Tuesday, March 31, 2015

Amazon Announces New Service to Compete with Angie's List, Yelp

The Los Angeles Times reports on another likely reason that Indianapolis-based Angie's List pulled its plug on its headquarters expansion, i.e. that Amazon was poised to start a competing service:
The e-commerce giant Monday launched Amazon Home Services, a marketplace that allows shoppers to search for professionals in more than 700 service options including snow removal and Spanish lessons.
The marketplace is expected to compete against consumer review sites like Angie's List and Yelp, as well as advertising sites like craigslist.
Amazon Home Services is available with varying levels of coverage in more than 40 states. Major metropolitan cities like New York, Seattle, Los Angeles and San Francisco are currently the only ones with high coverage.
Professionals can join the service on an invite-only basis, and will be required to have insurance and undergo a background check, said Peter Faricy, vice president of Amazon marketplace.
No subscription is required to read reviews, and transactions take place on the site. Several services list estimated prices.
I think it is entirely possible that Angie's List executives will seek to sell the company rather than compete head-to-head with Amazon.

Angie's List stock closed at $5.87 a share, down from last Wednesday's closing of $6.63.

Corporate Leaders Threaten Indiana Over RFRA While Ignoring China's Abuse of Women and LGBT Rights

Over at the Bloomberg, Ranesh Ponnuru discusses Tim Cook of Apple's comments on Indiana's Religious Freedom Restoration Act:
Tim Cook, the chief executive officer of Apple, is spreading misinformation about a new religious-freedom law in Indiana. 
That law and similar ones, he writes in the Washington Post, "say individuals can cite
Tim Cook, CEO, Apple
their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law." He goes on to claim that they "rationalize injustice by pretending to defend something many of us hold dear. They go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality." 
Cook may not be aware of this point or others that cut against his argument because reporting on this controversy has been abysmal. Cook may also be unaware that the "wave of legislation" that he fears has largely already happened. A very similar religious-freedom law has been on the federal books for 22 years, and that law itself codified a Supreme Court doctrine that had been in place for most of the previous few decades. Nineteen states besides Indiana have similar laws. The laws don't seem to be abetting a rising tide of discrimination based on sexual orientation, or based on anything else.   
What these religious-freedom laws say is that government can require people to violate their religious beliefs only when it is pursuing a compelling interest, and must do so in the least intrusive manner possible. Thus the Supreme Court recently ruled under a federal religious-freedom law that a Muslim prisoner doesn't have to shave his beard. These sorts of accommodations have long had a place in American law, and have typically been advanced to protect Muslims, Hindus, adherents of traditional Native American religions and other minorities.
Cook is not the only corporate leader who didn't bother to do the most basic research before spouting misinformation about the RFRA.  Marc Beniof of Salesforce also expressed his ignorance of the law sting "today we are canceling all programs that require our customers/employees to travel to Indiana to face discrimination."  Locally we had Lilly's, Angie's List, the Pacers and the NCAA all expressing considerable ignorance with .

