First Amendment trumps Equal Opportunity Employment

January 11, 2012

Today, the Supreme Court in Hosanna-Tabor Church v. EEOC  issued a unanimous ruling on the First Amendment.  While this blog regularly celebrates the Freedom of Speech clause, the decision focuses primarily on the Free Exercise Clause and, to a lesser extent, the Establishment Clause.

In a nutshell:

  1. Church had 2 types of teacher–lay and ministerial.
  2. Ministerial teacher develops disability and takes leave of absense; replaced by lay teacher.
  3. Church rules normally prioritize ministerial teachers, but when this teacher tries to get her job back, she is denied.
  4. She becomes insubordinate and complains of an ADA violation.
  5. She is terminated.
  6. Teacher sues the church for retaliation against her for making an ADA claim.
  7. Supreme Court says church wins.

Assuming there was blatant retaliation, the church still wins.  Why?  Because if the government were to tell a church they couldn’t fire a particular minister, that would prevent a church from freely deciding who gets to spread the gospel and who doesn’t.  To its extreme, though excepted specifically in Title VII, if the government had the power to dictate who a church could fire, it could prevent the Pope from defrocking an American Bishop who pronounces the Shahada and converts to Islam.  Basically, the 1st Amendment lets a religion freely decide who gets to be a minister, even if the reasons for hiring or firing are otherwise abhorrent to society.  If you don’t like it, you are free to change religions.  Or declare the person who did the firing a heretic and stone them.  Either way.

Blasting people on twitter – not cyberstalking!

December 16, 2011

By J. DeVoy

Pundits were concerned earlier this year when the U.S. Attorney for the District of Maryland brought a criminal action against William Lawrence Cassidy.  His alleged crime?  Posting 8,000 harassing twitter messages about Alyce Zeoli, a buddhist leader in Maryland.  The Court dismissed the Government’s case, as Cassidy’s anonymous speech addressed a topic accorded the highest constitutional protections: Religion.

Admittedly, some of the messages were witty.  Take this poetry, for instance:

Ya like haiku? Here’s one for ya. Long limb, sharp saw, hard drop

Some were more esoteric, such as “A thousand voices call out to (Victim 1) and she cannot shut off the silent scream,” while others got to the point: “Do the world a favor and go kill yourself. P.S. Have a nice day.”

The Court’s Order  is a solid win for the Defendant – and free speech.  Within it, the Court found that 18 U.S.C. § 2261A(2) is unconstitutional as applied to the defendant.  Not only does the First Amendment kick ass, it’s now a tool, albeit a slow-working one, against the federal government’s overcriminalization of daily life.

I strongly encourage reading the whole Order, but most importantly, there’s this:

However, it is questionable whether the same interest exists in the context of the use of the Internet alleged in this case because harassing telephone calls “are targeted towards a particular victim and are received outside a public forum.” United States v. Bowker, 372 F.3d 365, 379 (6th Cir. 2004). Twitter and Blogs are today’s equivalent of a bulletin board that one is free to disregard, in contrast, for example, to e-mails or phone calls directed to a victim. See id. at 378 (contrasting why a federal telephone harassment statute serves a compelling governmental interest and a statute that made it a criminal offense for three or more persons to assemble on a sidewalk and to be “annoying” to a passerby did not serve a compelling governmental interest). (emphasis added)


Is the Docket Too Light in Manhattan These Days?

December 4, 2011

Dig if you will the picture of an old guy holding a sign reading “jury info” and handing out pamphlets to random folks in a courthouse plaza in New York.  The pamphlets explain a nifty Constitutional doctrine called “Jury Nullification”.  Now imagine that old guy being prosecuted for jury tampering because of those same pamphlets.  Source

Long story short, jury nullification is when a jury finds a defendant not guilty of the crime he or she is accused of not because of a lack of evidence, but because of a moral or ethical aversion to the law.  Since the Fifth Amendment prohibits defendants from being tried for the same crime twice (double jeopardy), jury nullification is it for that defendant.  Buh-bye.  There can’t be a re-trial.  Ever.  This doctrine is, needless to say, hated by judges and prosecutors.

