Thursday, March 26, 2015

Bet on Pete Rose Reinstatement Before All-Star Game

Pete Rose, the all-time major league baseball hits leader, earlier this month submitted a formal reinstatement request to new major league baseball commissioner Rob Manfred that he be reinstated to the game.  In 1989, Rose had been banned from baseball for life for his having bet on baseball games as a manager, including placing bets for the team he led, the Cincinnati Reds, to win.

Here is one baseball bet, you should make.  Bet on Pete Rose being reinstated before this year's July All-Star game.

Rose's 1989 deal in which he agreed to a lifetime ban, also allowed him to apply for reinstatement after one year.  Rose has submitted formal requests to be reinstated to Commissioner Fay Vincent in 1992 and Commissioner Bud Selig in 1999.  Neither request was acted upon. 

This request has a different feel.  More time has passed. Rose's case has been aided immeasurably by the 1990s and early 2000s which featured scores of major league players, fueled by steroids and other performance enhancing substances, producing grossly inflated statistics.  In a sport that prides itself on comparisons between players and eras, those steroid-induced performances forever mar the sport's records books, undermining the integrity of the game.   In comparison to those players' attempted murder of the game of baseball, Rose's transgression now looks like speeding through a school zone.

No one knows what communications took place between Commissioner Manfred's office and Pete Rose's people.   But I would not be entirely surprised to learn that Manfred invited Rose to make another formal reinstatement request.  Manfred reinstating Rose would immediately seal his legacy as Commissioner and give him enhanced clout with fans moving forward.

But there is another reason.

Where is the All-Star game played this year?  Cincinnati.  The city where Rose for so many years led
the Big Red Machine, winning two World Series in the process.  It will also be the 45th anniversary of the 1970 All-Star game, also played in Cincinnati, a game in which Rose bowled over catcher Ray Fosse to win the game for the National League in the bottom of the 12th inning.

Suddenly the mid-season contest, which has become exceedingly boring to watch, would take on new life as reporters from across the country would descend on Cincinnati to cover Rose's reinstatement, giving the sport a much need publicity boost in the process.

Commissioner Manfred has every reason to pull the trigger on Rose's reinstatement before the All-Star game.  Bet on it happening.  Okay, make sure you get odds, but still make the bet.

Wednesday, March 25, 2015

Original Opponents of Religious Freedom Restoration Act Included Former Klansman and Racial Segregationist

Today's political left, which zealously opposes the Religious Freedom Restoration Act, calling it a "license to discriminate" while at the same time being unable to articulate a single RFRA case in 22 years that has bestowed such a license, should look back at the original RFRA and celebrate those 
Sen. Robert Byrd (D- WV)
Senators who in 1993 were the only members of Congress to otherwise support the RFRA.  Two of the three who voted against the bill should be extremely familiar to politicos.  First, you have Democratic Senator Robert Byrd (D-West Virginia).  Byrd was a leader in the Ku Klux Klan, recruiting 150 people to form a new KKK chapter in West Virginia.  In 1946, Byrd wrote to Senator Theodore G. Bilbo (D-Miss), a segregationist:
I shall never fight in the armed forces with a negro by my side ... Rather I should die a thousand times, and see Old Glor trampled in the dirt never to rise again, than to see this beloved land of ours become degraded by race mongrels, a throwback to the blackest specimen from the wilds.
Sen. Jesse Helms (R-Nc)
In 1946, Byrd penned another letter stating:  "The Klan is needed today as never before, and I am anxious to see its rebirth here in West Virginia and in every state in the nation."

Then you have Senator Jesse Helms (R-NC).  Helms was a former Democrat and segregationist.   Commenting on the 1963 civil rights protests and the March on Washington Helms stated, "The negro cannot count forever on the kind of restraint that's thus far left him free to clog the streets, disrupt traffic, and interfere with other men's rights."   He later wrote, "Crime rates and irresponsibility among negroes are a fact of life which must be faced".

Justice Antonin Scalia
A more modern day hero of the left should be Justice Antonin Scalia who wrote the 1990 Employment Division v. Smith case that says that disposed of the Sherbert compelling interest test for examining free exercise challenges, the impetus for the RFRA which restores the Sherbert test.  He was joined by another apparent hero of the left, Justice Rehnquist.  The dissent was written by Justice Blackmun, joined by Justices Brennan and Marshall who wanted to keep the Sherbert test that liberals today claim opens the door to religious discrimination.

Below is the roll call vote on the 1993 Religious Freedom Restoration Act vote in the U.S. Senate:

YEAs ---97
Akaka (D-HI)
Baucus (D-MT)
Bennett (R-UT)
Biden (D-DE)
Bingaman (D-NM)
Bond (R-MO)
Boren (D-OK)
Boxer (D-CA)
Bradley (D-NJ)
Breaux (D-LA)
Brown (R-CO)
Bryan (D-NV)
Bumpers (D-AR)
Burns (R-MT)
Campbell (D-CO)
Chafee (R-RI)
Coats (R-IN)
Cochran (R-MS)
Cohen (R-ME)
Conrad (D-ND)
Coverdell (R-GA)
Craig (R-ID)
D'Amato (R-NY)
Danforth (R-MO)
Daschle (D-SD)
DeConcini (D-AZ)
Dodd (D-CT)
Dole (R-KS)
Domenici (R-NM)
Dorgan (D-ND)
Durenberger (R-MN)
Exon (D-NE)
Faircloth (R-NC)
Feingold (D-WI)
Feinstein (D-CA)
Ford (D-KY)
Glenn (D-OH)
Gorton (R-WA)
Graham (D-FL)
Gramm (R-TX)
Grassley (R-IA)
Gregg (R-NH)
Harkin (D-IA)
Hatch (R-UT)
Hatfield (R-OR)
Heflin (D-AL)
Hollings (D-SC)
Hutchison (R-TX)
Inouye (D-HI)
Jeffords (R-VT)
Johnston (D-LA)
Kassebaum (R-KS)
Kempthorne (R-ID)
Kennedy (D-MA)
Kerrey (D-NE)
Kerry (D-MA)
Kohl (D-WI)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Lieberman (D-CT)
Lott (R-MS)
Lugar (R-IN)
Mack (R-FL)
McCain (R-AZ)
McConnell (R-KY)

NAYs ---3
Byrd (D-WV)Helms (R-NC)Mathews (D-TN)
Metzenbaum (D-OH)
Mikulski (D-MD)
Mitchell (D-ME)
Moseley-Braun (D-IL)
Moynihan (D-NY)
Murkowski (R-AK)
Murray (D-WA)
Nickles (R-OK)
Nunn (D-GA)
Packwood (R-OR)
Pell (D-RI)
Pressler (R-SD)
Pryor (D-AR)
Reid (D-NV)
Riegle (D-MI)
Robb (D-VA)
Rockefeller (D-WV)
Roth (R-DE)
Sarbanes (D-MD)
Sasser (D-TN)
Shelby (D-AL)
Simon (D-IL)
Simpson (R-WY)
Smith (R-NH)
Specter (R-PA)
Stevens (R-AK)
Thurmond (R-SC)
Wallop (R-WY)
Warner (R-VA)
Wellstone (D-MN)
Wofford (D-PA)

Tuesday, March 24, 2015

ACLU Strongly Supports Religious Freedom Restoration Act; Urges Congress to Act Quickly to Restore Protections

Anyone who thinks the American Civil Liberties Union's legal positions aren't affected by politics should examine its press release from 22 years ago:

ACLU Strongly Supports Religious Freedom Restoration Act; Urges Congress to Act Quickly to Restore Protections

March 11, 1993

WASHINGTON -- The American Civil Liberties Union today joined congressional sponsors and other members of the diverse coalition formed to support the Religious Freedom Restoration Act in calling upon Congress to act quickly in restoring full legal protection to religious liberty.

