Banning Bottoms

Belt sales in Louisiana could soon get a boost. The city counsels of Shreveport and Alexandria recently voted to prohibit individuals from wearing their pants below the waist, joining four other Louisiana cities in banning baggy pants. Depending on the city, violators are subject to fines of up to $200 and may even be required to perform community service. But Louisiana is not alone—Atlanta is considering a similar proposal which would actually make wearing baggy pants a public indecency offense and Dallas is contemplating making droopy drawers part of a statute prohibiting lewdness. The city councilmen and women cite various reasons for the bans, including embarrassment to the city (Dallas), being “tired of looking at behinds” (Shreveport), or most simply, that wearing one’s pants below the waist just “doesn’t make sense” (Atlanta).

Although these proposals appear to enjoy plenty of support, not everyone is so enthusiastic. In 2005, the Virginia Assembly defeated a bill proposed by Delegate Algie T. Howell which would have imposed a $50 fine on anyone who “intentionally displays his below-waist undergarments…in a lewd or indecent manner.” The Virginia House of Delegates actually approved the bill, but the Senate unanimously rejected it, responding to fears that the ban would be unconstitutional. More recently, the city council in Stratford, Connecticut rejected a baggy-pants ban out of concern that it would unfairly target minorities, and the ACLU has similarly intervened in Atlanta, arguing that prohibiting baggy pants would amount to racial profiling of young black men. I confess that I do not know enough about the age and race breakdown of those who sport baggy pants to weigh in on this argument, but regardless of the age or race (or sex) of the derriere-barer, I believe such a ban violates the Constitution in another way: by violating freedom of speech and expression.

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Published in: on September 9, 2007 at 5:50 pm Comments (1)

They Mummify Horses, Don’t They?

SummumIf you’ve never heard of the Summum religion, don’t feel too bad. It’s a new religion, founded in the 1970s by a man who now calls himself Summum Bonum Amen Ra (“Corky” to his friends). Adherents, of whom there are several hundred worldwide, believe that the universe was created ex nihilo by SUMMUM, the manifestation of divine potential (the capitalization is important). They meditate on aspects of creation, chemically enhancing the experience using alcoholic “nectars” manufactured at Summum’s main temple. The temple, incidentally, is a miniature replica of the Great Pyramid of Giza located in Salt Lake City, Utah. In keeping with this Egyptian theme, Summum also promotes a modern form of mummification. (The “thanatogeneticists” who carry out the process will also preserve dearly departed pets of all sizes for a reasonable fee.)

But this post isn’t just about Summum. It’s about the First Amendment.

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Published in: on August 29, 2007 at 2:46 pm Comments (3)

Sec. of Defense Robert Gates’ U.S. Naval Academy Address

Secretary of Defense Robert Gates (W&M ’65) delivered the commencement address at the U.S. Naval Academy in Annapolis today. The video of his remarks can be found here; the text here.

I believe that Gates’s speech was not only inspiring for the graduates; it also showed his own personal courage.

Courtesy of TheEagle.comIn a time marked by political leaders who distrust and malign the media–particularly in our current conservative White House–Gates told the 27,000 in attendance at Annapolis to “remember the importance of two pillars of our freedom under the Constitution: the Congress and the press.”

He stressed to the graduates that members of the military “must be nonpolitical,” and that it is important to have openness and truthfulness when reporting to the Congress. He cited the essential nature of the press as a guarantor of information to ‘the people’ (you and me) by pointing to the influential reporting about poor conditions at Walter Reed Army Medical Center, a scandal exposed by the Washington Post.

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Published in: on May 25, 2007 at 4:56 pm Comments Off on Sec. of Defense Robert Gates’ U.S. Naval Academy Address

Some Ask, Is Anonymity Still the Best Policy?

Last Wednesday, North Carolina Attorney General Roy Cooper dropped all charges against the three Duke lacrosse players accused of raping a stripper one year ago. On Thursday, The News & Observer of Raleigh “outed” the accuser, identifying her by name. They were not the only to do so – Fox News, The New York Post, and other major newspapers have followed suit.