Back to our old guy- Julian Heicklen.  He’s been cited on six prior occasions for distributing his fliers at the Manhattan courthouse – not because of their content but apparently because he did not have the proper permit.  He admits that his “Jury Info” sign draws people to him and he does answer questions and advises people of the right to nullify. But he says he does not try to influence specific jurors or cases, and that he merely distributes brochures to passers-by, but admittedly with the hope that jurors are among them.

The Prosecution is of the opinion that his “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred…His speech is not protected by the First Amendment”.  Moreover, “No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

OK- that’s a bit much (did you catch that “no matter where it occurred” part?), but I can see a need for control in the courtroom, deference to the tribunal, and an even stronger need to ensure (as much as possible) that our laws are applied evenly and fairly across the board regardless of our personal convictions-especially in the criminal context.  It’s easy to paint Mr. Heicklen as the victim when we think of a case involving a law we personally disagree with, but what if the charge was sexual assault of a young boy and one of the jurors was a card carrying member of a pederast advocacy group?   It *could* pave the way for a slew of cases where a juror or group of jurors imparts their own moralistic ideals into a verdict and  finds a person “not guilty” based on those ideals without regard to the damage an acquittal could do to society at large.

And that’s where I jump off the prosecution’s train.

Even assuming arguendo  that the plaza is not a public forum (and I remain unconvinced that it is not) it does not appear that distributing pamphlets is a problem there (at least in Manhattan) so why not just another citation this time?   Oh, heavens to Betsy!  This wouldn’t be a prosecution based on content would it? Say it ain’t so!   And what of Mr. Heicklen’s right to voice his opinion about a little known but very important aspect of our Constitution? And since judges are loathe to remind juries of their Constitutional power to nullify (the right to do so notwithstanding) isn’t it important for that bit of knowledge be available? And where better to reach a juror than in a court plaza?

In New York, a person is guilty of jury tampering when “with intent to influence the outcome of an action or proceeding, he communicates with a juror in such action or proceeding…” I see the need for jurors to stick to their knitting, as it were, and not be swayed by outside influences, but what evidence is there that Mr. Heicklen was targeting a specific juror about a specific case?  He was not presenting an opinion to a particular case and he wasn’t even targeting a particular juror, he was just handing this stuff to anybody with the hope that it would go to a juror.

Sorry, but I think this is a case where the prosecution is attempting to kick the First Amendment right in the nuts.

Establish religion, then tax its followers

November 20, 2011

By Jay Wolman

I’m impressed.  The Department of Agriculture may have violated two First Amendment provisions at once.  As set forth in the November 8, 2011, Federal Register,  there is a new Christmas Tree Promotion Board.  I’m thinking–Establishment clause violation, perhaps?  But, it gets better.  To fund it, there are assessments (i.e. taxes) on Christmas trees.  A tax on Christians.  Free Exercise clause violation, maybe?

So there’s no confusion:

Sec.  1214.3  Christmas tree.

Christmas tree means any tree of the coniferous species, that is  severed or cut from its roots and marketed as a Christmas tree for holiday use.

The USDA does address the Establishment clause question:

Another commenter in opposition raised concerns that the proposed  Order may violate the Establishment Clause. The commenter stated that government speech cannot advocate religion or religious symbols.  USDA considers Christmas trees to be an agricultural commodity which is reported as such in various USDA crop reports and statistical data reports (e.g. 2007 Census of Agriculture, National Agricultural  Statistics Service). The Act in section 512 provides for the establishment of generic promotion, research and information activities for agricultural commodities, including Christmas trees.

I don’t buy it.  Just because it may be an agricultural commodity doesn’t mean that singling it out for special treatment doesn’t violate the Constitution.  If they left it at “any tree of the coniferous species”, I think they could get away with it.  But once they add in the relationship to Christmas itself, therein lies the problem.  But for Christmas, there is no Christmas tree tax.

The USDA can regulate cotton, too.  But that doesn’t give them the power to make a similar Mormon Underwear Promotion Board, or Muslim Prayermat Promotion Board, or Yarmulke Promotion Board, with an attendent assessment.

What’s More Christian Than a 30 Foot Cross?

