Tag Archives: Judiciary

Law and Politics

#156: A New Slant on Offensive Trademarks

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This is mark Joseph “young” blog entry #156, on the subject of A New Slant on Offensive Trademarks.

Anyone following the Redskins trademark dispute will be interested to know that the United States Supreme Court has agreed to hear a case that is going to impact that–not the Redskins case itself, but a case close enough in its content that a Virginia federal appeals court has put the Redskins case on hold pending the outcome of the present case.

The case, Lee v. Tam, involves an American rock band whose members are all Asian, who want to trademark their band’s name, The Slants.  The U. S. Patent and Trademark Office refused to register the name on the grounds that it was disparaging of Asian Americans.  However, the Federal Appeals Court for the Federal Circuit overturned that decision, stating that it was an unconstitutional impingement on free speech, concluding that the provision under trademark law forbidding such protection of any trademark which “[c]onsists of…matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is unconstitutional on its face.

The Patent and Trademark Office has appealed, and the Obama Justice Department has supported that appeal.

The Slants performing at the 2016 Saboten Con at the Sheraton Grand Phoenix in Phoenix, Arizona, photo by Gage Skidmore.
The Slants performing at the 2016 Saboten Con at the Sheraton Grand Phoenix in Phoenix, Arizona, photo by Gage Skidmore.

Simon Shiao Tam, founder of the band, argues that they took the name as a way of embracing their Asian heritage, and that it neither offends those Asian Americans who are their fans nor is intended to do so.  He also points out that “slants”, while popularly used as a racial slur, has other non-racial meanings (unlike “Redskins”, “Nigger“, and similar epithets).  Still, the question isn’t whether the word can be used in an inoffensive manner, but whether the government can deny a trademark on the grounds that some might take it to be offensive.

One of the arguments raised by the government is that the State of Texas won a decision that they did not have to permit a personalized license plate design which included the Confederate Flag.  There, however, the argument was that since the plate is an official government document issuing such plates would be as if the government were endorsing the use of that flag.  It is, perhaps, a weak argument–the government cannot legally be endorsing all the organizations which apply for such plate designs, many of whom have political or religious connections–but it is weaker applied to trademarks, as the Office has repeatedly asserted that the issuance of a trademark does not indicate endorsement of what it represents.

Against the government, enforcement of the rule has been uneven.  Numerous trademarks have been issued that include racial epithets or other offensive language.  If the government wins, many of those might have to be rescinded, and might end up in litigation.

Against The Slants, there is at least some reason for enforcement of a rule against offensive trademarks.  A broad decision here could open the door to a wealth of product names far more offensive to far more groups.  A narrow decision would probably have to take the line that whether the trademark is offensive must be determined in the context of whether the audience would perceive it so.  The slogan “Bring your bitch here” is probably not offensive if it is used by a groomer or veterinary clinic, but would be so at the entrance to a bar.  However, the harder case would be whether accommodations near the Westminster Kennel Club dog show could use that slogan to let breeders and trainers know that their animals are welcome in the rooms or dining areas.  Yet the court might here find that context matters and still rule against The Slants, since the question would be whether “slants” is an offensive Asian epithet and they are an all-Asian band.

Ultimately, though, as Ray Bradbury reminded us half a century ago, everything worth writing is offensive to someone.  Any effort to censor free expression in trademarks is doomed to failure, because the issue of what is and is not offensive is too subjective to legislate.

I am inclined to think that people who register and use offensive trademarks in order to be offensive will alienate potential customers and pay an economic penalty for it.  That should be a sufficient disincentive to the practice.  Otherwise, our high courts will spend a tremendous amount of time reviewing lawsuits over whether individual trademark applications are or are not too offensive under whatever standard is adopted.

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Elections, Law and Politics

#96: Federal Non-enforcement

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This is mark Joseph “young” blog entry #96, on the subject of Federal Non-enforcement.

Someone mentioned recently that he and a mutual friend were planning to start a business.  The friend was going to liquidate his inheritance and together they were going to move to Colorado and become farmers.

If you’re planning to become a farmer and moving to Colorado to do it, your intended crop is pretty obviously marijuana; he did not have to say so.  I pointed out that there were some hazards with such a plan because although marijuana has been legalized in Colorado, it is still illegal at the federal level.  That has impact on a number of aspects of running a business, most notably the banking, since all banks are federally regulated and they are quite reasonably concerned about violating regulations intended to thwart drug trafficking.  It isn’t just that you can’t get loans; it is difficult to get business checking accounts.

His concern was what would happen if a Republican won in the fall, and that is certainly a concern; there is, however, another significant concern which might well matter regardless of who becomes the next President of the United States.

img0096Marijuana

The concern about the Presidential election is certainly obvious.  Federal drug laws related to marijuana production, sale, purchase, and use are not being enforced in Colorado because the Chief Executive has decided not to enforce them.  There is some merit to this decision, since we have a definite conflict of laws situation and part of the concept of the federal/state divide is that states become experimental petri dishes for solutions to problems.  In that sense, letting Colorado experiment with legalized marijuana as a solution to part of the drug trade and associated crime is a very American approach.  The next President might decide otherwise, though, and then enforcement will resume.  However, the question is raised as to whether the President can turn a blind eye to violations of federal law in any of the states.