"Passage of the Religious Freedom Restoration Act is the most important action that Congress can take for the free exercise of religion since the First Congress passed the Bill of Rights," said ACLU Legislative Counsel Robert S. Peck.

The legislation is designed to restore the level of legal protection that was previously enforced by the courts under the First Amendment.

"For two centuries, the guarantees of the First Amendment has proven to be the boldest and most successful experiment in religious liberty the world has known," Peck added. "A disastrous and erroneous decision by the Supreme Court three years ago has threatened to derail that experiment and make religious freedom a matter of legislative grace. Such an approach is inconsistent with our constitutional heritage and the level of protection the courts afford all other fundamental rights."

In Employment Division v. Smith (1990), the U.S. Supreme Court rejected the traditional tests for evaluating infringements of religious liberty and effectively read the Free Exercise Clause out of the First Amendment. As Justice Blackmun's dissent correctly put it, the Court's "holding dramatically departs from well-settled First Amendment jurisprudence . . . and is incompatible with our Nation's fundamental commitment to individual religious liberty."  The Religious Freedom Restoration Act attempts to restore the previous status quo, under which religious practices must be accommodated unless a compelling governmental interest can be demonstrated and advanced in the least restrictive manner.

The Smith decision rejected a claim for unemployment benefits by two Native Americans who had been fired from their state jobs for the ritual use of peyote in tribal religious ceremonies. It did
so expansively, reaching far beyond the issue before them and declaring that government practices and policies that are neutrally stated and generally applicable will be upheld against constitutional attack as long as the policies are not targeted at religious practice. Thus, under the Court's new rules, laws passed in ignorance or passed irrespective of their impact on religious freedom would be deemed constitutionally valid. In rejecting the compelling government interest standard that
previously governed these cases, Justice Scalia's majority opinion characterized the test as a "luxury" that the nation could no longer afford as a result of the country's growing religious diversity.

"The Court's rationale turns the First Amendment on its head, and guarantees judicial protection only in periods of relative religious homogeneity," Peck said.

The Religious Freedom Restoration Act simply and elegantly restores the compelling interest test that previously characterized free exercise cases prior to Smith.

The ACLU applauds the leadership of Senators Edward Kennedy (D-MA) and Orrin Hatch (R-UT) and Representatives Charles Schumer (D-NY) and Christopher Cox (R-CA) as well as the more than 150 original co-sponsors in both Houses, for their support of this important legislation.

Sunday, March 22, 2015

Within Days of Indianapolis Council Vote on $18.5 Million Subsidy, Angie's List Is Hit With New Lawsuit Alleging Consumer Fraud

Within days of the Indianapolis City-County Council voting to give Angie's List a second round of financial subsidies, this one worth $18.5 million, the Indianapolis company finds itself hit with yet another federal lawsuit, this time one alleging consumer fraud.

On March 11, 2015, a woman filed a class action federal lawsuit in the Eastern District  of Pennsylvania seeking monetary damages and injunctive relief from Angie's List based on the allegation that the company uses the "fraudulent, deceptive, and misleading practice of luring consumers to pay for access to purportedly unfiltered reviews, ratings, and search result rankings by consumers of local service providers."  To the contrary, the complaint says Angie's List "secretly manipulates reviews, ratings and serach results for the company's own economic gain."

The lawsuit's allegations continue:
3.  According to Angie’s List, a service provider’s position in a member’s search results "is determined by their recent grades and number of reviews. Companies with the best
ratings from members will appear first." 
4.  Angie’s List falsely assures consumers that "service providers cannot influence their ratings on Angie’s List,"2 "[b]usinesses don’t pay,"3 and "[c]ompanies can’t pay to be on Angie’s List."4 Instead, Angie’s List continuously emphasizes its unique "consumer-first philosophy," which manifests in the company’s "unwavering commitment to placing the interests of the consumer first[.]"5 By "always placing the interests of the consumer first," Angie’s List "help[s] [its] members find the best provider for their local service needs."   
5.  These and similar statements dupe potential and existing members into believing that Angie’s List reviews, ratings, and search results are valuable and trustworthy because they reflect unfiltered feedback of consumers, for consumers. Angie’s List’s standardized form membership agreement (the "Membership Agreement," Ex. A hereto) even declares that the company "simply acts a passive conduit" for reviews and ratings "based upon actual first-hand experiences other users have had[,]" and that Angie’s List "does not endorse" any service providers. But this is not the case.  
 6.   Angie’s List wrongfully conceals from consumers that service providers can and do pay to influence "the List" in at least three significant ways, in exchange for paying substantial "advertising" fees:
The complaint goes on to allege that 1) the company alters the search results so that companies that pay more can appear higher in the rankings; 2) suppress negative reviews for companies that pay Angie's List; and 3) threaten to suppress positive reviews for those companies that don't pay.

The lawsuit claims Angie's List "deceives, defrauds, and misleads its existing and potential member base" and that Angie's List does not help consumers find the 'best' service provider, but rather the one who paid the most money to Angie's List."  The lawsuit alleges that this was Plaintiff's experience with the company:
47.  In the Fall of 2014, Plaintiff hired a contractor she identified through the Angie’s List service to remodel her kitchen. At the time of her search, there were no visible reviews about the contractor on Unfortunately, the contractor did not finish the agreed-upon work and refused to return the $4,000 Plaintiff had paid to him.
48. Shortly thereafter, Plaintiff submitted a negative review of the contractor to Angie’s List. After doing so, Plaintiff was able to see, for the first time, a number of other negative reviews of the contractor written earlier by other members prior to Plaintiff’s hiring the same contractor. That is, up until Plaintiff submitted her own negative review, she was never aware that other members had written negative reviews about the same contractor. One newly-revealed negative review complained about the same exact issue that Plaintiff experienced with the contractor. Plaintiff would not have hired the contractor had she seen these negative reviews earlier.
49.  When Plaintiff confronted Angie’s List about this, an Angie’s List representative did not characterize the suppression of negative reviews as an oversight or a technological error. In fact, upon information and belief, it was because the service provider paid money to Angie’s List.  
50.  Had Plaintiff seen the previously written negative reviews, she would not have hired the contractor. After all, Plaintiff was paying for access to other consumers’ reviews. At a minimum, Plaintiff had a reasonable expectation she would have access to all reviews for a given service provider.  
51.  Meanwhile, Plaintiff discussed her ordeal with a different contractor, an electrician, whom she knew. The electrician told Plaintiff that he pays "to be at the top" of search results on Until this conversation, Plaintiff did not know, and had no reasonable way of knowing, that – contrary to Angie’s List’s advertising and other representations – service providers can and do pay to manipulate search results on
The lawsuit's legal theories are breach of contract, fraud and fraudulent inducement, unjust enrichment and a violation of Pennsylvania's unfair trade practices and consumer protection law.  The lawsuit ask that all paying members of Angie's List in the United States and Pennsylvania be certified as class action plaintiffs and that they be refunded their dues, awarded actual and punitive damages as well as attorney's fees.  Perhaps more importantly going forward, the Plaintiff asks that Angie's List be enjoined from its current business practices outlined in the complaint.
The Angie's List $18.5 million subsidy will be voted on by the Indianapolis City-County Council at its Monday, April 30th meeting.  Councilors might ask the company about this promise contained in the Financing Agreement between Angie's List and the City of Indianapolis:
There are no actions, suits or proceedings pending, or, to the knowledge of the Company, threatened, before any court, administrative agency or arbitrator which, individually or in the aggregate, might result in any material adverse change in the financial condition of the Company or might impair the ability of the Company to perform its obligations under this Financing Agreement.
This section was included despite the fact that there are other consumer and shareholder lawsuits pending against Angie's List.

