Author Archive for Andrew Dat

Teacher + Ex-Porn Star Past + Conservative School District = Career Suicide

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It seems like schools have gotten a lot sexier since I left their hallowed halls.  First there was a sudden uptick in teachers shacking up with their students, and now there are reports of not just one, but two teachers who have either been suspended or straight up fired for being former porn stars.

Stacie Halas, a 31-year middle school teacher for Richard B. Haydock Intermediate School out in California, was the first to be identified and suspended for her allegedly shady past as porn star “Tiffany Six.”  If you’re at work, don’t Google that name or any other names that appear in this post for that matter.  It’s some pretty graphic stuff, more Hustler than Playboy.

Halas was put on leave a couple of weeks back while her school district decides what to do with her.  But as luck, or misfortune, would have it, no less than two weeks ever Halas’s saga came to light, the story of another teacher by the name of Shawn Loftis was brought into the public eye.  Loftis, 32, was a former gay porn star who own his own company called World of Men and worked in the industry for six years.

Despite possessing a master’s degree in public administration, shortly after landing a substitute teaching gig in Nautilus Middle School in Florida, Loftis was kicked to the curb by the school’s principal due to his past employment history.  Loftis received his teaching certificate, but his future teaching career in Miami-Dade doesn’t appear too rosy as the district’s only comment on his case was that a “[teaching] certificate does not guarantee employment.”  Ouch.

Crazy coincidences aside, these stories do bring up the very important question: why their past should even matter.  Now before the cacophony of “because they’re porn stars” outbursts reach my eardrums, stop for a moment and think to yourself whether working in the sex industry really negatively affects Halas and Loftis’ abilities to teach.  I mean, as far as anyone could tell, neither one has had any report or complaints against them for poor teaching techniques.  And it’s certainly unlikely that either one has been coloring their instruction with stories of their past profession or teaching kids how to do a good money-shot (don’t Google that either if you’re at work).

The only issue is one of moral turpitude.  But looking over each of their respective district’s regulations, being an ex-porno star doesn’t count as a moral turpitude offense, or for that matter, a crime.  In fact, the only negative side effect it seems that can be attributable to their backgrounds is that some students may have a hard time respecting their authority.  But in all honesty, the only reason anyone knows of their pasts is because their schools’ administration drudged it up and made it public.

However, the most interesting part of all this is that there may very well be the possible and blatant First Amendment violation going on here.  Now some of you may be surprised to hear that the First Amendment doesn’t just cover your right to freedom of speech, religion, and expression, but it also covers your freedom to associate with whomever you please.  This is called the freedom of association and when government actors are involved, the government isn’t allowed to discriminate against a person by denying them employment based solely on their past associations, including being a porn star.

But let me stress that the U.S. Supreme Court has stated that discrimination on the basis of prior or current associations can be allowed in certain situations, such as when the position is for a high ranking government job, or the affiliated association intends to overthrow the government, or when moral turpitude is a factor in deciding whether one may do a particular government job.  There are more factors, but the last one I mentioned is probably the most pertinent to Halas and Loftis’ cases.

The question is whether one would consider being a porn star an offense against good moral turpitude.  As stated earlier, both the California and Florida school districts don’t have rules prohibiting such behavior nor any that specifically label such past occupations as showing bad moral character.  Like most legal questions, this one will be for the courts to decide should it ever get that far.  However, for me, and I hope most of you, it shouldn’t have to be because there’s nothing wrong with what these two did in the past, both from a legal and moral standpoint.

Now certainly teachers are supposed to be role models and arguably the most damaging aspect of Halas and Loftis’ past is that it may not make them suitable people for their students to look up to.  But by shunning them, the school districts are in essence condemning an industry that has every legal right to function.  Though many may object to the porn industry of moral grounds, the fact of the matter is that it’s a regulated business that is legally allowed to exist.  The idea of condemning it in this fashion would be no different that keeping teachers who were former taxi drivers from teaching because their old jobs were too blue collar for kids to look up to.

