Lèse-majesté in the United States

June 27, 2022

by Marc J. Randazza

Lèse-majesté means “to do wrong to majesty.” It is an offense in many countries to insult or offend the sovereign.

Famous Examples

In North Korea, as you can imagine, any insult toward Kim Jong-un or one of his ancestors will land your ass in hot water.  That hot water is probably going to be in a work camp.  

Ok, but that’s North Korea.  This doesn’t happen in the “civilized world,” does it? 

I dunno, Thailand “civilized” enough for you?  A US citizen linked from his blog to an unauthorized biography of the Thai king and faced 15 years in prison. More recently, Wanchaleom Jamneanphol was charged with lèse-majesté for calling a princess’ dress “ugly.”  

In the Netherlands, a man got a week in prison for calling Queen Beatrix a “whore” and another man got a month for “intentionally insulting King Wilem-Alexander.  The Netherlands has, however, repealed its lèse-majesté law as of 2020.

But not here, right?

Liar

Certainly, this does not happen in the United States, though, right? Well, no … we have no such law on our books, but we most certainly have a shadow lèse-majesté regime in place. I’ll show you two examples, one from the left and one from the right, so you don’t think this is a monopartisan problem.

Today, the news is abuzz with a man charged with assault. Why? Because he tapped Giuliani on the back while saying “what’s up, scumbag?” Giuliani claims that it caused severe injuries, but apparently ol dribblehead didn’t realize that there was surveillance video that shows how hard he was lying. Of course, any cop on the scene, including those who arrested the man, would have seen the lie for what it was. You think that Giuliani would have had the man charged if he had slapped him on the back and said “attaboy, you go get those liberal fucks, Rudy!” ? No, not for a moment.

And from the left, I give you Rachel Rollins, the U.S. Attorney for the District of Massachusetts (at the time, she was the D.A. for Suffolk County, Massachusetts.

Hear that guy in the background heckling her?

For that, he faced 10 years in prison.

10 fucking years in prison.

Why? Because Rachel Rollins didn’t like being challenged. You think if he had been there cheering for Rollins, he would have been charged? Not in a million years. But, Rollins had her cronies prosecute him – and I am proud to say that I got the charges dismissed. The entire case file is here, if you want all the receipts. When the case was going on, the Boston Globe stuffed the story, but Reason.com and Turtleboy had the courage to report on it.

Not to sprain my elbow patting myself on the back, but, what if nobody had stepped up to represent DePina pro bono? Do you think he would be free now, or would he have been coerced into pleading to some lesser charge?

Giuliani and Rollins are both examples of thin skinned scum who abuse their power.

You insult either of them at your peril.

Lèse-majesté in the United States.


Settled Law and the Supreme Court

June 27, 2022

With Roe v. Wade being overturned, there is a reasonable train of thought coming from opponents of the Hobbs decision — the Supreme Court just upended a half-century of legal precedent, and all of a sudden things are different. Yes, things change. And the Court can do that.

But is that a good thing? This is NOT a discussion about whether you like the outcome or not, set that aside. This is about whether it is a good thing that once five justices think settled law is no longer settled, we can swing a 350 million nation empire in any old direction. Stare decisis is desirable, because it makes the law predictable. However, nobody wants to live in a society where decisions are simply indelible, no matter what happens.

As we have just seen, the Supreme Court can simply play Cho Chabudai Gaeshi! with nearly anything at any time. But, maybe it shouldn’t be able to simply do a u-turn any time 5 out of 9 people think it sounds like a good idea.

So why not have a SCOTUS en banc?

Temporarily expand the Court any time it wants to reconsider “settled law.”

In the Courts of Appeal, all cases are assigned to random three judge panels. If there is a prior binding decision in that Court of Appeal, then the three judge panel must follow that decision, even if they disagree with it. If you want to challenge that prior decision, you can do so if you are able to convince the Court to hear the case en banc. For you non-lawyers, that means that all the judges in the Circuit re-hear the case. (In the 9th Circuit, since there are so many judges, you just pull a random 10 judges plus the Chief – with the theoretical “super en banc” (all 29 judges) still permissible, but I think it has never happened).

To have en banc Supreme Court decisions, we could go to each Circuit court of appeal, and grab the a random judge, or the Chief Judge, of that Circuit. We have 13 numbered geographic circuits, the DC Circuit, the Federal Circuit, and the Court of Appeals for the Armed Forces. That gives us 25 Justices to deliberate any decision that would upend “settled law.”

This would give us an avenue to fix mistakes, reverse decisions that do not stand the test of time, but without making every vacancy an existential crisis over abortion, guns, or whatever becomes the battle du jour.

_______________

Yes, this is a little adaptation of a small section of a recent post. But, I want to tease out this idea more.


Self Defense is Your Right

June 24, 2022

The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Right guarantees.”  McDonald v. Chicago, 561 U.S. 742, 780 (2010) (plurality opinion).  The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need.  The Second Amendment right to carry arms in public for self-defense is no different.  New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.

There are 43 States where the government issues licenses to carry based on objective criteria.  In New York, on the other hand, the government requires a further condition of showing a special need to obtain a license to carry.  New York requires applicants to show a “proper cause” for receiving a license to carry, which is a subjective standard left to the bureaucratic decision-making.

Under New York law, an individual who wants to carry a firearm outside his home may obtain an unrestricted license carry a handgun in public if he can prove that “proper cause exists” for doing so.  In order to meet the “proper cause” requirement, the applicant must “demonstrate a special need for self-protection distinguishable from that of the general community.”

Two residents in New York applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense.  The State of New York denied their applications because a generalized interest in self-defense did not satisfy the “proper cause” requirement.

The general process for applying for a license to carry in New York is that a bureaucrat in New York determines whether there is “proper cause” for an applicant to receive a license to carry a handgun outside of the home.  And, essentially, the New York state courts rubber stamp the bureaucrat’s decision.  New York courts defer to the bureaucratic decision-making so long as there is a rational basis for the decision, or that it was not arbitrary and capricious.

There are no New York statutes to define “proper cause.”  New York courts had taken it upon themselves to define “proper cause” as “demonstrat[ing] a special need for self-protection distinguishable from that of the general community.”  E.g., In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257 (1980).  New York, generally, required evidence “of particular threats, attacks or other extraordinary danger to personal safety” to satisfy the “proper cause” requirement.  In re Martinek, 294 App. Div. 2d 221, 222, 743 N. Y. S. 2d 80, 81 (2002).

The Court ruled that the “proper cause” requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

This case is a natural extension of prior Supreme Court precedent.  In District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010), the Court recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.  Here, the Court extended the ruling outside of the home, ruling that “ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.”

The Court focused on self-defense as a cornerstone to the Second Amendment and that the government bears the burden of proving their firearm regulation squares with history.  The baseline is that citizens have a Second Amendment Right to self-defense, which includes owning and carrying a firearm inside and outside of the home.  Where the government choses to regulate a citizen’s right to self-defense by requiring the citizen to show a special need to own and carry a firearm, then the government must prove that such a regulation is consistent with historical tradition of firearm regulation. And “[o]nly if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.”  Konigsberg v. State Bar of Cal., 366 U.S. 36, 50, n. 10 (1961) (quotation marks omitted).


Religion Clause Case – The Sky is Not Falling on Separation of Church and State

June 22, 2022

by Marc J. Randazza

Introduction

The Supreme Court issued a decision this week in Carson v. Makin, and the commentary from the Left seems to be that the sky is falling and that it will usher in the Handmaid’s Tale. My friend Elie Mystal believes that this means that the wall between church and state is falling. (here) He is not alone.

