First Amendment Provides No Academic Freedom for Public School Teachers--Sixth Circuit

Courthouse News Service has this account of a recent Sixth Circuit U.S. Court of Appeals decision holding that the firing of a Cincinnati-area teacher for assigning controversial book titles: Siddhartha, Fahrenheit 451, Heather Has Two Mommies, etc.,  in her class, did not contravene the doctrine of "Academic Freedom" under the First Amendment to the U.S. Constitution.  Here's the story:

"An English teacher who lost her job at an Ohio public high school after assigning books that the school board found offensive, including Hermann Hesse's Siddhartha, does not have a First Amendment claim, the 6th Circuit ruled.   The appellate panel in Cincinnati upheld a lower court's ruling for the Tipp City Exempted Village School District, writing that the right to free speech 'does not extend to the in-class speech of teachers in primary and secondary schools made 'pursuant to' their official duties.'

Teacher Shelley Evans-Marshall can speak and write publicly about academic issues outside the classroom, but her curricular choices come under the school board's oversight, Judge Jeffrey Sutton wrote for the three-judge panel.

After receiving positive performance reviews in her first year at Tippecanoe High School, Evans-Marshall came under scrutiny in 2001 when she assigned Ray Bradbury's Fahrenheit 451 and Hesse's Siddhartha to her ninth-grade class.  She asked her class to explore the government censorship theme of  Fahrenheit 451  by doing presentations on books that are frequently censored by schools and libraries.

A parent complained that some students had opted to present Heather Has Two Mommies by Leslea Newman, and the school principal, co-defendant Charles Wray, asked Evans-Marshall to have the students choose a different book.  Parents also objected to the explicit language and sexual themes of  Siddhartha.  About 100 parents attended the October school board meeting to question Evans-Marshall's teaching methods and materials, and they submitted a 500-signature petition calling for 'decency and excellence' in the classroom.

School officials grew more concerned they read writing samples from students in Evans-Marshall's creative writing class, including a first-hand account of a rape and a story about a young boy who murdered a priest and desecrated a church.  In the spring, Wray gave Evans-Marshall a critical performance evaluation, and the school board voted against renewing Evans-Marshall's contract. Evans-Marshall sued the school board, Wray and superintendent John Zigler, claiming they had retaliated against her 'curricular and pedagogical choices' and tried to restrict her First Amendment right 'to select books and methods of instruction for use in the classroom without interference from public officials.'

A federal judge ruled against Evans-Marshall, saying she failed to prove that her teaching methods led to her dismissal.

The federal appeals court affirmed, but on different grounds.  The judges said Evans-Marshall 'has shown that her teaching choices caused the school board to fire her,' but she failed to clear the hurdle in the Supreme Court's 2006 ruling in Garcetti v. Ceballos, which states that when government employees speak 'pursuant to their official duties,' they are 'not speaking as citizens for First Amendment purposes.'

"In the light cast by Garcetti, it is clear that the First Amendment does not generally 'insulate' Evans-Marshall 'from employer discipline,' even discipline prompted by her curricular and pedagogical choices and even if it otherwise appears (at least on summary judgment) that the school administrators treated her shabbily,' Sutton wrote, quoting Garcetti.
'And if it is the school board that hires that speech, it can surely 'regulate the content of what is or is not expressed,' what is expressed in other words on its behalf,' the ruling states. 'Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom.'
The appellate court said Evans-Marshall was representing the school as a teacher, and the board is in charge of the school's curriculum under Ohio state law.

'This is an accountability measure, pure and simple, one that ensures the citizens of a community have a say over a matter of considerable importance to many of them - their children's education - by giving them control over membership on the board,' Sutton wrote.

'Every child in Ohio must attend school, providing public school teachers with a captive audience for their in-class speech, and providing a compelling reason for putting curricular choices in the hands of 'someone [they] can vote out of office,' or who is otherwise democratically accountable.'

If Evans-Marshall's speech is protected in the classroom, the judges wrote, the same principle would support the principal's objections to Evans-Marshall's teaching methods.   'Permitting federal courts to distinguish classroom vulgarities from lyrics or to pick sides on how to teach Siddhartha not only is a recipe for disenfranchising the 9,000 or so members of the Tipp City community but also tests judicial competence,' Sutton wrote.

