Law Blog

Neo-Nazi’s have the right to free speech, but do they have the right to parenthood? Heath Campbell, a neo-Nazi living New Jersey, recently lost visitation right to his five children. His children, Joycelynn Aryan Nation, Adolf Hitler, Honszlynn Hinler, and Hons Heinrich were in foster care due to allegations of neglect and abuse. The latter three have been adopted. Campbell himself denies the allegations and claims he lost custody of his children because of his beliefs.

Campbell is a typical neo-Nazi: a Holocaust denier who believes that the name Adolf Hitler is “cute” and that his son, Adolf, is named after a “great war hero.” Campbell is also the founder of Hitler’s Order, a pro-Nazi organization which discusses political and legal issues. Campbell claims he is a good father, despite the fact both his former wives allege he was domestically violent (one of them had a restraining order against him). Campbell was also unemployed and on welfare, although that is due to a lung condition which prevents him from keeping a job. Campbell appeared at his child custody hearing in full Nazi uniform.

Campbell’s story reveals a few basic principles on family law, especially with regards to child custody. First, the needs of the child always come first. The allegations of neglect and abuse are the most important issues here. Campbell’s beliefs should not be considered until Campbell’s ability to keep his children safe and to provide them with food is certain. His lack of income and the claims of domestic violence by his ex-wives are factors a judge would take into serious consideration before visitation rights are granted.

Second, and this is true with law in general, always be presentable to the judge. Campbell’s beliefs are controversial, to say the least, but dressing in full Nazi uniform for a court hearing is not advised. The uniform is a bad idea though, not because it represents Campbell’s neo-Nazi beliefs, but because the uniform is a distraction to the real issues. The state of New Jersey believed that Campbell’s children were being abused and neglected. At best, the neo-Nazism may not hurt Campbell’s chances, but it will not help his case either. The Judiciary would treat neo-Nazism the same way it would treat homosexuality in a case like this: a non-factor.

With that said, Campbell’s case does raise the issue as to whether the parent’s beliefs should be a factor. There is a high probability that Campbell would seek to have his children emulate his beliefs. Campbell’s views on the Holocaust are morally repulsive, but only because society at large has decided so. What about children with radical Muslim parents or parents who prefer creationism over evolution? Proving whether a child has been abused or neglected spiritually, morally, or intellectually is difficult at best. This is not to say that such types of harm can’t exist, but the law can only measure physical harm.

Employees in religious institutions have often been excluded from labor laws which protect other employees. Their employers enjoy this legal protection because of concerns about the free exercise clause. These exemptions extend to labor discrimination laws, such as the Civil Rights Act. A recently decided case, Dias v. Archdiocese of Cincinnati, may be the first wrecking ball against the wall of protection that religious employers have long enjoyed.

In October of 2010, a Catholic school computer teacher named Christa Dias became pregnant. Dias, a lesbian, became pregnant through artificial insemination. When Dias informed her superiors, they terminated her. The schools Dias worked for, Holy Family and St. Lawrence, are both run by the same archdiocese, a Catholic Church leader. The archdiocese stated Dias was terminated because she had a pregnancy outside of marriage and because the use of artificial insemination to become pregnant both violated church doctrine. Dias’s contract with the schools had conditioned her employment on her compliance with church doctrine. 

The jury, however, found in favor of Dias. Dias was awarded $71,000 for back pay and compensatory damages, as well as $100,000 in punitive damages. The judge had ruled that Dias’s homosexuality was irrelevant to the case, so the jury neither considered nor held Dias’s sexual orientation against her. Dias relied on the gender discrimination of the church’s doctrine, pointing out that men who gave semen for artificial insemination were not punished in any way.

The main issue is whether the case is covered by discrimination law. Although most contracts are legally valid, contracts cannot be enforced if the contract breaks a law.  The Civil Rights Act prohibits discrimination on the basis of pregnancy. Firing a woman for becoming pregnant is a violation of the law, regardless of her marital status. The Civil Rights Act, however, also has a built in exception for employees engaged in religious activity. In other words, Dias’s termination would be legal only if she took part in a religious activity as part of her employment, thereby meeting the exception given in the Civil Rights Act.

The exception is only applicable if Dias was involved in a religious activity as part of her employment. As a computer teacher, Dias is not connected to Catholicism, outside of the fact that the schools are Catholic schools. Granted, all teachers hired by the school could be expected to serve as role models to the students. Dias is not required to teach church doctrine to the students though, and being a role model is hardly a religious activity. On the contrary, almost all teachers serve as role models for the students in their charge. Being a role model is part of being a teacher; it is not exclusive to religious teachers, and is thus not a religious activity.

Of course, that is the main theory of the case. A more interesting aspect about the Dias case is what it means for homosexual rights. The judge’s decision to ignore Dias’s sexual orientation is not a surprising move, given that the Civil Rights Act, and similar discrimination laws, are silent when it comes to sexual orientation.