Friday, March 20, 2015

Freedom Indiana Replaces Honesty Used to Win Marriage Fight with Deceit and Demagoguery in Fight Against RFRA

As someone who is always interested in political strategy, I was more than a little impressed by the work of Freedom Indiana last year.  Last year the then newly-formed organization took on a proposed constitutional amendment that would have defined marriage as being between a man and woman, a move that would have placed a major obstacle in the way of future state legislatures legalizing same sex marriage.  Freedom Indiana ran a brilliant campaign, building a grass roots organization that lobbied individual legislators directly, with compelling real life stories of same sex couples who simply wanted to marry but couldn't.  In addition, the organization also pointed to benefits of marriage that were not available to these same sex couples.  Finally Freedom Indiana touted corporate partners who backed up the organization's message.

In the same sex marriage battle, Freedom Indiana routed more politically experienced organizations which struggled to develop a response in support of marriage that didn't sound like the supporters of the amendment were just trying to deny people civil rights.  Freedom Indiana didn't just win the war last year.  It won every battle.

Earlier this year, Freedom Indiana geared up for another political fight, this time to try to stop Indiana from adopting the Religious Freedom Restoration Act, a proposal which restores a legal test for assessing challenges to statutes based on the free exercise of religion clause. Some background is in order.

In an opinion authored by Justice Scalia, United States Supreme Court in 1990 threw out the compelling interest Sherbert Test used for examining free exercise challenges.  Instead, Scalia's opinion declared that, henceforth, laws could burden religious beliefs as long as they applied generally to everyone.  Justice Blackmun wrote the dissent advocating that the Sherbert test be kept.  He was joined in his dissent by two even more liberal colleagues, Justices Brennan and Marshall.

People all across the political spectrum were outraged.  Conservative and liberal groups, including the ACLU joined together to advocate a Religious Freedom Restoration Act which would restore the Sherbert test.  The bill was introduced by then Rep. Chuck Schumer (D-NY).  It passed the House unanimously and the Senate 97-3.  In 1993, it was signed into law by President Clinton.

In 1997, the Supreme Court upheld the RFRA, except for the part saying it applies to state laws.  The Court said that, due to federalism principles, states had to adopt their own RFRAs if they wanted the Sherbert test to apply to free exercise challenges to their laws.  Since 1997, nineteen states have adopted their own RFRAs while ten states have had their constitutions interpreted to require a Sherbert like test to free exercise challenges.   Earlier this year, Indiana moved forward to becoming the 20th state to adopt an RFRA. 

Re-enter Freedom Indiana.  While last year the organization occupied the high ground and was able to tell true and compelling stories about loving same sex couples denied the opportunity to marry, this time Freedom Indiana had no compelling real life stories to tell.  In the 52 years that RFRAs have been in place or the Sherbert test guided interpretation, there has been no sanctioning of discrimination.  For example, in five cases brought under the RFRA, Christian landlords said that anti-discrimination housing laws should not require them to rent to unmarried couples.  In all five cases, the landlord lost.   The plethora of RFRA cases show that all it does is restore a common sense legal test that balances religious freedom with the state's compelling interest in advancing certain goals, including prohibiting discrimination.

Unlike the truthful stories the organization told about same sex couples last time, this time Freedom Indiana has resorted to baseless fears in an effort to stop the RFRA from being passed. Without a scintilla of evidence, the organization at every opportunity labels the RFRA a "license to discriminate" and tells horror stories of how the LGBT community will being denied service at restaurants and other public accommodation facilities if the law passes.  Examining the organization's literature closely, one finds that Freedom Indiana is constantly using qualifying language such as these discriminatory actions "could" or "may" happen even though they have have NEVER happened under the 52 years the RFRA or Sherbert test has been in place.

On its website, the organization promotes the story of a young lady who says she "may consider leaving" the state if Indiana adopts an RFRA.  (Of course, the headline disingenuously leaves off the "may" in the story and instead definitively states that she is leaving the state if the RFRA passes.)Apparently the "college scholar" is so uneducated about the issue that she is unaware that there is a federal RFRA.  She would not only have to leave the state if she wanted to escape the RFRA, she would have to leave the country.

Honesty.  That's the difference between Freedom Indiana's success last year and its failure this year.  Many independent-minded and even conservative people respected the honest case put forward by Freedom Indiana that men and women who are gay should be permitted to make the ultimate commitment of marriage to the one they love, that the battle was one for civil rights and not for special privileges.  Today, Freedom Indiana's anti RFRA campaign is built entirely on using deceit and demagoguery. And it is not working.

To their credit, not every member of the LGBT community has signed onto Freedom Indiana's anti-RFRA position.  Without outing them personally, I have witnessed them on social media question the Freedom Indiana's strategy and emphasizing that there be a reasonable middle ground that protects people from discrimination while also respecting people's heartfelt and conscientious objections to the life they themselves are living. Those objectors bring up that the LGBT community does not earn respect and acceptance by trying to bankrupt Christian small business owners and that the same freedom of conscience idea incorporated into the RFRA could also protect members of the LGBT business community from actively participating in anti-LGBT matters they find offensive.

If Freedom Indiana wants to be a political force in Indiana, it needs to reexamine what it did right in 2014 and what it is doing wrong in 2015.

Tuesday, March 17, 2015

Former Democratic Governor Martin O'Malley Appears Closer to Announcing Campaign for White House

Katrina Vanden Heuvel of the Washington Post reports on her interview with former Democratic Maryland Governor Martin O'Malley:
At a moment when everybody in Washington is talking about e-mails, former Maryland governor Martin O’Malley (D) wants to talk about Wall Street reform. Indeed, while Hillary Clinton’s use of a private e-mail address at the State Department has created a media frenzy and overshadowed other issues, the past week brought additional news in the Democratic primary: O’Malley is almost certainly running for president. And he’s determined to make his voice heard despite some pundits dismissing his ability to mount 
Former Maryland Governor Martin O'Malley
a “credible” challenge to Clinton for the party’s nomination.
The swirl of controversy surrounding Clinton has not only called her inevitability into question but also given much of the media an excuse to focus on optics rather than policy coverage, which is just one of the reasons O’Malley’s emergence is a positive development. A contested Democratic primary will be good for the country, good for the party, good for democracy and good for driving issues that might otherwise be ignored into the election.
Since leaving office in January, O’Malley has been traveling the country and laying the groundwork for a presidential campaign. During recent visits to Kansas, New Hampshire and elsewhere, O’Malley has delivered a progressive populist message. Specifically, he has called for reinstating Glass-Steagall banking regulations, hiking the capital gains tax, increasing the minimum wage, raising the threshold for overtime pay and strengthening collective bargaining rights. And while he is far more comfortable discussing his policies than his potential opponents, O’Malley took a perceived shot at Clinton in South Carolina when he declared, “Triangulation is not a strategy that will move America forward.”   
While he sees a path to the nomination, O’Malley understands that it will take a lot more work to shed his underdog status. After a poll showed him cracking double digits in a potential matchup against Clinton, O’Malley quipped, “Am I really up to 11 percent? Who did this poll? Was this my mom?” Regardless of his chances, though, O’Malley can make the 2016 election a much better race. Contested primaries are good both for the presidential contenders and for the country. Most Americans have little time to pay attention to the news or to political debates in Washington. Primary battles have the potential to catch fire and engage a broader citizenry. The media broadcast many of the debates. Activists can be roused.
A credible challenge, whether from O’Malley, Sen. Bernie Sanders (I-Vt.), former Massachusetts governor Deval Patrick, former senator Jim Webb (Va.) or Warren, could help engage and excite Democratic voters. And it could force Clinton to more boldly address vital issues such as income inequality, climate change and the war on organized labor, while helping ensure that her inevitability doesn’t look like entitlement.
As I've said before, the notion that contested primaries are bad for a political party's eventual nominee is not well-founded.   In 2008, the contested Democratic nomination resulted in increased Democratic registration, mobilized the grass roots and made candidate Barack Obama a much better candidate.  To the converse, people point to Mitt Romney being weakened by a divisive GOP nomination process in 2012.  I frankly don't accept that premise about Romney.  The GOP primary process, as ugly as it was, still made Romney a better candidate.  Better though, doesn't mean he wasn't a deeply flawed candidate.  In an increasingly populist era, the Republicans managed to nominate about the only candidate who could have made the elitist President Obama seem like a common, many of the people.