Not only is the ignorance of the corporate and community leaders thick enough to cut with a knife, so too is their hypocrisy.  Salesforce and Apple does business in China.  China.  Human Rights Watch documents abuses of free speech, religion, women and LGBT rights in China:
The government censors the press, the Internet, print publications, and academic research, and justifies human rights abuses as necessary to preserve “social stability.” It carries out involuntary population relocation and rehousing on a massive scale, and enforces highly repressive policies in ethnic minority areas in Tibet, Xinjiang, and Inner Mongolia. Though primary school enrollment and basic literacy rates are high, China’s education system discriminates against children and young people with disabilities. The government obstructs domestic and international scrutiny of its human rights record, insisting it is an attempt to destabilize the country.
Human Rights Defenders
China’s human rights activists often face imprisonment, detention, torture, commitment to psychiatric facilities, house arrest, and intimidation.
One of the most severe crackdowns on these individuals in recent years occurred in 2013, with more than 50 activists put under criminal detention between February and October. Human rights defenders are detained for ill-defined crimes ranging from “creating disturbances” to “inciting subversion” for organizing and participating in public, collective actions. In July, authorities detained Xu Zhiyong, who is considered an intellectual leader of the New Citizens Movement, a loose network of civil rights activists whose efforts include a nationwide campaign that calls on public officials to disclose their assets.  
Freedom of Expression
Freedom of expression deteriorated in 2013, especially after the government launched a concerted effort to rein in micro-blogging. The government and the Party maintain multiple layers of control over all media and publications.
Internet censors shape online debate and maintain the “Great Firewall,” which blocks outside content from reaching Internet users in China. Despite these restrictions, the Internet, especially microblog services known as “weibo” and other social media tools, are popular as a relatively free space in which China’s 538 million users can connect and air grievances. However, those who breach sensitive taboos are often swiftly identified and their speech deleted or disallowed; some are detained or jailed.  
Freedom of Religion
Although the constitution guarantees freedom of religion, the government restricts religious practices to officially approved mosques, churches, temples, and monasteries organized by five officially recognized religious organizations. It audits the activities, employee details, and financial records of religious bodies, and retains control over religious personnel appointments, publications, and seminary applications.  
Unregistered spiritual groups such as Protestant “house churches” are deemed unlawful and subjected to raids and closures; members are harassed and leaders are detained and sometimes jailed.    
(Editor Note:  This treatment of religion by government is probably something Cook and Beniof would approve of.)
Women’s Rights   
Women’s reproductive rights and access to reproductive health remain severely curtailed under China’s population planning regulations. While the government announced in November that Chinese couples will now be allowed two children if either parent was a single child, the measure does not change the foundations of China’s government-enforced family planning policy, which includes the use of legal and other coercive measures—such as administrative sanctions, fines, and coercive measures, including forced abortion—to control reproductive choices.
Sexual Orientation and Gender Identity
The Chinese government classified homosexuality as a mental illness until 2001. To date there is still no law protecting people from discrimination on the basis of sexual orientation or gender identity, which remains common especially in the workplace.  
Same-sex partnership and marriage are not recognized under Chinese law. In February, a lesbian couple attempted to register at the marriage registry in Beijing but their application was rejected. 
The American Conservative takes note of Cook and Beniof's hypocrisy:  (Warning audio starts automatically when you hit the link.)
Mollie Hemingway points out that Salesforce CEO Marc Benioff, who is pulling all business from Indiana in the wake of its new religious freedom law, has no scruples about doing business in China, despite its horrific human rights record. Excerpt:
"China isn’t just a place that tortures people for their religious beliefs. There’s the running over peaceful protesters with tanks, forced abortions under China’s one child policy, and the fact they send people to labor camps for tweeting jokes about the government."
A couple of days ago, the Daily Beast reported on the gay rights situation in China. Excerpt:
"The state of LGBT rights in China is abysmal. Activists, in particular, face a slew of problems that stretch beyond the personal and become political.  “Hooliganism”—a placeholder for consensual homosexual conduct—was decriminalized in China in 1997, but things haven’t gotten much better for the LGBT community since then. Peer to peer, Chinese society is becoming more accepting of the LGBT community, but positive depictions of LGBT characters on the silver screen are still illegal. Films in which a major character identifies as LGBT are usually banned, like Brokeback Mountain, or Wong Kar-wai’s film festival gem, Happy Together."
More details on gay rights in China here. It’s not a pretty picture. Gays are incomparably more free as gays in Indiana than in China. It’s not even close.   
Is this a problem for Marc Benioff? Is this a problem for Apple’s Tim Cook? Why do they swallow the Chinese camel while straining at the Hoosier gnat? In Cook’s case, it’s money: the $16 billion Apple made in China in the first quarter of the current fiscal year — that’s $16 billion in three months! — sure can buy some Tim Cook silence. He’s pushing around Indiana and other American states because it’s easy. It costs him nothing.
For more hypocrisy see Gary Welsh's column at Advance Indiana.

