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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)

U.S. appeals court backs employer in 'contraception mandate' case

Via Reuters:

A federal appeals court in Washington joined other courts on Friday by ruling for an employer who raised religious objections to a provision of the 2010 U.S. healthcare law requiring companies to provide insurance that covers birth control.

The U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled in favor of Catholic brothers Francis and Philip Gilardi, owners of Freshway Foods and Freshway Logistics, who do not want to provide insurance coverage for contraception, sterilization and abortion.

The legal question of whether employers can exercise their religious rights under the First Amendment of the U.S. Constitution to avoid complying with the so-called "contraception mandate" is almost certain to eventually be decided by the U.S. Supreme Court.

In Friday's ruling, the court said the corporations did not have First Amendment rights to press a claim but that the two brothers, as shareholders, did.

Continue reading

November 1, 2013 in First Amendment, Freedom of Religion | Permalink | Comments (0)

Thursday, October 31, 2013

CRL&P Daily Reads: Halloween 2013

Second Circuit stays lower court's stop-and-frisk ruling.

Twenty-three percent of Republicans want more women to be elected to office.

Brown University student defends protest against NYPD commissioner as a successful exercise of free speech.

Hawaii is ready to legalize gay marriage.

Chelsea Manning could sue if she doesn't get treatment for gender identity disorder.

Oneida Nation representatives meet with NFL to discuss the movement to change the name of Washington's football team, but NFL stands firm.

 

October 31, 2013 in First Amendment, Fourth Amendment, Freedom of Speech, Same-sex marriage, Stop-and-frisk, Universities and Colleges | Permalink | Comments (0)

School board takes “I ♥ boobies” bracelets to Supreme Court

The "I ♥ Boobies!" bracelets are heading to the Supreme Court! Indeed, after the Third Circuit ruled it could not ban the bracelets, a Pennsylvania school district has voted 7-1 to appeal the decision. The district claims that the ruling compromised the disciplinary authority of the school. I wonder, however, whether that authority has been so weakened so as to justify the district's expenditure of taxpayer dollars to continue the fight. No matter, at least the district's students are having the opportunity to learn about the First Amendment.

The USA Today reports:

A Pennsylvania school district says it will take its fight against "I (heart) Boobies!" bracelets to the U.S. Supreme Court.


The Easton Area School District board voted 7-1 Tuesday night to appeal a decision rejecting its claim the bracelets are lewd and should be banned from school.


The 3rd U.S. Circuit Court of Appeals also determined the district didn't prove the bracelets are disruptive when it upheld a lower court's decision in August.


The bracelets are designed to promote breast cancer awareness among young people. Two girls challenged the school's ban in 2010.


Superintendent John Reinhart tells The Express-Times of Easton the ruling compromised administrators' ability to determine what is and is not appropriate in school.


Dissenting board member Frank Pintabone says the district should let the matter go.

 

October 31, 2013 in First Amendment, Freedom of Speech, Schools | Permalink | Comments (1)

Atlantic correspondent Ornstein calls for a constitutional right to vote

CRL&P has noted several arguments for considering the right to vote as protected First Amendment speech.

Voting was done publicly until the end of the 19th century, and open voting changes the nature of the expression. Viva voce voting, for example, required voters to announce their votes publicly, and this declaration had persuasive value. The most respected citizens voted first, and thus candidates sought their support in order to influence voters down the line.

George Washington played this game in order to win his first election. In The Varieties of Political Experience in Eighteenth-Century America, Professor Richard Beeman explains:

Voting in Virginia was conducted viva voce, so the assembled freeholders (and candidates) were able to watch the course of the election as it unfolded...


As the balloting proceeded, it was apparent to all assembled at the courthouse that virtually all of the men of influence in the county had swung their support to Washington... The strategy of marshalling 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.

Ultimately, the question is whether voting communicates an idea. Even ignoring the context of voting in small rural communities, the expressive value of viva voce voting is at least as expressive as some forms of protected First Amendment political speech (e.g. flag burning, political yard signs, etc.) Further, as Justice Thomas observed in his dissent in Nixon v. Shrink Missouri Gov't PAC, "[I]t is up to the citizens...to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade." 528 U.S. 377, 420 (2000).

Today, The Atlantic calls for a constitutional amendment for the right to vote:

It is becoming increasingly obvious that the Supreme Court decision in Shelby County v. Holder, which eviscerated the Voting Rights Act, is leading to a new era of voter suppression that parallels the pre-1960s era—this time affecting not just African-Americans but also Hispanic-Americans, women, and students, among others.


The reasoning employed by Chief Justice John Roberts in Shelby County—that Section 5 of the act was such a spectacular success that it is no longer necessary—was the equivalent of taking down speed cameras and traffic lights and removing speed limits from a dangerous intersection because they had combined to reduce accidents and traffic deaths.