The 6th Circuit also ruled that the 'academic freedom' concept does not protect curricular speech at the high-school level, because the notion was conceived and applied in universities to protect teachers who are also researchers or scholars."
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Link to opinion.

Boy things have changed in schools since I was a kid.  Instead of the Tipp City parents going off about the literary choices of the teacher they might be better served looking at what their kids are looking at and posting on Facebook and their cell phones.   Censorship in River City is alive and well. 

The problem for this poor academic will be trying to find future employment--all because she believed in a constitutional ideal.  Sad.

Zombies Settle Suit

The Minneapolis Star Tribune is reporting on the Minneapolis City Council's  decision to settle the First Amendment lawsuit of locals dressed as Zombies who sued over their 2006 arrests in downtown while protesting mindless consumerism.  This is reporter Randy Furst's account:

"The Minneapolis city attorney's office has decided to pay seven zombies and their attorney $165,000. The payout, approved by the City Council on Friday, settles a federal lawsuit the seven filed after they were arrested and jailed for two days for dressing up like zombies in downtown Minneapolis on July 22, 2006, to protest 'mindless'consumerism.

When arrested at the intersection of Hennepin Avenue and 6th Street N., most of them had thick white powder and fake blood on their faces and dark makeup around their eyes. They were walking in a stiff, lurching fashion and carrying four bags of sound equipment to amplify music from an iPod when they were arrested by police who said they were carrying equipment that simulated 'weapons of mass destruction.'

However, they were never charged with any crime.

Although U.S. District Judge Joan Ericksen had dismissed the zombies' lawsuit, it was resurrected in February by a three-judge panel of the Eighth U.S. Circuit Court of Appeals, which concluded that police lacked probable cause to arrest the seven, a decision setting the stage for a federal trial this fall. The settlement means there will be no trial.

'I feel great that the city is being held accountable for the actions of their police,' said Raphi Rechitsky, 27, of Minneapolis, one of the seven zombies, who said he and his friends were performing street theater when they were arrested. He is a Ph.D. candidate in sociology at the University of Minnesota.

Minneapolis City Attorney Susan L. Segal said it was in the best interests of the city to settle. 'We believe the police acted reasonably, but you never know what a jury is going to do with a case,' she said. If a jury had concluded that the seven plaintiffs' constitutional rights had been violated and awarded $50,000 to each, plus defense attorney's fees, 'it could have been quite substantial,' Segal said."
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I don't know, I don't think of Minneapolis as a place of intolerance.  What prompts law enforcement to make arrests like the arrests made in this case?  Stupidity?

Free Speech Can Come Down to Inches

The great Portland Court Reporter, Aimee Green at the Oregonian has this report of Free Speech adjudged by intent not mere inches:

"A judge has acquitted two anti-fur protesters of accusations they violated a restraining order by standing 4 inches too close to the owner of Nicholas Ungar Furs in downtown Portland.  Portland police and prosecutors had alleged that protesters Justin Kay and Jeffrey Wirth were approximately 49 feet, 8 inches away from fur merchant Horst Grimm when a restraining order stated the two protesters must stay at least 50 feet away.
Share In a trial that ended Wednesday, Multnomah County Circuit Judge Maureen McKnight listened to several hours of testimony and argument about the accuracy of protesters who used a measuring tape versus the accuracy of a police officer who used a laser-measuring device.

Kay, 21, and Wirth, 25, said they and other protesters used a measuring tape to mark off 50 feet of distance from the store's front door, which Grimm would use to leave the building. To be sure they didn't violate the restraining order, they always stood back at least a few feet to provide a buffer, they said.

But Kai Grimm, Horst's son, who also works at the store, believed the men were too close. He snapped a photo of protesters next to a light pole at Southwest 12th Avenue and Yamhill Street, and told police he'd spotted Kay and Wirth there on Nov. 18. The next day, police Officer David Sessum measured the light pole at about 4 inches shy of 50 feet from the front door of Ungar Furs.