Sunday, March 29, 2015

RFRA Fallout: Expect Freedom Indiana's Vicious PR Tactics to Re-Energize Conservative GOP Base

Newton's Third Law of Motion states that:

"When one body exerts a force on a second body, the second body simultaneously exerts a force equal in magnitude and opposite in direction on the first body."  This is often restated as:  "For every action, there is an equal and opposite reaction."

That physical law is one you also see in politics.  In the political world success begets failure; failure begets success.  The 1980 Reagan landslide led to defeat for the Republicans two years later.  The 1992 win by Bill Clinton, led to the Democrats losing the House for the first time in decades in 1994.  Obama's win in 2008 and 2012 led to Republicans winning big victories in 2010 and 2014.
Governor Mike Pence

In politics, when Side A wins a battle, it relaxes while Side B organizes and, motivated, wins the next battle. Then B relaxes and Side A, motivated by its loss, wins.  This happens nonstop in politics. While unlike physics, the reaction is not "equal" it nevertheless is usually somewhat proportional. The bigger the victory the bigger the opponents' victory is likely to be the next time.

Which leads to this week's Religious Freedom Restoration Act debate.  Religious conservatives were ambushed by Freedom Indiana and its allies who at the last minute engaged in the worst sort of misinformation campaign about the law, falsely labeling it as a "license to discriminate" and encouraging their corporate partners to issue phony extortion threats.  While Freedom Indiana lost the legislative fight as Governor Mike Pence signed RFRA into law, the organization won a huge public relations battle.  Given the RFRA is completely irrelevant to LGBT rights, one has to wonder if Freedom Indiana's true motivation was to gin up a controversy to drive contributions to pay its undoubtedly growing payroll.

The action-reaction model is why a winning side in politics should always act with graciousness and humility.  Never kick opponents when they are down, never torment them, never engage in name calling, never ridicule them.  Doing any of that ensures that the reaction, i.e. retribution, when it comes...and it will come, will be much greater.  That's a lesson Freedom Indiana leaders do not seem to understand.  There will be consequences for the organization having engaged in one of the most vile, hate-filled political campaigns this state has ever witnessed. Freedom Indiana grossly
overplayed its hand, again for a cause which has zero impact on LGBT rights.

After Freedom Indiana's PR ambush, religious conservatives, as well as their other conservative allies, are not going to retreat and fly the surrender flag, sheepishly asking how they can make the other side happy so they won't be treated so mean next time around. They are going to regroup, organize better and smarter... and go on the offensive.  Freedom Indiana's guerrilla attack helped the organization win a battle, but religious conservatives are a much larger and more experienced political force.  Attacking religion and people of faith is not smart politics.

Does that mean Republicans will win more state legislative seats in 2016?  Given the limits of gerrymandering, that would pretty much be impossible as the GOP has pretty maxed out its possible gains.  But with religious types and other conservatives re-energized by Freedom Indiana's foolishly over-the-top tactics, 2016 is likely to be a good year for Republican state-wide candidates, including Governor Pence and the party's nominee for U.S. Senate.  While Governor Pence entered the RFRA debate having lost conservative support and facing possible re-election defeat, his steadfast support for the RFRA increases the possibility he can ride a re-energized conservative base to re-election.

Saturday, March 28, 2015

Freedom Indiana's Vile, Pointless Anti-RFRA Campaign Greatly Undermines Goal of Passing Sexual Orientation Anti-Discrimination Law

Quick question.  If I have a business in Indiana, can I refuse to serve gay customers?  With the exception of a few municipalities, the answer is "yes."

It has nothing whatsoever to do with the Religious Freedom Restoration Act.  It has everything to do with Indiana not having a law prohibiting discrimination against someone based on his or her sexual orientation.  Some cities have such a law, but Indiana, as a state, does not.

The existence of an RFRA on whether someone can be served is irrelevant. Even if Indiana had anti- discrimination law that applied to sexual orientation, the  RFRA wouldn't change that.  Sure someone could claim the RFRA as a defense to serve a customer in contravention of an anti-discrimination law. And you know what?  In every RFRA case across the country, the plaintiff lost that argument.  Courts have universally found that government has a compelling interest in preventing discrimination.

