The First Amendment and Occupy Wall Street’s Occupation of Zuccotti Park

by Tony Guo


Over Fall Break I visited my fiancée in New York City.  As part of my visit we went to Washington Square Park.  We both graduated from New York University and Washington Square Park is a second home to us.  It was the first place I met my fiancée.  Before I graduated the park had undergone renovations forcing the two previous classes and my class to break tradition and graduate in Yankee stadium instead Washington Square Park.  I was curious to see the recent renovations and excited to visit my favorite park.  When we got near the park we saw rows of police vehicles.  We had stumbled upon an Occupy Wall Street protest.

My fiancée and I made our way to the barricaded fountain and in the process received several copies of the same Occupy Wall Street newspaper.  As we left the park to go to the vendor fair nearby I heard a protestor arguing with a resident.  The protestor held a copy of the Constitution and a copy of the Occupy Wall Street newspaper.  The protestor gave the newspaper to the resident who immediately threw it in the trash can.  As the resident moved away, the protestor shouted “you are suppressing my First Amendment right to be heard.”  The protestor having not taken William and Mary Professor Timothy Zick’s First Amendment class was unaware that the First Amendment only prohibits state actors such as a police officer from limiting his right to free speech and not private persons.  The protestors should have said please recycle.



Published in: on November 6, 2011 at 12:01 pm Comments Off on The First Amendment and Occupy Wall Street’s Occupation of Zuccotti Park

A New Approach to Prisoner Treatment

Statistics about America’s prison system are disturbing.The United States has the highest prison population rate in the world; as of 2008, it was 756 inmates per 100,000 people. There were 2,310,984 inmates in American prisons and jails as of June 2008.  This number has quadrupled since 1980, due not to an increase in violent crimes but rather as a result of the “get tough” movement, which included such policies as mandatory sentencing, ‘three strikes’ laws, and a reduction in the use of parole, and has resulted in striking increases in arrests for drug possession. As Scott Turow has noted, “these days, you can get life in California for your third felony, even if it’s swiping a few videotapes from a Kmart.” In light of such startling figures, it is important to consider why we lock people up.

The goals of incarceration are various and can run counter to one another. Retribution, deterrence, and incapacitation are all reasonable purposes of incarceration, and the American prison system seems to have embraced such approaches.  But rehabilitation is also a legitimate goal. And there are a variety of programs attempting to improve the lives of those convicted of crimes. These include efforts outside of prisons, such as drug courts, which give non-violent substance abuse offenders the opportunity to choose treatment over jail time. They also include programs inside of prisons, such as ‘restorative justice’ which is based on the idea that all sides would benefit if offenders could come to terms with what they have done and try to make amends with those they have harmed.  A 2007 documentary explores one intriguing effort to make the goal of rehabilitation a reality.

The Dhamma Brothers, directed by psychotherapist/anthropologist Jenny Phillips, shows the remarkable and profound effects a silent meditation course has on a group of inmates, including rapists and murderers, at Donaldson Correctional Facility, a maximum security prison in Alabama, in 2002. Over the course of ten days, the inmates learn Vipassana meditation, an ancient Buddhist technique which originated in India and was transmitted and preserved in Burma for centuries. Vipassana has in recent years seen somewhat of an explosion in the West; there are many centers throughout the world, including throughout the United States and Canada. The course is rigorous and challenging. Participants meditate for 10 hours per day, starting out with breathing exercises, and around the fourth day switching to a focus on bodily sensations. Meditators pledge to maintain ‘noble silence’ until the final day; and no activities are allowed other than meditating, sleeping, walking, and eating; this means no reading, no writing, no exercising.


Published in: on November 13, 2009 at 11:41 pm Comments Off on A New Approach to Prisoner Treatment

On the Slippery Slope to Gay Marital Bliss

On Friday, November 6, Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern, visited William & Mary School of Law and gave a talk on gay marriage. His speech was presented by the Institute of Bill of Rights Law and the American Constitution Society.

Koppelman stated that the gay marriage movement is one of the mot successful such movements in U.S. history; ten years ago, no gays could marry; in 1999, Vermont was the first state to allow it, and at present there are nine states, representing almost 25% of the United States by population, that give same-sex couple all the rights of married couples (though only four states actually use the term ‘marriage’). There is a clear trend towards continued acceptance of gay marriage: 58% of 18-34 year olds support it, whereas only 24% of those over 65 do.

Much of Koppelman’s talk focused on presenting a response to the work of the so-called  ‘new natural law’ theorists, such as Robert George, John Finnis, and Patrick Lee. These thinkers have attempted to sketch out what makes the relationships of heterosexual couples intrinsically more valuable than those of homosexuals, even when the former couple is unable to conceive a child.

