I am rather perplexed by a ruling by U.S. District Judge Richard M. Berman to order not just four more years of community service for filmmaker Dinesh D’Souza but continuation of psychological counseling despite the countervailing findings of two experts in the case. Judge Berman was on solid ground in much of his opinion on the conditions of the prior sentencing order. While tough, the defense was trying to curtail key aspects of the order. However, the counseling component does concern me.
Category: Constitutional Law
The Chinese government is carrying out another infamous sweep of human rights lawyers and activists with over 100 people arrested nationwide. The authoritarian communist regime has offered preposterous excuses for the arrests but the message is clear: human rights will not be tolerated in the worker’s paradise that is China. Indeed, with pollution and corruption choking the life out of the public, the communist rulers still view human rights lawyers as the priority danger for the country.
Continue reading “China Arrests Over 100 Lawyers and Activists In Latest Crackdown on Human Rights”
There is an interesting story out of Chad where the country has outlawed the wearing of Islamic veils over the face of women. The country took the step after a suicide bombing by the Muslim group Boko Haram used a burka-wearing man. France has been criticized for outlawing full veils or burkas so the move by a country with a majority of Muslims is surprising.
We have previously discussed the crackdown on free speech in Russia, including examples of quasi-blasphemy prosecutions by the country. While we often see such prosecutions in Muslim countries, there is a growing trend in the West against free speech, particularly when deemed anti-religious or insulting to particular groups. The unholy alliance of Vladimir Putin with the Russian Orthodox Church has accelerated this trend as shown in the move to shutdown a popular atheist social networking page of “There is no God” on VKontakte. The site’s 26,000 followers woke up to notice that the site was shutdown after a ruling from a count in the Muslim North Caucasus region of Chechnya under the control of strongman Ramzan Kadyrov, a key Putin ally.
We have been discussing the intolerance shown by countries in the Middle East for free speech, particularly those Muslim countries applying the medieval Sharia law system. Abu Dhabi has again stepped forward to reaffirm its rejection of fundamental principles of free speech. Our Middle Eastern ally has jailed an Australian woman, Jodi Magi, 39, for merely posting a photo on Facebook of a car parked across two disabled parking spaces. She even blurred out the license plate (which most people would not do) in showing the rude conduct of some driver. The driver called police and Magi was arrested for on the truly moronic charge of “writing bad words on social media.” In bringing the charge, the prosecutors in Abu Dhabi confirmed that they are maintaining a faux legal system that recognizes neither basic rights nor basic logic.
Various states have moved to allow children to secure birth control without the knowledge or notification of parents, including schools that reportedly will implant IUDs in children as young as sixth graders. Oregon however is going further still and reportedly allowed 15-year-olds to get a sex-change operation at state expense under its Medicaid program. What is curious is that Oregon officials are thus far refusing to discuss the program with media despite its obvious importance to the citizens of the state. If these reports are inaccurate, we should hear it directly from these officials. If this story is true, we are witnessing a significant change in our notion of parental rights without even a passing conversation over the basis and scope of such changes.
Judge Reese Holley of Dickson, Tennessee has agreed to stop conditioning representation of counsel on making donations to his favorite charities or performing public service. What is most astonishing is not that Holley did not know what any first-year law student could tell him but that he has only been reprimanded and will be allowed to continue to serve as a judge in Tennessee after doggedly maintaining such facially unconstitutional and abusive rule. He only received a public reprimand.
The Redskins lost a major challenge this week to the cancellation of the their trademark protection by the Patent and Trademark Office. I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name as well as the underlying law used to strip the team of its trademark protection. The law allows for a small administrative office to effectively dictate the outcome of a long simmering societal debate over the team name. More importantly, the standard for determining what names or words are disparaging remains dangerously undefined with striking contradictions as we have previously discussed in permitted and disallowed trademarks.
Continue reading “Federal Court Upholds Decision Stripping Redskins Of Trademark Protection”
I thought that I had heard every argument against allowing same-sex couples to marry but leave it up to the Abbott Administration in Australia to come up with an especially whacked out rationale. Agriculture minister Barnaby Joyce has announced that the country must preserve traditional marriage . . . for the cattle. Do it for the cattle.