As far as I’m concerned, a good teacher is a good teacher.  I went to public schools and looking back, many of my favorite teachers had flaws.  But none of their blemishes mattered because they were so captivating as teachers.  Their instruction methods made learning fun.  And if any teacher, porn star or not, is capable of doing this for their pupils, than shunning them from the profession will only harm the students.

What do guys think about Halas, Loftis, and what is and isn’t an appropriate prior vocation for teachers in general?  As always sound off with your thoughts below.

On an unrelated note, this is my last post as a regular writer for the LegalMatch Law Blog.  I still may contribute pieces in the future from time to time, but for now I must bid you adieu.  I’ve enjoyed my time here and I’ve especially loved interacting with all of you, dear readers.  Thank you all for your support and thank you to LegalMatch and my editor for letting me write for them for so long.

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Report Finds Huge Disparities In Criminal Sentencing

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There are very few things in life that are certain.  Gravity keeps us bound to this planet, Breaking Bad is the best show on television, and if you ever decide to commit a drug crime in New York make sure Judge Arthur D. Spatt isn’t presiding over your case.

Just joking, committing any crime is always a bad idea, though according to a new report on judicial sentencing, the worst idea is not shopping for the right judge.  If you haven’t read the report yet, then click on over to it.  It’s a fascinating read showcasing the huge disparity that often occurs in criminal sentencing.  Judge Spatt for example gave an average sentence of 64 months to defendants convicted of a drug crime, whereas the average sentence for the same offense was 24 months.  The report cataloged thousands upon thousands of criminal sentences and came to a conclusion that many in the legal industry were already aware of: criminal sentences aren’t uniform.

In fact, they are far from it.  The study included a pool of 885 judges and the sentences given to over 370,000 defendants.  It ranked court districts by which had the most sentencing disparities.  Though you may be tempted to find out where your court lands in this ranking, don’t be so quick to put much value in it because the study essentially found that they were all pretty bad.  Much like rearranging chairs on the Titanic, rank in this case isn’t going to do much to keep the ship from sinking.

Now I wasn’t singling out Judge Spatt to be mean or anything, but rather I was just using him to make a point.  Most legal lay people aren’t aware of the level of discretion judges have when determining the length of criminal sentences for convicts.  Typically, most laws only set a maximum and minimum sentence for any particular offense; however sentencing guidelines don’t require any uniformity in sentences.  Judges need only consider a number of factors based on the defendant’s criminal history, his or her role in the crime, whether anyone was hurt, and any other factors that would make the crime more or less severe in the eyes of the law.

Furthermore, in terms of reporting, the names of judges aren’t required to be reported along with the sentences they dish out.  The rationale is to prevent judges from being singled out on the basis of their sentences.  It makes sense, since including such information could lead to an uptick in appeals on the basis of unfair sentencing, judges becoming overly scrutinized for their actions thereby further clogging the behemoth that is our country’s criminal justice system, and of course the potential for judge shopping.  The problem is that without such reporting standards, what we get is the current predicament that we’re in now where judges have free reign on sentencing.

But is it really a bad thing that judges are held accountable for their actions?  As it stands today, it’s already very difficult and expensive to appeal, well, any judicial decree.  By keeping this shroud of secrecy on criminal sentencing, defendants are left with little recourse to show bias.  And though we’d all like to think that once a judge dons that black robe they become neutral instruments of the law, history has shown us that reality is far from it.

It’s sort of like dealing with a phone company.  I signed up of a promo phone plan months ago, and the price I was supposed to get has never actually been what I was charged at the end of the month.  And yesterday, after calling in for the tenth time, the company suddenly decided that they should now charge me a higher rate and that any history of my previous price plan was not in my account.  What could I do about it?  The only thing I could do (short of suing) was sweet talk the operator to curry favor despite the fact that they were wrong to begin with.  The reason is because the phone company knows they have resources and time to fight battles that far outstrip yours.  The only solution is to kowtow and hope for the best.

And in essence, this is what’s going on with criminal sentencing today.  Piss off a judge and they can easily give you a higher sentence despite what is typical for your particular offense.

