On Wednesday, a Florida Court of Appeals ruled on a 30-year-old law related to the adoption of children by lesbians or gay couples. The Court found this law unconstitutional leading the Florida governor to state that the rule will not be enforced pending a decision to appeal the judgment.
The primary issue the Court had with this law is that gay and lesbian couples were allowed to serve as foster parents, but were not allowed to officially adopt children. Due to this inconsistency, the Court ruled that the law prohibiting adoption had no rational basis and violated equal protection rights.
As for now, the judgment affects the entire state and will go into effect immediately. However, the state has 30 days to appeal. At this point, members of the Florida state government have discussed appealing, but no final decision has been made.
This ruling appears to be another step in the right direction for equal rights independent of sexual orientation, at least for now. And while this is only a statewide victory, it may open the door for challenges to other state statutes banning adoption by same sex couples.
As the court acknowledges, allowing gay and lesbian couples to serve as foster parents but not adoptive parents. Instead of this blanket ban, gay and lesbian couples should be put through the same scrutiny as heterosexual couples wishing to adopt, with sexual orientation bearing no weight on the decision. It should be the fitness of the applicants and their ability to care for the child that should be taken into account; some same sex couples may still be found unfit based on these standards (just as some heterosexual couples are), but at least they will have been given a fair chance.
For the complete article, click here.
Thursday, September 23, 2010
Thursday, August 5, 2010
Proposition 8 Ruled Unconstitutional, For Now.
Yesterday, a Judge in California ruled that Proposition 8, the same-sex marriage ban, was unconstitutional. In the ruling, the judge found that there was no legitimate purpose in disallowing same-sex marriages, finding that the voter approved measure was solely based on “unfounded stereotypes and prejudices”. In his findings, Judge Vaughn Walker stated that same-sex and opposite-sex marriages are exactly the same in regards to California law.
Many find this ruling to be a major victory for same-sex marriage rights. However, the constitutionality of the measure will be first decided by at least one Court before the victory can be declared final. However, should the 9th U.S. Circuit Court of Appeals uphold the California court’s ruling, this finding should then be precedent for all states under the jurisdiction of the 9th U.S. Circuit Court of Appeals, not just California.
The group that sponsored Propositon 8, Project Marriage, have already promised to immediately appeal yesterday’s ruling. Judge Walker has indicated, based on this promised appeal, that he will not make his ruling final until the appeal is decided. Both sides of the litigation are to submit written arguments by this Friday regarding the issue. With this appeal, and Judge Walker’s delay in finalizing his order, it appears that those wishing to enter into same-sex marriages in California may still have to wait.
For one of many articles on this issue, click here.
Many find this ruling to be a major victory for same-sex marriage rights. However, the constitutionality of the measure will be first decided by at least one Court before the victory can be declared final. However, should the 9th U.S. Circuit Court of Appeals uphold the California court’s ruling, this finding should then be precedent for all states under the jurisdiction of the 9th U.S. Circuit Court of Appeals, not just California.
The group that sponsored Propositon 8, Project Marriage, have already promised to immediately appeal yesterday’s ruling. Judge Walker has indicated, based on this promised appeal, that he will not make his ruling final until the appeal is decided. Both sides of the litigation are to submit written arguments by this Friday regarding the issue. With this appeal, and Judge Walker’s delay in finalizing his order, it appears that those wishing to enter into same-sex marriages in California may still have to wait.
For one of many articles on this issue, click here.
Thursday, July 15, 2010
More Developments in Same-Sex Marriage Litigation
Supporters of same-sex marriage rights are touting two recent rulings by the federal district court in Massachusetts as significant steps toward constitutional protection for state-sanctioned same-sex marriages. In two cases decided on quite different grounds, Judge Joseph L. Tauro ruled that the federal Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex marriages, is unconstitutional. In a case filed by the organization, Gay and Lesbian Advocates and Defenders, the court found that DOMA violates the Equal Protection Clause by denying federal benefits to same-sex married couples while allowing benefits for opposite-sex married couples. The court found that there is no rational basis for treating same-sex couples differently than opposite-sex couples.
In a case filed by the Massachusetts Attorney General, the court found that DOMA violates the Tenth Amendment by encroaching on the authority of the state of Massachusetts to regulate marriage. This states’ rights argument brings a new dimension to the constitutional debate, which had been more focused on discriminatory treatment under the Equal Protection Clause.
Despite statements by President Obama during the 2008 campaign calling for DOMA’s repeal, the Justice Department argued in defense of the statute’s constitutionality. A Justice Department attorney acknowledged in court filings that the Obama Administration disagrees with DOMA as a matter of legislative policy, but nevertheless explained that the Justice Department is obligated to defend the statute in court. The Justice Department has not indicated whether it will appeal the court’s decisions to the First Circuit.
With the release of these decisions, many are even more eagerly anticipating a decision from a federal district court judge in San Francisco in the Proposition 8 case. At issue in that case is the constitutionality of Proposition 8, a 2008 ballot initiative that banned gay marriage in California. A trial concluded in June. Representing two same-sex California couples who want to marry, former solicitor general Theodore Olson urged the court to overturn the initiative, likening the case to Brown v. Board of Education and Loving v. Virginia, a case that overturned a Virginia statute forbidding interracial marriage. Whatever the outcome, an appeal is very likely, one that may end up in the U.S. Supreme Court.
Click here for a New York Times article on the Massachusetts cases.
In a case filed by the Massachusetts Attorney General, the court found that DOMA violates the Tenth Amendment by encroaching on the authority of the state of Massachusetts to regulate marriage. This states’ rights argument brings a new dimension to the constitutional debate, which had been more focused on discriminatory treatment under the Equal Protection Clause.