Continue reading “Australian Minister: Same-Sex Marriage Is Bad For The Cattle Industry”
Below is my column today in the Washington Post on the ruling in Obergefell on the basis for the Court’s ruling in favor of same-sex marriage. Due to limitations on space, I could not go into great depth in the opinion which primarily dealt with the notion of the “right to dignity.” The Court did not pursue an equal protection analysis beyond the following highly generalized statement:
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.
Since the Court did not substantially address whether homosexuals are a protected class or the other Equal Protection line of cases, the opinion appears to craft a right around the inherent right of self-expression and dignity in intimate affairs. That is very appealing to many in the expansion of due process concepts, but the column explores what it portends for future rights.
Here is the Sunday column:
By Darren Smith, Weekend Contributor
We wish you a festive and joyful Independence Day and pose a question to you. Does the use of fireworks constitute protected free speech?
A tradition spanning multiple generations in the United States is that a large portion of our society celebrates and shows tribute to the United States through the lighting and observance of fireworks. Yet numerous municipalities and counties impose sweeping and total bans of fireworks. Some statutes regulate the type of firework allowable, such as those having a ferocity that safety requires certified technicians. Others ban benign devices such as snakes and small fountains.
But does a complete ban on fireworks regardless of size constitute an infringement on the first amendment rights of citizens?
Continue reading “Does Lighting Fireworks Constitute Free Speech?”
We previously discussed whether England was becoming a “Nanny State.” (here and here). As much as I love London (and Londoners), it appears to have plunged into realm of government regulation of virtually every aspect of life and family management. An example is the new directive from the British government to school officials that they can and should use their “common law powers” to search student lunches to remove and destroy “unhealthy or inappropriate.” Education minister Lord Nash issued the directive to cover unhealthy items listed by the school that are now barred. Teachers can now “confiscate, keep or destroy” such snacks.
I am doing some coverage at CNN but, in addition to the predictable rejection of the lethal injection challenge, the Court handed down two major decisions. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court ruled 5-4 that states could effectively take away redistricting decisions from state legislatures — a key move to try to end the scourge of gerrymandering. In Michigan v. EPA, the Court again split 5-4 in ruling that the EPA must consider the costs to industry in setting environmental limitations — in the case involving arsenic emissions — under the Clean Air Act.
Continue reading “Good Day For Election Reformists; Bad Day For Environmentalists”
By Darren Smith, Weekend Contributor
While this might seem to some as a Tempest in a Tea Pot involving only a traffic infraction, the actions of a Seattle Police Department Motor Traffic Unit could put the city into a legal liability for a violation of free speech rights.
Several days ago, Daniel Gehlke saw motorcycle officers set up near the intersection of 14th Avenue South and South Washington and begin enforcing stop sign and speed laws. Mr. Gehlke then obtained a Rubbermaid container lid and wrote thereon the words “COPS AHEAD! Stop at sign and light!” He stood nearby the intersection displaying the lid to warn drivers of the traffic unit’s presence and recommend compliance with the law.
Unfortunately for Mr. Gehlke the traffic unit took exception to this and cited him under a Seattle Municipal Ordinance making the display of a sign “bearing any such words as ‘danger,’ ‘stop,’ ‘slow,'” and more… [with] Directions likely to be construed as giving warning to or regulating traffic.”
I am still doing commentary on today’s history ruling in favor of same-sex marriage. It was a remarkable day for all of us outside of the Court. As many of us quickly read through the opinions, hundreds of people broke out into song: singing our national anthem. It never sounded so beautiful or so meaningful. As I went live with Jake Tapper on CNN, I noticed a familiar reference however. The Chief Justice cited to the Sister Wives litigation now pending before the United States Court of Appeals for the Tenth Circuit. I am lead counsel for the Brown family, which prevailed in striking down the criminalization of cohabitation in Utah. The Wall Street Journal and other media outlets also discussed our case.
Continue reading “Sister Wives Case Cited In Supreme Court’s Historic Same-Sex Marriage Ruling”