November 9, 2011

By Sean McGilvray

The 9th Circuit recently denied a rehearing for the case in which they ruled that the giant cross that sits on federally owned land atop Mount Soledad in La Jolla, California is unconstitutional. In January of this year, the 9th Circuit took the entirely reasonable position that when the federally-maintained Mt. Soledad Veterans Memorial tops itself with a 25 foot tall representation of the most fundamental symbol of Christianity, they are sending a message of wholesale endorsement of the Christian faith in violation of the Establishment Clause.

The Mount Soledad Cross has a long history of controversy, but the latest round of litigation kicked off after the state of California got sick of arguing about it and transferred the land on which the monument stands to the federal government in 2006. The ruling in January spelled it out:

“… after examining the entirety of the Mount Soledad Memorial in context—having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and the dominance of the Cross—we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.”

Last month, the court declined to review or reverse their earlier decision, which places this case in a prime position to move further up the chain and appear before the U.S. Supreme Court. Not all of the Circuit Judges agreed with the decision however, and Judge Carlos Bea wrote a lengthy dissent attacking the earlier decision and disingenuously suggests that a giant cross has nothing to do with Christianity.

Bea attacks the reliance on the three part test used in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under that test, government action has to meet the following three criteria to avoid violating the Establishment Clause:

  1. It  must have a secular legislative purpose.
  2. It  must not have the primary effect of either advancing or inhibiting religion.
  3. It  must not result in an excessive government entanglement with religion.

Despite the always colorful potshots that conservative justices like Scalia have taken over the years at this standard (“like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence” 508 U.S. 384, 397 (1992)) the Lemon Test is good law.

Under this standard, the government action of acquiring a hunk of land with a giant cinderblock cross and maintaining the monument as-is seems like a cut and dry example of advancing the Christian religion and getting excessively entangled with it. Judge Bea pushes for an application of an exception to the Lemon Test from Van Orden v. Perry, 545 U.S. 677 (2005). In certain borderline cases where the religious iconography in question is part of a larger secular context, the court has to engage in a fact-intensive assessment of a host of factors, including the monument’s purpose, the perception of that purpose by viewers, and the monument’s history. The standard came from the Texas Ten Commandments sculpture case.

Although the Court in Van Orden explicitly eschewed the notion of simple formula in favor of an intensive fact-based analysis, Judge Bea helpfully condenses this analysis to look at the use and context of the Mount Soledad Cross.

Of course the earlier 9th Circuit decision considered all these factors in addition to their Lemon Test analysis and found that the Soledad Cross was inherently Christian in nature. Judge Bea argues that the fact that Cross is currently part of a veteran’s memorial and is festooned with plaques and American flags somehow negates the religious undertones as though crosses are not associated with memorials precisely because of the religious connotations of the afterlife.

Bea also argues that the history and context of the cross are secular, or at least as secular as a representation of the deity worshipped by the majority of Americans can be. By focusing narrowly on Mount Soledad Cross only as part of a memorial for the veterans since 2006 (when the U.S. government acquired the property) Judge Bea willfully ignores the broader history of the Cross which was a focus for annual Easter services for over forty years. He is a big fan of history when it comes to pointing out that the monument stood unchallenged until 1989 and that this long run without opposition somehow drains the cross of its Christian meaning.

It remains to be seen if the Supreme Court will grant cert for this case and if they do, whether the current lineup will be inclined to see the case the same way as Judge Bea but for now this particular victory in the war to keep church and state on opposite ends of the block has been reaffirmed.

Nevada keeps meetings open to the public

November 5, 2011

Those lobbying for more transparent government scored big victories this year in the Nevada Legislature. Nevada Senate Bill AB59 created an Open Meeting Law Task Force to make changes to the law, which previously had been cobbled together by a collection of statutes and case law and was difficult for government entities to follow.

The changes include a monetary penalty for officials who have violated the open meeting law and increased public awareness when those violations occur. The language also expands the open meeting law to apply to quasi-judicial bodies, with the exception of parole boards.

If a public body is believed to have violated the opening meeting law, someone can complain to the attorney general’s office, which will send a letter to the council in violation. The entity must then post on the agenda that a violation has been reported, and include the letter reporting the violation at the end of the agenda. The AG was also given subpoena power when investigating alleged violations. Repeated violations come with a $500 fine.

The law also requires that if a public body holds a meeting to consider the “character, alleged misconduct, professional competence, or physical or mental health of a person,” it must provide written notice of that meeting, and must allow in certain individuals if that meeting is closed. Public notice includes publication in a newspaper of record and on the Internet.

