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.
Thursday, August 5, 2010
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.
Thursday, December 3, 2009
NY Senate Denies Same Sex Marriage
Yesterday, same sex marriage rights were dealt a blow as the New York State Senate decisively rejected a bill that would have allowed such nuptials. Voting 38-to-24 against the bill, this denial of rights signals a political shift away from same sex marriage rights.
Prior to the vote, supporters of the bill felt they had anywhere from 26-35% of the Senators who would vote in favor of these rights. Senators considered “politically vulnerable” also voted against this bill. However, all Republicans voted against the Bill, as well as most members from upstate New York and Long Island. Support for the bill was primarily found to be from African American and female Senators, as well as from those representing New York City and Westchester County.
On the floor, all but one person speaking about the bill did so in attempts to have it approved. Aside from the state’s Roman Catholic bishops, who lobbied for the Bill’s defeat, most opponents of this bill “remained mostly silent”.
Republican supporters of the bill claimed that they had a deal with Democrats where only a handful of Republican votes for the bill would be required in order to ensure passage; however, when it became apparent the bill would not pass, even these supporters failed to vote for the bill’s passage. Some supporters of this bill claim that a number of Senators exhibited “political cowardice”; having stated support initially for the bill, they quickly changed their votes once it became evident the bill would not pass. It is claimed that this issue became too “politically freighted” for these Senators to support if they could avoid it.
Senators voting against the bill claim that the constituency is more worried currently about the economy and were not ready for a change in the definition of “marriage” at the present time. With the current economic condition, some feel that the majority of New Yorkers are too focused on employment and government issues to care enough about a same sex marriage bill. With this defeat, it is expected another such bill will not be viable until 2011 when a new Legislature takes office.
It is true that the economy and government spending are a huge concern to voters everywhere; but, approving same sex marriage affects neither of these areas. Same sex marriage in no way requires increases in government spending and does not affect the availability of employment.
Also, the vote being affected by “political cowardice” is troublesome. Senators have every right to change their vote up until the time it is actually cast, but to do so because they don’t think anybody else is going to vote with them Is problematic. If these Senators who expressed support for the Bill prior to the vote truly believed in same sex rights, then no amount of “peer pressure” should be sufficient to change their minds; if instead they gave support without actually meaning it, then there is the problem of trust and honesty of these politicians by their voters and other lobbying groups.
For the full article from the New York Times, click here.
Prior to the vote, supporters of the bill felt they had anywhere from 26-35% of the Senators who would vote in favor of these rights. Senators considered “politically vulnerable” also voted against this bill. However, all Republicans voted against the Bill, as well as most members from upstate New York and Long Island. Support for the bill was primarily found to be from African American and female Senators, as well as from those representing New York City and Westchester County.
On the floor, all but one person speaking about the bill did so in attempts to have it approved. Aside from the state’s Roman Catholic bishops, who lobbied for the Bill’s defeat, most opponents of this bill “remained mostly silent”.
Republican supporters of the bill claimed that they had a deal with Democrats where only a handful of Republican votes for the bill would be required in order to ensure passage; however, when it became apparent the bill would not pass, even these supporters failed to vote for the bill’s passage. Some supporters of this bill claim that a number of Senators exhibited “political cowardice”; having stated support initially for the bill, they quickly changed their votes once it became evident the bill would not pass. It is claimed that this issue became too “politically freighted” for these Senators to support if they could avoid it.
Senators voting against the bill claim that the constituency is more worried currently about the economy and were not ready for a change in the definition of “marriage” at the present time. With the current economic condition, some feel that the majority of New Yorkers are too focused on employment and government issues to care enough about a same sex marriage bill. With this defeat, it is expected another such bill will not be viable until 2011 when a new Legislature takes office.
It is true that the economy and government spending are a huge concern to voters everywhere; but, approving same sex marriage affects neither of these areas. Same sex marriage in no way requires increases in government spending and does not affect the availability of employment.
