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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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Producers of “The Bachelor” Sued For Racial Discrimination

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With very few exceptions, I’m not a fan of “reality” TV. But for some reason, it seems that it’s impossible to follow the news without seeing a story about a reality TV show. And now, a big story involving a reality TV show, and its contestants, has infiltrated the tiny journalistic niche of legal news: would-be contestants of the dating TV show “The Bachelor” are suing the producers of the series, alleging that it engaged in racial discrimination.

I don’t know if these allegations are true. However, the fact that there’s enough of a perception of discrimination that some plaintiffs felt that they needed to file a discrimination suit suggests that race is still an issue in all sectors of employment, and we still have a long ways to go before we’re a truly colorblind society.

The lawsuit claims that prospective “bachelors” and “bachelorettes” who applied to be on the show were systematically discriminated against based on the fact that they were not white. The lawsuit claims that there have been 23 seasons of the show over 10 years, without a single person of color filling either role.

While this may seem like a relatively straightforward employment discrimination lawsuit; but the facts that it involves a popular TV show, and the qualifications for the job of “bachelor” are so subjective, there are some interesting wrinkles.

It appears this isn’t technically a suit under employment law, because the relationship between “bachelors” and the TV network they work for does not appear to be a regular employer/employee relationship, because the term of work is very limited, and the bachelor/bachelorettes don’t appear to be paid a salary. The relationship is more like that of an independent contractor.

And because of that, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment, and which serves as the basis for most employment lawsuits, probably doesn’t apply.

Instead, the lawsuit is being brought under the equally-important, but less well-known, Civil Rights Act of 1866. This law was passed shortly after the Civil War, and it was originally intended to ensure that African-Americans have the same right to enter into contracts as whites, in part by requiring courts to treat contracts with African-Americans as parties exactly as they would treat any other contract.

In recent decades, the Supreme Court has significantly expanded its interpretation of this law, holding that it also prohibits private parties from refusing to contract with people based on their race.

The lawsuit also alleges that the defendants’ alleged conduct also violates California’s civil rights laws, which generally go further than federal law, providing for stronger punishments for racial discrimination, and more expansive remedies to the victims of discrimination. In addition, California law bans discrimination based on additional categories that aren’t covered under federal law, such as sexual orientation and gender identity.

With all this said, if the plaintiffs hope to obtain relief under either federal or state law, they will have to actually prove that they were discriminated against based on their race. This will be no easy task. Proving that an employer, or anyone else, intentionally engaged in racial discrimination is pretty difficult.

And in this case, the “job” qualifications for the position of “bachelor” and “bachelorette” seems incredibly subjective. It appears that the defendants would be able to come up with virtually any qualification, and plausibly link it to the job. All they might need to do, in that case, is come up with a qualification that all of the people who became “bachelors” have, which is not shared by many of the plaintiffs. Of course, they’d also have to show that this is not a pretext for racial discrimination, which would be difficult.

The defendants might argue that advertisers and viewers prefer to see white bachelors and bachelorettes starring in these shows. Many anti-discrimination laws have exceptions for “bona fide occupational qualifications.” For example, a job as a model for men’s clothing can only reasonably be done by a man. So, a woman would not be able to sue for sex discrimination if she was not hired as a model of men’s clothing because of her gender. Likewise, this rule can also allow for religious organizations to refuse to hire some employees (if the job is religious in nature) based on their religion.

However, no court in the U.S. has ever held that there is a bona fide occupational qualification for race. While they have left open that a situation could conceivably arise. However, they have repeatedly held that customer preference for a particular race is not sufficient for this exception to apply. So, even if the defendants could show that viewers and advertisers prefer to see white people starring in these shows, a court would probably not find that the bona fide occupational qualification rule applies.

While I don’t know how this case will turn out, and whether or not the producers of these TV shows deliberately engaged in discrimination, the fact that, in 23 seasons, no bachelor or bachelorette of color has ever been featured on either of these shows does not bode well for the defendants. That, by itself, is not enough to conclusively prove that deliberate discrimination took place, but it is certainly a very strong piece of supporting evidence.