That question has already been raised in a different context.  The same administration that has decided not to enforce federal drug law in Colorado has also decided not to enforce certain aspects of federal immigration law, and quite a few states particularly in the southwest have sued in federal court–and thus far, the states seem to be winning.  If the President can’t pick and choose what laws to enforce in relation to immigration, he probably can’t do so in relation to drug law.

Of course, the situation is not exactly the same here.  States like Arizona want the federal government to enforce immigration law, and to allow them to do so in the absence of federal enforcement, and the administration is fighting to prevent the enforcement of those laws.  Colorado, by contrast, wants the federal government to refrain from enforcing certain aspects of federal drug law within its own borders, and the federal government is cooperating with that.  Colorado certainly is not going to file suit to have the law enforced.

However, already several of the state’s neighbors have done so.  They claim that failure by federal agencies to enforce federal drug law in Colorado has resulted in illegal drugs crossing state lines more readily, and given them more trouble with their own drug enforcement efforts.  That has not progressed far, but the concept is the same:  can the President of the United States unilaterally decide not to enforce specific federal laws in specific ways or specific places?  Can the executive say no, we will not enforce federal drug policy in Colorado, and we will not enforce federal immigration policy in the southwest?  The courts are already saying no to the latter; the connection is obvious enough that they will probably say no to the former.

If they do, it won’t matter who becomes the next President of the United States:  the federal courts will decide that Colorado can’t prevent enforcement of federal drug law within its borders, and the federal executive cannot choose to ignore those violations.

It might turn around, but at this point the two policies are almost certainly going to be linked, and in a way that decides the degree to which the President of the United States can decide what laws actually get enforced and which ones can be ignored.  It is a dangerous policy to give the executive that much power, and the framers of the Constitution seem to have tried to avoid doing so, but you can never be certain which way the courts will go or on what basis they will make their decisions.

For myself, I would not bet on the Colorado experiment escaping federal intervention for more than a few years, unless Congress decides to change federal law.

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Law and Politics

#63: Equal Protection When Boy Meets Girl

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This is mark Joseph “young” blog entry #63, on the subject of Equal Protection When Boy Meets Girl.

United States Supreme Court Justice Ruth Bader Ginsburg does not like the Roe v. Wade decision.

To many, that will sound like nonsense.  Ginsburg is the anchor of abortion rights on the United States Supreme Court, and Roe the seminal case which recognized, some would say created, such a right.  Yet Ginsburg does not disagree that there is such a right; she disagrees regarding the basis of that right, and thus with the reasoning of Roe which is its foundation.

Roe v. Wade is in essence a Right to Privacy case.  Beginning with Griswold v. Connecticutt, in which the court found that the state could not criminalize the act of teaching couples how to use contraceptives in the privacy of their own bedroom, the court inferred that the First Amendment protections of freedom of expression, Fourth Amendment protections against unreasonable search and seizure, and Fifth Amendment protection against self-incrimination, implied a right to keep one’s personal matters private.  There were several intervening cases which extended that, and there have been others arising since Roe, but in Roe the argument was that the decision to have an abortion was a medical decision between a woman and her doctor, and as such was a private matter in which the government should not interfere without a very compelling interest.

Ginsburg disagrees.  That argument, she claims, makes a private and personal decision a matter to be discussed with a doctor–a paternalistic oversight that according to Ginsburg violates the fundamental right at stake.  She claims that a woman’s decision should be autonomous, something she decides without involving anyone she does not wish to involve.  She makes it an Equal Protection right, covered largely by the fifth through tenth amendments.  Her assertion is that a woman should have the autonomous right to decide whether to bear a child, unimpeded by any considerations including medical ones, because it is solely the woman’s problem.

Ginberg’s reasoning presents serious challenges for those who oppose abortion.  If her line were adopted, current efforts to regulate abortion providers and facilities would be unconstitutional.  As the decision stands, if abortion is a privacy right as a medical decision on the advice of a medical professional, it is completely reasonable for reasonable regulations of the medical profession to restrict access to abortions based on the government’s regulation of health care.  If it is an autonomous right under equal protection, then a woman in theory should be able to have a doctor or anyone she chooses perform one in the privacy of her own bedroom without any government involvement at all.  Yet Ginsburg’s position suffers from some other problems.  She believes she is defending the concept that a woman should be treated exactly as a man would be in the same circumstance, but (apart from the fact that men would not be in exactly the same circumstance) the treatment of men in this circumstance is already worse than the treatment of women, viewed from the perspective of individual autonomy and equal protection.

Ruth Bader Ginsburg official United States Supreme Court portrait.
Ruth Bader Ginsburg official United States Supreme Court portrait.

Let’s look at the situation:  boy meets girl.  We’ll call our girl Ruth, for Justice Ginsburg, and we’ll name the boy Tony, in memorium of the recent passing of her good friend, colleague, and adversary Justice Antonin Scalia.

Ruth and Tony meet, maybe at work, maybe at a party, maybe at school or in the neighborhood.  They like each other, and start seeing each other.  They find themselves attracted to each other.  Human physiology being designed to promote reproduction, at some point they have desires to have sex.  At this point they are just about equal, as far as reproductive rights are concerned.  Some argue that Tony is disadvantaged in that his drives are stronger than Ruth’s, but there aren’t many ways to test that.  Ruth might have more resistance to those drives because the consequences are more direct for her, but in essence it is within the power of each them them to choose, autonomously, not to engage in sex.  It is also within their power to choose, jointly, to risk a pregnancy.

