Category: Constitutional Law

Bizarre, Constitutional Law, Criminal law

Illinois Police Drop Charges Against Man For Burning American Flag

1414249_1280x720Police in Urbana, Illinois appeared to throw well-established constitutional law to the curb with an abusive arrest of Bryton, Mellott, 22, who filmed himself burning the American flag. The Wal-Mart employee was charged with flag desecration despite two Supreme Court cases clearly saying that such an act is constitutionally protected. Now, after various experts (including myself) said that the arrest was unconstitutional, the police have dropped the charges. However, there remains the question of any discipline against the officers and supervisors involved in such a facially unconstitutional case.

Continue reading “Illinois Police Drop Charges Against Man For Burning American Flag” →

Constitutional Law, Free Speech, Uncategorized

Berkeley Columnist Renews Debate Over Speech Codes On Campus

 

Seal_of_University_of_California,_Berkeley.svgWe have been discussing the crackdown on free speech on college campuses as administrators punish any speech deemed insensitive or the still ill-defined category of “microaggressions.”  One of the greatest concerns is the double standard showed to different speakers based on their content.  The University of California at Berkeley is the most recent example of this controversy.  In columns for the Daily Californian titled “Speaking Out”, “Fucking White Boys,” and “Choosing Myself Over White People”, Maggie Lam mocks and ridicules white people.  A column using such language mocking people of color would instantly trigger demands for expulsion.  It is not that I believe that Lam should be punished, to the contrary, I believe that it is far better to have the exchange of such views on campus than to regulate speech, particularly inconsistent regulation.

Continue reading “Berkeley Columnist Renews Debate Over Speech Codes On Campus” →

Constitutional Law, Free Speech, Society

Does Lighting Fireworks Constitute Free Speech?

By Darren Smith, Weekend Contributor

180px-San_Diego_FireworksWe wish you a festive and joyful Independence Day and pose a question to you. Does the use of fireworks constitute protected free speech? We revisit this issue from a previous article of last year.

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?” →

Bizarre, Constitutional Law, Free Speech, Society

New Orleans Moves to Slash the Number of Strip Clubs

There could be an interesting constitutional case brewing in the Big Easy. As some know on the blog, I spent a few years in Louisiana and lived in New Orleans while teaching at Tulane Law School. The city has changed a bit after Katrina, but some of the biggest changes are social. The French Quarter always had a certain raunchy edge with strip clubs and seedy bars. Now, it is packed with tee-shirt shops and . . . tee shirt shops. Politicians have taken particular effort in cracking down on strip clubs and a new measure would likely cut the current 23 clubs to 7. That raises a serious question of the disparate treatment given adult entertainment business, a subject that we have previously discussed.

Continue reading “New Orleans Moves to Slash the Number of Strip Clubs” →

Constitutional Law, Criminal law, Free Speech, International, Politics, Religion, Society

Englishman Arrested For Posting Anti-Islamic Tweets After Brussels Bombing

England flagFreedom_of_SpeechThere is another arrest in the United Kingdom for criminal speech, a crime that is on the rise in the West to censor and punish those who are deemed hateful or insulting in their views. The latest arrestee is reported to be Matthew Doyle, 46, a partner at a London PR agency. He was arrested after tweeting about how he asked a Muslim woman to “explain” the terror attacks in Brussels. It was a stupid and insulting act, in my view. Moreover, Doyle reportedly used some slur for Muslims in later postings. However, none of that justifies criminalizing speech and the arrest shows the increasing appetite in England (and the West) for rolling back on free speech. Indeed, we recently discussed the Obama Administration’s threats of prosecution for those who speak in ways deemed misleading or hateful.

Continue reading “Englishman Arrested For Posting Anti-Islamic Tweets After Brussels Bombing” →

Constitutional Law, Criminal law, Free Speech, Politics

Top Administration Prosecutor In Idaho Threatens Prosecution For Those Who “Spread False Information or [Engage] In Inflammatory Statements” Regarding Alleged Rape By Sudanese Teens

U.S. Attorney for Idaho Wendy J. Olson, was appointed by President Obama in 2010.There is a disturbing threat from an Obama Administration official that the Administration could prosecute those who “spread false information or inflammatory statements about the perpetrators” in an alleged sexual assault by juvenile Muslim migrants in Idaho.  The remarks of  United States Attorney Wendy J. Olson has triggered concerns over the criminalization of speech.

