In fashion trademarks can be the difference between a twenty dollar pair of shoes and a twenty-hundred dollar pair.  In January 2012 Mr. Louboutin’s went to court to prevent Yves Saint Laurent from marketing shoes that had red soles.  This was not Mr. Louboutin’s first visit to court over the issue.  Last August he was unsuccessful in convincing federal Judge Victor Marrero that red soles can be trademarked.  Judge Marrero cited the freedom to use different colors as vital for the health of the fashion industry and ruled against Mr. Louboutin.

Mr. Louboutin’s recent argument is that the trademark only protects a particular color in a particular place on a particular item.  His argument was met with skepticism from the panel and his lawyer was asked rhetorically whether he thought a color could be trademarked.  Mr. Louboutin’s argument is more subtle than a question about whether a color can be trademarked.  The court overlooked his argument that the color red used in a certain context can serve a trademark.  His trademark for red soles is not much different from Tiffany’s robin blue, Burberry’s plaid, or Louis Vuitton’s brown and gold.

I agree with the panel that fashion is delicate and that colors are vital to the industry.  However Mr. Louboutin’s red soles have become well known in the industry and border line iconic.  Allowing other designers to benefit from Mr. Louboutin’s ground work would defeat the purpose of trademark.  As a society we want to reward individuals like Mr. Louboutin for developing the trademark.  Mr. Louboutin made red soles famous.  The color red had little to do with the success of Mr. Louboutin’s shoes, but the shoes had a lot to do with the success of red soles.  That is why Mr. Louboutin deserves a trademark.

The battle over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) was determined by an unlikely source, online users. Although it is hard to quantify the impact the online protest had, it is certain that without it far fewer people would know what SOPA and PIPA is about.  Goggle, Wikipedia, Craigslist, and numerous online websites made SOPA and PIPA part of the news and part of the discussion.

As citizens voiced their displeasure about the laws, lawmakers quickly abandoned the two bills.  The vote on PIPA was delayed in the Senate while Lamar Smith the lead SOPA sponsor killed SOPA in the House.

Internet users stopped raiding and pillaging on World of Warcraft, raising animals on Farmville, and logged out of facebook to impact the congressional process.  And they were successful.  They made their opinions known by signing petitions, writing to their senators and representatives, and most importantly discussing the issue with friends and family.  The idea of citizen participation in the legislative process was revived over-night as many took to Twitter, Youtube, and blog websites to discuss privacy and piracy issues.

The response from the web was a surprise to both sides.  Online protests are sure to gain in popularity.  Why protest in the cold of winter a la Occupy Wall Street when you can protest from the comforts of your home?

The supporters for the bills chose the true and tested of forcing a committee vote (there was not one public hearing dedicated to SOPA).  The protestors against the bills turned to the web.  When it became apparent to the supports that the battle would be determined by the people, the response was too little and too late.

SOPA and PIPA are not bad ideas. Piracy is a huge problem and is stealing.  However supporters were unable to offer rebuttals to the points the protestors were making.  A well planned counter explaining why the bills are necessary may have mitigated the online storm.  The future of the protest is online.

Zuccotti Park is a privately owned public space.  The twenty-six thousand square foot park is the hub of the Occupy Wall Street protests.  The park is not the only privately owned public space in New York City.  In the 1960s developers traded public space for zoning concessions.  There are over 520 parks, plazas, and arcades in New York City similar to Zuccotti Park.  The government imposed two restrictions on owners of these public spaces.  The space must be open twenty-four hours a day and any restrictions on the park must be reasonable.  Protestors’ First Amendment rights to sleep and occupy the park may depend on how it is defined by courts.

Zuccotti Park does not fit into the Supreme Court’s forum analysis.  The park is not a traditional public forum, a limited public forum, or a non-traditional public forum because the city does not own the park.  If the city owned Zuccotti Park it could enforce the curfew restriction that applies to all the city’s parks.  The private nature of the park saves it from city regulation while its public nature deters its owners from regulating it.

In a letter sent to Commissioner Kelley of the New York City Police Department Zuccotti Park’s owners were “extremely concerned about dangers posed by damage that may have been incurred within the Park and by materials and equipment brought into the Park by the protestors.”  The owners “received hundreds of phone calls and e-mails from concerned citizens and office workers in the neighborhood.”  The letter ended by requesting assistance from the police department in ensuring public safety.  Whether for political, personal, or other reasons the owners and police did not “perform the necessary cleaning, inspection, damage assessment and repairs.”  Instead they allowed the protestors to continue to occupy the park.