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California Supreme Court: Managers Do Not Need to Ensure That Employees Take Breaks

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California has a long history of liberal and progressive politics, particularly when it comes to protecting the rights of employees. And while the state legislature has passed a wide range of laws meant to protect employees, the California Supreme Court has also played a significant role in the development of many employee-friendly policies that California employees often take for granted.

So, a recent ruling from the state’s high court comes as something of a surprise, whether you agree with the ruling or not. The Court held that California employment law does not require employers to make sure that employees actually take the breaks to which they are legally entitled.

It’s important to note that the right of all employees in California to take at least a 30-minute meal break during a standard shift, and their right to two 10-minute breaks for every four hours worked, has not been affected. If an employer were to try and stop an employee from taking their legally-mandated breaks, there would be trouble.

What the state Supreme Court did here was resolve a question that, until now, created some uncertainty for employers. The law was not clear on whether or not employers had to actually order their employees to take the breaks to which they are entitled.

In its ruling, the court essentially says that, while employers are required to offer a minimum amount of break time to their employees, the law cannot dictate what the employees actually do with that time, and if they choose to spend it working, that is their right.

I’m of two minds about this decision. On one hand, I think it leaves the door wide open for abuse, especially of employees who don’t know much about their rights under California employment law. An employer could simply “forget” to inform his or her employees that they’re entitled to breaks, and if they eventually get sued for failing to offer their employees break time, they could simply claim that the employees chose to work through their breaks. And in many cases, it would be difficult to prove otherwise.

Groups that advocate for strong protections for workers are understandably concerned that this ruling could turn into an easily-exploitable loophole in California’s worker protection laws, which are otherwise some of the strongest in the country.

On the other hand, I recognize that it would be impractical for the law to micromanage the behavior of employees on their breaks, and while the law should protect employees, ensuring that they are paid at least a minimum wage, that they have a reasonably safe work environment, and that they have breaks to ensure that they don’t become overly fatigued on the job. All of these protections tend to be good for both employees and employers in the long run. The benefits for the employees are obvious. But for the employers, having healthy employees who aren’t fatigued because they’ve been working non-stop for 10 hours can actually save them money, mostly by reducing the rate at which accidents occur, thereby reducing workers’ compensation expenses.

However, the law cannot accomplish these goals by micromanaging every little detail of how employers implement them. Doing so would be expensive, impractical, and would probably bury employers and employees in unnecessary bureaucracy.

So, how do I feel about the California Supreme Court’s ruling in this case? Honestly, I doubt it will change much for the vast majority of employees. The fact is, the majority of employers in California make a good-faith effort to comply with federal and state employment law, and probably took steps to ensure that their workers took the breaks to which they are legally-entitled.

And it’s important to note that if this ruling has a significant negative impact, with abuses taking place at a much higher rate than expected, the state legislature can always update the law to overrule the Supreme Court on this issue.

After all, in this case, the court was simply interpreting the law passed by the state legislature. If this ruling has unintended effects, or the legislature believes that the court made the wrong decision, they can simply change the law to make it clear that employers are, in fact, required to ensure that their employees actually take their breaks.

However, I doubt that this will prove necessary.

As I said, I think that most employers will not change their practices in response to this ruling.

As long as employers are clear that this ruling does absolutely nothing to compromise the rights of their employees to take breaks, and are certain to inform their employees that they have a right to take breaks, and do not try to stop them from doing so, things should be fine.

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Is There a Right to Use Marijuana for Religious Purposes?

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The current federal policy on marijuana is, to say the least, confusing. When President Obama took office, his Department of Justice said that it would not make prosecutions for the possession of marijuana a major priority, and that medical marijuana operations that are legal under state law will not be a target for federal prosecution.

Supporters of marijuana legalization or decriminalization were pretty excited, believing that, after years of federal crackdowns, a president was finally taking (in their view) a more sensible approach to marijuana.