Yes, Tony could rape Ruth; Tony could coerce Ruth by some other inducement.  Women are raped fairly often, usually by men, sometimes by women.  Men are also raped, by men and sometimes by women, but considerably less often–although more often than reported.  Men are more embarrassed about being raped than women are, and so less likely to report it; and they are taken less seriously when they do, partly because some people think a man can’t really be raped by a woman, and partly because men who have never been raped by a woman somehow think they would enjoy it.  Rape, though, is a separate issue:  anyone who has been raped has had rights fundamentally violated, quite apart from the problem of potential pregnancy.

If Ruth and Tony agree to engage in sex, suddenly the entire picture changes:  they no longer have equal reproductive rights.  A significant part of that is simply technological.  Either of them could have an operation rendering him or her permanently infertile, which is generally a drastic step few want to take and is a considerably more expensive and difficult (but ultimately more reliable) procedure for Ruth than for Tony.  Barring that, though, Tony is limited to the question of whether or not to use a condom–a prophylactic device with a rather high failure rate.  Ruth’s equivalent, a diaphram, is a bit more difficult to get (must be fitted by a gynecologist) but considerably more effective; she also has several other options.  Usually she would use spermicide (sometimes known as “foam”) with a diaphram, but she can also use hormone treatments, usually in pill form but sometimes as implants, that disrupt her ovulation cycle.  All of these options have varying probabilities of preventing conception; there are other options.  Intra-uterine devices (IUDs) usually reduce the chance of conception but also prevent or sometimes disrupt implantation, causing a spontaneous abortion–what in popular jargon is called a “miscarriage”, but at so early a stage that pregnancy was not suspected.  In all these ways, all the reproductive rights are on Ruth’s side:  if she chooses not to become pregnant, she has an arsenal of ways to prevent it.

However, young lovers are often careless.  Birth control is so unromantic, so non-spontaneous.  The young suffer from the illusion of invulnerability, that they are the heroes of their own stories and everything is going to work according to their expectations.  People have sex and don’t get pregnant; some couples try for unsuccessful years to have a baby.  A pregnancy is often a surprise, even for those who want it.  People take the risk, and Ruth and Tony might lose.  So now there is a baby on the way, as they say, and again Ruth’s reproductive rights are more than equal to Tony’s.  She can choose to carry the child to term, or to have an abortion.  He has no say in the matter, even if he is her husband.  She might include him in the decision, but it is her decision; she does not even need to inform him that there is a decision.  She can end the story right here.  He cannot.  He has no say about his own reproductive rights.  He cannot say, “I do not want to be the father of a child; terminate it.”  Nor can he say, “I want this baby, keep it.”  He does not, in that regard, have equal protection.

Maybe he does not care; maybe he figures it is her problem.  However, it is not just her problem–it is also his problem.  The inequities are not yet quite done.  If Ruth decides not to have an abortion–exercising her reproductive rights and overriding his–the child is born.  At that moment Ruth has yet another choice:  she can keep the child, committing herself to the difficulties and expenses of raising it, or she can absolve herself of all further responsibility, agreeing never to see the child again, by putting it up for adoption.  I do not want to minimize the agony of that choice, but it is her choice–it is not his choice, and he has no say in the matter.  His reproductive rights are not equally protected.

In most cases, if she chooses to surrender the child for adoption, he has no say in the matter; he cannot say it is his child and he wants to keep it.  That, though, is only half the problem.  If she decides that she wants to keep the child, she can sue him for child support–and indeed, if Ruth is poor enough that she files for public assistance from the state, most states will find Tony and force him to make child support payments, and jail him if he fails to do so.  It is his responsibility to support the child if she says it is.  He can claim that it is not his child–the tests can be expensive, but there is an avenue to avoid false claims–but we already agreed that it is his, so he is going to have to support it.  She had a choice; he has none.

So by all means, let’s think of abortion as an Equal Protection issue.  Men are not protected in this nearly as well as women.  A lot of things would have to change to get there.

In addition to web log posts with the Abortion, Discrimination, and Health Care tags, see also the articles Why Shouldn’t You Have Sex If You Aren’t Married?, and Was John Brown a Hero or a Villain?

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Bible and Theology, Law and Politics

#58: Acceptable Killing In Our Society

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This is mark Joseph “young” blog entry #58, on the subject of Acceptable Killing In Our Society.

This began because someone of my acquaintance posted a video supporting abortion.  The blurb under the video read, in part:

There are many reasons why a woman might decide to end a pregnancy—and many barriers to safe and legal abortion.

I did not want to start a fight, but I found that statement quite offensive–offensive enough that I felt it necessary to reply:

There are many reasons why a parent might want to kill his or her own child, but that does not mean we as a society have to approve that.

The question is whether an unborn child is still a child.  The answer cannot be so easily presumed.

I included a link to mark Joseph “young” web log post #7:  The Most Persecuted Minority.