Privately owned public spaces may warrant a discussion by the Supreme Court about what First Amendment rights apply.  Justice Sotomayor could lead discussion.  She was a Second Circuit judge in an analogous case Hotel Employees v. City of New York Department of Parks & Recreation (311 F.3d 534).  In Hotel Employees the plaza was managed by private owners, Lincoln Center Inc., through a licenses agreement with New York City.  The owners agreed to “engagement by the City, on behalf of and as an agent of the City, to manage and maintain the Premise….” The protestors argued that the plaza was a traditional public forum because it was either a public park or a public place functionally equivalent to a “park, sidewalk, or public throughfare.”  The Court disagreed with this analysis, emphasizing the fact that New York City had not treated the plaza as a typical city park.

The Court found “the Plaza’s primary function and purpose is to serve as a pleasing forecourt at the center of a prominent performing arts complex, to facilitate patrons’ passage into events taking place in the arts buildings…” and “the Plaza was not created primarily to operate as a public artery, nor to provide an open forum for all forms of public expression.”  Finding that the plaza was not a traditional public forum was enough; the Court left for “another day a more definite resolution of the Plaza’s status as either a limited public forum or a non-public forum.”  The distinction was irrelevant because the means of expression fell outside the limited public forum.

The Second Circuit’s rationale in Hotel Employees may not extend to Zuccotti Park.  The plaza in Hotel Employees has a different purpose and function than Zuccotti Park.  The plaza is attached to the Lincoln Center, an established cultural center devoted to the performing arts.  Further, Lincoln Center Inc. has a history of limiting speech in the plaza.  Zuccotti Park is not adjacent to 1 Liberty Plaza, its corresponding office tower.  Instead the park is enclosed by four different streets: Broadway, Trinity Place, Cedar Street, and Liberty Street.  And perhaps most importantly the owners of the park do not have a history of restricting speech.  Recent actions suggest they are uncomfortable with evicting the Occupy Wall Street protestors.

As the protest continues in Zuccotti Park the Supreme Court may step in and determine what First Amendment rights apply to privately own public spaces.  The government is unable to regulate these spaces like public parks and the private owners are afraid of potential backlash from regulating these spaces.  Zuccotti Park is not the only privately owned space open to the public twenty-four hours a day.  The First Amendment rights of protestors should be balanced with the serenity interest of residents and businesses near the park.  It is clear that someone should be able to regulate these spaces to ensure the interest of both groups.

Introduction

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.

Background

The Occupy Wall Street protests began on September 17, 2012 and have grown considerably since then.  The protests spread from park to park and then from city to city.  On October 15, 2012 protestors from over 900 cities including Paris, Berlin, Tokyo, and Hong Kong held Occupy protests.  The protests have largely been peaceful with the notable exception of Occupy Rome.  In New York, Occupy Wall Street has gathered thousands of supporters including and was even able to occupy Time Square for several hours.  The protestor’s demands are unclear but they share a general progressive attitude.  The New York Times believes the objectives of the protests are to publicly air grievances.

The government is struggling to negotiate with protestors since there is no specific list of demands.  Many protestors feel a list of demands would ruin the objective of the protest.  The hub of Occupy Wall Street remains in Zuccotti Park where protestors are present 24 hours a day.  Whether by planning or luck the protestors were very fortunate in their choice of Zuccotti Park.  The characteristics of Zuccotti Park make it especially difficult for government regulation.  Zuccotti Park is privately owned by Brookfield Office Properties but it was once a public park.  The government has less power over a private park than a public park.  Brookfield Office Properties is limited in its regulation because the park was at one time public.  The private-public Zuccotti Park combined with actions of protestors may convince Mayor Bloomberg to force the Supreme Court to revisit several First Amendment issues.

Questions

What First Amendment rights do the Occupy Wall Street protestors have?  Would the First Amendment strike down a government noise regulation?  Can the government prevent protestors from sleeping in Zuccotti Park?  Is Zuccotti Park a traditional forum of speech?