Sessum testified that as he stood next to the pole, Wirth stood nearby – and again violated the restraining order for being within 50 feet of Grimm, who at that moment had just exited the store.  Deputy District Attorney Lauren Kemp argued that although the distance in dispute isn't much, Kay and Wirth 'chose to put themselves in a precarious situation' by standing so close to the 50-foot limit. The onus, she said, was on them to stay clear of Grimm.

In announcing her ruling, [Judge] McKnight explained that she thought the police officer did a more accurate job of measuring the distance.  'But that's not the issue,' McKnight said.   What did matter, the judge said, was whether Kay and Wirth thought they'd stepped within 50 feet of Horst Grimm. And it was clear, the judge said, that they did not think they had.  'I believe they attempted to honor the order,' McKnight said. To violate a restraining order, the defendants must 'willfully' disobey it, McKnight said.

She said authorities should mark precisely where they thought 50 feet from the door is to avoid future disputes.

But that's a moot point for Kay and Wirth, at least for now. The restraining order against them expired last month, and Horst Grimm hasn't applied for a new one. That may be because the organized protests stopped in February or March, about the time that Kay and Wirth learned prosecutors were going forward with their case.

The ruling drew big smiles from Kay and Wirth; their attorneys, Kenneth Kreuscher and Paul Loney, who took on the case pro bono; and more than a dozen people who sat through the trial as supporters.  The dispute arose after sign-holding, chanting and sometimes loud and confrontational protesters began showing up at Ungar Furs in late 2008. Kay and Wirth testified they protested about three to five days a week, for about four hours a day.

In a YouTube video, protesters can be seen holding a 'Bloody Fur Fashion Show' in 2009 in front of the store. In another video, protesters can be heard chanting 'Forty dead animals, one fur coat!' Someone can be heard shouting an expletive at Horst Grimm as he leaves his store and makes his way through the crowd.

'We certainly said things like he's a murderer, and I stand by that as a point of fact,'  Kay said in an interview after the ruling.  But Kay said he, Wirth and others never touched Grimm or his son, or threatened to hurt them. Kay contends that Grimm pushed protesters and struggled with one protester to take her camera.

A man who answered the phone at Ungar Furs on Wednesday and didn't identify himself said the Grimms decline comment.  Horst Grimm got restraining orders against Kay, Wirth and two other protesters last summer in Clackamas County, his home county, under Oregon's Elderly Persons and Persons with Disabilities Abuse Prevention Act. Because Grimm was 75, he didn't have to prove he was at risk of being physically harmed. Rather, he could get a restraining order by proving that he was called inappropriate or profane names or that he was ridiculed, intimidated or harassed.

With Wednesday's acquittals, Kay says protesters are thinking about restarting their campaign in front of the store.  Kreuscher, Kay's attorney, said the protests are constitutionally protected speech, and any restraining orders preventing protests too close to the store or Horst Grimm are unconstitutional.

'That's the beauty of the First Amendment, of freedom of speech,'  Kreuscher said. 'They protect the rights of people to say things that may be offensive to some people...People have the right to say things, even if they upset other people.'"
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The thing I like about Aimee Green's articles at the Oregonian, is that her stories are fresh and reach for details that most other court and cop reporters ignore that supply a real essence to what the underlying disputes are about.  Green also includes fact and descriptions that make mundane cases truly extraordinary.  I'm a big fan.

My dear friend, Pat, is a life long, rabid Right to Life protester.  Over the weekend we were cycling through the OurCounty Metropark and I was telling him about seeing him decades before swarming with a bunch of college kids through a Public Square crowd passing out Right to Life literature.  Pat's unusual law career in part is attributable to First Amendment efforts on behalf of Right to Life organizations.  The contours of the rulings in Pat's many cases echo in this story, and thus always attract my attention.  You may not appreciate a viewpoint or put another way, a point of view can be offensive to you and yet positively effect your rights and privileges. 

The notion that we have gotten to a place in our public discourse that allegedly serious men and women would amend the US Constitution in their xenophobia or for political gain should be deeply offensive to all of us. 

