Archive for the 'Laws' Category

Court Rules that Government Officials Blocking Users on Social Media Can Violate First Amendment

Social media is everywhere. While sites like Facebook have been around for a while, the sheer number of social media outlets, the number of people on them, and the number of things they are used for has reached unprecedented levels. However, while having a tool that gives so much convenient access to what’s going on it the lives of our loved ones and favorite celebrity personalities can be incredible, that access can be a double-edged sword. There are endless privacy considerations inherent in posting every detail of your life on the internet. For that reason, most social media outlets provide options to limit who can see what you post-from changing your settings to outright blocking people from seeing or posting on your content. This is a fantastic feature, and crucially important to protect from issues like cyber-stalking. However, what about when a politician uses this feature to censor their critics?

The power social media is the power of access, and that screams opportunity to businesses and politicians alike. The ability to reach such an enormous number of people has made it incredibly common for businesses, political parties, charities, and-of course-individual politicians to have created social media pages separate from their personal pages. Obviously, President Trump is well known for his proclivity for treating his personal Twitter as an official outlet for off-the-cuff presidential proclamations–often much to the chagrin of his own political party, cabinet, and even the pentagon. Just recently, Trump’s ban on transgender people in the military–announced via his twitter–caught even the pentagon itself by surprise as they were unaware of what he was announcing until he posted the second half of his tweet. Pentagon officials have even stated that they were concerned he may have been declaring war on North Korea via his Twitter account.

Given how crucial social media can be to politicians now, perhaps it’s no surprise that a court has finally made a ruling limiting how a politician may behave through social media. The ruling, limiting who and when politicians may block people from social media, did not-however-deal with our tweet-happy President. However, it has inspired several lawsuits against him in its wake.

The ruling itself has some serious implications. However, the lawsuits against President Trump over his Twitter behavior have their own considerations. For that reason, we’re going to look at the situation in a two-part series of articles. First, we’re going to look at the recent ruling and what it means. Then we’re going to look at the lawsuits against Trump and what the ruling means for their chances in a separate article.

social mediaThe Details of the Case

The case itself dealt with a Louden County Board of Supervisors Chairwoman-Phyllis Randall-deleting posts from and blocking one Brian Davison from her official Chairwoman Facebook page after he criticized her and her colleagues’ political behavior.

After accusing Louden County School Board officials of corruption at a townhall meeting hosted by Chairwoman Randall-and subsequently being shut down by Randall-Davison took to her official Facebook page to once again air his grievances. In response, the Chairwoman removed the post and blocked him for about 24 hours.

After looking at the facts, District Court Judge James Cacheris determined that the Chairwoman had violated Mr. Davison’s First Amendment Rights. The issue here was that she was blocking Mr. Davison from reading government information otherwise accessible to the public. This was made especially bad because she was blocking him over speech criticizing her politics.

Blocking on Facebook Can Violate The First Amendment

You might look at these facts and say to yourself, “is a 24-hour ban really that much of an issue?” Obviously, the actual ban was moderately trivial. However, what’s important-and what has larger implications in the ruling-is that the act itself of a politician banning even temporarily from social media which acts as an official forum for that politician can violate the first amendment.

This isn’t to say that all speech on an official forum is protected. Davison himself had previously sued over a government prosecutor deleting comments from an official webpage. Here, the same judge shut him down because his comments were off topic. The issue was that, in the Chairwoman’s case, she deleted comments expressing a viewpoint criticizing her politics–something known as viewpoint based discrimination.

When the government practices viewpoint based discrimination (favoring one side over another) in a public forum this violates the First Amendment–this is especially true of political speech. So the remaining issue is, when is social media a public forum?

A social media account, or really any speech, isn’t automatically a public forum because a government agent makes it. Government agents can and do have totally private communications-a private Facebook account or personal email for instance. The question is, does that social media account act under color of state law or undertake state action? Does the account have a close enough connection with the State to be fairly treated as making actions of the State itself?

The answer to this question is, unhelpfully, it depends on the totality of the circumstances. However, several things can specifically point towards a politician opening a public forum.

The ruling itself specifically looked at: 1) whether the account arose out of public or personal circumstances; 2) whether the account includes actions facilitated by the authority of the politician; 3) whether the account was used as a tool of governance; 4) used government resources to operate and 5) the trappings of office associated with the account.

