Tag Archive for 'free speech'

Government Lawyer Convicted of Hate Crime in Harassment Case

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In a classic case of “he should have known better,” a lawyer (or, more likely, a soon-to-be-former lawyer) in New York has been convicted of a felony for making harassing phone calls to his African-American neighbors, which included threats and the use of racial slurs. He tried to make it look like members of the Ku Klux Klan were responsible for the calls, and routed the calls through an Internet service that prevented the source of the calls from being identified through caller I.D. However, the police were able to track the calls back to him.

This lawyer also happened to work for the government of the state of New York. The calls were made in 2010, and after being charged, he resigned from his $104,000/year job in Albany.

And now, finding new employment in a job market that’s notoriously bad for legal professionals is the least of his worries: the defendant has been sentenced to 1-3 years in state prison for criminal harassment, with a felony hate crime enhancement. The prison term is the maximum allowed for the crimes he was convicted of.

I predict that, on some quarters of the Internet, there will be the predictable howling about how this case is another example of “political correctness” run amok, and how hate-crime laws are chipping away at free speech, they give racial minorities special protection, etc., etc.

I should make a few things clear at the outset: hate crimes laws do not give any particular racial group “special” protection. Hate crime laws do not actually create any new crimes. They do not enhance punishments because of the race of the victim. Rather, they enhance punishments for crimes that were motivated by the victim’s race (or other classification, such as religion, gender, or sexual orientation). So, in theory, a white person who robs, assaults, murders, or commits any other crime against another white person specifically because of the victim’s race, could be charged with a hate crime.

Furthermore, hate crime laws do not have any impact of free speech. They don’t make it illegal to express racist, sexist, or homophobic sentiments, if one is so inclined. However, the First Amendment right to free speech has never been interpreted to allow harassment or credible threats of violence against individuals. So, this man’s conduct would have been a crime even without the racial element.

And the fact that he made racist statements in the phone calls was not, in itself, a source of criminal liability. Rather, it was simply used to prove the fact that his actions were motivated by the race of his victims, therefore warranting the hate crime enhancement.

Reasonable minds can differ on whether or not hate crime laws are a good idea. However, there’s a lot of confusion around about what these laws actually do. And when any high-profile hate crime case enters the public discussion, these misconceptions are often repeated by pundits as if they’re fact, which further increases the public’s misunderstanding of the nature and purpose of these laws.

For example, in 2009, Congress passed, and President Obama signed, a law that extended federal hate crimes laws to apply to crimes committed against individuals based on their sexual orientation.

Conservatives in Congress opposed this, because they claimed it might end up being applied in ways that limit free speech and freedom of religion. Presumably, they were concerned that it could be used against religious leaders who speak out against homosexuality.

Predictably, these fears proved to be groundless. Of course, anyone who knew about how hate crime laws actually work could have told them this, because criticizing homosexuality is not, never has been, and never will be, a crime.

After all, hate crime laws that cover crimes motivated by race have been around, in various forms, for decades. Yet groups such as the KKK and neo-Nazi organizations are still around (and, sadly, have shown signs of growing in recent years). I don’t like those groups, nor do I like homophobia. I do, however, love the fact that such groups are allowed to freely express their views, no matter how repugnant I find them.

And I would strongly oppose hate-crime laws if I believed, even for a second, that they would have any impact on our constitutional right to free speech.

However, I believe that crimes motivated by something as irrational as hatred are particularly egregious, and should be subject to heightened punishment. And it’s not as if there isn’t precedent for enhancing the punishment for certain crimes based on their motivation. For example, in every state, murder is illegal (obviously). However, many states have heightened penalties for certain types of murder. For example, in states that have capital punishment, a murder committed primarily for financial gain (such as contract-killing) is often one of the aggravating factors that can make a homicide eligible for the death penalty.

Now, some would say that we shouldn’t care why a particular crime was committed. Rather, we should simply focus on the result of the criminal’s actions when considering a punishment. This, in my view, is a terribly shallow view of culpability and justice. If criminal punishment is, at least in part, about casting moral blame onto the perpetrators of criminal acts, we should look at their actual culpability. And a person’s mental state when committing a crime is obviously an element of that.

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Facebook Rant Held to Violate Protective Order

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A reminder: you shouldn’t say anything online that you wouldn’t say in person.

A court has held that a man who wrote a rant about his ex-wife on his Facebook wall violated a protective order requiring him to stay away from her. The court told him that he had to write an apology on Facebook, or go to jail for contempt of court.