Also, the vote being affected by “political cowardice” is troublesome. Senators have every right to change their vote up until the time it is actually cast, but to do so because they don’t think anybody else is going to vote with them Is problematic. If these Senators who expressed support for the Bill prior to the vote truly believed in same sex rights, then no amount of “peer pressure” should be sufficient to change their minds; if instead they gave support without actually meaning it, then there is the problem of trust and honesty of these politicians by their voters and other lobbying groups.
For the full article from the New York Times, click here.
Thursday, November 19, 2009
Ohio's New Lethal Injection Policy
With the debate continuing regarding the cruelty and potential unconstitutionality of the current lethal injection procedure (a 3 drug “cocktail”), Ohio has become the first state to switch from the controversial “cocktail” to a single drug. Although state officials state that this change has little to nothing to do with the national debate, Ohio’s action may persuade other states to follow suit.
According to officials, this change in procedure is due to a failed effort in September to execute an inmate. The new procedure will call for the injection of anesthetic into the veins of the prisoner in an amount that should kill the person. If this does not work, or the veins of the inmate (as in the case of the failed execution in September) make the injection of anesthetic unsuitable, two drugs will then be injected directly into the prisoner’s muscles.
Terry J. Collins, director of the Ohio Department of Rehabilitation and Correction, has stated that “We figure we’re going to get sued whatever we do with the death penalty.” However, he claims that the new procedure, including the backup method, will be one that works. Additionally, by remaining with an intravenous method as the primary manner and switching to a single drug makes litigation and opposition from death penalty opponents less likely.
By retaining the intravenous method, Ohio officials are also implicitly saying that they don’t feel this method is cruel or unconstitutional. However, Ohio is one of few states that has a law which explicitly guarantees prisoners a quick and painless death; the use of the three drug “cocktail” did not always ensure such results as it had the potential to cause excruciating pain.
The United States Supreme Court has previously ruled that execution procedures similar to those previously used in Ohio were constitutional, as the method employed is not required to avoid all risk of pain. It is specifically Ohio law that “demands the avoidance of any unnecessary risk of pain and, as well, any unnecessary expectation by the condemned person that his execution may be agonizing or excruciatingly painful” which has helped lead to this change. As such, other states may not so readily follow Ohio’s lead in changing their death penalty procedures.
Still, change needs to start somewhere. With Ohio acting as a guinea pig for change, other states may eventually be encouraged to follow based on the success or failure Ohio has with these new procedures. Other states will be able to tinker with their procedures based on the results in Ohio in order to arrive at the most efficient and least cruel methods for execution. So, while changes nationwide may not occur overnight, hopefully Ohio’s first step towards reform will cause other states to rethink their procedures over time.
For the full article from the New York Times, click here.
According to officials, this change in procedure is due to a failed effort in September to execute an inmate. The new procedure will call for the injection of anesthetic into the veins of the prisoner in an amount that should kill the person. If this does not work, or the veins of the inmate (as in the case of the failed execution in September) make the injection of anesthetic unsuitable, two drugs will then be injected directly into the prisoner’s muscles.
Terry J. Collins, director of the Ohio Department of Rehabilitation and Correction, has stated that “We figure we’re going to get sued whatever we do with the death penalty.” However, he claims that the new procedure, including the backup method, will be one that works. Additionally, by remaining with an intravenous method as the primary manner and switching to a single drug makes litigation and opposition from death penalty opponents less likely.
By retaining the intravenous method, Ohio officials are also implicitly saying that they don’t feel this method is cruel or unconstitutional. However, Ohio is one of few states that has a law which explicitly guarantees prisoners a quick and painless death; the use of the three drug “cocktail” did not always ensure such results as it had the potential to cause excruciating pain.
The United States Supreme Court has previously ruled that execution procedures similar to those previously used in Ohio were constitutional, as the method employed is not required to avoid all risk of pain. It is specifically Ohio law that “demands the avoidance of any unnecessary risk of pain and, as well, any unnecessary expectation by the condemned person that his execution may be agonizing or excruciatingly painful” which has helped lead to this change. As such, other states may not so readily follow Ohio’s lead in changing their death penalty procedures.