She replied:

You are close in trying to identify the correct question in regards to this issue.  The real question though, remains when in the stages of pregnancy do you develop a child?  Only when than [sic] can be determined, should it be appropriate to address your question.  In our society, the answer is yes.  It is acceptable to kill.  We kill in war.  We kill on the streets.  We allow for capital punishment.  We allow for assisted suicide.  I am never going to argue if abortion is morally correct.  But what you attempted to address is the one question others throw out there with buzz words like “kill,” and “child.”  If the question was simply, should a pregnant female be given rights to determine to carry a child to whatever capacity she chooses, then hotheads would have little to rage over.  What America is trying to measure with your argument Mark, is can we limit human potential, and if so, to what extent?

I could see that pursuing this in that format was going to become unwieldy, so I pondered for a while and decided to respond here.

img0058Guns

I will confess that I am not entirely certain of everything she meant in that post, particularly at the end concerning the phrase “limit human potential”.  Is she talking about limiting the potential of mothers by requiring them to bear the children they have conceived, or of children by killing them before they breathe the air, or something else?  That, though, is not the bulk of her comment, and it is the other part that particularly disturbs me.  She raises the question of whether in our society killing is acceptable, and affirms that it is, following this by a list of “acceptable” situations for killing.  I am going to change the sequence some, but I argue that killing people is not acceptable behavior in our society, despite her examples to the contrary.

Let’s begin with

We kill on the streets.

I doubt she means in traffic accidents.  Vehicular homicide frequently results in at least an involuntary manslaughter charge.  Certainly there are accidents in which someone dies and it is ruled that no one is at fault, just as if a bit of space debris happens to crash into your house you can’t sue NASA.  That amounts to an admission that we accept that modern technological life is a bit dangerous and some people are going to die through no one’s fault.  Yet clearly, although there are vehicular murders (and they are so treated), this is hardly an example of society accepting that we are permitted to kill each other.

Killing on the streets seems rather to imply the intentional action of killing each other, and we have a fair amount of that in gang warfare and drive-by shootings.  That we have them, though, does not mean we accept them.  Every such incident is treated as a homicide investigation with the intention of bringing murder charges against the perpetrator.  They are not all solved, and not all the perpetrators are convicted, but we don’t really accept that these killings are blameless despite their frequency in our society.  Sometimes we call it “terrorism” and make a federal case of it.

On the other hand, it is sometimes the case that the police shoot people on the street and are exonerated.  The famous cases are of course when a white police officer shoots a black person, but black police officers shoot white people also.  In every case of an “officer-involved shooting” there is an investigation, the officer is usually suspended pending the outcome of the investigation, and in some cases charges ranging from disciplinary actions to murder convictions follow.  That in most cases our officers are cleared of guilt indicates bias only sometimes; it more often commends the training they have been given.  After all, there are situations in which we excuse and even justify killings–self-defense and defense of third persons the two that most commonly apply in these cases.  Yet when a claim is made of self-defense or defense of third persons, there is always an investigation to determine whether indeed those claims are justifiable.

Our justification for killing the unborn is that they pose a threat to the life or physical well-being of the mother, but no one investigates whether that claim is justifiable, and “the health of the mother” has become a phrase with little more meaning than her convenience.

So what of this:

We allow for assisted suicide.

Do we?

The most current information available to me says that four states–California, Oregon, Washington, and Vermont–have passed legislation permitting physician-assisted suicide, with very specific guidelines (patient must be a resident of the state, at least 18 years of age, have not more than six months of life expectancy remaining, and have requested help from the physician at least once in writing and twice orally not less than fifteen days apart).  One state, Montana, has a state supreme court ruling allowing physician-assisted suicide for state residents, without any clear parameters otherwise.  There are four other states in which the law is uncertain–Nevada, Utah, Wyoming, and North Carolina.  In the remaining forty-one states, if you assist someone in a suicide you may be charged with conspiracy to commit murder.  In no state is it lawful for someone who is not a physician to assist.  That hardly counts as “acceptable”.  It is also illegal in most countries around the world, although a few have permitted it under specified conditions.

Certainly there are a lot of people who think that we ought to permit suffering terminally ill persons to end their own lives, and allow medical professionals to help them.  There are also people who think we ought to do this for the severely handicapped, without their consent.  To this point, the bulk of public opinion is against the idea that people should be permitted to kill themselves, or to help others kill themselves, with impunity.

Our justification for assisted suicide, in those places where it is permitted, is that the patient wants to die, is suffering terribly, and will not live much longer anyway.  No one asks the unborn child if he would rather live or die.

The next might be more difficult:

We allow for capital punishment.

Yes, in many cases we do.  As of last year, thirty-one states had a legal death penalty; of those, four had such a law but with a moratorium declared by the governor so that there could be no executions until specific issues were resolved.  Nineteen states have made the death penalty illegal, and although they include populous states such as New York, New Jersey, and Illinois, they do not include the most populous California or the significant Ohio, Texas, and Florida.  Popular opinion seems to favor the death penalty.

However, death penalty cases involve what we call due process:  judges and juries must listen to the evidence and arguments presented by trained legal professionals, and reach the conclusion that this individual deserves to die.

One of the two objections to the death penalty, the one that is the more cogent in practice, is that given human fallibility it is entirely possible that we are killing the wrong person.  That criminals on death row are later released (not usually because they have been exonerated but because some flaw in the legal process leading to their conviction or sentencing has been identified) certainly demonstrates that fallibility.  That, though, only means that were we completely certain of the guilt and desert of the criminal the sentence would be accepted.  The more significant objection, in our present concern, is whether anyone ever deserves to be killed.  As Gandalf says to Frodo, many died fighting in the war who should have lived; if you are unable to restore them to life, do not be overly quick to take life from another, however guilty you might think him.  We might agree that someone ought to die, but object to the notion that any of us therefore ought to kill him.  So we have this argument, and gradually more and more of the country is rejecting capital punishment.

