The Supreme Court’s Mixed Signals in Packingham

July 10, 2017,        Guest Post

by Bidish Sarma.  Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.
Near the end of the term, the Supreme Court handed down its decision in Packingham v. North Carolina.

The outcome was a slam-dunk victory for Mr. Packingham—a registered sex offender—and proponents of robust free speech protections around the country. The Court left no doubt about its commitment to protecting the First Amendment (all eight presiding justices agreed that the law at issue was unconstitutional), but it sent mixed signals about whether it would author a new chapter in its dealings with individuals convicted of sex offenses. This is an increasingly important question because for many years now sex offenders have been the target of unique, restrictive and hyper-punitive legislative schemes that raise deep constitutional questions. If the Court ducks these questions, similarly dubious laws may be used to target other groups, including individuals who have committed no crimes at all. Nobody seriously questions a legislature’s interest in protecting individuals from sexual violence. But, the time has come to ask whether society’s “war” on sex offenders who have already completed criminal sentences has gone too far.
Packingham involved a North Carolina statute that prohibited registered sex offenders from accessing an astounding range of websites (including news websites, WebMD and Amazon). The defendant was arrested for violating the law after he posted a message on Facebook praising God because a court had dismissed a traffic ticket without imposing any fine or other punishment. In striking down the sweeping restraint on internet use, Justice Kennedy’s majority opinion acknowledged the state’s interest in preventing sex offenders from using technology to facilitate crimes, but held that the “statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” The law’s breadth and the Court’s robust protection of free speech may best explain the result. Thus, Packingham may well be “the rare case” in which the Supreme Court rules in favor of sex offenders.
If, however, the Court is more broadly worried about laws that may infringe on the rights of people who have been convicted of sex offenses, the First Amendment is not the only amendment that requires judicial enforcement. Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”
Individuals who have seen or experienced the devastation wrought by society’s moral panic about sex offenders must feel a small measure of hope now that the Court has given a nod to the “troubling” restrictions so many endure. From a constitutional perspective, there is little doubt that the laws are damaging in a number of ways. Most plainly, they ensnare far more people than most of us realize. While the average person tends to think that an individual labeled a “sex offender” committed a violent crime like rape, thousands of the more than 747,000 registered sex offenders in the United States were convicted of crimes like public urination, streaking and consensual (but illegal) teenage sex.
Even setting aside this serious problem of the legal conflation of child molesters with teenage pranksters—a problem that poses a real public safety concern by undermining the utility of registries—state laws dealing with sex offenders who have already served time curtail liberty to an extreme degree. A subset of these offenders are subjected to civil commitment, meaning the state detains them in prison-like conditions (where they are theoretically treated for mental health problems that make them dangerous). In several states, this involuntary detention is indefinite. These people will die in state custody. Many states and localities also impose severe residency and travel restrictions on released sex offenders, making it so difficult to find living arrangements in some places that affected citizens are forced to live on the streets and under bridges. Research suggests that such laws may actually increase the odds that these individuals will commit crimes again.
Add to this mix the demanding registration and notification requirements placed on sex offenders. These laws severely punish a wide range of conduct, including failures to register, failures to pay registration fees and even failures to notify authorities of an intent to move to a new residence before and after the move. A powerful amicus brief filed by several highly-respected law professors in a recent case dealing with Michigan’s sex offender laws summarizes how this panoply of restrictions effectively banishes sex offenders from society. The state has
retroactively placed punitive and highly burdensome restrictions on those convicted of sex offenses, including extensive requirements to appear frequently in person at police departments, as well as restrictions on their movement, residency, and place of work. These restrictions stem automatically from their convictions, with no individualized determinations. These regulations are . . . punitive rather than regulatory in their effect.
The problem with this “punitive” approach is that the restrictions imposed are not part of a defendant’s criminal sentence; these individuals have already served their time and yet get punished again and again. Considering the laws we have passed, Professor Corey Rayburn Yung is certainly correct when he writes, “[i]t is difficult . . . to name a group in the United States that is more reviled than sex offenders.” So, the Court has good reasons to be worried about “troubling” and “severe” restrictions that have put a crushing weight on the lives of sex offenders. But, Packingham was not an all-around win for those disturbed by how we treat these people. In that case, we can see two indications that the Court continues to propagate the myth at the core of our nation’s moral panic: that individuals convicted of sex offenses are almost certain to commit more sex crimes if they are released.