The American Federation of Teachers had this to say:

“Remarkably and stunningly, even for this right-wing majority, this decision completely vitiates the establishment clause of the U.S. Constitution and, with it, the separation of church and state, a core constitutional principle that has bound this country together since its founding. Today the court has decided that taxpayers must pay for the private religious education of others. (source)

The predictions of disaster are, I think, overblown. I think the American Federation of Teachers is quite simply lying to you.

The Case

The Maine Constitution requires that all children are entitled to a free public education.  However, fewer than half of Maine’s school districts operate a public secondary school.  Therefore, if a child lives in a district where there isn’t one, then the government pays tuition assistance for them to attend private schools – as long as they meet certain educational requirements.  

But, in 1981 Maine passed a law that excluded any religious-oriented school from the program.  This was because the Maine attorney general believed that failing to do so would violate the Establishment Clause.  In all fairness to the Maine attorney general, the law may have been a bit unclear on this.  But, in 2002, the Supreme Court held  that a benefit program where private citizens directed government aid to religious schools as a “genuine and independent private choice” was not contrary to the Establishment Clause.  See Zelman v. Simmons-Harris, 536 U. S. 639 (2002)   Then, Maine considered repealing the limitation, but it did not pass. 

The Court explained that the Free Exercise protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 450 (1988). The government violates the Free Exercise Clause if it excludes religious observers from otherwise available public benefits.  “A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause” (Op. at 10) 

As the court explained, the government must be neutral in matter of religion.  But, in this program, there was “nothing neutral” about it – the State of Maine would pay for private school tuition, as long as the school was not religious.  “That is discrimination against religion.”  (Op. at 10)

The decision relies upon two prior cases, which fit squarely within its facts.  In Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), the Court considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces, but denied such grants to any applicant that was owned or controlled by a church, sect, or other religious entity.  There, the Court held that the Free Exercise Clause did not permit Missouri to “expressly discriminate against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.  The crux of Trinity Lutheran,and the Court’s jurisprudence in this area since, was that the religious organization was required to renounce its religion in order to receive public funding.[1]

In Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2261 (2020), the Court held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church sect, or denomination” violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at religious schools.  Following the policy in Trinity Lutheran, Chief Justice Roberts writing for the majority stated that “A State need not subsidize private education.  But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

So what’s the big deal?

If the government gives you a benefit, it can’t limit that benefit in a way that would offend the First Amendment. Remember in Matal v. Tam, the trademark office once banned registration of trademarks that were “disparaging.” The government said that this is because they were just offering a government benefit, not engaging in censorship. The doctrine of unconstitutional conditions required striking down that restriction. This is similar – the government can’t say that you can attend any school you want on the state dime, as long as they do not teach you religion in addition to the state requirements.

This does not mean that the state can directly fund religious schools. This means that if the state gives you a choice, that choice can’t be limited to non-religious schools only.

And despite this perspective, which is also dishonest, this does not mean that this applies to Christian schools only.

Mr. Ali, and those fawning over his statement seem to believe that the issue here is Christianity vs. other religions. However, he would be precisely wrong. If you can’t discriminate against religion itself, you can’t discriminate between religions.

Now remember the American Federation of teachers’ statement at the top? Their statement continues with “Now more than ever, we must prioritize our public schools, not marginalize them; we must invest in them, not divert money away to private programs.” (emphasis added)

So what are they really worried about?

Competition.


[1] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017)

The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the “most rigorous” scrutiny.  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 545 (1993)


“The Beautiful Italian”

June 21, 2022

by Marc J. Randazza

I grew up hearing what I thought was “Italian.”

As I busted through my grandparents’ door, as soon as one of them saw it was me, “Figghiu miu!” (my son!) echoed through the house. “Bu mangiati?” (you want to eat?) My grandfathers brought me down to the docks in Gloucester, where everyone was Sicilian, and I heard “Italian” all the time. I didn’t learn to speak it back then, and I didn’t really understand it perfectly, but I could often follow the conversation.

When I was 20, I decided that it was time to study Italian. I sat down at my desk in Perugia, and opened my book as the teacher began speaking to us.

I couldn’t follow a single word.

This was not what my grandparents spoke. This wasn’t what the old men spoke down at Dulie’s, the coffeeshop by the wharf.

I remember going with a friend to a restaurant in Italy shortly after. He explained that this place was known for its “lumacche.” When the bowl of snails arrived, I exclaimed with delight, babbalugi!

Everyone laughed. “That’s not Italian, my friend. That’s dialetto” (dialect) “that’s Sicilian slang.”

I returned home, fluent in “Italian.” My grandparents gathered friends and relatives to welcome me home. My grandmother beamed with pride and said “he speaks the beautiful Italian.”

“Not like ours. Ours is just slang,” said a great aunt.

That conversation always made me sad.

Imagine having such a cultural inferiority complex that you would imply that yours was “the ugly” language.

What is a “dialect” and what is a “language?” Max Weinreich said “A language is a dialect with an army.” Sicily has never had its own army. Neither has Abruzzo or Puglia or Campania. But they have their own languages, with their own histories, and their own literature. Italian is dominant, but all over Italy there is renewed interest in the regional languages. Even in America, where descendants of immigrants are learning Napolitano or Sicilianu along with Italian or even instead of “standard” Italian.

Exploring these regional languages is like a trip back in time. When Italy became a unified country, even the King did not speak “Italian.” In fact, only 3% of the country spoke this constructed language — which was really an adaptation of the Florentine “dialect.” In the 1800s, “the beautiful Italian” really became spread through literature. And in the far flung portions of the country, many did not usually hear, and certainly did not speak Italian well into the 1960s, but then television and radio chipped away at them further.

When I visit Terrasini, where my grandparents came from, even I struggle to understand everything at first. But, after a short time, I hear those old voices singing back to me from my youth. I hear the old women singing in their apartments, and I see my grandmother again. I hear the old men arguing in the café, and I am back on the wharf early in the morning, drinking coffee even though I am only 10.

During one visit to Sicily, we met some relatives and spent a few hours chatting. Slowly, but surely, I fell happily into a mix of Italian and Sicilian, using what Sicilian words I knew, and filling in the rest with Italian.

After a while, my daughter Natalia, who speaks fluent Italian, got bored. She was seven years old and had had enough. She tugged at my arm, getting more and more impatient. Finally, her patience shattered and she yelled out “DADDY AMUNINNI” – which is perfect Sicilian for “andiamo” or “let’s go!”

This, on Via Ungheria in Terrasini, the very street where my great grandparents lived.

As far as I was concerned, Natalia spoke “the beautiful Italian.”


The Spirit of ’75 – Bunker Hill Day

June 17, 2022

by Marc J. Randazza

The Flag of New England, the flag carried that day by the Americans

Sometimes, you have to lose in order to win.

On this day in 1775, the HMS Lively began bombarding the American fort on Breed’s Hill (yes, the Battle of Bunker Hill took place on Breed’s Hill). His Majesty’s General Thomas Gage then let loose with 128 more cannon to bombard the American position.

The British won the battle. Sort of.

The British lost 226 dead and 828 wounded, 100 of those casualties being officers. General Clinton said “A few more such victories would have shortly put an end to British dominion in America.” The Americans lost 140 dead, 450 wounded.

The battle showed that the American militia, although inexperienced and poorly equipped, could hold their own against the most powerful empire in the world.


I can fix the federal judiciary – a little

June 16, 2022

by Marc J. Randazza

I hate that the Supreme Court often comes down to a political battle. I’d like to see it more insulated from the politics of the day. To that end, stare decisis, is a wonderful thing. But, at the same time, if we elevate stare decisis to too exalted of a place, we are saying “once we make a mistake, we can’t fix it.” I’d also like who is on the Court to matter less. If it all comes down to just nine personalities, that’s a helluva way to run a legal system. Hell, the entire federal legal system is messed up… I’m going to try and clean that mess up for you.