Here, the Chairwoman made the account right after she was elected and included her official title in the title of the page and immediately invited constituents to contact her through it with official business. The categorization of the page on Facebook is “government official.” It links to her official website. Almost all the posts relate to politics and are addressed to the Chairwoman’s constituents. It lists her official contact information as the contact information on the site. She also had a Chief of Staff set up the page and maintain it for her.

The Chairwoman’s website wasn’t all government. It also included personal thoughts, shopping trip pictures, and more personal things. The Chairwoman even intentionally created it separate from her official page with the stated purpose of avoiding government oversight. However, looking at all the ways the page was used in an official government capacity and to promote her political career, it’s easy to see why the court ruled the way it did.

What This Ruling Means

The District Court has made it clear that even social media pages made separate from official government pages can create a protected forum for First Amendment speech. This is especially true of political speech and even more true when that speech criticizes the politics of the politician in question.

When it comes to politicians cool in the face of criticism, President Trump is not the man that comes to mind. Thus, it should come as no surprise that he and his team have banned more than a few political critics from his personal twitter account (@realDonaldTrump). Donald Trump’s situation does not map one-to-one to Chairwoman Randall’s. However, there are enough similarities that several lawsuits around the issue have cropped up in the last few weeks. Stay tuned, in the next couple days we’ll be talking about just how close these cases track and whether Trump may be forced to change his social media ways.

LGBT Rights: Understanding the Department of Justice In-fights with EEOC

Over the last year or so, we’ve talked quite a bit about the strides made in LGBT employment rights taken by the Equal Employment Opportunity Commission (EEOC). We’ve seen enormous steps towards extending protection of the law to those discriminated against based on sexual orientation and gender identity, if not making them a protected class in and of themselves.

Title VII forbids employers from discriminating against employees due to being a member of a protected class such as race, gender, national origin, color or religion.  It also prevents employers from retaliating, through termination or otherwise, against employees who report such discrimination. For years now, the EEOC has embraced the logic that sexual orientation and gender identity fall under the protections of Title VII–including them in the gender class.

Unfortunately, the Department of Justice (DoJ) and Jeff Sessions are determined to spend resources attacking these rights. Just a few days ago, the DoJ filed a “friend of the court brief” (a type of brief where an interested non-party to a lawsuit makes a filing to try and convince a court to rule a specific way) arguing that LGBT persons shouldn’t be. This a step down a path undoing essentially 8 years of work. The timing of the filing, the same day as the transgender ban we just spoke about, just serves to highlight the Trump administration’s stance on LGBT rights. Let’s take a look at the case, the stance of the EEOC, and the DoJ’s arguments against extending rights to the LGBT community.

The Case in Question

The case itself deals with a skydiving instructor by the name of Donald Zarda. Back in 2010, he was working for Altitude Express doing tandem dives with clients. This obviously involves being essentially strapped together. In order to assuage the worries of a woman he was diving with regarding this issue, he mentioned to her that he was gay. Her husband complained about this to the company, leading to their firing Mr. Zarda. After this, Mr. Zarda sued Altitude Express for violations of Title VII.

Mr. Zarda’s claims obviously hinge on sexual orientation being protected from discrimination under Title VII. The DoJ’s court filings argue that this is not the case and cannot be the case without an act of Congress. This specifically targets the current stance of the EEOC, taken during the Obama Administration years.

 LGBTThe EEOC’s Current Position

In July 2015, the EEOC declared as an agency that sexual orientation was a protected class as a form of sex-based discrimination.  Since then, they have been investigating claims of discrimination based on gender identity or sexual orientation. Recently, the EEOC has brought two separate federal lawsuits alleging discrimination against homosexual employees on the basis of their sexual orientation. They have had an unofficial stance favoring treatment of sexual orientation as protected under Title VII since as early as 2013. In cases as early as 2012, the EEOC had held the discrimination based on gender identity is discrimination based on sex and thus in violation of Title VII.

The arguments the EEOC makes to include sexual orientation and gender identity within the confines of sex and gender hinge on elements of Title VII which forbid discrimination based on non-compliance with norms or stereotypes. Essentially, it boils down to discrimination against LGBT persons being necessarily founded in discrimination based on their non-conformance with gender or sex norms in society–identifying with your birth gender and being heterosexual.