Discussion

Noise Regulations

Residents and businesses near Zuccotti Park have complained about the noise protestors are making.  Most complaints have been about the loud drumming.  Although New York City requires permits for “amplified sound” such as bullhorns as long as the drumming is not amplified no permit is necessary.  The use of the human microphone (a crowd repeats what one speaker says) also does not require a permit.  Businesses near the park are concerned that customers are pushed away by the loud noises and the general atmosphere.  Several local business have seen significant decline in sales since the protests.  Residents complain they are unable to enjoy the park or their homes because of noise.  At least one resident feels the noise is adversely affecting her children’s ability to sleep and learn.

The First Amendment right to speech and assembly is not absolute.  A well thought out time, place, and manner regulation could limit the protestor’s right to speak.   Noise regulations are commonly used by the government to protect the privacy rights of businesses and residents.  In Kovacs v. Cooper (336 U.S. 77) the Supreme Court ruled that a regulation that “applied only to loudspeakers emitting ‘loud and raucous’ noises” was constitutional.  Justice Reed’s plurality opinion held that “[The] preferred position of freedom of speech [does] not require legislators to be insensible to claims by citizens to comfort and convenience.”   Speakers’ First Amendment rights must be balanced with the rights of citizens to comfort and convenience.

In addition to the level of noise many businesses and residents are worried about the time of the noise.  Shouting and drumming begin in the early morning and end around midnight.  In Kovacs Justice Jackson found that residents should have the right to “quiet enjoyment of home and park.”  Justice Frankfurter added “it is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection.”  A regulation tailored to the level of noise and to the length of noise may be constitutional under Kovacs.  The community board representing the area surrounding Zuccotti Park has already attempted to negotiate with the group responsible for most of the drummers.  The board reached a tentative agreement to restrict the drumming to four hours a day.  However, at least one drummer says that he will disregard the restriction and plans to drum all the time.

The drumming problem is not limited to New York.  In Chicago many of the drums used for the Occupy Chicago protest were found slashed.  Rather than ban the use of drums, the government should consider a content neutral regulation restricting the noise level caused by drumming.  In Ward v. Rock Against Racism (491 U.S. 781), the Supreme Court rejected a First Amendment challenge to a New York City regulation mandating that a concert was required to use sound systems and technicians provided by the city.  The Court found that New York City’s interest in limiting excessive noise was substantial and the regulation was content neutral.

In Zuccotti Park the government has a similar substantial interest in reducing excessive noise.  A regulation restricting the volume of all noises in Zuccotti Park would be content neutral.  The next issue is whether a restriction on noise level is narrowly tailored.  Justice Kennedy writing for the Court in Ward said “we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate content neutral interests but that it need not be the least-restrictive or least-intrusive means of doing so.  Rather, [narrow] tailoring is satisfied ‘so long as [the] regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’”  The standard in Ward is regulation friendly. A regulation limiting the time and manner of drumming would likely survive the Ward First Amendment analysis.

Sleeping in the Park

Protestors sleeping in the park were almost evicted for cleaning purposes.  However, by mere coincidence or by planning, the park Occupy Wall Street chose to protest in has the unique status of being a private park reserved for public use in zoning laws.  Zuccotti Park is an ideal location for protesting because as a private park it avoids the New York flat ban on sleeping in its public parks.  And as a park reserved for public use, it is difficult for Brookfield Office Properties to make the decision to evict.  However the Supreme Court has held that cleaning a park is a substantial interest.

In Clark v. Community for Creative Non-Violence (468 U.S. 288) the Court found a regulation that forbid sleeping is defensible either as a time, place, or manner restriction or as a regulation of symbolic conduct.  Justice White writing for the majority found “[t]hat sleeping, like the symbolic tents themselves, may be expressive and part of the message delivered by the demonstration does not make the ban any less a limitation on the manner of demonstrating, for reasonable time, place, and manner regulations normally have the purpose and direct effect of limiting expression but are nevertheless valid.”  The speech in Zuccotti Park is similar to the speech restricted in Clark.  Just because Occupy Wall Street is communicating something by consistently occupying Zuccotti Park does not outweigh the government’s interest in sanitation and health.

