie is a strong proponent of "violence control," which sometimes means gun-control.

NYC asks federal judge to vacate the lower court order requiring changes to the city's stop-and-frisk program.

Sen. Wyden discusses Snowden's continuing revelations about the NSA's surveillance program.

ACLU releases a new report on discrimination against military victims of sexual trauma.

Lawyers ask a South Carolina judge for a new trial for the 14-year-old boy executed in 1944.

And, this protester makes a real statement.

 

November 10, 2013 in First Amendment, Fourth Amendment, Gun Policy, Stop-and-frisk | Permalink | Comments (0)

Saturday, November 9, 2013

CRL&P Daily Reads: Nov. 9, 2013

Authorities in New Mexico face another lawsuit over allegedly illegal body-cavity searches, as do police in Milwaukee.

Medical marijuana distributor files a civil rights lawsuit alleging that authorities targeted him for his "outspoken advocacy" of local taxation of medical marijuana.

Same-sex marriage will be legal in Hawaii when the governor signs legalization bill into law later this week.

Guardian editor will face questioning by British lawmakers for publication of NSA leaks.

3-D printer makes gun, raises production concerns.

Singapore blocks popular adulturey website.

 

November 9, 2013 in 14th Amendment, Civil Rights Litigation, First Amendment, Freedom of Press, Gun Policy, Prisons and Prisoners, Same-sex marriage, Strip Searches | Permalink | Comments (0)

Friday, November 8, 2013

CRL&P Morning Reads: Nov. 8, 2013

Although not charged, the Cleveland PD continue to hold a man's gun pursuant to a city ordinance that permits police to seize an arrestee's guns until a court orders their return.

House Republicans say they're worried about ENDA's effect on small businesses, and gay-rights advocates turn to President Obama urging him to sign an workplace anti-discrimination order. Crotia prepares to vote on whether to allow gay-marriage.

Secure email system used by Snowden now will work to create a new system that is immune from government surveillance.

LAPD arrests 54 Walmart protesters as more than 500 workers and community leaders gathered to protest the store's low wages.

Mother files suit against local school district alleging it ignored reports that an assistant principle repeatedly snuck her daughter out of her home for sex.

 

November 8, 2013 in 42 U.S.C. § 1983, Civil Rights Litigation, First Amendment, Fourth Amendment, Freedom of Assembly, Gun Policy, Same-sex marriage, Schools, Search, Seizure | Permalink | Comments (0)

Thursday, November 7, 2013

CRL&P Daily Reads: Nov. 7, 2013

WaPo breaks down Senate votes for and against Employment Non-Discrimination Act.

Florida Supreme Court rules that the woman who donated her egg to her partner has equal rights to the child after the relationship later dissolved.

Supreme Court hears "unusually testy oral-argument session" over right of a town council to pray before meetings.

Iowa State Bar Assocation president defends judge currently under fire for a recent ruling blocking ban on Planned Parenthood's use of teleconferences to administer abortion pills.

Brown University may punish students who booed NYPD commissioner.

Case Western Law School dean embroiled in scandal over allegations that he sexually harrassed faculty has taken a leave of absence.

 

November 7, 2013 in Abortion, First Amendment, Freedom of Religion, Freedom of Speech | Permalink | Comments (0)

Ohio governor signs controversial ballot access bill, opponents to file lawsuit

On November 6, 2013, Ohio Gov. John Kasich (R) signed the controversial ballot access bill that places new restrictions on the ability of minor parties to get their candidates onto the ballot. With the governor's signature, Sen. Bill Seitz's (R) more restrictive compromise language that he introduced in conference committee is now law, and the effect on minor parties could be dramatic.

Hc-ed-minority-party-wins-ballot-access-201310-001Republican supporters of the bill pushed yesterday to get the bill through the general assembly and signed by the governor so that the law would take effect before the February 5, 2014 filing deadline for candidates. Their efforts were successful. Minor parties now must fulfill the laws more restrictive access requirements for the 2014 election.

As a result, minor party candidates wishing to appear on next year's ballot who have already begun the process of collecting signature will have to start anew. Ohio House Speaker William G. Batchelder (R) was surprised by this:

Batchelder said he disagreed that the bill should be delayed, but when told that some minor-party candidates had already collected signatures, he said that may need more conversation.

“Obviously if somebody has petitions that are completed, perhaps we ought to look at that,” he said.

While reasonable debate over ballot access should continue, Speaker Batchelder's ostinsible ignorance as to the bill's effect on potential minor party candidates in next years election is particularly troubling. Given the extensive debate in the House, one would expect the Speaker to know what the bill's immediate impact might be. 

The Libertarian Party of Ohio remains resolute in its fight against the new law. According to The Columbus Dispatch, "[T]he party likely would file a lawsuit by the end of the week against what they and other critics have dubbed the 'Kasich Re-election Protection Act.'"

CRL&P related posts:

 

November 7, 2013 in Election Law, First Amendment, Freedom of Assembly | Permalink | Comments (0)

Wednesday, November 6, 2013

CRL&P Morning Reads: Nov. 6, 2013

Supreme Court scheduled to hear arguments over the constitutionality of prayer at public meetings.

Federal judge rules that protesters may occupy state property indefinitely.

Advocates likely to start pushing for adoption rights for LGBT couples.

Does ENDA support demonstrates the evolution of the GOP on LGBT issues?

AG Holder continues advocacy for criminal justice reform at prisoner reentry group's event.