In North Carolina, a post-Shelby County law not only includes one of the most restrictive and punitive voter-ID laws anywhere but also restricts early voting, eliminates same-day voting registration, ends pre-registration for 16- and 17-year-olds, and bans many provisional ballots. Whatever flimsy voter-fraud excuse exists for requiring voter ID disappears when it comes to these other obstacles to voting


In Texas, the law could require voters to travel as much as 250 miles to obtain an acceptable voter ID—and it allows a concealed-weapon permit, but not a student ID, as proof of identity for voting. Moreover, the law and the regulations to implement it, we are now learning, will create huge impediments for women who have married or divorced and have voter IDs and driver's licenses that reflect maiden or married names that do not exactly match. It raises similar problems for Mexican-Americans who use combinations of mothers' and fathers' names.


In a recent election on constitutional issues, a female Texas District Court judge, Sandra Watts, who has voted for 49 years in the state, was challenged in the same courthouse where she presides; to overcome the challenge, she will have to jump through hoops and possibly pay for a copy of her marriage license, an effective poll tax on women.


The Justice Department is challenging both laws, but through a much more cumbersome and rarely successful provision of the Voting Rights Act that is still in force. It cannot prevent these laws and others implemented by state and local jurisdictions, many of which will take effect below the radar and will not be challenged because of the expense and difficulty of litigation.

Continue reading

October 31, 2013 in Election Law, First Amendment, Freedom of Speech, Right to Vote, Voter ID | Permalink | Comments (1)

Wednesday, October 30, 2013

CRL&P Daily Reads: Oct. 30, 2013

Arizona Sheriff Joe Arpaio wants to employ 'one or two' drones in surveillance of Pheonix area.

NPR says Texas voter-ID law is unexpectedly making voting difficult for some women.

Support growing in the Senate for Employment Anti-Discrimination Act (ENDA) banning workplace discrimination on the basis of sexual orientation or gender identity, and an Ohio funeral home wants gay marriages recognized on death certificates.

Planned Parenthood says Iowa ban on telemedicine system used for dispensing abortion pills prevents rural access to needed medical services and asks judge to suspend the ban.

Egyptian military tribunal sentences a journalist to one year in prison for allegedly impersonating a military officer.

October 30, 2013 in Abortion, Election Law, First Amendment, Fourth Amendment, Freedom of Press, Right to Vote, Search, Voter ID | Permalink | Comments (0)

CRL&P Daily Reads: Oct. 30, 2013

Group pushing for state laws criminalizing revenge porn, but future efforts could be aimed at federal government.

Glenn Greenwald appeared on Anderson 360 last night to discuss the revelation that the NSA was spying on allies.

Woman sues Texas over ban on same-sex marriage.

NY Post claims former employee's allegations of a hostile work environment related to the controversial Obama/chimpanzee cartoon are trivial.

Saudi teacher who supports women's right to drive has been detained.

 

October 30, 2013 in 14th Amendment, First Amendment, Freedom of Speech, Revenge Porn, Same-sex marriage | Permalink | Comments (0)

Marijuana ads stir the pot over drug safety, free speech

The title of this post comes from this article highlighting how pro-marijuana reform groups' use of advertising billboards on buses is making some officials nervous. The article is from McClatchy, who incidentally is in the early led for today's best pun. The article begins:

When televangelist Pat Robertson announced his support for legalizing marijuana last year, pot backers wasted no time in putting his picture on an electronic billboard in Colorado.


Marijuana billboards have popped up along busy freeways from Seattle to Florida. In September, one greeted fans going to Sports Authority Field at Mile High Stadium in Denver for the first NFL game of the season. In July, pot supporters tried to get a video ad on a jumbo screen outside a NASCAR event in Indianapolis, but objections forced them to pull it in the last minute.


In the latest twist, pro-pot billboards are emblazoned on city buses in Portland, Maine, aimed at winning votes for a Nov. 5 ballot measure that would make the city the first on the East Coast to legalize marijuana for recreational use.


Critics fear that the increased advertising is a sign of things to come as support for legalization continues to grow, reflected by a Gallup poll released last week that found backing from a record high 58 percent of Americans. They see the stepped-up promotion as a dangerous trend that will lead to more drug abuse among children.

Read more here: http://www.mcclatchydc.com/2013/10/30/206794/marijuana-ads-stir-the-pot-over.html#storylink=cpy


Read more here: http://www.mcclatchydc.com/2013/10/30/206794/marijuana-ads-stir-the-pot-over.html#storylink=cpy


Read more here: http://www.mcclatchydc.com/2013/10/30/206794/marijuana-ads-stir-the-pot-over.html#storylink=cpy


Read more here: http://www.mcclatchydc.com/2013/10/30/206794/marijuana-ads-stir-the-pot-over.html#storylink=cpy


Read more here: http://www.mcclatchydc.com/2013/10/30/20679
more here: http://www.mcclatchydc.com/2013/10/30/206794/marijuana-ads-stir-the-pot-over.html#storylink=cpy

October 30, 2013 in First Amendment, Freedom of Speech | Permalink | Comments (0)

Tuesday, October 29, 2013

CRL&P Daily Read: Oct. 29, 2013

Bill before Ohio House would let nursing home patients set up hidden cameras to document poor treatment.