The government must still be careful that its regulation is content neutral.  In Clark the Court ruled that a prohibition on sleeping is content neutral and is not being applied because of disagreement with the message presented.  If the regulation targets protests because of their speech the regulation will likely not survive the First Amendment.   In a Clark footnote the Court held that “[t]hus, if the time, place, and manner restriction on expressive sleeping, if that is what is involved in this case, sufficiently and narrowly serves a substantial enough government interest to escape First Amendment condemnation, it is untenable to invalidate it under O’Brien on the ground that the governmental interest is insufficient to warrant the intrusion on the First Amendment concerns…”  Sleeping in a park is expressive however it does not outweigh the interests the government has in sanitation and health.

Traditional forum for speech

The fate of the protestors in Zuccotti Park may depend on how the park is defined.  Zuccotti Park is different from other forums the Supreme Court has addressed.  The park was once the government owned Liberty Park before Brookfield Office Properties purchased it naming the park after its chairperson.  The park’s history may be crucial in determining whether it is a traditional forum of speech.

If the Supreme Court finds the park a traditional forum of speech the next question is to look at the regulation itself.  If the regulation is content based it must serve a compelling government interest and be narrowly drawn.  This standard is similar to strict scrutiny and the most difficult for a regulation to survive.  If the regulation is content neutral it must be narrowly tailored to serve a significant government interest and leave open ample alternative levels of communication.  This standard is more similar to intermediate scrutiny than strict scrutiny.  Most time, place, and manner regulations are content neutral and are analysis under intermediate scrutiny.  To determine whether a regulation is content neutral the Supreme Court asks three questions.  Does the regulation restrict conduct?  Was the regulation adopted because of a disagreement with the message of the speech?  And whether the guidelines for enforcing the statute are clear?

If Zuccotti Park is not a traditional forum it could either be a limited public forum or a non-traditional public forum.  It is unlikely the Court will label Zuccotti Park a limited public forum because the government did not open the park to groups or a certain class of speaker but to all speech.  The Court may label Zuccotti Park a non-traditional public forum.  The standard for this classification is similar to rational basis.  As long as the government’s regulation is viewpoint neutral and reasonably consistent with the government’s non-speech use of the facility than it is valid.  How the Court classifies Zuccotti Park will determine the type of scrutiny that will be applied and the outcome of the case.

The private and public nature of Zuccotti Park is similar to the Lincoln Center plaza.  The Lincoln Center complex was part of an urban renewal project in the 1950s.  Originally New York City was in charge of the plaza, park areas and an underground garage.  The plaza was conveyed to New York City by Lincoln Center, Inc.  The Parks Department had jurisdiction over the park area which included the plaza.  Four years after the complex opened the management of the public areas was turned over the Lincoln Center, Inc.

In Hotel & Rest. Employees Union v. New York Dep’t of Parks (311 F. 3d 534) the Second Circuit ruled against the protestors.  The Court determined the Plaza was not a traditional public forum and found it unnecessary to define what type of forum it is: “Due to the lack of clarity in the record on this point, we leave for another day a more definite resolution of the Plaza’s status as either a limited public forum or a non-traditional public forum.”  Under either limited public forum or non-traditional public forum analysis the protestors lose: “The distinction is immaterial in this case, because the Union’s proposed activities fall outside the class of expressive uses for which the Plaza has been opened.” If Zuccotti Park is not found to be a traditional public forum the occupation may end.

When determining whether a location is a traditional public forum courts look to its primary function and purpose.  In Hotel & Rest. Employees Union the Second Circuit found “it apparent that the Plaza’s primary function and purpose is to serve as a pleasing forecourt at the center of the prominent performing arts complex, to facilitate patron’s passage into events taking place in the arts buildings… the Plaza was not created primarily to operate as a public artery, nor to provide an open forum for all forms of public expression.”  The argument for Zuccotti Park as a traditional public forum for speech is stronger.  A strong piece of evidence showing the government intended for the park to be a forum for debate is the park’s previous name, Liberty Park.  Further the proximity of the park near Wall Street suggests that the government specifically considered this sort of protest.

