Civil Rights Law & Policy Blog

SCOTUS's First Amendment NIMBYism

Yesterday, The NYTimes's Adam Liptak reviewed SCOTUS's supreme hypocrisy on the First Amendment. Liptak observes that SCOTUS has upheld the right of lunatics to protest military funerals and the rights of anti-abortion protesters to approach abortion clinics. Yet, SCOTUS's own stoop is too close for the First Amendment to mean anything. Liptak writes:

[T]he Supreme Court’s devotion to the First Amendment has its limits. It stops at the edge of the grand marble plaza outside its own courthouse.

 

That vast and inviting space, with its benches and fountains, seems better suited to public debate than a military funeral or the sidewalk outside an abortion clinic. But the court insists on banning free speech on the plaza. Court police officers have been known to instruct visitors to remove small buttons bearing political messages.

Speech activities are relegated to the sidewalk around the court -- where ostensibly messages are less influential. 

Fortunately, as Liptak reports, SCOTUS soon may have an opportunity to reconsider whether to allow speech in front of the court. The D.C. appeals court recently heard arguments in a case arising after Capitol police ordered a man to remove his "U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans and Hispanic People" button. The government is appealing a lower court decision striking down the speech-restricted zone as “irreconcilable with the First Amendment.” As Liptak notes:

Such a statement [as that on the man's button] , on a topic of urgent public interest, would seem to be precisely what the First Amendment was intended to protect. Then again, a Supreme Court police officer once threatened a woman with arrest for displaying a sign bearing the verbatim text of the First Amendment.

 

The Supreme Court addressed the law in 1983, in United States v. Grace, ruling that it could not be applied to demonstrations on the public sidewalks around the court. Since then, the sidewalks, which are broad and set off by stairs from the plaza, have been regularly used for protests of all kinds.

 

But the First Amendment vanishes when concrete turns to marble, Justice Department lawyers representing Ms. Talkin told the appeals court. 

The government argues that extending First Amendment rights to the plaza might affect cases before the Court.  

“Demonstrations outside courthouses might give rise to actual or apparent efforts to subject judicial officers to improper influence,” they said in a brief.

That is, the government argues that SCOTUS justices are not so firm of principle as to be free from the overwhelming power of loud voices and poster boards. By moving protesters down the stairs from the plaza to the sidewalk around the court, protesters can protest while the Court's high but unprincipled minds can quietly contemplate the most important legal questions of our day. Yes, it's pathetic. 

CRL&P Daily Reads: Dec. 14, 2013

NSA, Cyber Command will remain under the control of one military officer; NSA's top civilian official is retiring at the end of the year; but, NSA has already undergone many changes.

Gun control activists leave Capitol Hill to build up infrastructure in the states, while support for tighter gun laws lessens; gun violence is a daily reality for some schools; Politico says Utah is America's gun permit mill; and, CNN columnist says 'Background checks pose no threat to legal gun ownership.'

Detroit's bankruptcy disrupts settlement payments to the man whose wrongful conviction landed him in prison for nearly a decade.

Tea Party groups suing county officials in Texas for denying them use of the county courthouse. 

The Revenge Porn Avengers.

 

CRL&P Daily Reads: Dec. 2, 2013

SCOTUS rejects challenge to the ACA's employer mandate as it prepares to hear challenges to ACA's contraceptive coverage mandate.

Think Progress says Texas's voter ID law could produce six-hour delays to vote.

Guardian explores how the pact between the U.S and U.K. led to modern surveillance; and, Glenn Greenwald responds to continued attacks over his release of Snowden's NSA leaks.

Constitutional Law Prof Blog previews oral argument in an upcoming First Amendment case: U.S. v. Apel.

NPR examines 'forgotten' issue of fair housing.

Albaquerque looks to reform its allegedly costly intiative process.

Next LA fire chief will have to deal with legacy of race and sex discrimination.

SCOTUS doesn't have enough to do.

 

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:

• Effect of Ohio's new ballot access law on 2014 election uncertain
• Federal judge suspends Ohio's restriction on petition circulators
• Ohio governor signs controversial ballot access bill, opponents to file lawsuit
• Ohio legislature to vote on controversial ballot access bill this week
• Ohio Senate passes bill imposing restrictions on third party ballot access

 

CRL&P Daily Reads: Dec. 1. 2013

Kansas City Star editorial says electoral reforms should focus on making voting easier for eligible voters; and, The New Republic explains how this might be accomplished.