Federal Judge to Sheriff: You are Ordered To Take a Class on the US Constitution, Especially that Part on Free Speech

Here's a rare and fascinating story from Iowa.  A U.S. District Judge has ordered a local Sheriff to take a class on the first amendment after denying a concealed weapon permit to a local activist.  This is a remarkable story which I found at the Sioux City Journal website written by Russ Oechslin:

"U.S. District Court Judge Mark W. Bennett (pic, left) has ordered Osceola County Sheriff Douglas L. Weber to issue a gun permit to a resident and to complete a college-level course involving the First Amendment. Bennett’s written decision on Wednesday involves the case of Paul Dorr, (pic, right the caption is not mine) of Ocheyedan, who was denied a permit to carry a concealed weapon. Dorr and his son, Alexander, were denied gun permits after being engaged in extensive First Amendment activity -- protesting, passing out leaflets and writing letters to the editor -- the opinion notes.

'The court finds a tsunami, a maelstrom, an avalanche, of direct, uncontroverted evidence in Sheriff Weber’s own testimony to conclude beyond all doubt that he unquestionably violated the First Amendment rights of at least Paul Dorr,' Bennett wrote in his ruling.

Dorr said Wednesday that he was pleased 'justice is served. I get my permit back and the sheriff is being sent back to school. The harm done by Sheriff Weber against the 6th and 9th commandments has been made right.'

The elder Dorr had been issued a concealed weapons permit from the late 1990s to 2005. But his July 7, 2007, application for a permit was denied. His son’s was denied a year later, when he was 18 years old. Weber’s reason for disapproving the application was, 'concern from public. Don’t trust him.' The following year Weber also denied Alexander Dorr’s application for a permit and informed Paul Dorr that he would deny any further applications from him.

Weber testified that he had heard people refer to Paul as 'a whacko, delusional, a nut job, a spook, and narcissist,' Bennett’s decision noted. “Regardless of the adjective used to describe Paul, however, Sheriff Weber stated that Paul’s ‘lousy’ reputation was due to his political activities of writing letters to the editor and distributing fliers.' The ruling continued, 'Giving Sheriff Weber more deference than is due his elected status, the court finds that Sheriff Weber denied Paul’s application for a concealed weapons permit not because of the content of his First Amendment activity but because it was effective and agitated many members of the local community.' And, Bennett said, 'In denying Paul a concealed weapons permit, Sheriff Weber single-handedly hijacked the First Amendment and nullified its freedoms and protections. Ironically, Sheriff Weber, sworn to uphold the Constitution, in fact retaliated against a citizen of his county who used this important freedom of speech and association precisely in the manner envisioned by the founding members of our nation ...In doing so, this popularly elected Sheriff, who appears to be a fine man and an excellent law enforcement officer, in all other regards, blatantly caved in to public pressure and opinion and, in doing so, severely trampled the Constitution and Paul’s First Amendment rights to freedom of speech and association. This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views.'

Bennett required Weber take a class that must be a college-level course on the United States Constitution, 'including -- at least in part -- a discussion of the First Amendment.' And Bennet said, Weber must obtain approval from the court before participating in the class. Upon completion of the class, Weber must also file an affidavit with the clerk of court showing successful completion with a passing grade."

Bad Poet, Pleads Guilty

Remember Johnny Logan Spencer (pic) the Bad Poet of Louisville, KY?  This is the guy who wrote the poem that threatened the assassination of President Obama that drew the attention of the federal authorities.  Mr. Spencer's First Amendment defense was not successful and yesterday he entered a guilty plea that will in all likelihood draw prison time and a lengthy parole.  Here's Andrew Wolfson's report form the Louisville Courier-Journal:

"Dropping his First Amendment defense, a 28-year-old Louisville man pleaded guilty Tuesday to threatening the president of the United States in a poem.  Johnny Logan Spencer Jr., had said he would contest the charge on free-speech grounds. But appearing in U.S. District Court in Louisville, he entered a guilty plea to a single count of threatening to inflict bodily harm on the president through a poem titled 'The Sniper,' which he posted on the Internet earlier this year.