Conclusion

Brookfield Office Properties is in a difficult position.  It seems unwieldy for them to remove out the protestors who have garnered quite a bit of support.  Yet there are serious noise, sanitation, and access concerns.  The easiest solution for Brookfield is to allow Mayor Bloomberg to deal with the protestors.  Mayor Bloomberg is not in a great position either and only has several outdated Supreme Court cases to guide him in making a regulation.  Zuccotti Park is different from the park in Clark or the Plaza in Hotel & Rest. Employees Union.  If the park were private Brookfield could force the protestors to leave and even charge trespass.  If the park were public the New York City regulations restricting sleeping parks would apply.  But Zuccotti Park is a forum that is becoming more common, a private park for public use.

On November 8, Mississippians will vote on a constitutional amendment that would extend the definition of the legal person to include a fertilized human egg. Proposition 26, the proposed amendment, could pose a hazardous threat to reproductive rights in the state while also violating the Fourteenth Amendment. The amendment would create a dangerous invasion of criminal law into healthcare by prohibiting all abortions even those resulting from rape or incest. Proposition 26 would even ban some forms of birth control such as, IUDs and the morning-after pills.

Beyond prohibiting a constitutional right stemming from the fourteenth amendment, Proposition 26 will likely have major legal ramifications for women and healthcare providers. The amendment could possibly give the state the power to charge a woman taking the “morning-after” pill with murder. The statute obviously has far reaching abilities that would violate the constitutional right established by Roev. Wade and also cripple reproductive healthcare in Mississippi.

Intellectual property affects our daily lives: literature, music, technology, and even what we eat depend on inventor’s rights.  What is less well known is that the government’s power to grant intellectual property rights stems directly from the Constitution.   The Copyrights and Patents clause is found in the U.S. Constitution Article I.   Further, Article I describes the scope of the government’s power, what inventions are patentable, how patents are issued, the nature and scope of the rights granted by Congress, the  power Congress has over patent rights, how state power affects patents and copyrights and the application of trademarks.  The importance of protecting inventors was not lost on the founding fathers.  Inventors were rewarded with a pseudo-monopoly on the invention in exchange for their initial investment and disclosure of how the invention worked.  The patent system has undergone several changes since its incorporation.  The biggest change is on the horizon, The Leahy-Smith America Invents Act.

The Leahy-Smith American Invents Act changes the U.S. from a first inventor to invent system to a first inventor to file system.   The rationale behind this change is that the patent system will become more transparent about its standards and more objective in determining what is patentable.  It is also believed that a first inventor to file system is more predictable and simpler to use.  Its constitutional affect may be very large.  A patent grants the right to the owner to exclude others from using an invention.  In a world where innovation is essential for growth a first inventor to file system may hinder personal freedom not only to invent but also to use.

There is an 18 month transition period to the first to file system.  This means the first inventor file system begins March 16, 2013.  Patent applications are subject to the first inventor to file system if an application at any time contains a claim with an effective filing date on or after March 16, 2013 or contains a claim for benefit of any application that at any time contained such a claim.

The aims of punishment are incapacitation, rehabilitation, deterrence, and retribution. Today the focus of the criminal justice system is incapacitation. Incapacitation is pursued through the incarceration of offenders in private and public prisons. The prison system is very costly, and it becomes more of a financial burden on state and federal governments every year.

 In 2009, the Pew Center on the States issued a report revealing the staggering statistics on incarceration rates and the cost of prison. One out of every thirty-one adults is in contact with the correctional system. The Pew Center found that nine percent of African American adults, four percent of Hispanic adults, and two percent of Caucasian adults, are under the control of the criminal justice system. All prisoners, regardless of race, have two things in common. They tend to be less educated and more impoverished than the general population.

 Annually, States spend over four-hundred millions dollars incarcerating offenders. The Pew Center’s suggested solution to this financial disaster is to change sentencing laws and probation programs in order to use prison dollars to implement preventative programs. Every politician fears being labeled as soft on crime, so it is unclear how many law makers will support funding preventative programs over incarceration. 

Preventive programs can be used in conjunction with, rather than in place of incarceration, in order to combat recidivism. Prison education programs, job training, and transitional housing are just a few programs that could help prevent offenders from reentering the system once they are released. Restorative justice programs have also been used as alternatives to incarceration.

Restorative programs were first used for minor juvenile offenders with short records. The programs expanded to include adults and violent offenders. For low level offenders, restorative agreements can serve as the sentence. For violent crimes, like homicide, restorative agreements are simply used to heal victims and offenders.