The media generally follows a voluntary policy of not identifying accusers or victims of sexual assault. However, The News & Reporter as well as other news agencies have stated that since the Attorney General declared that no rape took place, there is no victim, and thus, no need to protect any victim’s identity. Surely, in this case, they are not wrong. The accuser was given a full year of media protection while her claims were thoroughly investigated, and perhaps even “helped along” by a not-so-ethical district attorney. Her identity was only released after a full investigation which turned up nothing but empty accusations.

But the Duke case is not your typical rape accusation case. The nature of the accusations, parties involved, and social circumstances all combined to create a remarkable anomaly. Despite this case’s divergence from the norm, however, some media outlets, including the Associate Press, have stated that they will review their disclosure policies to determine whether a broad policy of anonymity remains appropriate.

Martin Pinales, president of the National Association of Criminal Defense Lawyers supports these evaluations, saying that the function of newspapers is not to be “politically correct” but rather to be accurate. Furthermore, Pinales stated that “[t]he First Amendment is not there for the press to say, ‘We’re going to abide by self imposed restrictions’ – the First Amendment is there for the public’s right to know.” I’m not sure Pinales’ characterization of the First Amendment is completely accurate, as the right to refrain from speaking ought stand on equal footing with the right to speak at all. Furthermore, the First Amendment rights include the right to free speech and press – but not necessarily the right to know.

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Published in: on April 17, 2007 at 3:41 pm Comments Off on Some Ask, Is Anonymity Still the Best Policy?

Free Speech and MySpace

Our Office of Career Services has told us repeatedly to Google our names and see what comes up. They say employers are doing the same thing to research potential associates before they are even interviewed. But according to recent news, all students need to be careful what their names are associated with. A middle school principal in Indiana was alerted by some of his students that an unknown person had created a MySpace.com page under his name and written a slew of cuss words peppered with violent threats. If you’d like to read the explicit text, check out the case (B. v. Indiana, 2007 Ind. App. LEXIS 694, 3 (Ct. App. IN 2007)).

The principal reported his findings to the local juvenile court, which instituted a delinquency petition. The prosecution alleged that if committed by an adult, the student’s actions would have amounted to identity deception, a Class C felony, and harassment, a Class B misdemeanor. Even after dropping most of the charges, including the felony offense, the student was found to be “delinquent” under an Indiana harassment statute, and was placed on nine months of probation.

On Monday, the Court of Appeals of Indiana set aside the verdict, and held that the first amendment extends to comments on MySpace.com. In the opinion, the court said that “While we have little regard for A.B.’s use of vulgar epithets, we conclude that her overall message constitutes political speech. Addressing a state actor, the thrust of A.B.’s expression focuses on explicitly opposing Gobert’s action in enforcing a certain school policy.” A.B. v. Indiana, 2007 Ind. App. LEXIS 694, 13 (Ct. App. IN 2007). And because there was no evidence that this political speech caused damage that would otherwise provide the basis for a tortious action, the statute and sentence of probation were held to be unconstitutional.

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Published in: on April 12, 2007 at 9:32 pm Comments (5)

Chemerinsky Takes on the Wren Cross

“How does an areligious person feel when they walk onto the grounds of the Texas Wren CrossState Capitol and they see a 6 foot high, 3 foot wide monument of the Ten Commandments that reads, ‘I am the Lord Thy God….'” Professor Erwin Chemerinsky posed this question to an audience on the William and Mary undergraduate campus yesterday, the first speaker in a series on Religion and the Public University. Chemerinsky, a frequent ACS participant, and a professor of law at Duke, is one of the country’s top constitutional law scholars; incidentally, he also was lead advocate in Van Orden v. Perry (2005), where the Supreme Court allowed a monument of the Ten Commandments to remain on the grounds of the Texas State Capitol. In Van Orden, the Court held that the monument was not an impermissible endorsement of religion by the government.

Chemerinsky explained to the crowd that during the Van Orden litigation, he received piles of hate mail. Although this was clearly not a pleasant experience, it did illustrate the extent to which a segment of the population cares deeply about the presence of religious symbols on government property. But the subtler point: the hate mailers do not want religious symbols on state property because those symbols carry historical significance (as Texas argued). Instead, they want religious symbols to be present precisely because they symbolize religion. Similarly, Chemerinsky argued that those who argue that the Wren Cross should be displayed are primarily motivated by a desire for religious symbols to be displayed as religious symbols. And this brings us to the First Amendment Establishment Clause.