Still, change needs to start somewhere. With Ohio acting as a guinea pig for change, other states may eventually be encouraged to follow based on the success or failure Ohio has with these new procedures. Other states will be able to tinker with their procedures based on the results in Ohio in order to arrive at the most efficient and least cruel methods for execution. So, while changes nationwide may not occur overnight, hopefully Ohio’s first step towards reform will cause other states to rethink their procedures over time.
For the full article from the New York Times, click here.
Thursday, November 12, 2009
Life Imprisonment Without Parole for Minors
On Monday, the United States Supreme Court heard arguments about whether sentencing minors to lifetime imprisonment without the possibility of parole violates the 8th Amendment to the United States Constitution. Two men who were convicted in Florida as minors argued that such a punishment is cruel and unusual.
Attorneys, in response to Justice Roberts’ inquiry as to where the 8th Amendment distinguishes based on age, argued that the Court in 2005 ruled it unconstitutional for any person under the age of 18 to be executed under the death penalty. Roberts seemed unconvinced however, answering that “death is different”. Still, those claiming violations of the 8th Amendment argued that the 2005 ruling not only ruled that “death is different”, but that minors are different as well.
Justice Kennedy echoed Justice Roberts concern in asking, “Why does a juvenile have a constitutional right to hope, but an adult does not?" To this, attorneys claimed that minors are not yet fully developed, and that they still have a chance to reform. Attorneys claimed that these minors should not be held to the same level of culpability as adults.
Justices Antonin Scalia and Samuel A. Alito Jr., moving past the distinguishing characteristics of minors, claimed that this punishment was about retribution for serious crimes. Whether these crimes are perpetrated by adults or minors, the Justices claimed that society has a right to justice. Justice Alito went on to recall a number of offenses committed by minors that were "so horrible that [he] couldn't have imagined them if [he] hadn't actually seen them." He claims that such crimes should not be excused or the seriousness diminished, as well as the punishment, just because they were committed by minors.
The Justices still seem divided on this issue, making it all the more uncertain of the final outcome. Justice Ginsberg seems to agree with the attorneys representing the fact that minors are still developing and have a more likely chance to reform; Justice Sotomayor seemed troubled by the fact that there is no minimum age at which a minor could be imprisoned for life without an opportunity for parole.
As Justice Roberts pointed out in the case, “death is different”. But to imprison these people from the age of minority for the rest of their life with no chance of parole may be viewed as a quasi-death. To imprison these minors in such a way gives them no chance for a true future and also no reason to reform. Without the hope of an opportunity to one day be released, there is nothing for these minors to look or forward to or work towards.
Justices Scalia and Alito are also correct in that a large part of the justice system is about retribution for heinous crimes. Justice is one of the primary goals of our judicial system. However, one of the primary goals of the penal system is for reform. Minors imprisoned at the age of 13 are still developing and have a chance to reform; however, once again, without an opportunity for parole, they have no reason to seek reform, or even if they do they will achieve no benefit (other than internal) from such reformation. An opportunity for parole for these minors would provide them with hope, while still allowing a board to determine whether they have actually been reformed or not. By giving them this opportunity, it does not guarantee they will be paroled, but will reward those who truly have changed.
For the full article from the Washington Post, click here.
For more information on Sullivan v. Florida, click here.
For more information on Graham v. Florida, click here
Attorneys, in response to Justice Roberts’ inquiry as to where the 8th Amendment distinguishes based on age, argued that the Court in 2005 ruled it unconstitutional for any person under the age of 18 to be executed under the death penalty. Roberts seemed unconvinced however, answering that “death is different”. Still, those claiming violations of the 8th Amendment argued that the 2005 ruling not only ruled that “death is different”, but that minors are different as well.
Justice Kennedy echoed Justice Roberts concern in asking, “Why does a juvenile have a constitutional right to hope, but an adult does not?" To this, attorneys claimed that minors are not yet fully developed, and that they still have a chance to reform. Attorneys claimed that these minors should not be held to the same level of culpability as adults.