 

November 6, 2013 in 14th Amendment, First Amendment, Freedom of Assembly, Freedom of Religion, Prisons and Prisoners | Permalink | Comments (0)

Tuesday, November 5, 2013

Cyber-Surveillance Without Restraint? The Meaning and Social Value of the Probable Cause and Reasonable Suspicion Standards in Governmental Access to Third Party Electronic Records

The title of this post comes from this recent article arguing that the Fourth Amendment's probable cause and reasonable suspicion standards provide adequate protection against impermissible searches of third-party electronic records. Here's the abstract:

The United States Supreme Court has interpreted the Fourth Amendment to provide no privacy protection for records held by third parties. The American Bar Association recently sought to step into this breach by recommending standards to govern government access to third-party electronic records, such as those held by banks, Internet service providers, and medical care providers. Those standards retain requirements of probable cause and reasonable suspicion for government access respectively to highly protected and moderately protected records. Law enforcement has challenged these requirements as unduly burdensome, while some commentators have argued that probable cause and reasonable suspicion are so easy to prove in the third-party records context as to provide no effective privacy protection at all. This Article challenges both those views by defining with greater specificity than has yet been accomplished the meaning of two aspects of probable cause: the quantitative and the qualitative. The Article also addresses their social value by exploring cognitive science, philosophy on the nature of probability, and political incentives facing police and prosecutors. The Article also examines the evidentiary concept of “weight” and analyzes the implications of various technological processes for applying these justification requirements in the third-party electronic-records context. The Article ultimately concludes that retaining probable cause and reasonable suspicion protections—when coupled with additional protections provided by the standards—is neither oppressive of law enforcement nor underprotective of persons whose records are searched. Instead, the balance achieved by the standards in this area is just right.

 

November 5, 2013 in First Amendment, Search, Seizure | Permalink | Comments (0)

Sunday, November 3, 2013

CRL&P Daily Reads: Nov. 3, 2013

Honolulu PD follows growing national trend banning visible tattoos.

Snowden claims increasing scrutiny of NSA and calls for its reform prove he was right to leak collected surveillance information.

Sen. Booker will enthusiastically support ENDA.

NYPD will not reform its stop-and-frisk policy until city's appeal is heard sometime next year by a new judge.

Guardian column argues that 'indoor prostitution' should be legalized.

 

November 3, 2013 in First Amendment, Fourth Amendment, Freedom of Speech, Stop-and-frisk | Permalink | Comments (0)

Saturday, November 2, 2013

CRL&P Daily Reads: Nov. 2, 2013

Employment Non-Discrimation Act (ENDA) has bipartisan support in the Senate, but It's unlikely to come up for a vote in the House. Since Supreme Court struck down parts of DOMA, gay rights activists have increased efforts in state legislatures and courts.

Snowden claims the U.S. 'seeks to criminalize political speech' and says he wants to testify before Congress.

Alabama inmate alleges that warden ignored assaults and rape.

Texas court strikes down ban on sexually explicit online conversations with minors as unconstitutionally overbroad.

 

November 2, 2013 in First Amendment, Freedom of Speech, Prisons and Prisoners, Same-sex marriage | Permalink | Comments (0)

Friday, November 1, 2013

Abortion clinic noise law survives challenge

The title of this post comes from this article reporting that a federal judge has rejected the challenge by anti-abortion protesters to a noise zoning ordiance. The article begins:

Anti-abortion protesters cannot enjoin a law that regulates noise around health care facilities, a federal judge ruled.


In response to public comments regarding the effects of amplified sounds on patients, West Palm Beach has a law that creates a quiet zone around health care facilities.


The ordinance bans shouting and use of a loud speaker among other loud noises within 100 feet of the property line, including private property within that distance.


Mary Susan Pine and Marilyn Blackburn are a part of group that assembles outside the Presidential Women's Center in West Palm Beach to protest against abortions and educate women about other alternatives.


Under an older version of the ordinance, Pine was fined $250 for using a bull horn in the quiet zone.


They sought an injunction, but U.S. District Judge Donald Middlebrooks shot them down Tuesday.

 

November 1, 2013 in Abortion, First Amendment, Freedom of Speech | Permalink | Comments (1)

CRL&P Daily Reads: Nov. 1, 2013

'Captain Justice' appears in a Tennessee Court

CRL&P is happy to share this fascinating story about a local defense attorney whose passionate advocacy on behalf of his client gave us this:

When prosecutors in Williamson County tried to ban a defense attorney from referring to them as "the government" in court, defense attorney Drew Justice had a demand of his own:


From now on, call me "Captain Justice."

The prosecution apparently thought that reference to it as "the government" was pejorative and was an attempt to prejudice its case, so naturally it filed a motion to quell the term's use. But, Captain Justice was about to loosen his tie.

Justice fired off his own motion in response. It included conventional references to case law, the First Amendment — technical stuff that one would expect in a court filing.


And then he got creative.


If the court sided with Rettig, he demanded his client no longer be referred to as "the Defendant," but instead be called "Mister," "the Citizen Accused" or "that innocent man" — since all defendants are presumed innocent until a judge or jury finds them guilty. As for himself, clearly "lawyer" or "defense attorney" wouldn't do him, well, justice.


"Rather, counsel for the Citizen Accused should be referred to primarily as the 'Defender of the Innocent.' … Alternatively, counsel would also accept the designation 'Guardian of the Realm,' " Justice wrote.


And since prosecutors are often referred to formally as "General" in court, Justice, in an effort to be flexible, offered up a military title of his own.


"Whenever addressed by name, the name 'Captain Justice' will be appropriate."


Gathering steam, he went on to say that even "the defense" wasn't adequate and that "the Resistance" would be far more appropriate.


He then concluded his motion, returning to the formal language of court documents — sort of.


"WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State's motion, as lacking legal basis."

The prosecution reportedly was "disappointed" by Captain Justice's response, and wanted to keep its mind on the specifics of the case.

Happy Friday!

 

November 1, 2013 in Current Affairs, First Amendment, Freedom of Speech | Permalink | Comments (1)