Monday, March 16, 2015

Is $20 An Hour Charge for Public Records Aimed at Preventing Hoosier Bloggers From Investigating Government Corruption?

In Senate Bill 500, a bill labeled as supposedly aimed at " education deregulation" is a completely unrelated section that allows for a public agency to charge up to $20 an hour for search time involved in obtaining public records. 

This surcharge supposedly to just apply to searches over 2 hours. But as anyone who has ever been involved in open records request knows, it is impossible to tell what the agency is doing behind closed doors.  Many records that should take minutes to produce, takes weeks, even months. Often they claim the need to redact documents of confidential information which is often about removing information that might be embarrassing for the company. Are we supposed to pay for the redaction time?  The bill suggests that the only thing the agency can't bill for is "computer processing time."

What is most shocking to me is the response of the Hoosier Press Association in supporting the bill: USA Today reports:
However, the bill would allow someone to receive records that already are in an electronic format via email. Under current law, an agency can refuse to send electronic 
Stephen Key, Executive Director, Hoosier State Press Assn.
copies, forcing a requester to pick up records in person and pay the copying fee. 
The Hoosier State Press Association says the benefit of getting records in an easy format outweighs the potential negatives of a search fee; the organization has not opposed the bill. 
HSPA Executive Director Steve Key said he doesn't believe the fee will deter someone from making a large request, but said it could "discourage fishing expeditions where you just want to go through and find everything."
I don't buy the electronic records reason cited by Mr. Key.  The benefit of getting electronic documents emailed is extremely minimal benefit as opposed to giving agencies a tool to avoid compliance with open records laws by charging $20 an hour for search.  When obligated to provide electronic information, most agencies prefer to email the information as doing so easier than burning a disc to provide the information to the citizen.   But anyone who has dealt with government agencies knows that those agencies will jump at the chance to utilize the $20 an hour charge to punish those citizen journalists, i.e. bloggers, who in the internet age have largely replaced the mainstream media when it comes to breaking stories culled by going through public records.

Indeed, a desire to eliminate competition might well be the true motivation of the Hoosier Press Association's support of the bill.  The mainstream media can afford search fees imposed by agencies.  But the citizen journalist, blogging for free, can't pay a $100 bill issued by the agency for a public records search.  If the bloggers can't pay those fees, then they can't continue to break the stories, repeatedly scooping the mainstream media when it comes to uncovering political corruption and other wrongdoing.  Imagine depending entirely on the Indianapolis Star to uncover stories of local political corruption. Scary isn't it?

Thanks so much to the Indiana Law Blog for continually keeping abreast of this story.  Also, Advance Indiana's Gary Welsh has written about this story.

Friday, March 13, 2015

Justice Department Report Documents Ferguson Police Department's Violation of First Amendment Rights

Having spent the last couple days reading the 102 page investigation report of the Ferguson Police Department prepared by the Department of Justice Civil Rights Division, I thought I would share some of the findings that are not getting a lot of publicity.  Today I will focus on allegations of First Amendment violations.

