Category Archives: 1st Amendment

California Bans State Judges From Joining Boy Scouts

By:  Eric G. Young, Esq.
California Supreme Court January 2015

California Supreme Court

On January 23rd, the California Supreme Court unanimously decided that state judges can no longer belong to the Boy Scouts of America.   Under a statewide judicial ethics provision, California’s judges are prohibited from belonging to an organization that “practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.”  (Canon 2C, California Code of Judicial Ethics.)

Until the Court’s decision, this ethics provision was mitigated by two exceptions. First, California judges are permitted to belong to religious organizations notwithstanding those organizations’ discriminatory practices.  Second, judges were permitted to belong to nonprofit youth organizations, an exception implicitly benefiting the Boy Scouts and its member affiliates.

The Court eliminated this second exception, characterizing the Boy Scouts as an organization that practices “invidious discrimination” because it prohibits openly gay Scout leaders from participating in the organization.  In reaching this conclusion, the Court adopted the recommendation of the California Advisory Committee on the Code of Judicial Ethics and the California Judges Association. The decision also brings California in line with a similar prohibition included in 1990 as part of the American Bar Association’s Model Code of Judicial Conduct.

Though unstated in its decision, the underlying rationale for the Court’s decision is, apparently, a concern that state judges retain at least the appearance of impartiality in their conduct.  Such conduct includes the organizations in which state judges declare membership.

On its face, the Court’s decision seems well-founded.  Judicial fairness and impartiality are of paramount concern to society.  Without these, a core function of the judiciary is lost – the ability to follow the rule of law unscrupulously despite the pressures of political will.  And, it is not far-fetched to argue that a judge’s membership in a discriminatory organization like the Boy Scouts gives the appearance that the judge might not be fair and impartial, at least under certain circumstances.

The problem with the California Supreme Court’s approach is that, no matter how laudable its intentions, it may be trampling on state judges’ First Amendment right to free association.  Although not expressly mentioned in the First Amendment, the right to free association was recognized by the U.S. Supreme Court in National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958).  The Court also stressed the importance of the right of free association in Roberts v. United States Jaycees, 468 U.S. 609 (1984) , writing:

“Implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”

As an article in BloombergView pointed out, me, you, all of us have a right to join whatever organizations we see fit.  Consequences may result from our decision to join an organization that discriminates against others.  Nevertheless, the freedom of association protects our right to make that decision.  Should the rule of law be different for state judges?  Might it depend on the organization the judge has joined?  For example, what if the case involved a judge who was a member of the Ku Klux Klan?

The answers to such questions are not necessarily clear in a case involving judges. The U.S. Supreme Court has limited government employees’ First Amendment rights under certain circumstances.  See, e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006) [district attorney had no free speech protection for statements made pursuant to his public duties].  The Court might well decide that similar limitations ought to apply to state judges – particularly when judicial impartiality is at issue – and leave regulation of such conduct up to the states.

On the other hand, in the first campaign finance case to involve the judiciary, the U.S. Supreme Court heard oral arguments on January 20th in Williams-Yulee v. The Florida Bar.  Williams-Yulee raises the issue whether state judicial candidates have a First Amendment right to solicit campaign contributions.  As an NPR article observed, 30 states currently have laws banning such solicitations. Like the ban announced by the California Supreme Court, the reasoning behind laws prohibiting judges from soliciting campaign contributions is to preserve judicial impartiality.

State laws banning campaign solicitations by judges, however, presumably have no more force than state ethics provisions pertaining to judges.  Therefore, if the U.S. Supreme Court disapproves of campaign finance bans and recognizes a First Amendment right among state judicial candidates to solicit campaign contributions – despite impartiality concerns – then state judges may have some right to free association under the First Amendment notwithstanding impartiality concerns.  If that is the case, then California’s ban may be of dubious constitutionality.

Advertisements

Supreme Court Strikes Down Calif. Video Game Law

Reprinted from my blog, Cyber-Esq.  The full Supreme Court opinion is in the Box under “Brown v. Entertainment Merchants Video Game Case:”

On Monday, the U.S. Supreme Court ruled, in a 7-2 opinion, that a 2005 California law aimed at banning the sale of violent video games to children went too far.  Created by California state Senator Leland Yee (D-San Francisco), the law imposed a fine of up to $1,000 on retailers found to be in violation.  However, because of the litigation, the law never went into effect.