 

Continue reading “Top Administration Prosecutor In Idaho Threatens Prosecution For Those Who “Spread False Information or [Engage] In Inflammatory Statements” Regarding Alleged Rape By Sudanese Teens” →

Constitutional Law, Criminal law, Free Speech

WA Supreme Court Rules Superior Court Order For Defendant To Write Apology Letter To Victim Does Not Violate First Amendment

By Darren Smith, Weekend Contributor

Washington Chief Justice Barbara Madsen
Washington Chief Justice Barbara Madsen

We have seen many incidents of lower courts ordering those convicted of crimes to endure unusual punishments: some as novel as holding signs advertising that they are criminals; requiring the cutting hair of their children; or forced attendance in Church. While these are fundamentally unusual, a case before us here fortunately never rose to these levels of miscarried justice.

An appellant argued before the Washington Supreme Court that a letter compelled by a juvenile court,  mandating an apology to the victim of a sexual assault, violated his free speech rights by imposing a government mandated speech of which he objected.

Many might see the matter as a minor requirement to apologize to a victim and not “worth the trouble” on behalf of the defendant, or, perhaps representing a rather cold hearted approach by the defendant to contest such a matter out of spite. Yet, the Court likely granted review due to the compelled speech question not having been previously addressed in Washington.

Previous case law in the state tends to much favor free speech which is interpreted to be afforded greater protection within purview of the state constitution, and in most cases provides greater rights than the First Amendment to the U.S. Constitution.

Continue reading “WA Supreme Court Rules Superior Court Order For Defendant To Write Apology Letter To Victim Does Not Violate First Amendment” →

Constitutional Law, Media, Politics, Religion, Society

New York Senate Approves Sweeping Ban On Funding of Student Groups Supporting Israeli Boycott and Other Forms of “Intolerance”

Seal_of_New_York_svgWe have been discussing the arrest of people in other countries for participating in protests to boycott Israel and other measures. These actions raise serious free speech issues. Some states have created laws barring contracts with companies that join the boycott of Israel. Now, a controversial measure has passed the New York Senate that bars the funding of any student groups that encourage boycotts of Israel and other allies as well as those groups involved in “hate speech” and “intolerance.” However, the bill introduced by New York state Senator Jack M. Martins (R-Nassau County) is so ambiguously worded as to defy definition of the underlying violations — a critical flaw under first amendment analysis. However, over the objections of various groups, the bill has garnered growing support among politicians.

Continue reading “New York Senate Approves Sweeping Ban On Funding of Student Groups Supporting Israeli Boycott and Other Forms of “Intolerance”” →

Bizarre, Constitutional Law, Free Speech, Media, Politics, Society

London Mayor Announces Ban On “Body Shaming” Advertisements With Skinny Models

220px-Sadiq_Khan170px-Fitness_Model_Britt_2007London’s new mayor, Sadiq Khan, has signaled early in his term that he will continue the state regulation of speech and images that have ravaged free speech in England. He announced an end to the appearance of what he calls “body shaming” advertisements in London’s public transport, advertisements featuring skinny bodies viewed as unrealistic for most women. While some publications have suggested the that move reflects Khan’s Muslim background (he is the first Muslim mayor of London), in my view it reflects a long and disturbing trend in Europe (and particularly England) to regulate and criminalize speech. What some people may view as unrealistic or even demeaning for women, others view as artistic expression in advertising. While this may be the only way I could end up a Benetton model, I have long opposed such rules, which puts the government in the position of policing images to determine what is not demeaning for women.

Continue reading “London Mayor Announces Ban On “Body Shaming” Advertisements With Skinny Models” →

Bizarre, Constitutional Law, Politics, Society

Oregon Judge Approves First Known “Non-Binary” Gender Classification While Georgia Judge Rejects Name Change For Transgender Male

Transgender_Pride_flag.svgThere were two decisions last week that show the current legal tensions over transgender rights. In Oregon, Jamie Shupe, 52, who identifies as neither a male or female was allowed to change from a “female” to a non-binary classification. This is believed to be the first such order in the country. Across the country, Rowan Feldhaus, 24, (who was born a female but identifies as a male) was denied a name change by a judge. These cases follow a decision last month Haque said her organization increasingly hears from non-binary people. Last month, the Gresham-Barlow School District in Oregon paid an elementary school teacher $60,000 after the non-binary teacher complained of no gender neutral bathrooms and colleagues continuing to refer to “he” or “she” rather than using “they” in reference to the teacher.

