Category: Civil Rights


The ACLU’s “Declaration of First Amendment Rights and Grievances”

ACLU.jpgLast week, at a symposium held at American University, the ACLU unveiled a new report, entitled “Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances.” I’m proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:

To prove this, let facts be submitted to a candid world that the United States


• Ignores its representative mandate by governing in the shadows.

• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.

• Secretly uses private parties to spy and seeks immunity to cover their illegalities.

• Silences dissent.

• Prevents citizens from petitioning their elected offi cials.

• Profiles individuals and denies freedom of movement based on association.

• Falsifies information to deny liberty.

• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.

• Prevents soldiers from communicating with their families and prosecutes their lawful speech.

• Silences whistle blowers.

• Censors the press, broadcast media, and Internet based on content.

• Prosecutes the press for revealing illegal programs.

• Obstructs oversight by elected officials.

• To preserve secrecy, places secret holds on bipartisan open government legislation.

• Funds religious programs.

• Furthers its ideological agenda by censoring the scientific community.

These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to “[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying” and “[s]ecretly use private parties to spy” are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.

More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it’s essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.


Thoughts On Jena and the Civil Rights Movement

jena-tree-07.jpgThis past Thursday, we may have witnessed the face of the contemporary civil rights movement. Reacting to what they perceived as unduly harsh and discriminatory charging decisions by a local district attorney in the beating of a white student by six black students (the “Jena Six”), thousands of protesters descended on the tiny town of Jena, Louisiana. The controversy in Jena actually originated with the hanging of nooses by white students from the tree pictured at right, which was near a high school (it has since been torn down). White students had apparently long insisted that only whites were permitted to sit under the tree. The students who hung the nooses were suspended for a few days. Months passed, but racial tensions did not recede. Ultimately, there was an altercation that resulted in the charges noted above.

Some of the reporting on the “Jena Six” protest expressly invoked the 1960s civil rights movement. Some have even suggested that the “Jena Six” protest may mark the dawn of a new civil rights consciousness or movement. Several notable aspects of this recent protest suggest both similarities to earlier civil rights episodes and some important differences. As for similarities, the protesters clearly thought it important that they assemble and express their frustration in the town itself. As noted below, there was a substantial amount of online networking. But in the end, there was a felt need to assemble and speak in a physical place where protest was likely to be noticed (by the media, of course, but also by members of the Jena community). By their presence, the protesters sought to make Jena a symbol of the unfairness of the criminal justice system, just as Selma has come to symbolize inequality in the franchise and Little Rock the stigma of segregated education. When they descended on the town, protesters instinctively used specific places within the town — the courthouse where one of the “Jena Six” was thought to be held and the tree — to amplify their message. They appear not to have sought permission, by permit or otherwise, to assemble and speak. In that sense, at least, the protest was defiant. In these respects, the Jena protest looked on the surface much like street protests of the 1960s.

Despite these similarities, there were some substantial differences between the Jena protest and earlier civil rights protests. Unlike protests of the 1960s, the reaction time from event to assembly was remarkably short. Indeed, the protest in Jena was organized and effectuated almost overnight. Protest spontaneity was facilitated to a large degree by new technologies and media. Word of the “Jena Six” spread rapidly on the Web. At least since the 1999 Seattle WTO protests, activists have been relying upon new technologies to organize public demonstrations, document events on the ground, and in some cases counter police tactics. During the Jena protest, civil rights activists embraced these methods. News and protest plans were disseminated on blogs administered, and heavily trafficked by, African-Americans. African-American talk radio also played a critical role in bringing protesters together. This access to media was important in both organizational and expressive terms. In previous eras, protesters had to rely upon media like television to convey their message. With mobile, hand-held technologies protesters were able to document the events themselves, from their own perspectives, allowing them to bypass media filters to some extent. Further, unlike previous civil rights protests — but like most Web-originated swarms — the “Jena Six” protest initially lacked a traditional organizational structure or distinct leadership hierarchy. Indeed, civil rights leaders like Jesse Jackson and Al Sharpton were apparently caught somewhat off guard by the reaction to events in Jena (Rev. Sharpton said he learned of the controversy on the Web). The Jena protest, unlike prior civil rights displays, was not part of a more sustained campaign; once it was over protesters quickly left the area. Finally, and fortunately, this time there was no violent reaction — by either police, who mostly stayed in the background, or citizens (who mostly stayed home). (There were, however, some menacing statements regarding the “Jena Six” on the Web.) There were no hoses, no dogs, and no physical altercations between protesters and police. The marches and demonstrations appeared peaceful and generally well-organized. By most accounts, the mood of the protesters could be described as concerned, but generally relaxed and even at times festive.