There has to be a better way to fill this place

Take the Focus off of the Court in Elections – Every Presidential Term Gets at Least One Justice

This is not 100% an original idea, but I can’t find where I first saw it. Each President gets one justice per term. Therefore, the court can at times have more than 9 justices on it. Let’s say that Biden gets re-elected, and Clarence Thomas says “I’m not going anywhere til I’m 100 years old.” Biden gets to name a new justice. Now there are 10. Every case randomly excludes a justice. Then, Thomas sadly passes away. Biden does not get to name a replacement unless someone else dies or retires. This should lower the stakes for the Court in each election.

An Oldie But a GoodieSupermajorities

We have to return to the norm that at least 60 Senators must agree on every judge – not just SCOTUS. We need consensus. In fact, I’d raise that to 66 Senators. This 51-50 shit is stupid. It is a lifetime appointment to the most powerful court in the country. There is a reason that historically, SCOTUS confirmations were overwhelming — because presidents necessarily had to choose someone they knew would slide with the minority party. Now, they can pick someone who doesn’t even know what a woman is. Or they can pick Kavanaugh. Even if you think Christine Blassey Ford was a reality TV clown show produced by clowns for clowns (as I do) you have to admit that Kavanaugh was a polarizing-for-no-good-reason pick. A Supreme Court without either Justice Jackson or Justice Kavanaugh is a better Court. With only a simple majority, Court picks stray from finding judicial stability and judicial talent and it turns into each party simply picking who their best middle finger to the other side can be.

The Circuits and the States

I don’t like that the President can pick anyone they want. Remember when George W. Bush picked Harriet Miers? What was that? Personally, I think it was because he really wanted Alito, and he figured he could have the Democrats blow all their wind on mocking Miers. If so, it worked – and he got confirmed 58-42.

I think, instead, the President should either be constrained to choosing someone who has already served on a Court of Appeal or a State Supreme Court, or there should be a pool of candidates that those Courts themselves nominate. So if Justice Sotomayor retires, then each of the Courts of Appeal, (the 11 geographic districts, the DC Circuit, and the Federal Circuit) and each State Supreme Court can vote amongst themselves to choose who to put into the pool. I guess I would even permit each of these constituencies to select someone from one of their subordinate courts, if they felt that was best. So, if Florida preferred to send a great judge from its 5th DCA, or the 9th Circuit said “you know, Judge Boulware is a great judge, and we would rather see him than any of us on SCOTUS” then fine. Hell, I’d go so far as to say that if a state or a Circuit wanted to pick anyone outside their ranks, that would be fine. The point is that the pool for every SCOTUS pick will be 63 people – and those 63 will be pre-vetted by a state supreme court or a federal Court of Appeals.

En Banc and Stare Decisis
When you shift your car into reverse, there’s always some extra step. You either have to push the gear shift down, or pull up a plunger of some kind to get it into reverse. The Court needs an extra step too. If you don’t know what I am talking about, then go learn how to drive a real car.

In the Courts of Appeal, all cases are assigned to random three judge panels. If there is a prior decision in that Court of Appeal, then the three judge panel is bound by that decision. However, if you want to challenge that decision, you can do so if you are able to convince the Court to hear the case en banc. For you non-lawyers, that means that all the judges in the Circuit re-hear the case. In the 9th Circuit, since there are so many judges, you just pull a random 10 judges plus the Chief – with the theoretical “super en banc” (all 29 judges) still permissible, but I think it has never happened.

In the Supreme Court, I would say that consistency matters – a lot. But, reversing mistakes matters too. For example, I think Bowers v. Hardwick was wrongly decided, and in Lawrence v. Texas the Court agreed — a mere 17 years later. I also think that Roe v. Wade was wrongly decided (although, as a matter of individual liberty, I begrudgingly hold my nose and support the right to an abortion while abhorring the practice personally). I also find Justice Thomas’ view on New York Times v. Sullivan to be persuasive, and while I wouldn’t throw it out completely, I do think the Court’s decisions expanding the “public official” doctrine to mere public figures are worth reconsideration. St. Amant v. Thompson essentially says that the Press has no responsibility to even try and get the story right.

Justice Thomas deciding a future case challenging New York Times v. Sullivan

But, reversing Roe, Sullivan, or even St. Amant, at this point, will change a lot — overnight. Yes, the Supreme Court has always had the ability to play Cho Chabudai Gaeshi! with nearly anything at any time. But, maybe it shouldn’t be able to simply do a u-turn any time 5 out of 9 people think it sounds like a good idea.

So why not have a SCOTUS en banc? An even larger Court, which is required if you’re going to reverse a prior decision of the regular Supreme Court.

Couple it with the idea above, and that might work – but then you’re stuck if you only have nine justices. If you have ten, that’s hardly a “banc” to change things. Sure, there could be a tie, but you could have a “ties lose” rule.

That’s when you go to each Circuit and grab the Chief Judge of that Circuit, and they sit on SCOTUS, by designation, any time there is an en banc case to be decided. This would make for a pretty large deliberative body — the nine justices (or even a few more at times) plus the 13 Courts of Appeal. But, I think overturning settled law should be harder than establishing precedent in the first place.

While We’re At It – District Court Judges

Here’s how it happens now: You go to law school. Then, you do something but in the meantime, you either donate a lot of money to one political party or the other, or in some other way demonstrate your loyalty to a particular political party’s views. Then, if you gave enough money or enough people who did happen to think you’ll grind the gears in their direction, your name winds up on some Senator’s desk. That Senator lobbies for you to be picked, you are, then 50 Senators say “yeah, screw it, put her on the bench.”

Sometimes, that accidentally results in good judges. Or bad ones who learn how to be good. Or just

Article III means never having to do a good job

terrible judges who are there to promote their agenda or to settle perceived or actual scores. There’s no real “vetting” of these people for skills or qualifications – it is entirely political. Yeah, the ABA claims to vet them – and will sometimes even say that they’re “unqualified.” That never matters. Nobody cares what the ABA thinks except the law schools (that’s a rant for another day). These un-vetted usually (more so nowadays than in the past) political hacks who need only appeal to 50 senators, then are appointed for the rest of their lives or until they figure out they can draw a pension and then go do private arbitrations for $900 per hour, where they have even less accountability.

On the other hand, federal magistrates apply for the job, are vetted and hired by committees, and in general are fantastic. I am not blowing smoke up the magistrate’s asses here when I say that I have never been before a magistrate who didn’t work hard, do their best to come up with the right decision, and who didn’t practice their craft with 100% integrity. I can say that about many federal judges, too. But I’d be struck by lightning for being a liar if I told you it was all of them. I would be gambling with my life if I told you it was even 51%. Don’t believe me? Ask any federal litigator about a case, and the first question they will ask is “who is your judge?” If they don’t know anything about the judge, personally, their next question will be “who appointed them?”

That’s a sign that the system is sick.

So here’s my wild idea — make judging a separate profession from being a lawyer.

You want to be a federal judge? Then you need a degree in … whatever, let’s call it “judgery” until someone comes up with a better name. To get that degree, you need either law school or at least half of it, plus a two year clerkship with a sitting federal judge or magistrate.

Carabinieri Insignia

After that, you are in the “judge corps.” Yeah, like the military. Well, more like the Italian Carabinieri. The Carabinieri are a federal military police. If you join the Carabinieri, your first tour of duty must be somewhere that you are not from. Why? Obviously, because you’re more likely to be clean if you are from Palermo, but you wind up serving in Bologna. You won’t have so many local prejudices, local connections, and local corruptions. Your second tour of duty, you can go back home, if you want.

