LITTLE V. LLANO COUNTY: THE FIFTH CIRCUIT ALLOWS LIBRARIES TO REMOVE BOOKS BASED ON VIEWPOINT OR CONTENT

May 27, 2025

LITTLE V. LLANO COUNTY: THE FIFTH CIRCUIT ALLOWS LIBRARIES TO REMOVE BOOKS BASED ON VIEWPOINT OR CONTENT

A poster that says books cause dangerous thoughts

"A book is a loaded gun in the house next door. Burn it. Take the shot from the weapon... Who knows who might be the target of the well-read man?" Ray Bradbury, Fahrenheit 451 p. 58 in 50th ed., p. 56 in 60th ed.

This quote from Fahrenheit 451 about reading books is powerful. Literature is the record of human experience and people's connection to the ideas and emotions of the past, experiences to which others can relate as well as learn. Without books, there is no past, no history. People are isolated in their thoughts in the society of Fahrenheit 451 with nothing by which to measure life.

When an expression is disgusting and goes against a majority viewpoint is when First Amendment protections are most needed. We do not need the First Amendment to protect popular or majority viewpoints, we need First Amendment protections to protect the disgusting or even offensive speech. In 2013, Secretary of State John Kerry offered a defense of freedom of speech and thought in the United States by stating to German students that in America "you have a right to be stupid if you want to be." He continued, "And we tolerate it. We somehow make it through that. Now, I think that's a virtue. I think that's something worth fighting for," he added. "The important thing is to have the tolerance to say, you know, you can have a different point of view." John Kerry To German Students: Americans Have 'Right To Be Stupid' (NPR 2013) https://www.npr.org/sections/thetwo-way/2013/02/26/172980860/john-kerry-to-german-students-americans-have-right-to-be-stupid Justice Frankfurter has said, "[o]ne of the prerogatives of American citizenship is the … freedom to speak foolishly and without moderation." Baumgartner v. United States, 322 U.S. 665, 673-674 (1944); Cohen v. California 403 U.S. 15 (1971) (fuck as constitutionally protected speech)

This is because an important function of speech is to invite dispute. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). The Supreme Court has asserted that, "we may and do assume that freedom of speech . . . which [is] protected by the First Amendment from abridgment by Congress . . . [is] among the fundamental personal rights and 'liberties.'" Gitlow v. New York, 268 U.S. 652, 666 (1925).

In Little v. Llano County, library patrons in 2022 sued Llano County, Texas, alleging that the removal of 17 books due to their "content on race, gender and sexuality as well as some children's books that contained nudity" from the public library's shelves violated their First Amendment right to receive information. The Fifth Circuit, in a 10-7 decision, found the federal district court and appellate court rulings erred. The Little v. Llano County held first, plaintiffs cannot invoke a right to receive information to challenge a library's removal of books. Second, a library's collection decisions are government speech and therefore not subject to Free Speech challenge. Little v. Llano County, No. 23-50224 (5TH Cir. May 23, 2025) (en banc), chrome extension://efaidnbmnnnibpcajpcglclefindmkaj/https://reason.com/wp-content/uploads/2025/05/LittlevLLanoCountyEnBancOpinion.pdf Contra, Pratt v. Indep. Sch. Dist. No. 831, 670 F.2d 771 (8th Cir. 1982) (government speech doctrine inapplicable to book removal; government’s discretion to “determine the curriculum that is most suitable for students” did not provide the state with “an absolute right to remove materials.” Id. at 775–76)

This means, according to the Fifth Circuit, a Texas public library did not violate patrons' right to free speech by removing books due to their content. This holding is miraculous given the abundance of these authorities given the authorities against such a position.