The task force also fought to make sure that the definition of “reporter” was as expansive as possible, including citizen journalists and bloggers in the mix. In related action, the Nevada Supreme Court recently altered the camera rules for court proceedings. Reporters are now able to live tweet or send news flashes during open hearings and trials from laptops or cell phones, provided those devices do not make noise or cause disturbances. The NV Supreme Court also changed the requirement of 72 hours’ notice for requests for camera use in courts to 24 hours’ notice. In addition, judges can waive the notice for good cause.

The complete language of the bill can be found here.

In Texas, government officials recently have challenged the validity of the state’s open meeting law, claiming that the law violates government employee’s First Amendment rights. Even though Texas’ $500 fine and six months in jail penalty rarely is levied, officials filed suit challenging the constitutionality of the penalty attached to violating the law. Texas’ penalty is more severe than Nevada’s, which only attached a civil penalty for “willful violation” of the Open Meetings Act.

Texas officials brought the first suit after four Alpine City Council members exchanged emails about an upcoming meeting. According to Texas’ open meeting law, a quorum of public officials must be present to discuss public business. The officials claim it was a violation of their First Amendment rights.

Reporters in Texas fear the Fifth Circuit may strike down the Texas Open Meeting Law, leading to similar actions throughout the rest of the country. Every state has some sort of open meeting law. Supporters of the Texas law argue that the framers did not intend to protect government officials’ ability to congregate in secret.

Public officials are held to a different standard than the average citizen. Courts have consistently struck down First Amendment challenges to open meeting laws by public officials. Open meeting laws ensure that government dealings subject to public scrutiny remain public in order to protect the citizens they govern. While such laws should not prohibit public officials meeting for a friendly drink where the subject of public business is never broached, the laws should hold public officials accountable for their conduct.

High school drama students get lesson in homophobia, censorship

November 3, 2011

Students in the drama department of a Baltimore high school are fighting back after Hartford County School officials censored a scene from an upcoming production of “Almost, Maine.” The production, which is set to open on Nov. 10 at Bel Air High School, includes nine mini-dramas exploring falling in and out of love. The American Civil Liberties Union stepped in on behalf of the students when school officials took out a scene featuring two men professing their love.

The students say they are still prepared to perform the scene, called “They Fell.”

The scene at the heat of the debate features a humorous discovery of mutual attraction that doesn’t include any references to sexual behavior, and is even less suggestive than other scenes the school chose to leave in, where students kiss, remove clothing and leave the stage, suggesting sexual activity.

According to ACLU of Maryland Legal Director Deborah Jeon, much of the play focuses on the characters falling in love; the only difference here is that the two people in this scene both happen to be men.

So as Hartford County School officials are likely thinking right now, let’s get this straight: the Bel Air High School drama students are allowed to remove clothing and hint at sex as long as it’s between a male and female student. But an innocent scene between two men humorously sharing an exchange of love, which does not even hint at sexual activity, is somehow inappropriate for high school students to depict.

The students at Bel Air High are seeing right through it to the underlying issue of homophobia.

“I think it is important to speak out against homophobia and discrimination, and the full play can help students better understand that love is not something to be feared,” Julia Streett, a sound engineer with the production and the president of the school’s gay-straight alliance, said in a press release.

The students of Bel Air’s drama department are getting an early education on First Amendment and gay rights. We live in a country that glamorizes celebrity weddings like Kim Kardashian’s 72-day PR-debacle, but still shudders at two men sharing a legitimate exchange of love. The only reason for the school’s censorship is homophobia, pure and simple. Kudos to the high school students at Bel Air High School for being more accepting than the adults running the show.

Crystal Cox

October 28, 2011

This post has been updated: Here.

Getting Sued for Being Mean

October 28, 2011

Unlike Lance Armstrong, Michael O’Connell also has a neck scar. (source)  His coworkers decided it would be jolly good fun to call him “uni-ball” and “cut-throat”.  Apparently, Mr. O’Connell had a problem with that.  He already had some form of anxiety disorder, so he claimed hUni-Balle was being harassed and somehow that implicated his disability.  He was subsequently canned.