Apparently, the man was so incensed about how his divorce case went and the child visitation arrangement that it crafted, that he felt the need to vent his feelings on Facebook. As mentioned earlier, the court had issued an order requiring him not to have any contact with his ex-wife. Apparently, the order prohibited him from doing anything that would cause his ex-wife to suffer “mental abuse, harassment, annoyance, or bodily injury.”

However, the article I linked to mentions that he had blocked his wife from viewing his Facebook page, and that she apparently had to have someone else log in for her to see it. This suggests that she had to actively seek out the offending wall post.

Now, regardless of what this man said about his ex-wife, it’s pretty clear (by the fact that he had blocked her from viewing his Facebook page) that he didn’t intend her to read it. And even if he did, the court’s order – requiring that he remove the post and write an apology, or go to jail, raises serious free speech issues.

It’s important to note that, in most cases, the government compelling a person to say something is just as constitutionally suspect as preventing them from saying something.

But in this case, the court did both: ordering the man to stop saying one thing (by taking down his post), and compelling him to say something against his will (by ordering him to write an apology).

I’m completely in favor of giving courts authority to issue protective orders designed to protect individuals from actual violence or harassment. However, this seems to be going too far. Regardless of whether or not this guy was a good husband, or even a good person, or what horrible things he said on Facebook, our right to freedom of speech is sacred, and the government cannot (and should not be able to) interfere with that right without an extremely compelling reason.

In this case, the ex-husband wrote something on his Facebook wall, which would only be visible to people who choose to associate with him on some level (they chose to be his Facebook friend, or take other action that allowed them to view what he writes), and the fact that the only person who might conceivably be harmed by his words (his wife) was actually blocked from viewing it, it’s pretty hard to argue that the court had a compelling reason to take the action that it did.

After all, there’s no indication that he threatened to harm his ex-wife, or intended to cause her emotional distress – or even intended for her to read the post.

I’m pretty sure that if this order is appealed, it would not hold up to scrutiny under a First Amendment analysis, and I don’t think it should. The test of our commitment to free speech is the extent to which we protect speech that is completely distasteful to the vast majority of the population. After all, when it comes to speech that doesn’t offend anyone, or with which nobody disagrees, constitutional protection isn’t needed. The whole point of the right to free speech is to protect speech that some people would want to censor.

Despite the fact that this guy’s conduct is probably protected by the First Amendment, I will concede that he probably shouldn’t have done it. And this case illustrates the fact that you shouldn’t say anything online that you wouldn’t be comfortable saying to everyone you know. This is especially true in situations where emotions can run high, such as during a contentious divorce.

Family lawyers have begun using electronic communications in text messages and on social networks as evidence in divorce and child custody cases.

While this speech may be protected by the First Amendment, and therefore not subject to criminal or civil penalties, it can often be used as evidence that can hurt a party’s case. For example, text messages have been used to prove that a husband was committing adultery, thereby voiding a prenuptial agreement. In a child custody dispute, a father whose drinking habit had raised concerns about his fitness as a parent testified that he had been sober for months. His testimony was very convincing, and he even got his AA sponsor to vouch for him. Then, he posted photos of himself on Facebook, which showed him drinking. As you might expect, he lost the case.

Just remember: the Constitution protects your right to say just about whatever you like, in whatever forum you like. It doesn’t protect you from the practical consequences of your speech, however.

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“Occupy” Protesters Getting a Crash Course in the First Amendment

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Whether you agree or disagree with the “Occupy Wall Street” protests that have been taking place around the U.S. for the last month or so, it’s hard to deny that they’ve become a bona fide political movement.

With any large protest movement (especially one that’s spontaneous and mostly leaderless), friction with law enforcement is inevitable. There have been a few high-profile reports of fairly severe clashes between police and protesters in a few places, but with protests occurring in dozens of large American cities, the general story seems to be that the protests have been largely peaceful, and the response of the police has been appropriately restrained, which is a credit to both groups.

And, as usual, the First Amendment is coming into play when the protesters do rub law enforcement the wrong way. In one of the First Amendment cases to arise out of the “Occupy” movement, the ACLU is representing (also reported here) members of Occupy Trenton, New Jersey in a case that raises some pretty interesting issues about free speech and freedom of assembly.