Despite statements by President Obama during the 2008 campaign calling for DOMA’s repeal, the Justice Department argued in defense of the statute’s constitutionality. A Justice Department attorney acknowledged in court filings that the Obama Administration disagrees with DOMA as a matter of legislative policy, but nevertheless explained that the Justice Department is obligated to defend the statute in court. The Justice Department has not indicated whether it will appeal the court’s decisions to the First Circuit.
With the release of these decisions, many are even more eagerly anticipating a decision from a federal district court judge in San Francisco in the Proposition 8 case. At issue in that case is the constitutionality of Proposition 8, a 2008 ballot initiative that banned gay marriage in California. A trial concluded in June. Representing two same-sex California couples who want to marry, former solicitor general Theodore Olson urged the court to overturn the initiative, likening the case to Brown v. Board of Education and Loving v. Virginia, a case that overturned a Virginia statute forbidding interracial marriage. Whatever the outcome, an appeal is very likely, one that may end up in the U.S. Supreme Court.
Click here for a New York Times article on the Massachusetts cases.
Tuesday, June 29, 2010
Copyright Infringement?
Looking for an entertaining yet informative legal resource to explore this summer? Columbia Law School and the UCLA Intellectual Property Project maintain a website called the Copyright Infringement Project, which provides information about U.S. copyright cases involving popular music. Visitors to the site can download audio files of songs in dispute, comparing derivative works and parodies to the originals. The site also provides the full text of court opinions about the songs and brief comments from the site’s authors. Visitors can access cases by decade or song title.
The cases involve songs from a wide variety of musical genres. Visitors can read how Michael Bolton’s song “Love is a Wonderful Thing” infringed the Isley Brothers’ copyright in a tune of the same name (Three Boys Music v. Bolton). Bolton’s infringement resulted in a $5.4 million jury award. Visitors can also find out whether Andrew Lloyd Webber’s “Phantom Song” unlawfully appropriated the melody of a folk tune (Repp v. Webber). A dispute involving the band ZZ Top and John Lee Hooker’s song “Boogie Chillin” is an interesting case about what constitutes the public domain (La Cienega Music Co. v. ZZ Top). Bridgeport v. Combs involves a dispute about whether Notorious B.I.G. unlawfully “sampled” part of a song written by the Dayton-rooted Ohio Players. And of course, visitors can read about the famously foul-mouthed rap ensemble 2 Live Crew and its parody of Roy Orbison’s “Oh, Pretty Woman” (Acuff-Rose Music v. Campbell). This one made it all the way to the U.S. Supreme Court, which sided with 2 Live Crew. Justice Souter’s opinion includes the complete song lyrics in the appendices. Other artists with cases on the site include Calvin Broadus (aka Snoop Dogg), Beyonce, Mariah Carey, John Williams (involving theme music for the movie E.T.), deceased Beatle George Harrison, and three cases involving the late, legendary King of Pop.
The site also has a section called “INPLAY” about ongoing or recently settled disputes. This section includes information about guitarist Joe Satriani’s claim that Coldplay’s popular song “Viva La Vida” infringed his copyright in his work “If I Could Fly” (Satriani v. Martin). Listen to the two songs yourself to compare. The parties apparently settled in September 2009. Click here to link to the site. Enjoy!
The cases involve songs from a wide variety of musical genres. Visitors can read how Michael Bolton’s song “Love is a Wonderful Thing” infringed the Isley Brothers’ copyright in a tune of the same name (Three Boys Music v. Bolton). Bolton’s infringement resulted in a $5.4 million jury award. Visitors can also find out whether Andrew Lloyd Webber’s “Phantom Song” unlawfully appropriated the melody of a folk tune (Repp v. Webber). A dispute involving the band ZZ Top and John Lee Hooker’s song “Boogie Chillin” is an interesting case about what constitutes the public domain (La Cienega Music Co. v. ZZ Top). Bridgeport v. Combs involves a dispute about whether Notorious B.I.G. unlawfully “sampled” part of a song written by the Dayton-rooted Ohio Players. And of course, visitors can read about the famously foul-mouthed rap ensemble 2 Live Crew and its parody of Roy Orbison’s “Oh, Pretty Woman” (Acuff-Rose Music v. Campbell). This one made it all the way to the U.S. Supreme Court, which sided with 2 Live Crew. Justice Souter’s opinion includes the complete song lyrics in the appendices. Other artists with cases on the site include Calvin Broadus (aka Snoop Dogg), Beyonce, Mariah Carey, John Williams (involving theme music for the movie E.T.), deceased Beatle George Harrison, and three cases involving the late, legendary King of Pop.
The site also has a section called “INPLAY” about ongoing or recently settled disputes. This section includes information about guitarist Joe Satriani’s claim that Coldplay’s popular song “Viva La Vida” infringed his copyright in his work “If I Could Fly” (Satriani v. Martin). Listen to the two songs yourself to compare. The parties apparently settled in September 2009. Click here to link to the site. Enjoy!
Wednesday, June 9, 2010
Legal Liability and the Gulf Oil Spill
As efforts continue to halt the flow of oil following the April 20 explosion of the Deepwater Horizon drilling rig, questions continue to surface about who is legally to blame. Last week, Attorney General Eric Holder announced that the Justice Department had opened civil and criminal investigations into the matter. Mr. Holder did not indicate the parties under investigation, but likely targets include BP, the owner of the deep-sea well, Transocean, which leased the Deepwater Horizon to BP, Cameron, which manufactured the blowout preventer, and Halliburton, which performed services such as cementing.