Forgetting that filing a lawsuit would mean that the public would now be apprised of his deeply personal loss, Mr. O’Connell decided to sue his former employer for discrimination, IIED, and retaliation.  Judge is allowing the IIED claim and retaliation claim to stand. (Decision)  The retaliation claim is one of my favorites:  Judge found the guy didn’t properly prosecute the discrimination claim itself.  But, even if you don’t have a valid discrimination claim, it is still unlawful to be fired for making a bogus discrimination claim.  Technically, you could accuse everyone you work with of being racist, sexist bigots, and you cannot be fired for it, no matter how poorly it affects office morale to be accused of being a racist, sexist bigot daily.  I don’t know anyone who has ever tried this, but it would be an interesting case.  It would take a lot of something Mr. O’Connell lacks.

The IIED claim is an interesting one.  Typically, you cannot sue your boss for an injury, including emotional injury, that occurs on the job; that’s why we have workers’ compensation.  It is meant to get you speedy medical and replacement wage benefits in exchange for not being able to sue the boss.  (The medical benefits were a fantastic thing for workers 100 years ago; nowadays, with most people having insurance, it makes things more complicated.)  But, there are state variations and, for egregious conduct, apparently Mr. O’Connell was found to have stated a valid claim in his jurisdiction.

It is an interesting tort, like bullying laws, that significantly restricts freedom of speech.  How mean are you allowed to be to someone before you owe them for their therapy bills?  The most inappropriate man may need to be careful if he dares criticize a resident of Illinois.


The First Amendment is for Christians Only

October 27, 2011

Oh Flori-duh, you never fail to amuse.

Clay County Pastor, Ron Baker of Russell Baptist Church in Green Cover Springs, FL holds weekly prayer sessions near the Clay Hill Elementary school’s flagpole. To make sure that everyone knows about it, the school principal, LArry Davis put out a newsletter supporting the prayer meetings. (source) That’s a no-brainer violation of the First Amendment.

But principal Davis has a way around that. In his newsletter announcing the meetings, he wrote:

“Pastor Steven Andrew states: ‘Our children need God back in schools,’ and he is calling Christians nationwide to bring back the Holy Bible and Christian prayer to schools … The First Amendment was for Christianity, not other religions.” (source)

Davis told the Florida Times-Union that, despite the passage in his newsletter, he doesn’t feel that the First Amendment only applies to Christians. Seems like an ineffective backpedal to me. Read the passage for yourself.

The Freedom From Religion Foundation sent a letter to the school superintendent informing him of the fact that Davis’ conduct violates the First Amendment. The Superintendent said that Davis went too far, and asked Pastor Baker to stop holding the prayer meetings at the elementary school.

Like any good christian, Baker refused. “I think if I were to stop, it somehow sends the message that I think it must be wrong,” he said. Because whether it is insisting that the Earth is the center of the universe, or that there is an almighty space being who gets mad if two guys cocks touch each other, if there is one thing that christianity teaches us, it is “never, ever, ever, ever admit you are wrong, no matter how fucking retarded your views are proven to be.”

Nazi-named Kids Taken From Parents

October 27, 2011

Heath and Deborah Campbell named their kids Adolf Hitler Campbell, JoyceLynn Aryan Nation, Honszlynn Hinler Jeannie. They drew national attention when they asked a New Jersey ShopRite to prepare a swastika birthday cake. This, naturally, prompted the state to consider whether the Campbells were fit parents. An appeals court today held that they should not regain custody of their children. (source)

No love for nazis around here, and I certainly do not think that reproduction should be a right. The Campbells, pretty clearly by my standards, would be good candidates for forced sterilization. Not because of their political views, but just because the world population has now hit 7 billion, and the vast majority of them are incredibly stupid and causing the devolution of the species into a feces-slinging, filth wallowing sack of protoplasm — Homo Walmartus. The Campbells are a good example of this, and in a perfect world they would not have been permitted to spawn.

But, I am still deeply troubled that an existing family can be dismantled by the state at all — let alone because the parents have deeply unpopular political views. The article on the Campbells states that the court found “sufficient evidence of abuse or neglect existed because of domestic violence in the home.” (source) It seems, from reports about the family, that the home is completely screwed up beyond all recognition, but it certainly seems that they were targeted for their views. Good people may say “good, nazis suck.” But, when we make exceptions to general principles because we hate nazis, we’ve opened the door to the second exception, and from there the third, and so on.

