Monday, April 11, 2011

Koran Burning...Should It Be Illegal?

Why is Pastor Terry Jones a name that we even recognize?  Unfortunately, it is for the same reason we know the name Pastor Fred Phelps.  I guess I will never understand people like these two.  They are supposed to be holy men, preaching God’s word, instead they spread the message of hate. 

This time in Pastor Jones’ case, the consequences meant life.  Late last month the Florida pastor and roughly 30 of his followers carried out their threats made last year to burn the Koran. And since then, over 20 people have been killed and many more injured in Afghanistan and Pakistan during riots protesting Jones’ actions. 

You may not have heard much about the incident because American news outlets chose not to cover the burning.  Many felt it was unnecessary to give Jones the satisfaction of the publicity, but then shortly after news spread around the world and now we are left with one question—should burning the Koran be illegal?

Senator Lindsey Graham suggests something of the sorts:

“You know I wish we could find some way to hold people accountable. Free speech is a great idea but we’re in a war. During World War II, you had limits on what you could say if it would inspire the enemy. So burning a Koran is a terrible thing. But it doesn’t justify killing someone. Burning a bible would be a terrible thing but it doesn’t justify murder. But having said that, any time we can push back here in America against actions like this that put our troops at risk we ought to do it.”

Senator Graham goes on to say that he looks forward to working with the other Senators to condemn this violence.  What if legislators were to create a law banning the burning of the Koran?

This brings up the issue of free speech and the First Amendment.  As we know content-based restrictions on First Amendment rights have to pass strict scrutiny.  So let’s test it.

1.     Compelling governmental interest?
2.     Narrowly tailored?
3.     Least restrictive means?

1.     Clearly there is a compelling governmental interest here.  President Obama, General Petraeus, and numerous other public figures have already spoken out against the Koran burning.  People believe that the incident could cause harm to American troops and others around the world.  They were correct that the incident would have some backlash.  Members of the UN were killed, however, to my knowledge, no American deaths have been reported yet, thankfully.  Still, there has been an anti-Western/anti-American response and so it seems that the government would have compelling interest to ban the Koran burning.
2.     It appears here that the issue that has outraged the Muslim people was the March 20th Koran burning.  If that specifically is the “speech” causing the violence than it seems reasonable to ban it, leaving the ban to seem to be narrowly tailored.  But this is where problems arise…

If we look closer at the events that have occurred and analyze them, we find an issue.  I’ve created a diagram:


Koran Burning


-->

Violence

-->

Ban Burning?

This just doesn’t make sense here.  An American burns the Koran, then Muslims murder people in response.  I see a correlation here but there is no causation.  The violence and rioting was an indirect response to what happened in Florida.  I don’t think lawmakers can restrict free speech for an indirect response.  What if we banned everything that caused unrest amongst Muslims?  It is not reasonable to do.  The logic behind the ban would open a door that Americans and any proponents of free speech do not want to open.  Therefore, I don’t believe the ban would be narrowly tailored.

Others have brought up the argument that it is similar to shouting fire in a crowded theater.  For arguments sake, we’ll look at the similarities and differences.

First some background…  This famous saying came from a decision that Justice Oliver Wendell Holmes Jr. wrote in the Schenck v. United States case.  He wrote the unanimous decision that states:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

The saying “clear and present danger” also came from the decision.  But as we learned in JOUR 411, in order for there to be a clear and present danger there needs to be causation, imminence, and seriousness.  We just saw how there is no causation between the burning and the danger, so that argument can be put to rest.

I think we all would like to see people like Terry Jones go away and never make the evening news again, but the fact of the matter is, no matter how terrible the speech is, it is still protected under the First Amendment.  Just like the desecration of the American flag, the “symbolic speech” made in both actions is not right, but it is legal, and it should stay that way.  We can’t compromise our fundamental freedoms because of the way people choose to react to something.  The Muslim people were provoked, it is true, but they were not forced to behave that way in their response.  So once again, we see a win for free speech—it’s just too bad it has to come at the expense of others.



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Tuesday, March 15, 2011

Schwarzenegger v. Entertainment Merchants Association


Frogger, 2Extreme, and Rugrats—the only video games I have ever owned.  I had them for my Play Station (PS1, that is) when I was a kid.  I am by no means considered a gamer, but I found this topic to be particularly interesting. 

