It was just past 7 PM on Election Night, 2012. I was in front of my computer, a dozen browser windows open to various local news outlets and social networks, feverishly making memes for the ACLU. “Don’t Leave the Line,” they said in English and Spanish. “By law, if you’re in line when the polls close, you must be allowed to vote.”
With less than an hour until polls closed, and wind chills well below freezing, thousands of people across our state were still waiting in line to vote. We’d received word that some officials planned to lock their doors at the 8PM cutoff, so while some of our staff took calls to voting rights hotlines, our attorneys were on the phone with judges and election officials, and I worked the social networks, trying to spread the word so that no one gave up their rightful place in line.
This circumstance was not unique to Pennsylvania, or to the 2012 election, and while intentional attempts to suppress votes are at least in part to blame, the larger problem is a system and an infrastructure woefully inadequate to handle even the 60% of eligible Americans who choose to vote.
Our system of elections in the United States is a joke. Voters participating in the most vital core function of democracy must do so by visiting their municipal buildings, staffed by volunteers, often to fill out a piece of paper. In some states–including Pennsylvania–polling places might literally be inside private homes. This is not the system of elections one expects from a society where a person can order a yoga mat from their smartphone and have delivered to their hands 12 minutes later.* It’s past time for the United States to embrace electronic voting. Continue Reading
In October, the Pennsylvania legislature passed the “Revictimization Relief Act,” which allows crime victims to police the actions of perpetrators for life with almost no limits. The inspiration was a recorded commencement speech by Mumia Abu-Jamal played at a Vermont college earlier that month; Pennsylvania legislators said the speech re-victimized the widow and family of Daniel Faulkner, the Philly cop Abu-Jamal was convicted of killing.
Faulkner’s widow was not forced to hear the speech. Her trauma and mental anguish came only from the knowledge that Abu-Jamal would deliver it. “How could they allow him to speak when Danny no longer has a voice,” she asked in an official statement. “It is my opinion that all murderers should forfeit their right to free speech when they take the life of an innocent person.”
A majority of Pennsylvania legislators agreed. They gave Maureen Faulkner, and other victims, the legal right to stop convicted people like Abu-Jamal from doing almost anything. The law, as written and passed, allows victims to prevent any “conduct which perpetuates the continuing effect of the crime on the victim,” with such conduct defined as that which “causes a temporary or permanent state of mental anguish.”
To many, the idea that one person’s subjective emotional experience trumps another’s constitutional rights is an affront, and the ACLU has already sued to strike down the Pennsylvania law. But the elevation of emotion is emerging as a disturbing theme of 21st century law. [pullquote position=”right”]As more Americans seek to protect people’s feelings, they sometimes find themselves in conflict with the foundation principles of justice.[/pullquote]
This year the Supreme Court will rule on Elonis v. United States, a complicated case in which a Pennsylvania man, Anthony Elonis, was convicted after posting graphic and horrifying Facebook statuses obviously directed as his ex-wife. Elonis’s defense claims he was writing rap lyrics, expressing his darker urges in the style of Eminem, and that the First Amendment protects him. Prosecutors say his messages constitute a true threat, and are not constitutionally protected. The case reached the high court partly because of a question over jury instructions: While the First Amendment and prior case law rely on the speaker’s intent to threaten, jurors who convicted Elonis were told to consider his speech a threat “if a reasonable person would have felt threatened.” [Emphasis added]
In other words, the difference between free speech and a federal crime hinges not on what was written or how, but rather on the emotional response of the person doing the reading. Continue Reading
I encourage you to read this piece in Colgate University’s newsletter about Vic Walczak, the state legal director for the ACLU of Pennsylvania. I had the privilege to work with Vic during my time on staff there, though never as much as I would have liked. He’s a great guy who’s helped a lot of people, and the story is well worth your time.
I took to video to share my thoughts about the Supreme Court’s recent ruling in Town of Greece v Galloway. It’s a terrible ruling that opens the door for towns across America to essentially endorse unofficially-official religions.
I spent some time on Twitter yesterday talking to people who think the ruling is a good idea, but I think most of them misunderstand the questions in this case–if they don’t suffer more systemic misunderstandings about the history of the United States and the Constitution. Continue Reading
This is a feature I started in my time working for the ACLU, that seems worth continuing here. It’s a roundup of news stories about First Amendment rights, not only from the United States but other parts of the world where such rights may not be guaranteed. As with any roundup of news stories, please consider the integrity of the linked source–I try not to link articles that feel bogus, but sometimes stories slip through.