Laws that the Justice Department could use to seek liability include the Oil Pollution Act of 1990, the Clean Water Act, the Migratory Bird Treaty Act, and the Endangered Species Act. Under the Oil Pollution Act, enacted in the wake of the Exxon Valdez spill off the coast of Alaska, parties can be held liable for oil removal costs as well as for economic and natural resources damage. The Justice Department will likely also investigate whether parties committed such crimes as false statement, conspiracy, or obstruction of justice in their dealings with federal regulatory authorities. In addition, state attorneys general may bring legal action under state law. Private attorneys have already filed civil lawsuits on behalf of individuals allegedly harmed by the spill.
It appears very likely that the Justice Department will file a civil suit. Under laws like the Oil Pollution Act and the Clean Water Act, the Justice Department would simply have to prove that an oil spill occurred and that a party such as BP was responsible. A court could order civil liability without a showing of intent. Under the Oil Pollution Act, the Justice Department could seek damages up to $75 million. This limit does not apply to oil removal costs or to damages resulting from gross negligence or federal safety violations. To prove a criminal case involving fines and potential jail time for culpable individuals, the Justice Department would have to show some degree of intent. A felony under the Clean Water Act, for example, would require that a party acted knowingly with regard to the creation of the spill, a difficult showing to make absent egregious conduct. A showing of negligence could result in a misdemeanor under the Act.
The actions of the Minerals Management Service, a division of the Department of the Interior that regulates offshore drilling, may also complicate matters. The MMS has received criticism for its dual role in both fostering and policing offshore drilling activity. If the MMS explicitly approved actions by parties such as BP with respect to the maintenance of the rig, the Justice Department will have difficulty proving criminal conduct. The Justice Department’s investigation could reveal as much about the need for regulatory reform as the feasibility of criminal prosecution.
Click here for a Washington Post article on this topic.
Laws that the Justice Department could use to seek liability include the Oil Pollution Act of 1990, the Clean Water Act, the Migratory Bird Treaty Act, and the Endangered Species Act. Under the Oil Pollution Act, enacted in the wake of the Exxon Valdez spill off the coast of Alaska, parties can be held liable for oil removal costs as well as for economic and natural resources damage. The Justice Department will likely also investigate whether parties committed such crimes as false statement, conspiracy, or obstruction of justice in their dealings with federal regulatory authorities. In addition, state attorneys general may bring legal action under state law. Private attorneys have already filed civil lawsuits on behalf of individuals allegedly harmed by the spill.
It appears very likely that the Justice Department will file a civil suit. Under laws like the Oil Pollution Act and the Clean Water Act, the Justice Department would simply have to prove that an oil spill occurred and that a party such as BP was responsible. A court could order civil liability without a showing of intent. Under the Oil Pollution Act, the Justice Department could seek damages up to $75 million. This limit does not apply to oil removal costs or to damages resulting from gross negligence or federal safety violations. To prove a criminal case involving fines and potential jail time for culpable individuals, the Justice Department would have to show some degree of intent. A felony under the Clean Water Act, for example, would require that a party acted knowingly with regard to the creation of the spill, a difficult showing to make absent egregious conduct. A showing of negligence could result in a misdemeanor under the Act.
The actions of the Minerals Management Service, a division of the Department of the Interior that regulates offshore drilling, may also complicate matters. The MMS has received criticism for its dual role in both fostering and policing offshore drilling activity. If the MMS explicitly approved actions by parties such as BP with respect to the maintenance of the rig, the Justice Department will have difficulty proving criminal conduct. The Justice Department’s investigation could reveal as much about the need for regulatory reform as the feasibility of criminal prosecution.
Click here for a Washington Post article on this topic.
Thursday, April 29, 2010
The First Amendment and Video Games
On Monday, the United States Supreme Court agreed to hear a case challenging California’s proposed law to ban the sale or rental of violent video games to minors. The 9th Circuit Court of Appeals has previously held that this law violates minors’ First and Fourteenth Amendment rights and as such cannot be enforced.
Although the law was signed by Governor Schwarzenegger, it was immediately challenged by the video game industry on constitutional grounds. Representatives for the video game industry point to the fact that all video games are now required to be labeled with ratings; it is their contention that this rating system is sufficient for parents to properly deem what is appropriate for their children. Also, representatives claim that video games are protected forms of expression under the First Amendment.
Adding support for the industry’s claim is the Supreme Court’s decision last week which struck down a ban on videos depicting animal cruelty. Representatives for the industry claim that if such videos are protected by the First Amendment, then video games should be as well.
Supporters of the law point to studies suggesting a correlation between violent video games and aggression, anti-social behavior and desensitization to violence in children. However, the court found no proof of a causal connection between video games and this behavior, and dismissed the research.
Supporters also liken the ban on the sale of violent video games to the sale of pornography. And although the representatives for the industry point to the already established rating system, supporters of the law state that this rating system did nothing to prevent M-rated (mature) video game sales to minors.
With the improvements in technology, video games have greatly progressed from the days of Pong and the Atari 2600. Graphics are much more life-like, and as such the violence is much more realistic. As such, the concern about what minors are viewing is understandable. However, the outright ban of sales or rentals of these video games to minors seems a bit extreme.
Many of these video games have graphics comparable to live action movies; while movies are not interactive such as these games, viewing this type of violence in any form would seem to cause concern. Yet, the ratings system implemented by the MPAA does not receive the same type of scrutiny these video games are.