The Aroma of Tacoma Smells Like a Can of STFU.

October 24, 2011

Back in 2009, Washington State Governor Christine Gregiore signed SB 5688, the so-called “Everything But Marriage” act. Source. Shortly thereafter, a group of concerned citizens calling themselves Protect Marriage Washington got enough signatures to place a referendum challenging the bill. Protecting marriage from what, exactly, remains a mystery but Imma call them “The Protectors” anyway. No word on if they have capes with an Xed-out picture of two guys holding hands. Anyway, shortly after Washington Secretary of State Gary Reed determined the signatures were valid, he received a public records request under Wash. Rev. Code §42.56.001 for the names and addresses of the 137,000 signatory Protectors. The Protectors didn’t like that one bit and asked for a preliminary injunction to prevent Secretary Reed from complying with the request. They are trying to say that disclosing their names and addresses violates the First Amendment because referendum petitions are political speech and the resulting harassment they would (allegedly) receive would stifle that speech. This case wound its way all the way to the Supreme Court. Here’s the Opinion: Doe v. Reed.

Boiled down, the Protector’s main gripe is that the government’s interest in preventing voter fraud and the integrity of the electoral process pales in comparison to the stifling of their first amendment rights because the public records request was made to harass them for their political views. The Big Dogs didn’t buy it. Justice Stevens’ concurrence sounded a little like “Why the hell are we even here?” so that was a treat.  But the Nine did recognize that disclosure requirements could stifle speech in some cases and even allowed for an exemption if there is a “reasonable probability that the disclosure would result in threats or harassment.” They didn’t address whether the request was unconstitutional as applied to this particular petition, so the parties got sent packing back to the District Court in Tacoma to figure it out. Both promptly filed motions for summary judgment. Source.

The Protectors tried to convince the Court that they should be afforded the disclosure exemption because their paltry 137,000 signers are a minority party akin to the NAACP in 1958 or the 60 member Socialist Party in 1976.  Really Protectors? Really? Anyway, Judge Settle disagrees. And even if the Protectors could be granted minority status, they still would have had to produce…uhm….oh yeah. Evidence. But, awshucks, they couldn’t come up with anything to show that they had experienced harassment, threats, or reprisals due to their involvement with the referendum. Oh-did I mention several of the Protectors posted YouTube videos, had television and radio interviews, stood on street corners with signs, testified before the Washington State Legislature, collected signatures in front of Wal Mart and Target, put signs in their front yards, had bumper stickers on their cars, and published articles about their anti-gay position? Yeah, they did that. But we need to protect their anonymity because they might be harassed because of this stupid petition.

Look, part of being a junk yard dog for the First Amendment means that sometimes I have to defend speech I find repulsive. For what it’s worth, I think the Protect Marriage folks are bunch of hate-spewing morons. They seek to stifle the speech of those opposing a view they willingly cram down our throats and then hide behind the very Amendment they kick in the nuts when it comes to other people’s naughty bits. BUT- If they could have come up with evidence showing a probability that they were being harassed, threatened, and harangued to the point they were fearful of expressing their view, I would argue in favor of exempting them from disclosure.  But the Protector’s evidence of harassment consists of testimony that shows a pastor got a call from a *gasp* transgender woman. The horror! Another Protector got flipped off one day *shudder*! One guy even got called a homophobic bigot. The shame! No one was fearful to testify in the case. No one is being clubbed. No one is being swept down the street by fire hoses. The worst they could show is that sometimes the Protectors are called “assholes” and told that their platform “is a bunch of shit”. Well, if the shoe fits, Cinderella…

Bigfoot Spotted Fighting for Free Speech at the New Hampshire Supreme Court

October 24, 2011

Back in March, I wrote a snippet about a guy who brought suit against the State of New Hampshire for its burdensome permit requirements for filming in Monadnock State Park. See Plaintiff’s motion for summary judgment.

The facts of the case are nothing short of awesome.