The first flare came during the oral argument. At one point, Justice Sotomayor seemed to accept the basic claim that the sex offender recidivism rate is abnormally high. According to the argument transcript, she said “Yes. There’s a high statistical inference that recidivism will follow with one sexual crime to another . . . .” The second signal appeared in Justice Alito’s concurring opinion. In it, he wrote that “[r]epeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’ McKune, supra, at 33 (plurality opinion) . . . .”
If the Court is looking to its own past for its understanding of sex offender recidivism, it is no wonder that the justices continue to embrace the myth that the recidivism rate is alarming. In 2002, in McKune v. Lile, the Court described the risk of sex offender recidivism as “frightening and high.” It went further, citing a Department of Justice publication for the proposition that “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” This astronomical number is certainly frightening. But, it is also blatantly wrong.
A number of experts, researchers and journalists have stepped forward in recent months to illuminate the Court’s profound misstep in McKune. In the New York Times in March, Supreme Court reporter Adam Liptak pointed out that the lawyer for North Carolina in Packinham stated during the oral argument that “[t]his court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again.” Liptak explains that “there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.” Professor Ira Mark Ellman and Tara Ellman excavated the truth about the source Justice Kennedy relied upon in McKune: the DOJ publication cited one source for the 80 percent figure, “an article published in 1986 in Psychology Today, a mass market magazine . . . [that used 80% as] a bare assertion: the article contains no supporting reference for it.”
David Feige recently compiled the real statistics:
The recidivism statistics the court cites are dead wrong as a matter of social scientific fact. In reality, sex offenders have among the lowest same-crime recidivism rates of any category of offender. Indeed, in the most comprehensive single study on reoffense rates to date, the U.S. Department of Justice followed every sex offender released in almost 15 states for three years. The recidivism rate? Just 3.5 percent. These numbers have been subsequently verified in study after study. The state of Connecticut Criminal Justice Policy and Planning Division did a five-year study that found a recidivism rate of 3.6 percent. A Maine study found that released sex offenders were arrested for a new sex crime at a rate of 3.9 percent. Government studies in Alaska, Delaware, Iowa, and South Carolina have also replicated these results—all finding same-crime recidivism rates of between 3.5 and 4 percent.
In short, the 80 percent number is pure rubbish. But, the Court’s elevation of that myth has caused a lot of damage in the past 15 years. Lower courts around the country have cited it over and over again to justify the raft of draconian laws used to restrict the liberty of individuals who have already paid their debts to society.
When North Carolina (and other states) attempted to justify restrictions on the right of sex offenders to access important websites by invoking claims about the recidivism rate, the Court had an opportunity to correct its previous error. Professor Melissa Hamilton produced an excellent article explaining that, with respect to the recidivism claims, the states’ legal representatives were either “naïve and uneducated” or “intentionally misleading” the Court. Yet, rather than seize the chance to clear things up, the Court continued down the trodden path. Justice Sotomayor appeared to agree with the claim of a “high statistical inference” of recidivism. And, though Justice Alito was careful not to cite directly the debunked 80 percent figure, the concurring opinion relied on McKune to emphasize the notion that sex offenders are uniquely dangerous. (A dispute about Alito’s factual claims arose when the Washington Post ran a fact-check that was subsequently challenged by the National Review. Professor Carissa Byrne Hessick best clears up the confusion when she explains that Alito’s opinion is misleading, but not for the reason the Washington Post identified: “Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate. The problem with this paragraph is . . . the claim ‘[r]epeat sex offenders pose an especially grave risk to children.’ . . . [T]he facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.”) Alito’s opinion is not misleading on the scale of the “frightening and high” farce, but it certainly pours more fuel on the fire that is the myth that sex offenders are bound to commit more offenses, particularly against our children.
More cases are coming. The Court recently asked the solicitor general to weigh in on a petition emerging from a Sixth Circuit opinion that actually struck down the Michigan laws mentioned earlier. (One does not need much of an imagination to predict how the “tough-on-crime” Trump Administration will come down on that question.) And, when the Court comes back to session after the summer recess, it will decide whether to review a case involving the Minnesota Sex Offender Program—a civil commitment scheme that confines over 700 individuals, and at the time of the class-action trial, had never released a single individual in two decades even though the state concedes that many offenders are no longer dangerous (the case materials can be found here). If the Court is genuinely concerned—and it should be—it can soon address the severe restrictions that dominate the legal landscape. Standing up for constitutional rights—even of very unpopular groups—is critical at a time when it looks like our nation could easily begin to tumble down the slippery slope of abridging them.