According to Koppelman, one of the approaches taken by these theorists includes the argument that heterosexual sex involves some ‘two in one-ness,’ or a biological unity, that gay sex doesn’t. According to this argument, each human is an incomplete, potential part of a mated pair that becomes one during the sex act.


Published in: on November 9, 2009 at 11:17 pm Comments Off on On the Slippery Slope to Gay Marital Bliss

Go to School, Lose Your Rights?

How far can public schools go in trying to enforce their anti-drug (or anti-weapon) policy?  That question is coming before the Supreme Court on April 21.  That particular case involves a 13-year-old girl who was strip-searched at her Arizona public middle school because she was suspected of having prescription strength ibuprofen.  Savana Redding was stripped down to her underwear and humiliated after another girl at the school was found with the drugs and named the girl as the source.  No drugs were found on her person or in her things.  The incident occurred six years ago.  Since then, the case has made it to the United States Court of Appeals for the Ninth Circuit, which subsequently ruled that the search violated the Fourth Amendment’s prohibition on unreasonable search and seizures.  The school district appeals, claiming that the search wasn’t unreasonable because of the girl’s age and “the nature of her suspected infraction”.  Certiorari was granted on January 16, 2009.  Redding is currently being represented by the American Civil Liberties Union.

How can a strip search of a 13 year old girl suspected of having ibuprofen be considered reasonable?  Especially when the only evidence the school had to suspect the girl of having the drugs was the word of another student who was herself in trouble.  She was essentially punished before she even had a chance to explain herself.  The last case the Supreme Court has ruled on about individual searches of students was in 1985, when it ruled that warrantless searches of students’ purses was permitted so long as the search was reasonable.    Searching purses is vastly different from strip-searching- while purses and their contents may have private and personal items to the owner, the student in question is not having their person inspected and the added element of humiliation isn’t so severe.   According to Redding’s affidavit, the search was “the most humiliating experience I have ever had”.  There is no reason why a middle school girl should have been humiliated on the accusations of others.

Not only was this girl embarrassed for no reason, her parents were not even informed of the events that transpired until AFTER the search.  Being upset, her mother spoke with the assistant principal, who apparently didn’t think the search was a big deal since no drugs turned up.  Why weren’t her parents informed of this incredibly invasive procedure before it happened?  At the very least, searches of this kind to minors should be done with a parent or guardian present.  Special protections should, and do, exist for minors.  Even if the Supreme Court rules that searches of this nature are permissible for students suspected (however far-fetched the suspicion may be) of carrying drugs or weapons on their person, a parent needs to know what is happening to his or her child.  Regardless, this case seems to be a violation of the Fourth Amendment, and hopefully the Supreme Court will rule as such.


Published in: on March 25, 2009 at 3:21 pm Comments Off on Go to School, Lose Your Rights?

Some Truths About Guantánamo Bay

Guest Blogger: Lawrence Wilkerson

There are several dimensions to the debate over the U.S. prison facilities at Guantánamo Bay, Cuba that the media have largely missed and, thus, of which the American people are almost completely unaware.  For that matter, few within the government who were not directly involved are aware either.

The first of these is the utter incompetence of the battlefield vetting in Afghanistan during the early stages of the U.S. operations there.  Simply stated, no meaningful attempt at discrimination was made in-country by competent officials, civilian or military, as to who we were transporting to Cuba for detention and interrogation.  This was a factor of having too few troops in the combat zone, of the troops and civilians who were there having too few people trained and skilled in such vetting, and of the incredible pressure coming down from Secretary of Defense Rumsfeld and others to “just get the bastards to the interrogators”.   It did not help that poor U.S. policies such as bounty-hunting, a weak understanding of cultural tendencies, and an utter disregard for the fundamentals of jurisprudence prevailed as well (no blame in the latter realm should accrue to combat soldiers as this it not their bailiwick anyway).

The second dimension that is largely unreported is that several in the U.S. leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.  But to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror and these leaders already had black marks enough: the dead in a field in Pennsylvania, in the ashes of the Pentagon, and in the ruins of the World Trade Towers. They were not about to admit to their further errors at Guantánamo Bay.  Better to claim that everyone there was a hardcore terrorist, was of enduring intelligence value, and would return to jihad if released.  I am very sorry to say that I believe there were uniformed military who aided and abetted these falsehoods, even at the highest levels of our armed forces.