Justices Antonin Scalia and Samuel A. Alito Jr., moving past the distinguishing characteristics of minors, claimed that this punishment was about retribution for serious crimes. Whether these crimes are perpetrated by adults or minors, the Justices claimed that society has a right to justice. Justice Alito went on to recall a number of offenses committed by minors that were "so horrible that [he] couldn't have imagined them if [he] hadn't actually seen them." He claims that such crimes should not be excused or the seriousness diminished, as well as the punishment, just because they were committed by minors.
The Justices still seem divided on this issue, making it all the more uncertain of the final outcome. Justice Ginsberg seems to agree with the attorneys representing the fact that minors are still developing and have a more likely chance to reform; Justice Sotomayor seemed troubled by the fact that there is no minimum age at which a minor could be imprisoned for life without an opportunity for parole.
As Justice Roberts pointed out in the case, “death is different”. But to imprison these people from the age of minority for the rest of their life with no chance of parole may be viewed as a quasi-death. To imprison these minors in such a way gives them no chance for a true future and also no reason to reform. Without the hope of an opportunity to one day be released, there is nothing for these minors to look or forward to or work towards.
Justices Scalia and Alito are also correct in that a large part of the justice system is about retribution for heinous crimes. Justice is one of the primary goals of our judicial system. However, one of the primary goals of the penal system is for reform. Minors imprisoned at the age of 13 are still developing and have a chance to reform; however, once again, without an opportunity for parole, they have no reason to seek reform, or even if they do they will achieve no benefit (other than internal) from such reformation. An opportunity for parole for these minors would provide them with hope, while still allowing a board to determine whether they have actually been reformed or not. By giving them this opportunity, it does not guarantee they will be paroled, but will reward those who truly have changed.
For the full article from the Washington Post, click here.
For more information on Sullivan v. Florida, click here.
For more information on Graham v. Florida, click here
Thursday, November 5, 2009
The Extent of Prosecutorial Immunity
Yesterday, the United States Supreme Court heard arguments regarding the reach of prosecutorial immunity. The Court is being asked to decide whether prosecutors can be held liable for actions leading to wrongful imprisonment through coerced testimony and fail to provide all relevant facts.
In 1978, Curtis W. McGhee Jr. and Terry Harrington were convicted of murdering a security guard who had previously been a police officer in Council Bluffs. The prosecutors in the case, Joseph Hrvol and David Richter, relied heavily on the testimony of a 16-year old witness; however, this witness had originally identified other suspects and originally reported incorrectly to police on several key aspects of the crime.
In 2003, McGhee and Harrington were released from prison after it became known that the prosecutors failed to reveal the fact that they had initially identified another individual as the suspected murderer. The individual in question had actually been seen near the crime scene, with a weapon similar to that used in the crime, and failed a polygraph relating to the crime. McGhee and Harrington also alleged that prosecutors had coerced witnesses into giving false testimony. These witnesses later recanted their testimony regarding the crime.
Prosecutors claim they need unqualified immunity in order to ensure their ability to perform their job functions properly. Prosecutors claim that this immunity needs to apply to trial work, as well as work performed prior to charging a suspect. Without such immunity, there is a fear that prosecutors would constantly be sued by convicted criminals.
McGhee’s and Harrington’s lawyer argued it unfair that police officers could be held liable for their pretrial wrongdoings, but prosecutors could not be. He also argued it inconsistent that prosecutors only have limited liability for violating a suspect’s Constitutional rights before trial, but could not be sued for using any manufactured testimony in court.
Prosecutorial immunity makes great sense in most instances. Every time a prosecutor is successful in his or her case, they do not want to have to worry about being sued. They must be able to rely on witness testimony when presenting their cases, and should not be held accountable for any wrongdoing they have no place in procuring.
