Tag Archive for 'free speech'

Oklahoma’s Fraternity Scandal and the First Amendment

A recent video of members of the University Of Oklahoma fraternity Sigma Alpha Epsilon (SAE) chanting racial slurs has recently exploded on the media throughout the country. The chants were not only undisputedly racist, but especially violent in nature. Specifically they chanted “There will never be a ni**** SAE. You can hang him from a tree, but he can never sign with me.”

oklahoma racism scandalThe University of Oklahoma promptly expelled both students who appeared to be leading the chant in the video. Parker Rice, a 19 year old freshman coming right from Jesuit College Preparatory School was the leader of the chant. Another student, Levi Pettit, was also expelled. Both families have apologized profusely. However, Rice is the only involved student who personally apologized.

Were the Students Protected by the First Amendment?

As shocking as this story is, there are several First Amendment Rights that come into question. Were these boys exercising their First Amendment right to free speech? And if so, was the speech protected and therefore not subjected to any legal action, including expulsion from a public university?

A potential lawsuit has been threatened by SAE against the University of Oklahoma for expelling the students. SAE contends that the two students’ immediate expulsion “runs contrary to due process” and that the university has no right to censor speech, despite its hateful content. Other organizations have joined the bandwagon to “protect” the students’ First Amendment rights, including The Foundation for Individual Rights in Education, which is a civil liberties nonprofit. This organization has stated that, as a public university, the University of Oklahoma has no right to punish students solely because of offensive speech.

The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” However, if it does not meet this test, the speech is protected under the First Amendment. For example, the Supreme Court struck down a criminal conviction of the white supremacy group, the Ku Klux Klan, for “advocating … violence … as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence. One could argue the same for the SAE incident which occurred on a bus full of only SAE kids who mostly shared the same views. Additionally, the factors which would be taken into consideration by a court, when deciding whether the speech was intended to incite violence, are that the video was only seconds long and privately recorded. The ruling essentially does not criminalize “mere advocacy.”

Hate speech is actually protected by the Constitution despite being offensive. If the speech is chanted in a private space, as in this incident, amongst people of similar views, it is protected. However, if directed toward African Americans, then if it was extreme enough to incite violence or imminent lawless action, then there would be no constitutional protection. However, the view of courts that have considered campus speech codes and other campus speech restrictions to be subject to first amendment protections. This is also true for fraternity speech, racist or not.

Unfortunately, the critics of the expulsion are legally correct. The students did have a right to free speech in the context in which they expressed it and, although there is an exception for “inciting violence” according to the legal standard, it likely would not apply to this busload of ignorant, drunk, privileged, white college students. Therefore, the public university likely did not have the legal right to expel them. It cannot punish the fraternity members solely for the content of their expression. With that said, both students would have be wise to leave on their own.

Will Racism Ever Stop Plaguing America?

America likes to think as a whole that we are past racism because overt acts such as these are abhorred by the majority. However, this story clearly shows that racism is still present in our society.

I have noticed that in the last few days the Oklahoma story has digressed from the racist video portrayal to the story of the poor frat boys whose lives are ruined. The media will always frame things the way they choose, which is often influenced by the pressure of institutions. But the community’s voice should always remain on point. In this case, it should be emphasized that the student’s actions were clearly wrong and highly offensive, regardless of whether or not First Amendment protections apply.

“Go Topless Day” Advocate Fights Indecent Exposure Fine

Over the past decade, a woman’s right to breastfeed in public has gained significant traction. In fact, the right to breastfeed during work is an often overlooked portion of Obamacare. The success of the breastfeeding movement has birthed another movement: women’s right to be topless in public.

goLast August, Sonoko Tagami took part in the annual “Go Topless Day” protest in Chicago. The protest is organized by GoTopless, a non-profit that “advocates for the right of women to appear bare-chested in public.” To comply with city indecent exposure ordinances, Tagami had painted over her breasts with opaque body paint. Tagami had participated in the GoTopless protests since 2010, but 2014 was the first time a police officer had ticketed her for violating the indecent exposure law. The officer also seized GoTopless flyers Tagami passed to onlookers.