What, if anything, might these similarities and differences indicate regarding the future of the civil rights movement?

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The Contemporary Protest Movement

war_protest_102809.jpgIn a book I have tentatively entitled, The People Out of Doors: The First Amendment, The Expressive Topography, and the Preservation of Public Liberties, I examine the many limitations on contemporary political protest and other First Amendment activity in public places. One of the things I thought much about while I was writing the book was the continued relevance and salience of the traditional public protest in an era of hyper-technology. In this weekend’s New York Times Magazine, Michael Crowley touches on this theme in a piece about the methods and effectiveness of the anti-war protest movement. Crowley’s principal focus is on modern-day methods of protest and, in particular, protest organizing. As he reports, protest repertoires like conference calls, lobbying, and mass emails are replacing the public demonstrations, door-to-door canvassing, and street theatre used in earlier social and protest movements. Crowley wonders whether technological advances in communications and organization will actually create a more effective protest movement than existed, say, in the Vietnam era. He seems skeptical — and with good reason. Thus far, despite organizational improvements, fundraising successes, and regular access to legislators including House and Senate leaders, the anti-war movement has achieved little tangible progress in halting the war or bringing home the troops.

Crowley’s piece highlights two substantial errors that contemporary protest and other social movements seem vulnerable to making. The fact that, as Crowley states, “[t]he Internet, not the street, not the campus, is the fundamental component of today’s anti-war movement” portends a premature abandonment of the streets and other public places. The Internet is a necessary tool for organizing, raising money, and conveying messages. Indeed, no contemporary protest movement can succeed unless it harnesses the benefits of bandwith. The first error, however, is to assume that the Web can replace tangible places of protest, and that democracy-by-technology can replace on-the-ground grass-roots activity. The “virtual march on Washington,” staged online by one of the principal anti-war movement organizers, could not produce the solidarity or impact of a real march on the Capitol. Nor can online polls and petitions replace more embodied forms of protest and protest organizing. As I argue in the book, the people cannot effectively self-govern solely by sitting in front of computer monitors and typing on keyboards. Although they did not ultimately produce legal reform, last summer’s immigration protests showed how a tangible public presence can attract attention and at least start a national dialogue. By contrast, who watched or even noticed the “virtual marchers”? Anti-war protest organizers have not yet entirely abandoned traditional protest repertoires. But they are moving in that direction. The people must continue to assemble “out of doors,” both in the physical/tangible sense and in the sense that they occupy spaces outside mainstream political institutions.

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Public Protest, Militarization, and Critical Democratic Moments

free-speech-pen-CO_small_jpg.jpgThanks to Dan and the others here at CO for having me as a guest this month. The 2008 presidential contest is under way, which means we can start looking forward to the national party conventions. I want to take a look back at the policing of public expression at the 2004 Republican National Convention in New York City. Familiar on-the-ground tactics such as protest zones, barriers, mass arrests, and permit denials were effectively used to control dissent and channel public protest. As some readers may recall, many RNC protesters were effectively relegated to a remote site on the West Side Highway, some distance from the convention. This was not as troubling as the cage built for protesters at the 2004 Democratic National Convention (pictured), but it was hardly facilitative of public protest and expression. If history is any guide, we can expect similar tactics to be used in 2008.

I want to focus, however, on a different aspect of public policing at the RNC. As reported in the New York Times, the New York City Police Department engaged in widespread surveillance of activists and protest groups prior to and during the RNC. Some of the details of that surveillance were first made public this summer, as a result of discovery in a lawsuit filed by protesters and others arrested at the RNC. In connection with my research for a book about public expression, I recently reviewed hundreds of pages of the almost-daily “RNC Intelligence Updates” and “Situation Reports” compiled and distributed by law enforcement. Among many other events, officers and undercover detectives reported the following potential threats to public safety:

• A planned “Bands Against Bush” music show. NYPD officials observed that “the mixing of music and political rhetoric indicates sophisticated organizing skills with a specific agenda.” The intelligence item notes that police departments in several cities where similar events were scheduled had been notified.