Now, some would say these are criminals and therefore they shouldn’t complain.  As when one does the crime, they must do the time, regardless of the unfairness of it.  That’s an understandable perspective.  However, it’s also unconstitutional under the Eighth Amendment.  Though I’m not saying that what the current sentencing disparity we have in our justice system today is indicative of complete constitutional violation; what I am saying is that without better reporting standards and pushes for uniformity, we will never know what is and isn’t unconstitutional.

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Federal District Court in Maryland Rules State’s Gun Control Law Unconstitutional

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It looks like gun nuts and Second Amendment proponents alike have potentially just found a new home to roost their Glocks.

Yes, I know the link I just provided was to a very long and seemingly boring Maryland federal district court opinion.  But don’t worry, you don’t have to read it because I’ll provide the “bullet” points (ba-dum-bum) for you.  The opinion in Woollard v. Sheridan just came down the pipeline a few days ago and holds as unconstitutional a Maryland gun control statute.

You read that right gun huggers, unconstitutional; as in going against the highest law in our land.

However, what’s most interesting is that the gun restrictions in the Maryland statute itself aren’t all that different then the wording you’d find in the gun permit laws of other states.  Maryland allows the carrying of concealed weapons outside the home, but only if the carrier can show “good and substantial reason” to carry a gun.  The Maryland law in question generally restricts this to people who run businesses that have a high chance of being robbed, law enforcement, judicial officials, private security staff, and those that can show an “objectively heightened threat above and beyond personal anxiety.”

Sounds groovy, right?  However, it’s the last category that the federal district court had trouble with.  The court’s ruling essentially states that it’s unconstitutional for Maryland to require people to lay out a specific objective threat and instead should allow anyone with reasonable apprehension of their safety to carry a gun outside of their home for protection.

This is huge because it means that the federal district court in Maryland is going old school with their Second Amendment interpretation and, as many critics have pointed out, is in essence condoning the carrying of guns for plain old personal protection, ala Texas.  However, I should also note that this ruling has already been reserved for appeal, so who knows what the federal appellate court will say about its underling’s decision.

The federal district court’s ruling does bring up an interesting point on the current state of gun laws in America.  As it stands today, most states don’t allow the concealed or unconcealed carrying of guns in public.

Now I’m not a gun nut by any means, but I’ve never understood the reason why most governments are so against allowing concealed carry.  Yes, I’ve heard the arguments: increase gun violence, possibility of increase gun threats, and so forth.  But these reasons aren’t very compelling to me because the whole point of gun control laws is to prevent the unauthorized use of guns.  The ironic part however is that they don’t seem to do much to prevent those in society that we want to keep from using guns from actually using them.

By this I mean, career criminals, gang members, robbers, and every other person gun control laws are aiming to stop will nonetheless use and carry guns because, well, they’re criminals and they’re going to carry and use guns no matter what.  But this isn’t to say that all former convicts are forever convicts, but rather what I mean is that if someone is planning to commit a crime where the use of a gun is necessary, that person probably isn’t going to care that they’re also breaking a gun control law.

The fact of the matter is that gun control laws only end up harming those that really need protection the most.  Chances are a law abiding citizen isn’t going to be carrying a gun and thus becomes a potential target to wrongdoers since they’ll know that their victim won’t be able to fight back as effectively.  Gun control laws remove the ability for lawful citizens to utilize a power crime deterrent.  And aside from increasing the sentence of those criminals caught with a weapon in public, gun control laws don’t do much by way of protecting citizens.

Like I said before, I’m not a gun advocate in any sense of the word, but I think federal district court in Maryland made the right decision in this case.  Even though their ruling will most likely be struck down on appeal, hopefully their opinion will gain some traction and help put the issue of gun law reform back into the public’s attention.

It seems like there should be a much easier way to restrict gun usage from the more criminally inclined in society while also allowing private citizens a chance to still protect themselves.  Something as simple as a Megan’s law type gun restriction could be the answer.  I think by simply enacting a law prohibiting gun crime convicts from carry guns in public while allowing everyone else to do so is a good place to start.

