Tag Archives: first amendment

WiGWAG

Arrested naked violinist sues, alleging excessive force

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A Hillsboro, Oregon, man arrested after playing a violin while naked outside the federal courthouse in Portland, Oregon, last year is suing police.

The Oregonian reports that 25-year-old Matthew T. Mglej claims authorities used excessive force and violated his First Amendment rights. He named the Multnomah County Sheriff’s Office and Portland Police Bureau as defendants in a lawsuit filed last week, and he’s seeking $1.1 million in damages.

Police showed up after receiving complaints about the demonstration, during which the man played violin, meditated and quoted former Iranian President Mahmoud Ahmadinejad. They said they arrested him for indecent exposure and carried him to a patrol car when he refused to walk.

Mglej claims jail deputies cut his wrists by jerking on his handcuffs and called him names when he cried from the pain and for his service dog.

He has a hearing on the indecent exposure charge next month.

Editorials, Views & Opinions

Editorial: The realities of free speech

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The horrific massacre of journalists in Paris on Jan. 7 demonstrates what happens when the freedoms of speech and religion collide with extremism. The French collision involved Muslim radicals, but, here in the United States, we have a growing movement of right-wing extremists who need to understand the First Amendment guarantees provided by the Constitution’s Bill of Rights. 

The First Amendment does not guarantee unfettered rights to either the freedom of speech or religion. It simply prohibits the government from interfering with the lawful exercise of those freedoms.

Over the holidays, we ran an outside writer’s opinion piece at www.wisconsingazette.com that called for overturning the Second Amendment. Almost immediately, we received hundreds of shocking, profanity-laced comments threatening violence against the author and us. Many commenters attempted to publish the author’s address and phone number. Some called for his murder.

When we deleted dozens of those comments, we were accused of violating the responders’ rights to free speech. Nowhere does the Constitution say that any publication is obligated to publish content that it finds offensive, and a government that forced us to do so would be in violation of our freedom of the press. 

In this issue of WiG, we have a story (page 12) about an anti-gay student at Marquette University who claims that his free speech was violated when the teaching assistant of an ethics class refused his request to initiate a class discussion about the immorality of same-sex marriage. 

The First Amendment does not permit students to hijack classrooms and turn them into forums for their controversial religious views. Just because the government does not prevent individuals from speaking their thoughts does not mean that everyone else has to publish them, give them a soapbox or even listen to them.

Similarly, the First Amendment’s guarantee of free religion does not mean that everyone is obligated to bow to everyone else’s religious views. In fact, it means the opposite.

As marriage equality gradually becomes the law of the land, we see county clerks refusing to issue marriage licenses to same-sex couples — all in the name of “freedom of religion.”

But in conferring on individuals the right to practice any religion they choose, the Constitution does not say they can silence or discriminate against people who hold different beliefs. In fact, it would be impossible to guarantee religious freedom if this were the case, because the dominant religion could seek to prevent citizens from practicing other faiths. 

We find it absurd that prohibiting people from engaging in same-sex relationships is the underpinning of a major spiritual belief system. But for a large portion of fundamentalist Christians, condemning other people’s sexual practices is at the core of their faith, and we believe they are entitled by the Constitution to hold that view. They are not entitled, however, to discriminate against fellow citizens whose religions teach otherwise or against people who practice no religion and don’t care how LGBT people conduct their personal lives. 

The jihadists who gunned down 12 people at the offices of the newspaper Charlie Hebdo in Paris believed that they were exercising their religion. The paper had repeatedly mocked Islam, and fundamentalist Muslims hold that blasphemy is punishable by death — just as the Roman Catholic Church held for centuries. America’s fundamentalist Christians, some of whom have advocated successfully for making homosexuality a capital crime in other countries, should take a long look in the mirror and think about this incident. So should gun activists who call for Second Amendment critics to be put to death simply for speaking their minds.

While Fox News is using the massacre in France to call for a denunciation of Islam, we are more concerned about the followers of Fox News. They must learn where their rights end and the rights of others begin. 