Resisting the Suppression of Science

Resisting the Suppression of Science
Lisa Rosenbaum, M.D.
March 1, 2017   DOI: 10.1056/NEJMp1702362

All doctors encounter patients who express preferences for non–evidence-based therapies — organic food for coronary disease or detox cleanses for cancer, for example. Personally, I’ve never come up with an effective response. I offer facts, and then, sensing that I’m getting nowhere, I offer more facts. I blink rapidly to avoid rolling my eyes. Eventually, I resort to the “I statements” taught in medical school: “I understand that’s what you believe,” though my body language surely gives me away. Not surprisingly, I haven’t had much success in overcoming disbelief of science. And though many physicians may approach this challenge more skillfully one on one, as a scientific community, we often seem trapped in a similar dynamic. Whether it’s the science of vaccines, climate change, or gun control, we tend to endlessly emphasize the related evidence, and when that fails, exude a collective sense of disgust.
Now, a U.S. administration that has demonstrated dogged disregard for truth has raised concern not only that the clash between science and belief will intensify, but also that science might be frankly suppressed. President Donald Trump has called climate change a “hoax,” voiced skepticism about vaccines, and appointed as head of the Environmental Protection Agency a man who has fought against its mission. Members of one federal agency were allegedly asked to reveal their views on climate science, and other federal scientists reportedly face gag orders forbidding them to attend scientific conferences or communicate their findings. The Centers for Disease Control and Prevention (CDC) recently postponed a planned Climate and Health Summit, though that move may have been cautionary, meant to assuage an administration on which the agency relies for its funding.
In the face of suppression of science, should scientists resist, or quietly proceed with their work? Resistance seems essential. That the CDC postponement prompted a coalition to form and organize an alternative meeting (see article by Hunter et al.) reminds us that resistance is as much about ensuring effective dissemination of findings as about continuing to conduct science. But it’s critical to recognize that suppressing science does not cause disbelief; rather, disbelief, particularly of science pertaining to highly politicized topics such as climate change, creates a cultural environment in which suppression of science is tolerated. So the real question is how do we resist effectively? How do we convince a skeptical public to believe in science?
First, we need to stop assuming that disbelief necessarily reflects a knowledge deficit and can thus be remedied by facts. When doubt is wrapped up in one’s cultural identity or powerful emotions, facts often not only fail to persuade, but may further entrench skepticism.1 This phenomenon, often referred to as “biased assimilation,” has been demonstrated across a range of issues, from the death penalty to climate change to vaccines.2 One study found that parents hesitant about vaccinating their children became even less inclined to vaccinate when given information debunking the myth that vaccines cause autism.3 Somewhat counterintuitively, this tendency does not reflect lack of intelligence; in fact, when it comes to climate science, people who demonstrate higher levels of science comprehension are actually also the most adept at dismissing evidence that challenges their beliefs.1 Moreover, the propensity to dismiss evidence that threatens our identity or beliefs is nonpartisan: liberals, for instance, are far more likely than conservatives to dismiss science suggesting that genetically modified foods are safe. Even within the medical community, whether we’re debating mammography screening, statins, or the credibility of a drug-company–sponsored study, our ideologies affect our assimilation of data.
Second, in this highly polarized moment, we have to be careful not to inadvertently politicize science that has not already been pegged to a particular worldview. Dan Kahan, an expert on the way emotion and identity affect our interpretation of scientific facts, recently coauthored a study assessing how “culturally antagonistic memes” affected people’s ability to process information about an ostensibly neutral scientific issue: Zika virus.4 Because stories have circulated suggesting that Zika was caused either by global warming or by immigration, both highly charged topics, the researchers assessed how exposure to such stories affected subjects’ perceptions of the Zika threat. Those whose worldviews are associated with suspicion of climate science became more skeptical of the Zika threat when it was purported to be caused by global warming, and those whose worldviews tend to favor globalism and open borders perceived lower risk from Zika virus when its emergence was tied to immigration.
This risk of adding an identity-laden valence to otherwise neutral scientific matters makes resisting science denialism in the Trump era particularly tricky. Because we pay far more attention to contested than to generally accepted science, it’s easy to forget that most scientific facts, and related policies, don’t induce tribalism.1 You don’t see partisan battles over treatment for myocardial infarction, say, or the dangers of radiation exposure. But as Kahan points out, Trump thrives on making nonpartisan issues polarizing. The indication that he might appoint a vaccine skeptic to head a commission to review vaccine safety is a worrisome example, since vaccine skepticism has thus far been limited to a minority, albeit vocal, fringe. “I have never seen someone so aggressively intent on just increasing the number of issues that feature that sort of antagonism,” Kahan told me. “He is our science communication environment polluter in chief.”
Such polluters cunningly incite cultural battles that ultimately heighten distrust of science. Their strategies exploit a fundamental aspect of human nature: forced to choose between “recognizing what is known to science” and maintaining our group identity, most of us choose the latter.1
This constant quest for identity preservation helps explain why calling vaccine skeptics idiotic or dangerous is, as others have pointed out, likely to backfire, particularly as we face a cultural backlash against academic “elites.” It’s also why, when Trump issues an antiscience provocation over a nonpartisan subject, we should avoid being so strident in correcting misinformation that we further galvanize skepticism based on political identity alone. Even with already-polarizing topics, more measured resistance may be the most effective approach. To that end, circumspect resistance like the rallying of a coalition to relatively quietly reorganize the postponed climate-science meeting may end up being the most effective in these divisive times.
But measured resistance may feel unsatisfyingly hard to define. Given the many variables involved in any one threat to science — including the perceived identities at stake and the way the threat is executed — it’s hard to generalize about what the “right” response entails. With climate change, for instance, if our goal is environmentally protective federal legislation, maybe massive public protests like the Women’s March are necessary to generate the political will. Or maybe, as the behavioral economist Cass Sunstein has suggested, the best remedy for disbelief anchored in tribal allegiances is the identification of “surprising validators” — people willing to advocate for science who are trusted by any given group because of their shared identity.2 One recent example is a group of prominent conservatives who published a proposed policy for slowing global warming.5 But the reality is that we know far more about the challenges to communicating science than about how we might overcome them.
Yet perhaps there is a silver lining in the unmooring of many Americans by the widespread embrace of “alternative facts”: scientists are not alone in their determination to make the truth believable again. As a medical community, we have long approached the communication of science unscientifically. We are taught in medical school to make eye contact, nod our heads, and demonstrate cultural competence. But if the purpose of communication is to translate science into public policy that can improve the health of our population, then we ought to focus as well — and urgently — on empirically and effectively navigating assaults on truth.

Equality, is it just a catch phrase?

We American’s become indignant when we are accused of treating others unequally. Yet, as the current political regime demonstrates its power, we come to realize that we fear the others. It’s not a rational fear we haven’t had a foreign-born attack since 2001. But we fear those who are not like us, and us could be any ethnicity or race as long as they aren’t white and Christian. It remains a mystery to me why the most powerful nation on earth, which has not been attacked in over a decade would fall for a fear campaign like the Trump farcical demonstration of ignorance. Fear condones activity which is irrational and costly. We are alienating entire cultures and undercutting our nation’s wealth to mount a massive defense build-up which is both not needed and most assuredly contribute to another arms race. American’s, we are more intelligent than this, we need to apply rational thinking to the current situation and prevail with intelligence not brute strength.
And now, Trump distracts the nation by his bullshit about  NFL Blacks protesting their brothers’ being murdered by police. Anything he can do to distract the media and thus the public.  Do not be fooled by his rhetoric we don’t need division. We all need to unite and stand together about Putin’s intrusion in our electoral process.