The third basically unknown dimension is how hard Secretary of State Colin Powell and his deputy Richard Armitage labored to ameliorate the GITMO situation from almost day one.  For example, Ambassador Pierre Prosper, the U.S. envoy for war crimes issues, was under a barrage of questions and directions almost daily from Powell or Deputy Secretary Armitage to repatriate every detainee who could be repatriated.  This was quite a few of them, including Uighurs from China and, incredulously, citizens of the United Kingdom (“incredulously” because few doubted the capacity of the UK to detain and manage terrorists).  Standing resolutely in Ambassador Prosper’s path was Secretary of Defense Rumsfeld who would have none of it.  Rumsfeld was staunchly backed by the Vice President of the United States, Richard Cheney.  Moreover, the fact that among the detainees was a 13 year-old boy and a man over 90, did not seem to faze either man, initially at least.


Published in: on March 16, 2009 at 3:46 pm Comments Off on Some Truths About Guantánamo Bay

Secret Courts Multiply in the U.S.

Mohamed v. Jeppesen Dataplan, Inc

Oral arguments available here (audio .wma).

Mohamed, and 4 other plaintiffs, are suing an airline for transporting him around the world, against his will, for the purpose of subjecting him to the torture of foreign governments. Apparently he has some pretty damning quotes which (if believed) make it as clear as day that the executives in the airline company knew what was going on and made the calculated choice to participate nonetheless. If that’s true, and barring any defenses they might raise, it sounds like they are pretty clearly liable to Mohamed for damages.

But then the government ‘intervened’ (unilaterally requested that it be made a defendant) and argued that, under the ill-defined ‘state secrets privilege,’ the case could not go forward because it would necessarily require testimony on a subject of state secrecy.

Published in: on February 16, 2009 at 11:52 pm Comments Off on Secret Courts Multiply in the U.S.

Maybe Cruel, Definitely Unusual

After a one day trial, 13-year-old Joe Sullivan was convicted of burglary and rape, and sentenced to life without the possibility of parole.  He and his friends had burglarized the house of an elderly woman, and she was raped, though it is unclear whether Sullivan was the rapist.  Now 33, Sullivan is asking the Supreme Court to consider whether such a sentence imposed on minor violates the Eighth Amendment.

Sullivan is not arguing innocence, though his representation at trial and guilt of the rape charge were both questionable.  Rather, Sullivan and his lawyers are arguing that sentencing a child barely in his teens to life, without the possibility of parole, is cruel and unusual.  Sullivan would merely like the right to argue his case to a parole board.

Should the Supreme Court take certiorari on the case, it will be interesting to see how the decisions in Roper v. Simmons (2005) and Kennedy v. Louisiana (2008) will frame the question.  The decision in Roper struck down the death penalty for 16- and 17-year-olds, and Kennedy barred the use of the death penalty for adults in crimes that do not involve killing.  While a life sentence is certainly distinguishable from the death penalty, the court may decide to broaden its recent inquiries into punishment, using its decisions narrowing the application of capital punishment as a frame.


Published in: on February 3, 2009 at 11:53 pm Comments Off on Maybe Cruel, Definitely Unusual

Excluding the Exclusionary Rule

A couple of weeks ago, the Supreme Court announced its decision in Herring v. United States, providing for limitations on the application of the Exclusionary Rule in cases of police negligence. The ruling is ill-conceived, but certainly not outrageous. However, in a few pieces of dicta in his opinion, Chief Justice John Roberts seems to let slip his true feelings about the Exclusionary Rule and the Fourth Amendment more broadly – feelings which could more reasonably be described as outrageous.

As always, we start with the facts. Bennie Herring had come to the Coffee County Sheriff’s Department to retrieve some personal items from his car which had been impounded. Investigator Mark Anderson was at the Department that day, and it seems that Anderson and Herring had something of a checkered past. Indeed, Herring had suggested to the District Attorney that Anderson was involved in the killing of a local teenager. So, let’s just say that these guys did not like each other. So, knowing that Herring was at the Department, Anderson asked the Coffee County warrant clerk to see if there were any outstanding warrants for Herring’s arrest. The clerk found none, so Anderson asked her to call the warrant clerk of neighboring Dale County, and alas, they found a warrant for Herring’s arrest. With this information, Anderson promptly arrested and searched Herring, finding some methamphetamine in his pocket and a pistol in his truck (which was illegal, given his status as a felon). Mere minutes after the arrest and search, Anderson received word from the warrant clerk that the warrant was invalid – it had been recalled five months earlier, but the computer database had not been updated (which apparently was the duty of a police official).