Once you get your judge license, you’re off to your first deployment — wherever the judge corps needs you. No local senator diddling around with this. No local law firms getting an edge because you used to work there. No petty scores to settle from high school. You know nobody, and you judge accordingly.

After your first 5 year term, attorneys in your district vote on whether to retain you or send you somewhere else.

If you’re sent somewhere else, your second term has the same retention or transfer vote.

At any time during your tenure, in any district, there can be an action brought to transfer you to another district. If it is filed, then there will be a vote within 60 days by all attorneys in the district. if 3/4 of the attorneys vote to yank your judge license, you lose it. If 2/3, then you’re involuntarily transferred.

Federal rules should be amended to give any party a right to a peremptory challenge of the judge assigned to their case with no questions asked, but you can file this only prior to any rulings by the judge. The judge with the most peremptory challenges in a district every year is reassigned to another district, involuntarily.

If you have three involuntary transfers, either due to vote or due to being the most peremptoried judge in the district, you’re done judging.

After any successful appeal, the case must be remanded to a new judge. The most reversed judge in the district is also involuntarily transferred.

Conclusion

To do all this would be largely impossible without a Constitutional amendment or without some major consensus on new non-binding norms. I’m not stupid. I get that. But, this is not legislation, this is aspirational. But, I think this plan addresses what is wrong with our courts — at least our federal courts. So, get to work.



Electric Cars are Bad for the Environment(?)

June 15, 2022
This ride will get you laid

by Marc J. Randazza

Stop it with the whole “electric cars are bad for the environment” crap. Yeah, they are. Yeah, cobalt and lithium mining. Yeah, we have to dump the batteries somewhere one day. Yeah, you need to make electricity somewhere, and maybe that means a coal fired power plant somewhere.

You’ve seen how filthy the internal combustion / petroleum industry is too, right? It isn’t like we’re trading out something nice and pure. Even a coal plant in one place beats exhaust fumes everywhere.

I’m not saying that electric is actually better for the environment. I don’t know and I don’t care. What I can say is will those of you perpetuating this dumbassery cut it out? If you drive, no matter what you drive, you shit on the environment.

Fuck the environment. I have three cars. None of them get more than 15 mpg. I have one that has a

Sign translation: “I am a sanctimonious little snot living in a reality show.”

button that I push and it goes into sport mode — where it gets a massive power boost and SIX MILES TO THE GALLON. Every time I stab that button, I get a huge smile on my face and mockingly say “YEW HAVE STEWLEN MY DREAMS!”

My other two cars are Corvettes. One without a catalytic converter. I spew pollution everywhere every day. I run the air conditioner in my house with the windows open, because I like the breeze and the AC. I fly in a big ol jet a couple times a month, and usually try to do so in the front of the plane so that I take up even more space. I have the carbon footprint of Costa Rica. I do not give a SHIT. Future generations? Fuck you. Invent something instead of being on instagram all day you whiny little bitches.

All that aside, ELECTRIC CARS ARE BETTER. SAY IT. THEY ARE BETTER!

An electric Kia can smoke any of my V8s. You don’t need to change the oil in an electric car. An electric car has like two moving parts (I dunno, six? I’m not handy). When I blew the engine in my vintage Vette, there was a tiny part of me hoping it couldn’t be repaired, so I could convert it to electric (it is matching numbers, so I did restore it to new). You don’t ever have to go to the gas station! You just come home and plug that shit in. So what if road trips require a 30 minute recharge? Start putting cafes next to the chargers, and maybe we can all get a little more social again – of course, you’ll just stare at your phone the whole time. That might be an improvement though. You can take your selfies and text during recharges, so that the roads are safe for motorcycles again.

I do love the growl and vibration signature of a V8. You can’t really replace that. But, whatever.

I also love pissing off Greta Thunberg.

I think that any man who drives a Prius should also be issued a little black dress and a mask so he can wear it in his car by himself. But, that’s just the Prius.

Actual footage of
a man buying a Prius

The only reason I don’t have an electric car is because I hate all of them. I don’t hate seeing them. Good for you if you have one. You can laugh your ass off at me if we race … but when the hell are we gonna do that? You know when your car’s performance really matters? Merging. You in your electric Kia have the torque of an oil tanker squeezing and twisting Satan’s pud until he screams for mercy. I have a more heavy-metal sounding engine, and I’m lagging behind you – even in an M5 or a Corvette. I am jealous of you in your little sparky Kia.

I am drooling to buy an electric car. I will buy one the day that they make one that doesn’t have a stupid ipad for a dashboard. I want buttons, switches, and dials like a real car — oh, and air conditioned seats. If you have testicles, you need air conditioned seats (that’s why Priuses don’t have them).

And it isn’t because I give two shits about climate change. Fuck climate change. I want climate change. Turn the heat up and let’s start growing mangoes in Portland, Maine. If electric cars are better for climate change, I don’t care. I’ll burn a tire in my yard just to be an asshole. I want electric torque and off the line power. I’m not driving my car any faster than 120 mph anyway. So, top end doesn’t mean diddly.

I just want something that looks decent, that I can change the temp in the car with a BUTTON, I can change the radio station with a DIAL, and a nice SWITCH that goes KERCHUNK on the dashboard that will cool my balls on a hot day — or hell, a cold day. Cold air across your balls is key. That’s why they dangle outside your body, and they’re not protected inside your skull.

I’m waiting, Elon.


Withhold Medical Care From Someone Because You Disagree With Them?

June 14, 2022

by Marc J. Randazza

The New York Times entertains the question “Can I withhold medical care from a bigot?” To the Times’ credit (something I do not say often) its columnist concludes that doing so would be wrong. The mere fact that a physician would ask this question in the first place is a symptom of cultural rot.

Hey, I’ve been there. A long time ago, I was in a car accident. I wasn’t wearing a seat belt and I smashed my head on the windshield so hard that it cracked it. I wasn’t driving, because I was on LSD. So, now I had a concussion and was on acid. I got back to my dorm, blood streaming down my face, laughing about it. After a bit, my head hurt really bad, so I grabbed a bottle of Tylenol and popped four of them – except it wasn’t Tylenol. To this day I do not know what it was, but I do know that the floor-mate to whom it belonged was very upset that I ate his stash.

Next thing I remember, I am in a hospital. Two of my friends are sitting in the room. When I come to, one of them is laughing about the fact that as I was wheeled in, I insisted on being seen by a Catholic or Jewish doctor, but that there is no way I would be seen by an Episcopalian. To this day, I could barely explain the difference between an Episcopalian and a Catholic. At the time, I was an evangelical Atheist.

I have no idea what subconscious concerns I had. I sure hope that there were no Episcopalians in the audience for my wacked out concussion and drug-addled performance. But hey, I said those things.

Would the doctor have been within his rights to tell me to get the hell out and go to another emergency room? Of course not.

So let’s change up the fact pattern a bit. Let’s presume that for some reason, I truly did hold negative views of Episcopalians. So what? I don’t get to hate someone and still be treated? If so, could a doctor refuse to treat you if you’re an Antifa piece of shit? Again, of course not.

But how rotten has our culture become that a doctor would even ask this question?

Photo of the Doctor who asked if he could let people die if they did not think the way he does.



What it boils down to is “can I let someone suffer or die because they think differently from me?” Would we entertain such a question from someone who says:

1. “My religious beliefs teach me that homosexuals deserve to be dealt with as Leviticus says, therefore is it ok to let a queer die?”

2. “Can I let someone die if they support gun rights? After all, if enough of them die, we can get rid of guns!”

3. “Should I let this guy die because he’s a communist?”