However, over the last year or so, the federal government seems to have taken a harder line on marijuana. While there’s no question that the drug is illegal under federal law, and that federal law trumps state law (so the federal government can still prosecute people who use medical marijuana, even if they’re complying with the laws of their state), the federal government does have a good deal of discretion in deciding which cases it wants to prosecute, and under what circumstances to do so.

This controversy usually comes up in the context of medical marijuana. After all, there is mounting evidence that marijuana, while certainly not a cure-all, has a wide range of medical uses that are, at the very least, worth exploring. For example, it is one of the most powerful anti-nausea drugs known, which makes it a very effective treatment for some of the side effects of chemotherapy, greatly improving the quality of life for some cancer patients. And there is some evidence (though it’s far from conclusive) suggesting that it may even be able to prevent or treat some forms of cancer.

So, it’s not surprising that a lot of people get a little riled up when the federal government starts shutting down medical marijuana dispensaries.

However, there’s another non-recreational use of marijuana: religious rituals. Many indigenous religions treat marijuana as an entheogen (a substance that triggers what its user believes to be a religious experience), and use it ritualistically.

And as you probably know, the First Amendment enshrines the right of all Americans to freely exercise whatever religion they like.

So, a Native American group that uses marijuana for religious purposes should be exempt from laws against marijuana use, right? Not exactly. The Supreme Court has long ago held that laws of general application (i.e., laws that apply to everyone) that happen to place a burden on some religious practices are generally valid, though they do still warrant some scrutiny under the Constitution.

These generally-applicable laws are typically subject to “rational basis” review, meaning the government only needs to show that the law is related to a valid government interest. And whether you agree with them or not, most courts have held that preventing illegal drug use is definitely a valid governmental interest.

The Native American group sued the DEA in federal court after it seized a FedEx box containing marijuana, with a member of the group as its intended recipient. A federal district court dismissed the case. However, the 9th Circuit Court of Appeals just ruled that the case can continue. The appeals court is not handing the plaintiffs a victory – it’s just saying that their lawsuit should be allowed to proceed.

The court largely relied on the Religious Freedom Restoration Act, which requires federal courts to examine laws that burden religious practices under a more stringent “strict scrutiny” standard, requiring that the government prove that any law that substantially burdens religious practices be justified by a compelling government interest, and that the law is narrowly tailored to advance that interest.

The government argued that the religious group did not have a right to bring the lawsuit, because the Department of Justice had no plans to prosecute any of its members for transporting or using marijuana. In its ruling, the appeals court disagreed, holding that the threat of prosecution is not required to give the religious group standing to sue, because the government had already seized their marijuana, raising a legitimate issue over whether or not it had a right to do so.

The lower court will now have to rule on the merits of the case, deciding whether there is a constitutional and/or statutory right to use marijuana for religious purposes, laws generally prohibiting its use notwithstanding.

This is an interesting issue. Instinctively, I’m inclined to believe that there should be an exception to marijuana laws for religious use, since many different religions have used it in their rituals for thousands of years. However, this view is largely informed by my strong belief that marijuana should be decriminalized altogether.

Obviously, when the court is making its decision, the judge’s view on whether or not marijuana should be legal generally should not enter into his or her decision-making process. Of course, not being a judge, I have the luxury of letting my views on these issues be informed by whatever factors I see fit.

But taking a more detached view, I still don’t see why the First Amendment and the Religious Freedom Restoration Act wouldn’t protect the rights of people to use marijuana, or most other drugs that are otherwise illegal, for bona fide religious purposes, provided that the drugs are used in moderation, and possibly under the supervision of people who will remain sober, to ensure that the drug use poses absolutely no threat to anyone who is not directly involved in it (to make sure that nobody drives under the influence, for example). I don’t think the overall goals of anti-drug laws would be seriously impaired by carving out a narrow exception.