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Arizona Town Fights to Keep Non-English Speakers Off The Ballot

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To me, Arizona is like an incredibly gifted and interesting kid with low self-esteem.  The state has a lot going for it on its own that would make most people want to visit and like it.  It’s got the Grand Canyon along with a bunch of other beautiful national parks, it’s one part of the Four Corners states, it has great ski resorts, and a rich history.  Yet for some reason, much like the aforementioned low self-esteem child, it thinks the only way to get attention is by acting out.

Seriously, first it tries to pass that cockamamie immigration law, SB 1070, that would have required every alien to constantly carry around their papers.  And now there’s a town in the state that’s trying to keep a person off a seat for city council due to her less-than-basic English skills.  Hmm, okay, maybe that latter cry for attention isn’t all that unreasonable.  But still, it makes you want to just shake the state and tell it to love itself.

But seriously, for real this time, San Luis, a small town in Arizona, has recently made some waves in the media over some controversy with the town city council elections.  A candidate by the name of Alejandrina Cabrera, a native Spanish speaker, wants to run for a spot on the council, but was blocked in court by the city’s mayor, Juan Carlos Escamilla.  Escamilla claims that Cabrera isn’t qualified to serve on the council because her English skills aren’t up to snuff.  Though he also admits his own English isn’t perfect, he asserts Cabrera’s English shortcomings are severe enough to be a hindrance to her governing abilities.

Cabrera has conceded that her English isn’t great and a linguist’s report shows her to only possess “basic survival level” English, but she argues that in a town like San Luis this is sufficient.  She might have a point as the town only has about 25,000 residents, is mostly bilingual, and sits right on the U.S.-Mexico border.  As it stands right now, the Court must decide whether or not to strike Cabrera from the ballot come election time.

It’s worth noting that many states have laws requiring citizens in political position to be able to speak English, and not surprisingly Arizona also has such a law in place.  The issue is that many of these states, including Arizona, don’t really specify how much English a person needs to know in order to be considered able to speak English.  It might sound like a trivial detail, but as you can see in Cabrera’s case, it’s quite literally her whole case.  As Arizona’s law sits today, there’s not much guidance in this area, only a general provision.  About the only good thing about this situation is that the story serves as a great jumping point for how an English-requirement law should be written and whether or not it should even exist.

But before we get to that, it’s worth noting that many people think this law is discriminatory, and should be a form of illegal governmental discrimination.  However, that’s simply not the case under the Constitution; states are given a general police power under the Tenth Amendment that allows them to legislate for the general welfare of the state’s citizens.  Furthermore, it’s long been established by the U.S. Supreme Court that both state and federal governments can establish basic requirements that must be fulfilled if one is to take a leadership position in our government.  And setting a language requirement is certainly within both the federal and state government’s rights.

Now that that’s out of the way, back to solving the English requirement issue.  I don’t know about you guys, but I think figuring out how proficient someone is in English was already solved a long time ago by the Department of Education.  The answer is simple: standardized testing.  It doesn’t even have to be university level, just the basic ESL test given to all foreign students is sufficient to determine how proficient a prospective candidate is in English.

I don’t know why these legislators never thought about including something like this before in their state laws.  In order to establish one’s fluency in English for political office, that candidate must be able to pass an ESL test.  If they do, then they can run for the government position.  And to avoid any Fifth and Fourteenth Amendment equal protection issues, make the test applicable to all candidates running.  Even the native speaker – everyone has to pass it.  Simple, right?  I think so.

But the bigger issue here is whether an English requirement for political office should even exist.  Technically our country has no official language, despite the prevalence of English.  We are a country of immigrants after all and we were founded on the principle of equality.  In that sense, why require anyone to speak English at all?  However, we can’t deny the reality that most everyone in this country speaks English and therefore in order for one to be an effective leader here, that candidate must be able to communicate with the people in this country in the language that the majority speaks.