This is the highest-level decision to date on the subject of legal restrictions on violent video games.  In the wake of the Court’s decision, one thing is now clear – video games are entitled to the same First Amendment protections as books, plays and movies.  Moreover, the Court emphasized that First Amendment protections are subject only to historically limited categories of speech such as obscenity, incitement or fighting words.  These protections do not wane with the advent of new technologies.  As a result, the state – as California did – cannot create a wholly new category of speech that is unlawful unless it can meet the “strict scrutiny” test; i.e., justify its law with a “compelling state interest.”

On the question of “strict scrutiny,” the Court found that California failed to meet its burden.  Of specific interest, the Court doubted the strength of psychological evidence that claims such games cause children to behave violently or aggressively, at least more than any other available media.  In addition, the Court found that the voluntary rating system – known as the Entertainment Software Ratings Board‘s (ESRB) classification system – already achieved the needs of parents without the government enacting legislation that infringes on free speech.

According to an article in ZDNet:

“the majority of video game resellers in the United States – including major retailers like GameStop and Best Buy – support the use of the…(ESRB) classification system, which rates games based on content and applies an age rating, which is featured on the video game box. It’s a purely voluntary system modeled after the Motion Picture Association of America’s ratings for movies.”

What do you think of the Court’s decision?  In particular, the Court mentioned the fact that California had not limited access to “Saturday morning cartoons” in support of its decision, indicating that this raised the possibility that the state was singling out a particular industry or speaker for sanction.  Is this a defensible analogy to violent video games?

 

Enhanced by Zemanta

Palin Blasts Supremes’ Support Of Anti-Gay Church

The Westboro Baptist Church picketing at the m...

Image via Wikipedia

On March 2, the United States Supreme Court ruled in favor of Westboro Baptist Church’s right to picket funerals, espousing anti-gay rhetoric such as “God Hates Fags,” “You’re Going to Hell” and, as shown in the picture here, “Fags Are Worthy Of Death.”  In an 8-1 vote, the Justices ruled that such behavior was protected speech under the First Amendment.

Chief Justice John Roberts wrote:

But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.

In the case at issue, the church picketed the military funeral of Matthew Snyder.  Interestingly, Matthew was not gay.  Matthew’s father sued and obtained a $5 million verdict against the church, which has now been set aside.

Surprisingly, conservative politician/commentator, Sarah Palin, initially blasted the High Court’s decision on Twitter, tweeting:

Common sense & decency absent as wacko “church” allowed hate msgs spewed@ soldiers’ funerals but we can’t invoke God’s name in public square

Subsequently, in an interview with the Daily Caller, Palin sought to “clarify” her remarks, saying:

Obviously my comment meant that when we’re told we can’t say ‘God bless you’ in graduation speeches or pray before a local football game but these wackos can invoke God’s name in their hate speech while picketing our military funerals, it shows ridiculous inconsistency.

Assuming Palin’s frustration is genuine, which I do for purposes of this article, I can understand where she is coming from.  Frankly, I am saddened that she felt the need to so quickly, sort of retract/clarify herself.  Where she seems to be coming from is quite legitimate, if you ask me.  Why is that, in certain circumstances, we cannot invoke religious verbiage or iconography – even if done so peacefully – but this rogue band of crazy, half-witted, inbred hate-mongers – pretending to be followers of Jesus Christ – get the full panoply of First Amendment freedoms?

As an attorney, I can – intellectually – comprehend the arguments on both sides.  On a personal level, I can even support the outcome, belonging as I do to a traditionally dis-enfranchised group that often needs First Amendment protection to make its own public case.  From a viewpoint based purely on political strategy, I can even see the benefit in exposing such idiots to the light of day rather than forcing them into the shadows where they fester like a stinking boil on the butt of Lady Liberty herself.

And yet, the difficulty I have – and which Palin may be trying her best to express – is that it does seem to be the case that this “church’s” hate-filled expression has received judicial imprimatur, while arguably neutral, civic expressions that merely touch upon religion are so frequently scorned or called into legal question.