The ratings systems for both types of media do not seem to be the underlying problem. Children are able to view these movies and play these games because the ratings don’t work if parents ignore them. The video game industry is fulfilling their duty by warning parents about potential content issues; it’s up to parents, not the government, to decide whether they want their children to play these games.
For the full article, click here.
Although the law was signed by Governor Schwarzenegger, it was immediately challenged by the video game industry on constitutional grounds. Representatives for the video game industry point to the fact that all video games are now required to be labeled with ratings; it is their contention that this rating system is sufficient for parents to properly deem what is appropriate for their children. Also, representatives claim that video games are protected forms of expression under the First Amendment.
Adding support for the industry’s claim is the Supreme Court’s decision last week which struck down a ban on videos depicting animal cruelty. Representatives for the industry claim that if such videos are protected by the First Amendment, then video games should be as well.
Supporters of the law point to studies suggesting a correlation between violent video games and aggression, anti-social behavior and desensitization to violence in children. However, the court found no proof of a causal connection between video games and this behavior, and dismissed the research.
Supporters also liken the ban on the sale of violent video games to the sale of pornography. And although the representatives for the industry point to the already established rating system, supporters of the law state that this rating system did nothing to prevent M-rated (mature) video game sales to minors.
With the improvements in technology, video games have greatly progressed from the days of Pong and the Atari 2600. Graphics are much more life-like, and as such the violence is much more realistic. As such, the concern about what minors are viewing is understandable. However, the outright ban of sales or rentals of these video games to minors seems a bit extreme.
Many of these video games have graphics comparable to live action movies; while movies are not interactive such as these games, viewing this type of violence in any form would seem to cause concern. Yet, the ratings system implemented by the MPAA does not receive the same type of scrutiny these video games are.
The ratings systems for both types of media do not seem to be the underlying problem. Children are able to view these movies and play these games because the ratings don’t work if parents ignore them. The video game industry is fulfilling their duty by warning parents about potential content issues; it’s up to parents, not the government, to decide whether they want their children to play these games.
For the full article, click here.
Thursday, March 18, 2010
States Ready to Challenge Health Care Law?
With the passage of the new health care Bill apparently pending, some states are starting to take preemptive measures in order to prevent enforcement of said Bill. On Wednesday, Governor C.L. Otter of Idaho signed the first to sign a law which would require “the state attorney general to sue the federal government over any such insurance mandates”.
Thirty-seven other states have similar legislation pending, mainly in Republican dominated states. Such measures are in direct reply to growing dissatisfaction with the health care overhaul proposed by President Obama. Support for these state laws appears to be based on claims that the health care Bill in question would unconstitutionally interfere with citizens’ rights to determine their need for insurance.
There are obvious issues with laws such as the one passed in Iowa. The most obvious issue relates to the Supremacy Clause of the U.S. Constitution, which makes federal law supreme to state law. Assuming the federal health care Bill passes, these state laws will then become irrelevant as these laws include language directly contradictory to the proposed federal law. Even if challenges were brought asserting the validity of the state law, it would be surprising to see any Court uphold these state laws under such circumstances.
Also, there is a question about whether a state is the proper party to sue regarding the passage of a federal health care law. Some feel that such a lawsuit can only be brought by a person who has been harmed by being required to purchase health insurance under this new law. Without a showing of harm, there may not be a valid basis upon which to commence litigation.
Still, Idaho’s governor seems confident in the effectiveness of the state law. With thirty-six other states considering similar laws, he believes that there is a “constitutional mass” that must be listened to. He feels this “constitutional mass” will be sufficient to ensure state laws such as the one just signed in Idaho will succeed.
Whether one is for or against this new health care Bill, the fact that 74% of the states are considering state legislation contrary to this proposed federal law is somewhat shocking. If such numbers are accurate, and there is no reason to think they are not, then the question of what the states want and what the federal government feels is necessary becomes a rather large issue. There is no answer to this contradiction unfortunately, but should make one think about the propriety of this federal health care law and the possibility of further such clashes in the future.
For the full article, click here.
Thirty-seven other states have similar legislation pending, mainly in Republican dominated states. Such measures are in direct reply to growing dissatisfaction with the health care overhaul proposed by President Obama. Support for these state laws appears to be based on claims that the health care Bill in question would unconstitutionally interfere with citizens’ rights to determine their need for insurance.
There are obvious issues with laws such as the one passed in Iowa. The most obvious issue relates to the Supremacy Clause of the U.S. Constitution, which makes federal law supreme to state law. Assuming the federal health care Bill passes, these state laws will then become irrelevant as these laws include language directly contradictory to the proposed federal law. Even if challenges were brought asserting the validity of the state law, it would be surprising to see any Court uphold these state laws under such circumstances.
Also, there is a question about whether a state is the proper party to sue regarding the passage of a federal health care law. Some feel that such a lawsuit can only be brought by a person who has been harmed by being required to purchase health insurance under this new law. Without a showing of harm, there may not be a valid basis upon which to commence litigation.
Still, Idaho’s governor seems confident in the effectiveness of the state law. With thirty-six other states considering similar laws, he believes that there is a “constitutional mass” that must be listened to. He feels this “constitutional mass” will be sufficient to ensure state laws such as the one just signed in Idaho will succeed.
Whether one is for or against this new health care Bill, the fact that 74% of the states are considering state legislation contrary to this proposed federal law is somewhat shocking. If such numbers are accurate, and there is no reason to think they are not, then the question of what the states want and what the federal government feels is necessary becomes a rather large issue. There is no answer to this contradiction unfortunately, but should make one think about the propriety of this federal health care law and the possibility of further such clashes in the future.
For the full article, click here.