In my opinion, kids should be out running and playing and scraping their knees, not in front of a TV trying to rack up kills playing Halo 3.  I played sports as a kid and read books and did my homework; I just never got into the whole video game phenomenon that is sweeping the nation. 

Still, I think the case of Schwarzenegger v. Entertainment Merchants Association is extremely fascinating.  If I were a parent, I wouldn’t want my kids playing violent video games at all.  But I would also like to think that I would have some handle on my household and I would be able to monitor how often my kids play video games and what kind of games they play.  But I know what kind of kid I was, and if my kids are anything like me, the whole parenting thing will be a challenge to say the least.

That is where, as a parent, I would love some help from the government.  But as a citizen I wouldn’t want any First Amendment free speech rights infringed upon.  Should law ban the sale of violent video games to minors?  If so, what First Amendment implications are there as a result? 

The first obvious question is what constitutes a violent video game?  That is a pretty hazy category so defining it is necessary to reaching a decision on this case.  The state of California is defining a violent video game as, “a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being…”4 

While that is a somewhat detailed definition, the better question is what effects does playing a game like that have on a minor?  During oral arguments Justice Scalia interjected asking the lawyer representing California if he wanted to ban Grimm’s Fairy Tales too?8  Justice Scalia goes on to ask why not regulate books, movies, TV shows, or other violent material in various forms.  The lawyer countered with “the interactive nature” argument saying they were given “substantial evidence” relating video game violence to real-world violent behavior.8 

This is a topic for an entirely different blog.  There are studies that lie on both sides of the fence on this issue.  Should the state of California prove there is a correlation between these games and violent behavior?  Or is the thought of the possibility enough?  For the Supreme Court to create an exception to the First Amendment, there needs to be convincing evidence—let’s take a look.

Focusing on the First Amendment implications, is this ban unconstitutional?  One of the few exceptions to the First Amendment is for sexual obscenity.  California argues that violence should be added in this category of exceptions. 

The state of California cited Ginsberg v. New York.  They argued that minors have different rights when it comes to free speech, as opposed to adults, so a more lenient test, “variable obscenity,” should be used rather than the traditional strict scrutiny.4 

The state argued that sexually explicit material and violence are categories that should be restricted to minors.  But sexually explicit material and violence are two different categories.  In Miller v. National Broadcasting Company, a case cited in oral arguments by the state8, the court limited the obscenity test (Miller Test) to sexual conduct.  Sex and violence are not that similar and I don’t think the courts should redefine obscenity.  So, in my opinion, the Ginsberg rationale does not apply in this case to violence. 

Next we would apply strict scrutiny:

1.     Compelling governmental interest?
2.     Narrowly tailored?
3.     Least restrictive means?

1.     There is a compelling governmental interest here: the safety of minors and society.  The well being of children. 
2.     However, the act is not narrowly tailored.  The broad and vague definition of violent, along with the vagueness of the act in its entirety, has demonstrated that it is not a narrowly tailored regulation.
3.     The state described their means as the “most effective” means, leaving other alternatives that are less restrictive like a campaign to educate parents on these games.

Clearly, the act doesn’t pass strict scrutiny, leaving it to be unconstitutional.  The research that the state relied on showed that there was a correlation between violence and video games, not causation.  Not every kid that plays Call of Duty is turning out to be a mass murderer, only the select few we hear about on the news.  Until there is conclusive evidence that shows causation, I don’t think any law of this kind will stand up in court. 

Other arguments have also been made that companies that sell these video games often time have their own corporate policy not to sell Mature rated games to minors.  If this is a widespread practice in businesses, I see the law to be useless.  Bottom line, parents should be the ones making these decisions.

I think the state would be imposing on parental rights by creating such a law.  Unfortunately there are parents out there that will be hands-off parents, allowing their children to run wild and do as they please.  But there are also the helicopter parents like mine that try to micromanage even with their grown children.  Either way, parents need to take responsibility for their kids.  After all, they are a reflection upon them.  I guess what I am trying to say is, raise your kid with a good moral compass and it won’t matter if they play a few violent video games. 

When I first heard about this case, my natural reaction was to side with the state of California.  I don’t like video games, I don’t play them, and I figured if I was a parent I would want a little help.  But after researching and hearing the different arguments I think the facts show that it is an invalid content-based regulation and the Supreme Court should not create another exception to the First Amendment based on violence.  It opens up the jar to many other violent media forms like books, movies, music etc. to be regulated.  We shouldn’t deprive people of their Constitutional right to free speech based on fear of influencing children.