The city judge upheld the $150 fine. Tagami now appeals to challenge the city ordinances as a violation of free speech and equal protection. On January 22, 2015, the city filed a motion to dismiss he federal lawsuit.

Baring Breasts Should Not Be Unrestricted

Most cities in the United States restrict exposure of female breasts but allow men to walk around exposed above the waist. Cities justify this one-way restriction by claiming that female breasts are sexual while male breasts are not.

Tagami and GoTopless would point out that sexualization of women’s breasts is likely a result of nurture, not nature. Female breasts are sexualized because of culture. Many African and European countries allow women to walk about in public with their chests fully exposed and no eyebrows are raised. On the other end of the spectrum, many Muslim communities restrict the exposure of women’s faces on the theory that the mere sight of a woman is sexual for men. Sex is cultural. Breasts are primarily for breastfeeding infants. If breasts create lust, it’s because we as a society make it so.

However, just because breasts are sexualized rather than sexual doesn’t mean our laws are wrong. Tagami and GoTopless believe that cultural sexualization of breasts means that we should allow women to go topless. That doesn’t change the fact that, in the United States, breasts are sexual symbols. Our laws restrict exposure of other sexual symbols, including vaginas and penises. Although breasts also have nonsexual functions, so do actual sexual parts. Vaginas are used to give birth and penises are how urine leaves a male body. Sexual anatomy might have nonsexual functions, but that doesn’t exclude them from indecent exposure laws.

GoTopless and Free Speech

I believe most indecent exposure statutes are constitutional as written, but Tagami should not be fined in this case. Illinois law allows women to breastfeed in public and women are only prohibited from exposing their breasts in public if their intent is to arouse or satisfy sexual desire. If there’s anything wrong with Chicago’s indecent exposure laws, it’s that it doesn’t focus on the reason the breasts are open for public view.

It’s pretty clear that Tagami was exposing her breasts as a political statement. She was part of a larger protest and organization advocating a change in culture. This protest takes place on a specific day and has occurred annually. Tagami had flyers on her person so that she could explain to onlookers what she was doing. Tagami and GoTopless believe that if they can change the culture of breasts that lawmakers might also change the laws. Painting her breasts demonstrates her commitment to non-violent protests.

I don’t know if Tagami and GoTopless will succeed in changing cultural sentiments, but they have a right to try without government interference.

Peeping Toms Can Legally Take Photos up Women’s Skirts

Hey ladies, you know that creepy guy who tries to peek up your skirt ? Well it’s now legal for him to take a photo of you as well.

upskirt photos legalOne such creep, Christopher Hunt Cleveland, was arrested last June at the Lincoln Memorial on two counts of attempted voyeurism. Park police were suspicious of Cleveland when they spotted him taking photos of women on the steps above him rather than the giant statute of the bearded man. When police searched Cleveland’s camera and car, they found several hundred photos of women’s “private parts.”

At this point, most would expect a plea bargain if not an outright conviction. Unfortunately for decent people, Cleveland’s lawyer convinced Judge Juliet McKenna to suppress the evidence. Judge McKenna ruled that Cleveland’s photographs could not be used as evidence against him because “there is no evidence Mr. Cleveland positioned his camera in any way or employed photographic techniques or illumination, so as to capture images that were not already on public display.” In other words, the photographs were inadmissible as evidence because somehow the women’s crotches were already visible to the naked eye. Score one for the perverts.

Halfway across the country, the Texas Court of Criminal Appeals came to a similar, although slightly different, conclusion. Ronald Thompson was arrested in 2011 after he was caught taking underwater pictures of children in swimsuits. Although police couldn’t charge him with child pornography (the children were clothed), they did try to convict him under a statute which prohibited improper photography or visual recording acquired in public for sexual gratification.

In an 8-1 decision, the Court ruled that the law banning improper photography for sexual gratification violated the free speech clause of the Constitution. The Court agreed that the law was trying to protect citizens from dirty sexual thoughts, but regulation of thoughts is exactly what the First Amendment is designed to protect against.