News, Wisconsin

Wisconsin ‘revenge porn’ case headed to trial this week

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One of the first so-called “revenge porn” cases in Wisconsin is heading to trial this week.

The trial for Keslin Jean Jacques, a Milwaukee man who posted nude and seminude photos of his ex-girlfriend on the Internet after a breakup, is scheduled to begin Wednesday. Jean Jacques, 31, was charged in April for publishing a sexually explicit image without consent

The trial was delayed while experts worked out legal instructions for such cases, which are very new.

It was one of the first such cases to be prosecuted in Wisconsin after Gov. Scott Walker signed a new law in April banning the practice, joining more than a dozen other states with similar laws on the books. California was the first state to ban revenge porn in 2013. Prosecutors there won their first conviction under that law last month.

Illinois Gov. Pat Quinn recently signed a bill making the practice a felony. Some states that passed restrictions have run into First Amendment concerns.

“Revenge porn” is a term used to describe a situation in which someone posts intimate photos or videos of a former significant other, often with contact information, after a breakup.

Wisconsin’s law specifically prohibits “private representation” without the express consent of the person photographed. The law covers nude and partially-nude images intended to be viewed or possessed only by the subjects involved.

Jean Jacques taunted his ex-girlfriend, saying she couldn’t stop him from posting the photos because the governor hadn’t yet signed the bill. But Walker had signed it 12 days earlier.

If convicted, Jean Jacques faces up to nine months in jail and a $10,000 fine.

National, News, Regional

Indiana school denies gay-straight club, ACLU sues

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The American Civil Liberties Union and the ACLU of Indiana filed a lawsuit on Dec. 23 on behalf of three students at Indiana’s North Putnam High School who have been denied the right to form a Gay-Straight Alliance club during non-instructional time at school.

The ACLU says the school’s denial violates U.S. law and the U.S. Constitution.

The gay-straight alliances — there are many in schools across the country — are student-run extracurricular clubs that bring together lesbian, gay, bisexual, transgender and allied students to support each other and promote respect and equality. LGBT students at the North Putnam school have frequently been harassed and wanted to form the GSA to provide a place to educate the community and support vulnerable students.

The school, which allows other non-school-sponsored clubs and activities to meet, such as the Fellowship of Christian Athletes, Key Club and Best Buddies, has denied recognition of the GSA club for more than a year. The students followed all the school’s required procedures outlined in its student handbook to establish the club, including securing a faculty member to supervise the group, according to the ACLU.

On Nov. 20, after a year of stalling, the North Putnam School Board voted to bar the club from forming, despite the fact that other clubs are not made to pass a school board vote.

The ACLU maintains that the school’s denial of the GSA club violates students’ First Amendment rights and the federal Equal Access Act. The students are seeking to have their application for the club approved and to allow it all rights similar to those of other extracurricular clubs.

“The law is clear in this matter,” said Ken Falk, legal director at the ACLU of Indiana. “There is no excuse for the school district’s intransigence, which is causing real harm to its students.”

The ACLU of Indiana was successful in reversing a similar decision by a school in the town of Munster in July.

“The actions of the school district in clear violation of federal law leave the most vulnerable students at North Putnam without critically needed support,” said Chase Strangio, attorney in the ACLU Lesbian, Gay, Bisexual and Transgender Project.

The case, Gay-Straight Alliance at North Putnam High School, et al. v. North Putnam Community School Corporation, was filed on Dec. 23, in the U.S. District Court for the Southern District of Indiana, Terre Haute Division.

National, News

Supreme Court to review Confederate flag on license plates

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The Supreme Court is taking on a free speech case over a proposed license plate in Texas that would feature the Confederate battle flag.

The case involves the government’s ability to choose among the political messages it allows drivers to display on state-issued license plates.

The justices said they will review a lower court ruling in favor of the Texas Division of the Sons of Confederate Veterans. The group is seeking a specialty plate with its logo bearing the battle flag, similar to plates issued by several other states that were part of the Confederacy.

The case will be argued in March.