Sen. Portman paid prominent pollster to assess the effects of his new position on gay-marriage after his son announced that he was gay, and former Supreme Court Justice O'Connor performs same-sex wedding ceremony.

Support for the death penalty reaches its lowest point in more than fifty years.

Plain Dealer editorial argues for keeping convicted felons closer to home.

Al Sharpton and Barney's CEO have a productive meeting discussing recent racial profiling allegations, but that might not be enough for NY Attorney General.

Several hundred protesters denounce the killing of 13-year-old by FBI agent

 

October 29, 2013 in First Amendment, Freedom of Assembly, Prisons and Prisoners, Same-sex marriage | Permalink | Comments (0)

Sunday Dress: Wearing a Mask for Halloween

On Sunday, Professor Ruthann Robson of the Constitutional Law Prof Blog discussed state anti-masking laws and the interesting impact those laws could have during Halloween. She begins:

Many states have anti-masking statutes, criminalizing the wearing of a mask or identity concealing face covering.


In some states, the statutes are known as anti-Klan statutes, although by their terms they do not limit their coverage to Klan regalia. The Georgia Supreme Court upheld the state's anti-masking statute, O.C.G.A. 16-11-38, against a First Amendment challenge in State v. Miller (1990). Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute, argued that the statute was overbroad. In addressing Miller’s argument, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK. Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”

Her full post can be found here.

 

October 29, 2013 in First Amendment, Freedom of Speech | Permalink | Comments (0)

Monday, October 28, 2013

Lunchtime Links

The Normativity of Using Prison to Control Hate Speech: The Hollowness of Waldron's Harm Theory

The title of this post comes from this recent article arguing that imposing prison sentences for hate speech is disproportionate to the harm stemming from such speech, and as a result is an injustice to the speaker. Here is the abstract:

We question the justice of using prison sentences to control hate speech. It is argued that prison sentences should be used only to deter offensive and hateful speech that harms others. However, the harm requirement cannot be satisfied merely by demonstrating theoretical harm in the abstract, as Jeremy Waldron does in his recent book. Instead, factual harm has to be demonstrated because prison is in fact very harmful for the expresser of the offensive and hateful speech. There is noting wrong with penal measures being used to deter this kind of speech, but harmful prison sentences should not be used to deter harmless speech. Waldron asserts that the United States should follow the British model, among others, of using prison to control and chill free (hate) speech. Waldron wants a model of unfree speech for some. We aim to show that the United States should resist enacting hate speech laws similar to the unjust laws found in Britain, where people have received long prison sentences for uttering offensive and hateful thoughts. To use prison sentences is to use a sledgehammer to crack a walnut: it is a grossly disproportionate and unjust penal response. Particular issue is taken with Waldron’s harm theory. The core element of the paper is the Waldron debate, because the type of vacuous harm theory he puts forward has the potential to be used by lawmakers to justify unjust penal responses such as harmful prison sentences for harmless (even though grossly offensive) speech.

 

October 28, 2013 in First Amendment, Freedom of Speech, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (1)

Citizens United comes to New York

The title above comes from this post from Wait A Second!, a blog which tracks the civil rights decisions of the Second U.S. Circuit Court of Appeals. Today, it highlights the recently decided case that struck down imposed limits on per annum political contributions by individuals. The post begins:

Is there a more hated Supreme Court ruling in recent years than Citizens United, which struck down on First Amendment grounds certain restrictions on corporate campaign contributions? Love it or hate it, Citizens United is here to stay, and it just knocked down a campaign finance law in New York.

The case is New York Progress and Protection PAC v. Walsh, decided on October 24. This case was argued on October 18, so the urgency is clear, as irreparable harm is inherent in First Amendment violations, and the plaintiff supports the New York City mayoral campaign of Joseph Lhota, who needs the money in time for the election in November.


The law in New York imposed a $150,000 aggregate annual limit on certain political contributions by any person in New York State. So the plaintiff -- which makes independent expenditures without prearrangement or coordination with a candidate -- cannot receive more than that amount from any individual contributor in any calendar year. NYPPP alleges that "the cap violates its core First Amendment right to advocate in favor of Joseph Lhota in the upcoming mayoral election."

Post-Watergate, Congress took a hard look at campaign finance laws. When the money people challenged these restrictions under the First Amendment (on the theory that campaign contributions and spending constitutes political speech), the Supreme Court in Buckley v. Valeo (1976) said the Constitution allows for some of these campaign finance restrictions in the interest of combating corruption. When Congress enacted the McCain-Feingold campaign finance restrictions in 2002, a new Supreme Court began chipping away at it, and the Citizens United ruling said that the government has no anti-corruption interest in limiting independent expenditures.

I am sure the lawyers representing the State of New York worked valiantly in defending the law that the Second Circuit took up in this case. But Citizens United makes this result a foregone conclusion. Under Citizens United, "it follows that a donor to an independent expenditure committee such as NYPPP is even further removed from political candidates and may not be limited in his ability to contribute to such committees. All federal circuit courts that have addressed this issue have so held."

October 28, 2013 in Election Law, First Amendment, Freedom of Speech | Permalink | Comments (0)