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Health Care Reform: On Life Support, But Not Dead Yet

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On March 28, the Supreme Court wrapped up 3 days of oral arguments in what might be its most important case in decades. It just heard a challenge brought against the Patient Protection and Affordable Care Act, also known as the healthcare reform law we’ve been hearing about nonstop for the last two years.

Now that we’ve gotten a small hint of what the justices think about the law, based on the questions they asked during arguments, what do we know? The only thing that’s completely certain is that we still don’t know how this is going to turn out. The court isn’t expected to rule on the case until sometime in June. But by all accounts, things didn’t go well for the Obama administration, which was defending the law.

The law’s opponents probably shouldn’t pop the champagne just yet. But its supporters might want to have some whiskey on hand, come June.

One analyst described the proceedings as a “train wreck” for the Obama administration. Justice Kennedy, widely considered the swing vote on which the healthcare reform will stand or fall, asked the government’s lawyer some very pointed questions which seemed to betray his skepticism of the law’s constitutionality.

Before I go any further, here’s a very brief recap of the issues: the stated goal of the Affordable Care Act (ACA) is to increase the number of Americans who have health insurance coverage. There are several means by which Congress could have gone about achieving this goal. The method it chose is a so-called “individual mandate.” Basically, the law, when and if (and after today, that looks like a really big “if”) it goes into effect, insurance companies will be prohibited from turning away customers because of pre-existing conditions. But if this rule were in place by itself, it would simply encourage people to hold off on buying health insurance until they actually get sick, at which point their treatments would be covered. Obviously, this would either cause premiums to skyrocket, or insurance companies to simply go out of business.

So, to get around this problem, the law also requires almost all Americans to obtain health insurance (either through their employer, a government program, or buying it directly), or pay a tax penalty each year. The idea is that this would bring a large number of young and healthy people onto the insurance rolls. These people are very profitable to insure, because, on average, they don’t sustain nearly as many medical expenses as other populations. These increased profits would, in theory, offset the added expense of ensuring people with pre-existing conditions.

And this so-called “individual mandate” is the central issue of the constitutional challenge to the law. Basically, under the constitution, the federal government is one of enumerated powers, meaning that it can only engage in activity which is expressly permitted by the Constitution, and forbidden from doing everything else. One of the powers granted to Congress in the constitution is the power to regulate interstate commerce. Over the years, the Supreme Court has read this to mean that Congress can pass laws regulating almost any activity that has some conceivable effect across state lines. Given the interconnected nature of a modern economy, this gives Congress the power to regulate almost anything. However, Congress has never before required individual Americans to buy a product or service, as the ACA does. Although the powers of Congress under the Commerce Clause are broad, everyone agrees that they are not unlimited. Opponents of the ACA are now arguing that this is where we should finally draw the line.

And at the end of the third day of oral arguments, it appeared that at least 4 Supreme Court justices agreed with the opponents of the law, plus Justice Kennedy appearing to lean in that direction. The 4 liberal-leaning justices appeared firmly in favor of letting the law stand.

However, all is not lost for supporters of the ACA. While things aren’t currently looking good for it, there’s still a chance that it will be upheld. In his questioning of the government’s lawyer, Justice Kennedy seemed to hint that he might be open to analyzing the mandate under a stricter standard of review than other federal regulations. It would remain to be seen whether or not the insurance mandate would meet that standard.

And assuming that the individual mandate is overturned, there’s another question: does that mean the rest of the 2,000+ page law is also invalidated? Many laws contain a “severability provision,” stating that, if any single part of the law is declared unconstitutional, the rest of the law should remain in effect. The ACA, however, does not contain such a provision. So, the question the court has to consider is whether or not Congress would have passed the rest of the law

It seems pretty clear that, if the mandate is overturned, the prohibition on discrimination against people with pre-existing conditions would have to go as well, since it simply isn’t viable without the mandate. As to the hundreds of other provisions in the law, there’s a good chance that they’ll stand.

In the end, however, this is just me reading the tea leaves. We’ll find out this law’s fate in June, and I’ll be sure to keep you updated.