These are dark times, and they are getting darker. It is already socially acceptable to discriminate in virtually every walk of life against someone who disagrees with you. During the Covid power grab, at least 51% of the country cheered those who would let the unvaccinated die or be denied medical treatment. Meanwhile, stuff your fuckin’ face with cinnabon and cigarettes, and you’re just fine.

I wouldn’t punish a doctor for merely asking this question. But I would look at you and ask you “what have you done to help foster a culture where a doctor would ask this question?”

If nothing, then “what have you done to foster a culture where a doctor would no more ask this question than he would ask if he can rape his unconscious patient?”

If nothing, you’re part of the problem, my friend.


Can we prohibit drag shows for kids? No.

June 10, 2022

by Marc J. Randazza

Drag shows for kids.

I feel like Jake Blues when he says “Illinois Nazis” in the Blues Brothers. For “Pride Month,” a gay club in Dallas had an event called “Drag The Kids to Pride” in which drag queens performed sexualized dances for kids … not just teenagers, actual kids. This seems to be something widespread, nationwide.

If you bring your kids to one of these, you and I have no common ground when it comes to parenting.  Why would you would bring your kids to a sexualized performance of any kind?  That isn’t “pride.”  That is what the Conservative kids call “grooming.”  I’d feel the same way if you brought your kids to a strip club, even if the dancers remained fully clothed, but performed the same routines on stage. It’s not the sexual orientation of the shows that troubles me. This just isn’t something appropriate for kids.

Florida State Rep. Anthony Sabatini tweeted that he was considering legislation to make it a felony to bring your kid to such a show. I like Sabatini. I like where his heart is at here. But, I can’t agree with his idea.

Sabatini is not alone. Politicians across the country are capitalizing on this skirmish in the culture wars to propose or suggest state action to curb this trend.

Now for the hard part — so far, every limitation I have seen suggested will violate the First Amendment.  

The facts

The facts, as I understand them (and upon which my analysis is premised) are:  

1. Drag queens danced for parents and their kids. 

2. Kids got up on stage and danced, too. 

3. The dances were “sexualized” in nature.  

4. Kids were stuffing dollar bills into garter belts, and audience members were throwing dollar bills to the kids who danced.  

If I have any facts wrong, then my analysis might change.  

An important note here — I have heard no reports that any of these involved actual nudity nor actual sexually explicit conduct.  “Sexualized behavior” is different from sexually explicit conduct.  The government can regulate nude performances and sexually explicit conduct.  The government can not regulate “sexualized” expression that is merely in tremendously bad taste.     

Another thing to note: It seems irrelevant that these are “drag queens.” If the kids can’t see the performer’s genitals, I think it makes no difference what is under their g-string, or if their tits are real, enhanced, or just stuffed bras.

Fully clothed. Nevertheless, I think if you would put your kid in that seat, you’re fucked in the head.

Analysis – Definitional Problems 

The first problem I would have with trying to ban drag shows for kids is even defining “drag show” in a legally clear manner.  Set aside the constitutionality of the ban until later in this post.  Just try to define this.  

If you asked me to come up with a regulation that simply defined the problem and prohibited it — even in the absence of the First Amendment — I couldn’t do it.  Could you?  

Sure, we all “know it when we see it.”  I know exactly what you mean when you say “those drag shows with kids.”  The sight of a performer writhing on the ground with dollar bills being thrown into their crotch, twerking in a kid’s face, yeah … I can picture it. But can I actually define it in a way that wouldn’t eat up a lot of other expression?  Can we define it so that it wouldn’t be a tool in the hands of someone who would censor dance / performances that we like?  

How could you come up with a regulation that wouldn’t ban say, dressing up to go watch the Rocky Horror Picture Show?  Would the regulation sweep up even Halloween costumes?  How could you write it so that it did not?  Would the difference be whether there was dancing or not?  If so, would you be able to write a regulation tailored sufficiently that it only swept up the dance moves you’re worried about?  Would this just be an “anti-twerking law?”    Would it be limited to men dressed as women?  What about women dressed as men?  Or what about just women in bikinis dancing?  

Do you trust the government to make this decision? I do not.

In Cohen v. California, Justice Harlan wrote “we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” 403 U.S. 15, 25 (1970).  

I do not trust the government to make this decision.  I trust the government even less if a government I trust today gets a tool of censorship in its hands, and then the regime changes.  Be careful. If you release poisonous snakes into your neighbor’s yard, they’re eventually going to slither into your yard.

Analysis – First Amendment

Dancing is First Amendment protected expression.  Even nude dancing is.  Judge Posner wrote that to say the contrary is “indefensible and a threat to artistic freedom.”  See Miller v. City of South Bend, 904 F.2d 1081, 1090 (7th Cir. 1990) (concurring).  Most certainly, fully clothed (even if scantily clad) drag shows are dance protected.    

I think a reasonable person could call these performances “indecent.”  I call them that, but that’s just like my opinion, man.  Whether it is indecent or not, “Sexual expression which is indecent but not obscene is protected by the First Amendment.” Sable Communications v. FCC, 492 U.S. 115 (1989). See also Smith v. California, 361 U.S. 147, 150 (1959) (bookstores selling indecent materials); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (Indecent, but non obscene theater performances); Young v. Mini Theatres, Inc., 427 U.S. 50 (1976) (indecent motion pictures in a theater); Schad v. Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981) (nude dancing).

But What About The Children?

The analysis does change a bit because kids are involved, but not enough to move the needle.  

The Supreme Court has held that “obscene” material is not protected by the First Amendment.  To be obscene, material must meet the Miller Test.  That test says we look at material in three parts:

1. Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest; 

2.  whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; 

3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I can not imagine a principled judge not throwing out a regulation or a prosecution over a fully-clothed drag show.  Is merely twerking “patently offensive?”  Is it different because it is a man dressed as a woman?  It shouldn’t be.  To say these performances lack serious artistic or political value is to devalue those terms to being nearly worthless.  Most certainly they have “political value.”  That “political value” is the parents virtue signaling at how liberal they are.  It is absolutely an act of political speech and political expression.  Not expression I may approve of, but no parent brings their kid to this because they merely think the kid will have fun.  If that were the case, they’d park them in front of a guy with one of those great big bubble makers and throw ten bucks at him to entertain the kids.  These shows, and participating in them, is an act of political expression.  It is about as tasteful as a Pol Pot fan club meeting, but no honest person could say that these lack artistic or political value.  

When it comes to kids though, the standard can shift a little bit.  In Ginsberg v. New York, 390 U.S. 629 (1968) the Supreme Court upheld a variable standard when it comes to obscenity and kids.  In that case, the court upheld a New York law that prohibited providing materials containing nudity or sexual content to minors if there was monetary consideration. 

Aha! Have we found a way to prohibit this thing we dislike?  

Probably not.  

Ginsberg v. New York establishes that we can have a sliding scale of what is obscene.  Therefore, something that might not be “obscene” when sold to an adult can become obscene when sold to a minor.  (Ginsberg was decided before Miller, so I question even whether Ginsberg is still good law, but for the sake of this post, presume it is).  But, even in Ginsberg, the court recognized “the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.”  

The rationale underlying Ginsberg is that parents get to raise their kids as they see fit.  “[C]onstitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”  Ginsberg also cited to Prince v. Massachusetts.  “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”  321 U.S. 158, 166 (1944).  

The philosophy here is that parents get to educate their kids on sexual issues as they see fit (short of molesting them, of course).  The logic reversed the polarity here — in Ginsberg, the issue was that no bookstore should be making the decision as to whether a 16 year old kid can have a pornographic magazine — but a parent could still make that decision for their kid.  You want your kid to have a copy of Hustler?  Have at it.  But, the local convenience store can be prohibited from selling it directly to him.  