However, we are having this argument precisely because we have an agreed moral/ethical principle that it is wrong to kill another human being, and we disagree as to whether this is a viable exception to that rule.  Yet if it is, it is based on the conclusion that this person deserves to die.

No one has attempted to say that the aborted child deserved to die, or if they did it was by transference of hatred toward the parent to the child.

That leaves only the most difficult example:

We kill in war.

Yes, we do, and we consider such killing justified, at least when we do it.  Yet it is important to understand why.

There were quite a few wars in the twentieth century.  They occurred for one of two reasons:

  1. One group believed that their lives or freedoms were threatened or compromised by another group, and initiated a war to free themselves from this threat.
  2. One group desired to take possession of the territory, population, or resources of another group, usually based on some claim of right, and so initiated war to seize possession.

Throughout the twentieth century, the United States has always sided with groups we perceived as the oppressed or threatened and against the aggressors.  Our justification for being involved in the war was always the defense of third persons or, ultimately, defense of ourselves.  Our motives might be impugned in many instances–did we defend Kuwait for the sake of Kuwait or because of American oil interests?–but enough of us considered the defense of the people of one country from the aggressions of another a viable moral basis for becoming involved in a war that had already started that these fit the general pattern.  We do not approve war; we do not find it acceptable to wage war for any interests other than stopping someone else’s aggression or oppression.

The reasons for killing in war again do not apply to killing an unborn child.

There are ultimately only three questions concerning abortion:

  1. Is it wrong to kill a human being, absent some specific justification or excuse?  If you answer no to this question, you invalidate all laws against murder and manslaughter and all liability for accidental death.
  2. Is an unborn child a human being?  This is the usual point of the argument, to which I note first that in the absence of certainty we ought to err on the side of caution and defend the life of a “potential human being”, and second that most vegetarians who won’t eat chicken won’t eat eggs, either.
  3. Is the convenience of a parent a sufficient justification or excuse for killing a child?  If you answer yes to this, you justify infanticide, and must find a point at which that no longer applies.  People usually say “viability”, but on the one hand medical advances are pushing back the moment at which a child can survive outside the womb, and on the other hand if viability means the ability to survive completely unaided by anyone else, there are few adults in this country who could do so absent the infrastructural support of thousands of others who provide the necessities of life.  I’m not viable anymore; I could not survive a month in the wilderness unaided by supplies provided by others.

I thus disagree that our society has accepted killing, in the sense that it is acceptable to kill another human being.  If we had, the attacks on the World Trade Center and the Boston Marathon would not have been crimes.  We pretend that abortion is a justifiable killing because the victim is unable to speak for himself.  That applies, though, to thousands of infant, handicapped, and elderly persons, and society is not ready to justify the killings of those people, because we recognize them to be people and do not regard the killing of people as “acceptable”.

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Law and Politics

#54: Nudity as Free Speech

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This is mark Joseph “young” blog entry #54, on the subject of Nudity as Free Speech.

If the thirteenth century histories are to be believed, it is a practice that has roots back near a thousand years to Lady Godiva, who about two centuries prior purportedly rode her horse down the streets of Coventry clothed only in her long hair, to protest the heavy taxes assessed on the local population by the local Earl of Mercia, Leofric–who happens to have been her husband.  The technique has been used in variations since, and has more recently become a legal issue:  can public nudity be protected as a form of free speech?

Lady Godiva by John Collier, c. 1897, Herbert Art Gallery and Museum
Lady Godiva by John Collier, c. 1897, Herbert Art Gallery and Museum

On April 17th, 2012, a frequent air traveler named John Brennan (not to be confused with the Central Intelligence Agency director of the same name) was stopped at a Transportation Safety Administration (TSA) checkpoint in Portland, Oregon.  He had declined to pass through the scanners which would have produced an image of his naked body under his clothing in favor of a metal detector and pat-down.  However, the pat-down detected nitrates from his clothing–a substance found in some popular explosives, as well as in fertilizer, bacon, some hand lotions, and many other products.  This was certain to be a problem, so Brennan responded, in protest, by stripping naked at the checkpoint in full view of other passengers so that it could be plainly seen that he did not have a bomb.

He was arrested for indecent exposure.  It was a weak case–the applicable indecent exposure law in that part of Oregon, home of the “World Naked Bike Race”, only forbade having sexual contact in public and disrobing “with the intent of arousing sexual desire”, both conditions plainly absent here.  However, Brennan claimed that his act of disrobing was a form of protected free speech.  There is precedent for the notion that actions can be classed as speech or expression under the First Amendment, stemming from a 1971 case, Cohen v. California (403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971)), in which the defendant was convicted of “offensive conduct”, defined as including “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” for wearing a jacket bearing an obscene anti-war slogan to a protest outside a municipal courthouse.  The Supreme Court overturned the conviction, asserting that emotive speech intended to get attention is protected speech.  This subsequently gave rise to Holder v. Humanitarian Law Project (561 U.S. 1, 130 S.Ct. 2705 (2010)), in which actions which were aimed at providing humanitarian aid to terrorist groups were deemed reasonably forbidden in the name of national security, but which classed such actions as freedom of expression and declared that laws which are otherwise about conduct face “more rigorous scrutiny” (greater than the ordinary “intermediate scrutiny” but not as severe as the nearly always fatal “strict scrutiny”) under facts in which the conduct is part of political speech.  The judge in Brennan’s case agreed that his actions were protected political protest, and found him not guilty.