Continue reading “Oregon Judge Approves First Known “Non-Binary” Gender Classification While Georgia Judge Rejects Name Change For Transgender Male” →

Constitutional Law, Courts, Criminal law, Free Speech, International, Media

Venezuela Supreme Court Bans Media From Showing Lynchings In Latest Denial Of Free Speech and Free Press Protections

images-2We have been discussing the rapid decline of civil liberties in Venezuela after the socialist takeover by Hugo Chavez and his successor, Nicolas Maduro. The denial of free speech and free press protections only increased as Chavez/Maduro destroyed one of the most productive economies in Latin America and turned it into an economic basket case. Now, the “red revolution” can take credit for reducing the judicial system to a virtual caricature of itself. The Venezuela’s Supreme Court ruled this week that the media cannot publish videos of lynchings because such true images would produce “anxiety and uncertainty” among citizens. The Maduro government has been trying to prevent citizens from seeing such images as it denies the social and economic meltdown in the country.

Continue reading “Venezuela Supreme Court Bans Media From Showing Lynchings In Latest Denial Of Free Speech and Free Press Protections” →

Columns, Congress, Constitutional Law, Courts, Media, Politics, Society

Hillary Clinton and The New Nixonians

220px-Richard_Nixon225px-Hillary_Clinton_official_Secretary_of_State_portrait_cropBelow is my column in USA Today on the striking similarities between Richard Nixon and Hillary Clinton, particularly with regard to the staffers surrounding them. Both tended to blame others about being, to paraphrase Nixon, “kicked around.” However, there are deeper and rather disturbing patterns emerging that are shared by the two leaders in my view.

Continue reading “Hillary Clinton and The New Nixonians” →

Constitutional Law, Courts, Criminal law

WA Supreme Court Rules Jail Booking Questioning For Gang Affiliation Not Voluntary Due To Coercive Nature

By Darren Smith, Weekend Contributor.

norteno-graffitiThere was an interesting case last month before the Washington Supreme Court where the court was asked to determine the admissibility of evidence obtained during the defendants’ booking process related to criminal street gang affiliation.

Defendants in the case, Ricardo Juarez Deleon, Anthony Deleon, and Octavio Robledo moved to suppress evidence gathered by the state obtained through questions relating to the alleged involvement in gang activity while in the furtherance of a crime, a sentencing enhancement and a status in of itself that can be in violation of law or subject a defendant to revocation of probation and other court imposed restrictions.

A legitimate state purpose exists in asking arrestees if they are gang-affiliated or have hostility toward other inmates for the purpose of order and the safety of staff and the inmate population. It is well known that members of rival gangs housed together lead to a probability of fighting and disruption. A question remains if an arrestee should a choice between answering that they are gang-affiliated to secure a protection through separate housing and remaining silent and face retaliation from other inmates. The petitioners argue this constitutes duress where they are unlawfully required to make incriminating statements to protect their safety.

Continue reading “WA Supreme Court Rules Jail Booking Questioning For Gang Affiliation Not Voluntary Due To Coercive Nature” →

Bizarre, Constitutional Law, Free Speech

Conservative Speaker Prevented From Addressing DePaul University Students By Activists As Campus Security Stands By

milo-yiannopoulos-depaul-universityDePaul_U_Seal.svgWe have previously discussed the erosion of free speech on college and university campuses as students and faculty are punished for expressing views deemed offensive to any group. In the meantime, we have also seen protests by Black Lives Matter and other groups that silence other students with little response from university administrators. The videotape below captures this problem vividly. Conservative Milo Yiannopolous is often a lightning rod for such protests. However, it is not enough to protest outside. Students increasingly struck down events to prevent opposing views from being heard. In the case, two students shutdown the event as university security (paid by the event organizers) stand by and do nothing. It is a shocking scene for a university as student prevent a speaker from being heard because they disagree with what he has to say.

Continue reading “Conservative Speaker Prevented From Addressing DePaul University Students By Activists As Campus Security Stands By” →

Bizarre, Constitutional Law, Criminal law, Free Speech, International, Media, Politics, Society

British Supreme Court Gags Media From Printing Names In Widely Discussed Elton John Sex Scandal

sun-front-pageThe rapid decline of free speech in England accelerated further this month with a ruling of the British high court banning The Sun newspaper from naming celebrities involved in a sordid sex story despite the fact that all three names are widely known and discussed on the Internet and non-British newspapers. Indeed, papers like the Toronto Star have running virtually mocking accounts of Elton John, his Toronto-born husband David Furnish, and British businessman Daniel Laurence. Elton John is obviously the quintessential public figure who has participated in a wide range of stories and programs on his family life with Furnish and their children. It is a chilling example of England’s rollback on basic free speech and free press protections.

Continue reading “British Supreme Court Gags Media From Printing Names In Widely Discussed Elton John Sex Scandal” →