Could Ginsberg be used to create another stratification in obscenity law?  

Maybe, but I think such a decision could be fraught with constitutional danger.  Let’s say a

Not Sexy Enough For You?

court said that since Ginsberg lets us create an “obscene as to minors” standard, we can create more layers in that standard.  Could we have an “obscene as to toddlers” standard?  At what age would we draw the line?  How would we draw it in such a way that it prohibited what we wanted to prohibit, yet left other speech unscathed?  Would it be “harmful to minors” to let kids watch Monty Python?  Why not?  Because when the Monty Python guys are dressed as women, they’re not sexy enough?   Is the standard “I’d hit that if it had a vagina?”  If so, aren’t we using the “prurient interest” as to adults in order to decide what kids can see?  

Conclusion

I have no issue with drag queens in general.  I think it is great that they exist.  I will have words with anyone who wants to bully someone else because they are an adult choosing to be a drag queen, or transsexual, or attend a drag queen show, or whatever.  Your life, live it the way you like.  It doesn’t hurt me, nor bother me, in the least.  (In fact, my firm proudly handles transsexual discrimination cases that even the big trans-advocacy organizations turn down).  I have no problem with “Drag Queen Story Hour” where drag queens simply show up and read books to kids.  (Although this one should be criminally charged).

How about now? Sexy enough to ban?

But this is not that.  Rousseau wrote “Childhood has its own ways of seeing, of thinking, of feeling; nothing is more absurd than wanting to replace them with our own.”

This absurdity is at a level that I think nobody could ever have predicted.  We have elementary school teachers seeking validation for their life choices and sexuality from their students.  We have woke-scolds trying to reinvent our language, and other peoples’ languages as well.   And now in what seems like an outright declaration of war on normality, sick people bringing their kids to watch and participate in sexualized drag shows.  

But that’s what liberty is.  You get to raise your kids the way you want, with the values you want.  

Restrictions on that are limited, as they should be.  Do I want people to bring their kids to these shows?  I would rather they not.  If my kid’s mom brought them to one, we’d be in custody court before she got home.  (Not that she would, but just sayin’).  If my kids had friends whose mom (it is always the moms) brought them to one, I’d seriously consider whether my kid should even associate with that kid in any way.  I wouldn’t have any problem with completely socially ostracizing any drag queen who performs like this for kids, nor with doing the same for anyone who runs a business that tolerates it.  

But I do not want the government involved.  The government that has the power to tell you that you can’t bring your kids to a non-nude, non-obscene, drag show can also tell you that you can’t bring your kid to see a performance that you like.  In fact, it isn’t a far slide down the slope to limitations on what you can teach your kids in church.  

Liberty isn’t easy.  It isn’t supposed to be easy. It isn’t supposed to be comfortable. Liberty means your fellow citizens get to enjoy performances and child-rearing ideas that make your skin crawl, sometimes. Liberty is supposed to be standing up for expression that you would convince every person to reject – while protecting their right to make that choice for themselves.

I find these shows to be troubling.   But, “if there is a bedrock principle underlying the first amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397 (1989).

Yeah, Illinois Nazis, Texas Drag Queens, pornographers, Satanists, and even people who advocate putting pineapple on pizza have First Amendment rights. And even if you hate their use of those rights, to diminish theirs is to diminish your own.


The First Amendment Protects Angeli Gomez’ Right to Speak About Her Experience

June 5, 2022
The Mama Bear
Heroine of Uvalde

by Marc J. Randazza


Angeli Gomez probably would find the title “the heroine of Uvalde” to be embarrassing.  Therefore, if she reads this, I must apologize for calling her that.  But, Ms. Gomez demonstrated character and conduct that makes “heroine” a proper term for her.  Her statement “I’m going in there” should be enshrined on a monument somewhere, with nearly as much honor as the words “lets roll.” 

The Uvalde police?  Just the opposite.  Everyone knows their ineptitude and cowardice — waiting an hour while a loser shot kids inside the school.  Ms. Gomez, frustrated with government flunkies, tried to go in and save her kids.  Apparently a U.S. Marshal put her in handcuffs for “intervening in an active investigation.” (source)  “Right away, as I parked, a US Marshal started coming toward my car, saying that I wasn’t allowed to be parked there,” she recalled. “And he said, Well, we’re gonna have to arrest you because you’re being very uncooperative.” (source)  (second source

Local cops freed her, and she ran off, over the fence, into the school, grabbed her two kids and ran out.  

Again, the words “Uvalde Police Department” should be, from this day forward, synonymous with “incompetence” and “cowardice” and “ineptitude.”  That police department is 40% of the town’s budget.  They have a SWAT team, and yet a middle aged field-worker-mom showed more competence and heroism than this entire paramilitary over-funded group of preening tax-fattened losers?  

I am not a “Defund the Police” Guy, but this is definitely a waste of money.

As if the Uvalde Police couldn’t be any worse, they decided to try and shut her up, the First Amendment be damned.   

They then threatened Ms. Gomez for talking to the press about what cowardly clowns the Uvalde P.D. was, is, and shall forever be known.  She is on probation (I do not know why) for an event 10 years ago.  They’ve threatened her with a probation violation for “obstruction of justice” because she won’t stay silent. (source at 4:45) 

The First Amendment protects your right to speak your mind about how the government acts — not matter what, but especially if you’re a first-hand witness to (and participant in) a matter of public concern.  

The government does not get to threaten criminal prosecution for discussing a matter if public concern.  Even stolen top secret documents are lawful to publish. See New York Times Co. v. United States, 403 U.S. 713 (1971); Branzburg v. Hayes, 408 U.S. 665, 727 (1972) (“the right to publish is central to the First Amendment and basic to the existence of constitutional democracy.”). If one can publish The Pentagon Papers, Ms. Gomez can talk about her experience.  

This First Amendment violation was so grossly out of bounds, she should sue the living hell out of whichever agency threatened her.  This is a clear example of retaliation for the exercise of First Amendment protected conduct.  

To show First Amendment retaliation, a plaintiff must show: (1) that “he or she engaged in constitutionally protected conduct”; (2) that “he or she was subjected to an adverse action by the defendant”; and (3) that “the protected conduct was a substantial or motivating factor in the adverse action.” David B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012). An adverse action is one that “viewed objectively … would have a chilling effect on [the plaintiff’s] exercise of First Amendment rights,” Barton v. Clancy, 632 F.3d 9, 29 & n.19 (1st Cir. 2011), or that “would deter a reasonably hardy person from exercising his or her constitutional rights.” D.B., 675 F.3d at 43 n.11.

“[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions … for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006); see also Perry v. Sindermann, 408 U.S. 593, 597 (1972). The First Amendment retaliation doctrine addresses “constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental efforts that fall short of a direct prohibition against the exercise of First Amendment rights.” Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 674 (1996). 

Ms. Gomez did, indeed stop talking to the press for a period of time — fearing the threats that law enforcement would consider this to be a probation violation.  Reportedly, a judge told her that her probation would actually be shortened, as a reward for her bravery.  (source)  I am not sure how that might have happened, and there are moving parts in this story that are unclear.  But still, I can think of few clearer First Amendment violations than this.

The deprivation of First Amendment rights, even for a short period of time, is intolerable — especially when the government is threatening criminal prosecution for the exercise of those rights.  And this is especially so when someone is a participant in a matter of public concern, discussing what she saw with her own eyes and ears.

Insert the sound of a screeching eagle, here.


Michigan Bans Foreign Language Books in Prison – Constitutional? I Think Not.

June 3, 2022

by Marc J. Randazza

The Michigan Department of Corrections is banning Spanish or Swahili dictionaries.  Michigan Dep’t of Corrections spokesman, Chris Gautz, claims that it is a matter of public safety.  

