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Friday, November 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)

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

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

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)

CRL&P Morning Reads: Oct. 28, 2013

Sunday, October 27, 2013

CRL&P Daily Reads: Oct. 27, 2013

Judge dismisses false arrest lawsuit in which the wrong man was arrested and held in prison for five days before police realized their mistake.

Macy's now joined with Barney's in scandal over allegations that the businesses profiled black shoppers making expensive purchases and detained them, while Barney's vows to review its policies.

Wisconsin becomes latest state to consider enacting legislation criminalizing revenge porn.

Protesters marched in Washington on Saturday decrying the NSA's online surveillance program.

FBI investigates the recent killing by police of 13-year-old carrying a plastic gun.

 

October 27, 2013 in 14th Amendment, Civil Rights Litigation, First Amendment, Fourth Amendment, Freedom of Speech, Reasonableness, Revenge Porn, Seizure | Permalink | Comments (0)

Saturday, October 26, 2013

So, I shouldn't wear my John Wayne costume?

John_Wayne_portrait
The University of Colorado recently started placing fliers around campus asking students to keep the feelings of other students in mind when selecting this year's Halloween costumes. As The Huffington Post reports, "Advertisements posted around campus depict students from different ethnicities, cultures and religions standing next to a person dressed in costume. In one, a young black man is standing next to another man wearing blackface, gold chains and flashing a prop gun. Another shows a young Asian woman holding a photo of a white woman dressed in a geisha costume." Be courteous, consider how others might interpret your costume. I'm with ya.
 
But, then the Post reports:

At CU however, cowboys are not totally fine.

"When you dress up as a cowboy, and you have your sheriff badge on and a big cowboy hat, that's not a representation of a cowboy, that's not a representation of people who work on a ranch that's not a representation of people who live in the West, that's kind of a crude stereotype," CU spokesman Bronson Hilliard told Campus Reform.

Line-drawing is difficult; the difference between mockery and good-taste is sometimes not so clear. Indeed, that line depends on context, and context depends on both individual and community experiences. Whether a costume is a "crude stereotype" or an allusion to an iconic American symbol like John Wayne or Kirk Douglas might be disputed in different parts of the county.

October 26, 2013 in Freedom of Speech, Universities and Colleges | Permalink | Comments (2)

Friday, October 25, 2013

Voter ID and the floundering right to vote

Yesterday, Slate contributor Dalia Lithwick pointed out that available data used to prognosticate the likely outcomes of new voter ID laws is outdated, and that it is no more clear that Democratic women will be disenfranchised than Republican women. Lithwick's focus on the effect of voter ID laws is necessary, but the problem with voter ID is judicial rather than legislative. The problem isn't whether voter ID laws will disenfranchise Democratic or Republican voters. The problem is that the laws disenfranchise voters. Period.

Voter ID laws have grown in popularity since the Supreme Court's decision in Crawford v. Marion County. In that case, the Court balanced the justification for the Indiana voter ID law against the burden on the right to vote. Liberal and conservative justices united to limit the right to vote, holding that the burden placed on that right was effectively de minimis and that states had a super important interest in preventing fraud (a decision which has been the subject of new interest following J. Posner's recent guilty plea regarding his part in validating the law as the author of the Court of Appeals' opinion).

But, the decision placed the burden of proof on the wrong party--the people. States should always have the burden of showing that regulations that infringe on even a small number of voters actually addresses a real threat or need. Otherwise, how "fundamental" is the right to vote, really? Under this standard, politicians need virtually no reason to manipulate the electorate to their advantage. Any regulation that has as its goal the "purity of the ballot box" is valid. Indeed, fraud becomes the catchall justification for infringing on the individual right to vote.

More robust protection for the right to vote is needed. A simple step would be to require strict scrutiny for all laws aimed at the rights of voters to cast ballots (which could easily be achieved by recognizing the right to vote as First Amendment political speech). This change would not affect states' ability to create laws addressing election issues, it would just prevent them from creating those issues to justify those laws.

October 25, 2013 in Election Law, First Amendment, Freedom of Speech, Right to Vote, Voter ID | Permalink | Comments (1)