Here are some particularly disgusting or offensive speech that is nevertheless protected speech. In Snyder v. Phelps 562 U.S. 443, 131 S. Ct. 1207 (2011). The Westboro Baptist Church believe that God punishes the United States for its tolerance of homosexuality, particularly within the military. Mr. Phelps therefore picketed at military funerals of veterans like Lance Corporal Matthew Snyder, who was killed in the line of duty in Iraq in 2006. Westboro picketed Matthew Snyder's funeral and displayed signs on public land about 1,000 feet from where the funeral was being held that stated, for instance, "God Hates the USA/Thank God for 9/11," "Thank God for Dead Soldiers," and "Don't Pray for the USA." "God Hates Fags", and "You're Going to Hell", among others. Phelps was arrested and argued that his speech (the picketing and the signs) was protected under the Free Speech Clause of the First Amendment to the Constitution. In an 8–1 decision delivered by Chief Justice John Roberts, the Supreme Court held that Phelps and his followers were "speaking" on matters of public concern on public property and thus, were entitled to protection under the First Amendment. Likewise, with Rapkin she was clearly responding to an issue of public concern on public property so that her action to communicate her disagreement with the protestors entitled to protection under the First Amendment. The Court held that speech made in a public place on a matter of public concern is protected speech, even if the speech is viewed as offensive or disgusting. The First Amendment provides special protection to public issues because it serves "the principle that debate on public issues should be uninhibited, robust, and wide-open.” Id. at 1215, quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). “That is because "speech concerning public affairs is more than self-expression; it is the essence of self-government." Id., quoting Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).

But what about racist expressions? Racist speech, like hate speech, can be protected speech. In Matal v. Tam, 582 U.S. 218, 137 S. Ct. 1744 (2017) (viewpoint-based discriminatory because the government chooses to deny trademark protection to a mark always because of the message that the mark conveys), Justice Samuel Alito (for four justices) explained

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

That is why even racists, like the Nazis, must be allowed free speech. National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977). is a United States Supreme Court case dealing with freedom of speech and freedom of assembly of the Nazi Party parading through predominantly Jewish Skoie. Ill. Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). and Smith v. Collin. 439 U.S. 916 (1978) (denying certiorari). These cases clearly demonstrate the answer to racist speech is not censorship but voices of reason raised against racism.

Likewise, public libraries exist to provide the public with free access to books, information, and ideas and are anchors against censorship. It has been already “well established that the Constitution protects the right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969). In Board of Education Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982), the Supreme Court explicitly recognized that public school students’ First Amendment “right to receive ideas is a necessary predicate to the recipient's”—that is, the student’s—“meaningful exercise of his own rights of speech, press, and political freedom.” Id. at 867. The Court held that it had “long recognized certain constitutional limits upon the power of the State to control even the curriculum and classroom.” Id. at 861. Pratt vindicated students’ First Amendment right to receive information after a film and its commentary were removed from the curriculum to protect “religious and family values.” 670 F.2d at 773. Pratt held that 1) students have “a right to be free from official conduct that was intended to suppress the ideas expressed in these films,” id. at 776, and 2) to pass constitutional muster, “the board must establish that a substantial and reasonable governmental interest exists for interfering with the students’ right to receive information.” Id. at 777.

John Milton penned Areopagitica (1644) where he used what we now call "the slippery slope" argument that, once one censors some books, one should logically do the same with all books. But why stop there, since one could go on to all of the other kinds of expression, including pamphlets, songs and the like? That would require a large army of censors engaged in very tedious tasks, which would likely mean that only mediocre people would be drawn to the jobs. These would be especially fallible and corruptible, or "ignorant, imperious, and remiss, or basely pecuniary." Fools would be thus set up to judge the books of those often far wiser than themselves. The real danger is that censorship may leave alone the bad books and suppress the good books: "As good almost kill a man as kill a good book...he who destroys a good book, kills reason itself, kills the image of God."

Instead, libraries offer people a universe of materials to explore, and enable patrons to make up their own minds about which are worthwhile. In many ways, they are the physical embodiment of the First Amendment principle that, “[f]rom the multitude of competing offerings the public,” not the government, “will pick and choose.” Hannegan v. Esquire, Inc., 327 U.S. 146, 158 (1946). Cases that establish and apply First Amendment limitations on (1) the removal of books from school libraries, (2) government programs that necessarily pick and choose among private speech, and (3) nonpublic forums all hold that government officials cannot engage in “invidious viewpoint discrimination” that seeks to “drive certain ideas or viewpoints from the marketplace.” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998) (marks and citation omitted). Government actors may not “discriminate invidiously . . . in such a way as to aim at the suppression of dangerous ideas.” Regan v. Tax’n With Representation of Wash., 461 U.S. 540, 548 (1983) (tax exemptions) (marks and citation omitted).