What message are we sending?  Peaceful, neutral expressions of faith are a no go.  But, hateful expression is in.  In my opinion, true Christians ought to be concerned about this decision.  And, this “church” ought to be ashamed of themselves.

Furthermore, if they truly believe in Hell, they ought to be very afraid.  As my granny would have said, “Just because you can, doesn’t mean you should.”

Jesus Wept

The Dangerous Workings Of Sarah Palin

If you want to hear the real sound of “100% wacko,” then just listen to Sarah Palin.

In the wake of the shooting of Democratic Congresswoman Gabrielle Giffords, many around the country blame Palin’s “incitement to violence”-style rhetoric and imagery which includes, among other techniques, use of the now-infamous “cross hairs” map that – rather literally – targets Democratic leaders.  The “cross hairs” map is pictured below:

At the time of writing this article, the “cross-hairs” map was still publicly posted on Palin’s Facebook page.  Furthermore, in response to criticism, Palin says that she (and her cronies) are being unjustly blamed for the attack; it is their right to free speech that is being trampled.

In other words – just in case you missed it – Palin is the real victim here.  It is not Congresswoman Giffords whom Palin targeted with her map and other violent-provoking rhetoric.  No way.  It is not the federal judge killed by the gunman.  Uh-uh. It is not even the 5 others that were killed in the shooting, including a 9 year-old girl who just happened to have been born on 9/11/2001.

Nope, Sister Sarah is the victim here – she, her cronies, and, well, I suppose the First Amendment.  You remember the good-ole No. 1, don’t you?  It is part of that pesky document called the Constitution that so many dangerous, half-crazed, ne0-con zealots can never seem to stomach – until it becomes useful to wrap themselves up in it for protection and justification.

Here’s a news bulletin for Sister Sarah – you can put lipstick on a pig, but in the end, you still got a pig.  And, in this case, a rather dangerous pig.  In this case, we have a pig willing to use this tragic event to transform herself into some kind of victim or martyr; or, at the very least,  Constitutional champion.  In so doing, Palin is revealing either a profound degree of psychological disturbance, or she is demonstrating her willingness to stoop deep to promote her own domination agenda.  Maybe both.

Also shocking are those that have publicly defended Palin.  For example, Barbara Walters feels Sister Sarah’s pain, saying that it is unfair to blame her for the shooting.  Although I normally regard Walters higher than most, not on this occasion.  As Lynn M. Paltrow noted in her “Open Letter to Sarah Palin,” Congresswoman Giffords – in particular – criticized Palin’s methods, including the “cross hairs” map.  What a coincidence, eh Babs?!?!

Walters is, of course, known for her own brand of “in your face” journalism.  However, as she should know, speech that promotes the public good by encouraging debate or controversy – even spirited or agitated – is not the same thing as the self-indulgent calculations of a demagogue trolling her cult of personality for violence with military-style words and imagery.  For example, evidence continues to mount suggesting that Palin’s racists comments aimed at President Obama has led to death threats against the President.

If Sarah Palin’s brand of “speech” is protected, then we ought to start now and re-write every Constitutional law textbook so that they feature the likes of Charles Manson and Jim Jones alongside Constitutional champions like Mary Beth Tinker (pictured below), Clarence Earl Gideon and Rosa Parks.  Hyperbole, you say?  Sarah Palin is nothing like Jim Jones?  How would we know that – until it is too late?

What if we suddenly learned that Sarah Palin had direct ties to a terrorist organization whose mission is to cause anarchy and civil unrest in the U.S. to destroy democracy?  What is the gunman in this case had ties to the same organization?  Suddenly, it might seem as though Palin’s comments were something less akin to pure free speech and something strikingly closer to conspiracy.

Even if Palin’s “speech” is protected, let us not dignify that which does not deserve dignity.   A lot of very undignified “speech” is legally protected by our Constitution, whether we like it or not.  That does not mean dignified citizens should go out of their way to be cheerleaders.

Mary Beth Tinker talks to students at Cardozo High about their constitutional rights. In eighth grade, Tinker was suspended for wearing a black armband, inspiring a Supreme Court case that upheld students' freedom of expression. (By James A. Parcell -- The Washington Post)

Enhanced by Zemanta

Is “Sexting” Child Porn Or Protected Free Speech?