A state motor vehicle board rejected the application because of concerns the Confederate flag would offend many Texans who believe the flag is a racially charged symbol of repression. But a panel of federal appeals court judges ruled that the board’s decision violated the group’s First Amendment rights.

Texas offers more than 350 specialty plates, the group said in its court filing. They include plates that say “Choose Life,” “God Bless Texas,” “Fight Terrorism,” as well as others in support of Boy Scouts, Mothers Against Drunk Driving, blood donations, pro sports teams and colleges. 

The state said in its Supreme Court appeal that the decision to reject the Sons of Confederate Veterans’ license plate was not discrimination because the motor vehicle board had not approved a license plate expressing any view about the Confederacy or the battle flag.

Other federal appeals courts have come to differing conclusions on the issue, the state said.

A separate issue concerns whether state-issued licensed plates amount to government speech. The First Amendment applies when governments try to regulate the speech of others, but not when governments are doing the talking.

The court did not act on a second, similar appeal from North Carolina. That case centers on a court ruling blocking the use of the “Choose Life” plate in North Carolina because the state refused also to issue a specialty plate in favor of abortion rights.

The Texas case is Walker v. Texas Division, Sons of Confederate Veterans, 14-144.

Views & Opinions

There’s got to be a better way

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As election campaigns reach a fever pitch, voter disgust with political ads and campaign spending is soaring. Since the U.S. Supreme Court lifted restrictions on the amount of money private individuals and corporations can funnel through interest groups to influence elections, billions will be spent to buy our government and dictate its priorities this year and in the presidential election of 2016.

The justices who made the Citizens United decision in 2010 said that First Amendment free speech rights trumped concerns about political corruption, which courts could deal with on an individual basis. They evinced little consciousness or care about financial inequality in the United States, assuming a level playing field that would be fair to all interest groups. That’s hardly the case.

The media plays a problematic role too. There are few critiques of the system in the mainstream media, which profit enormously from political ads and which, as large corporate entities, lobby for their own interests. 

For instance, the Federal Communications Commission is set to issue new regulations that may limit “net neutrality,” which currently allows everyone equal access to all content on the Internet. Comcast and Verizon are among the companies wanting to impose controls and squeeze more profits from Internet users. 

It is beyond ironic that corporations that exist and thrive because of the First Amendment have commodified and centralized communication to the extent that they can limit or deny free speech rights to others. 

Besides the glut of political spending and ads, voters have to endure months-long, even years-long campaigns (for president) that often end in fatigue and disillusion. 

There are better ways. Many countries run more efficient and thrifty campaigns. France is one example. France limits campaign spending to just 20 million euros (about $25 million) in its presidential campaigns, with 50 percent of that provided through public funding. Primary and general elections are held within one month. TV ads are forbidden but candidates are given time to speak and debate on public TV. All French citizens are automatically registered to vote at age 18 and elections are held on weekends.

The result of these enlightened regulations in France included voter turnout of 81 percent in the 2012 presidential election, compared to 57 percent in the United States. Unlike the rigid two-party system in the United States, France boasts a vibrant multi-party system which offers real policy alternatives and requires coalition and compromise. The current president Francois Hollande represents the center-left Socialist Party but other parties include the Union for a Popular Movement (center-right), National Front (far-right), Democratic Movement (center), Green Party (left-environmentalist) and Communist (far-left).

It’s unlikely we’d ever emulate the French and hard to see how our entrenched system of exhausting campaigns and obscene expenditures will change. We’re Americans, after all, famed for doing things Big and Dumb. 

In more immediate terms, the U.S. Supreme Court’s stay of Wisconsin’s restrictive voter ID law was a good sign that the law will be carefully reconsidered. Although it offers a reprieve for the November election, the decision means that education and registration efforts should proceed in the event voter ID is sustained.

Mary Burke came off well in the gubernatorial debate with Scott Walker. Her TV ads are rather bland, so I liked seeing that she was sharp and even punchy. Attorney General candidate Susan Happ is beyond punchy; she kicks ass! 

I’m weary of the system, but I look forward to voting for these dynamic women who promise new leadership to Wisconsin.