Thursday, March 11, 2010
Prom Cancelled on Account of Gay?
In an AP article from today, it is being reported that a school in Mississippi has cancelled their prom due to the fact a female student asked permission to bring her girlfriend and wear a tuxedo. Gay rights have been a focal point the past several years, concentrating primarily on their rights to marriage; however, this article today reminds us that close-mindedness towards gay equality exists in other venues as well.
The Itawamba County school district's board cancelled the school’s prom citing “recent distractions”. The cause was never specifically attributed by the board as being due to this student’s request, but the school’s policy towards prom does state that dates must be of the opposite sex. District officials have stated they hope that parents will organize a replacement gathering for the students, which some see as merely a means by the board to avoid further discussion of the topic.
Upon requesting permission to attend the prom with a female date and wear a tuxedo, the student was told she could not wear a tuxedo or arrive together with and would be required to leave if the actions of her and her date made others feel ”uncomfortable”. The ACLU had set a deadline to change the policy on allowing same sex dates to the prom, which resulted in the aforementioned cancellation.
Even for a small rural town it is difficult to understand how a school board could see the act of two females attending prom together to be “distracting” or make others feel “uncomfortable”. Even if one is wearing a tuxedo, it would be hard to imagine that the female requesting this permission has been “hidden” from her classmates previously.
The student could have foregone asking permission and just shown up in a tuxedo with her date, causing a bigger “distraction” and making more people “uncomfortable” at the dance; however, she attempted to smooth things over beforehand in an attempt to prevent such issues. The inclusion of the ACLU admittedly may add to the feel of a “distraction”, but their presence would not have been required if this outdated rule was not still in place.
Some of the comments (submitted by on-line readers) at the end of the article are worrisome in that they may actually reflect the thinking that is going on in this situation and other gay rights fights across the country. I hope the sarcasm in some of these posts merely failed to translate on-line, but if not these statements blaming the “special individuals”, who do not have “healthy minds”, for pushing their “special needs” upon others and suggesting she forego her prom instead of letting her lifestyle ruin everybody else’s fun harkens back to a time when homosexuality was still classified as a mental disease. Statements and issues such as this make one realize how far there is left to go in the way of equal rights for all, in so many areas of life.
The Itawamba County school district's board cancelled the school’s prom citing “recent distractions”. The cause was never specifically attributed by the board as being due to this student’s request, but the school’s policy towards prom does state that dates must be of the opposite sex. District officials have stated they hope that parents will organize a replacement gathering for the students, which some see as merely a means by the board to avoid further discussion of the topic.
Upon requesting permission to attend the prom with a female date and wear a tuxedo, the student was told she could not wear a tuxedo or arrive together with and would be required to leave if the actions of her and her date made others feel ”uncomfortable”. The ACLU had set a deadline to change the policy on allowing same sex dates to the prom, which resulted in the aforementioned cancellation.
Even for a small rural town it is difficult to understand how a school board could see the act of two females attending prom together to be “distracting” or make others feel “uncomfortable”. Even if one is wearing a tuxedo, it would be hard to imagine that the female requesting this permission has been “hidden” from her classmates previously.
The student could have foregone asking permission and just shown up in a tuxedo with her date, causing a bigger “distraction” and making more people “uncomfortable” at the dance; however, she attempted to smooth things over beforehand in an attempt to prevent such issues. The inclusion of the ACLU admittedly may add to the feel of a “distraction”, but their presence would not have been required if this outdated rule was not still in place.
Some of the comments (submitted by on-line readers) at the end of the article are worrisome in that they may actually reflect the thinking that is going on in this situation and other gay rights fights across the country. I hope the sarcasm in some of these posts merely failed to translate on-line, but if not these statements blaming the “special individuals”, who do not have “healthy minds”, for pushing their “special needs” upon others and suggesting she forego her prom instead of letting her lifestyle ruin everybody else’s fun harkens back to a time when homosexuality was still classified as a mental disease. Statements and issues such as this make one realize how far there is left to go in the way of equal rights for all, in so many areas of life.
Thursday, February 11, 2010
First Amendment v. the Patriot Act
The United States Supreme Court will soon hear a case which will hopefully clarify the relationship of a person’s First Amendment rights and federal anti-terrorism laws. Specifically, the Court will decide on the constitutionality of the section of theUSA Patriot Act which prohibits the provision of “material support” to organizations classified by the government as being terrorists.
In the cases of Holder v. Humanitarian Law Project, No. 08-1498, and Humanitarian Law Project v. Holder, No. 09-89, Ralph D. Fertig, President of the Humanitarian Law Project and Civil Rights lawyer, wishes to provide mediation services to a Kurdish group in Turkey. He and his group wish to work with this group in order “to try to convince them to use nonviolent means of protest on the model of Mahatma Gandhi and Martin Luther King.”
However, under the “material support” clause of the Patriot Act, even acts of peace and assistance aimed at these terrorist groups are prohibited. Douglas N. Letter, a Justice Department lawyer, stated that it even “would be a crime for a lawyer to file a friend-of-the-court brief on behalf of a designated organization in Mr. Fertig’s case or ‘to be assisting terrorist organizations in making presentations to the U.N., to television, to a newspaper.’”
Opponents of this ban compare it to McCarthyism, with many urging the Court to “remember the lessons of history.” Many claim that this ban violates a person’s freedom of speech and prevents people from “promoting lawful, nonviolent activities”. They argue that “human rights advocacy and peacemaking” are protected under the First Amendment.