Is It Always the Woman’s Fault?

Although the two cases and the outcomes were similar, the two courts took two different paths to arrive at these disturbing results. Internet commentators have condemned both rulings as cases that destroy women’s privacy. The outrage is understandable, but criminal prosecution isn’t the route society should take to stop this kind of behavior.

The D.C. Court ruled that the voyeur’s photos were not evidence of a violation of the law because the pictures were not depictions of anything illegal. Judge McKenna didn’t rule that women have no privacy, but that their privacy had not been violated. Indeed, it would be odd if the judge had ruled that women have no privacy because Judge McKenna is only a trial level judge without the authority to make that kind of ruling. Moreover, Judge McKenna is a women; it’s hard to argue that “male privilege” was a factor when the decision comes from a judge who might one day be on the wrong end of her own ruling.

The Texas case is a different beast altogether. Unlike Cleveland, Thompson was already guilty of violating a law. The Appeals Court overturned the law his conviction was built on because the law itself violated free speech. The free speech argument is particularly clever because it subtly shifts the focus of the case from the women’s privacy to the defendant’s right to express himself. In D.C., women’s privacy wasn’t violated. In Texas, women’s privacy was a secondary concern.

What Now?

If criminal prosecution isn’t the answer, what is? Free speech only limits government action. If you feel your privacy has been violated, you’re free to bring a lawsuit yourself. Such a lawsuit could produce a court order to make the pervert stop. The problem is that the camera guy would have to take pictures of the same woman repeatedly for her to bring suit, and voyeurs like Cleveland target different women every day.

On the other hand, if someone like Thompson is taking pictures at a private facility like a water park, the business itself can ban the pedophile from entering. If someone is taking pictures of you or you see someone taking pictures at a restaurant or private park, you should definitely complain to management and/or the owners.


Militarized Police Forces Cause More Problems than They Solve

A few years ago, the Occupy movement was alive and kicking. It meant a lot of things to a lot of people. But one thing that it gave to nearly everyone was a glimpse into militarization of modern police forces. Stories of protesters being hospitalized after being shot with tear gas canisters and rubber bullets in Oakland may have initially conjured images of extreme violence by hordes of unruly citizens in the streets.

militarized police forcesQuite to the contrary, reports told of peaceful protesters being the target of these attacks. In any event, amounts of unruly protesters are almost irrelevant; law enforcement is not allowed to shower unsuspecting families in chemical weapons because of one house on the corner nearby is causing problems.

The recent demonstrations in Ferguson, Missouri, and the subsequent militarized call to action by law enforcement, has catapulted an important question into the headlines: why do police increasingly resemble soldiers?

Where Are These Weapons Coming From?

As our armed conflicts abroad are winding down, the federal government is finding itself with a surplus of military equipment. Under a program referred to as “war-fighter to crime-fighter,” over $4 billion dollars of wartime equipment has been re-purposed to local law enforcement. In addition to assault rifles, armored vehicles and personnel carriers are among the most common to be cruising the mean streets of Anytown, USA.

What’s the Big Deal?

Undoubtedly, there are those who may not see this as a problem. Some may even go as far as to imply if it weren’t for the unruly few alluded to earlier, police would not need to resort to such extreme measures. The problem with these positions is they miss the point entirely. Here are four of the biggest issues with police militarization.

1) Poor Police Tactics – First and foremost, bulking up law enforcement with instruments of destruction doesn’t neutralize what is most likely a constitutionally protected assembly and exercise of free speech. However, it does neutralize communication between the demonstrators and the police. Since the tragedies surrounding protests in 1960s, many police forces have made efforts to make communication and transparency with activists a priority.

Police know – or should know – that their first priority is to protect the community. This also includes protecting the Constitution. It is well settled that the best way to do so is to foster civility. Militarization only mounts tensions, and time and time again has all but guaranteed overreactions and incidents of violence.

2) Threatens Constitutional Principals  Similar to above, but much more ominous, is the likelihood that the First Amendment will not be respected. Scholars debate that the First Amendment, specifically the freedom of expression, was first priority to our founding fathers because it sits at the foundation of every other amendment. Meaning, quite simply, without it, the rest of the Constitution is remarkably toothless.