• Plans by a group known as “Axis of Eve” to use partial nudity as a “protest tactic.” Without apparent irony, the intelligence report states: “The event is said to include the participation of roughly 100 women in thong type underwear and will be advertised heavily amongst the media for maximum exposure.”

• The possible presence at the RNC of graffiti artists riding “magic bikes” – customized bicycles equipped with spray paint dispensers and videotaping equipment.

• Performances by “The Living Theater” entourage, whose purpose according to one intelligence report “is to raise community awareness on political or social issues,” and the “Surveillance Camera Players,” who engage in street theatre protests concerning the use of public surveillance cameras.

• The (frequently) reported whereabouts and apparent intentions of Aron “Pieman” Kay, whose signature form of activism apparently consists of throwing pies at people.

• Plans by a New York City-based group to use art murals and street theater to spread a “peace message.”

• An Iowa group’s plans to hold a film festival as a prelude to the RNC.

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HIV/AIDS and Human Rights in China – Law Professors to the Rescue?

I was supposed to be in China this week. A New York-based NGO called Asia Catalyst had organized a meeting on HIV and human rights. It was meant to bring together an emerging network of grassroots Chinese HIV advocates with experienced AIDS lawyers from around the world. Late last week, as Reuters reports, the Chinese government stepped in. The meeting was cancelled, the organizers told that “the combination of AIDS, law and foreigners was too sensitive.”

God knows it is flattering for any law professor to be thought of as a threat to social order, but the truth is, our meeting would have been good, not bad, for China. Virtually every country that has mounted a successful drive against HIV has depended in significant part on NGOs to provide services to gay people, drug users and sex workers -– people who are often inclined to duck and cover when government health officials come around with offers of help. Defending the rights of people with HIV is a crucial step towards creating the sort of social environment in which prevention and care reach those who need it. Independent legal advocacy organizations can productively push debate around politically sensitive policies (like de facto discrimination against homosexuals, or the criminalization of sex work), and challenge stigmatizing attitudes. They can monitor the public and private agencies funded to deliver health care and other services to people with HIV. NGOs also provide independent avenues of cooperation and communication with foreigners. And, just for the record, China is far from a disaster on the AIDS control front. More than most countries, its government has paid attention to the evidence and invested substantially in proven interventions like needle exchange. China’s response is not perfect, but it compares well with that of other countries similar stages of their epidemic development. (China’s HIV program is described in a Lancet article; there’s also a comment arguing that China is devoting too many resources to HIV in comparison with other, more prevalent health threats like smoking.)

Unfortunately, the Chinese government is not well-disposed to independent social action, particularly when it might be amplified through contact with foreigners. Some say it’s the Olympics – only nice news from China in the next 12 months, please. Others point to the report that there were something like 87,000 public protests in China in 2005 – enough to make any leadership cadre appreciate a little civil obedience. There’s the pessimistic view that the current leadership is Putinizing the nation, building up China’s military and getting tough on dissent on the home front. Whatever the causes, Chinese leaders are, as a group, ambivalent about civil society. Both NGOs and an independent legal system have the potential to help the Beijing regime deal with its terrible problems of corruption and social injustice – within the law. Many Chinese leaders recognize this, and there is support within the state for these developments. But in the case of our meeting, someone in the Public Security Bureau looked at the prospect of independent human rights lawyers networking with obstreperous global advocates – and blinked.

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Pomegranate Juice and the War on Terror

purely juice.jpgThe blogs are abuzz this morning talking about the Times’ profile of Stephen Abraham, an Army reserve officer who filed a crucial affidavit in the latest Guantanamo litigation. The article explains Abraham’s unique role:

As an intelligence officer responsible for running the central computer depository of evidence for the hearings, he said, he saw many of the documents in hundreds of the 558 cases. He also worked as a liaison with intelligence agencies and served on one three-member hearing panel.