However, in this case, the argument is that the prosecutors were the ones who hid evidence and aided in creating false testimony. They did not present a witness in good faith that later turned out to be lying; instead, they proffered a witness who had provided incorrect facts and identified other suspects. They ignored this information and hid the facts of the other suspect from the prosecutors and allegedly coerced witnesses to testify against the two individuals who were wrongfully imprisoned. But for the actions of these prosecutors, these two individuals would most likely not have been convicted, or for that matter may not have been charged in the first place. In cases such as this, it is hard to see why these prosecutors should be granted prosecutorial immunity for acts they did not perform in good faith and the spirit of their positions.
For the full article from the Washington Post, click here.
For more information on the case of Pottawattamie County v. McGhee, click here.
In 1978, Curtis W. McGhee Jr. and Terry Harrington were convicted of murdering a security guard who had previously been a police officer in Council Bluffs. The prosecutors in the case, Joseph Hrvol and David Richter, relied heavily on the testimony of a 16-year old witness; however, this witness had originally identified other suspects and originally reported incorrectly to police on several key aspects of the crime.
In 2003, McGhee and Harrington were released from prison after it became known that the prosecutors failed to reveal the fact that they had initially identified another individual as the suspected murderer. The individual in question had actually been seen near the crime scene, with a weapon similar to that used in the crime, and failed a polygraph relating to the crime. McGhee and Harrington also alleged that prosecutors had coerced witnesses into giving false testimony. These witnesses later recanted their testimony regarding the crime.
Prosecutors claim they need unqualified immunity in order to ensure their ability to perform their job functions properly. Prosecutors claim that this immunity needs to apply to trial work, as well as work performed prior to charging a suspect. Without such immunity, there is a fear that prosecutors would constantly be sued by convicted criminals.
McGhee’s and Harrington’s lawyer argued it unfair that police officers could be held liable for their pretrial wrongdoings, but prosecutors could not be. He also argued it inconsistent that prosecutors only have limited liability for violating a suspect’s Constitutional rights before trial, but could not be sued for using any manufactured testimony in court.
Prosecutorial immunity makes great sense in most instances. Every time a prosecutor is successful in his or her case, they do not want to have to worry about being sued. They must be able to rely on witness testimony when presenting their cases, and should not be held accountable for any wrongdoing they have no place in procuring.
However, in this case, the argument is that the prosecutors were the ones who hid evidence and aided in creating false testimony. They did not present a witness in good faith that later turned out to be lying; instead, they proffered a witness who had provided incorrect facts and identified other suspects. They ignored this information and hid the facts of the other suspect from the prosecutors and allegedly coerced witnesses to testify against the two individuals who were wrongfully imprisoned. But for the actions of these prosecutors, these two individuals would most likely not have been convicted, or for that matter may not have been charged in the first place. In cases such as this, it is hard to see why these prosecutors should be granted prosecutorial immunity for acts they did not perform in good faith and the spirit of their positions.
For the full article from the Washington Post, click here.
For more information on the case of Pottawattamie County v. McGhee, click here.
Thursday, October 29, 2009
The FBI and the Right of Privacy
In response to a Freedom of Information lawsuit, the FBI has recently made public its Domestic Investigations and Operations Guide. This document details the FBI’s interpretation of domestic intelligence-gathering rules which were relaxed under the Bush Administration.
In order to begin an investigation into a suspected terrorist, the initial requirements set forth under the FBI’s interpretation are rather low. This guide also allows for the use of ethnicity and/or religion to be used as a factor for determining persons of interest, as long as ethnicity and/or religion are not the only factors used. While information gathering may not be based on “arbitrary or groundless speculation,” the factual evidence required to start such an investigation is not clearly defined. The FBI claims that the flexibility provided by their interpretation is required in order to properly perform a proactive sweep for would-be terrorists residing within the United States.
If an investigation is commenced, the FBI can then send out “confidential informants to infiltrate organizations and following and photographing targets in public.” Even if nothing is found, the information gathered is then stored in the FBI databases. The FBI had the ability to perform such investigation previously regarding criminal activities, but greater justification was required to do so (at least prior to the FBI’s new interpretations).