Sadly, where a police force is militarized, history has shown that any number of specific lawbreakers are not silenced exclusively, but rather tear gas, riot gear, and rubber bullets are used to just shut the entire event down. Otherwise lawful assemblies are declared, rightly or wrongly, unlawful, and chaos ensues.

As a result, citizens who were engaged in lawful political speech are violently and abruptly silenced. Frequently, journalists, who are not engaged in the demonstration at all, are arrested. The result is otherwise protected speech is crushed under the heel of a combat boot.

3) Excessive Force – A helpful illustration of how valuable our nation views the First Amendment is the $4.5 million settlement the city of Oakland reached with documentary photographer Scott Olson. The settlement is to compensate him for his injuries; both from the fractures to his skull as a result of being struck by a lead-filled bean bag bullet, as well as to the deprivation of his constitutional rights.

Olson is no stranger to the dangers of a militarized police force, and as an ex-marine and war veteran, to conflict as a whole. However, his incident is not an isolated one. The Oakland Police Department’s approach to the Occupy protests lead to several other lawsuits and federal oversight. The situation is not looking much better in Ferguson, where the Missouri Highway Patrol has largely replaced the police force, and the federal government has similarly issued staunched warnings over excessive force.

4) Lawsuits – As an overarching theme of all of the above issues are the slew of lawsuits that will inevitably follow. Far from frivolous, these suits are designed to make victims of over-policing whole again. At the risk of repetition, these lawsuits, while necessary to protect victims, ultimately weaken the local community. Money that could have gone to improving safety training for officers or upgrading more important equipment, like jail cells and squad cars – or even pay salaries – will be diverted to compensate victims.

What’s the Solution?

Often times, there is no clear answer to legal dilemmas. Fortunately, when it comes to a militarized police force, the answer seems plain and simple: stop. Just stop. Don’t do it.

Proponents may insist militarization helps taxpayers by reducing federal government waste, and how proper military training may actually be beneficial in the future and thus militarization just needs to be given a chance. Finally, some may argue that armored cars and assault weapons help keep officers safer.

However, the reality is that whatever benefit to tax payers simply cannot outweigh local communities suffering as excessive force lawsuits stack up, let alone at the peril of long held constitutional principals. Additionally, proper training clearly needs to be implemented, but not with respect to combat weapons in the streets of suburbia. In no scenario should an assault rifle mounted to a tri-pod atop of an armored vehicle – and pointed at protesters with their hands up – be tolerated. Moreover, in the rare occasion a hostile situation calls for more force, departments should all already have highly trained SWAT teams to efficiently diffuse the event.

Finally, with respect to safety, police are already armed with deadly weapons they carry during the course of their daily duty, as well as crowd control gear and tactics. Further adding to their deadliness does not necessarily make them safer. It only makes innocent citizens markedly less safe.

As a result, not only is the Constitution put at risk; life itself is as well.

The Right of Free Speech vs. Online Business Reputations

SLAPP Lawsuits and the Internet

In the mid-90’s, Oprah Whinfrey dedicated an entire episode of her talk show to the topic of mad-cow disease spreading around several countries, including the United States. Cattlemen in Texas formed a coalition, claiming that the show negatively affected future beef sales, and sued her in federal court on a tortious interference with business reputation claim. After spending an exuberant amount of money defending the suit, Whinfrey ultimately won, with the court finding that the cattleman failed to show she had made any false statements.

anti-slapp internet free speechSimilarly, in 2010, a towing company sued 21-year-old Justin Kurtz for creating a Facebook page dedicated to criticizing the company for wrongfully towing his car. This was a fairly unique lawsuit at the time because the comments were made on the Internet by a member of the general public, as opposed to a public figure with significant influence on traditional media.

Both of these suits are called SLAPP-suits. These types of lawsuits have triggered much state legislation aimed at protecting the general public under the 1st amendment right to free speech and the right to petition the government for unfair practices of big business.