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Monday, February 28, 2011

Snyder v. Phelps: A Case That Shouldn't Have Been


“America is Doomed”
“God Hates the USA”
“Thank God for 9/11”
“Pope in Hell”
“Fag Troops”
“Semper Fi Fags”
“Thank God for Dead Soldiers”
“Don't Pray for the USA”
“Thank God for IEDs”
“Priests Rape Boys”
“God Hates Fags”
“You're Going to Hell”
“God Hates You”

            I don’t even know where to begin.  The case of Snyder v. Phelps sickens me.  I am embarrassed to say that these repulsive signs were held in the hands of fellow Americans.  It is bad enough to say such terrible things in the first place but then put these signs at a funeral…a Marine’s funeral.  Lance Cpl. Matthew Snyder died in a Humvee accident in Iraq in 2006.2  Matthew Snyder gave his life so the members of the Westboro Baptist Church of Topeka, Kansas could protest at his funeral.  He died fighting for our country and instead of honoring him and thanking him for his dedication and service to our country, these people instead use such hateful words to disgrace his last hours on this earth. 

            As much as I hate it, I am still thankful for it.  Of course, I wish people would choose to exercise their freedoms in a more positive manner, but that is America.  And I love America.  I am grateful for the First Amendment, even if it may protect vile speech like the Phelps’.  The Westboro Baptist church is a small church headed by Reverend Fred Phelps and comprised of mainly the Reverend’s extended family.  The congregation traveled to Westminster, Maryland to protest at Snyder’s funeral.  The church travels around protesting military funerals because they believe the deaths are God’s way of punishing America for tolerating immoralities like homosexuality and abortion.3  I know, I think it is ludicrous too.

            Albert Snyder, Matthew’s father, sued the Phelps’ and their church and was awarded a five million dollar settlement.  The church appealed claiming First Amendment protection and won.  The appellate court overturned the decision and set aside the five million dollar judgment.  Snyder filed a writ of certiorari and Supreme Court hearings began October 13, 2010.  A decision is supposed to be handed down this spring.1  In today’s post I would like to look at the First Amendment implications of the speech in question. 

            Yes it is shocking and disturbing but is it protected?  Unfortunately, the appellate court decided so.  And I have to agree.  I am praying that the Supreme Court won’t agree, but I am not getting my hopes up.  Mr. Snyder filed suit under state tort law and when plaintiffs file for emotional, mental or reputational injury damages, the First Amendment is applicable.4  Two issues arose here: public figure versus private figure and factual statements versus opinion. 

It is clear that before this ordeal Mr. Snyder, nor his son, were public figures or public officials.  Mr. Snyder falls under the category of a private individual who was thrust into the spotlight as a result of the circumstances.  In Gertz v. Robert Welch Inc. the Court declined protection of speech that targeted private individuals.4 

Despite this, there are still limitations on the types of speech that is protected in tort cases.  Could a reasonable individual interpret the church’s signs to be strictly fact?  If the statements are taken to be factual then they need to be objectively verifiable.4  Clearly, these are not facts that can be confirmed.  The appellate court looked to Milkovich v. Lorain Journal Co. here.  In that case, it was decided that the First Amendment will protect statements that cannot reasonably be interpreted as stating facts about individuals.4

            From there, two further subcategories of speech that isn’t reasonably interpreted as factual are looked at: matters of public concern that can be debated and “rhetorical statements employing ‘loose, figurative, or hyperbolic language.’”4  Both are protected under the First Amendment. 

            Dunn and Bradstreet Inc. v. Greenmoss Builders Inc. set the precedent for the first subcategory.  The issues in the Phelps’ signs all relate to issues of public concern, like homosexuality, the military, the War in Iraq, religion, etc.  In order to allow uninhibited, wide-open and robust debate on issues of public concern, the First Amendment protects speech on such issues.  I must say I do support this idea.  I think debate is important and necessary to the evolution of our country.  Without strong opinions and willingness to debate, it’s possible many essential civil rights would still be denied to a large portion of our population. 

            The next category, “rhetorical statements employing ‘loose, figurative, or hyperbolic language” I am not as convinced with.  Again, it is clear that the Phelps’ signs did not state facts, but their exaggerated hyperbolic language was used to spark debate, or so it can be argued.  Therefore, the First Amendment protects it. 