The Volokh Conspiracy Opinion How a high school student’s painting caused congressional Republicans to act like campus snowflakes By Jonathan H. Adler l student’s painting inspired by the police shooting and subsequent unrest in Ferguson, Mo., will be removed from the nation’s Capitol next week because some members of Congress are offended by the artist’s viewpoint. Specifically, some members of Congress believe the painting must be removed because it is “offensive” and “disrespectful” to law enforcement because it depicts police officers as “pigs.” The painting at issue (shown below) was put on display as part of the annual Congressional Art Competition sponsored by the Congressional Institute. As part of this competition, each congressional office selects a painting from a high school student from within his or her district, and they are displayed along a hallway for the year. This picture, “Untitled #1″ by David Pulphus, was put up with other winners in June. Other paintings in the competition displayed along the same hallway celebrate military service and a soldier’s return home. Some depict historical injustice, and others are overtly patriotic. (All the paintings from the competition may be found here.) There was not much controversy about the painting until conservative commentators began noting it in December — some six months after the painting was put on display. These commentators, and some members of Congress, objected that the painting was offensive and disrespectful to law enforcement, and to Capitol Police officers in particular, who must work nearby. As Rep. Dave Reichert (R-Calif.) commented, “It is disheartening to see this depiction of law enforcement hanging in the hallway of our nation’s Capitol where officers work everyday to protect our safety and freedoms.” Not content to criticize the painting or celebrate law enforcement officers, some members of Congress called for the painting’s removal. Rep. Duncan D. Hunter (R-Calif.) when further, taking it upon himself to physically remove the painting from the wall. The painting’s sponsor, Rep. William Lacy Clay (D-Mo.), restored the painting, only to have it removed again by someone else. As the controversy grew, members of Congress appealed to the House leadership and to the Architect of the Capitol, to ensure that the painting would be permanently removed. Like self-righteous college students, some members of Congress seem to believe that just because a work of art or other expression is “offensive, ” it should be suppressed. While there is no First Amendment right to display art in the Capitol, it is a bedrock First Amendment principle that expression must not be suppressed because of the viewpoint expressed — and that is precisely what is occurring here. That police officers and others are offended by the painting is understandable, but that does not excuse efforts to censor its message. In deciding the painting must be removed, the Architect of the Capitol cited rules prohibiting “exhibits depicting subjects of contemporary political controversy.” There is a fair argument that the painting violated this rule, insofar as it focused on conflict between police and people of color and was motivated by the police shooting in Ferguson. Yet if that were the issue, one would have expected the architect to refuse to post the painting in the first place when this year’s finalists were first put on display. Instead, the painting hung there for months, unremarked upon until some folks sought to stir up controversy, as have other paintings that have subtle political content, such as this depiction of President Obama and others with patriotic themes noted above. This painting was targeted because of its specific message, not because it is too political. As has been clear from the beginning of this controversy, the objections to this painting center on the painting’s message — the viewpoint it appears to express — and nothing else. On Thursday, someone placed a “Blue Lives Matter” flag on the wall above the painting. Whether or not such an impromptu display is allowed under the Capitol’s rules, this is a much more appropriate response than stealing the painting from the wall or otherwise seeking to have it removed. Displaying the Blue Lives Matter flag is a way to express disapproval of the painting’s message and endorse a counter-message. It is, in short, responding to potentially offensive speech with more speech. It is exactly what conservatives (and others) tell college students to do when they are confronted by speech that offends them, whether it’s an art installation or a speech by an Internet provocateur. Let me reiterate that I understand why some people find this painting to be particularly offensive, and I have no problem with members of Congress or others expressing that point of view. Insofar as some believe police officers often get a bum rap — in Ferguson or elsewhere — they should explain why this is so. They should not seek to censor or suppress the messages with which they disagree. It’s distressing when easily offended college students demonstrate a lack of awareness of First Amendment principles and the importance of free speech and open discourse. It is even more disheartening, however, when our elected representatives — those who take an oath to preserve and protect our Constitution — follow suit.

 I admit that I did partially edit this post due to grammatical errors. Yet the message is precise the First Amendment must be upheld.

How a high school student’s painting caused congressional Republicans to act like campus snowflakes

January 14 at 2:55 PM
A high school student’s painting inspired by the police shooting and subsequent unrest in Ferguson, Mo., will be removed from the nation’s Capitol next week because some members of Congress are offended by the artist’s viewpoint. Specifically, some members of Congress believe the painting must be removed because it is “offensive” and “disrespectful” to law enforcement because it depicts police officers as “pigs.”The painting at issue (shown below) was put on display as part of the annual Congressional Art Competition sponsored by the Congressional Institute. In the context of this competition, each congressional office selects a painting from a high school student from within his or her district, and they are displayed along a hallway for the year. This picture, “Untitled #1″ by David Pulphus, was put up with other winners in June. Other paintings in the competition displayed along the same hallway celebrate military service and a soldier’s return home. Some depict historical injustice and others are overtly patriotic. (All the paintings from the competition may be found here.)

There was not much controversy about the painting until conservative commentators began noting it in December — some six months after the painting was put on display. These commentators, and some members of Congress, objected that the art was offensive and disrespectful to law enforcement, and to Capitol Police officers in particular, who must work nearby. As Rep. Dave Reichert (R-Calif.) commented, “It is disheartening to see this depiction of law enforcement hanging in the hallway of our nation’s Capitol where officers work every day to protect our safety and freedoms.”