The Appeals Court found that “the bans on training, service and some kinds of expert advice were unconstitutionally vague.” Still, the Court upheld the bans on any advice or service based on scientific or technical knowledge. The Supreme Court will hear arguments on February 23.
This is yet another example of how the fear of terrorism is being used to infringe on citizens’ rights. It is understandable that the government is attempting to prevent further terrorism in our country by stopping it before it happens; however, the proper way to do this should not involve violating Constitutional rights.
Especially in cases such as this, where any “material support” would be to quell future threats of terrorism, it is hard to see why Mr. Fertig’s First Amendment rights should be denied. If the true goal is to prevent further terrorist attacks, then laws should not be put in place that prevents such abatement.
For the full article, click here.
In the cases of Holder v. Humanitarian Law Project, No. 08-1498, and Humanitarian Law Project v. Holder, No. 09-89, Ralph D. Fertig, President of the Humanitarian Law Project and Civil Rights lawyer, wishes to provide mediation services to a Kurdish group in Turkey. He and his group wish to work with this group in order “to try to convince them to use nonviolent means of protest on the model of Mahatma Gandhi and Martin Luther King.”
However, under the “material support” clause of the Patriot Act, even acts of peace and assistance aimed at these terrorist groups are prohibited. Douglas N. Letter, a Justice Department lawyer, stated that it even “would be a crime for a lawyer to file a friend-of-the-court brief on behalf of a designated organization in Mr. Fertig’s case or ‘to be assisting terrorist organizations in making presentations to the U.N., to television, to a newspaper.’”
Opponents of this ban compare it to McCarthyism, with many urging the Court to “remember the lessons of history.” Many claim that this ban violates a person’s freedom of speech and prevents people from “promoting lawful, nonviolent activities”. They argue that “human rights advocacy and peacemaking” are protected under the First Amendment.
The Appeals Court found that “the bans on training, service and some kinds of expert advice were unconstitutionally vague.” Still, the Court upheld the bans on any advice or service based on scientific or technical knowledge. The Supreme Court will hear arguments on February 23.
This is yet another example of how the fear of terrorism is being used to infringe on citizens’ rights. It is understandable that the government is attempting to prevent further terrorism in our country by stopping it before it happens; however, the proper way to do this should not involve violating Constitutional rights.
Especially in cases such as this, where any “material support” would be to quell future threats of terrorism, it is hard to see why Mr. Fertig’s First Amendment rights should be denied. If the true goal is to prevent further terrorist attacks, then laws should not be put in place that prevents such abatement.
For the full article, click here.
Thursday, February 4, 2010
The Beginning of the End for "Don't Ask, Don't Tell"?
Earlier this week it was announced that “the military will no longer aggressively pursue disciplinary action against gay service members whose orientation is revealed against their will by third parties”. This apparently is the first step towards completely repealing the “don’t ask, don’t tell” policy.
A committee will be formed to investigate how best to integrate gay men and women into the military. Issues such as the propriety of allowing gays in the military to exhibit “their sexual orientation on the job” need to be discussed before the policy is repealed. Some claim that proper integration may take several years, based on dealing with issues such as this.
Some gay rights group leaders fear that this process will be dragged out over an extended period of time. They fear the potential of overly long grace periods and an overly lengthy process. Advocates had wanted President Obama to take unilateral action rather than pursue Congressional legislation; however, with the issue being placed before Congress gay rights advocates will need to continue to pressure Democrats to repeal this policy.
Repealing “don’t ask, don’t tell” is long overdue. Singling out gays and lesbians and preventing them from serving in the military (unless they hide the fact they are gay) is improper discrimination by the government. For those willing and able to serve their country in the military, their sexual preference should not be an issue; if they are qualified to do the job, they should be given the chance without making them hide who they are.
It will be interesting to see how protracted this process is. To a person who has never served in the military, some of the issues that “need” to be discussed appear to be rather trivial; even if they are not allowed to exhibit “their sexual orientation on the job” it is hard to imagine that many in the military don’t already realize they are serving with gay and lesbian soldiers without complaint. Once again, it appears that this is an outdated policy being enforced by those with outdated ideals; it would appear now is a good time to repeal this policy and let everybody serve as equals.
For the full article from the Washington Post, click here.
A committee will be formed to investigate how best to integrate gay men and women into the military. Issues such as the propriety of allowing gays in the military to exhibit “their sexual orientation on the job” need to be discussed before the policy is repealed. Some claim that proper integration may take several years, based on dealing with issues such as this.
Some gay rights group leaders fear that this process will be dragged out over an extended period of time. They fear the potential of overly long grace periods and an overly lengthy process. Advocates had wanted President Obama to take unilateral action rather than pursue Congressional legislation; however, with the issue being placed before Congress gay rights advocates will need to continue to pressure Democrats to repeal this policy.
Repealing “don’t ask, don’t tell” is long overdue. Singling out gays and lesbians and preventing them from serving in the military (unless they hide the fact they are gay) is improper discrimination by the government. For those willing and able to serve their country in the military, their sexual preference should not be an issue; if they are qualified to do the job, they should be given the chance without making them hide who they are.
It will be interesting to see how protracted this process is. To a person who has never served in the military, some of the issues that “need” to be discussed appear to be rather trivial; even if they are not allowed to exhibit “their sexual orientation on the job” it is hard to imagine that many in the military don’t already realize they are serving with gay and lesbian soldiers without complaint. Once again, it appears that this is an outdated policy being enforced by those with outdated ideals; it would appear now is a good time to repeal this policy and let everybody serve as equals.
For the full article from the Washington Post, click here.