The DoJ is attacking this argument, as well as the power of the EEOC to make such a determination in the first place.

The Department of Justice’s Brief

The DoJ’s brief is substantial. They’ve clearly put quite a bit of time and resources into arguing against protecting the LGBT community. However, their arguments can essentially be boiled down to three things: 1) Congress has shown that they don’t want to protect LGBT persons by never amending Title VII to include them as a protected class; 2) discrimination can’t exist under Title VII unless women and men are treated differently; and 3) discrimination against LGBT is not necessarily related to gender.

Their first argument comes up several times in the brief. They assert that Congress’s failure to add sexual orientation when amending Title VII in 1978 and 1991, despite court rulings existing which refused protection on this basis, is proof Congress didn’t intend to protect LGBT persons. They say that Congress knew that LGBT people weren’t protected under the act both times they made their amendments. The DoJ says that this implies that Congress intentionally chose not to include LGBT people in Title VII’s protections.

The DoJ argues that this means that the EEOC doesn’t have the power to treat LGBT people as protected.  This probably is not the case, barring an actual act of Congress it is unlikely that the EEOC has acted beyond the purview of its role as an agency which is specifically to interpret and apply Title VII. However, the DoJ’s argument is the type that carries weight with the courts. In interpreting law, statutory interpretation often draws on the intent of Congress in making a law.  The failure to include LGBT persons is far from a deathblow to the EEOC’s interpretation but it certainly requires them to have stronger arguments backing their current treatment of the law.

Next, the DoJ argues that sex and gender discrimination only exists where men and women are treated differently by an employer. They cite a few (fairly cherrypicked) cases in support of this assertion. However, even the DoJ acknowledges that gender stereotyping creates an established cause of action for Title VII discrimination.  This leaves several holes in the DoJ’s arguments.

Gender stereotyping specifically creates a cause of action where an employee is discriminated against based on their divergence from established gender stereotypes. This has never relied upon treatment different from the opposite gender. If this wasn’t the case, why would gender stereotyping even exist as a cause of action under the law? Treating women differently from men already exists separate to gender stereotyping. If it only applies to treating women who act masculine worse than men who conform to gender stereotypes (or vice versa) then gender stereotyping as a rule becomes irrelevant. What’s more, if gender is considered as separate from biological sex (as is common practice in scientific communities these days), then transgender persons the EEOC argument still holds. A person male identifying female could receive disparate treatment from a male identifying male. In this case, although both have a birth gender of male, the case would involve a person identifying as one gender being treated differently from one identifying the opposite gender.

The DoJ tries to fight this by highlighting that a “plaintiff must show that the employer actually relied on her [or his] gender in making its decision.” This doesn’t have to mean one gender or another, just that an employer relied on the gender of the person discriminated against in stereotyping them.

Finally, the DoJ attacks the EEOC’s argument that discriminating against sexual orientation or gender identity is necessarily linked to the protected classes of sex or gender. They say, as if it encourages removing protections that a homophobic employer would discriminate against a gay or transgender person regardless of their gender. However, this once again ignores the basis of the EEOC’s argument in gender stereotyping. Even if an employer “equally discriminates” against both genders of LGBT persons, they are still necessarily discriminating based on a gender stereotype that people should have sex with the opposite sex and identify with their birth gender

The DoJ also argues that you can discriminate against gay people who completely conform to gender stereotypes other than their sexual orientation. This is held up to counter the EEOC’s argument that sexual orientation discrimination is always gender discrimination. It’s unclear however, as to how this is an argument against the practice altogether. Rather, at most, it is an argument that where there is no divergence from gender stereotypes there is no discrimination. How that would exist when a gay person is necessarily divergent from the gender stereotype of having relationships with the opposite sex is unclear.

Trump Administration is Backpedaling

The DoJ’s arguments for removing protections for LGBT have some serious issues, both from a legal analysis standpoint and an ethical one. However, they are not ridiculous on their face and are certainly capable of persuading a judge to rule in their favor.

The effort and money they’ve put in to allow discrimination against LGBT persons is, above all, an example of the Trump administration’s lack of commitment to protect the LGBT community. Despite proclaiming himself the preferred candidate for LGBT rights during his campaign, President Trump’s actions since taking office have shown him to anything but. This move is coming on the eve of revoking protections for transgender people in the military and in the wake of decisions backing off LGBT rights enforcement.