There are three major types of restorative programs. First, victim-offender mediation (VOM). VOM sessions allow the victim and offender to reach an agreement on how to make things right between them.  Cases are referred for VOM by courts, police, or even members of the community. Second, restorative conferencing. The victim and offender discuss the crime and how it impacted each of them. Re-integrative shaming is a large part of the conference. The process is meant to respectfully show disapproval for the offender’s actions and to help him or her reintegrate into society. Third, restorative circles. Circles are open to offenders, victims, their family and friends, and members of the community. Each participant has the chance to speak.

A UK study of restorative justice programs showed that such programs are generally successful. They reduced victim’s post traumatic stress symptoms, proved victims and offenders with more satisfaction with the criminal justice system, reduced crime victim’s desire for violent revenge against their offenders, and reduced the cost of criminal justice. Restorative programs seem to reduce recidivism more effectively with serous crimes. Restorative justice programs have been successful with reducing recidivism for juveniles as well. The rate of recidivism dropped with participation in any restorative program. Success rates were highest when formal programs were used, rather than simply attaching restitution to another formal punishment, such as probation.

The cost of the prison system and the number of incarcerated individuals is skyrocketing. Alternatives such as restorative justice programs not only reduce the cost of the criminal justice system, but also benefit victims and offenders.  These programs can reduce the cost of the prison system because they have the power to reduce recidivism. A reduction in recidivism is beneficial for offenders, victims, and the general public.

Photo courtesy of Flickr user tibchris

An impoverished young Cambodian boy attempts to steal a bicycle. He is arrested, tortured by the police, and ends up in prison. Under the law, he has certain rights, including the right to a defender. But in actuality, this boy has no lawyer to advise him and no way to know of his what his rights are.

In 2005, Kofi Annan noted that “the era of declaration is now giving way, as it should, to an era of implementation.” Towards the end of the 20^th century, many countries, including Cambodia, passed laws giving their citizens basic rights, such as the right to be free from torture and to have a public defender. It is now the norm to ratify international instruments such as the International Covenant on Civil and Political Rights; indeed only 29 states have not ratified the ICCPR to date. The covenant prohibits torture under any circumstances. Cambodia is a party to this treaty.

But having ratified a treaty with a prohibition against torture is utterly meaningless if the implementation of such a principle is lacking—in fact, it may make matters worse, because being a party to such a treaty can give a state that does torture its citizens a veneer of respectability, legitimacy and even prestige. Thus, while the movement towards a widespread recognition of human rights is surely a positive sign, it is only the first step. Actually carrying out the reforms necessary to implement such rights is crucial. But doing so is a long and difficult process.

International Bridges to Justice (IBJ) is a non-profit based in Geneva, Switzerland which promotes public defense for ordinary citizens in Asia and Africa. They advance this effort by training public defenders in various countries, as well as by implementing “legal rights awareness” campaigns to raise awareness.

The most striking aspect of IBJ is how if differs from typical human rights groups. Amnesty International, for example, embraces its role on the outside. For them, “to work within the system would seem tantamount to condoning it,” as Kenneth Neil Cukier, a correspondent for The Economist, has written. Such groups concentrate on major human rights abuses and seek to deal with specific situations. Its approach perhaps stems from the fact that Amnesty International was formed in 1961—and at that point in time there were many countries around the world that were not yet parties to treaties such as the ICCPR. The goal of such groups, therefore, was to draw attention to grave abuses so that governments would embrace the various international instruments protecting human rights. But today, with most countries of the world having ratified such treaties, a new approach is called for.

IBJ seeks to institutionalize defense rights by training public defenders and helping them to become accepted members of the criminal justice system, along with judges, police officers, and prosecutors. IBJ “focuses on the long term, by slowly developing a sustainable infrastructure for legal rights,” Cukier writes. It “does not want to stop rights abuse so much as prevent it.”

In many countries, there is a strong presumption of guilt; for example, the rules in a Cambodian prison typically stated something like “don’t you dare try and tell a lie or you will be given more lashes.” Prisoners naturally felt compelled to confess crimes they had not committed.

IBJ seeks to change such entrenched, unfair systems, and to cultivate an approach that gives prisoners both dignity and actual legal safeguards.  In China, IBJ has supported public awareness campaigns in which the banner at police stations and courthouses was changed from “Confess—Better Treatment; Resist—Harsher Treatment” to “If You are Arrested, Know Your Rights.” Such efforts seek to plant the seed for a new mind-set to criminal justice.