The Justice Department report revealed that numerous residents tried to videotape police activities only to find their efforts were thwarted by police.  Some even were arrested even though the recording was perfectly legal:
FPD officers also routinely infringe on the public’s First Amendment rights by preventing people from recording their activities.  The First Amendment “prohibit[s] the government from limiting the stock of information from which members of the public may draw.”   Applying this principle, the federal courts of appeal have held that the First Amendment “unambiguously” establishes a constitutional right to videotape police activities.    Indeed, as the ability to record police activity has become more widespread, the role it can play in capturing questionable police activity, and ensuring that the activity is investigated and subject to broad public debate, has become clear. Protecting civilian recording of police activity is thus at the core of speech the First Amendment is intended to protect. 
In Ferguson, however, officers claim without any factual support that the use of camera phones endangers officer safety. Sometimes, officers offer no rationale at all.  Our conversations with community members and review of FPD records found numerous violations of the right to record police activity. In May 2014, an officer pulled over an African-American woman who was driving with her two sons. During the traffic stop, the woman’s 16-year-old son began recording with his cell phone.  The officer ordered him to put down the phone and refrain from using it for the remainder of the stop. The officer claimed this was “for safety reasons.” The situation escalated, apparently due to the officer’s rudeness and the woman’s response. According to the 16 year old, he began recording again, leading the officer to wrestle the phone from him. Additional officers arrived and used force to arrest all three civilians under disputed circumstances that could have been clarified by a video recording.  
In June 2014, an African-American couple who had taken their children to play at the
park allowed their small children to urinate in the bushes next to their parked car. An officer stopped them, threatened to cite them for allowing the children to “expose
themselves,” and checked the father for warrants. When the mother asked if the officer had to detain the father in front of the children, the officer turned to the father and said, “you’re going to jail because your wife keeps running her mouth.” The mother then began recording the officer on her cell phone. The officer became irate, declaring, “you don’t videotape me!” As the officer drove away with the father in custody for “parental neglect,” the mother drove after them, continuing to record. The officer then pulled over and arrested her for traffic violations. When the father asked the officer to show mercy, he responded, “no more mercy, since she wanted to videotape,” and declared “nobody videotapes me.” The officer then took the phone, which the couple’s daughter was holding. After posting bond, the couple found that the video had been deleted.
A month later, the same officer pulled over a truck hauling a trailer that did not have operating tail lights.  The officer asked for identification from all three people inside, including a 54-year-old white man in the passenger seat who asked why. “You have to have a reason. This is a violation of my Fourth Amendment rights,” he asserted. The officer, who characterized the man’s reaction as “suspicious,” responded, “the reason is, if you don’t hand it to me, I’ll arrest you.” The man provided his identification. The officer then asked the man to move his cell phone from his lap to the dashboard, “for my safety.” The man said, “okay, but I’m going to record this.” Due to nervousness, he could not open the recording application and quickly placed the phone on the dash. The officer then announced that the man was under arrest for Failure to Comply. At the end of the traffic stop, the officer gave the driver a traffic citation, indicated at the other man, and said, “you’re getting this ticket because of him.”  Upon bringing that man to the jail, someone asked the officer what offense the man had committed. The officer responded, "he’s one of those guys who watches CNBC too much about his rights.” The man did not say anything else, fearing what else the officer might be capable of doing. He later told us, “I never dreamed I could end up in jail for this. I’m scared of driving through Ferguson now.”
The Ferguson Police Department’s infringement of individuals’ freedom of speech and right to record has been highlighted in recent months in the context of large-scale public protest. In November 2014, a federal judge entered a consent order prohibiting Ferguson officers from interfering with individuals’ rights to lawfully and peacefully record public police activities. That same month, the City settled another suit alleging that it had abused its loitering ordinance, Mun. Code § 29-89, to arrest people who were protesting peacefully on public sidewalks.  
Despite these lawsuits, it appears that FPD continues to interfere with individuals’ rights to protest and record police activities. On February 9, 2015, several individuals were protesting outside the Ferguson police station on the six-month anniversary of Michael Brown’s death. According to protesters, and consistent with several video recordings from that evening, the protesters stood peacefully in the police department’s parking lot, on the sidewalks in front of it, and across the street. Video footage shows that two FPD vehicles abruptly accelerated from the police parking lot into the street. An officer announced, “everybody here’s going to jail,” causing the protesters to run. Video shows that as one man recorded the police arresting others, he was arrested for interfering with police action. Officers pushed him to the ground, began handcuffing him, and announced, “stop resisting or you’re going to get tased.” It appears from the video, however, that the man was neither interfering nor resisting. A protester in a wheelchair who was livestreaming the protest was also arrested. Another officer moved several people with cameras away from the scene of the arrests, warning them against interfering and urging them to back up or else be arrested for Failure to Obey. The sergeant shouted at those filming that they would be arrested for Manner of Walking if they did not back away out of the street, even though it appears from the video recordings that the protesters and those recording were on the sidewalk at most, if not all, times. Six people were arrested during this incident. It appears that officers’ escalation of this incident was unnecessary and in response to derogatory comments written in chalk on the FPD parking lot asphalt and on a police vehicle. 
The notion that FPD officers were prohibiting recording for anyone's safety is hogwash.  The officers were trying to prevent citizens from documenting their activity which might be roundly criticized if exposed.  The report sums the issue up:
FPD’s suppression of speech reflects a police culture that relies on the exercise of police power—however unlawful—to stifle unwelcome criticism.  Recording police activity and engaging in public protest are fundamentally democratic enterprises because they provide a check on those “who are granted substantial discretion that may be misused to deprive individuals of their liberties.”
In addition, Ferguson residents were routinely arrested for making critical and disparaging comments toward FPD officers, even though those comments have constitutional protection:
Under the Constitution, what a person says generally should not determine whether he or she is jailed. Police officers cannot constitutionally make arrest decisions based on individuals’ verbal expressions of disrespect for law enforcement, including use of foul language.  Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1990) (holding that officers violated the Constitution when they arrested a woman for disorderly conduct after she called one an “asshole,” especially since “police officers are expected to exercise greater restraint in their response than the average citizen”)...A s the Supreme Court has held, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”  
In Ferguson, however, officers frequently make enforcement decisions based on what
subjects say, or how they say it. Just as officers reflexively resort to arrest immediately upon noncompliance with their orders, whether lawful or not, they are quick to overreact to challenges and verbal slights. These incidents—sometimes called “contempt of cop” cases—are propelled by officers’ belief that arrest is an appropriate response to disrespect.  These arrests are typically charged as a Failure to Comply, Disorderly Conduct, Interference with Officer, or Resisting Arrest. 
For example, in July 2012, a police officer arrested a business owner on charges of
Interfering in Police Business and Misuse of 911 because she objected to the officer’s detention of her employee. The officer had stopped the employee for “walking unsafely in the street” as he returned to work from the bank.  According to FPD records, the owner “became verbally involved,” came out of her shop three times after being asked to stay inside, and called 911 to complain to the Police Chief. The officer characterized her protestations as interference and arrested her inside her shop.  The arrest violated the First Amendment, which “does not allow such speech to be made a crime.” Indeed, the officer’s decision to arrest the woman after she tried to contact the Police Chief suggests that he may have been retaliating against her for reporting his conduct.
Ferguson Police Department Chief Thomas Jackson
Officers in Ferguson also use their arrest power to retaliate against individuals for using language that, while disrespectful, is protected by the Constitution.  For example, one afternoon in September 2012, an officer stopped a 20-year-old African-American man for dancing in the middle of a residential street. The officer obtained the man’s identification and ran his name for warrants. Finding none, he told the man he was free to go. The man responded with profanities. When the officer told him to watch his language and reminded him that he was not being arrested, the man continued using profanity and was arrested for Manner of Walking in Roadway
In February 2014, officers responded to a group of African-American teenage girls “play fighting” (in the words of the officer) in an intersection after school. When one of the schoolgirls gave the middle finger to a white witness who had called the police, an officer ordered her over to him.  One of the girl’s friends accompanied her. Though the friend had the right to be present and observe the situation—indeed, the offense reports include no facts suggesting a safety concern posed by her presence—the officers ordered her to leave and then attempted to arrest her when she refused. Officers used force to arrest the friend as she pulled away. When the first girl grabbed an officer’s shoulder, they used force to arrest her, as well.
Officers charged the two teenagers with a variety of offenses, including:  Disorderly Conduct for giving the middle finger and using obscenities; Manner of Walking for being in the street; Failure to Comply for staying to observe; Interference with Officer; Assault on a Law Enforcement Officer; and Endangering the Welfare of a Child (themselves and their schoolmates) by resisting arrest and being involved in disorderly conduct.  This incident underscores how officers’ unlawful response to activity protected by the First Amendment can quickly escalate to physical resistance, resulting in additional force, additional charges, and increasing the risk of injury to officers and members of the public alike.
The Justice Department made clear that these weren't the accounts of disgruntled residents angry at the FPD.  They were accounts in PDF's own reports:
These accounts are drawn entirely from officers’ own descriptions, recorded in offense reports. That FPD officers believe criticism and insolence are grounds for arrest, and that supervisors have condoned such unconstitutional policing, reflects intolerance for even lawful opposition to the exercise of police authority....
Note:  Many of the legal citations have been removed from quoted material to facilitate reading.  The report, with citations, can be found here.

Additional Note:  The DOJ emblem and photo of Chief Jackson have been added to break up the text in this blog and do not appear in the original report text.

Thursday, March 12, 2015

Yes, University of Oklahoma, Even Racists Have First Amendment Rights

This week, University of Oklahoma President David Boren acted to expel students involved in a racist chant sung to the tune "If You're Happy and You Know It":
There will never be a ... SAE
You can hang 'em from a tree
But he’ll never [inaudible -- possibly "sign"] with me
There will never be a ... SAE.
Boren justified his action in a letter:
"This is to notify you that, as president of the University of Oklahoma acting in my official capacity, I have determined that you should be expelled from this university effective immediately," Boren said in his expulsion letter to the two students, which was obtained by local news media. "You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others."   
Boren is apparently basing his authority, indeed his duty, to take action on Title VI of the Civil Rights Act, which bans racial discrimination at institutions receiving federal money, institutions like the University of Oklahoma, a state university.

The problem is that as a state university, Boren has to comply with the First Amendment.  The Constitution trumps federal law when there is a conflict.  The First Amendment has been held to
protect racist and offensive speech. 

Several constitutional law experts weighed in this week, with the overwhelmingly majority finding a constitutional violation.  The Los Angeles Times reported on some of those experts:
Joey Senat, an associate professor who teaches media law at Oklahoma State University in Stillwater: "I believe these students -- under Supreme Court rulings on 1st Amendment for college students -- would have the right to say the very same thing on the library lawn, so to speak. ... The speech is offensive, the speech is abhorrent, but the 1st Amendment protects unpopular speech."   
Robert D. Nelon, an Oklahoma City attorney with the Hall Estill law firm who handles media law: "This is a close case. Perhaps the university has gone a little further than the Constitution would permit in expelling the students. It may be the university would be better in tune with the Constitution if they took to the public forum like President Boren did yesterday and expressed publicly their outrage and meet speech with speech rather than expelling the students."

Erwin Chemerinsky, 1st Amendment law professor and dean of the UC Irvine School of Law: "What can be punished is if it could be shown the speech was threatening to another [person]. There’s no right to engage in speech that reasonably causes another to fear for his or her safety. ... [But] it can’t be said that this speech was a threat to somebody. I find this horribly offensive, but I don’t see why this isn't speech protected under the 1st Amendment."