Some are concerned that this broad interpretation interferes with citizens’ civil liberties, as the FBI’s interpretation allows them the “right to collect broad personal information about people they don’t even suspect of wrongdoing.” However, the FBI’s general counsel claims that this interpretation is not as threatening as some fear, and that civil liberties still will be protected; she claims that the FBI’s job is not to wait to investigate somebody until they perform some type of terrorist activity, but to ensure they don’t get a chance to do so at all.
The ability of the FBI, or any government agency, to collect data on its citizens for no more of a reason than basically a hunch is rather disturbing. While the FBI may deny it (or even prevent it in writing), this opens the door for profiling of citizens based on religion or ethnicity. The FBI has already used this new-found power to investigate whole Somali communities rather than just those people for whom they had prior information.
While the threat of future terrorist activity on United States soil is frightening, the government ‘s exploitation of this fear to expand their powers and reduce citizens’ rights is even more frightening. With this proactive approach and lack of properly defined guidelines, the FBI has the ability to gather information on almost anybody, and any data gathered, whether the person is found of wrongdoing or not, will be stored in the FBI’s database; with such procedures in place, many innocent citizens will have their right to privacy violated for no sufficient reason.
For the full article from the New York Times, click here.
In order to begin an investigation into a suspected terrorist, the initial requirements set forth under the FBI’s interpretation are rather low. This guide also allows for the use of ethnicity and/or religion to be used as a factor for determining persons of interest, as long as ethnicity and/or religion are not the only factors used. While information gathering may not be based on “arbitrary or groundless speculation,” the factual evidence required to start such an investigation is not clearly defined. The FBI claims that the flexibility provided by their interpretation is required in order to properly perform a proactive sweep for would-be terrorists residing within the United States.
If an investigation is commenced, the FBI can then send out “confidential informants to infiltrate organizations and following and photographing targets in public.” Even if nothing is found, the information gathered is then stored in the FBI databases. The FBI had the ability to perform such investigation previously regarding criminal activities, but greater justification was required to do so (at least prior to the FBI’s new interpretations).
Some are concerned that this broad interpretation interferes with citizens’ civil liberties, as the FBI’s interpretation allows them the “right to collect broad personal information about people they don’t even suspect of wrongdoing.” However, the FBI’s general counsel claims that this interpretation is not as threatening as some fear, and that civil liberties still will be protected; she claims that the FBI’s job is not to wait to investigate somebody until they perform some type of terrorist activity, but to ensure they don’t get a chance to do so at all.
The ability of the FBI, or any government agency, to collect data on its citizens for no more of a reason than basically a hunch is rather disturbing. While the FBI may deny it (or even prevent it in writing), this opens the door for profiling of citizens based on religion or ethnicity. The FBI has already used this new-found power to investigate whole Somali communities rather than just those people for whom they had prior information.
While the threat of future terrorist activity on United States soil is frightening, the government ‘s exploitation of this fear to expand their powers and reduce citizens’ rights is even more frightening. With this proactive approach and lack of properly defined guidelines, the FBI has the ability to gather information on almost anybody, and any data gathered, whether the person is found of wrongdoing or not, will be stored in the FBI’s database; with such procedures in place, many innocent citizens will have their right to privacy violated for no sufficient reason.
For the full article from the New York Times, click here.
Thursday, October 8, 2009
Animal Cruelty and the First Amendment
This week, the United States Supreme Court was asked to rule on the First Amendment as it relates to animal cruelty. In United States v. Stevens, the Court was asked “to reinstate a 10-year-old federal law that bans the production and sale of videos that show torture, mutilation and death of animals.” By reinstating this federal law, videos depicting such things as dog fighting and cock fighting; also, so-called “crush” videos would lose any First Amendment protections they may have once been covered by.
The last time the Court ruled that speech was found unredeeming of First Amendment protection was 25 years ago; in that instance, the Court ruled that child pornography was not protected speech under the First Amendment. After oral arguments on Tuesday, it does not seem likely that the Court will add videos of animal cruelty to this list of unprotected speech.