Not willing to let it rest there, the TSA fined Brennan one thousand dollars for “interfering with screening”.  The fine was upheld, although it was reduced by half, in an administrative hearing under the auspices of an “Administrative Law Judge” whose qualifications were that he was a United States Coast Guard officer working for the Department of Homeland Security (DHS).  The extended appeals process for such an “administrative” violation took over a year to reach the head of the department before it could be appealed to a “real” court, the 9th Circuit Federal Court of Appeals.  As of November 11, 2013, an appeal was filed with that court asking that the fine be voided due to several constitutional issues (including the vagueness of TSA regulations), and specifically that his action was constitutionally protected speech.  As recently as October that case was still pending, as the parties await the court’s decision on whether to hear oral arguments or base their decision on the filed papers.

Meanwhile, back in Oregon, Matthew T. Mglej is citing this case in a similar unrelated case.  On May 23rd, 2014, Mglej set up space in front of the federal court building in Portland, posting a few signs, then stripped naked and played the violin to call attention to his cause, a desire for greater transparency in government.  The police arrested him for public indecency (this law makes it “unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex”) but later released him.  On January 20th, 2015, he filed suit in federal court on a variety of claims including unlawful arrest and violation of his First Amendment right.  This past month U. S. District Judge Michael W. Mosman disagreed, dismissing the suit; Mglej’s nudity was not protected speech, he asserted.

However, as Harvard Constitutional Law Professor Noah Feldman observes (in print as The naked truth about the First Amendment, found online as Protesting Nude in Portland Should Be Protected), the basis for the dismissal is at best dubious.  Mosman asserted that the nudity did not advance the message, that an impartial observer would not have understood how the message and the nudity were connected.  This, as Feldman rightly observes, makes the judge the arbiter of style, as it were, assessing whether Mglej’s speech was effective in achieving its purpose.  The First Amendment does not require that the speaker be articulate, nor give anyone the right to judge whether the message could have been conveyed a different way.  Mglej was attempting to communicate something by his nakedness; does the fact that most people failed to understand what he was attempting to communicate negate his right to attempt to say it?

Besides, part of the message is the medium, and part of the medium is its function in drawing attention to itself and through itself to the message.  Large signs with hot pink lettering do not communicate the message more clearly, they only are more eye-catching; rock bands playing at evangelistic rallies might or might not convey the message as well as the speakers who follow them, but they do draw a crowd–a fact that was not lost on Salvation Army founders William and Catherine Booth, who took brass bands into the streets to draw crowds to hear the message.  Whether or not Mglej’s nakedness clearly conveyed the message of the need for transparency in government, it certainly got the attention of the crowd to hear it.  Absent that detail, it is doubtful that you would be reading about him here, now.  The nudity was as much a part of the message as the violin:  it was the neon sign that caught the attention of passersby to hear the message.

On the other hand, as one city attorney observed, anyone arrested for public nudity could claim that his state of undress was a political protest.  It is easy to imagine that people who subscribe to “nudism” might make it a practice to go about their daily chores completely naked, and assert that they are doing so in protest of the very laws they are violating.  How is that to be resolved?  Can one protest such laws by being naked?

This argument could be pushed to the absurd.  Someone robbing a bank could claim that they are doing so in protest of the laws protecting personal property, or of the unfair advantages accorded to those who own the banks.  Many bombers are already acting in protest, at least as far back as the Viet Nam War protesters, and many rioters become swept up into violent protests that were fundamentally about a reaction against the system.  If breaking one law can be protected speech, can the same be true of all these other laws?

It will be answered that these other crimes are dangerous; people get hurt.  The injury might be physical; it might be economic.  It is clear that we need to protect ourselves from such actions, lest we become their victims, and indeed we need to prevent these actions as much as possible for the sake of others who might be injured by them.  Inherent in that response, though, is the presumption that no one is “really” harmed by public displays of nudity, that those who object are simply being prudish, Victorian, censorial, trying to run the lives of others by requiring them to wear clothing and conform to public decency standards.  The point can be argued.  Those who oppose public nudity believe that there is harm, that for example children should be shielded from seeing naked adults, women should not be forced to look at naked men, and that people exposed to such sights may genuinely be harmed, suffering psychological injury of some type.  It is not a harmless nor a victimless crime.  If it were, it would never have been illegal in the first place–someone thought it was injurious to someone, so laws were passed to prevent it.

You might object that our prudish ancestors had a lot of misguided notions about right and wrong and about conduct that was deemed harmful to others, and that in our enlightened age we can dispense with such nonsense.  It is a point that can be debated–but the fact that it can be debated means that there is at least some merit to the claim that there is real harm; and if there is a basis for a claim of real harm, there is at least potentially reason to make such conduct unlawful.  That in turn pushes us into the quandary:  at what point does harmful conduct become protected self-expression?  If such nudity is in fact harmful to at least some ordinary people, then it ought to be as illegal as robbing banks and bombing buildings, and breaking the law should not be legal merely because it is self-expression.  If it is not harmful to anyone but perhaps a few overly sensitive individuals, then it ought not be illegal and we should find less intrusive means of protecting those weaker citizens who might be impacted by it.