Thursday, January 21, 2010
Study Reveals Privacy Violations by FBI
A study released yesterday documents the use of nonexistent emergencies by the FBI to improperly obtain telephone toll information. Between 2002 and 2006, it is reported that more than 700 such demands for information were made.
Part of the issue with such violations appears to be connected to the fact that the FBI and employees for three telecommunications companies actually shared office space. With the sharing of this office space, many of these telecommunications employees were seen as serving as members of the FBI.
Such emergency letters stopped being used in 2006 after some of these issues were discovered. Still, some see this as proof that the Patriot Act requires changes. The Patriot Act, set to expire next month, authorizes the FBI to send letters to phone companies and banks requesting information. However, with evidence of these improprieties, some are uncertain about whether such procedures as they currently exist are proper.
Over the past several years, issues of privacy have risen to the forefront of public concern. With the institution of the Patriot Act, many of these fears were heightened even further. With reports such as this one released Friday, many of these fears are now being justified causing many to further worry about how private their lives really are.
Unfortunately, this is not a unique case of improper privacy intrusions by the U.S. government. The government justifies their practices with the even greater fear of terrorism; they claim that their procedures are in place to weed out potential acts of terrorism. Such safety requires some intrusions, but these intrusions seem to be growing and becoming more egregious as time passes.
With this instance, it is perhaps even more troublesome as the FBI actually had procedures in place that they willfully violated. According to the article, these violations occurred at several levels of the FBI, not just the lowest level. Granted, these violations have apparently now been reigned in, but the fact they happened in the first place is worrisome.
For the complete article, click here.
Part of the issue with such violations appears to be connected to the fact that the FBI and employees for three telecommunications companies actually shared office space. With the sharing of this office space, many of these telecommunications employees were seen as serving as members of the FBI.
Such emergency letters stopped being used in 2006 after some of these issues were discovered. Still, some see this as proof that the Patriot Act requires changes. The Patriot Act, set to expire next month, authorizes the FBI to send letters to phone companies and banks requesting information. However, with evidence of these improprieties, some are uncertain about whether such procedures as they currently exist are proper.
Over the past several years, issues of privacy have risen to the forefront of public concern. With the institution of the Patriot Act, many of these fears were heightened even further. With reports such as this one released Friday, many of these fears are now being justified causing many to further worry about how private their lives really are.
Unfortunately, this is not a unique case of improper privacy intrusions by the U.S. government. The government justifies their practices with the even greater fear of terrorism; they claim that their procedures are in place to weed out potential acts of terrorism. Such safety requires some intrusions, but these intrusions seem to be growing and becoming more egregious as time passes.
With this instance, it is perhaps even more troublesome as the FBI actually had procedures in place that they willfully violated. According to the article, these violations occurred at several levels of the FBI, not just the lowest level. Granted, these violations have apparently now been reigned in, but the fact they happened in the first place is worrisome.
For the complete article, click here.
Thursday, January 14, 2010
Supreme Court Disallows Broadcast of Proposition 8 Hearings
In a follow up to last week’s entry, the United States Supreme Court ruled yesterday that the Federal Court in San Francisco cannot broadcast the Hearing regarding the constitutionality of Proposition 8. “The court issued an unsigned opinion that said lower courts had not followed proper procedure in approving plans for the broadcast.”
The court cited to arguments of those who claim such a broadcast would intimidate, and possibly lead to physical harm of, witnesses, stating that “While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast." However, in the end the majority denied the right to broadcast on procedural grounds. In doing so, the majority states that they are not ruling on the propriety of broadcasting such Hearings if the proper procedures are followed.
In a dissenting opinion, Justice Breyer, joined by Justices Sotomayor, Stevens and Ginsburg, writes that the majority identifies “no real harm” that would result from this broadcast. Furthermore, the dissent argues that the potentially at-risk witnesses have not asked for any type of Court intervention. All the witnesses set to testify, “are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a 'yes' vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse." As such, the dissenters opine that the majority’s ruling is “unjustified”.
As I stated last week, I believe that the postings of these Hearings on YouTube (or any other video sharing site) have benefits that outweigh any negatives. As the dissenters state, the information regarding witnesses is already available through other sources, and none of them seem as worried about potential harassment as the arguments seem to set forth.
If there truly are procedures that were in place and not followed regarding the broadcast of this Hearing, than the Supreme Court’s ruling is easier to understand. It is no less proper to allow special circumstances to permit the broadcasting of this Hearing than it is to allow special circumstances to prevent the broadcast. It is no less proper to allow the broadcasting of a controversial Hearing through “special procedures” than it is to allow unfounded potential outcomes to disallow the broadcast. It is unfortunate that this Hearing will not be made available for viewing, but it would be improper for an exception to be made based purely on the subject matter and public interest in the case.
For the full article from the Washington Post, click here.
The court cited to arguments of those who claim such a broadcast would intimidate, and possibly lead to physical harm of, witnesses, stating that “While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast." However, in the end the majority denied the right to broadcast on procedural grounds. In doing so, the majority states that they are not ruling on the propriety of broadcasting such Hearings if the proper procedures are followed.
In a dissenting opinion, Justice Breyer, joined by Justices Sotomayor, Stevens and Ginsburg, writes that the majority identifies “no real harm” that would result from this broadcast. Furthermore, the dissent argues that the potentially at-risk witnesses have not asked for any type of Court intervention. All the witnesses set to testify, “are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a 'yes' vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse." As such, the dissenters opine that the majority’s ruling is “unjustified”.
As I stated last week, I believe that the postings of these Hearings on YouTube (or any other video sharing site) have benefits that outweigh any negatives. As the dissenters state, the information regarding witnesses is already available through other sources, and none of them seem as worried about potential harassment as the arguments seem to set forth.