Not content to criticize the painting or celebrate law enforcement personnel, some members of Congress called for the painting’s removal. Rep. Duncan D. Hunter (R-Calif.) when further, taking it upon himself to physically remove the painting from the wall.  The painting’s sponsor, Rep. William Lacy Clay (D-Mo.), restored the painting, only to have it removed again by someone else. As the controversy grew, members of Congress appealed to the House leadership and to the Architect of the Capitol, to ensure that the painting would be permanently removed.

Like self-righteous college students, some members of Congress seem to believe that just because a work of art or other expression is “offensive, ” it should be suppressed. While there is no First Amendment right to display art in the Capitol, it is a bedrock First Amendment principle that expression must not be suppressed because of the viewpoint expressed — and that is precisely what is occurring here. That police officers and others are offended by the painting is understandable, but that does not excuse efforts to censor its message.

In deciding the painting must be removed, the Architect of the Capitol cited rules prohibiting “exhibits depicting subjects of contemporary political controversy.” There is a fair argument that the painting violated this rule, insofar as it focused on the conflict between police and people of color and was motivated by the police shooting in Ferguson. Yet if that were the issue, one would have expected the architect to refuse to post the painting in the first place when this year’s finalists were first put on display. Instead, the painting hung there for months, unremarked upon until some folks sought to stir up controversy, as have other paintings that have subtle political content, such as this depiction of President Obama and others with patriotic themes noted above. This painting was targeted because of its particular message, not because it is too political. As has been clear from the beginning of this controversy, the objections to this painting center on the painting’s message — the viewpoint it appears to express — and nothing else.

On Thursday, someone placed a “Blue Lives Matter” flag on the wall above the painting. Whether or not such an impromptu display is allowed under the Capitol’s rules, this is a much more appropriate response than stealing the painting from the wall or otherwise seeking to have it removed. Displaying the Blue Lives Matter flag is a way to express disapproval of the painting’s message and endorse a counter-message. It is, in short, responding to potentially offensive speech with more speech. It is precisely what conservatives (and others) tell college students to do when they are confronted by speech that offends them, whether it’s an art installation or a speech by an Internet provocateur.

Let me reiterate that I understand why some people find this painting to be particularly offensive, and I have no problem with members of Congress or others expressing that point of view. Insofar as some believe police officers often get a bum rap — in Ferguson or elsewhere — they should explain why this is so. They should not seek to censor or suppress the messages with which they disagree.

It’s distressing when easily offended college students demonstrate a lack of awareness of First Amendment principles and the importance of free speech and open discourse. It is even more disheartening, however, when our elected representatives — those who take an oath to preserve and protect our Constitution — follow suit.

Free Speech Has Never Been Free, by Jazmine Filson

Introduction

The ideal of free speech has never been free. Since the ratification of the First Amendment guaranteeing our right to freedom of expression, there have been challenges to its application. Today’s generation termed, Generation Z, is transforming education from content to process driven, from knowledge input, to analysis and implementation. Due primarily to the expanded public forum of social media (Education – Generation Z. 2013). Therefore, public high school students require the full plethora of free speech benefits to learn and foster meaningful rhetorical education. Students today are tomorrows’ leaders, to hinder student speech is to stifle social and political knowledge. Change is necessary, look at the events at Dixie State University where that the majority of college students accepted the infringement of their right to dissent. The marketplace of ideas requires students to have a full airing of all opinions.

High school students throughout the public sector do not possess unlimited First Amendment rights (Hudson, D. L., Jr. 2002). As the Supreme Court has said, minors do not possess the same level of constitutional rights as adults. Since the tragedy at Columbine High School in Littleton, Colorado in April of 1999, student expression has been increasingly stultified. Public dissent was stifled at Richland High School when the school principal publically reprimanded senior Rebecca Young in August 2015, for wearing a shirt that read “Some People Are Gay, Get Over It” (Esseks, J. 2015). The school principal prohibited any clothing expressing support for the Lesbian, Gay, Bisexual & Transsexual (LGBT) community. Subsequently, a federal court injunction was awarded permitting Rebecca Young the free speech right to express her political views (Young v. Giles County. Bd. of Educ., 2015).  In Christiansburg, Virginia, at the Christiansburg High School (CHS),17 high school students were given out-of-school suspensions for failing to remove Confederate flag attire that school officials deemed were offensive. According to Houston Miller, a senior at CHS, “We just wanted to get our point across that nobody here is racist. Moreover, we’re trying to get that in our school. They banned one flag so we think they should ban all.” The danger of this type of suppression lies in the doctrine of prior restraint. Prior restraint doctrine ascribes to the idea that an individual would feel constrained from freely expressing themselves due to the social or legal restrictions imposed on others. Therefore, other students would feel constrained from expressing their views and opinions. Supreme Court Justice John Marshall eloquently opined, “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” (Stevens, J. (1992-1993).

College students are not exempt to speech suppression either. At Dixie State University, three students were prohibited from distributing a flyer which criticized former President George W. Bush, President Barack Obama, and Cuban revolutionary Che Guevara, because they disparaged individuals in violation of university policy. Highlighted on John Stossel’s, television special “Censorship in America,” the students sued in the Utah U.S. District Court and prevailed with a stipulated agreement. The University agreed to revise its policies permanently. Most college students have reached the age of majority and receive the full scope of First Amendment rights. They are deemed of age and capable of fighting wars; college students must be able to exercise sufficient maturity and judgment to formulate independent opinions. However, citizenship requires responsible speech and actions of all of us. Every right and benefit bestowed, upon society comes with responsibilities, and malicious speech can have devastating effects.