Certainly there is a place for civil disobedience in self-expression, for violating laws in order to make a point.  As we previously noted, the Supreme Court has ruled that burning a cross in the yard of a black family is indeed protected speech, but the perpetrators might still be convicted of arson, trespass, and disorderly conduct.  The individual who chooses civil disobedience as a mode of protest is inherently agreeing to accept the lawful penalty for breaking the law, as part of his choice.  Henry David Thoreau spent a night in jail for refusing to pay a tax that supported the continuation of slavery; he understood that his disobedience to the law meant that he would be imprisoned, and took that as part of his protest.  It is not unreasonable to conclude that Mglej is permitted to make his statement, but that he still must stand trial for violating the law in doing so, just as any protesting bomber would.  That, though, does not seem to be what the courts are saying, and what they are saying seems to be that this particular law does not matter because violating it does not hurt anyone.  We are going to have to settle that issue, one way or the other, and decide whether public nudity should be forbidden or permitted.

Zymurgy’s Law of Evolving Dynamic Systems states, “If you open a can of worms, the only way to re-can them is to use a bigger can.”  We’ve got one of those here, for certain.

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Law and Politics

#48: Inequities in the Justice System

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This is mark Joseph “young” blog entry #48, on the subject of Inequities in the Justice System.

I have a story that intrigues me on so many levels I have to tell it.  It is, as they say, a true story–that is, I have my information largely from the first-hand account of one of the key persons involved, but for parts of it that I on the one hand witnessed myself or on the other hand deduced.  I shall attempt to keep them clear.  It is a case of an injustice that was, in large part, remedied, but the sense of injustice looms over it nonetheless.

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The story begins with a young man in his early twenties out for a walk on a late summer afternoon.  He happened to pass what must be the main intersection in the sprawling sparsely populated town, as it is the only traffic signal, and there are two gas stations on the corner, owned by the same near-eastern immigrant family, the only gas stations within the town.

He was at least three blocks from there, around a corner out of sight, when two police cruisers arrived behind him.  The young man has been detained by police before, largely because he has friends who have been in trouble with the law on several occasions, although he himself has never been charged with anything.  They asked him to identify himself, and he gave his name but was reluctant to tell more.  After some discussion he gave his address, and was told he was not permitted to leave until they had identified him.  They then insisted on patting him down, then handcuffed him and informed him that he was under arrest.

I have to interject here.  The police are indeed permitted to stop a person if they have a reasonable suspicion of possible involvement in a crime, and if we stretch that–as you will see–they might arguably have had that here.  The purpose of such a check is to ensure that the person with whom they are speaking is not able abruptly to produce a weapon; the rule exists to protect the police.  It’s called a “Terry Stop” after the case which confirmed that it was legitimate.

On the other hand, an arrest requires “probable cause”.  At this point all the police have–well, we’re getting ahead of the story.

They emptied his pockets into a plastic bag, and put him in the back of one of the patrol cars.  The officer in that car then produced a bag of marijuana from another satchel and placed it in the bag with his possessions.  The young man objected, loudly, that he had never seen that bag in his life, but the police officer claimed that an attendant at the gas station had seen him stop and hide the bag at the control box at the traffic light on that corner.  He was told he was under arrest for possession of marijuana.  The officer then drove to that gas station, and once in the parking lot read the young man his Miranda rights while this witness, a near eastern immigrant, observed.

Maybe you have noticed the three problems with the “identification” here.  I did immediately, but then, I hit these problems in law school.  Still, I cannot believe that the police procedure here was so incredibly bad.  One of these problems might have been excusable, even unavoidable, but there was no reason for this kind of work unless they expected to strongarm the suspect into a confession.

The first problem can be called the problem of cross-cultural identification.  You’ve probably heard the rubric that all Blacks look alike, and while that’s not at all true it is true that Whites and Asians have trouble recognizing the distinguishing features of Blacks, and that the same is true for most cross-racial or cross-cultural observers.  If you did not grow up among people of a particular racial/ethnic group, the specific features that distinguish one from another are often difficult to spot.

I often recall the story of The Five Chinese Brothers.  In brief, one of five brothers was condemned to death, but he and each of his brothers had a particular invulnerability.  Each time the emperor declared how the boy was to be executed, he would ask to say goodbye to his parents, and be replaced by the brother who was invulnerable to that form of execution.  The conceit is that no one can tell the difference between one Chinaman and another, so if they were also brothers not even the Emperor could tell them apart–which tells me that it is not a Chinese story at all, but a European story about European perceptions of the Chinese.  Had it been a Chinese story, it would have been The Five Swedish Brothers–all tall, light hair, light skin, light eyes, they look exactly alike, because the characteristics by which Chinese distinguish each other are not those by which Europeans distinguish each other.  That’s the problem of cross-cultural identification:  our near-eastern immigrant gas station attendant would have trouble distinguishing one tall white American boy from another.  The identification is already suspect.