Indeed, the judge’s decision to have Dias’s sexual orientation be a non-issue greatly benefited Dias, since the church had originally planned to use her sexual orientation as proof of her intent to break the contract from the very beginning of her employment.  Homosexuality also contradicts church teachings, so Dias was breaching her contract from the start. The judge’s decision swept this under the rug. Even though this case does not directly address gay rights though, lesbian couples who desire children can expect a limited degree of legal protection.

Protests by illegal immigrants for equal rights are an oddity of American law. Illegal immigrants, by definition, are breaking the law and thus should be deported. Indeed, non-citizens as a class do not have the same rights as citizens because, at best, they are guests.  At the same time though, immigrants are still human and should be given a certain level of respect. The distinction between human rights and citizen’s rights, if there is a distinction, is an important part of immigration law and one which could influence how the world is structured as globalization continues.

The Supreme Court’s ruling in Moncrieffe v. Holder is a crucial piece of the puzzle of human and citizen’s rights. Adrian Moncrieffe moved to the United States from Jamaica in 1984 when he was three. He eventually married and had two children in the United States. In 2008 though, Moncrieffe was arrested for possessing 1.3 gram of marijuana, or three cigarettes of marijuana, after his vehicle was searched at a traffic stop.

Moncrieffe pleaded guilty to possession with intent to distribute marijuana, but the state court decided not to jail him. Moncrieffe was supposed to have his sentence expunged after a few months. Instead, federal immigration officials arrested him and began the process for removal. The federal government could deport him because the marijuana possession charge was treated as a drug traffic offense. Under federal marijuana laws, drug trafficking is considered an aggravated felony, which automatically triggers deportation.

The Supreme Court heard the arguments for the case last fall and announced in mid-2013 that minor drug possession cannot be grounds for automatic deportation. Although Moncrieffe won the case, the 7-2 decision is much narrower than it seems. The Court’s decision does not prevent Moncrieffe from being deported; it only makes it non-automatic. Moncrieffe has only won a trial to determine if he should be deported, not protection from deportation. Still, the case is significant for non-citizens because it is the first step to giving aliens a real right to jury trial.

However, there are certain rights in the Constitution that apply to persons rather than citizens, the most significant being the right to due process. Unfortunately, the Supreme Court went the long way around to extend due process to Moncrieffe. Rather than strike down automatic deportation as a violation of due process, the Court held that state marijuana laws must be a felony under federal law in order to be considered “aggravated felonies” which trigger mandatory deportation.

Why the reluctance to extend a right that the Constitution grants to all persons? First, the Court is hesitant to make an immigration policy decision, a decision which is best left to Congress. Second, giving non-citizens the same rights as citizens would render the distinction meaningless. Either all rights would be human rights or all humans are citizens. The latter makes no sense and would lead to absurd consequences that other nations would not follow.

Making all rights a human right would be a huge step towards globalization in the legal system. Recognizing all humans as individuals with equivalent rights means that all legal systems must enforce these rights the same way. This is the goal of an equal society, so what is the problem? The problem is the loss of community and cultural autonomy, the autonomy which federalism is suppose to protect. Each community should be allowed to experiment and develop its own way of life, but that cannot happen if there is a central force unifying all communities.

A continuing problem in immigration law is how to ground rights. Making a right a human right means extending it to all humans, but depriving communities of autonomy. Making a right a right which is tied to citizenship has its own problems though. The nation-state has power over citizenship since states define who is a citizen and who is not. A state could deprive a right just by revoking citizenship or declaring that an individual was never a citizen.

The Boston Marathon Bombing unfolded like the latest Batman movies. Real life was eerily similar to the plot of those movies.  It wasn’t just the explosions or the long manhunt or the lock-down of an entire city. Watching people online accuse others of being part of the bombings gave credibility to the Joker’s claim that “people are only as good as the world allows them to be.”

The most prominent example was the story of Sunil Tripathi. Tripathi was a student at Brown University until he disappeared last March. After the bomb attacks devastated Massachusetts, websites such as Reddit.com began “looking” for the culprits. Reddit users pointed fingers at Tripathi, but as of late April, police believe that Tripathi’s body has been in a river for some time.

Reddit has since apologized to Tripathi’s family, but other individuals had been falsely accused as well.  Although the terror of the bombing has since faded, the underlying issues have existed for awhile and will continue to exist into the future. Those falsely accused of the Boston Bombing could bring a libel or slander lawsuit if they suffered any harm, but the larger problem of people being involved in legal problems and then having that information persist forever on the internet is not so easily addressed.

For example, a person could be arrested for possession of marijuana, but then have the charge dismissed. Although the public record can be expunged, this doesn’t apply to the internet. Employers, landlords, and the public in general could see “facts” which are legally non-existent. Libel laws cannot cover these types of cases because the information is often true, and truth is the best defense to libel. The information, however, will often prevent their subjects from getting a job or getting a room to live in. This problem is most common in criminal law, but the internet could have a chilling effect across multiple fields of law.