September 6, 2009 dawned sunny and temperate in New Hampshire. Plaintiff, Jonathan Doyle, a sometimes landscaper, sometimes janitor, and full time free spirit, filmmaker and performance artist decided to take advantage of the day to engage in an art performance that he called Bigfoot on Mt. Monadnock. That morning the plaintiff purchased a gorilla costume from IParty and, with his then girlfriend, climbed Mt. Monadnock in Jaffrey, carrying the gorilla costume in a backpack. At the summit he donned the gorilla costume and started to perform. He beat his chest with his hands and roared, then retrieved a small handheld video camera from his backpack and walked up to the hikers assembled on the mountain, while still in costume, and asked if any of them had seen “Bigfoot” on the mountain, and if they would like to be interviewed about their sighting. Many wanted their pictures taken with “Bigfoot” and many wanted to be interviewed. According to the plaintiff, the purpose of the film shoot was to draw together community in a way that was humorous and experimental. (Append,1-2). The footage that the plaintiff shot is attached and can be viewed on the disc at Chapter 2. (Append. 3)

As he exited the park the plaintiff asked two park employees if they had heard that Bigfoot has been sighted on the mountain. They responded in the affirmative and the plaintiff asked them to sign notes verifying the sighting. He took the notes to both the State Police and the Troy Police in an effort to garner publicity. (appeal brief)

On September 19, 2009 Doyle returned to Mt. Monadnock with five additional people to perform and film a sequel involving the capture of Bigfoot. Among them were a guy dressed in a Snuggie with his face painted blue to act the part of “Boda the Blue Yoda”, and a six year old dressed as a pirate.

Defendant Patrick Hummel, the manager of Monadnock State Park, said that they would have no performance that day unless they applied for and received a Special Use Permit. (MSJ at 1)

A permit requirement is not necessarily a huge deal, but in this circumstance it requires a $100 fee, a 30 day waiting period, and a $2 million insurance bond.

Bigfoot argues that his work is performance art.

there can be no question but that the plaintiff’s film project was expressive conduct protected by the First Amendment and Part 1, Article 22 of the NH Constitution. The newspaper got it right when it characterized the Bigfoot project as a “performance art piece.” (Exhibit 3 to Doyle Dep.) The plaintiff was using his film to express a message that individual hikers having a solitary experience on the mountain should come together to share a communal experience.

See what he did there? After decades of redneck-approved justices who hate free speech (unless it is speech by corporations or churches) the First Amendment isn’t what it used to be. But, the New Hampshire Constitution’s free speech guarantees are alive and well.

Doyle’s counsel, Barbara Keshen, says that the suit is “about preserving the right of the little guy to express himself artistically.

By pushing his complaint to the Granite State’s highest court, “I am maintaining the integrity of being real, enjoying day-to-day things, and having fun with your friends,’’ Doyle said in an interview. “If I let that go, I’ve given up a significant right to the state.’’(source)

Doyle argued that the permit requirements act as an unlawful prior restraint. Whether you learned it from reading Near v. Minnesota or listening to Walter Sobchak’s speech in the diner during The Big Lebowski, For your information, the Supreme Court has roundly rejected prior restraint.

When it comes to the mandatory insurance provisions of the regulation, while they seem innocuous on their face, they can act to suppress speech. As Doyle argues, even when the Nazis wanted to march on Skokie, the $300,000 insurance requirement was deemed to be unconstitutional.

He could not articulate any objective criteria that he would or could use to determine whether to grant or deny an application. (Austen Dep 26-28). Without such a definition the regulation can be unfairly and arbitrarily applied.

The regulations also gives the park director broad discretion to approve or deny a permit and to waive, or not waive, the $100 application fee. He waived the fee for a number of National Guardsmen putting on an event for servicemen on their way to Afghanistan because he “felt it was the right thing to do.”

The government certainly has a right to regulate how public parks are used, but in doing so, it must tailor the regulations to achieve a reasonable interest while not suppressing more speech than is necessary. Doyle argues that the 30 day notice requirement “effectively forbids spontaneous speech, essential to artistic expression.” Doyle argues that the 30 day period might make sense when the event is a large one, it does not seem to make sense for a small group of people. It particularly makes little sense when hikers can show up unannounced in groups of 20 or more and get a discount, but a film crew of 5 needs a 30 day permit evaluation before they unpack their camera.