Guardian columnist explores some of the consequences of the continuing controversy over the NSA's surveillance program.

SCOTUS to decide whether government can prevent some from protesting based on security interests.

Woman wants Mississippi to recognize same-sex marriage so that she can get a divorce; and, lawmaker challenges Hawaii's new law legalizing same-sex marriage in court.

Women still make less than men for the same work.

Americans still don't agree on gun policy; and, man makes a gun made from things available at airports.

NPR explores pilot program that provides public defenders to immigrant detainees.

 

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.

 

CRL&P Daily Reads: Nov. 22, 2013

ACLU sues Kansas Attorney General over state's new election law requiring proof of citizenship to vote; Independent candidate denied ballot access in Alabama's special congressional election; 134 voters in Virginia election couldn't provide proper ID; and, Arkansas's voter ID program is nearly ready.

Some fear Ohio gun bill could limit police stops; Washington voters to choose betweent competing gun policies; Michiganders can now carry guns in state capital's libraries; and Dershowitz and Levinson debate Second Amendment's contemporary usefulness.

Woman files suit against Pittsburgh PD after a repeated sex offender was permitted to remain on the job; store owner files civil rights lawsuit after store's surveillance videos allegedly show racial profiling by police officers; and, civil rights lawsuit against officers in Utah could end up costing the state's taxpayers millions.

Government lawyers return to federal court to defend NSA's mass surveillance of telephone data.

Pennsylvania judge holds status hearing on the challenge to the state's same-sex marriage ban.

Spanish government introduces anti-protest laws.

 

CRL&P Daily Reads: Nov. 19, 2013

FISA court order permitting NSA's surveillance of Americans' email and internet data released; The Week reports on NSA's efforts to minimize data collected on Americans; NSA releases documents showing it vowed to correct surveillance mistakes; and Yahoo seeks to protect users from surveillance.

Stop-and-frisk by NYPD down over last few months.

Pennsylvania woman files a civil rights lawsuit after a police officer offered her legal breaks for sexual favors.

Illegal immigrants don't vote in Arizona; Tennessee Supreme Court upholds new voter ID law; and, The Christian Science Monitor asks whether voter ID laws represent a war on the Greatest Generation.

Former lawmaker files civil rights lawsuit alleging that officers ignored his legislative immunity when they charged him with domestic violence.

United Methodist jury convicts a pastor for performing son's marriage to male partner; same-sex couples married outside Missouri now can file joint tax returns there; and, Cardinal denounces Illinois's new law legalizing same-sex marriage.

Albuquerque voters decide today whether to ban abortions after 20 weeks; vote could represent new front in fight over abortion rights.

Dallas reviews ban on protests within 75 feet of highways.

 

CRL&P Daily Reads: Nov. 17, 2013

Support stalled for Sen. Gillibrand's bill providing sexual assault victims in the military reporting alternatives outside the chain of command; she will seek a floor vote on the bill.

Churches join the NAACP's lawsuit challenging North Carolina's new election laws limiting early voting and same-day registration; and Wisconsin Republicans seek to end weekend voting, while the Wisconsin Assembly passes a new voter ID bill.

United Methodist Church prosecutes Pennsylvania pastor under church law for performing same-sex marriage for his son and his son's partner; and, Wyoming Senate candidate Liz Chaney explains her opposition to same-sex marriage.

Obama issues memo haulting deportation of undocumented military families.

NYC Mayor-elect de Blasio meets with NYPD commissioner Kelly, who recently criticized Democrats for opposition NYPD's stop-and-frisk policy.

Protester files civil rights lawsuit against City of Newark, California for false arrest and alleges First Amendment violations.

In Spain, topless women interrupt anti-abortion rally with chants of 'Abortion is sacred.'

 

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.

 

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.

 

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.

Republican 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:

• Ohio legislature to vote on controversial ballot access bill this week
• Ohio Senate passes bill imposing restrictions on third party ballot access

 

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.

