Tag Archives: First Amendment to the United States Constitution

Jeffs appeals. In his own handwriting.

This is a picture of Warren Jeffs, which was t...

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Had enough of Warren Jeffs, yet?

If you answered ‘no,’ you’re in luck. He’s doing his darnedest to stay in court, filing a pro se motion for a new trial in Texas.

Written in his own hand.

First off, let me just say: I’m reassured to see that someone out there has worse handwriting than myself, if just barely.

Second, and more to the point: Jeffs is arguing that he deserves a new trial on the basis that his First Amendment right to freedom of religion was violated by the original trial. To quote (if I can decipher):

The constitutional protection for religious faith and freedom of practice not being of full protection in previous trial, which constitutional religious protection of religious rights, Freedoms [sic], and religious practice should be upheld and supreme;

[…] This not being upheld, so openly, in previous trial, is legal grounds sufficient to rule in favor of defendant allowed a new trial[.]

Followed by quick Fourth Amendment appeal, almost as an afterthought:

[A]lso the court not allowing a full hearing on the suppression centered around illegal search[.]

Ironically, it’s probably the Fourth Amendment appeal that could help him most, not the First Amendment/Freedom of Religion appeal. Jeffs’ rights to practice his religion stop where they impede on the rights of another person, specifically, in his case, the rights of 15-year old girls to live free from rape or molestation. On the other hand, the evidence, he might argue, was collected by the government illegally.

The whole Texas case against Jeffs’ hinges on evidence collected after an anonymous call from a woman claiming to be 16-year old victim of the FLDS marriage system. Receiving the call, Texas justice snapped into action, raiding the compound and collecting, in addition to upwards of several hundred children, records and recordings that would become evidence of Jeffs’ marriage to underage girls.

However, it turns out that the 16-year old caller had long left her teens…and her twenties, and was actually 33-year old Rozita Swinton in Colorado Springs, Colorado who had never even been a member of the FLDS church.

If the anonymous call wasn’t legitimate, does that mean that evidence collected wasn’t permissible in court, either? Now were getting into classic “search and seizure” territory, and that’s the place that Jeffs should be going, not towards appeal on religious freedom grounds. He’ll find no sympathy in his rights to practice a religion that the rest of America looks at as abusive to teenage girls. On the other hand he may find some traction if he argues that the government inappropriately barged into his home and took evidence against him without a valid warrant.

And finally, for Pete’s sake, get an attorney! If Casey Anthony can incur the wrath of a whole nation of daytime t.v. watchers just because of people like this woman (and some really bad facts, too) and still get off because of a competent defense attorney (this guy), then even Warren Jeffs could do better than representing himself. Because when you go pro se, you don’t get a lesser standard, you don’t get any extra help from the judge, and you don’t get any extra sympathy from the world, either. You just look incompetent, kooky, and arrogant.

Frankly, there is a whole army of defense lawyers out there who would love to make their career fighting for your First and Fourth Amendment rights, no matter how repugnant your lifestyle seems to them (or how many times the judge says, No, you can’t appeal again). You might as well let them. It can’t hurt you. Further, it’s a lot easier to blame your counsel on appeal when it’s another attorney, not yourself.

And, at the very least, they would type the motions, and that would make it easier for the rest of us to read.

[Hat tip to Ben Winslow]

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Justice Alito versus…the Supreme Court?

Justice Alito wears his heart on his sleeve. And he’s not afraid to take on the whole court to do it.

Yesterday, Justice Alito was the lone dissenting voice in the Supreme Court’s decision to allow Westboro Baptists to protest at military funerals. As Josh Blackman points out, though, it’s not his first time.

Last term, the Court decided United States v. Stevens which considered the constitutionality of a statute that criminalized the distribution of so-called “crush videos” (basically videos of killing cute fuzzy animals). This term, in Snyder v. Phelps, the Court decided whether the protests of the Westboro Baptists at the funeral of slain Marine Matthew Snyder were constitutionally protected. In both cases, 8 Justices found that the laws were unconstitutional. In both cases Chief Justice Roberts wrote a very narrow opinion protecting free speech, but leaving many questions open. In both cases, Justice Alito was the lone dissenter.

In each, his dissents have been emotional, leading to questions whether they are motivated by law or by emotion.

To quote from Snyder:

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.
Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity theWestboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree inTucson—proclaiming that she was “better off dead”11— their announcement was national news,12 and the church was able to obtain free air time on the radio in exchange for canceling its protest.13

Balancing the rights of all parties is a difficult act at best. Adding the context of military funerals only complicates the issue. However, the questions remain: should justices decisions carry such heavy emotional appeal? Or should justice be blind and bereft of emotion?

Last: did all eight get it wrong? Or is Justice Alito up in the night?

(h/t Josh Blackman)

State Falling Apart? Repeal the First Amendment!

State Falling Apart? Repeal the First Amendment!

Senate Joint Memorial 8007 [in the Washington state legislature] requests Congress to pass an amendment declaring that corporations are not persons so that their speech can be restricted.The reason, according to the Memorialists, is that corporations cannot vote and therefore should not be protected by the First Amendment. But disenfranchised convicts, resident aliens, and minors cannot vote either. Do the Memorialists believe that, under a correct interpretation of the First Amendment, the government can pass laws making it a crime for an ex-convict to give a speech or write a book? Sorry, Malcolm X, Angela Davis, and William S. Burroughs, you’re all under arrest—again.

I suppose if folks in Utah can call for repeal of the amendments that they don’t like, then the folks on the other end of the spectrum can call for repeal of the amendments they don’t like, too.