These arguments seem compelling, but the trial court did not buy them. Doyle is appealing his loss to the New Hampshire Supreme Court. Aside from Oregon, it is probably the best place in the union to bring a free speech claim. In the 603, “live free or die” is not just a motto on a license plate, it is ingrained in the state’s jurisprudence. See this quote from New Hampshire v. Theriault.

“[E]xpression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). “It cannot be doubted that motion pictures are a significant medium for the communication of ideas.” Id. at 501. “The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.” Id. (New Hampshire v. Theriault at 4)

If any independent filmmaker wants to film on Mount Manadnock, he needs to have a 30 day waiting period, and more insurance than the Nazis needed to march on Skokie, and his project rests with the unfettered whim of a state official. That just can’t square with the free speech clause of the New Hampshire Constitution.

H/T: Flaherty

Not THAT kind of Brotherly Love

October 21, 2011

The NAACP and the ACLU filed suit against the City of Philadelphia over a refusal to accept an advertisement for placement at Philly International Airport. (source)

The billboard reads:

The billboard that Philadelphia rejected

The City claims it rejected the ad because of a policy against “issue” and “advocacy” billboards. However, the suit alleges that the City has allowed such ads in the past.

“There is no legitimate justification for the defendants’ refusal to accept this advertisement. The City now claims that it forbids ‘issue’ and ‘advocacy’ advertising at the airport, but there were numerous examples of such advertising in place before and after the NAACP ad was refused. In fact, the City does not appear to have any written policies, procedures, or standards regarding advertising at PHL, making the City’s approval system ad hoc and unconstitutional. And, to the extent that the City has clear standards regarding advertising at PHL, it has allowed Clear Channel to ignore those standards, resulting, again, in an ad hoc and standardless administration of such policies.” (source)

The ACLU criticized the City in a published statement:

“The government cannot pick and choose which speech it deems acceptable and which it does not,” said Chris Hansen, senior staff attorney for the ACLU’s Speech, Privacy and Technology Project. “The fact that the airport accepted some political issue ads but not the NAACP’s shows the arbitrary nature of the city’s unwritten and undefined policy. It is a clear violation of the First Amendment’s prohibition against the government favoring some speakers over others. ”

The NAACP has a point or two. There is something utterly perverse about how many of our citizens live in prisons. Instead of exercising population control, as we should be, we let any old idiot reproduce — figuring that we need a supply of prisoners so that prison stocks can stay high. Or maybe it is actually a form of quiet genocide. When you stack it up against the fact that the TSA is oozing from our airports to our streets, and our press freedom ranking is noticeably below that of Estonia and Lithuania, and in the same neighborhood as Namibia, Hungary, and Mali, perhaps it is a vital sign reading that we shouldn’t ignore.

Of course, the suit itself (if the allegations are proven true) has a point as well. When the government gets into the business of approving or denying expression, it must do so in a content neutral manner. If the city disallows “issue” or “advocacy” ads, but allows ads that sell soap, it is wading into rough First Amendment waters. If, as the NAACP claims, there is no actual policy, but rather this is an ad hoc decision, the city’s case gets even tougher.

The Stolen Valor Act: This Time I Agree with the Government

October 17, 2011

I think that I am the only member of the First Amendment Lawyers’ Association who thinks that the Stolen Valor Act should be upheld. The Act makes it unlawful to falsely claim that you were awarded a military medal. The 9th Circuit struck down the law:

“The sad fact is, most people lie about some aspects of their lives from time to time,” wrote Judge Milan Smith in a 2-1 decision. “Given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements.” (source)

If I put an “Intel Inside” label on a box of used pinball machine parts, I can be held civilly liable for trademark infringement. If I put a fake “Coach” label on a handbag, I can be held civilly and criminally liable for counterfeiting. What is so objectionable about holding an asshole responsible for lying about receiving the Medal of Honor?

Personally, if I wrote the laws, I would not criminalize lying about receiving a medal. I think that we should privatize the justice in that circumstance. If I wrote the law, it would state:

It shall be an absolute defense to battery, if that battery does not cause death or serious permanent injury, if the battered party lied about receiving a military honor that he did not actually earn, and the battering party was a current or former member of the armed forces, and the beating was administered solely as punishment for the lie.

I’ve said it many times: The First Amendment may prohibit the Government from punishing you, but that should not exempt you from an ass kicking.


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