Spencer, who admitted the offense without a plea bargain, will be sentenced Nov. 2 by Judge Joseph H. McKinley Jr. The charge carries a maximum penalty of five years in prison and a $250,000 fine.

The poem, which was posted on a white supremacist website, describes a sniper killing the president and includes the language 'DIE negro DIE.'  Magistrate Judge Dave Whalin had previously ruled that the threat wasn't protected merely because it appeared in a poem, saying it wouldn't have mattered if Spencer 'carved the message into a stone sculpture' or 'cross-stitched it on a pillow.'  Whalin noted that the 16-line poem is 'entirely dedicated to the assassination of the current president of the United States based solely on his race' and 'expresses no larger theme or commentary on social or political issues of the day.'
Spencer had apologized to the Secret Service for writing the poem and said he never intended to assassinate the president. But Whalin said that doesn't matter because the question is whether reasonable people to whom the message is addressed would construe it as an intention to harm the president.

Spencer was arrested after the poem was posted on the website NewSaxon.org, which purports to be 'An Online Community by and for White Americans.'"
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I confess, I had no feel for how this was going to turn out, believing that this clown actually did have some defense under the First Amendment as offensive as his language is.  I read some pretty vile and seditious stuff on the Internet and I wonder how it is that this specific "poet" found his way into US District Court.

Dickhead Lawyer Has Foul-Mouth

Richard Shackleton, a New Jersey Township Lawyer went out for a little Gun Range live pigeon shoot and just couldn't let the nearby protestors, alone.  Shakleton, after having his way with the birds cruised into the crowd of protestors and according to the ABAJournal website unleashed a vile rant including:

"'Go f--- yourself, you rotten c---,'

Shackleton’s invective was caught on videotape, as was his later refusal to apologize when confronted during the public comment period of a township meeting, the story says. 'I meant every word of it,' Shackleton said.  An employee of the group, Showing Animals Respect and Kindness (shortened to SHARK) filed the ethics grievance, while the Pennsylvania lawyer he addressed, Marianne Bessey, filed the private criminal complaint after police did not file charges."
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Shackleton now faces ethics charges and misdemeanor disorderly public allegations for his behavior and use of anglo-saxons.  It sounds like the New Jersey ethics authorities are going to use their First Amendment rights to reprimand Mr. Shakleton at some point in the not too distant future.  When the ethics police do this, it will be a victory for political correctness or courtesy. 

I remember the first time I heard lawyers use this kind of language with one another--even as an ex-Army tank commander from the, . . . er, Viet Nam "era," I was pretty surprised and shocked.  Really, there are rules of conduct applicable to this sort of language and conduct.  I really don't get this language coming from a lawyer particularly a public servant in public.  It's not illegal to talk this way, but it's not living up to the aspirational ideals of the "profession."  It's also not an ethics issue. 

Lying About Medals "Protected Speech?"

There's an interesting article at the Missoulian, by Dan Elliot on peresons who are being prosecuted under a federal law called the Stolen Valor Act.  The law makes it a crime to claim to have received a medal from the U.S. Military.  U.S. District Courts are hearing challenges to prosecutions under the statute on Free Speech grounds. 

Let's face it, anyone who lies about having been in the military and receiving a medal is a scumbag.  And among those being prosecuted under the statute, there are some brazen scumbags.   Being an army veteran, I sympathize with the goal of the law--but criminal prosecutions?  Elliot's article fleshes out the debate, I quote:

"The federal courts are wrestling with a question of both liberty and patriotism: Does the First Amendment right to free speech protect people who lie about being war heroes?  At issue is a three-year-old federal law called the Stolen Valor Act that makes it a crime punishable by up to a year in jail to falsely claim to have received a medal from the U.S. military. It is a crime even if the liar makes no effort to profit from his stolen glory.  Attorneys in Colorado and California are challenging the law on behalf of two men charged, saying the First Amendment protects almost all speech that doesn't hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.

Jonathan Turley, a professor at George Washington University Law School who is not involved in the two cases, said the Stolen Valor Act raises serious constitutional questions because it in effect bans bragging or exaggerating about yourself.  'Half the pickup lines in bars across the country could be criminalized under that concept,' he said. [BL:  One wonders how Professor Turley knows this?]