 

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

 

Lunchtime Links

NPR: Take This State And Shove It: The New Secession Movement

Politico: N.Y. Times rejects Banksy op-ed

USA Today: Putin: No discrimination against gays at Olympics

ABC News: Reports of abuse at South African prisons

Reuters: Cameron says may act against press over spy leaks

 

Today in Civil Rights History: Inaugural National Women's Rights Convention in Worcester, MA

On October 23-24, 1850, the inaugural National Women's Rights Convention was held in Worcester, Mass. The convention starred many speakers made famous by history, including Sojourner Truth, Frederick Douglas, and William Lloyd Garrison.

It commenced with a speech by the President of the Convention, Pauline Davis of Rhode Island. She called on the convention to proclaim civil and political rights for women, stating, "Our claim must rest on its justice, and conquer by its power of truth. We take the round, that whatever has been achieved for the race belongs to it, and must not be usurped by any class or caste. The rights and liberties of one human being cannot be made the property of another, though they were redeemed for him or her by the life of the other; for rights cannot be forfeited by way of salvage, and they are in their nature unpurchasable and inalienable." But the struggle for equal rights would not be easily won, she warned, for the success depended both on the rightousness of their cause and its acceptance by their oppressors:

Old ideas and habits of mind survive the facts which produce them, as the shadows of night stretch far into the morning, sheltered in nooks and valleys from the rising light; and it is the work of a whole creation-day to separate the light from the darkness...

We must be gentle with the ignorance and patient under the injustice which old evils induce. Long suffering is a quality of the highest wisdom, and charity beareth all things for it hopeth all things. It will be seen that I am assuming the point that redemption of the inferior, if it comes at all, must come from the superior. The elevation of a favored caste can have no other providential purpose than that, when it is elevated near enough to goodness and truth, it shall draw up it dependents with it...

There may be real though very foolish tenderness in the motive which refuses to open to woman the trades and professions that she could cultivate and practice with equal profit and credit to herself. The chivalry that worships womanhood is not mean, though it at the same time enslaves the objects of its overfond care.

With that, the convention set out to build the foundation of movement. The convention claimed as its purpose "to secure for her political, legal, and social equality with man,” and it unanimously passed a series of resolutions committing itself to that cause. It resolved “[t]hat political rights acknowledge no sex”;“ [t]hat women are clearly entitled to the right of suffrage, and to be considered eligible to office[,]” and that the continued denial of these rights will “no longer be endured[.]” It also asserted women’s equal right to property in marriage—“that the wife may have, during life, an equal control over the property gained by their mutual toil and sacrifices[.]”

Further, the convention closely allied itself with the growing movement for the abolition of slavery. The convention resolved "[t]hat every human being of full age, and resident for a proper length of time on the soil of the nation, who is required to obey law, is entitled to a voice in its enactments[.]"; and, it paid homage to those upon whom injustice heaped its most heavy burdens:

Resolved, That the cause we are met to advocate,--the claim for woman of all her natural and civil rights,--bids us remember the million and a half of slave women at the South, the most grossly wronged and foully outraged of allwomen; and in every effort for an improvement in our civilization, we will bear in our heart of hearts the memory of the trampled womanhood of the plantation, and omit no effort to raise it to a share in the rights we claim for ourselves.

The National Women's Right Convention of 1850 certainly was a radical step toward equal civil rights, and many thought it too much. The day after the convention closed, for example, The New York Herald used its front page to lament the "awful combination of socialism, abolitionism, and infidelity." According to The Herald, the apparent "designs of the piebaldassemblage called the Woman's Rights Convention" were these:

• To abolish the Bible.
• To abolish the constitution, and the laws of the land.
• To recognize a society upon a social platform of a perfect equality, in all things of sexes and colors.
• To establish the most free and miscellaneous amalgamation of sexes and colors.
• To elect Abby Kelley President of the United States, and Lucrietta Mott Commander-in-Chief of the Army.
• To cut throats ad libitum.
• Toabolish the gallows.

Of course, the movement for political and social rights for women trudged slowly along, with a few small victories inspiring hope for larger ones in the future. Many of those attending that first convention never got to vote; sixty-nine years passed before the ratification of 19th Amendment granting women the right to vote. But, the women and men who attended the convention expected difficulties, and hopefully their sacrifices are remembered occasionally today.

CRL&P related posts:

• Decision in Civil Rights Cases announced
• Martin Luther King, Jr. wins Nobel Peace Prize
• Today in Civil Rights History: Roger Williams' early stand for civil liberties