These relatively new suits, targeting the general public for their negative comments on Internet sites like Yelp and Facebook, are the brain-child of a three decade old problem of lawsuits being filed by big business entities. Critics argue that these lawsuits against the everyday citizens are an attempt to silence them from exercising their right of free speech or their right to petition the government. These suits are called SLAPP suits, which stands for “Strategic Lawsuits against Public Participation.”

Since the real motive of a SLAPP suit is to punish and deter criticism, the lawsuits have been successful in “chilling” free speech and discouraging the public from making future complaints against the company. There are many documented cases where defendants found it easier to remove their posts and remain silent.

States Have Tried to Protect Individual Free Speech with Anti-SLAPP Legislation

Public outcry against these suits resulted in many states enacting anti-SLAPP legislation. The purpose was to prevent an entity from filing a suit when the result would chill free speech. For example, California’s version of anti-SLAPP legislation is California Civil Procedure Code, section 425.16, which states that a person is protected from a suit if “any act of that person in furtherance of the person’s right to petition or free speech under the United States or California Constitution in connection with a public issue.” If the person is sued anyway, they will lose. However, a relatively small number of states have legislation as broad as California and only about one half of the states have legislation at all.

Is the Internet Considered Media?

When a state legislature is drafting Anti-SLAPP legislation, they often leave out protections that would cover the media. The First Amendment does not protect the media for defamatory or libelous statements, for publishing information not of public concern, or for a statements that are false and published with actual malice. These restrictions don’t apply to the general public. A member of the general public would be protected for making statements about the same or similar subject matter. Remember, Oprah won her suit only because the court found the statements were true.

When the Internet became widespread, a federal statute called the Communications Decency Act was passed. Although its original wording restricted free speech on the Internet, the Supreme Court struck down those sections and included wording that ultimately protects sites like Yelp and YouTube. Unfortunately, only the owners of the sites are protected from a defamations suit resulting what other people post. The individuals is not explicitly protected.

Has the Internet Transformed the General Public into the Media?

The question stands, if a person voices their opinion on the Internet, which has become the new mass medium, have they transformed into an agent for the media, and thereby deserving of less protection? If so, what protections should they be awarded when it comes to potential SLAPP suits?

An increasingly popular view is that an individual retains their status as such, and is therefore not an agent of the media and is protected by Anti-SLAPP legislation. In fact, there have been a number of California cases where complaints for defamation arising from Internet postings were successfully defended by using the state’s anti-SLAPP statute.

Some of the protections for Internet postings have remained the same as those for which the traditional anti-SLAPP laws were established: to protect the general public. These protections include the right to free speech (online speech in this case), the fact that the cases have no legal merit, and the fact that the lawsuit creates a “chilling effect”, as explained earlier. The courts have also found that people on the Internet have the right to remain anonymous when posting criticism. Businesses have attempted to issue subpoenas to compel the person to reveal their identity, which has been successful in some cases and found to be a valid defense in others.

The fact remains, however, that there has failed to be consistent rulings regarding Internet use and the protections individuals are awarded. The problem remains that everyday citizens are often not financially equipped to defend lawsuits brought by big business and their criticisms are often silenced.

Modern Technology Calls for Broader Constitutional Rights

Since the states vary in the broadness of their anti-SLAPP legislation, further protection is sorely needed. This type of protection can only come from a broadly defined federal statute, which will force the states to protect their citizens. Recently, many have been advocating for a federal anti-SLAPP law to protect people in states that either do not have laws or have laws that are too broad to adequately protect an individual’s right to free speech.

As a strong supporter of First Amendment rights, my view remains: it is no longer valid that the media should be limited in protection. In a sense, we have all become the media because of the ease in which individuals can widely disseminate information on the Internet, creating just as much influence as traditional media. Therefore, if the goal of traditional anti-SLAPP legislation is to protect individual rights and to protect those who do not have the resources to defend themselves against big business, those protections should be expanded to the media. This would quell the controversy and prevent needless litigation. Most importantly, it would protect the constitutional rights that make the United States unique.