Nor can a library silence ideas in an effort to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 872 (1982) (plurality op.) (quoting West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)). Justice Blackmun agreed that the Supreme Court’s cases “command” a First Amendment limitation on why government officials may remove a library book. Id. at 878–79 (Blackmun, J., concurring). Justice White agreed that the case should be remanded for further fact-finding about the school board’s specific reasons in the case—an exercise that would have been pointless if no facts could have established a violation of the First Amendment. Id. at 883–84. And Justice Rehnquist, joined by Chief Justice Burger and Justice Powell in dissent, “cheerfully concede[d]” that “[o]ur Constitution does not permit the official suppression of ideas,” including in libraries. Id. at 907 (Rehnquist, J., dissenting (quoting plurality op.)) (emphasis in original). Thus, eight of the justices in Pico agreed that library book removals can violate the First Amendment.

Thus, officials cannot remove a “novel depicting a fictional romantic relationship between two teenage girls,” Case v. Unified Sch. Dist. No. 233, 908 F. Supp. 864, 867 (D. Kan. 1995), because they believed the book “promoted or glorified” a “lifestyle” they viewed as sinful and abnormal. Id. at 871. See also, Sund v. City of Wichita Falls, Tex., 121 F. Supp. 2d 530, 548 (N.D. Tex. 2000) (holding that book removals from public library shelves must undergo First Amendment scrutiny, which applies with “even greater force” than in the school library context). That is why when considering restrictions on access to the ideas contained in public libraries courts have held the restriction must withstand First Amendment scrutiny. See Bd. of Education v. Barnette, 319 U.S. 624,633 (1943).(“[i]t is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish.”); Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1251 (3d Cir. 1992); Neinast v. Bd. of Trs. of the Columbus Metro. Libr., 346 F.3d 585, 591 (6th Cir.2003); Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir. 2012).

Finally, it is sometimes argued by certain groups that parental rights allow for certain books to be banned or removed despite the First Amendment. Shifting the purportedly parental rights issue of book-banning to a free speech issue can draw an imperfect parallel from the Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011). There, California passed a statute attempting to restrict children’s access to violent video games. Id. at 789. Justice Scalia’s majority opinion noted that “(1) addressing a serious social problem and (2) helping concerned parents control their children . . . are [both] legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously under-inclusive nor seriously overinclusive.” Id. at 805. Ultimately, in Brown, free speech issues guided the majority rather than parental rights. In book banning cases, First Amendment concerns should ultimately outweigh any parental rights issues that get raised.

In a forceful dissent in Little v. Llano County,, Judge Stephen Higginson wrote:

The free exchange of ideas "lies at the foundation of free government by free men." As Thomas Jefferson observed, "wherever the people are well informed they can be trusted with their own government." {George Washington made the same point more starkly: "[T]he freedom of Speech may be taken away, and, dumb & silent we may be led, like sheep, to the Slaughter."} Public libraries have long kept the people well informed by giving them access to works expressing a broad range of information and ideas. But this case concerns the politically motivated removal of books from the Llano County public library system by government officials in order to deny public access to disfavored ideas. In an effort to ratify this official abridgment of free speech, the majority overturns decades of settled First Amendment law, disparaging its free speech protections as a "nightmare" to apply.

Because the majority forsakes core First Amendment principles and controlling Supreme Court law, I dissent….

In sum, I would continue to respect the Supreme Court's judgment in Pico, as we have for thirty years since Campbell (Campbell v. St. Tammany Par. Sch. Bd., 64 F.3d 184 (5th Cir. 1995)), and would hold that the district court here did not clearly err in finding that Defendants' substantial purpose likely was to suppress information and ideas deemed inappropriate or offensive. Thus far, the pre-trial evidence in the record overwhelmingly supports the district court's preliminary conclusion that Director Milum, Judge Cunningham, and Commissioner Moss adopted the motivation of Wallace, Wells, Schneider, and Baskin (who thereafter joined the reconstituted and exclusionary Library Advisory Board), and therefore, that all Defendants were likely motivated by

a desire to suppress fellow citizens' access to the ideas contained in the seventeen books at issue. Consequently, applying the Pico–Campbell standard, we should neither confirm nor nullify a First Amendment violation, but rather entrust our district judge colleague to resolve facts at trial, informing us all, and especially the citizens and officials of Llano County.