Joe Cohn, legislative and policy director of the Foundation for Individual Rights in Education, a student legal advocacy group based in Philadelphia: "The school's a public university. At public universities, the 1st Amendment applies in full force. ... The Supreme Court has said repeatedly that speech, even racist speech, is protected under the 1st Amendment. They have never shied away from that. ... Just because a speech is racist doesn't remove its protection." 
UCLA Constitutional Lawyer Eugene Volokh and blogger also chimed in:
1. First, racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech. That has been the unanimous view of courts that have considered campus speech codes and other campus speech restrictions — see here for some citations....
2. Likewise, speech doesn’t lose its constitutional protection just because it refers to violence — “You can hang him from a tree,” “the capitalists will be the first ones up against the wall when the revolution comes,” “by any means necessary” with pictures of guns, “apostates from Islam should be killed.”
3. To be sure, in specific situations, such speech might fall within a First Amendment exception. One example is if it is likely to be perceived as a “true threat” of violence (e.g., saying “apostates from Islam will be killed” or “we’ll hang you from a tree” to a particular person who will likely perceive it as expressing the speaker’s intention to kill him); but that’s not the situation here, where the speech wouldn’t have been taken by any listener as a threat against him or her. Another is if it intended to solicit a criminal act, or to create a conspiracy to commit a criminal act, but, vile as the “hang him from a tree” is, neither of these exceptions are applicable here, either.
4. Given the president's letter, it's clear that the students are being expelled solely for their speech..."
The sad reality though, even though President Boren probably violated the students First Amendment's rights, he probably can get away with it because the students cause would be so politically unpopular if they dared sue.  Too bad.  It could have been such a teachable moment for the University, an opportunity to educate students about racism and constitutional rights.

Wednesday, March 11, 2015

Rep. Justin Moed Owes Taxpayers An Apology for His Support of Corporate Welfare Scheme

By now, virtually every politically active person in Indianapolis knows that southside Democratic State Representative Justin Moed is the latest politician to be entrapped in the web of Sydney "Is My 15 Minutes of Fame Up Yet?" Leathers.  The Indianapolis Star reports:
Indiana Rep. Justin Moed is apologizing for sexting with Sydney Leathers, the Evansville woman at the center of the 2013 Anthony Weiner sexting scandal.   
"I am truly sorry I have hurt the ones I love most with my poor judgment. I am committed to rebuilding trust with my family and my community. This is a private matter and I ask for it to be treated as such. I apologize to my constituents and to everyone I have let down," Moed said in a written statement sent to The Indianapolis
Sydney Leatthers
Moed, who is engaged to be married in September, did not return a call for comment Tuesday. 
The Star story notes how Leathers has tried to stay in the public eye to keep her "career" alive:
Leathers told The Star in a profile published last year that she was in school, "a couple semesters away" from an associate degree in radio and TV, and was still trying to use her notoriety to keep her adult-film career alive after appearing in four X-rated videos.
Despite her background, Leathers has no problem passing moral judgment on politicians who she says are "displaying poor judgment" by sexting with her.

I'll have to admit I don't understand the appeal of sexting.  Maybe I lack imagination, but it seems extremely boring and pointless to me.  As far as Moed's apparent interest in being insulted and told what to do, from what I hear from my married male friends, Moed's fiancé would have been more than happy to meet that need after they wed this Fall.  Of course, now the wedding may be off.

Thanks for the apology, Justin, but it wasn't needed. While you certainly owe your fiancé an apology and perhaps some very expensive jewelry for your electronic tryst with Ms. Leathers, you don't owe the public a damn thing.  Your private life is your private life.

You do, however, owe the public the public an apology for another reason.  HB 1273 would result in Indianapolis taxpayers being forced pay to build and operate a downtown soccer stadium for multi-millionaire businessman Ersal Ozdemir.   It is a disgusting, corporate welfare scheme that hurts working men and women in favor of yet another extremely wealthy Indianapolis sports team owner.  And you, Rep. Moed, are a co-author of the bill. 

Rep. Moed., you don't owe the public an apology for being in bed with Ms. Leathers.  You do, however, owe the public an apology for being in bed with Mr. Ozdemir.

Co-Director of Indiana Election Division Spins Disingenous Nonsense About Indiana's Supposed Falling Turnout Rate

In an op-ed piece appearing in Nuvo, newly appointed Co-Director of the Indiana Election Division, Democrat Trent Deckard, calls for the defeat of three bills that he says will lead to lower turnout.  My focus here though is on the premise of Deckard's opposition, a premise that is pure BS:
It wasn't so long ago that Indiana voters consistently turned out at the polls, even in mid-
Trent Deckard
term and municipal elections.   
However, last November, barely 30 percent of Hoosiers who were registered to vote actually cast a ballot on Election Day, ranking Indiana at the bottom for turnout nationwide.   
This trend is no accident: as a state, we've made it much more difficult to vote, creating barriers where we could have been opening doors. The result over the past 25 years is a sharp decline in the number of people participating in the democratic process.
What Deckard spouts is complete nonsense.  In 1988, 53.6% of Indiana's adult population voted.  In 2012, also a presidential election year it was 54.3%, an increase despite Deckard's claims of obstacles.  Real turnout increased, not decreased despite Deckard's claim of the enactment of barriers to voting.  But why did official turnout figures drop?  In 1988, 69.6% of the Hoosier adult population (or 2,866,334 people) were registered.  By 2012, 92.9% of the Hoosier adult population (or 4,555,257 people) was registered.  In that 24 year period, while there was a 19% increase in population, there was a 59% increase in registrations. 

Did Hoosiers suddenly become more civic minded about registering to vote, but not so civic minded to use their registrations to vote.    No what happened is that changes implemented by the National Voter Registration Act (Motor Voter) passed in 1993 made it much more difficult to purge non-voters.  Indiana has led the country in failing to clean up its voter registration rolls and Deckard's Election Division and various county clerks have been the subject of litigation for that failure.  As a result, Hoosier voter registration rolls are bloated with deceased voters and those who are registered at multiple locations.  For that reason, and that reason alone, is why turnout (which is figured by voters divided by registrations) is going down.

Deckard uses the turnout of 2014 in his article.  Looking at mid-term elections, the same pattern is shown as presidential elections when you look at the adult population. The turnout has stayed steady over the years. While the turnout was down a bit in 2014, it almost certainly was due to the lack of a major contest on the ballot.  Midterm elections without a major contest have lower turnout than those which do feature those contests.  That's not a surprise.

What is a surprise though is how disingenuous Deckard's article is.  The stats I've recounted in this response are well-known to him.  Instead of debating the three bills on their merits, he decided to dishonestly claim that Indiana's decreased turnout rate is due to "obstacles" when they're obviously a result of grossly inflated registration numbers.

Last month I wrote in more detail on this subject.  A greater exploration of the turnout figures is contained in that article.