That's what the RFRA requires.  That if government is going to unduly burden a person's religious beliefs with a law, government must have a compelling reason for that law for its application to be upheld.  Again, in every case where the RFRA has been used a defense to the application of an anti-discrimination law, that compelling interest has been found and the law upheld.  Most religious liberty cases brought under the RFRA, by the way, have nothing to do with challenges to anti-discrimination laws.

These past few days, I have witnessed Freedom Indiana, the chief organization supporting LGBT rights, employ the most vile and dishonest political tactics ever seen in Indiana politics.  In addition to demagoguery taken to new Hoosier heights, the organization engaged in threats, name-calling, and enlisted corporate "partners" to issue extortion threats in an attempt to kill the RFRA   This is in sharp contrast to the positive campaign Freedom Indiana ran last year in support of same sex marriage, a campaign that won the support of many of the people the organization has now viciously turned on in opposing the RFRA.

What did Freedom Indiana accomplish by its anti-RFRA campaign?  Not a damn thing.  Even if Freedom Indiana had stopped the RFRA, again it would not have accomplished nothing.  With or without an anti-discrimination law, the RFRA is completely irrelevant to the LGBT cause.   

Freedom Indiana's tactics might aid fundraising (one has to wonder if this may have been the actual goal behind its RFRA opposition), but by its inexplicable scorched earth approach to the RFRA, the organization has greatly hurt the LGBT cause.  With the people the organization chose to attack in opposing the bill, the organization has turned a lot of otherwise allies into hardened political enemies who will not be in the mood to do anything for Freedom Indiana in the future.

Imagine instead of this pointless opposition to the RFRA, a law which again is irrelevant to the LGBT cause, Freedom Indiana had run a positive campaign promoting the need for a state anti-discrimination law that covered sexual orientation.  Imagine the organization doing what it did in 2014, using a positive message to promote a issue, telling heartfelt stories from real people about the need for an sexual orientation anti-discrimination law. 

In a few years, it is likely Freedom Indiana would have prevailed.  Now does anyone think that those legislators and RFRA supporters that the Freedom Indiana so viciously and unfairly attacked will now want to do Freedom Indiana any favors?  Absolutely not.

Freedom Indiana, with its vile and pointless campaign against the RFRA, set the cause for LGBT rights back 10-15 years, if not more.

Friday, March 27, 2015

Angie's List Offers Phony Job Promises in Exchange for $18.5 Million Taxpayer Subsidy

Next Monday, the Indianapolis City-County Council will vote on whether to provide an $18.5 million subsidy to Angie's List, an Indianapolis-based company has never shown an annual profit in nearly two decades of operation.  It will be the second multi-million dollar subsidy to the company in four years.

In exchange for the $18.5 million, Angie's List is agreeing to hire 1,000 additional workers at an average of $23 an hour.  At least, that is what the company and city officials are telling the media and council members.  A review of the 22 page "Project Agreement," however, shows that the jobs promise is an illusion. 

First some important terms in the Project Agreement need to be understood. The first is the "Target Outside Date" which is December 31, 2019.  The second is the "Retention Period" which is between January 1, 2020 and December 31, 2020.  (See Definitions Section, p. 7.) 

The Agreement does discuss a job target of 2800 jobs (there are about 1800 people employed at Angie's List so this would be a 1000 job increase) at $23 an hour.  But the language reveals an enormous loophole: 

During the Retention Period: (A) the Jobs Target shall be the lesser of 2,800 Company Jobs or the number of Company Jobs existing on the Target Outside Date; and (B) the Wage Target shall be the lesser of the Average Wage of $23 per hour or the Average Wage for the Company Jobs existing on the Target Outside Date 

(Emphasis supplied) (See Section 10(f)(i), p. 17) 

Translation:  If by December 31, 2019, i.e. the "Target Outside Date," Angie's List not only has not hired the 1000 new workers single person but instead has laid off 500 workers and cut their pay to $15 an hour, the company still will have met its obligations under the Project Agreement. 