“If certain prisoners all decided to learn a very obscure language, they would be able to then speak freely in front of staff and others about introducing contraband or assaulting staff or assaulting another prisoner,” he is quoted as saying.  “When it’s in a language that we don’t have the ability to read ourselves and understand exactly what it is that we’re looking for, we’re not able to allow it in.” (source).

Is this Constitutional?  I think not. The First Amendment protects even a prisoner’s right to read books.

Not to put too dull of an edge on it, but prisons can basically do what they please to inmates – but they still maintain some First Amendment rights. In First Amendment cases, there are typically three levels of scrutiny — strict scrutiny, which is required in clear free speech cases where there is a content-based restriction, intermediate scrutiny which applies usually to commercial speech, non public forum speech and many content-neutral restrictions, and rational basis review, which applies to regulations that have nothing to do with the content. (This is really dumbing it down, but I don’t want to lose your attention span here).

Courts review a prison’s limitation on inmates Constitutional rights under the rule laid down in Turner v. Safley, 42 U.S. 78 (1987) and as modified by Thornburgh v. Abbott, 490 U.S. 401 (1989). The regulation is valid if it is reasonably related to legitimate penological interests. The Court pointed to four factors to determine if the regulation is “reasonable.”

  1. There must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. It must be legitimate and neutral.
  2. Whether there are alternative means of exercising the right that remain open to prison inmates.
  3. The impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.
  4. The absence of ready alternatives is evidence of the reasonableness of a prison regulation. By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.

Looking at this standard, I am confident this regulation could be struck down as violating prisoners’ First Amendment rights.

Prong one – Is the Governmental Objective legitimate, neutral, and rational?

Is the government objective legitimate? The stated objective here is to prevent prisoners conspiring to break the rules, hurt guards, and engage in other forms of mischief. While this sounds like bullshit, I think most courts would take the prison system at its word that this was its objective.

Is it neutral? Here I am more skeptical. Would they ban “A Clockwork Orange” for its use of Nadsat? Or 1984 for use of Newspeak? Are they banning the use of AAVE or other non-standard forms of English, which could be just as unintelligible to a prison guard as Spanish. (For example, Jamaican Creole). Also, while the story only discusses Spanish and Swahili, I question whether they’ve also banned French or Latin or Italian? If so, that might tend to support the government’s claim of neutrality. But, it seems to me that the neutrality here is questionable.

Is the ban rationally related to the prison’s stated objective? I think not, but “rational” is open to interpretation, and if you have a judge who either doesn’t give a shit about prisoners or the First Amendment, I could see a judge calling it “rationally related.” On the other hand, it seems that given the fact that Spanish is the second most spoken language in the world, banning books for learning Spanish doesn’t seem very “rational” when part of the rationale includes a fear of prisoners learning an “obscure” language. Even Swahili is hardly “obscure.” Query whether say Papiamento (a language I am studying right now) or Romansch (a language I can understand a lot of, because I speak Italian) would be a different story. Further, let’s query whether it is rational to keep a Spanish-English dictionary from a prisoner who is trying to learn English rather than the other way around.

Further, I would question whether it is rational to ban books in order to try to prevent prisoners from learning a language as opposed to banning them from using the language in certain ways.

There are a number of cases that do deal with the use of foreign languages in prison — and they recognize that a prison has a legitimate penological interest that could sustain the banning of the use of foreign languages in prison.

In Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024 (8th Cir. 2004) the 8th Circuit upheld a prison’s limitation on written communication in a foreign language, if the prisoner could communicate in any other language. Even though Ortiz preferred to write to his sister in Spanish, because that was her first language, the prison had a right to screen incoming and outgoing mail, and doing so in a language other than English was an undue burden on the prison.

In Thongvanh v. Thalacker, 17 F.3d 256 (8th Cir. 1994) however, a Laotian prisoner was denied the right to communicate with non-inmates in Lao, even though Spanish and German prisoners had both the opportunity to communicate in their native languages and there was a translation service offered to them to translate their letters into English. A jury found that failing to offer similar accommodations to a Lao speaker was a First Amendment violation and the verdict was upheld on appeal.

Kikimura v. Turner, 28 F.3d 592 (7th Cir. 1994) struck down a prison policy of summarily rejecting foreign language publications without an attempt to translate or screen the materials. And in Boriboune v. Litscher, 91 F. App’x 498 (7th Cir. 2003) the court distinguished Kikumura and upheld a prison requirement that a prisoner first obtain approval before communicating on the telephone in a foreign language).

However, I have found no cases that support the proposition that it is permissible to stop a prisoner from merely learning a language.

To help in the analysis, there is another context where First Amendment rights are severely curtailed, but not extinct — schools. Nebraska once had a state law that prohibited teaching of languages other than English to children who had not passed the eighth grade. The Supreme Court held that the statute was arbitrary and without reasonable relation to any legitimate State goal. Meyer v. Nebraska, 262 U.S. 390 (1923). And in another case, a law that prohibited keeping business records in other than specified languages violated Chinese businessmen’s equal protection rights. Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926). Further, at least one case cites the Meyer case for the proposition that the Due Process Clause protects the right “to acquire useful knowledge.” Epperson v. Ark., 393 U.S. 97, 105 (1968) citing Meyer v. Nebraska.

Accordingly, I would find that this regulation fails this prong.

Prong two — Are there alternative means for the prisoners to exercise their rights?

I think the government has even more of a hard time here. There are still First Amendment rights in prison, despite their limitations. There is a right to receive information — in the form of foreign language books. There is at least some right to learn a foreign language, and to acquire knowledge. See Epperson v. Arkansas, supra.

I suppose the prison could claim that if you want to learn Spanish, you can learn it from your cellmate, if he speaks Spanish? I really can’t see any alternative means for a prisoner to either learn Swahili, Hebrew, etc. (And the thought of this impacting religious study creates an even greater problem — how can you practice Judaism in prison without learning Hebrew?) There really does not seem to be any alternative means other than bringing in tutors – but the issue here is that the prison system seems to simply wish to prohibit prisoners from using or knowing languages other than English – it isn’t the books themselves, but the spread of knowledge, and then the fear that this knowledge will be used nefariously.

But ultimately, it does not seem that there are any alternate means for prisoners to learn foreign languages. I could see a reasonable alternative for the inverse — if a Spanish speaker wishes to learn English, then the prison could offer English classes. But, without books to learn it, I can not rationally see a way that prisoners could learn other languages, other than the prison offering courses in them. But then that cuts against the stated purpose — the Bureau of Prisons does not seem to be as concerned about prisoners knowing foreign languages, but rather how they would be used. As discussed below, limitations on using what you learn from a foreign language text might be limited, but I think simply depriving prisoners of the ability to learn them would be a different analysis.

Prong 3 – The impact on guards and other inmates

As discussed in the cases above, prisons can regulate the use of foreign languages for some pretty

Navajo Code Talkers

legitimate reasons. As discussed above, the prison can (and probably should) screen letters and phone calls in and out of the prison. We do not want gangsters running their enterprise from inside the prison by simply using another language. Use of “obscure” languages has a proven track record of being a great way to keep a code unbroken. See, e.g., Navajo Code Talkers in World War II.

However, I can’t see that there is an impact on guards and other inmates inherent in prisoners simply learning another language while in prison.

Prong 4 – Alternatives

It does seem that the prisons could control the issue they are concerned about by requiring that prisoners only communicate in English. “This is America, speak English only” would be constitutionally intolerable in other circumstances, but in the prison context, the BOP’s regulation could make sense. Limiting foreign language use as a means of controlling the prison population and ensuring that prison officials can both govern inside the prison as well as governing how prisoners communicate with the outside world is legitimate and would be upheld. Therefore, the existence of ready and obvious alternatives seems to cut against the reasonableness of the regulation.