At this point, the issue is going to be more and more in the hands of state law-a patchwork of protection and utter lack of protection depending on where you live. However, more than anything, the DoJ’s actions reveal how important it is to treat sexual orientation and gender identity as protected classes of their own. This would require an act of Congress, and is thus will not happen soon. However, making these two a protected class would remove all of the DoJ’s arguments against protection. What’s more, they fit the established mold of what we treat as protected classes.

Courts have historically looked at three elements when forming a new protected class: (1) a long history of discrimination, (2) economic disadvantages, and (3) immutable characteristics. While some may argue immutability, despite substantial scientific evidence to contrary, both sexual orientation and gender identity easily check all these boxes. Until we see these two treated as a full protected class, the entire LGBT community will find it’s rights at the whim of each passing administration and that simply cannot stand.

Understanding the Russia Investigation: When Does an Attempt turn into a Crime?

Special Counsel Robert Mueller’s grand jury has begun issuing subpoenas into the June 2016 meeting between the President’s son, son-in-law, second campaign manager, and lawyers from Russia. After Donald Trump Jr. disclosed a series of e-mails about the meeting, critics condemned the meeting as an attempt to commit collusion with Russia.

Although the average American will never be accused of colluding with Russia, an attempt to commit a crime is still a crime under federal and all state law. Regardless of your politics, it’s still good to know where the line between committing a crime and an innocent act is.

Missing Causation

Most crimes have three elements: intent, causation, and the criminal act itself. In order to be guilty of murder, the prosecution must prove that the defendant intended to kill the victim, took steps to kill the victim, and those efforts caused the defendant to die.  For example, Dan wanted to kill Vicky because she broke up with him, so Dan used his car to run her over, causing her death. In that situation, Dan would be guilty of murder.

However, if we removed one of the elements, it would be harder to determine whether Dan was guilty. If we remove the intent element, the murder charge would fail. If Dan hit Vicky with his car, but it was the result of Dan being careless rather than a malicious intent, then Dan would be liable for a wrongful death, but it wouldn’t a murder. Similarly, if we remove the criminal act, Dan would also be off the hook.  If Dan wanted to kill Vicky, but never takes any action, then Dan would not be guilty. Even if Vicky gets struck by someone else’s car, Dan wouldn’t be guilty (unless Dan was somehow involved in the other car hitting Vicky).

The hardest situation to evaluate is lack of causation. Suppose that Dan intended to kill Vicky and drove a car into her. However, Vicky doesn’t die because Dan hit her with a car. Instead, Vicky dies because of medical malpractice by her physician. In this case, Dan’s lawyer could argue that Dan can’t be guilty of murder because his intent and his action didn’t actually cause Vicky to die; the doctor was the one who actually killed her.

So, Dan’s not guilty of murder, right? Dan might not be guilty of murder, but every state would charge him with attempted murder. Since Dan intended to kill his ex-girlfriend and took a substantive step towards killing her, Dan would be found guilty of attempted murder, even if the actual criminal act failed to kill Vicky. Although the doctor’s malpractice was an intervening cause, it was Dan’s car that put Vicky in a position where she needed treatment in the first place.

Russia InvestigationEntrapment

In many sting operations, defendants will claim that the police entrapped them. That is, the police convinced them to commit a crime that they wouldn’t have committed had the police not been involved. For example, suppose that Dan, still mad at Vicky, seeks out an undercover police officer to form a contract to kill Vicky. After Dan pays half the money, the officer arrests Dan and doesn’t kill Vicky. Prosecutors charge Dan with attempted murder and Dan claims entrapment as his defense.

Unfortunately for Dan, he would lose if he claimed entrapment. In order for entrapment to be successful, the police must convince the defendant to commit the crime. Since it was Dan who contacted the officer first, Dan formed his intention to kill Vicky on his own. The fact that Dan fell for a sting operation doesn’t change the fact that it was Dan who initiated the crime. Entrapment would only be successful if the officer somehow convinced Dan into joining an attempted murder of Vicky.