- In a new book, retired Supreme Court Justice Paul Stevens suggests six new amendments to the U.S. Constitution, including a revision to the First Amendment that would place “reasonable limits” on political campaign contributions. [NPR]
- The NCAA believes the First Amendment gives them the right to profit from using the images of the players it doesn’t pay and doesn’t educate in video games, and they want the Supreme Court to agree. [Bloomberg]
- Several Christian groups that perform same-sex weddings, including the United Church of Christ, have sued North Carolina because the state’s marriage equality ban, enacted through both state law and the state constitution, violate their religious freedom under the First Amendment. [Wall Street Journal]
- Defense attorneys for alleged gang leader Ronald Herron argue that his rap recordings, in which prosecutors claim he journaled his crimes, are in fact protected free speech, analogous to Johnny Cash’s “Folsom Prison Blues,” and inadmissible at trial. [AP]
Giving Tuesday is my favorite post-Thanksgiving theme weekday! Black Friday is behind us–so too Small Business Saturday and Cyber Monday–and it’s time to think about how we’re going to give back and do something good for society. Here are four charities I believe in and to which I donate. What are your favorite charities? Let me know in the comments!
CLICKABLE CHARITY LINKS:
In the fall of 2009, I sat in an apartment in Center City Philadelphia with a dozen or so ACLU donors and staff members, and a handful of area Intellectual Property attorneys as ACLU attorney Chris Hansen outlined the organization’s strategy in a new lawsuit challenging the patenting of human genetic material. Earlier that same year, I was with a group of ACLU staff gathered in New York as we learned about a groundbreaking new effort by the organization. For decades, medical treatment and research had been limited by laws granting patent rights to the companies and corporations who isolated and identified human genetic sequences. Experts had long opposed such patent protections, but the ACLU thought they had an answer. We had a coalition of researchers, geneticists, cancer survivors, and health advocates, and we had a strategy to challenge the patents on two genes linked with breast cancer.
The ACLU’s argument, first dreamed up by Hansen and his team, was radical. The IP lawyers gathered in that Philadelphia apartment treated Many had argued that naturally occurring products like genes should not be patented. To grant a patent to the scientist responsible for its identification is like granting a patent on coal to the first man to dig a chunk from a mountain. Patents are meant to protect the invention of a product or process, not to grant proprietary ownership of a natural resource. Many had argued that the first gene patent was an error, made by a patent office who didn’t understand the new science they faced. What no one had ever argued was that the Constitution protects an individual’s right to own the genes in his or her body–that ownership of one’s body was a civil liberty.
Even for the lawyers in the room, it was hard to understand the argument. It was crazy. More than that, it was destructive. In the decades since that first erroneous gene patent, an entire industry had grown up around isolating and patenting genes–corporations had engaged in a race to identify, a race to patent, so that IP law would grant them the exclusive right to experiment, test, and license the genes they found.
Call me partial, but articles like this get my blood boiling. You can read the whole thing at that link, but here’s a summary: John Featherman, writing for Philly.com, doesn’t believe the ACLU should promote themselves as defenders of gay rights, because the ACLU defended the free speech rights of Westboro Baptist Church in court.
Here’s a sample:
“[ACLU-PA Legal Director Witold] Walczak started out by telling me, “The ACLU defends everyone’s rights and strongly believes that no one is free unless everyone is free. If government has the power to squelch Phelps it has the power to censor other unpopular groups, with the LGBT community being an unfortunate and frequent target.” Walczak later added, “ Just as the ACLU’s defense of abortion protesters doesn’t undermine our commitment to a woman’s reproductive freedom and representing the KKK doesn’t compromise our dedication to racial justice, defending Phelps’ free-speech rights is consistent with our LGBT-rights work.”
I don’t know. I just don’t see it. Maybe I’m just not sophisticated or hip enough to see how you can represent the interests of opposing parties at the same time. To me, a former candidate for political office, that’s like taking money from a donor and then turning around and giving it to their worst enemy. In my world, you just don’t do that.”
So, first of all… WBC is the LGBT community’s worst enemy? Really? Not the politicians who want to prevent us from marrying the people we love, and put us in jail for having sex? Not the religious leaders who incite violence against us, and push foreign nations to legalize the execution of gays? Not the fake psychologists who claim electroshock treatments and solitary confinement can turn gay children straight?
No, those aren’t our worst enemies. People who say nasty things about us. They’re our worst enemies. Continue Reading