Ultimately, I think this is too big of a question to answer . . . on my own that is.  English as America’s official language has always been a contentious subject.  So I leave this question’s answer to you, dear readers?  What do you think about the English requirement?  Nay or yea?

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FTC Puts The Brakes On Deceptive Online Acai Berry Advertisements

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Man, and just when I pumped all my money into those acai berries.  Now how am I supposed to lose those extra pounds before swimsuit season?

Just kidding, we all know the key to weight loss is and always has been magic.

In all seriousness though, if you haven’t heard the news already about the latest Federal Trade Commission crackdown, then you might be surprised to hear that the FTC has just succeeded in permanently shutting down those annoying acai berry pop-up ads you see online.  The ads usually were fashioned to look like official news reports and contained logos from well-known news organizations including ABC, FOX News, CNN and so forth – an example to your right.  The advertisement exalted the miracles of the acai berry as a natural weight loss solution.

And looking at the ads, it’s easy to see how people would be fooled into thinking the claims in them were pure truth rather than puffery.  That, of course, was also the FTC’s problem with them and about nine months ago the agency began putting their plan to stop these deceptive practices into action.  Fast forward nine months later and the FTC has entered into settlement agreements with six acai berry marketers to stop the sneaky ads and also to pay damages of $500,000 under a federal false advertising statute.

Personally I’m quite glad to see these acai berry advertisers go down.  In all honesty, even I was fooled the first time one of these ads popped up on my screen.  The illusion was all the more convincing in my case since at the time I was also browsing through a legitimate news site and assumed the ad was a special report.  Thus you can probably see why they were probably a bad thing.

Though, interestingly enough some in the blogosphere seem to be opposed to the FTC’s actions.  Their main beef seems to be that they think the FTC’s restrictions on the acai berry advertisers violate the First Amendment’s freedom of speech protection.  As we all know, the First Amendment does indeed grant anyone, even businesses, the right to say what they want.  Therefore, this sub-group of people (who probably also hold stock in acai berries) believe that by the FTC cracking down on how these advertisers present their information, it in fact infringes upon their First Amendment rights.

Wow, some people can be real whack-jobs, huh?  Fortunately though, none of the comments I’ve read so far have been crazy enough to argue that the ads aren’t in violation of federal false advertisement laws, because for the reason that, well, they clearly are.

Under current federal law, false advertising comes in two flavors: fraudulent content, which is when the statements made in an ad are false beyond mere marketing puffery, and deceptive practices, which is when the ads are presented in a way that will trick consumers into think it’s something else other than an advertisement.

The acai berry ads clearly fall into the latter category, and arguably also the first, but let’s not split hairs about whether or not acai berries can really help a person lose weight.  The acai berry ads were designed to look like news articles.  The ads had headlines and even author bylines, the formatting and fonts look like they were ripped straight out of CNN, not to mention all the legitimate news organization logos all over the place.  To any objective person the ads at first blush would seem like real news stories and not advertisements.  Therefore, they’re deceptive ads.

But back to the original question, did the FTC violate these advertiser’s first amendment rights?  Well, the answer is still no.  This will be a good lesson to any people out there who are thinking about launch ad campaigns similar to the acai berries.  That’s because while it’s true the First Amendment protect one’s freedom of speech, when that speech is commercial in nature, than the speech may be regulated if it is found to be false or deceptive.

See the beautiful circle here?  Because the acai berry advertisements are clearly deceptive under federal law, then the ads aren’t afforded First Amendment protection.  But let’s just say for argument sake that they aren’t deceptive.  Even in that circumstance the government still has a right to restrict commercial speech if the government can prove that the restriction would serve a substantial government interest, directly advance that interest, and the restriction itself isn’t beyond what’s necessary to advance that government interest.

Now I won’t bore you with a long dissertation of what is a “substantial government interest”, but suffice to say that if you’re running a business, an easier way to think about how you advertise is that you better not say anything fraudulent or deceptive because it’s pretty easy for the government to restrict commercial speech.

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