More broadly, the logic of the Supreme Court's school library decision in Pico—that the government may not remove library books with the purpose of denying access to disfavored ideas—applies with even greater force to public libraries, where the government has no inculcating role over its sovereign, the people. The First Amendment, with the high Court as its sentinel, protects the right of the people to be informed because, as the Framers knew, only an informed and engaged people can sustain self-governance. Public libraries represent the best of that simple but lofty goal. As spaces "designed for freewheeling inquiry," they democratize access to a broad range of often-contradictory ideas and provide fertile ground for our minds to grow. More than anything, public libraries offer every one of us the tools to educate and entertain ourselves, to embrace or reject new ideas, and, above all, to engage and challenge our minds.

As I began this opinion with the words of one President, I will close with the words of another. In 1953, when our country was in the throes of McCarthyism, President Eisenhower addressed Dartmouth College's graduating class:

Look at your country. Here is a country of which we are proud … But this country is a long way from perfection—a long way. We have the disgrace of racial discrimination, or we have prejudice against people because of their religion. We have crime on the docks. We have not had the courage to uproot these things, although we know they are wrong…

Don't join the book burners. Don't think you are going to conceal faults by concealing evidence that they ever existed. Don't be afraid to go in your library and read every book, as long as that document does not offend our own ideas of decency…

How will we defeat communism unless we know what it is, and what it teaches, and why does it have such an appeal for men, why are so many people swearing allegiance to it? …

[W]e have got to fight it with something better, not try to conceal the thinking of our own people. They are part of America. And even if they think ideas that are contrary to ours, their right to say them, their right to record them, and their right to have them at places where they are accessible to others is unquestioned, or it isn't America.

Because I would not have our court "join the book burners," I dissent.

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A picture of a man next to a picture of a sandy beach with the number 647 written in the sand

86 the Prosecution of Comey by the Federal Government

May 19, 2025

Former FBI chief James Comey is facing an investigation after he shared an image on social media, of seashells on a beach arranged to resemble the numbers 8647. Comey, who was fired by Trump in 2017, is facing backlash from MAGA over the post with key figures in Trump’s team making serious allegations against him. Homeland Security Secretary Kristi Noem, whose agency oversees the Secret Service, said on X that DHS and the Secret Service were "investigating this threat and will respond appropriately." Would the prosecution of Comey pass constitutional review? No. Indeed, as Mr. Justice Frankfurter has said, "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures — and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation." Baumgartner v. United States, 322 U.S. 665, 673-674 (1944). The “constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio , 395 U.S. 444, 447-48 (1969). See Seth D. Berlin, Planned Parenthood v. ACLA, Are The Nuremberg Files and “Wanted” Posters Protected Advocacy or Unprotected Threat? 20-Sum Comm. Law. 1, 28 (2002) (“In Brandenburg v. Ohio , the U.S. Supreme Court held that speech advocating violence—there, a Ku Klux Klan member's statement ‘there might have to be some revengence taken’—was constitutionally protected unless it was directed to and likely to incite imminent lawless action.”) In Brandenburg v. Ohio , 395 U.S. 444(1969), the Court solidified what had been developing in a line of cases throughout much of the century, and concluded that the government cannot forbid a threat "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to in cite or produce such action." at 447. The holding in Brandenburg was not limited to political speech or political speech of marginalized speakers as indicated by lower court decisions. 1 According to the dictionary site Merriam-Webster, https://www.the-independent.com/news/james-comey-donald-trump-republicans-new-york-instagram-b2752909.html , “86” means to "to throw out,” or “get rid of,” and derives from a 1930s slang restaurant worker term for “sold out.” The number 47 is believed to refer to President Trump, as the 47th president. 2 see Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919); Dennis v. United States, 341 U.S. 494 (1951); Yates v. United States, 354 U.S. 298 (1957); Scales v. United States, 367 U.S. 203 (1961); and Noto v. United States, 367 U.S. 290 (1961) not limited to political speech or political speech of marginalized speakers as indicated by lower court decisions. See e.g. Sanders v. Acclaim Entm’t, Inc. , 188 F. Supp. 2d 1264, 1280 (D. Colo. 2002); Herceg v. Hustler Magazine, Inc. , 814 F.2d 1017, 1024(5th Cir. 1987), cert. denied, 485 U.S. 959(1988). Courts applying the Brandenburg test have referred to it as an “exacting” test that even applies to threats that could be construed to advocate criminal activity. Sanders , id. As the US Supreme Court has said it is "often true that one man's vulgarity is another's lyric." and that free speech involves not only responsible criticism of public officials but the right to speak foolishly and without moderation. Cohen v. California , 403 US 15, 25-26(1971) (the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us); Baumgartner v. United States , 322 US 665, 673-74(1944). Thus foolish, vulgar threats, even threats to kill, are not true threats while serious detailed statements are true threats. See, Watts v. US , 394 US 705 (1969) (speech was constitutionally protected where, during a public rally on the Washington Monument grounds, the defendant said, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.") Watts stands for the principle that expressly threatening speech must be taken in context, and the context must include the speaker's ability to immediately harm the intended target. Watts , 394 U.S. at 705. The standard articulated in Brandenburg , that speech remains protected even if it advocates the use of violence, so long as such advocacy will not result in "imminent lawless action" is consistent with Watts . Further, a threat must be taken in context, and the context must include the speaker's desire and ability to immediately harm the intended target. Id.; Brandenburg , 395 U.S. 446-448. Finally, speech that expressly or impliedly advocates the use of violence remains protected by the First Amendment, unless that speech, taken in context, is likely to incite immediate lawless action. Watts , 394 U.S. at 705. See also, Planned Parenthood v. American Coalition of Life Activists, 244 F.3d 1007, 1015(9th Cir. 2001), affirmed by, in part, vacated by, in part, remanded by, Planned Parenthood of the Colombia/Willamette, Inc. v. Am. Coalition of Life Activists , 290 F.3d 1058(9th Cir. 2002) Watts holds that threats that imply an action at an uncertain and future remote time are not true threats and thus protected by the first amendment. Watts , at 707-08. Thus, punishment for a threat itself is constitutionally permissible only if "the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution." United States v. Baker , 890 F. Supp. 1375, 1382 (E.D. Mich. 1995), quoting United States v. Kelner , 534 F.2d 1020, 1027 (2d Cir. 1976), aff'd sub nom. United States v. Alkhabaz , 104 F.3d 1492 (6th Cir. 1997). The statement in the sand on its face and in the circumstances in which it is made was not so unequivocal, unconditional, immediate as to convey a gravity of purpose and imminent prospect of execution. Cf. Kelner , 534 F.2d 1028(defendant’s threat had to harm by use of a weapon credible since at the time of speech he was armed with a .38-caliber pistol.) Therefore prosecution for such a statement is constitutionally prohibited.