Starting with the First Amendment…and then the Third, Fourth, and Fifth Amendments, too, if the line of reasoning followed by the Washington legislature is carried to its logical end.

(h/t Congress Shall Make No Law. Check out the whole post there.)

SCOTUS upholds strip club “pole tax”

Selling stuff at strip clubs costs 10% more

In 2004, the Utah legislature, being what it is (and what it is, is controlled largely by conservatives, both fiscal and social), passed a 10% tax on everything sold by strip clubs. Burgers, t-shirts, drinks, key chains, bobble heads, etc.  Everything. If you’re a strip club and you sell something, then the Utah legislature gets 10%. Because the tax was levied solely against, as the bill is labeled, Sexually Explicit Business and Escort Services, the tax came to be known as the “pole tax.”

That’s a First Amendment violation, the clubs said.

A group of strip clubs, including Denali and American Bush Inc., challenged the constitutionality of the law, arguing that it violated their First Amendment rights.

Denali features full frontal nudity, while America Bush has plans to introduce nudity into its performances.

When written, the “pole tax” was intended to pay for sex offender treatment, as well as to pay for the Utah Attorney General’s Internet Crimes Against Children Task Force.

The Utah Supreme Court has already upheld the law, and the US Supreme Court‘s refusal to hear the appeal essentially ends the clubs’ legal fight. Back then, Justice Durrant held that:

“In this case, the tax is triggered by nudity, which the (U.S.) Supreme Court has specifically declared ‘is not an inherently expressive condition,'” Durrant wrote in the majority opinion. “We find nothing in the record before us — either (in) the tax’s legislative history or in the text of the tax itself — establishing that the tax was enacted with the predominant purpose of suppressing protected expression.”

In other words, the tax doesn’t suppress protected expression.  It just makes it more expensive to see nudity.

First Amendment protections for nude dancing?

The Supreme Court dismissal aside, does the First Amendment ever cover nudity and sexually explicit businesses?

Ironically, the 10th Circuit Court of Appeals, which includes Utah, had addressed the issue of nude dancing just before the Utah Legislature’s “pole tax,” evaluating whether ordinances passed by the City of South Salt Lake could limit the extent to which exotic dancers could remove their clothes. As Justice Michael McConnell astutely noted, the Supreme Court has not been favorable to nude dancers in recent years.

Despite the theoretical uncertainties, however, the results themselves in these cases [speaking of those the US Supreme Court has ruled on]  have been consistent: the practitioners of nude dancing have lost and the ordinances have been upheld. (Heideman v. South Salt Lake City, 348 F. 3d 1182 – Court of Appeals, 10th Circuit 2003)

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(Aside: not having solicited one of these clubs before, I found it amusing that the dispute was over whether or not dancers had to wear “pasties,” which just cover their nipples, and g-strings, which just cover genitals. Really? At the point that all that is covering your skin is less than two postage stamps and a small napkin, aren’t you effectively naked, anyway? But I digress from the First Amendment discussion…)

The cases that McConnell is referring to are Barnes v. Glen Theatre, Inc., and City of Erie v. Pap’s A.M. In those cases, the court noted that, to summarize, nude dancing is expression covered under the First Amendment, “the outer perimeters,” and then “only marginally so.” (City of Erie noted that being in a “state of nudity” is not in itself expressive conduct, and so cannot merit First Amendment protections, but nude dancing is, and so falls under the “outer ambit” of the First Amendment.)

Because it is expressive behavior, then, however “marginally so[,]” the Supreme Court looks at the regulation of nude dancing under a standard that asks whether the regulation is related to suppression of speech, and if not, it receives a relatively low standard of scrutiny, and is more likely to be upheld.  If the regulation does suppress speech, a higher standard is used before the regulation can be upheld.  The Supreme Court is then likely to uphold a governmental regulation that is aimed at conduct, not speech, especially if the conduct has negative secondary effects. In City of Erie, the court notes that the Pennsylvania Supreme Court had upheld such ordinances that were explicitly targeted, in their language to nude dancing

which activity adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects. 553 Pa., at 359, 719 A. 2d, at 279 citing the Erie, Pennsylvania ordinance.

Without dipping too far into the minutia of the Supreme Court’s opinion then, it appears that the court looked at the ordinance, determined that the activity of nude dancing is protected under the First Amendment (if just barely), but that government regulators can limit it when they have a good public policy reason for doing so, as long as that purpose is not the suppression of speech.

Utah’s tax justified?

Back to Utah: the tax on the adult clubs–the “pole tax”–doesn’t even remotely regulate or limit speech of the dancers.  It makes purchasing anything in the club more expensive, but because, ostensibly, the purpose of the tax is to support treatment for sex offender treatment and a persecutor’s task force against internet predators, the Court, like the Utah Supreme Court, didn’t see any problem with it.

So what’s the other side of this? To quote, or summarize, Ronald Reagan, if you want something to stop moving, tax it.  By placing a tax on strip clubs, Utah legislators are are acting to slow, or stop, strip clubs.  Is it appropriate? Should government be in the line of choosing what businesses are moral and which are not? In this case, it’s probably appropriate.  State legislators are selected by their constituents to pass laws that represent them. Public policy is most appropriately determined by the elected legislators, and in this case, legislators acted to protect the interests of the state at large, and yet not infringe on First Amendment rights by prohibiting the dancing.  It’s a balancing act, and whether one agrees with such clubs’ existence in the first place, the process by which this tax came about is hard to find inappropriate.