But changing the system is not an easy task. Karen Tse, founder of International Bridges to Justice, has written that “the judges, prosecutors and police officer, who had long held almost absolute power…did not like the idea of defenders suddenly holding them accountable to laws and challenging their way of doing things… [T]hese defenders literally had to push themselves into the intractable old system and create a role for themselves amidst great opposition from the established order which had not invited their presence.”

Clearly there is much work to be done. But any attempt at transforming the unfair and arbitrary systems still in place around the world will require much more than signing an international covenant, no matter what rights are enumerated in the document. Facing such odds requires courage and resilience, but over time, as public defenders gain a seat at the table, change will come.

You can learn more about International Bridges to Justice at its website: http://www.ibj.org/

Photo courtesy of Flickr user amasc

I think it’s pretty safe to say that if you own a cellphone and drive a car on a regular basis, you have probably talked on the phone while driving. In fact, I would venture that if you are under age 25, it’s also pretty safe to say that you have also composed and sent text messages while driving. I know that I have personally mastered the challenging art of driving a manual transmission and talking on the phone at the same time. One of my friends is even more creative than I am: she has apparently become quite talented at using her elbows in an effort to guide the steering wheel in her manual Subaru. Texting…well, that is where I draw the line. Managing the steering wheel, forming coherent statements using the tiny buttons, and paying attention to the road are a bit much for my personal taste, but I feel like I may be in the minority among my friends.

Despite what seems like a common practice by most people of my acquaintance, talking and/or texting while driving is actually against the law in many jurisdictions. In some states, like Washington, talking on a hand-held device and texting are only secondary offenses – meaning you can only be fined if you are pulled over for some other offense. In other jurisdictions, like the District of Columbia, talking on a hand-held device and texting are primary offenses – meaning that you can be fined just for being caught doing one of those acts. (In Virginia, for those of you who were curious, only texting is an offense for most drivers, and it is a secondary offense at that.)

Last summer, a report from the National Highway Traffic Administration revealed that cell phone use by drivers caused around 955 fatalities and 240,000 accidents in 2002. Furthermore, the report revealed that hand-free sets don’t necessarily eliminate the risk, since it is the conversation itself – not holding the phone – that poses the danger. In fact, according to the report, “motorists talking on a phone are four times as likely to crash as other drivers, and are as likely to cause an accident as someone with a .08 blood alcohol content.”

However, the dangers posed by cell phones is far from settled. According to Katherine Mangu-Ward, a senior editor at Reason magazine, “the facts do suggest that the rise of the killer cellphone — and the corresponding need for government intervention — has been exaggerated.” In fact, a new Highway Loss Data Institute study reveals that in jurisdictions with hand-held phone bans, there have been no reductions in crashes. Furthermore, according to Anne McCartt of the Insurance Institute for Highway Safety, even if cell phones do pose a risk, it is difficult to enforce the laws such that people will actually be concerned about being penalized. According to Ms. McCartt, after New York imposed a ban, cell-phone usage decreased for the period immediately after the ban was imposed but this effect was short-lasting. Around one year after the law took effect, cell phone usage had bounced back.

In light of all these facts: what should the solution be to this issue? It is clear that despite the existence of cellphone and texting laws, people still talk on their cellphones and text while driving – even in jurisdictions where such actions are primary offenses. It is also clear that only allowing hands-free devices in an effort to mitigate the situation is not necessarily effective. But, if it is the conversation itself that poses the risk, why is a cell phone conversation any different than having a conversation with a  fellow passenger? Will that too need to be regulated to make the roads safer?

Like the policy-makers in this country, I don’t have a solution to this problem. But, I am interested in hearing others’ opinion on the matter. Assuming that cell phones do pose a danger to others on the road, what regulations, if any, should be imposed by local governments? Should the federal government get involved? Is any difference – however slight – better than none?

Photo courtsey of Flickr user Thomas Hawk.

For the right-wing media, criticizing the Department of Justice under Eric Holder and its handling of the war on terror  has become a bit like the proverbial “spaghetti test”: throw what you can against the wall and see if it sticks.  The newest salvo has come from Keep America Safe, a political advocacy organization dedicated to defending Bush-era policies in the war on terror.  The organization, founded by Liz Cheney, Bill Kristol and Deborah Burlingame, the survivor of a 9/11 victim, released a video calling the patriotism of the Depart of Justice into question.  It’s dishonest, condescending, and wrong, but has to be see to be believed. (Available here)

The video attempts to portray seven political appointees at the DOJ as jihadi sympathizers for fighting for due process for Guantanamo detainees pro bono while they were working at large law firms.  Even better, it suggests that Justice (or the “Department of Jihad”) is covering up their identities for unsavory reasons.   In the past few days, the video has become a minor right-wing news meme.

It’s helpful to trace from whence this came:  several months ago, Senator Charles Grassley (R-IA) asked Holder to reveal which lawyers at the department had previously worked on behalf of Guantanamo detainees.  The DOJ responded by sending a letter to the Senate saying nine attorneys in political appointee positions had done so before joining the department.  It also mentioned that they were obeying ethics rules regarding conflicts of interest.  (via NYT)

This episode attracted little news coverage until the Keep America Safe video showed up.  Since then, the story has blossomed, first with Fox News breaking a news story “uncovering” the identities of the seven lawyers (all of whose names were already included on the case briefs, which are publicly available).  While the story makes no associative claims, the author casts it as a follow-up to the Keep America Safe video and makes a few stylistic choices which which clearly indicate his slant, such as using scare quotes to depict the “self-described ‘conservative’ Rutherford Institute,” one of the civil liberties groups who filed a detainee-related brief.

The story made it onto CNN on Thursday with a segment on the Situation Room with Wolf Blitzer.  CNN is often called one of the flagships of the liberal media.  However, this is hard to believe from watching the segment, which has the journalistic integrity of an US Weekly cover story.  While couching the piece as a debate, CNN flashes all the slogans from the video on the screen, including “Dept. of Jihad?”; “Al Qaeda 7”; and “Are Justice Dept. lawyers disloyal?”  (Glenn Greenwald at Salon has a good breakdown of the story, available here)    An appearance from Liz Cheney on the weekend news talk shows shouldn’t be far behind.

There are two things that particularly stink about this campaign.  The first is that none of the pundits who are selling it have advanced a cogent theory as to why there is a real national security or conflict-of-interest issue.  The minds behind it have relied on little more than some insinuation about the attorneys’ “deeply held political beliefs.”  Indeed, there are deeply held political beliefs at issue here, but they have more to do with due process and the faithful adherence to the principles of the legal profession.

This is the tragedy of the narrative Keep America Safe is using.  It completely ignores the fact that the American system of justice relies on an adversarial system where both parties rely on zealous advocates to protect their interests.   When either side lacks competent representation, courts don’t have the best argument on which to base their decisions.  Lawyers who sign the professional code of conduct commit themselves to pro bono public service for the disadvantaged so that they have access to due legal process– and they are encouraged to take on controversial or unpopular clients.  The attorneys in question were working at some of the nation’s top law firms when they took on Guantanamo clients, and they are experts on the complex constitutional issues that would arise in such a case.  They were serving their country and their profession by ensuring that the detainees received due legal process.  Keep America Safe’s allegations completely ignore these facts.  In addition, these pundits stoop low enough to assume their audience will be too ignorant to be familiar with basic operation of the legal profession.  Partisanship and intellectual flexibility are part of the practice of law: public defenders become attorney generals, and vice versa.  The rules of professional responsibility address potential problems with strict conflict of interest provisions.  To claim that these attorneys are somehow different is to assume that they’re too mentally feeble to keep radical islam separate from constitutional law.

The second tragedy of this issue is that as the discourse becomes more prominent and shrill, factual context falls by the wayside.  Liz Cheney will never point out the fact that the Bush-era DOJ also hired attorneys who represented detainees.  (hat tip to ABC).   Or the fact that at attorney at the law firm founded by ever-partriotic Rudy Giuliani did the same.  Or the fact that 34 of the nation’s 50 largest law firms have done Guantanamo pro bono work and the absurd inferences it would support under her rationale.  Sadly, this issue will likely just become another shrill fight for cheap political points which the media will force us to endure until the next one comes along.

Picture courtesy of Flickr user gluemoon.