All of which has left Colonel Abraham, 46, a civilian business lawyer who has lately been busy with a lawsuit between makers of pomegranate juice, with a central role in the public debate over Guantánamo. His account has been widely discussed in Congress, the administration and the press. On Friday, a federal appeals court judge took note of it in describing what she said were problems with the Pentagon’s hearing process.

I thought I’d do some digging into that aspect of this story that will interest our non-constitutional readers: why are pomegranate juice sellers suing each other?

PACER searches disposed of the mystery quickly. POM Wonderful LLC v. Purely Juice, Inc. et al., CV 07-2633 (C.D. Ca.) was filed on April 20, 2007. POM lawsuit against Purely Juice alleges that Purely Juice violated the federal Lanham Act (and its state analogue) by falsely marketing its product as “all natural, consist[ing] of 100% pomegranate juice” with “NO added sugar or sweeteners.”

Abraham represents Purely Juice. Just a few days ago, his client won an important victory in the case. On July 11, 2007, Judge Christina Snyder denied POM’s TRO. The order itself (download the PDF here) is notable for its length and careful attention to the law. POM had independently tested Purely Juice’s product, and allegedly found that “it is clear that consumers of ‘Purely Juice . . .’ are not receiving the nutrients and antioxidant polyphenol health benefits that one would expect from 100% authentic pomegranate juice.” [Editorial comment: anytime you are asking a judge to make a claim about “antioxidant polyphenol health benefits” on a TRO, you seem likely to be in for a tough fight.] But, Abraham argued that, basically, the FDA hasn’t yet made clear what constitutes 100% pomegranate juice, and it was otherwise compliant with 21 CFR 101.30, regulating percent juice claims. The Court agreed with Abraham. As for the plaintiff’s claim that the “NO added sugar” was misleading, the Court found that there was insufficient evidence to find that defendant had added sugar, accepting Abraham’s defense that “the laboratory results could have been caused by the natural variation in the pomegranate fruit, growing conditions, harvesting, storage conditions or processing conditions.” (Notably, this seems like a non-denial denial to me.)

Abraham’s good lawyering saved his client a significant chunk of change. According to a declaration filed in the case, Purely Juice has 800,000 bottles in its inventory, each of which retails for $3.79. ($3.79! For juice!)

So what’s the moral here? You can be a busy commercial lawyer and a participant in the great issues of constitutional moment at the same time? Or, perhaps, as various players seek to control the last lucrative, non-commodity, juice market, the great Pomegranate Wars have begun.


Consent Decrees and Unintended Consequences

lapd.jpgRobert Parry of the LA Daily News has written a curious column about the relationship between legal rules and police behavior.

As Parry explains:

In the late 1990s, rogue Rampart Division CRASH officers provided the Los Angeles Police Department’s legion of critics with ammunition . . . to place their vaunted enemy under the oversight of a federal court . . . All complaints against officers are now thoroughly investigated and subject to triple audits — by the LAPD Audit Bureau, the inspector general and the consent decree monitor . . . Serious uses of force are double-investigated — one administrative investigation and one criminal one . . . In short, after six years, if the LAPD was at all brutal and corrupt, shootings should be down, use of force down, complaints down, sustained complaints up and more officers prosecuted.

But, Parry asserts, shootings have increased 15%, complaints have increased, but guilty findings have decreased. Indeed, the “only statistic that appears to have tracked as the activists indicated is use of force. On a per-100-arrests basis, serious use of force is down about 20 percent.”

Parry asserts that these complicated data can be boiled down to a simple cause: “Cops are fleeing in record numbers [because of the increased supervision] . . . As a result, inexperienced cops with unseasoned supervision are using more deadly force and getting more complaints, but the force is deemed acceptable and the complaints are increasingly bogus.”

To my reading, this claim is bogus.

Attrition problems at the LAPD are old – they certainly predate the consent decree, starting as early in the mid-1980s. The problem’s severity has engendered a number of explanations, and solutions, varying from: excessive financial disclosure requirements, bad press due to the Rodney King riots, insufficient funds, a convoluted application process, bad equipment and physical plant, and even affirmative action policies. Shucks, the only explanation not offered is that LA’s famously sunny climate makes officers too happy to effectively walk the beat.

Even were attrition to be exacerbated by the consent decree, Parry still hasn’t come close to making his claim stick.

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The Right to Food

hunger.jpg[Another dispatch from Rome.]