Naturally, Herring sought to invoke the Exclusionary Rule. Not so surprisingly, the magistrate judge in the Middle District of Alabama and the Eleventh Circuit would have none of that. And that brings us to our beloved Supreme Court.


Published in: on February 2, 2009 at 8:28 pm Comments Off on Excluding the Exclusionary Rule
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Coming and Going; the Going Part: Saucier Overruled

Yesterday, in Pearson v. Callahan, the Supreme Court overruled Saucier v. Katz. This is a really big deal. Section 1983 makes it a crime for anyone to violate the civil rights of another citizen ‘under color of law’. Given that expansive language (which is just as expansive as it sounds), and the availability of private damage awards, 1983 suits make up a significant proportion of the federal docket — over 40,000 per year as of 1999. The opposing principle to such a broad provision is that of ‘qualified immunity,’ under which the defendants in such cases (usually police and correctional officers) are not liable under section 1983 if at the time of the violation, it was not ‘clearly established’ that their conduct was unconstitutional. Under Saucier v. Katz, the courts were required to actually decide whether the conduct at issue was a violation of the plaintiff’s (ie. the criminal defendant’s) constitutional rights BEFORE the court decided whether or not the plaintiff was entitled to qualified immunity.

This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution’s ‘elaboration from case to case’ and to prevent constitutional stagnation. ‘The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.’

Naturally, courts didn’t want to do it; they would rather skip to the qualified immunity part by just assuming the conduct was unconstitutional. The problem is, when the standard is whether the unconstitutionality of the conduct was ‘clearly established,’ skipping the part of the decision that establishes it does not provide any guidance for police and correctional officials in the future (or any precedent on which to hold them accountable). That is what the Court in Saucier meant by “stagnation,” and why, under the Saucier “order of battle” rule, if a suit was brought, and the court thought the even if there had been a violation of the Fourth Amendment, the defendants were entitled to qualified immunity, it could not decline to decide the question of the constitutionality of what the police did before it completely dismissed the case. Today, that rule is overturned.


Published in: on January 22, 2009 at 10:18 am Comments Off on Coming and Going; the Going Part: Saucier Overruled

One Step Forward, Two Steps Back

On May 15, 2008, the California Supreme Court struck down a California voter referendum banning same-sex marriage. It was a historic decision, and made California the second state to legalize gay marriage, after Massachusetts legalized same-sex marriage in 2004. The decision came after several gay couples filed a lawsuit claiming discrimination, and in 4-3 ruling, the same-sex marriage ban was overturned. Supporters of gay marriage were overjoyed, and since the ruling thousands of gay couples have been married in California (about 18,000 same-sex marriages). Of course, there were also those who vehemently opposed the ruling, and legislators quickly drafted a ballot initiative known as Proposition 8, which would ban same-sex marriage and put current same-sex marriage licenses in legal limbo.

On November 4, 2008, the same election day in which this country elected our first African American President, California voters effectively banned same-sex marriage once again. Proposition 8 passed with 52% of the vote. This vote came as a major blow to gay rights supporters. How is it that voters could once again enact a ban that the California Supreme Court had ruled was unconstitutional? Already, several organizations, such as the American Civil Liberties Union and Lambda Legal have filed suit, claiming that same-sex marriage cannot be outlawed with a ballot initiative. Protests against the passing of Proposition 8 have also erupted around the country, including in Boston (where gay marriage is still legal), Washington D.C., and Chicago, along with protests in San Francisco and Los Angeles.

The major legal issue behind Proposition 8 is its legality. Is it unconstitutional? It seems to me that if the state Supreme Court of California thought it was unconstitutional and violated against fundamental civil liberties, then it should still be considered unconstitutional. For this reason, California’s Attorney General Jerry Brown, along with supporters of Proposition 8, are urging the state Supreme Court to review the cases challenging Proposition 8’s legality as soon as possible. Although he wasn’t a supporter of Proposition 8 before it was passed, Attorney General Brown said he would fight to uphold the ban as “an expression of public sentiment” on gay marriage. But maybe it shouldn’t matter what the “public sentiment” is; if a statute was found to be unconstitutional because it violated fundamental civil rights, how does public sentiment outweigh that? Public sentiment used to support all kinds of violations of fundamental civil liberties, such as denying the right for interracial couples to marry as late as the 1960s (see this case, Loving v. Virginia, 388 U.S. 1 (1967)). While the Attorney General said he would work to uphold the measure, he did say that he thought the marriages before the ban would remain valid. It seems unfair, however, to deny that same privilege to same-sex couples who planned on getting married in the future.


Published in: on November 18, 2008 at 11:45 pm Comments Off on One Step Forward, Two Steps Back
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