Essentially, the state is telling the protesters that they need to get rid of unattended signs, and stop using electric generators, arguing that the generators are a safety hazard, and the signs will simply turn into litter. On the other hand, the protesters are arguing that these demands are not based on any existing law, and that the authorities appear to be making up the rules as they go along.

From a First Amendment standpoint, this is definitely suspect. While the Supreme Court has repeatedly held that reasonable restrictions on the time, place, and manner of public protests are permissible under the First Amendment, these restrictions have to be laid out in written rules, and only applicable after the laws are promulgated. And, of course, they have to apply equally to ALL protests, regardless of the subject matter or content of individual protests.

However, if the authorities are allowed to make up the rules as they go along, abuse of that power is almost guaranteed, effectively giving the police a license to censor speech that they don’t like, by inventing new rules to regulate protests on the spot. One of the core components of First Amendment law is that any restriction on speech must be unambiguous and narrowly-tailored to promote a legitimate public interest.

In this case, if there were already rules in place saying that protesters couldn’t litter and, for safety reasons, couldn’t use electric generators, these restrictions would probably pass constitutional muster, since they don’t tell protesters what they can and cannot say.

However, if it’s true that these rules did not exist in New Jersey, and the authorities are simply promulgating them to deal with a particular situation, then their actions are constitutionally-suspect.

I don’t know how this case will turn out, but I hope it brings attention to the fact that, no matter how annoyed or inconvenienced they may be, the authorities cannot make up new rules on the fly to regulate expressive conduct. It may be easier than drafting thoughtful, clear, and narrowly-tailored regulations on demonstrations that respect the right to free speech while protecting public peace and safety, but if the state wants to regulate demonstrations (and, as I’ve said, some regulations are perfectly reasonable), that’s what they’re going to have to do.

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Is There a Constitutional Right to Play Loud Music in Your Car?

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A lawyer in Florida is making a big issue out of what would ordinarily be a minor annoyance: he was driving to work, and he got ticketed for playing music (Justin Timberlake, in case you were wondering) from his car stereo too loud.

Now, most people would simply pay the (very small, at $73.50) fine, and move on with their lives. But this guy was a lawyer, and has apparently decided that the state of Florida will have to pry his pop music from his cold, dead hands.

He went to court to challenge the ticket. Now, many people challenge tickets for minor traffic violations and related infractions, usually on the grounds that the state can’t prove that they engaged in the conduct they’re accused of. This lawyer, however, is arguing that the very law he was ticketed under is unconstitutional.

The Florida statute makes it an infraction for anyone to play music in their car that’s “plainly audible” at 25 feet or more. The lawyer is arguing that this is an infringement upon his First Amendment right to freedom of expression, and a violation of his right to due process because the law is unconstitutionally vague.

Now, I’m a very strong believer in free speech. When the Supreme Court ruled that Westboro Baptist Church had a right to protest the funerals of American soldiers killed in Iraq and Afghanistan, I reluctantly agreed with the ruling (though I found the conduct of the protesters absolutely repulsive). However, I’m not sure that the right to freedom of speech carries with it a right to make meaningless noise in a manner that seriously disturbs the peace.

After all, free speech generally means the freedom to convey information, or express ideas. Making noise just for the purpose of making noise probably doesn’t count. That’s part of the reason why noise ordinances and laws against disturbing the peace are constitutional.

In this case, the lawyer was playing his music really loud. This blurs the line between noise and expression. However, I think we should err on the side of allowing free expression, and any law that restricts it should be narrowly tailored and as clear as possible, to minimize its impact on speech which is clearly protected by the constitution.

In this case, the law that the lawyer was ticketed under is pretty vague. Furthermore, the statute has an exception for amplified advertisements or political speech. The Supreme Court has repeatedly held that commercial speech (like advertisements) is subject to weaker constitutional protection than other speech. So, any statute which provides more protection to commercial speech than to other forms of constitutionally-protected speech is a major constitutional no-no.

If the Florida Supreme Court ends up overturning this statute, I predict that a lot of pundits will deride it as another example of judicial activism, and the success of another frivolous lawsuit. The fact that the plaintiff is a lawyer will just make it an even juicier target.

This is unfortunate, because I think that this case is far from frivolous. It may seem trivial, but it only takes a trivial violation of a constitutional right to snowball into something more significant. While the actions of this lawyer may seem silly when viewed on their own, it is cases like this that prevent little restrictions of speech from accumulating into big ones.