Other considerations

In the context of jury selection, foreign language use has been held to be a proxy for racial discrimination. Further, I think there are significant equal protection and First Amendment problems here, over and above the issue of whether prisoners have an inherent right to learn a foreign language. As I alluded to above, how could a prisoner either convert to, or practice Judaism while being prohibited from learning Hebrew? I am no expert on Third Wave American (or “Native” if you’re into that term) religious practices, but I presume that there are spirits who would rather be spoken to in Navajo rather than English. When it comes to endangered languages, I have an even greater concern — some Third Wave languages are nearing extinction, as is Texas German or even the aforementioned Romansch. If some prisoner wants to spend their time learning such an obscure language, they could wind up becoming a very valuable resource for the preservation of that language.

Ultimately, this regulation seems steeped in over-reaction, prejudice, and irrationality. I’d find that it should be struck down as violating the prisoners’ First Amendment rights, and let the prison deal with its concerns by limiting how foreign languages can be used, not simply depriving prisoners of the opportunity to learn them at all.


Who Watches the Watchers?

June 3, 2020

by Jay Marshall Wolman

On May 25, 2020, George Floyd was killed by then-Minneapolis police officer Derek Chauvin during an arrest of Floyd for allegedly using a counterfeit $20 bill to purchase a pack of cigarettes.

A 17-year old filmed the arrest and murder, which was then shared and resulted in protests against system racism and police brutality in all 50 states. But, according to the criminal complaint charging Chauvin, it was not the teenager’s video that provided the evidence to support the charge. Instead, it was police body cameras.

That video has not been released. For all we know, if Chauvin does not have a trial (by plea deal or some legal defect in the charge), the video may never become public.

I am currently litigating a matter in Connecticut where my client is seeking police footage of her own interaction with officers. The police have resisted, under the state Freedom of Information law, under a provision that says they do not have to produce it if it contains “uncorroborated allegations” of criminal activity. Essentially, their argument is that if no one is convicted, state law allows the video to remain hidden.

Minnesota’s FOI law seems a bit more open, permitting disclosure in “inactive” case. Assuming there were no other videos or witnesses to his murder, and no uproar and investigation into the death as a crime itself, the body cam footage of George Floyd’s arrest and death could probably be disclosed, since the counterfeiting case would be “inactive”. If this had happened in Connecticut, since Mr. Floyd’s death precludes his conviction, the body cam footage might not be made public, as it may contain uncorroborated allegations of his unproven criminal activity.

The point of body cam footage is so that we do not simply take the responding officer at his/her word. All a Connecticut officer (or officer of another state with a similar provision) need do to escape liability for abuse is kill their victim or otherwise lose the case. Any innocent person who is unlawfully abused during the arrest, even the victim him/herself, would be denied access to the footage.

Police cameras do represent an intrusion into privacy, and there is a legitimate debate as to whether they should be wearing them. And, there are debates as to whether they should individually have the power to turn them off. (I think they should, such as when they use the bathroom, but if they turn them off in the context of their duties, they should be significantly disciplined and there should be a presumption against the credibility of their testimony as to the unfilmed interaction.) But, if the video exists, it should be made public or, if publicity would be against public interest (unduly invading someone’s privacy, compromising investigations, etc.) then it should still be releasable to subjects of the videos (or their estates), possibly subject to a protective order.

We should not have to rely on a 17-year old with the fortitude to record a crime in progress in order that criminals who happen to wear a badge face justice.


Buzzfeed News profiles Marc Randazza and explores his high-profile, controversial cases

November 1, 2018

Marc Randazza, the lawyer working to protect First Amendment rights of people spewing socially undesirable speech, recently opened up to Buzzfeed News about his devotion to the First Amendment and how representing neo-Nazis, trolls, and Satanists helps him uphold what he believes is one of the most important ideals this country was founded upon.

The First Amendment guarantees United States citizens a constitutional right to freedom of speech. Government cannot infringe upon this right, although certain types of speech such as incitement, obscenity, and defamation do receive less protection. Protection can be based on the place in which speech occurs. For instance, speech that takes place on the campus of a public school has high First Amendment protection but speech in a private workplace receives little protection. Between court rulings and interpretation of the Constitution, protections of free speech have become pretty well defined over the last several decades. However, there’s one grey area that is polarizing First Amendment advocates today – speech on the Internet.

That’s where Randazza focuses much of his effort.

Section 230 of the Communications Decency Act (CDA) protects technology platforms from liability based on their users’ content, but despite this protection, tech giants are restricting their users’ speech. Facebook, Twitter, and YouTube claim they can take down any content they consider inappropriate or objectionable. Moreover, these platforms claim they have the right to ban undesirable members. Randazza believes that the Internet is a de facto public space, meaning it is privately owned yet publicly accessible, and therefore, online platforms must be more tolerant of such speech, especially given that they are afforded immunity through the CDA.

One group that claims they are a target of such discrimination are white nationalists. While their rhetoric is seemingly experiencing a wave of popularity, it’s also publicly despised and tech giants are being accused of suppressing it. Scratch the surface of Jared Taylor’s lawsuit against Twitter or Alex Jones’ lawsuit against PayPal and you’ll understand why Randazza thinks white nationalists are one of today’s most vulnerable groups in regard to the suppression of free speech.

Randazza has received heavy criticism from his peers not so much for his position, but more so for representing extremists like Taylor and Jones. But, he believes that protecting First Amendment rights is a matter of principle, not message.

“Sometimes we have to take people on who we find unsavory, but that’s what a commitment to the First Amendment means,” said Randazza.

Read the full article about Marc Randazza on Buzzfeed News.


Note for the Legal Satyricon Blog: Marc Randazza on Alex Jones’s defamation case

September 11, 2018

marc at infowars August 2nd

Marc Randazza is protecting the rights of Alex Jones, a host on InfoWars and a journalist.

Alex Jones faces several defamation lawsuits in different states filed by the families of victims of the Sandy Hook Elementary School massacre. Alex Jones at one point questioned the official narrative of the story, but now believes the shooting happened.

“Even though overwhelming – and indisputable – evidence exists showing exactly what happened at Sandy Hook Elementary School on December 14, 2012, certain individuals have persistently perpetuated a monstrous, unspeakable lie: That the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths,” the suit filed by lawyers from the Koskoff Koskoff & Bieder law firm claims, reports Connecticut Law Tribune.

Marc Randazza is defending Alex Jones in Connecticut.

“If you are a First Amendment lawyer and you hesitate in defending someone because of allegations of what they said, then you are not a First Amendment lawyer,” Randazza said.

Recently, Marc Randazza appeared as a guest on Alex Jones’s show InfoWars to discuss First Amendment issues. Randazza and Jones discussed a plethora of topics, including defamation lawsuits, free speech rights violations, and the growing impact of censorship by social media companies.

“You see this with people on the right being systematically ‘no platformed’, not just from media sites, but from YouTube, from Facebook, from Twitter and now from PayPal and Stripe. If any company decides that it doesn’t like the kind of thing you have to say, then you are off.”

Now, Twitter, YouTube, Facebook, Apple, LinkedIn, Spotify, Stitcher, and Pinterest have banned Alex Jones and InfoWars. How does this ban affect freedom of speech and the First Amendment rights of US citizens? Marc Randazza shared his opinions on the ban here:
https://www.mediamatters.org/research/2018/08/06/empire-strikes-back-right-wing-media-defend-alex-jones-after-infowars-banned-several-major-platforms/220912