It appears that the only time Angie's List is obligated to hire 1000 workers at $23 an hour average pay is if the company moves its office out of downtown before December 31, 2020.  (See Section 10(f)(i), p. 17)  If that happens, then the expiration date for the contract is extended from December 31, 2020 to April 30, 2025.  (See Section 10(g)(ii).) 

Pursuant to the Agreement, the failure to not meet jobs target during the retention period (January 1, 2020 to December 31, 2020) is not an event of default. (Section 10(f)(ii), p. 17)).     Rather the only remedy is to pursue a “catchup plan."  (Section 4, p. 9).  Only if Angie’s List fails to diligently pursue the catchup plan, and is less than 90% compliant, can the city pursue a remedy with respect to the amount escrowed.  (Section 8(c)(d)(e)(f), pp. 14-15). 

Bill Oesterle, CEO
Angie's List
But even that appears to be an empty threat.  Since the job target is 2800/$23 OR the number of jobs and average pay existing on December 31, 2019, then the company is always going to be compliant going into the retention period beginning on January 1, 2012. Finally, the document does have at the end a Job/Wage Schedule with targets until the end of the target outside date on December 31, 2019.  (See Exhibit D, p. D-1).  If Angie’s List doesn’t meet 90% of those goals then it may be required to deposit money into escrow. (How they come up with the amount, I’m not sure.)  But read the definition of “Final Compliance Percentage Reports” which is due for April 30, 2020 with respect to 2019 compliance.  If Angie’s List is compliant on that report because the company hits its job target, then Angie’s List is entitled to be paid the amount in escrow.   (Section 9(d)(iii.), p. 15).  But, again,, whatever employment numbers Angie’s List has on December 31, 2019, the Target Outside Date, even if below 2800 jobs and $23 an hour, meets the requirements of the Project Agreement.   

If that wasn't enough of safeguard to ensure that no enforcement of the 1000 jobs/$23 an hour promise ever takes place, the "Sole Remedy" provision steps in.  (Section 9(f), p. 15) Even if Angie’s List fails to meet a project target or a project compliance percentage, it still is not an event of default and the sole remedy is a catchup plan under Section 4 or, under Section 10(g) a requirement Angie's List pay Indianapolis Public Schools $1 million and sign a “Taxpayer Agreement” which appears to be a document that would limit the right of Angie’s List or an successor to take a tax assessment appeal during the retention period which ends on December 31, 2020 if not extended. (Definitions Section, p. 7).  But even that Taxpayer Agreement is sharply limited in that as long as the challenge is not seeking to reduce the tax burden more than 50%, such a challenge is not precluded by the Agreement.  (Definitions Section, p. 7).  

The only other remedy the City has is to go to court and ask for specific performance, i.e. to force Angie’s List to meet its promised targets. (Section 10(f)(ii), p. 17).  But again, by the time you get to the Retention Period, it is irrelevant as the employment numbers (Section 10(f)(ii), p. 17.)  Whatever employment Angie’s List has on December 31, 2019 by definition meets its obligations under the Project Agreement. (See Section 10(f)(i), p. 17).

Bottom line, the Angie's List jobs promise is certainly an illusion, with any mechanism to enforce it for show only.  It appears that what we're buying for $18.5 million is a promise that Angie's List will keep its headquarters in Indianapolis through the end of 2020.  But even if Angie's List doesn't live up to that promise, the penalty for the company moving is at best a slap on the wrist - a payment to IPS of $1 million and signing a Taxpayer Agreement that only slightly limits a tax assessment challenge for a handful of years.  (See Section 10(g), pp. 17-18). 
While the Angie's List Project Agreement is not as harshly one-sided as the ROC Agreement, it is filled with meaningless provisions that leave the taxpayers with no guarantee of getting anything for their $18.5 million.

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 www.angieslist.com. 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 www.angieslist.com. 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 www.angieslist.com.
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 State 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.