Sunday, March 8, 2015

State and City's Super Bowl Stink Deal Smells to Indianapolis Southside Residents

Today's Indianapolis Star features a very interesting and lengthy investigatory piece on a Super Bowl deal that stinks figuratively and literally:
Rotten eggs. Sulfur. Natural gas. Near Southside residents describe the odors that permeate their neighborhood in many ways.   
"This neighborhood, it just stinks," said Lisa Barnes, 52, who has lived with it for years.
"It just stinks like a sewer." 
Officials at the nearby Metalworking Lubricants Co. plant have insisted that what is known as the "Southside stench" isn't caused by the dozens of smudged tanks behind their chain-link fence.   
Government regulators, too, have said they don't have proof the company is the source. And even if they did, they say, they can't regulate smells.    
But those regulators knew where to turn when they wanted to put an abrupt end to the smell in 2012.
With Super Bowl XLVI only a week away, an Indianapolis Star investigation recently discovered, city and state officials quietly signed an agreement to suspend operations at Metalworking Lubricants for seven days in the lead up to and during the nationally televised NFL festivities.
Some activists and residents say the Super Bowl deal raises questions about what the city and state promised the company in order to persuade it to shut down. Were favors offered, some ask, in exchange for ensuring a stink-free event at Indy's nearby Lucas Oil Stadium?
City and state officials insist no favors were extended. But to residents — who had complained about the odor for years — the Super Bowl deal stings in other ways.   
"It strikes me as unfair and unfortunate that we can provide clean air and non-smelly air for visitors who come for the Super Bowl," said Southside resident Jim Simmons, "but not for our citizens who are in the path of this odor every day."
...[A]t a recent public meeting at Manual High School, neighbor after neighbor took the podium to express their frustrations with both the state and the city.
They said smells from the plant are so noxious they scare away guests, prevent them from going outside and stymie efforts to revitalize what's long been an impoverished area south of Downtown.
A "voluntary agreement" was signed Jan. 23, 2012, by Rick Powers, the city's then code enforcement chief; Tom Easterly, the top official at the Indiana Department of Environmental Management; and the company's president. None of them would speak with The Star for this story.
The agreement says that between Jan. 30 to Feb. 6, the company would conduct "no activity" at the South Senate Avenue plant's oil processing center. City and state inspectors would have access to the plant during that time, and the company would be required to "submit time-dated photographs" to verify it had shut down.
The city also agreed to suspend any enforcement actions during the shutdown, unless "an odor event ... is attributable to Metalworking and is potentially disruptive of Super Bowl-related activities."
Why have state and city officials been so reluctant to go against the company?  The state failed to issue any air quality citations against the company despite the Indiana Department of Environmental Management having received at least 30 complaints about the smell.  IDEM's defends itself saying that, although the department now has exclusive authority to regulate air quality, it has no authority to regulate "foul orders."  Although that claim is difficult to buy,  IDEM though correctly points out that the City of Indianapolis could still pursue complaints against the company pursuant to local ordinances regulating nuisances. 

City Prosecutor Samantha DeWester though claims she has never been asked to pursue any nuisance violations against the company.  So let me get this straight, at least 30 complaints have been filed at the state level, but those same folks did not think of making a complaint to their local government?  Even if the 30 complaints were wrongly made to the state, why didn't IDEM officials simply refer those complainants to the City?  Then again, maybe they did.    Certainly DeWester's claim that there have been no complaints to the City about the company and the smell, just doesn't ring true.  It appears that the city officials once again are failing to operate in a transparent fashion, including not producing public documents when requested.

It also raises red flags that Rick Powers, who was then head of code enforcement, and Tom Easterly, the chief of IDEM would not speak for the story.  When public officials won't speak about what they did, it is generally because they did something that is indefensible.

As far as Southside residents complaining that they have been treated as second class citizens compared to Super Bowl visitors, welcome to Indianapolis city government. That's how we roll here.

Kudos to Star writers Ryan Sabalow and Vic Ryckaert for writing an article that demonstrates what a local newspaper should be doing.   See also a companion article to the piece discussing the contract in bit more detail and the reaction of "good government" advocates to the deal.  Unfortunately the piece doesn't link to the actual contract.

Saturday, March 7, 2015

UCLA Law Professor and ACLU Argue that Denying Trademark Protection to Redskins Violates First Amendment

I completely agree with UCLA Law School Prof. Eugene Volokh and the American Civil Liberties Unioin on this one.  The First Amendment Freedom of Speech Clause does not and should not allow government officials to deny certain speech legal protection because those officials don't like the viewpoint expressed.  From the Volokh Conspiracy blog republished by the Washington Post:
The Patent & Trademark Office held last year that the Redskins’ federal trademark must be canceled, because a federal statute bars registrations of marks that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” This doesn’t bar the Redskins from using their name, but it does reduce their ability to use trademark law to stop various infringing Redskins gear. I have tentatively argued that this exclusion of “disparag[ing]” trademarks violates the First Amendment:
My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination. But I’m not sure that courts will ultimately see this my way; so far they haven’t been inclined to do so, precisely because the exclusion of a mark from federal registration leaves people entirely free to use the mark.
And the ACLU has just taken the same view in the appeal of the PTO Redskins decision. Here is an excerpt:
Few principles in constitutional law are as settled as the First Amendment’s prohibition on government regulation of private speech based on viewpoint. The courts have never blessed a government program that permits government actors to determine the acceptability of a speaker’s viewpoint and then condition benefits based on that determination. The First Amendment harms are magnified when such regulation of speech rests on vague and subjective terms that provide no meaningful notice to speakers as to which speech the government will find acceptable, and thereby risk — and in this case, ensure — inconsistent and discriminatory application. 
These evergreen principles hold no less true simply because they arise in the context of trademark law. Yet Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), not only condones but mandates viewpoint-based discrimination in the provision of trademark registration. Section 2(a) prohibits the registration of any trademark interpreted by the U.S. Patent and Trademark Office (“PTO”) to be immoral, scandalous, or disparaging to any persons, institutions, beliefs, or national symbols. It is indisputable that registration of a mark provides substantial benefits to a trademark holder; it is also true that many trademarks involve expressive speech and association....
....Under the First Amendment, viewpoint-based regulation of private speech is never acceptable, regardless of the controversy of the viewpoint. The Lanham Act violates this bedrock principle by creating a formal system of government-provided benefits and then distributing those benefits based on a system of explicit viewpoint discrimination. It is simply not within the government’s authority to determine what speech is too “scandalous” to merit trademark protection. The Lanham Act’s determination of trademark propriety “is inconsistent with the maintenance of a robust and uninhibited marketplace of ideas” — especially so in the trademark context, where a literal marketplace allows members of the public to register protest through boycotts or other traditional First Amendment means. 
By scheduling the cancellation of the Redskins’ trademark because the word expresses a disparaging viewpoint, the government violated the First Amendment. This Court should end this formal system of viewpoint discrimination by issuing a narrow ruling that strikes down those portions of Section 2(a) of the Lanham Act that prohibit registration of “immoral,” “scandalous,” or “disparag[ing]” marks.
To read the entirety of Prof. Volokh's column and the ACLU's position he quotes, click here.

Note:  The Redskins' football helmet was added by this blog and was not part of the original article by Prof. Volokh.

Friday, March 6, 2015

Scare Tactics Employed Against the Religious Freedom Restoration Act Aren't Supported by the Case Law

Opponents of Indiana adopting the Religious Freedom Restoration Act have labeled it a "license to discriminate" and suggest the law would invalidate all sorts of laws when litigants claimed a religious defense.  The case law demonstrates those claims are not only exaggerated, they are downright false.

Up until 1990, the courts employed what is known as the Sherbert test for examining whether laws violate the First Amendment Free Exercise (of Religion) Clause.  That test said that if a litigant demonstrates that a law "substantially burdens" the person's religious beliefs, government must prove that it has a compelling interest for the law for the law to be upheld when faced with a free exercise challenge.

State Senator Scott Schneider is one
of the authors of the Indiana RFRA
In 1990, the United States Supreme Court handed down the Employment Division v. Smith case. Writing for the majority, Justice Scalia tossed out the Sherbert test, replacing it with a new test which held that for laws that are facially neutral and generally applicable, there would be no free exercise violation.  Even if the law was not found to be neutral and generally applicable, the law could still survive if the government could show a compelling interest in passing the law.

The decision in Employment Division v. Smith outraged people across the political spectrum. A broad coalition of conservative and liberal groups (including the ACLU) pushed for religious freedom legislation that would restore the Sherbert test.  Democrat Chuck Schumer (D-NY) introduced the Religious Freedom Restoration Act into the U.S. House.  (Schumer later was elected Senator).  The bill passed  that chamber unanimously and then the U.S. Senate by a 97-3 vote.  President Clinton signed the bill into law in 1993.