Viral

Conservatives on appeals court uphold Fla. law banning doctors from talking to patients about gun safety

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A Florida law restricting what doctors can tell patients about gun ownership was ruled constitutional on July 25 by a federal appeals court, which said it legitimately regulates professional conduct and doesn’t violate the doctors’ First Amendment free speech rights.

The ruling by the 11th U.S. Circuit Court of Appeals in Atlanta overturned a previous decision that had declared the law unconstitutional. An injunction blocking enforcement of the law is still in effect, however.

The 2011 law, which had become popularly known as “Docs vs. Glocks,” was challenged by organizations representing 11,000 state health providers, including the Florida chapters of the American Academy of Pediatrics and the American Academy of Family Physicians

Doctors who break the could lose their licenses.

By a 2-1 decision, the appeals court upheld the law as a protection of patient privacy rights and said that the limits imposed by it were “incidental.”

“The act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care,” states the opinion written by U.S. Circuit Judge Gerald Tjoflat, who was appointed by Gerald Ford. District Judge L. Scott Coogler, who was appointed by George W. Bush, joined his opinion.

 In a lengthy dissent, U.S. Circuit Judge Charles Wilson, who was appointed by Bill Clinton, called the law an infringement of First Amendment rights.

“The act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic, and one topic only, firearms,” Wilson wrote. “Regardless of whether we agreed with the message conveyed by doctors to patients about firearms, I think it is perfectly clear that doctors have a First Amendment right to convey that message.”

Florida’s Republican-controlled Legislature adopted the Firearm Owners’ Privacy Act after an Ocala couple complained that a doctor had asked them about guns. The couple said they refused to answer and the physician refused to see them again.

The measure signed into law by Gov. Rick Scott prohibited doctors from asking patients about gun ownership or recording that information in medical records unless it was medically necessary.

Marion Hammer, a National Rifle Association lobbyist in Florida and former president of the national organization, said that the judges “nailed it” and understood the intent of the legislation that was pushed by the NRA.

“The intent is to protect the privacy of firearms owners and to stop the political interrogation of gun owners and the children of gun owners when they seek medical care,” Hammer said in an email.

A main attorney who filed the appeal said the decision would cause Florida physicians to curb their own speech on safe gun ownership.

“We strongly disagree with the panel majority’s holding that Florida doctors have no First Amendment right to ask patients about potential dangers in their lives, including the presence of guns in the home,” Douglas H. Hallward-Driemeier said in an emailed statement.

The ruling, if it stands, “will prevent patients from receiving critical truthful information that protects not only themselves but their families and others,” he said.

He said he and his clients would decide their next legal move.

In 2012, U.S. District Judge Marcia Cooke declared the legislation unconstitutional as an impermissible restriction on free speech. She also blocked the state from enforcing the law. Hallward-Driemeier said that the injunction remains in place until any request for a rehearing before the appeals court is resolved.

Howard Simon, executive director of the ACLU of Florida, was surprised with Friday’s ruling. Simon’s organization had filed legal briefs in support of the legal challenge.

“We are astounded that a court would allow the legislature to override the free speech rights of doctors and medical personnel,” Simon said in a statement. “It’s a sad day when judges tell doctors what is in the best interest of their patients.”

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ACLU sues after Indy police tell woman to remove bumper sticker

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The American Civil Liberties Union of Indiana has filed a lawsuit on behalf of a woman who was pulled over and interrogated after her bumper sticker caught the attention of Indianapolis police officers. The ACLU alleges a violation of the woman’s First Amendment and Fourth Amendment rights.

The complaint says that on June 17, Pamela Konchinsky of Indianapolis was turning into the Merchants Garage on South Meridian Street in her silver Toyota minivan when two Indianapolis Metropolitan Police officers entered the garage behind her. One of the officers told Konchinsky that she was being detained because of a bumper sticker taped to the rear window of her minivan, which read: “Unmarked Police Car.” The officer told Konchinsky that people would think she was impersonating a police officer and that someone might shoot her.

After reviewing her license and registration, Konchinsky was ordered to get out of her car and remove the bumper sticker.