The research definition for bullying victimization is “unwanted, intentional, aggressive behavior among school-aged children that involves a real or perceived power imbalance that is often repeated over time or has the probability of occurring again” (Espelage, D. L. 2014). In the article, It’s Not Just Teasing, (Saltzman, A. 1993, at 73.) a six-year-old, child was subjected to lewd, obscene, and profane harassment by her fellow students on her school bus which resulted in creating psychological and emotional suffering. The consequences were dire for 17-year-old Michael J. Berry, who had been subjected to cyber-bullying and sexual harassment before he committed suicide on September 16, 2008, at Mira Loma High School, in Carmichael, California (Jani, S. 2015). These are just two of many harms caused by a peer-to-peer speech in its various forms. Harassing and hate speech prohibitions are a necessary component of the regulatory structure of public schools. School administrators face a challenge regarding speech; speech restrictions which are guided by a trio of Supreme Court cases with which officials must comply such as (1) vulgar, lewd, obscene, and plainly offensive speech, (2) school-sponsored speech, and (3) speech that falls into neither of these categories. The standard for reviewing the suppression of vulgar, lewd, obscene, and plainly offensive speech is governed by, Bethel School District v. Fraser, 1986, school-sponsored speech by, Hazelwood School. District. v. Kuhlmeier, 1988, and all other speech by, Tinker v. Des Moines Independent Community School District, 1969. The Supreme Court has yet to review a case specifically regarding non-threatening harassment prohibitions in public schools.

The correlation between freedom of expression and progress is explicit. Historically, science was considered blasphemy by the public. Moreover, without science life would not exist as we know it today. All terms of expression must be tolerated in the public forum. While order in public schools is necessary to accommodate an efficient learning environment, the risk of suppression of thoughts and ideas does not justify the restrictions. Schools must permit any form of speech presented in an orderly manner and debate the idea or concept presented. In this manner, deplorable or specious expressions will be exposed. The presentation of all ideas will foster education and without free-speech, women would not be able to vote, racial, and sexual minorities would remain suppressed, and society would be poorer for it. A society open to challenging opinions will gain tolerance and greater liberty. The marketplace of ideas requires students to have a full airing of all opinions.

 

 

 

References

Bethel School District No 403 v. Fraser, 478 U.S. 675, 106 S … (n.d.). Retrieved from http://miketullylaw.com/library/SCOTUS/Bethel_Fraser.pdfCenters for Disease Control and Prevention (June 15, 2012).

Education – Generation Z. (2013, November 17). Retrieved January 27, 2016, from http://generationz.com.au/education/

Esseks, J. (2015, September 23). Censored: Retrieved January 20, 2016, from https://www.aclu.org/blog/speak-freely/censored-some-people-are-gay-get-over-it

FREEDOM OF SPEECH, PRESS, PETITION & ASSEMBLY – Free Republic. (n.d.). Retrieved from http://www.freerepublic.com/focus/fr/591395/posts

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592, 1988 U.S. LEXIS 310, 56 U.S.L.W. 4079, 14 Media L. Rep. 2081 (U.S. 1988)

Hudson, D. L., Jr. (2002, September 28). First Amendment Center. Retrieved January 26, 2016, from http://www.firstamendmentcenter.org/k-12-public-school-student-expression-overview

Jani, S., MD. (n.d.). Join our efforts to support. Retrieved January 26, 2016, from http://www.bravesociety.org/

K-12 public school student expression overview | First … (n.d.). Retrieved from http://www.firstamendmentcenter.org/k-12-public-school-student-expression-overvi

Saltzman, A. (1993, December 6). Its Not Just Teasing [Editorial]. US News and World Report, 73-77. Retrieved January 26, 2016.

Sexual Violence. Retrieved July 14, 2013, from Espelage, D. L. 2014). Using NCES Surveys to Understand School Violence and Bullying, 9-10. Retrieved January 26, 2016, http://www.cdc.gov/ViolencePrevention/sexualviolence/.

Stevens, J. (1992-1993). Freedom of Speech, The. Yale Law Journal 102(6), 1293-1314.

Stossel, J. (Director). (2015). Censorship in America [Motion picture on Television]. United States: Fox News.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731, 1969 U.S. LEXIS 2443, 49 Ohio Op. 2d 222 (U.S. 1969)

VICTORY: Lawsuit Settlement Restores Free Speech Rights at … (n.d.). Retrieved from https://www.thefire.org/victory-lawsuit-settlement-restores-free-speech-rights-a

 

Income Inequality Is Costing the U.S. on Social Issues

Thirty-five years ago, the United States ranked 13th among the 34 industrialized nations that are today in the Organization for Economic Cooperation and Development in terms of life expectancy for newborn girls. These days, it ranks 29th.In 1980, the infant mortality rate in the United States was about the same as in Germany. Today, American babies die at almost twice the rate of German babies “On nearly all indicators of mortality, survival and life expectancy, the United States ranks at or near the bottom among high-income countries,” says a report on the nation’s health by the National Research Council and the Institute of Medicine.What’s most shocking about these statistics is not how unhealthy they show Americans to be, compared with citizens of countries that spend much less on health care and have much less sophisticated medical technology. What is most perplexing is how stunningly fast the United States has lost ground.The United States has the highest teenage birthrate in the developed world — about seven times the rate in France, according to the O.E.C.D. More than one out of every four children lives with one parent, the largest percentage by far among industrialized nations. And more than a fifth live in poverty, sixth from the bottom among O.E.C.D. nations.Among adults, seven out of every 1,000 are in prison, more than five times the rate of incarceration in most other rich democracies and more than three times the rate for the United States four decades ago.The point is: The United States doesn’t have a narrow health care problem. We’ve simply handed our troubles to the medical industry to fix. In many ways, the American health care system is the most advanced in the world. But whiz-bang medical technology just cannot fix what ails us.