Craig Missakian, a federal prosecutor in the California case, argued that deliberate lies are not protected. He also said the Constitution gives Congress the authority to raise and support an army, and that includes, by extension, 'protecting the worth and value of these medals.'  The Stolen Valor Act revised and toughened a law that forbids anyone to wear a military medal that was not earned. The revised measure sailed through Congress in late 2006, receiving unanimous approval in the Senate.  Dozens of people have been arrested under the law at a time when veterans coming home from wars in Afghanistan and Iraq are being embraced as heroes. Many of the cases involve men who simply got caught living a lie without profiting from it. Virtually all the impostors were ordered to perform community service.  In one case, a man posing as a Marine war hero was accused of using his hero status to receive discount airline tickets and a free place to stay near Phoenix.  Defense attorneys say the law is problematic in the way it does not require the lie to be part of a scheme for gain. Turley said someone lying about having a medal to profit financially should instead be charged with fraud.  One of the men challenging the law is Xavier Alvarez of Pomona, Calif. He had just been elected to a water district board in 2007 when he said at a public meeting that he was a retired Marine who received the Medal of Honor, the nation's highest military decoration.  His claim aroused suspicion, and he was indicted 2007. Alvarez, who apparently never served in the military, pleaded guilty on condition that he be allowed to appeal on the First Amendment question. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000. The case is now before a federal appeals court.

The other person challenging the law is Rick Glen Strandlof, who claimed he was an ex-Marine wounded in Iraq and received the Purple Heart and Silver Star. He founded an organization in Colorado Springs that helped homeless veterans.   Military officials said they had no record that he ever served. He has pleaded not guilty, and a judge is considering whether to throw out the charge.

Attorneys challenging the law say that lying about getting a medal doesn't fit any of the categories of speech that the U.S. Supreme Court has said can be banned: lewd, obscene, profane, libelous or creating imminent danger to others, such as yelling fire in a crowded theater.  Army veteran Pete Lemon of Colorado Springs, who received the Medal of Honor for turning back an enemy assault and rescuing wounded comrades in Vietnam while injured himself, supports the law, saying that pretending to have a medal can bring undeserved rewards.  Doug Sterner, a military historian, said the law embodies the wishes of the nation's first commander in chief, George Washington. Sterner noted that Washington created the Purple Heart, the nation's first military decoration, and wrote: 'Should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished.'"
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Like I said, some scummy people are caught up in this "speech" crime.   I do like Jonathan Turley's sugggestion that persons shown to have gained something of value be prosecuted for fraud, but the law does not easily dsitinquish itself from the First Amendment protection for free speech--even odious speech is protected.  Hell, one of shock jocks signature bits is his preposterous claim to having been a Viet Nam vet.   I don't think anyone would view Stern's claims as anything more than "attempted satirical humor." 

Free Speech Is Not Free

Congress shall make no law . . . abridging the freedom of speech, or of the press[.]

Yesterday, the Supreme Court of the United States in Citizens United v. Federal Election Commission held that the McCain-Feingold limitations on corporate SPENDING was violative of  prohibitions on abridgment of free speech.  Years of judicial precedent, were swept away by this non-activist conservative court in a 5-4 ruling.  

Money=Speech, and as I said previously corporations are "persons" with enhanced free speech rights, because they have the money, lots of money.

This may be a good thing, if Congress enacts laws to attach "faces, names, and addresses" to the officers and shareholders making the corporate "speech."  A corporation wishes to spend money:  to elect a bigot; oppose a Judge who ruled agasint them; enact enabling legislation to permit them to pollute; oppose regulatory reforms, or health care;--fine, let them, if simultaneously they electronically publish a list of their officers and shareholders, their officers and shareholders photos, and their officers and shareholder's addresses.  Free speech, yes!  Accountable speech, you betcha.