Why do I bring up entrapment as a defense? Before Reince Priebus was terminated from his position as White House Chief of Staff, Priebus argued that the Russians the Trump Campaign meet with had ties to Fusion GPS, the organization that created the original memos linking the Trump Campaign to Russia and funded by the Jeb! Bush campaign and later by Democrats. In other words, Priebus claimed that Trump Jr. was set up by Democrats to take the meeting with the Russians.

Is There Enough to Convict?

Right now, there aren’t enough facts to determine whether the Trump campaign was entrapped. Certainly the chain of emails released by Trump’s son shows that it was the Russians who initiated contact, not the campaign. However, we don’t know if there were any e-mails, phone calls, or other contact prior to the publicly revealed e-mail chain. Only the Special Counsel would know right now if Democrats actually entrapped the Trump campaign or not.

Alabama Abortion Law Ruled Too Restrictive to be Constitutional

Defining the constitutional outer limits of abortion law has been one of the hardest fought battles in the history of law. To be frank it is a battle that continues to be fought throughout the nation. As the makeup of the Supreme Court shifts, it is one of the topics that is most keenly considered in selecting Justices. This is in large part due to the sheer number of laws on the issue coming out of or being considered by legislatures in the many states. This has been especially true in the last decade or so as states have taken increasingly hostile stances towards the practice-of the slightly over a thousand abortion restrictions made into law around 300 of them have come between 2010 and 2016.

Alabama has had a healthy share of these restrictions over time. In fact, it’s one of the most restrictive states in the country. As of now, Alabama laws require a woman to receive state-directed counseling and wait 48 hours before receiving an abortion, some means of abortion common elsewhere are restricted, public funding and health care for abortion is allowed only in cases of rape, incest, or when a woman’s life is in danger, a woman must undergo and ultrasound and be asked if she wants to see it before receiving an abortion, also abortions may only be performed up to 22 weeks after the woman’s last menstrual period. Also, if you’re a minor, you need to receive parental consent before you can receive an abortion.

Up until recently, the rules for minors didn’t end there. As part of their parental consent rule, Alabama includes a judicial bypass clause. This is required for such a restriction to be constitutional and basically means that a minor whose parents won’t consent can turn to the courts to rule that she is or isn’t mature enough to decide for herself whether she should get an abortion or whether an abortion is in her best interests as a minor. Alabama, however, went a little further to complicate this process for minors. In 2014, Alabama added an additional provision to the law–unique to Alabama–which added a sort of mini-trial to the proceedings. The new law added two extra hoops for these minors, and they were some serious hoops. First, a judge can appoint a guardian ad litem for the fetus–essentially a party whose job was to advocate for the fetus (sort of like a fetus lawyer) in all proceedings regarding a judicial bypass. Second, it required the local district attorney to be involved in the proceedings and allowed them to bring witnesses to the hearing to question the girl’s maturity. This basically meant that a girl’s friends, family, therapist, preacher–basically anybody connected to her–could be called as a character witness to one of her most vulnerable times.

alabama_abortion_lawFortunately, last week a federal judge struck down these additional provisions as unconstitutional. To understand why, let’s look at the case, the logic behind the act itself, and the constitutional law governing the type of abortion restrictions that a state can impose.

The Reasoning Behind the Ruling

The state’s argument behind the law was that it was designed to create a confidential and meaningful inquiry into a minor’s maturity when seeking an abortion without parental consent. However the ACLU, on the other side, said that the law did anything but. They argued that the teens seeking judicial bypass were subject to much less confidentiality than before under the law. The DA could call witnesses including anybody from a girl’s teacher to their boyfriend to the parents which refused to consent in the first place.

Ultimately, the actual legality of the law depended on whether the law was overly burdensome to the minors seeking an abortion. Under Roe v. Wade, a woman has a constitutional right to receive abortions. However, this is far from an absolute right under the current law. Just looking at the laundry list of restrictions on the practice in Alabama it’s obvious that there are some restrictions that can pass constitutional muster. The legal analysis for determining whether a restriction on access to abortion is constitutional was determined in 1992 in Planned Parenthood v. Casey. The Supreme Court held that a regulation is not constitutional when it creates a “substantial obstacle” to a woman receiving an abortion. This is not the most helpful of standards on its face, leaving a lot of room for interpretation. Fortunately, we’ve had some more clarification when it comes to parental consent rules.