As economists from the University of Chicago, M.I.T. and the University of Southern California put it in a recent research paper, much of America’s infant mortality deficit is driven by “excess inequality.”American babies born to white, college-educated, married women survive as often as those born to advantaged women in Europe. It’s the babies born to nonwhite, nonmarried, nonprosperous women who die so young.Three or four decades ago, the United States was the most prosperous country on earth. It had the mightiest military and the most advanced technologies known to humanity. Today, it’s still the richest, strongest and most inventive. But when it comes to the health, well-being and shared prosperity of its people, the United States has fallen far behind.Pick almost any measure of social health and cohesion over the last four decades or so, and you will find that the United States took a wrong turn along the way.

How did we get here? How do we exit?As the presidential campaign draws the political debate to our national priorities, these questions must take center stage. As candidates argue over the budget deficit and the national debt, debate what to do about income inequality, address the problem of mass incarceration or refight the battles over the Affordable Care Act and the minimum wage, they should be forced to address how their policy wish list adds up to an answer.Continue reading the main storyContinue reading the main storyContinue reading the main story.

Looking at how the United States compares with other nations is illuminating. As I noted in last week’s column, over the last four decades or so, the labor market lost much of its power to deliver income gains to working families in many developed nations.But blaming globalization and technological progress for the stagnation of the middle class and the precipitous decline in our collective health is too easy. Jobs were lost and wages got stuck in many developed countries.What set the United States apart — what made the damage inflicted upon American society so intense — was the nature of its response. Government support for Americans in the bottom half turned out to be too meager to hold society together.

The conservative narrative of America’s social downfall, articulated by the likes of Charles Murray from the American Enterprise Institute, posits that a large welfare state, built from the time of the New Deal in the 1930s through the era of the Great Society in the 1960s, sapped Americans’ industriousness and undermined their moral fiber.A more compelling explanation is that when globalization struck at the jobs on which 20th-century America had built its middle class, the United States discovered that it did not, in fact, have much of a welfare state to speak of. The threadbare safety net tore under the strain.

Call it a failure of solidarity. American institutions, built from hostility toward collective solutions, couldn’t hold society together when the economic underpinning of full employment at a decent wage gave in.The question is, Is there a solution to fit these ideological preferences? The standard prescriptions, typically shared by liberals and conservatives, start with education, building the skills needed to harness the opportunities of a high-tech, fast-changing labor market that has little use for those who end their education after high school.Ensuring everybody has a college degree might not stanch the flow of riches to the very pinnacle of society. But it could deliver a powerful boost to the incomes and the well-being of struggling families in the bottom half.

And yet the prescription — embedded in the social reality that is contemporary America — falls short. In contemporary America, education is widening inequity, not closing it. College enrollment rates have stagnated for lower-income Americans. Sean Reardon from Stanford University notes that the achievement gap between rich and poor children seems to have been steadily expanding for the last 50 years.On the left, there are calls to build the kind of generous social insurance programs, which despite growing budget constraints remain largely intact among many European social democracies. Senator Elizabeth Warren, Democrat of Massachusetts, for example, is calling for an expansion of Social Security, paid for by lifting the cap on payroll taxes so the rich pay the same share of their income to support the system as everybody else.That may be desirable, though at the moment, our greatest problems are not about the elderly. And at least for the foreseeable future, it remains a political nonstarter in a nation congenitally mistrustful of government. Just in time to kick off the presidential campaign, Republicans in the House and Senate were working on a budget that would gut Obamacare — most likely increasing the pool of the nation’s uninsured — and slash funding for programs for Americans of low and moderate income.Yet despite the grim prognosis, there is hope. The challenge America faces is not simply a matter of equity. The bloated incarceration rates and rock-bottom life expectancy, the unraveling families and the stagnant college graduation rates amount to an existential threat to the nation’s future.

Yet despite the grim prognosis, there is hope. The challenge America faces is not simply a matter of equity. The bloated incarceration rates and rock-bottom life expectancy, the unraveling families and the stagnant college graduation rates amount to an existential threat to the nation’s future.That is, perhaps, the best reason for hope. The silver lining in these dismal, if abstract, statistics, is that they portend such a dysfunctional future that our broken political system might finally be forced to come together to prevent it.

The Trend is moving towards limited Practice for Paralegals

The practice of law appears to be moving the way of the medical profession. Washington, prepares to license Paralegals to operate independently in limited areas of law. California and Massachusetts are also moving that direction. This move will be a boon for consumers and drive down rates for many civil actions, everyday Americans use. Review the link below to find the opinions of the American Bar Association (“ABA”) on this change of direction.

http://www.abajournal.com/magazine/article/washington_state_moves_around_upl_using_legal_technicians_to_help_close_the

If the link isn’t available copy and post to your browser.

The Oppression by the Bar may be reaching it’s end.

The Issue rests on from the U.S. Supreme Court
The Issue rests on from the U.S. Supreme Court in a suit that will determine whether dental services for whitening teeth must be registered dentists. The decision is expected this spring and relates to right to work and First Amendment right  of free speech. The following article was printed in the Wall Street Journal. Hell Hath No Fury Like a Lawyer Scorned. Please provide feedback on this issue.

More on Social Media Law

Facebook and other social media are being subjected to new aspects of law. It is not enough to restrict the audience of posts to private or limited to friends only. If you post anything on social media you lose the privacy protections of that information. This most recent case, Ms. Nucci posted activities of her life after her accident, showing her quality of life. Those activities diminished her claims.