Supporting the reinstatement of this federal law are groups such as the Humane Society. Their claim is that the actions depicted are already deemed illegal under state and federal law, and as such depictions of these acts on video should also be illegal. Supporters of reinstating the law claim that the law will only illegalize speech depicting "the most extreme and unimaginable acts of cruelty,” and as such there "should be no safe harbor in the First Amendment for those who perpetrate them."
Those opposing the reinstatement of the law claim that the language of the law is too overbroad. It is feared that this language of this law can be read to extend to videos of hunting and bullfighting, as well as to any documentaries that may actually be discouraging cruelty to animals. With the language how it reads now, the decision of what is and isn’t protected by the First Amendment would have to be subjectively decided by the government.
Being a believer in the need for First Amendment protections, as well as an opponent to any form of animal cruelty, this case at first glance seems like one that would cause a conflict between the two beliefs. However, if the language of the law is in fact so broad that it could allow the government to ban videos in which the message is to prevent animal cruelty, then it seems as if this law is not the proper answer to disallowing said videos.
There are already laws against dog fighting, cock fighting and cruelty to animals. To take the next step to ban videos of this, while admirable, apparently does more than it is intended to. At the same time, it is not the government’s job to be the morality police of its citizens, especially at the expense of limiting Constitutional rights. Cruelty to animals is not the same as child pornography, and does not require the same level of government aid to prevent. It is sad what is happening to these animals in these videos, and it is also illegal (at least in the United States); still, to overly limit First Amendment protection violates the Constitutional rights of citizens and as such it would seem appropriate in this case that the law not be reinstated as is currently written.
For the article from the Washington Post, click here.
The last time the Court ruled that speech was found unredeeming of First Amendment protection was 25 years ago; in that instance, the Court ruled that child pornography was not protected speech under the First Amendment. After oral arguments on Tuesday, it does not seem likely that the Court will add videos of animal cruelty to this list of unprotected speech.
Supporting the reinstatement of this federal law are groups such as the Humane Society. Their claim is that the actions depicted are already deemed illegal under state and federal law, and as such depictions of these acts on video should also be illegal. Supporters of reinstating the law claim that the law will only illegalize speech depicting "the most extreme and unimaginable acts of cruelty,” and as such there "should be no safe harbor in the First Amendment for those who perpetrate them."
Those opposing the reinstatement of the law claim that the language of the law is too overbroad. It is feared that this language of this law can be read to extend to videos of hunting and bullfighting, as well as to any documentaries that may actually be discouraging cruelty to animals. With the language how it reads now, the decision of what is and isn’t protected by the First Amendment would have to be subjectively decided by the government.
Being a believer in the need for First Amendment protections, as well as an opponent to any form of animal cruelty, this case at first glance seems like one that would cause a conflict between the two beliefs. However, if the language of the law is in fact so broad that it could allow the government to ban videos in which the message is to prevent animal cruelty, then it seems as if this law is not the proper answer to disallowing said videos.
There are already laws against dog fighting, cock fighting and cruelty to animals. To take the next step to ban videos of this, while admirable, apparently does more than it is intended to. At the same time, it is not the government’s job to be the morality police of its citizens, especially at the expense of limiting Constitutional rights. Cruelty to animals is not the same as child pornography, and does not require the same level of government aid to prevent. It is sad what is happening to these animals in these videos, and it is also illegal (at least in the United States); still, to overly limit First Amendment protection violates the Constitutional rights of citizens and as such it would seem appropriate in this case that the law not be reinstated as is currently written.
For the article from the Washington Post, click here.
Thursday, October 1, 2009
The 2nd Amendment and the States
The United States Supreme Court is scheduled to hear challenges to handgun laws in Chicago and Oak Park, Illinois. The Supreme Court last year ruled in District of Columbia v. Heller that the 2nd Amendment provides for handgun ownership in relation to the “federal government and federal enclaves such as Washington. “ In hearing these challenges to gun laws in Illinois, the Supreme Court will rule on state and local laws and whether these laws are constitutional in regards to the 2nd Amendment.