And it’s not like the lawyer is even arguing that all noise regulations are unconstitutional. That’s not the position I’m taking, either. He’s simply making the valid point that this one happens to be vague and overbroad. If it’s overturned, the state legislature, if it wants to enact a new noise ordinance that’s constitutional, will have to actually put some thought into it this time.

This constitutional violation, like most of them, was probably not the result of a deliberate attempt on the part of the state legislature to deprive citizens of their right to free speech. Instead, it’s simply the result of poor drafting, resulting in a statute that’s so vague that no reasonable person can be sure when they’re violating it and when they’re not, making it unconstitutional.

Ordered liberty requires laws that are clear and well thought out. Sometimes, the only way to ensure that that happens is to have a few sloppily-written laws overturned by the courts.

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Stealing Valor: Should The Stolen Valor Act of 2005 Be Put Out To Pasture?

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Any of you out there remember Xavier Alvarez?  He’s the reason why politicians are great.  I don’t mean great as in they’re great humanitarians who work to better this world, but rather great sarcastically since they are the epitome of shamelessness.  Because no matter how big the lie that they are caught in, a bad politician never ceases to fight you on every bit of minutiae while ignoring the bigger picture.  And coming soon to a court docket near you, the United States Supreme Court will be reviewing the validity of Alvarez’s minutiae by deciding on the constitutionality of the Stolen Valor Act of 2005.

You see, back in 2007 Alvarez won a seat as a director for Southern California’s Three Valleys Municipal Water District.  After he won the election, Alvarez introduced himself as a retired 25-year veteran United States Marine.  He also told the audience that he was a Congressional Medal of Honor recipient who had received the honor due to getting injured many times by the same person.  You can listen to his original address here.

All fine and dandy, except the problem was that Alvarez never received the Medal of Honor or for that matter, even served in the military.  Alvarez was in fact lying about his service to this country.  And under the Stolen Valor Act of 2005, lying about receiving any congressional military medal or decoration is a crime punishable by six months in prison and/or a fine up to $200,000.

What possessed him to lie like this? Who knows.  Most likely it was to gain favor among voters.  Or maybe it was to keep the lie going since it appears he’s been telling the same story since 2006 when he ran for mayor in Pomona, CA.  Regardless, upon being found out, Alvarez worked out a deal with prosecutors that only a politician would want: Alvarez would plead guilty, but would be allowed to challenge the Stolen Valor Act on the grounds that it violates the First Amendment’s protection of free speech.  I assume he did this because he wanted even more hate mail.

Anyway, the 9th Circuit actually agreed with him in a heavily contested opinion.  Basically, the judges found that the government shouldn’t be able to control what people can and can’t lie about as it would be a prior restraint on free speech.  And as much as I hate to agree with them on this, I think their decision is the only logical answer to give.

Before the hate mail comes flooding into my inbox and the angry mob forms outside of my house, please try to put your torches down for a second and give me a chance to explain.

First, Alvarez’s conduct was clearly despicable and an insult to the brave men and women who fight and die for our country.  This much we can all agree on.  But second, and more to the point, the First Amendment was designed to protect our freedom of expression.  It’s one of our most closely guarded rights and for years it’s been understood by the Supreme Court and law professors everywhere that the Constitution frowns upon governmental restraints on expression.  Such prior restraints are always reviewed under strict scrutiny, a standard that tells us restraints on speech are only allowed when the government has a compelling interest in the restriction and that the government’s actions are narrowly tailored to meet that need because there are no alternatives available.

Here, while we can agree that protecting the sacrifices made by our servicemen and women is a compelling government interest, the Stolen Valor Act isn’t narrowly tailored to serve that need because better alternatives are available.  In fact, a law already exists that protects the same thing; it’s called fraud, which is what Alvarez was also prosecuted for committing.  Hence, the Stolen Valor Act is redundant and ultimately an unconstitutional violation of the First Amendment.

Now I realize some may argue that the First Amendment doesn’t protect false statements of facts such as Alvarez’s comments.  That exception applies much more strongly in the commercial speech context rather than among private individuals.  And with good reason because people say things all the time that they believe are true and later learn were incorrect.  Though this latter scenario doesn’t apply to Alvarez, the Stolen Valor Act blurs the line too much on what can and can’t be considered a constitutional restraint on expression (despite the law’s political popularity).

But that’s just my two cents.  What do you guys think?  Should the United States Supreme Court rule in favor or against the Stolen Valor Act?  Is it a necessary law?

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