To be acceptable, a parental consent law must include a judicial bypass which is effective, confidential, and expeditious. Useful, private and quick. Alabama’s law made their bypass none of these things. The judge in this case specifically noted that the many witnesses called ruined any potential chance of anonymity. The proceedings and appeals from the DA also made the hearings much longer than reasonable.

Under Supreme Court rulings, a judicial bypass must only consider whether a minor is mature and whether the abortion is in her best interest. Under Alabama’s act, the interests of the state, the parents, and even the fetus would have to be considered as well. This by itself would have been enough for the court to find Alabama’s law unconstitutional.

Tragic Circumstances Part of the Ruling

The law saw some seriously horrifying uses which certainly contributed to the judge’s ruling. The judge in this case noted one case in her ruling itself. Be warned before reading on that the circumstances of this case are incredibly disturbing. In the case cited by the judge, a 12-year-old girl was raped by a male relative-resulting in a pregnancy. The girl did not know her father and the rape occurred under the watch of her mother. In seeking judicial bypass to receive an abortion, she faced the full force of the DA’s office in opposing her access to the abortion. This led to an enormous amount of legal opposition to her motion that substantially delayed the proceedings. While the initial trial court granted her bypass, the DA even appealed this decision. While the minor ultimately won this appeal, the court noted how obstructive and intrusive this process was in reaching their decision.

There’s no doubt that the application and use of the law, acting as an enormous roadblock to vulnerable minors in terrible circumstances, was partially behind the ruling of the court and rightfully so. Abortion law is something that is highly vulnerable to change in the upcoming years, a more conservative Supreme Court could lead to limitations on a woman’s reproductive rights. However, as it stands, laws like Alabama’s are clearly unconstitutional. In fact, no court has ever found an adversarial process added to a judicial bypass constitutional. The judge here did the right thing, both under the law and in acting in the best interests of children in terrible circumstances.

When Should the Criminal Court Get Involved with Family Law?

Most family law cases make it from petition to marital settlement agreement without having to involve the police or a criminal prosecutor. However, there are cases when a partner is abusive, when the children are in danger, or when a partner makes false accusations that could have grave legal consequences. If you’re involved in such a case, when should you go to the prosecutor?

Family Court or Criminal Court

The biggest difference between family and criminal court is that the former is a civil court only. In other words, while it may have the power to referee and resolve disputes between different private parties, its power to punish criminal wrongdoing is extremely limited. The most available option is a sanction, or fine, for disrespectful behavior and potentially limited jail time for contempt of court. Successful contempt pleadings are rare though and sanctions don’t have an adverse effect if the party is extremely rich or extremely poor.

Criminal courts, on the other hand, are designed to find and punish criminal behavior. Police officers can take down statements and make arrests, prosecutors can initiate investigations, and defense lawyers can make constitutional arguments to protect against false accusations. In family court, it is common for parties make accusations and counter-accusations; in criminal court, the defendant will find that type of finger pointing to be unsuccessful.

by VicThe Right Time

So when is the right time to involve police, prosecutors, and criminal courts in a divorce or child custody matter?

In most circumstances, the right time is when the abuse begins. If a partner shoves you against a wall or throws an object at you, you should have the police make a report. If the situation is life-threatening, you should call 911. If you call 911, be sure to tell the dispatcher as much information as possible. These calls are always recorded by the police department, so even if the responding officer makes a mistake, the initial call will reveal any potential inconsistencies. If it’s not life-threatening, consult a family attorney about the best way to file a police report. If the abusive behavior continues, continue making police reports.

There are three important reasons to file a police report against an abuser. First, police reports are almost always admissible evidence in court, so there will be no problem getting the information in front of a judge. Second, in order to obtain a conviction for domestic violence or harassment (depending on your state and county), there usually has to be a pattern of abuse. Constantly making police reports establishes this pattern. Third, it prevents the abuser from filing the charges first. In many abuse cases, the abuser may attempt to accuse the victim first, so that the victim appears to be the abuser instead. Filing a police report first may prevent the abuser from muddying the situation too much.

If you have children and the abuser is your spouse, the dynamic changes. Many spouses are afraid to call the police on their spouse because they do not want their children to see the police arrest a parent of the children. If you believe your life or the life of your children is actually in danger though, seeing a parent arrested is preferable to seeing a parent being abused.