Now, Canoe,com is reporting  this morning that Mexico is moving in the other direction.  The PRI (aka, the "ruling party") is proposing legislation to criminalize compositions and music which praises criminals.  In the history of bad ideas this is right up there with Guns in Bars.  Seriously, Mexico is suffering terrifying narco-crime waves.  Horrific stories from Mexico emabrass me, as I piss and moan on this Blawg about petty corruptiion.  But Mexico's ills relate to CORRUPTION, not mariachi.  The songs "glorifying" the narco-gangsters are a reflection of the horror, not the cause.   We have the same reflexive tendency in this country. While we glorify guns, even assault weapons--we take steps to abridge individual free speech when a particularly offensive Gansta Rap "composition" becomes a hit, or some fleeting expletive is uttered on the airwaves.

Free Speech, is not free--it has consequences.

Texas-By-God!

Students in Abilene, Texas and other school districts throughout Texas are required to Pledge Allegiance to the Flag and (need I even say this?) in Texas the law requires them to include the phrase UNDER GOD.  Now setting aside the fact that the Govenor of Texas and much of its population is decidedly pro-secessionist it's mighty thoughtful of the Texas legislature to enact this measure.  And don't the kids look wonderful in the accompanying pic?

But guess what, the "under God" language was added by the Texas legislators way back in 2007.  You know it's just this sort of demagoguery that lawsuits are made, and sure enough a Dallas couple is suing over the separation of church and state implications in the Pledge.  Here's the thing, I don't give a damn.  But why?  Why do legislators do this to the tax payers of their respective states?  Invite lawsuits over some pathetic patriotic bull?  Oh and let's mix religion into the mix.  Ridiculous.

Here's my suggestion for the local media, go, randomly put the law makers on camera who enacted this legislation and ask them to recite the pledge by heart.  Go ahead, I guarantee pure comedy.

For more:  http://www.reporternews.com/news/2009/dec/04/state-pledge-still-includes-under-god-n-suit-in/

In Australia If You Name the Pedophile, You Can Go To Jail, Huh?!

It should come as no surprise to readers of this Blawg that I cruise the internets, looking into and through the tubes of various jurisdictions (in Bad Lawyer speak) to bring you the stories that I resonate with me and if I'm lucky, you.  So let me tell you about Derryn Hinch, an Australian radio personality, investigative reporter and and author.  He 's also a jail bird (like moi)--in his case because he defies court orders by intentionally broadcasting the names of child molesters.

Derryn comes to my attention, today, because the Australian Supreme Court has dismissed a separate laswsuit he filed against local judges who have ordered him not to reveal the names of other pedophiles.  Amazing!  In the States we enact laws demanding that sex offenders identify themselves, but in Australia you name names you go to jail.

The Derryn Hinch matter takes me back to the case of Linda Boyd (<--fakename, real person)  Linda was one of the most striking people I ever met.  The daughter of a a wealthy scrap metal dealer, Linda alleged that her brother Vito and her Uncle Giancarlo sexually abused her from the time she was a child and into her adult years.  Linda's parents knew about the abuse and were unsympathetic.  Linda had read about a case that I tried in a small town west of Our Town that resulted in a $5.5 million verdict for a victim of child sex abuse.

At the time Linda contacted me I was co-counseling matters with a very smart lawyer who had recently departed a "big defense firm."  Our approach to Linda's case was to send out a draft lawsuit and impose a deadline by which the matter would be filed unless otherwise resolved by settlement.  The proposed lawsuit included claims against Linda's wealthy parents for negligently failing to protect her from her predator brother and uncle.  Linda's parents hired a local attorney associated with the Scrap Metal business who I acknowledge to be one of the really brilliant guys in town.  Rocky Gee was a former public defender who made into the top ranks of Big Firm litigation.

Rocky called and proposed a meeting to discuss "negotiating Linda's claims."  We agreed believing we held all the cards; at our face-to-face Rocky asked us to make a "demand" which is customary in negotiations.  We did.  He informed us he would run our demand by his clients and get back to us.  Would we consider filing the lawsuit "under seal?"  No, of course we wouldn't.  Rocky wanted to know our drop dead date, which we provided, 4pm the next Monday a work week.