            Unfortunately, these horrible and utterly distasteful signs are protected constitutionally.  However, I would like to take a closer look at a form of content-neutral regulations: time, place and manner restrictions in this case.  Time, place and manner restrictions must pass intermediate scrutiny, and in Snyder v. Phelps, I think it does.

            In order to pass intermediate scrutiny, there must be significant governmental interest.5  Protecting citizens in a time of bereavement is a legitimate concern that the government should have.  In my opinion, citizens should have the right to bury their loved ones in peace.  Even more so, military families, who already sacrifice so much, should especially be granted privacy after a death of a service member.  I see this as a significant and acceptable governmental interest. 

For precedent, I look to Frisby v. Schultz.  The Supreme Court upheld a city ordinance that created a “buffer zone” for homes of doctors that performed abortions.5  In a 6-3 decision the Supreme Court upheld this ban due to the significant governmental interest, and the other parts of intermediate scrutiny: a narrowly tailored and content-neutral ban but also ample alternative means for communication.8 

Like the doctors in the Frisby, families like the Snyders cannot advert their gaze from the hurtful signs or tune out the chants started from protesters.  That is why restricting groups like the Westboro Baptist Church, and all other groups for that matter, from picketing funerals is a narrowly tailored ban that satisfies the government’s interest.  It is not overly broad or burden more speech than necessary.  The government wants to ensure peaceful and private burial services, which are sacred and sad occasions, for it’s citizens and I see banning protesting as a narrowly tailored and content-neutral ban.  Even more so, there are countless ways to create debate about issues of public concern.  The Phelps’ and their church could advertise their message with numerous other channels. 
           
In the best interest of military families and civilians, I believe the local and state governments should create buffer zones for their residents.  I realize this may be a difficult task to accomplish, so I think even before that happens Congress should create legislation banning protesting at military funerals especially.  These men and women gave their life for our country and I firmly believe the least we can give back is ensuring families can properly bury their loved one.  I wouldn’t want another family to have to go through what Mr. Snyder went through:

“I[had] one chance to bury my son and they took the dignity away from it. I cannot re-
bury my son. And for the rest of my life, I will remember what they did to me and it has
tarnished the memory of my son's last hour on earth.”4

As for the Phelps’ and the Westboro Baptist Church, they should be ashamed of themselves.  They are a disgrace to Americans.  I find it absolutely appalling that they would use a military funeral as an outlet for their political and social debates.  I am also thoroughly sickened to see children holding those terrible signs.  It is a sad day to see parents teaching their kids to hate instead of love.  As a future lawyer and hopefully judge, I firmly stand by the constitutional rights that each and every one of us was born with.  But as a citizen and a human being I believe we should use good judgment in exercising our rights.  And let’s remember the men and women that risk their lives everyday for us to have those rights and please let’s give them the respect they deserve.

If the Phelps family and the members of the Westboro Baptist Church truly believe what they write on their signs, I have one piece of advice: LEAVE—AND TAKE YOUR SIGNS WITH YOU!!!

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Tuesday, February 8, 2011

Don't Ask, Don't Tell Unconstitutional?

            On December 22, 2010 our country got the best Christmas gift we ever could have asked for.  President Obama signed into law the repeal of Don’t Ask Don’t Tell.  Before he signed the bill Obama told gays and lesbians, “Your country needs you, your country wants you, we will be honored to welcome you into the ranks.”1  This moment wasn’t just a win for the over 14,000 gay and lesbian service members who were discharged under the law2, it wasn’t just a win for the LGBT community, this was a triumph for our entire country.  This takes our great nation one step closer to equality, the very principle our country was founded on. 

            Despite the success, controversy still surrounds the Don’t Ask Don’t Tell Law.  In an interview with Visiting Assistant Professor at the University of Illinois College of Law Dara Purvis, I asked Professor Purvis how a law that is considered unconstitutional could stand for so long. 
“In the realm of unconstitutional laws, this isn’t that old.  This isn’t even 20 years old.  Don’t Ask, Don’t Tell was passed in 1993 and at the time it was considered a compromise liberal move.  We certainly have found a lot of laws, that have lasted a lot longer than that, unconsitutional.”6  
I found that to be shocking.  As a future lawyer and hopefully JAG officer, this topic struck my interest.  In this post I’d like to take a closer look at the constitutional implications of the law.