These privacy concerns are difficult to address since there are number of other interests that must balanced against it. First, the legal system has to be transparent. If lawsuits were not in public records, corruption would be a larger problem than it is right now. Second, free speech and free press are essential rights which cannot be sacrificed. Third, with regards to employers and landlords especially, they have the right to operate their business as they please, and a successful business involves researching and choosing good employees or tenants.

How, then, should we address these privacy concerns? Some people might not see an issue at all. Actions have consequences, and adults have to live with the consequences of those actions.  As an internet writer, I have to accept that my opinions won’t always be liked or accepted, and my writing might result in certain opportunities being closed to me in the future. The fact that plaintiffs might have to think before filing a lawsuit, or that defendants might want to consult an attorney before taking an action, is something that the law should consider promoting. People who support transparency over privacy would say that the internet might turn everyone into a public figure, but the status quo is hardly a nightmarish dystopia.

The opposite approach is taking form in Europe. Most European countries don’t have the same robust right to free speech that the United States has, so the “right to be forgotten” has gained far more traction across the Atlantic. This right includes the consumer’s right not to have information sold to the highest bidding advertiser (Facebook is notorious for this). The most extreme application of this right would be the ability to request that some writing, picture or video be permanently removed from a site.

Although censorship is not an exercise that the United States can take part in, requiring major news organizations, social networks, and search engines to update previous stories with the most relevant and up to date information could serve our needs for privacy while maintaining transparency. Deleting information is dangerous, as indicated by the fact that editing photos was a favored tactic of Joseph Stalin to rid himself of political opponents. Combating bad information with up to date information, however, seems like a method more in keeping with American tradition.

When Amazon.com opened in 1995, it offered numerous advantages to consumers. These advantages included the ability to purchase products without leaving home, and an exemption from state sales tax. Of course, the exemption existed due to the way most state tax laws were worded: only businesses with a physical presence in the state were taxed. Although many states have attempted to close their loopholes, businesses from outside the states selling products into the states remain immune. Congress now wants to pass a bill which would address this tax issue.

The Marketplace Fairness Act (MFA) would allow states to collect sales taxes from online retailers which are located outside the state. The MFA would exempt businesses which make less than $1 million annually in online sales from its provisions. The MFA exemption is a concession to small businesses which would be hindered by such artificial price increases. Given that the Republican Party opposes most taxes, the MFA is receiving a surprising amount of bi-partisan support. MFA proponents claim that new taxes are not being created, but that old taxes are being enforced. The central idea behind the MFA is that physical retail stores are being hammered by online retail stores and that taxing online businesses would restore fairness by increasing prices on products from online businesses.

The MFA is a textbook example of politicians manipulating the American tax code. The purpose of the MFA is to preserve physical retail stores. Obviously Congress cannot simply mandate Americans to shop in physical stores rather than go online, but Congress can levy taxes which would affect prices. These price changes would either make physical store prices more attractive or at least make online and store prices the same. The tax code has hundreds of similar provisions, each designed to encourage Americans to act in a certain way. Whether it is marriage, purchasing a house, or buying hybrid cars, Congress subtly pushes citizens into making certain decisions. The use of the tax code as a social engineering device, however, has also made the tax code perplexingly complex.

The use of the tax code as a means to influence social behavior has led to more expansion of federal power, power which violates individual and state rights. The recent Supreme Court case involving Obamacare highlights the danger of the tax code towards individual rights. One of the reasons Chief Justice Roberts could call Obamacare’s individual mandate a tax is that taxes already act like mandates. Mandates can be taxes because our taxes can be mandates. Saying that a tax forces a person to buy from a physical store rather than online sounds absurd, but changing the prices changes the decision-making of the individual. Assuming rationality, the individual will always make the choice that the tax code wants them to make by purchasing the least expensive item.

Proponents of the MFA will say that the status quo influenced individuals into buying from online retails rather than physical stores. The MFA, in the eyes of its supporters, actually restores the freedom of choice by applying the tax to everyone rather than disadvantaging one method of commerce over another.

The problem is that online retail has advantages that physical stores do not and these advantages will naturally cause consumers to favor shopping from the internet over walking into an actual store. Being able to buy an item anywhere at any time is a tremendous boon to the consumer. Being able to compare prices at multiple stores without wasting time and gas is also a significant advantage that online retail enjoys over physical stores. Tinkering with taxes is a weak attempt to prop up a model of business that is going extinct. Granted, many consumers will often walk into a store, check out the item, than purchase online because the product online is cheaper. However, this typically happens when the business in question operates both a brick and mortar store as well as a website; the price difference in that situation comes not from taxes, but the businesses own decision to promote the same items online at a cheaper price.