That Friday, Rocky filed a preemptive lawsuit, and obtained a court order from Judge Irishname ordering Linda Boyd not to file any lawsuit in state or federal court unless she did it "under seal."  Within days, Judge Irsihname was nominated to a lifetime appointment to the federal bench.  The local alternative newspaper published an article about this mystery lawsuit with the header "Silent Lawsuits" questioning how a Judge has the power to "seal" a lawsuit, Judge Irishname went wild.  He ordered the attorneys into his courtroom for the sole purpose of imposing a strict gag order on the civil case.  Next, Linda Boyd was featured on the front page of Our Town's big daily paper as the founder of an organization helping incest victims.  The reporter asked Linda about a lawsuit she had "against her father, brother, and uncle"--"I can't talk about that," she said, "Judge Irishname has gagged me."  You can probably guess, at Judge Irishname's reaction, let me just say, I've seen apoplexy firsthand.  Clearly, Judge Irishname was justly concerned that his flagrant violation of the first amendment was going to haunt him during his confirmation hearings.   In reality he really need not have been concerned, as you will recall President George H.W. Bush was not reelected and Judge Irishnames' appointment lapsed before he could be confirmed.

There is an expression lawyers use to describe claims like Linda's--career case.  Having a career case is not a good thing, it is a curse.  I have greatly digested the procedural fact of Linda's case, partly because Bleak House and the fictional case of Jarndyce v. Jarndyce more eloquently illustrates the nightmare of a "career case," and partly because I'm trying to repress the memories of it all.

After much warfare, Linda settled her claims and moved away.  All of her male relatives including her brother (prematurely), died.  Judge Irishname is a longtime Assoicate Justice of Our State Supremes where as we discussed a disciplinary action against me is pending.

More on Derryn Hinch:

http://www.theage.com.au/national/hinch-loses-fight-to-avoid-court-20091203-k8u5.html

and,

http://www.hinch.net/home.htm

Jews for Jesus Lawsuit

Jews for Jesus are suing the city of Pontiac, Michigan for preventing them from distributing pamphlets at the Arts, Beats and Eats festival over the Labor Day weekend.  The group which is officially "Congregation Schema Yis-Rael of Bloomfield Township," filed its lawsuit in U.S. District Court for Detroit, charging Pontiac police used its authority to violate the group’s First Amendment rights."  According to the Oakland Press, the group was standing on the corner of Saginaw and Water streets and were approached by the Police Chief Valard Gross, and Captain Robert Miller who informed the group that they could not pass out pamphlets because the festival organizers did not want patrons hassled.  


for more:  http://www.theoaklandpress.com/articles/2009/11/25/news/cops_and_courts/doc4b0d102f20d79377071836.txt

FurtherProof that it is Dahlia Lithwick's World and we just live in it

Once again the final word on the Supreme Court follies, is Dahlia Lithwick's http://www.slate.com/id/2231644/pagenum/all/#p2

Animal cruelty

Today the Supreme Ones took up the conviction of Robert Stevens for animal cruelty. Stevens cobbled together dog fighting footage into videos which he sold for "educational purposes." He was convicted under a federal law banning animal cruelty. The conviction and the law was struck down by a Philadelphia appeals court as unconstitutionally vague and impinging upon the Freedom of Speech.

The prospect of this case being argued at the Supreme Court today fueled the morning coffee hour discussion and a rather surprising unanimity among the various political wings of my crowd which cover the far left and reactionary right wing (and right wing Chuck is a dog lover.) We all agreed that as heinous as dog fighting is, the idea that Congress can enact a law that would prosecute a douche nozzle like this Stevens guy for selling this video violates our sense of personal freedom. As the acting law professor I threw in the parallel track of child pornography and the rationale for holding this category of speech as unprotected. In a nutshell, child pornography is unprotected because the market for the material fuels the sex crime against children necessary for the production of the pornography. My pal Chris did a pretty good imitation of John Houseman in sussing out the issues attendant to this special category of speech though Chris does tend to perseverate about his favorite first amendment case: the Bong Hits of Jesus case. (Morse v. Frederick: http://www.supremecourtus.gov/opinions/06pdf/06-278.pdf)