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. That case is still being appealed but a new case may well answer some of the question raised in the prior column. An Asian American rock band called “the Slants” has appealed a decision to deny it trademark protection — allowing the question to be heard by the U.S. Court of Appeals for the Federal Circuit. A panel previously upheld the denial in In re Simon Shiao Tam, 2015 U.S. App. LEXIS 6430.
Category: Constitutional Law
A Russian court has sentencing two women and a teenager to 15 days jail time for twerking. That’s right, twerking. The women filmed a dance video with twerking in front of a World War II memorial. The timing could not be worse — or better — depending on your perspective. The Putin regime is using the 70th anniversary of the Allied victory to rally citizens. The court ruled that the twerking constituted “hooliganism.” You will recall that this is the same undefined crime used to jail two members of punk band Pussy Riot to prison for two years for an impromptu protest at Moscow’s main cathedral in 2012.
Continue reading “Putin Does Not Twerk: Women Jailed For Twerking In Russia”
Russia Today is showing a less than positive image of the United States as a video shows its reporter trying to report on the protests in Baltimore last week only to be mugged on camera. Fortunately, police were in the area and apprehended the suspect. In the meantime, another disturbing video shows City Paper Photo Editor J.M. Giordano was tackled and beaten by Baltimore City police outside of Western District headquarters last night while covering the protests. The attack on a journalist by police was accompanied by the arrest and charging of another reporter for disorderly conduct.
A 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.
There 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.
Continue reading “Poll: Over Sixty Percent Of Americans Support Gay Marriage”
The 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.
We 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.
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.
There 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.
San 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.
Continue reading “San Diego Law Professor Prevails In Defamation Lawsuit Over Blog Article”
Despite far more pressing problems, Tennessee Senate and House committees have been working to make the Bible the official book of Tennessee — adding the Bible with catfish (the state fish) as a symbol of the state. Of course, cat fish are not matters of faith (beyond the hope and prayer of every fisherman). The House sponsor, Rep. Jerry Sexton, R-Bean Station, added “talking points” to bill. Sexton was only elected in 2015 but is wasting no time in trying to rollback on the separation of church and state.
Continue reading “Tennessee Moves To Make Bible The Official State Book”
West Allis, Wis., police had a bit of a surprise when they responded to a call about a mysterious man in the neighborhood near Milwaukee in July 2013 and found Dwayne S. Powell, a private detective, with two laptop computers, binoculars, a GPS tracking device, a stun gun, two rifles, four handguns, 2,000 rounds of ammunition and a homemade silencer in a rented SUV. While first resisting to give his name, Powell reportedly admitted that he was hired to keep continual watch on the father of David Miscavige, the leader of the Church of Scientology, who had separated from the church. Powell further stated that, after seeing what he believed was a possible heart attack, he contacted David Miscavige, who allegedly told him to let his father Ronald Miscavige Sr. die and not intervene or call help. The case has not led to litigation but it could.
Michael Slager, an officer with the North Charleston Police Department, has been charged with murder after a highly disturbing video surfaced that shows him shooting an unarmed man who was running away. He could face the death penalty for the alleged crime.
Russia’s culture minister Vladimir Medinsky on Sunday fired the director of a Siberian theater. Boris Mezdrich as director of the Novosibirsk State Opera and Ballet Theater had committed the sin of staging Wagner’s opera “Tannhauser” which offended the powerful Russian Orthodox Church. It is the latest example of the rollback on free speech under the Putin regime.
Below is my Sunday column in the Washington Post on Indiana’s Religious Freedom Restoration Act (RFRA).
The column below raises the question of line drawing and states that I would prefer an absolute rule requiring all services. However, I could not support such a rule if we are going to strip protection from “wrong” views while allowing others to refuse on the ground that other symbols or language are clearly offensive. One variation on the “No Cake For You” approach below was suggested by a colleague who said that we could allow bakers and others to refuse any offensive language — religious or non-religious — unless the government could show that the baker would have sold the cake but for the status of the prospective buyer (e.g., gay or straight, Jewish or not, etc.). Thus, as long as the basis of the refusal was the actual language or symbols, it would be protected as an expressive act.
As I say in the column, I continue to struggle with drawing this line. None of the options are particularly satisfying. However, I do think that we have to have a real dialogue on this issue free of low-grade efforts to those on the other side as bigoted for wanting to discuss the range of free speech conflicts. The point is that, when dealing with the question of the right to refuse to create offensive symbols or language, one must address the fact that there are a wide array of such conflicts that can arise among different religious, cultural, or political groups. One does not have to agree with their speech to raise the question of their right to engage in such speech. Indeed, the first amendment is designed to protect unpopular speech. We do not need it to protect popular speech. Some may ultimately decided that no business can refuse any message under the “Let Them Eat Cake” approach despite rulings like Hobby Lobby and Citizens United. However, the first step is to have the debate, preferably free of personal attacks or attempts to silence those who would raise the speech of other unpopular or offensive groups.
Here is the column: