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Tagged: Civil Rights

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Soft launch of historical website — Calendar of civil liberties

There is a new website: Today in Civil Liberties History, which has five or six events for each day. Each event includes learning materials: books, reports, web sites, Youtube videos, and more. It covers the full range of civil liberties issues: First Amendment, racial justice, reproductive rights, lesbian and gay rights, national security, and more.

The official public launch will be on Constitution Day, Wednesday September 17th, but you can view in now.

For more information about Today in Civil Liberties History, click here: http://samuelwalker.net/wp-content/uploads/2014/07/Coming-This-Fall2.p

And congrats to Professor Sam Walker for what promises to be a welcome addition to our daily calendar experiences.

Meanwhile, here is what happened on this day in August:

AUGUST 28

1955

Emmett Till, 14, Murdered in Mississippi

1963

“I Have a Dream”: King Delivers Historic Speech at March on Washington

1963

John Lewis Speech at March on Washington Censored

1968

“Police Riot” at Democratic Party Convention

1987

Reagan Administration Bars Visas to People with HIV

2011

Martin Luther King, Jr., Memorial Dedicated

 

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Dr. King on the First Amendment & the right to protest

Screen Shot 2014-08-14 at 11.21.51 PMMartin Luther King, Jr., April 3, 1968:

All we say to America is, “Be true to what you what you say on paper.” If I lived in China or even in Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for rights. 

See YouTube clip here.

→ See also the following books and articles:

  1. Harry Kalven, The Negro and the First Amendment (1965)
  2. David Garrow, Protest at Selma:Martin Luther King, Jr. and the Voting Rights Act of 1965 (1978)
  3. Andrew Mach, “Martin Luther King Jr.: 8 peaceful protests that bolstered civil rights,” Christian Science Monitor, Jan. 15, 2012
  4. Burke Marshall, “The Protest Movement and the Law,” 51 Virginia L. Rev. 785 (1965)
  5. Clark McPhail, David Schweingruber & John McCarthy, “Policing Protest in the United States: 1960-1995” in Policing Protest (1998) by  Donatella D. Porta, et al, eds.
  6. Lewis F. Powell, Jr., “A Lawyer Looks at Civil Disobedience,” 23 Wash. & Lee L. Rev. 205 (1966)
  7. Nicholas Katzenbach, “Protest, Politics and the First Amendment,” 44 Tulane L. Rev. 439 (1970)
  8. Ronald Krotoszynski, Jr. “Celebrating Selma: The importance of context in public forum analysis,” 104 Yale L. J. 1411 (1995)
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Now may be the moment . . .

Heed their rising voices.

heed-rising-voicesIn light of recent events in Ferguson, Missouri, that admonition seems as relevant today as it was when it was when it appeared on March 29, 1960 in a New York Times political advertisement directed at the Montgomery, Alabama police. Of course, it was that advertisement that gave rise to the celebrated ruling in New York Times Co. v. Sullivan (1964).

The analogy to the events surrounding the killing of young Michael Brown and the famed First Amendment case is more apt than may first appear. How so?  Well, let us start here: It is important to remember that the First Amendment victory in Sullivan emerged against the backdrop of intense racial strife. What is remarkable about the case is how it blended the liberty principle of the First Amendment with the equality principle of the Fourteenth Amendment to forge a landmark opinion. Perhaps at no other time in American history have the two been so wonderfully wed as to serve the high principles of both constitutional guarantees.

Know this: Racial injustice cannot endure the light of the First Amendment; police abuse cannot continue unabated when subjected to the scrutiny of a camera; and governmental indifference cannot persist when the citizenry assembles in a united front to oppose it. Put another way, the link between free-speech liberty and racial equality is vital to the health of our constitutional democracy.

Frank Pasquale’s recent post (“The Assault on Journalism in Ferguson, Missouri) ably points out why citizens of all political stripes should be concerned about what has been going on in Ferguson. His sober post is a timely reminder of the importance of the First Amendment in the affairs of our lives, be they in Ferguson or Staten Island or elsewhere.

(CNN) – The New York City medical examiner’s office Friday confirmed what demonstrators had been saying for weeks: A police officer’s choke hold on a man being arrested for selling loose cigarettes killed him. (Aug. 2, 2014)

So, now may be the moment to reunite the liberty and equality principles. What does that mean? Among other things, it must mean this:

  1. The press — traditional and modern — must be free to continue to exercise its rights in a robust manner.
  2. Citizens should be able to freely exercise their constitutional right to peacefully assemble and protest.
  3. More transparency should be demanded of government, be it in matters concerning the investigation of the killing of Michael Brown or the need for police identification badges to be plainly visible.
  4. And demands must be made of state and local officials that clear and specific measures be taken to respect and protect the lawful exercise of any and all First Amendment rights.

To that end, press groups, civil rights and civil liberties groups, along with political and religious groups should seize this opportunity, borne out of tragedy, to reinvigorate our First Amendment freedoms employed in the service of racial justice. In that way, perhaps some of the admirably defiant spirit of New York Times v. Sullivan may find its way back into the hearts and minds of people of good will who refuse to sit silent while law-abiding citizens of Ferguson stagger through clouds of teargas.

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Richard Posner & NAACP v. Button — A Short History

Since I had to prepare remarks for a panel discussion for today, I was unable to do my weekly First Amendment News column. Instead, I opted to present an abbreviated essay from a work-in-progerss, actually two. In the main, I  stitched together something from one of my books (We Must not be Afraid to be Free) and a future article (“The Maverick – A Biographical Sketch of Richard Posner”), this in addition to some reliance on Justice Brennan: Liberal Champion (2010) by Seth Stern and Stephen Wermiel and other works. I also benefitted from the thoughtful assistance of Judge Posner and Robert M. O’Neil. The result is this post, also a prelude to a more scholarly work on NAACP v. Button (1963). Shortly, I will say more about Judge Posner’s involvement in Button, but before I do I thought it might useful to say a few prefatory things about the history of the case.

* * * *

The case’s original name was NAACP v. Patty, which began in 1957. After cert. was granted, the case name changed to NAACP v. Gray. Later it would be changed to Button, the last name of the Virginia Attorney General at the time. The controversy involved a challenge to five Virginia laws which, according to Fourth Circuit Court Judge Morris Aimes Soper, “were enacted [in 1956] for the express purpose of impeding the integration of the races in the public schools of the state which the plaintiff corporations are seeking to promote.” The laws in question banned the encouragement of certain kinds of litigation (“barratry” statutes) and the solicitation of clients (including in pro bono cases) and/or the financing of litigation (“champerty” statutes). The lawyer who represented the NAACP was Robert L. Carter (1917-2012), Thurgood Marshall’s chief legal assistant (and later General Counsel to the NAACP). By 1957, recalled Carter in his memoir (A Matter of Law), the group was involved in 25 cases in various states employing barratry and champerty laws aimed at halting civil rights litigation. Henry T. Wickham (1920-2008) represented the state of Virginia. In his obituary it was noted that Mr. Wickham “served as a special assistant to former Virginia Attorney General J. Lindsay Almond Jr. representing Virginia in an effort to preserve segregated public schools” in Brown v. Board.

 For an informative and thoughtful account of Button, see Harry Kalven, Jr., The Negro and the First Amendment 75-90 (1965).

The Hand of Fate

Robert Button was the Attorney General of Virginia (1962-1970) who backed policies of Massive Resistance to prevent public school desegregation.

Robert Young Button was the Attorney General of Virginia (Dem. –1962-1970) who backed policies of Massive Resistance to prevent public school desegregation (see short video clip here)

When it came time for a conference vote in the Button case, Chief Justice Earl Warren, predictably, voted to reverse. “The purpose of the statute is obviously to circumvent Brown,” he said. Justice Hugo Black agreed. “This is part of a scheme to defeat the Court’s order, and sooner or later we will have to grapple with these problems in those terms. The NAACP is finished if this law stands.” But Justice Felix Frankfurter pushed back. “I can’t imagine a worse disservice than to continue being the guardians of the Negroes. . . . There is nothing in the record to show that this statute is aimed at Negroes as such.” Justices Tom Clark and Charles Evans Whittaker agreed. “To strike this law down, we would have to discriminate in favor of Negroes,” said Clark, to which Whittaker added: “We should be color blind on this law.”

Warren added up the votes. It was a five-to-four split in favor of the state of Virginia. Justice Frankfurter eagerly began work on his majority opinion upholding Virginia’s law—the laws that made the NAACP’s brand of non-pecuniary solicitation and financing of litigation a disciplinary offense that could result in disbarment. (For a discussion of Frankfurter’s early role in the case, see Mark V. Tushnet, Making Civil Rights Law 277-278 (1994).)

At the same time, Justice Black circulated drafts of a dissent in which he claimed, among other things, that perhaps the law should be renamed “[a]n Act to make it difficult and dangerous for the [NAACP] and Virginia lawyers to assert the constitutional rights of Virginia Negroes in state and federal courts.” Then Black added a passage revealing how far removed he was from his days as a hooded member of the Ku Klux Klan. “The job of lawyers under [the] Constitution is not to lead revolutions, but to lead their people in taking advantage of the American methods for correcting injustice.” And courts, Black continued, had a responsibility to serve as “sanctuaries of justice.” To ignore that role here, he concluded, was to leave the courts “a little less havens of refuge than they were before this Virginia law was sustained.”

Robert L. Carter, lawyer for the NAACP

Robert L. Carter, lawyer for the NAACP

Justice Black’s internal comments exposed just how wide the ideological chasm had grown between the members of this Court. But Robert Carter wouldn’t get a chance to read them. Nor, for that matter, would anyone else. On April 1, 1962, before the Court could announce its decision in NAACP v. Button, Justice Whittaker retired on the advice of his physician. He was sixty-one. The “great volume and continuous stresses of the court’s work,” he explained in a written statement, had brought him to the “point of physical exhaustion.” That left a four-to-four split among the remaining jurists, who scheduled a rehearing of the case the following term. Then, a few days later, seventy-nine-year-old Felix Frankfurter collapsed at his desk from a stroke. He lived, but shortly afterwards he announced his retirement. Just like that, President Kennedy could appoint two new Justices—and Robert Carter could feel new hope.

 An audio of the arguments in NAACP v. Gray can be found here.

New Faces, New Result

By the fall of 1962, President Kennedy had successfully appointed to the bench his top two choices—Byron White and Arthur Goldberg. And it promised to be a busy fall at the Supreme Court after they were both confirmed. Sometime around then, as Stern and Wermiel recount it, Justice Brennan busily circulated a 63-page memo that detailed the activities of the NAACP and its Virginia branch.

After hearing rearguments in Button, the Justices met privately to discuss the case on October 12, 1962. Chief Justice Warren had not changed his mind since first discussing the facts a year earlier. “The NAACP has a right to be in business,” he began. “If this suit goes against the NAACP, it is out of business.” Justices Black, Douglas, and Clark also maintained their original opinions. So did the typically restrained Justice John Marshall Harlan, who continued to claim that Virginia’s new law was “plainly constitutional. . . . Brown v. Board of Education will never work out if it is left in the federal domain. The states must do it. We have no reason to reverse Virginia on this law.” Justice Potter Stewart, the Eisenhower appointee from Cincinnati with the unpredictable voting record, was the first of the veteran Justices to suggest a possible change of heart. “I am not sure,” he said, “but I am inclined to reverse.” Justice White, the first of the two new members to speak at the private conference, was even less certain than Stewart. “I do not know where I stand.” Goldberg was more certain. “There is a substantial equal protection point here and I could reverse on that,” he said. Read More

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The Stanford Law Review Online: School Security Considerations After Newtown

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jason P. Nance entitled School Security Considerations After Newtown. Professor Nance writes that strict school security measures may be ineffective but have a balkanizing effect:

On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since that horrific event, parents, educators, and lawmakers have understandably turned their attention to implementing stronger school security measures to prevent such atrocities from happening again. In fact, many states have enacted or proposed legislation to provide additional funds to schools for metal detectors, surveillance cameras, bulletproof glass, locked gates, and law enforcement officers. Because increased security measures are unlikely to prevent someone determined to commit a violent act at school from succeeding, funding currently dedicated to school security can be put to better use by implementing alternative programs in schools that promote peaceful resolution of conflict.

He concludes:

The events at Newtown have caused all of us to deeply consider how to keep students safe at school. A natural response to this atrocity is to demand that lawmakers and school administrators invest our limited public funds into strict security measures. But this strategy is misguided. Empirical evidence suggests that these additional investments in security equipment and law enforcement officers may lead to further disparities along racial and economic lines. Further, it is imperative that all constituencies understand that there are more effective ways to address violence than resorting to coercive measures that harm the educational environment. Indeed, schools can make a tremendous impact in the lives of students by teaching students appropriate ways to resolve conflict and making them feel respected, trusted, and cared for. These are the types of schools that can make a real difference in the lives of students.

Read the full article, School Security Considerations After Newtown at the Stanford Law Review Online.

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The Stanford Law Review Online: Defending DOMA in Court

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Matthew I. Hall entitled How Congress Could Defend DOMA in Court (and Why the BLAG Cannot). Professor Hall argues that the Bipartisan Legal Advisory Group lacks standing to defend DOMA:

In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor’s challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor’s equal protection and due process claims, but also on the question whether the defendants—the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG)—have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the purpose of defending DOMA’s constitutionality. No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straightforward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing.

He concludes:

Congress could solve these problems by statute or resolution, but until it does so the BLAG is a mere bystander, with no stake in defending DOMA. This lack of standing may play a decisive role in the Windsor litigation. Both the BLAG and the executive branch defendants appealed the District Court’s judgment to the Second Circuit, and petitioned the Supreme Court for certiorari. If the BLAG lacks standing, however, then it had no authority to appeal or to seek Supreme Court review, and the Court’s jurisdiction must turn on whether the United States, which has agreed with the plaintiff that DOMA is unconstitutional, has standing to proceed with the case. Interestingly, the BLAG itself has argued that no such standing exists—a controversial position that is beyond the scope of this short piece. But if the BLAG is correct, then there is no case or controversy before the Court, and the Court will have to dismiss for lack of jurisdiction. The widespread expectation that Windsor will be a significant decision appears to be well-founded. But it remains to be seen whether its significance will lie in the area of individual rights or in the areas of federal court jurisdiction and the separation of powers.

Read the full article, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot) at the Stanford Law Review Online.

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Stanford Law Review Online: Privilege and the Belfast Project

Stanford Law Review

The Stanford Law Review Online has just published a Note by Will Havemann entitled Privilege and the Belfast Project. Havemann argues that a recent First Circuit opinion goes too far and threatens the idea of academic privilege:

In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern Irish “Troubles.” To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died. More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment.

He concludes:

Given the confusion sown by Branzburg’s fractured opinion, the First Circuit’s hardnosed decision is unsurprising. But by disavowing the balancing approach recommended in Justice Powell’s concurring Branzburg opinion, and by overlooking the considerable interests supporting the Belfast Project’s confidentiality guarantee, the First Circuit erred both as a matter of precedent and of policy. At least one Supreme Court Justice has signaled a willingness to correct the mischief done by the First Circuit, and to clarify an area of First Amendment law where the Court’s guidance is sorely needed. The rest of the Court should take note.

Read the full article, Privilege and the Belfast Project at the Stanford Law Review Online.

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Stanford Law Review Online: The Hunt for Noncitizen Voters

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.

She concludes:

Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.

Read the full article, The Hunt for Noncitizen Voters at the Stanford Law Review Online.

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Stanford Law Review Online: Dahlia v. Rodriguez

Stanford Law Review

The Stanford Law Review Online has just published a Note by Kendall Turner entitled Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent. Turner argues that the Ninth Circuit has an opportunity to make an important change to the rules governing the application of First Amendment protections to the speech of public employees:

In December 2007, Angelo Dahlia, a detective for the City of Burbank, California, allegedly witnessed his fellow police officers using unlawful interrogation tactics. According to Dahlia, these officers beat multiple suspects, squeezed the throat of one suspect, and placed a gun directly under that suspect’s eye. The Burbank Chief of Police seemed to encourage this behavior: after learning that certain suspects were not yet under arrest, he allegedly urged his employees to “beat another [suspect] until they are all in custody.”

After some delay, Dahlia reported his colleagues’ conduct to the Los Angeles Sheriff’s Department. Four days later, Burbank’s Chief of Police placed Dahlia on administrative leave. Dahlia subsequently filed a 42 U.S.C. § 1983 action against the Chief and other members of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights.

She concludes:

Dahlia offers the Ninth Circuit an opportunity to overturn Huppert and articulate a narrow understanding of Garcetti. This narrow understanding accords with the reality of public employees’ duties—for the duties they are actually expected to perform may differ significantly from the responsibilities listed in their job descriptions. A narrow reading of Garcetti is also essential to ensuring adequate protection of free speech: The answer to the question of when the First Amendment protects a public employee’s statements made pursuant to his official duties may not be “always,” but it cannot be “never.”

Read the full article, Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent at the Stanford Law Review Online.