Archive for the ‘Constitutional Law’ Category

American_Sniper_posterA board at the University of Maryland announced it will postpone indefinitely the screening of “American Sniper” on campus after Muslim organizations opposed the watching of the film as anti-Islamic and offensive. I have not seen the movie, but the effort to prevent other people from watching films set badly with me both in terms of free speech as well as the pluralistic values governing university communities. The movie was critically acclaimed and nominated for six oscars, including best picture, actor (Bradley Cooper) and adapted screenplay. Even people like Michele Obama have publicly proclaimed how the movie touched them. This is not to say that they are right. However, opposing other people from seeing a major artistic work is part of a growing effort to curtail free speech in the West and particularly on college campuses.

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Wedding_cake_with_pillar_supports,_2009There is good news for those of us who support same-sex marriage (as well as an indication in the remarkable turnaround in public attitude in a relatively short time). According to a new Washington Post-ABC News poll, 6 out of 10 Americans now support same-sex marriage and believe that states should not be allowed to define marriage as only between a man and a woman. That is a record showing for same-sex marriage.

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220px-BostonSuspect2The testimony at the penalty phase for Boston Marathon bomb Dzhokhar Tsarnaev could not be more damning in terms of the pain and suffering that he and his brother caused. Survivors detailed their suffering from injuries as well as lost loved ones with pictures that left many in tears. Such evidence is entirely appropriate as the jury debates whether to impose the death penalty on the 21-year-old defendant. One piece of evidence, however, is more controversial: the court allowed the prosecutors to show the jury a videotape of Tsarnaev flipping the bird at a camera shortly before his arraignment to show that he was not repentant after his arrest. The question is whether such a videotape is clearly probative or too prejudicial for the jury. It is a demonstration of how far the prosecutor is willing to go (even in the creation of an appellate issue) to secure a death sentence in the case.

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Screen Shot 2015-04-21 at 10.50.12 AMWe have another video of a police officer destroying the cellphone of a citizen who is filming an arrest in clear violation of her constitutional rights. New reports indicate that the officer holding an automatic weapon in the videotape below who is seen charging the woman and smashing her phone on the ground is a United States Marshal in California.

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By Mike Appleton, Weekend Contributor

“Those situations in which the Court may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area.”

-Sherbert v. Verner, 374 U.S. 398, 423 (1963) (Harlan, J., dissenting)

Were Maurice Bessinger still alive, he would undoubtedly be a strong supporter of the Religious Freedom Restoration Act. Had that law been available in 1964, history might well read differently.

Mr. Bessinger owned a small chain of barbecue restaurants in South Carolina known as “Piggie Park.” As a matter of company policy, African Americans were prohibited from consuming food on the premises of his restaurants and were required to place and pick up orders from the kitchen window.

When a class action was filed against Mr. Bessinger under the public accommodations provisions of the Civil Rights Act of 1964, among his defenses was the claim that the Act violated the First Amendment because “his religious beliefs compel him to oppose any integration of the races whatsoever.” Newman v. Piggy Park Enterprises, Inc., 256 F. Supp. 941 (1966). The court had no sympathy for his defense. “Undoubtedly,” it said, “defendant Bessinger has a constitutional right to espouse religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence and support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” 256 F. Supp. at 945.

Mr. Bessinger partially prevailed at the trial court on interstate commerce grounds, but lost on appeal and was assessed attorney’s fees for his trouble, the Fourth Circuit finding that in view of a prior Supreme Court ruling upholding the constitutionality of the Civil Rights Act of 1964, the assertion that he was not bound because the law “contravenes the will of God” and constituted interference with “the free exercise of the Defendant’s religion” was legally frivolous. Newman v. Piggy Park Enterprises, Inc., 377 F.2d 433 (4th Cir. 1967), aff’d, 390 U.S. 400 (1968).

Had the Religious Freedom Restoration Act been in effect when Mr. Bessinger was sued, might he have prevailed? Perhaps.

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800px-LSP_Badge_PhotoThere is an interesting lawsuit out of New Orleans where two undercover Louisiana State Police troopers, Sgt. Joseph Patout and Master Trooper Christopher Treadaway, stopped for Sushi and parked illegally across the street. A booting company employee promptly booted the vehicle and when the police came out, they ordered him to remove the boot. The employee refused without their paying the fine so they arrested him, searched him, took the key and removed the boot. The attendant, Brandon Hardeway, was never charged and the company was then fired by the parking company in what many suspect is the company’s currying favor with the police over the incident. What is most striking is that there does not appear to have been any discipline, let alone termination, of the officers responsible.

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d24d68ba081ac99041d0a1418fdb459dSan Diego University Law Professor Shaun P. Martin has prevailed in a bizarre lawsuit filed by Melanie Welch, who sued Martin for defamation after he discussed her case on his blog. In addition, the court imposed attorney fees against Welch for the litigation. The case is Welch v. Univ. of San Diego (Cal. App. 2015) and constitutes a victory for free speech protections.

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