That’s the question the 3rd Circuit Court of Appeals in Philadelphia will soon answer in a case of first impression, calling into question the controversial practice of “sexting.”  For those of you unfamiliar with the lingo, “sexting” is the practice of using cell phones to send sexually provocative photos of oneself to another.

According to a report by the Pew Research Center‘s Internet & American Life Project, only 4 percent of teens reported sending sexually explicit photos or videos of themselves.  However, the same report indicated that 15 percent of teens with cell phones ages 12-17 had received nude or nearly nude photos by phone.  You can link to the Pew report here.

This case began after a number of sexually explicit photos were discovered by school officials Tunkhannock School District, northwest of Scranton, PA.  School officials contacted the local district attorney.  Ultimately, the district attorney’s office threatened to charge 16 teens with child pornography if they did not attend a recommended after-school education course and write an essay about why “sexting” is wrong.

All but 3 of the teens agreed to the punishment.  However, 3 girls and their parents went to the federal District Court, where Judge James Munley issued an injunction preventing the district attorney’s office from either forcing them to take the class or charging them with child pornography. A PDF copy of the District Court judge’s ruling is in the Box under Miller v. Skumanick.

The matter was argued to the 3rd Circuit on January 15, 2010.  As soon as a decision is reported, an update will be posted on CRW.  In the meantime, what do you think?  As you consider the issue, bear in mind that the district attorney’s office seeks to charge the teens with child pornography, not any adults.  Regardless of how you may feel about “sexting,” do you think the district attorney is properly using child pornography laws in this case?

Additional articles discussing this case can be linked to here and here.

Reblog this post [with Zemanta]

Supreme Court Declines “Vamos a Cuba” Case

Vamos a Cuba
Image via Wikipedia

Yesterday, the U.S. Supreme Court decided not to hear a bitterly contested First Amendment case arising out of Miami-Dade County, Florida, and which has come to be known as the “Vamos a Cuba” Case.  “Vamos a Cuba,” or “A Visit to Cuba,” is a children’s book at the center of the controversy, which school board officials removed from the school library.

As reported in yesterday’s Christian Science Monitor, school board officials determined that the book portrayed an inaccurate picture of life in Cuba, based largely on one parent’s offense to the following statement:  “People in Cuba eat, work, and go to school like you do.”  “Vamos a Cuba” is part of a 24-volume set of books intended to introduce U.S. children to life in other countries.

The ACLU filed suit against the school board claiming that the board’s actions constituted censorship in violation of the 1st Amendment.  The U.S. District Court agreed, issuing an injunction commanding the school board to restore the book to the library shelves.  The school board then filed an appeal, and the 11th Circuit Court of Appeals disagreed with the trial court’s ruling and lifted the injunction.

By refusing to take up the case, the Supreme Court will let the 11th Circuit’s ruling – and the school board’s actions – stand.

Miami-Dade County has a long history of political controversy, first making headlines with Anita Bryant‘s prominent campaigning in 1977 to repeal a local ordinance that prohibited discrimination on the basis of sexual orientation.

What is remarkable about this case, in my opinion, is the fact that the school board convened not 1, but 2, panels to review the book and decide if it should stay or go.  The first panel consisted of 8 individuals, voting 7 – 1 in favor of the book staying on the library shelves.  Apparently, not to be dissuaded, the board convened a second, larger panel of 16 individuals.  They voted 15 – 1 in favor of the book.  Despite these resounding vote totals, the school board then voted 6 – 1 in favor of removing the book.

Another point that bears mentioning is that the school board also rejected any argument that the library could acquire other books about Cuba that might present a more “well-rounded” view of the country.

The U.S. Supreme Court has tinkered with Tinker v. Des Moines School District for years now, gradually whittling away at young people’s freedom of expression and First Amendment liberties.  This time, I fear, they struck a potentially worse blow to the First Amendment by not getting involved.

Do you agree with the school board’s actions in this particular case?  Should a local school board be permitted to remove a book from the public school’s library because the board believes it paints an inaccurate viewpoint about another nation?  What if a school board decided that the Holocaust did not actually happen, and banned any books referencing it?

Reblog this post [with Zemanta]