The ACLU said the officers’ subjected Konchinsky to detention, questioning, intimidation and harassment over the message on her bumper sticker and that violates two constitutional amendments:

• The First Amendment protecting free expression.

• The Fourth Amendment prohibiting unreasonable and suspicionless seizures.

“We contend that the police officers who detained and interrogated our client without legal grounds to do so violated her constitutional rights,” said ACLU of Indiana staff attorney Kelly Eskew in a news release. “The promise of our Constitution is that these lines cannot be crossed.”

The lawsuit, Pamela Konchinsky v. Indianapolis Metropolitan Police Department Officers John Doe I and John Doe II, was filed in the U.S. District Court for the Southern District of Indiana.

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Supreme Court knocks down buffer zone at abortion clinics in Massachusetts

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The U.S. Supreme Court on June 26 struck down a 35-foot protest-free zone outside abortion clinics in Massachusetts.

The justices were unanimous in that ban on protests violates the First Amendment.

Chief Justice John Roberts wrote the opinion, which said there are other ways to deal with protests outside Planned Parenthood centers in Boston, where the case originated.

Roberts wrote that banning protests within 35 feet from clinics throughout the state to deal with a problem at one clinic on one day a week is “hardly a narrowly tailored solution.”

Roberts and four liberal justices struck down the ban on narrow grounds. Justice Antonin Scalia wrote a separate opinion that was critical of the Court’s practice of “giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.”

Proponents of the buffer zone have argued that it is necessary to protect the safety of patients and staff. In 1994, a man shot and killed two receptionists and wounded five others at a clinic in Brookline, Massachusetts.

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Dairy group wants to defend Idaho ‘ag gag’ law against filming animal abuse

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The Idaho Dairymen’s Association is asking a federal judge to allow the industry group to intervene in a lawsuit against a new law that makes it illegal to secretly film animal abuse at agricultural facilities.

The dairymen’s association filed a motion to join Idaho Gov. C.L. “Butch” Otter and Idaho Attorney General Lawrence Wasden as a defendant in the lawsuit.

A coalition of animal activists, civil rights groups and media organizations sued the state last month, asking U.S. District Judge B. Lynn Winmill to strike down what they call an “ag gag” law. The coalition contends that the law criminalizes whistleblowing by curtailing freedom of speech, and that it makes gathering proof of animal abuse a crime with a harsher punishment than the penalty for animal cruelty itself.

Proponents of the law say it prevents animal rights groups from targeting agricultural businesses, and that it protects the private property and privacy rights of agricultural operators.

In the motion to intervene, attorney Daniel Steenson said the association’s members could be substantially affected by the results of the lawsuit, and so the association has the right to intervene.

“The Complaint makes clear that, without the protection the statute provides, IDA members will again be targeted for clandestine infiltration by individuals masquerading as employees to gather evidence to be used against them in criminal prosecutions, media persecutions, and economic sabotage,” Steenson wrote.

The Idaho Legislature passed the law earlier this year after Idaho’s $2.5 billion dairy industry complained that videos showing cows being abused at a southern Idaho dairy hurt business.

The Los Angeles-based animal rights group Mercy For Animals released the videos, which showed workers at Bettencourt Dairy beating cows in 2012. 

The law says people caught surreptitiously filming agricultural operations face up to a year in jail and a $5,000 fine.

By comparison, a first animal cruelty offense is punishable by up to six months in jail and a fine of up to $5,000. A second offense within 10 years of the first conviction carries a penalty of up to nine months in jail and a fine up to $7,000.

The groups bringing the lawsuit are the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, the American Civil Liberties Union of Idaho, the Center for Food Safety, Farm Sanctuary, River’s Wish Animal Sanctuary, Western Watersheds Project, Sandpoint Vegetarians, Idaho Concerned Area Residents for the Environment, Idaho Hispanic Caucus Institute for Research and Education, CounterPunch, Farm Forward, Will Potter, James McWilliams, Monte Hickman, Blair Koch and Daniel Hauff.

On the Web…

The Mercy for Animals video on YouTube. Caution, it is very difficult to watch.