What the federal RFRA did was to restore the Sherbert test with one slight addition on to the end of the test, namely that the law be "the least restrictive means of furthering that compelling government interest." 

In 1997, the Supreme Court upheld the RFRA as applied to federal laws, but found that federalism prevented its application to state laws. Instead states had to adopt their own RFRAs.  Since then 19 states have done so.  In those states that don't adopt the RFRA, the Employment Division v. Smith test applies instead of the Sherbert test.

The pre-RFRA Sherbert test, which employs the compelling government interest test, didn't allow for widespread discrimination based on religious beliefs.  The Court found a compelling state interest in maintaining the tax and Social Security systems, upholding military conscription laws, and providing a uniform day of rest.   The Court declined to find a compelling interest in only limited circumstances such as the school attendance of Amish children to age 16.

Even though the RFRAs have added one additional part of the test - the least restrictive means requirement - they have also proven not to sanction widespread discrimination as detractors (who were once on the other side) now claim.  Several states (California, Florida, Alaska, Wisconsin, Illinois) have dealt with the application of the RFRA to state statutes where Christian landlords did not want to rent to unmarried couples who they believed were "living in sin."  Four of the states upheld the law, concluding there was no substantial burden on the landlord's religion.  In the fifth state, Illinois, the court found there was a substantial burden, but the City of Chicago had a "compelling interest in eliminating all forms of housing discrimination."  Thus, the state laws on housing discrimination were upheld in all five states.

A Florida court dealt with an Islamic woman who, pursuant to her religious beliefs, wished to wear a veil when her driver's license was taken.  The court found no substantial burden on the woman's religious liberties from being required to take the photo.

On the other side, RFRAs have been used to strike down the laws that required Amish horse-drawn vehicles display a particular warning sign (as opposed to alternatives) and have been used to allow religious organizations to show favoritism toward members of their faith in employment matters.

The bottom line is that Indiana RFRA would provide some additional protection for religious freedom, but it would most certainly not permit widespread discrimination as claimed by detractors.

See also:  Saturday, January 17, 2015, Senator's Religious Freedom Restoration Act Is Mainstream Legislation Modeled After Federal and Other State Laws

Ogden on Politics' Random Political Observations

Just some random political observations for a Thursday evening:

1.  Poor GOP Turnout in 2015 Will Doom Many Marginal Indianapolis Council Candidates - Once thing you learn in politics is that turnout is driven by the top of the political ticket.  Without a strong Republican candidate in the race against former U.S. Attorney Joe Hogsett expect deep Republican losses on the Council.  After the next election, Democrats on the 25 person council could easily reach 16.

2.  Indy Democrats Will Heart David Brooks -  The Democrats will come to love the council maps drawn by Republican operative David Brooks.  By the time the next map is drawn after the 2020 census, the Democrats may control every council district north of Washington Street, with their majority reaching as high as 19 seats.

3.  Governor Mike Pence's Poll Numbers - While Governor Mike Pence's polling numbers are in the range of those of former Governor Mitch Daniels, there is a huge difference between the two.  Daniels' numbers were deep and, as such, he was able to withstand the political storms.  Pence's numbers are not deep.  The minute the inevitable storms hit the Governor's Office, like the JustIn snafu, Pence supporters leave him like rats escaping a sinking ship.

4.  Governor Mike Pence's Brand of Republicanism is Outdated - Governor Pence supported the State Police collecting bulk cellphone data without a warrant.  When faced with a House bill that strongly liberalized Indiana's marijuana laws, Pence insisted it be cut back.  Pence has pushed law and order issues while Governor.  When speaking on national defense issues, he has advocated a substantial increase in the defense budget.  He has signed off on several corporate welfare schemes pushed by the Hoosier pay-to-play crowd.   Pence seems oblivious to the fact that the Republican Party is much more libertarian, much more isolationist, much more populist, much less law and order, and more concerned about privacy issues than when he first began running for Congress more than 25 years ago.  If you think Pence is popular among Republicans, go to a Tea Party meeting and ask them what they think of the Governor.  It won't be pretty.

5.  Democrats for Governor  - The Democrats need to stop silly notion of Governor Glenda Ritz and come down to Earth.  Indiana House Speaker John Gregg or former Congressman Baron Hill would be very strong candidates and have an excellent chance of defeating Pence.

6.  Glenda Ritz for Superintendent of Public Instruction -  Don't believe the claims of Republicans otherwise, Ritz is well-positioned to be re-elected in 2016.  She has lost few of her voters from 2012 and is likely to add some Bennett voters who believe she has been treated poorly.  A well-run campaign puts her over the top.

7. Hillary Clinton - Democrats have fooled themselves into believing HRC is an exceptionally strong candidate.  Even without a serious opponent, she has made several blunders.  Meanwhile Republican candidates who once trailed her badly in state polls, often are shown as leading her.

8.  Elizabeth Warren - The Democrats have on their bench Sen. Elizabeth Warren who understands the need for the Democratic Party to move in a more populist direction.  Fortunately for Republicans, the Democrats will likely keep her on the bench until at least 2020. 

9.  Same Sex Marriage - The Republicans dodged a bullet on the same sex marriage issue.  Almost overnight the idea of marriage between same sex marriage became very popular.  Caught on the wrong side of the issue, the Republicans could have paid a steep political price.  Instead federal courts bailed them out taking the issue away from them.

10.  The Fight Over Religious Freedom - Galvanized by their success on same sex marriage, the left has foolishly double down, demanding that people set aside their religious faith and embrace their views.  Just 22 years ago, liberal activists overwhelmingly supported the Religious Freedom Restoration Act. Today they overwhelming oppose it.  When the question is whether two people who are in love should be able to marry despite being of the same sex, Liberals have a winning issue.  But when the issue is whether a photographer should be forced to photograph a same sex wedding despite the photographer's strong religious objections, Liberals lose the political debate.  Forcing mom and pop businesses into bankruptcy fighting legal challenges is not the way to win converts.  Expressing intolerance for people's religious views is not the way to win tolerance for the LGBT community.

11. Democrats Are Wearing Rose-Colored Glasses - Occupying the White House for the last six years has blinded Democrats to the serious problems their party faces.  Republicans have majorities in Congress unmatched for decades.  In the states, the GOP control an overwhelming number of Governorships and state legislative bodies.  Yet the Democrats sit around dispensing advice on how Republicans can fix the problems with their party.   Okay.

12.  Most Underreported Story is Democrats' Gender Gap Problem - The Republicans' struggle to connect with female voters, especially unmarried female voters, gets all the headlines.  But a bigger story, rarely reported, is how very poorly the Democratic Party does with male voters.  The Democrats' gender problem has caused them historic losses at the state level as well as control of Congress.

13.  GOP Establishment Presidential Candidates Lose More Ground -   The Conservative Political Action Conference  (CPAC) straw vote showed how little support there is for GOP establishment candidates.  Former Florida Governor polled at 8.3% (only by busing in supporters) while New Jersey Governor Chris Christie received 2.8%.

14.  CPAC Marijuana Vote -  Probably the most surprising vote at CPAC was that 41% of the attendees supporting marijuana legalization.  Not decriminalization, not medical marijuana, but full blown legalization.

15.  CPAC Demographics - 63% of the attendees were women (they apparently didn't know Republicans have launched a War on Women) and 47% were between 18 and 25.

16. GOP Trends More Libertarian, More Populist -  A Republican who can tap into the increasing libertarian and populist strain of Republicans could capture not only the presidential nomination but the White House.  It looks like the Democrats intend to nominate a pro-Wall Street candidate, i.e. Hillary Clinton.  If Republicans foolishly nominate a Bush, she can win.  If they nominate a new brand of populist conservative, the Republicans have a better than 50-50 chance of winning back the White House.