On January 7, 2015, in Nucci v. Target Corp, et al, the District Court of Appeal of the State of Florida, Fourth District upheld a lower court’s order compelling Plaintiff Maria Nucci to produce photographs originally posted to her Facebook page. No. 4D14-138, 2015 WL 71726, — So. 3d — (Fla. Dist. Ct. App. Jan. 7, 2015). The Court held there is little, if any, right to privacy in photos posted on Facebook or other similar social networking sites. In this case, Plaintiff asserted personal injuries resulting when she slipped and fell on a foreign substance in a Target store. Specifically at issue on appeal were more than 30 photos Plaintiff posted on Facebook and then removed shortly after the photographs were discussed during her deposition.

Plaintiff objected to Target’s written request to produce the photos, asserting that her use of Facebook privacy settings created a right to privacy, and further that the Federal Stored Communications Act (“FSCA”) prohibited disclosure of her Facebook photos. The Court balanced Plaintiff’s purported right to privacy against the relevance of the photos to her damages claim. While the Court recognized that Florida’s Constitution provides a broader right to privacy than the U.S. Constitution, it nonetheless held that photos posted on social networking sites are neither privileged nor protected by any privacy rights, despite the use of privacy settings.

This ruling echoes similar recent decisions across the country. In Tompkins v. Detroit Metro. Airport, the United States District Court for the Eastern District of Michigan held that “material posted on a ‘private’ Facebook page, which is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy.”[1] The New York Court of Appeals reached a similar result holding that “postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access.”[2] Likewise, the United States District Court for the Central District of California noted that content posted to social networking sites is not privileged or protected, and requests for such information therefore need only be reasonably calculated to lead to admissible evidence.[3] Indeed, in Nucci, the Florida Appellate Court recognized that discovery requests should be reasonably tailored to lead to discovery of admissible evidence, and acknowledged that Target’s requests met that standard.

The Court gave short shrift to Plaintiff’s privacy claim pursuant to the FSCA. It held that while the FSCA prohibits providers of communication services from divulging user’s private communications, it does not apply to the individual users themselves. The Court also rejected Plaintiff’s relevance objections, holding that when personal injuries and quality of life are at issue, photos posted on social media websites “are the equivalent of a ‘day in the life’ slide show produced by the plaintiff before the existence of any motive to manipulate reality” and are therefore “powerfully relevant to the damage issue.”

 

Notes:

[1] 278 F.R.D. 387, 388 (E.D. Mich. 2012).

[2] Patterson v. Turner Constr. Co., 931 N.Y.S. 2d 311, 312 (N.Y. App. 2011).

[3] Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012).

Facebook, and other social media, users beware!

Police from all agencies, state and federal, are increasingly focusing on social media. Be leery of your posts and those posting on your sites. Perhaps the best protection is to limit who may post on your sites, to only those who are trusted. This will allow you to monitor what others post, by restricting them to send you a private message with their proposed posting.

While the article below is specific to police, the same is true for individuals and groups who choose to wish you harm. The best defense is prevention!

If this is an area of concern, please contact Filson Paralegal Services LLC through this site.

Fake-out stakeout. For several months now, we’ve been covering the increasingly prevalent use of social media by law enforcement agencies conducting criminal investigations. In one such instance, the FBI sent a link to a fabricated news story to the MySpace page of a high-school-bombing-threat suspect to lure him into downloading malware that revealed his whereabouts. In another, the DEA set up a fake Facebook page in the name of a woman whom the agency was investigating as bit player in a federal drug investigation. All of the scenarios present a unique group of ethical and legal questions that are being debated in the media and in the U.S. court system. Now, a federal judge in New Jersey has sanctioned one such social media evidence gathering tactic: Denying a criminal defendant’s motion to suppress pictures from his private Instagram account, U.S. District Judge William Martini held that police officers did not need a search warrant when they accessed those pictures by friending the defendant using a fake Instagram account. The judge referenced a New York federal district court opinion holding that the government did not violate the Fourth Amendment when it accessed a criminal defendant’s Facebook profile through one of the defendant’s Facebook “friends,” a cooperating witness.
Goggle gaffes? With a market cap of more than $382 billion, incalculable influence over a variety of business sectors, and a name that earned a place in the Oxford English Dictionary in 2006, Google is clearly on a roll as we enter the New Year. Yet, as Forbes contributor Gene Marks notes, the company has had its share of outright flops, and it invests an awful lot of money in products that no one wants to buy. For example, a “solution in search of a problem,” Google Glass has yet to get off the ground. And, because it would likely require giving the government more centralized control over the U.S. transportation system, the driverless car for which Google recently introduced a prototype is apparently years away from being a viable option. But there’s no chance of these seemingly profitless projects taking the tech giant down, according to Marks. Awash with cash from other profitable revenue streams, the company can afford to invest in dream projects that aren’t likely to bring in money anytime soon.Porn again. Illinois became the most recent state to pass a law criminalizing “revenge porn,”sexually explicit photos publicly disseminated (most often by posting them to the Internet) without the subject’s consent, usually by a jilted lover seeking retribution, or by someone who has obtained the pictures by hacking into the victim’s smartphone or computer. The measure, signed into law on December 29, 2014, by Democratic Governor Pat Quinn, makes posting revenge porn a Class 4 felony punishable by one to three years in prison and a fine of up to $25,000. Fourteen other states– including New York, Utah, Texas and California, which recently convicted a man for posting nude photos of his ex – have similar laws. In those states without revenge porn statutes, there are other potential avenues for combatting revenge porn, as we discussed in an early 2014 blog post.

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