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Published in: on April 6, 2007 at 8:07 am Comments (1)

Failure to State a Claim?

What is a hostile work environment for purposes of the 1964 Civil Rights Act? It seems that, at least in the 4th Circuit, racist coworkers and a management that ignores employee complaints is completely acceptable. It is hard to believe that a federal court would hold that a reasonable African American would not perceive his work environment as hostile after a co-worker suggested, referring to two African American criminals, that police “should put those two black monkeys in a cage with a bunch of black apes and let the apes f–k them.” Jordan v. Alternative Res. Corp., 458 F.3d 332, 336 (4th Cir. 2006). Yet that is what has happened.

When Robert Jordan reported this highly offensive comment to his supervisors, they did nothing. Actually, they did nothing to reprimand the offending employee. Jordan, on the other hand, was fired for being “disruptive.” id. As one might expect, Jordan brought suit for retaliation and discrimination based on race. The District Court, however, granted his employer a 12(b)(6) motion to dismiss for failure to state a claim. The 2-1 Circuit Court decision to affirm was temporary vacated pending a rehearing, at which time the Court simply rewrote its opinion, affirming the dismissal once more. This case seems invite employers to fire employees as soon as they complain of racial slurs as a successful method of preventing work environment from becoming “hostile” enough to merit legal action. The Chief U.S. District Judge for Western Pennsylvania, at least, has already criticized the decision as one that “unfairly requires an employee to sit back and wait until harassment has become severe and pervasive before bringing it to the employer’s attention.” Greene v. MPW Indus. Servs., 2006 U.S. Dist. LEXIS 72421 (D. Pa. 2006). Supporters of civil rights and equal protection everywhere must wait and see whether future suits for discrimination and untimely employment termination will be heard by courts in support of northern 3rd Circuit or the southern 4th.
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Published in: on March 6, 2007 at 9:50 pm Comments Off on Failure to State a Claim?

Free Speech and Cheesesteaks

Here’s an interesting question for all y’all:

Where do we draw the line between one man’s right to free speech, and another’s right to be free from discrimination?

That’s the question set for debate in Philadelphia. Joey Vento, owner of Geno’s Cheesesteaks, gained notoriety last summer for his vigilante anti-immigration campaign. Apparently frustrated with the fact that Mexican immigrants are slowly beginning to outnumber South Philly’s traditionally Italian-American culture, Vento posted a sign requiring all customers to speak English while ordering. This sparked a national discussion about the rights of Vento to control his business, and the rights of customers to speak their own language.

This week, Vento was notified by the Philadelphia Commission for Human Relations that his guerilla war on immigration is discriminatory. Vento asserts that the sign is merely an exercise of his First Amendment rights.

So, here we go: free speech versus tolerance.

(The irony of the situation is that Geno’s has an unwritten rule requiring patrons to speak gibberish while ordering. Personally, I’m a big fan of the ‘whiz wit,’ although I’d much rather go across the street to Pat’s.)

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Published in: on February 9, 2007 at 9:32 pm Comments (5)

Army of One?

Should a soldier be permitted to refuse deployment? What if the soldier thinks the war to which he is being deployed is illegal, and his simple presence in the country (Iraq, if that’s not clear yet) would “make [him] a party to war crimes.” ABC News is running a story about the upcoming court-martial of First Lt. Ehren Watada. In addition to refusing deployment, Watada is also being charged with “conduct unbecoming of an officer” for making public speeches against the war – some to packed crowds.

Just as freedom of speech is limited for you and me (no shouting “FIRE!”, as they say), Watada’s freedom of speech, as an officer, is limited as well. The article takes care to point out that Watada is not permitted to “encourage other soldiers to disobey orders.” It’s not clear whether Watada has actually so encouraged, although I imagine the government might try to make the argument that by publicly speaking against the war and refusing to go (under threat of imprisonment), Watada is “encouraging by example.” Watada’s court-martial began yesterday, and the soldier’s fate should be decided by week’s end.
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Published in: on February 6, 2007 at 10:17 am Comments (1)