If there truly are procedures that were in place and not followed regarding the broadcast of this Hearing, than the Supreme Court’s ruling is easier to understand. It is no less proper to allow special circumstances to permit the broadcasting of this Hearing than it is to allow special circumstances to prevent the broadcast. It is no less proper to allow the broadcasting of a controversial Hearing through “special procedures” than it is to allow unfounded potential outcomes to disallow the broadcast. It is unfortunate that this Hearing will not be made available for viewing, but it would be improper for an exception to be made based purely on the subject matter and public interest in the case.
For the full article from the Washington Post, click here.
Thursday, January 7, 2010
Proposition 8 Trial to be Made Available on YouTube
In California, Courts continue to hear challenges to Proposition 8. Next week, the U.S. District Court in San Francisco is scheduled to hear this latest challenge; however, a new twist has been added to this hearing. The trial will not be broadcast on television, but Chief U.S. District Judge Vaughn Walker ordered that the hearing be recorded and made available on YouTube.
This is the first time a federal court in California has issued such an order, and this order has given rise to further controversy. Primarily, attorneys for the sponsors of Proposition 8 fear that allowing people outside the courtroom to view the trial will intimidate witnesses. It is already alleged that some supporters of Proposition 8 are being subjected to harassment, and it is feared that any witness that testifies in favor of the measure will be forced to endure the same. Even with the Judge’s discretion to hide witness faces or alter voices on the YouTube posting, attorneys for these supporters fear their witnesses will be subject to intimidation.
However, the Judge reasoned that this issue is of such wide interest to be ideal for the Court’s pilot program of posting such trials. Additionally, most of the witnesses will be campaign officials or academic experts accustomed to speaking in public. Attorneys for the couple challenging the measure feel that court records and proceedings should be public property, and as such support the videotaping of the trial.
The idea of providing video coverage, either live streaming or later posting to a site such as YouTube, is exciting in that people who are interested can actually see what is happening instead of just having to read accounts from people on hand. While television coverage has been available for other courts in the past, it is rare for a federal court to allow viewing of the proceedings. With programs such as this in San Francisco, the mystery surrounding these proceedings can now be exposed, allowing the public to truly understand what is happening in cases of interest such as this.
However, when broadcasting these trials, there is always the interests of the witnesses that need to be protected. It is of no surprise that witnesses supporting Proposition 8 are fearful of harassment based on their testimony. With the use of video broadcasting, even more people will be aware of who these supporters are, leading to greater potential for harassment. Blurring faces or distorting voices will not solve the problem 100% either; viewers will still be able to associate witness names with their actual testimony. As such, it is necessary that issues such as these be considered when deciding whether to allow outside viewing of a trial.
In the end though, the benefits of posting video of this trial seem to outweigh the negatives. There is no doubt that this is an issue of great public interest. Also, with the majority of witnesses being accustomed to public speaking, the addition of video cameras in the courtroom should not be as distracting to them. While there may be some additional harassment of witnesses supporting Proposition 8, it is presumed that much of this trial and the proceedings will be made public record, with or without video of the trial; the addition of video will merely facilitate access to this information that will already be available in the court records.
For the full article from the San Francisco Chronicle, click here.
The trial will commence Monday; once video of the trial is available, it will be found here.
This is the first time a federal court in California has issued such an order, and this order has given rise to further controversy. Primarily, attorneys for the sponsors of Proposition 8 fear that allowing people outside the courtroom to view the trial will intimidate witnesses. It is already alleged that some supporters of Proposition 8 are being subjected to harassment, and it is feared that any witness that testifies in favor of the measure will be forced to endure the same. Even with the Judge’s discretion to hide witness faces or alter voices on the YouTube posting, attorneys for these supporters fear their witnesses will be subject to intimidation.
However, the Judge reasoned that this issue is of such wide interest to be ideal for the Court’s pilot program of posting such trials. Additionally, most of the witnesses will be campaign officials or academic experts accustomed to speaking in public. Attorneys for the couple challenging the measure feel that court records and proceedings should be public property, and as such support the videotaping of the trial.
The idea of providing video coverage, either live streaming or later posting to a site such as YouTube, is exciting in that people who are interested can actually see what is happening instead of just having to read accounts from people on hand. While television coverage has been available for other courts in the past, it is rare for a federal court to allow viewing of the proceedings. With programs such as this in San Francisco, the mystery surrounding these proceedings can now be exposed, allowing the public to truly understand what is happening in cases of interest such as this.
However, when broadcasting these trials, there is always the interests of the witnesses that need to be protected. It is of no surprise that witnesses supporting Proposition 8 are fearful of harassment based on their testimony. With the use of video broadcasting, even more people will be aware of who these supporters are, leading to greater potential for harassment. Blurring faces or distorting voices will not solve the problem 100% either; viewers will still be able to associate witness names with their actual testimony. As such, it is necessary that issues such as these be considered when deciding whether to allow outside viewing of a trial.
In the end though, the benefits of posting video of this trial seem to outweigh the negatives. There is no doubt that this is an issue of great public interest. Also, with the majority of witnesses being accustomed to public speaking, the addition of video cameras in the courtroom should not be as distracting to them. While there may be some additional harassment of witnesses supporting Proposition 8, it is presumed that much of this trial and the proceedings will be made public record, with or without video of the trial; the addition of video will merely facilitate access to this information that will already be available in the court records.
For the full article from the San Francisco Chronicle, click here.
The trial will commence Monday; once video of the trial is available, it will be found here.
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