According to Alan Gura, the lawyer who filed the challenges, the laws in question is “identical” to the law that was challenged in Heller. “Gura hopes for a ‘definitive ruling’ on Chicago's restrictions and said he thinks that at a minimum the court would strike the same kind of handgun ban it found objectionable in Washington. “
Gun-control advocates show little concern for whether the laws in question are found unconstitutional. Even though many expect the Court to find that the Second Amendment applies to states and municipalities, gun-control advocates remain confident that, as in Heller, the application of the 2nd Amendment as applied to states will be narrowed to limit guns in the home for self-defense purposes.
The decision in Heller was split 5-4 last year. For the minority, the more liberal judges argued that the 2nd Amendment only guaranteed the right to bear arms to maintain groups such as militias. Still, many expect the five Justices from the majority to prevail once again, which may lead to challenges to state gun laws. Such challenges are expected to include challenges to such things as: gun registration; storage requirements; where guns may be carried; and, how (i.e. concealed or not) weapons may be carried.
Once again, it will be interesting to view how the Justices interpret and apply the 2nd Amendment in this case. Perhaps one of the most divisive and debated Amendments, the Supreme Court finally has a chance to make “definitive ruling” on the matter. However, even if such a ruling is handed down, it appears that arguments as to related issues will only get started.
For the full article from the Washington Post, click here.
According to Alan Gura, the lawyer who filed the challenges, the laws in question is “identical” to the law that was challenged in Heller. “Gura hopes for a ‘definitive ruling’ on Chicago's restrictions and said he thinks that at a minimum the court would strike the same kind of handgun ban it found objectionable in Washington. “
Gun-control advocates show little concern for whether the laws in question are found unconstitutional. Even though many expect the Court to find that the Second Amendment applies to states and municipalities, gun-control advocates remain confident that, as in Heller, the application of the 2nd Amendment as applied to states will be narrowed to limit guns in the home for self-defense purposes.
The decision in Heller was split 5-4 last year. For the minority, the more liberal judges argued that the 2nd Amendment only guaranteed the right to bear arms to maintain groups such as militias. Still, many expect the five Justices from the majority to prevail once again, which may lead to challenges to state gun laws. Such challenges are expected to include challenges to such things as: gun registration; storage requirements; where guns may be carried; and, how (i.e. concealed or not) weapons may be carried.
Once again, it will be interesting to view how the Justices interpret and apply the 2nd Amendment in this case. Perhaps one of the most divisive and debated Amendments, the Supreme Court finally has a chance to make “definitive ruling” on the matter. However, even if such a ruling is handed down, it appears that arguments as to related issues will only get started.
For the full article from the Washington Post, click here.
Tuesday, August 18, 2009
Free PACER?
PACER (Public Access to Court Electronic Records) has received a lot of negative press lately for not providing free public access to federal court docket information. Well, that isn’t true anymore . . . anyone with Internet access can now retrieve Pacer dockets 100% free from Courtport, LLC.
With the announcement of RECAP last Friday, Courtport, LLC opted to announce today the launch of its free federal court docket retrieval site, Free Court Dockets.
What's the difference between RECAP and Free Court Dockets?
The difference is simple -- RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court's pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically donates a copy of that document to a public repository hosted at the Internet Archive; however, with Free Court Dockets, the user bypasses PACER entirely and hass access to full court dockets from any U.S. district civil, criminal, or bankruptcy court, as well as from the U.S. Supreme Court, the U.S. Court of Claims, and the U.S. Court of International Trade.
For full details about Free Court Dockets, please read the press release here.
With the announcement of RECAP last Friday, Courtport, LLC opted to announce today the launch of its free federal court docket retrieval site, Free Court Dockets.
What's the difference between RECAP and Free Court Dockets?
The difference is simple -- RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court's pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically donates a copy of that document to a public repository hosted at the Internet Archive; however, with Free Court Dockets, the user bypasses PACER entirely and hass access to full court dockets from any U.S. district civil, criminal, or bankruptcy court, as well as from the U.S. Supreme Court, the U.S. Court of Claims, and the U.S. Court of International Trade.
For full details about Free Court Dockets, please read the press release here.
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