            Don’t Ask Don’t Tell was never ruled on by the Supreme Court, however lower federal courts have ruled on the constitutionality of the law on a few different occasions.  For so many years, the lower federal appellate courts stood by DADT3.  But in recent years that has changed.  On September 9, 2010 Judge Virginia Phillips of California decided that DADT violated the First and Fifth Amendments, issuing an injunction barring the enforcement of the law4.  Although a stay was later issued on the injunction, this verdict was considered a major step in the repeal process. 

            In her 86-page decision, Judge Phillips detailed her opinion in Log Cabin Republicans v. Gates.  The Log Cabin Republicans believed that DADT violated the due process clause of the Fifth Amendment.  Judge Phillips used the heightened scrutiny test used in Witt v. Department of Air Force as the standard for review: DADT needed to “[1] advance an important governmental interest, [2] the intrusion must significantly further that interest, and [3] the intrusion must be necessary to further that interest.”4 (Emphasis added.)  Due to unit cohesion and military readiness, Judge Phillips noted that DADT satisfied the first standard.  As for the second and third standard, Judge Phillips found that the law does not “significantly further” the government’s interest in military readiness and unit cohesion.  She states, “In fact, Defendants have admitted that, far from being necessary to further significantly the Government's interest in military readiness, the Don't Ask, Don't Tell Act actually undermines that interest.”  She goes on to quote President Obama, the Commander in Chief of the Armed Forces.4  Judge Phillips concludes that the Defendants do not satisfy their burden of the Witt standard and therefore, violates the due process clause of the Fifth Amendment. 

            During the trial, the Log Cabin Republicans contended that DADT was a content-based regulation, violating the First Amendment.  The DADT act states that service members will be discharged if the service member “has stated that he or she is a homosexual or bisexual, or words to that effect…” (10 U.S.C. § 654).  In her decision, Judge Phillips goes on to compare homosexual and heterosexual standards: “Heterosexual members are free to state their sexual orientation, "or words to that effect," while gay and lesbian members of the military are not. Thus, on its face, the Act discriminates based on the content of the speech being regulated.”4  This to me is a clear content-based regulation.  How can it be that some service members are allowed to discuss their sexuality, but others cannot? 

Kathryn Ward in the Georgetown Journal of Gender and the Law discusses the First Amendment and content-based regulation.  Ward explains that the restriction is reviewed with strict scrutiny: it must have a compelling governmental interest, it must be narrowly tailored and it must be the least restrictive means possible.5  The First Amendment protects the government from regulating discussion on particular viewpoints and topics as a whole.  The government also cannot restrict specific messages, ideas, subject matter and contents.  In Don’t Ask Don’t Tell, that is clearly what is occurring.  While some service members can discuss their sexuality, others cannot.  Any discussion about homosexuality and homosexual activity is exclusively banned.

Based on testimony and research, Judge Phillips found that the Act’s restriction was too broad and hinders military readiness instead of helping it.  It is clear to me that the law is not narrowly tailored.  Service members were not allowed to discuss their homosexuality at any time, at any place with their colleagues, leaving DADT to be too broad of a restriction.  Furthermore, the act hurts military readiness and unit cohesion, not helps it.  How can service members trust each other if they think their colleagues are lying to them?  DADT undermines military readiness and definitely does not “significantly further” the government’s interest.  Judge Phillips decided: “For these reasons, Plaintiff is also entitled to judgment on behalf of its members on its claim for violation of the First Amendment’s guarantees of freedom of speech and petition.”4

            I have to agree with Judge Phillips.  After reading nearly every page of her opinion, it is clear to me that Don’t Ask Don’t Tell is unconstitutional, violating the First and Fifth Amendment.  Even though I believe in equality for everyone, that is not the only reason I agree here.  If everyone would put aside their personal, religious and outside beliefs and look at the facts here, it becomes understandable that DADT violates our rights stated in the Constitution.  For that reason, I believe Congress made the right decision to repeal the discriminatory Don’t Ask Don’t Tell law. 

Primary Sources:
6Interview I conducted with Professor Dara Purvis of the College of Law

Other Sources:
·      http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html


Below is a story I did in the midst of the DADT controversy last semester:




People interviewed included Nate May, former Army Sgt. and Dara Purvis, University of Illinois Law Professor.

Wednesday, February 2, 2011

Hello!

This is my new blog for Professor Helle's Independent Study on First Amendment Study!

I'll post soon!

-Toni