Yesterday, we visited the UN’s Food and Agricultural Organization (FAO), based near the Circus Maximus. The FAO’s legal staff was gracious enough to give Temple’s students and faculty a presentation on their work, along with tips on how to get into international legal work.

The presentation and idea I found most interesting was the FAO’s advocacy on behalf of the (so-called) human right to food. The FAO (and the considerable scholarship on this topic) derive the right largely from the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Article 11:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent . . .

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

In response to a student question, the FAO’s lawyers acknowledged that this right is not presently internationally justiciable. Instead, in the words of the FAO’s strategic plan, advocates for the right should “support initial national implementation of the right to food and the Guidelines.”

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The Popularity of “Black Rifles,” and the Three Types of Gun Ownership

AR15.jpgBefore the permalink window closes, I want to note the article in Sunday’s New York Times on the popularity of modern “AR-15 pattern” semiautomatic rifles such as the one pictured to the right. These are semi-auto (i.e., magazine-fed, one shot per pull of the trigger) cousins of the select-fire M4 and M16 rifles used by the U.S. military. A new one typically runs around $1,000. This type of gun dominates many forms of competition rifle shooting, and is also commonly purchased for recreational target shooting, varmint and predator control, and private and public self-defense. It is also, of course, susceptible to terrible misuse — the D.C. Beltway shooters, John Allan Muhammad and Lee Boyd Malvo, used a stolen Bushmaster AR-15 rifle to commit their murder spree.

Numbers are hard to pin down. The best public resource is the ATF’s Annual Firearms Manufacturers and Export Reports (AFMER), but they have notable imperfections: they don’t break down rifle production by caliber, and they don’t distinguish law enforcement sales from sales to private citizens. In the Times article, TV host and gun blogger Michael Bane estimates that 400,000 ARs “change hands” annually. That sounds high. Adding up the ATF figures for 2005, I get about 100,000 new rifles made that year that can be identified with some certainty (usually due to the maker) as AR-pattern guns. Of course there are other kinds of “black rifles” sold, including those patterned on the M-14 used by the US military in the 1950s, and that would boost the final “black rifle” numbers. Still, even my conservative estimate puts combined AR sales in the same ballpark as a Big Three centerfire hunting rifle maker like Ruger (250,000 rifles in ’05, but a ton of those are little .22 rimfires, not centerfire rifles).

In an odd way it is an ideal rifle for a suburban shooting hobbyist. Ammo (generally the .223 Remington caliber) is fairly affordable and lower in power than most rifle rounds. An AR owner can practice at many indoor and smaller outdoor ranges, where heavier-caliber, more traditional rifles cannot. The guns are tough, accurate, fairly lightweight and, as the Times article notes, there are hundreds of accessories for customizing them. I suspect that for many younger Americans — say the MTV Generation on down — a gun like this is as likely to come to mind when the word “rifle” is spoken, as a bolt-action deer rifle might have been forty years ago.

Now a bit of broader analysis. I use a three-category shorthand to talk about firearms policy.

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Quarantines (and Law?)

The news has, understandably, been saturated the last two days with the story of the U.S. citizen infected with a drug-resistant form of TB who has been quarantined by the federal government, the first time in over four decades that the feds have invoked such an important and exceptional authority.

Missing from nearly all of the accounts that I’ve read, though, is any discussion on the law of quarantine, an essential aspect of national security law, and yet one that has been largely neglected in the aftermath of 9/11. The seminal case, of course, is Jacobson v. Massachusetts, in which Justice Holmes held that the state’s compelling interest in protecting the public health outweighed an individual’s Fourteenth Amendment-based liberty interest. But Jacobson is over a century old, and there are lots of subsequent developments that suggest that Holmes’s open-ended reasoning may not be quite so limitless today.

All of this raises the question of why we seem indifferent to the legal implications. Don’t get me wrong — I’m not suggesting that the government lacks the authority to quarantine individuals infected with TB. 42 U.S.C. 264 seems to expressly provide to the contrary. But on the theory that every case is precedent (except Bush v. Gore, anyway), shouldn’t this case provoke at least some discussion of the current legal authorities vis-a-vis quarantine, and the constitutional issues that invocation of such a sweeping power to detain naturally raise?