However, even if that were not so, there is a much more significant problem.  You’ve probably noticed that on television shows when the police want a witness to identify a suspect they have a lineup, or if not a lineup a photospread.  They don’t usually present the suspect to the witness and say, “Is this the guy?”  That’s because those kinds of identifications are inherently prejudicial–and this one is extremely so.  We have a suspect who fits the description “young white male” in a town where that describes a significant portion of the adult population.  Our young white male has been brought to the witness handcuffed in the back of a police car, and in the presence of the witness the arresting officer makes a point of Mirandizing the suspect, clearly placing him under arrest and signalling, “This guy is a criminal.”  The witness then has in essence been told, “Identify this guy,” and even if we assume that the witness wants to be honest and has been honest to this point, we just played a game with his memory.  The police told the witness who to remember; human memory is a fluid and flexible thing in most people, and by this act the police helped the witness solidify an image that matched the guy they caught.

It should also be noted that if the story the officers told is true, the witness must have called to report having seen someone hiding something at the traffic light control box perhaps fifty feet away, the police must have arrived and searched the area and found the bag, then the witness must have told them in which direction the person left who had placed it there.  By that time, anyone who might have been in the area would have walked out of sight, and indeed the suspect was not in sight–which means that the witness could not point to him, and the police could not see him when they arrived at the scene.  They have no idea who they are seeking.  Anyone they find who roughly fits the description is likely to be identified by the witness as the person he saw.  He made no claim of having seen him up close, or having recognized him from previous acquaintance.  He had not kept his eye on the suspect, and could not be certain the person he saw didn’t enter one of the houses along the street.  About the only information the witness gave the police was young white male, went that direction.  They should have known their identification was going to be problematic.

For a legitimate witness identification, they needed to take the suspect to the station and take the witness there separately, keeping them from seeing each other until the suspect was mixed with several other persons who also roughly fit the description, and then determining whether the witness could choose the suspect from among the group without any assistance or prompting.  That would not solve all the problems here, but it would be a much better case for the police than what they did.

They also should have known that they had insufficient basis for probable cause.  A young man walking quiet sub-suburban streets in a rural town on a late August afternoon is not suspicious.  Being a young white male is not suspicious.  Nothing was found on the suspect to connect him to this or any other crime.  The police don’t like it when you avoid answering their questions, but even if it could be argued that the refusal to answer questions implies guilt, it is illegal to draw that conclusion:  the exercise of the Constitutional right to remain silent cannot be taken as evidence of guilt of any crime, and therefore cannot support probable cause of such guilt.  The police had sufficient cause for the Terry Stop–it requires an articulable suspicion, and it is reasonable to argue that a young white male walking somewhere within several blocks of the site of an alleged crime allegedly committed by a young white male afoot is at least vaguely suspect.  Having questioned him and learning nothing that connected him more closely to the crime, they did not have probable cause for an arrest.

The police took him to the station and held him for a while, and then began questioning him.  They intimated that they had surveillance video of him planting something there, and he responded that he knew they did not because he never did so–he was not even really cognizant of the fact that there was an electrical control box there.  They attempted to get him to explain how he thought the marijuana got there, as if it were his problem and they hoped in solving it he would confess something they could use against him.  They then gave him a summons to appear in court to answer charges, and released him.

He went to court and applied for a public defender.  His parents had prepared him well–within twenty-four hours of the events he wrote down everything that happened, so there would be a clear written statement, and he gave a copy of this to his attorney.  He also had been made aware of the problems already mentioned regarding witness identifications, and also that in New Jersey the governor had recently required that all police cars be equipped with dash cameras, and a Superior Court Judge had ruled that all those recordings were public records, so his attorney subpoenaed these.  It took six months for the State of New Jersey to realize that on those facts they had no case, and dismiss the charges.  The public defender application fee is not refundable.

No one apologized for the wrongful arrest.  In fact, in an odd turn, as the judge dismissed the case he told the defendant to be sure not to be arrested on that charge again.  It was an entirely inappropriate thing to say under the circumstances, although the judge probably was not fully aware of the circumstances.  After all, the young man had been charged simply because he was the nearest person out walking somewhere near the scene of the crime, and he could not have anticipated that there might have been such a crime.  If we assume the integrity of everyone involved, and that these were the honest mistakes of a couple of police officers who found the contraband and believed they had the right person who would probably confess and plead guilty (and not that they were trying to create a case from nothing), there was no way he–or indeed anyone–could have avoided being so charged under these circumstances, except perhaps by staying at home at all times, or at least never taking a walk in public.

In all of this I want to mention one point that you probably did not notice, although it was mentioned.  The defendant was not a young black male; he was a young white male.  It may or may not be true that young black males are unfairly singled out by police, but it might not be because they are black so much as that they are young and male.  It is difficult to know how to react to that; young males disproportionately commit crimes, and so it becomes proportionate to suspect them disproportionately.  Yet if one is more likely to be arrested and charged because one is a young man, the claims that the disproportionate arrests of young black men demonstrate systemic racism are seriously weakened.  Such racism may still exist in some places, but racial oversensitivity also plays a role in causing us to perceive racism where the real problems are agism, sexism, and classism.  If there is a real disproportionate correlation between criminal activities and factors such as age, gender, race, and social class, it can hardly be said to be discriminatory to make disproportionate arrests.  If such correlations cause police to be careless in their procedures, that needs to be corrected–but it does not make it a matter of racism.

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