Would Shakespeare and Trump agree to kill all the lawyers?

April 14, 2025

There are news articles all over about how Trump is attacking law firms and even the American Bar Association. ‘A capitalistic cowardice’: big law firms being threatened by Trump face pressure to speak out, https://www.theguardian.com/us-news/2025/mar/26/trump-executive-orders-law-firms ; Justice Department expands its retribution to American Bar Association, https://www.cbsnews.com/news/justice-department-expands-retribution-to-american-bar-association/ Typically the law firms attacked are those who have investigated Trump or represented those who oppose him. Some have dismissed the importance of these attacks, saying they are like attacks against the legal profession in the past. After all, Shakespeare used the line ''The first thing we do, let's kill all the lawyers,'' was stated by Dick the Butcher in ''Henry VI,'' Part II, act IV, Scene II, Line 73. But in actuality the Shakespeare line is more a tribute to lawyers than the attack by Trump. Dick the Butcher ( a killer as evil as his name implies) was a follower of the rebel Jack Cade, who thought that if he disturbed law and order, he could become king. The setup for the "kill the lawyers" statement is the ending portion of a comedic relief part of a scene in Henry VI, part 2. Dick and another henchman, Smith are members of the gang of Jack Cade, a pretender to the throne. The built-up is long portion where Cade makes vain boasts, which are cut down by sarcastic replies from the others. Cade proceeds to go more and more over the top, and begins to describe his absurd ideal world: JACK CADE. Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven half-penny loaves sold for a penny: the three-hoop'd pot shall have ten hoops; and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king,- as king I will be,- ALL. God save your majesty! Appreciated and encouraged, he continues on in this vein: JACK CADE. I thank you, good people:- there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord. And here is where Dick speaks the famous line. DICK. The first thing we do, let's kill all the lawyers. It is the paragraph that follows that is most interesting. Cade replies: CADE: Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o’er, should undo a man. Some say the bee stings; but I say, ’tis the bee’s wax; for I did but seal once to a thing, and I was never mine own man since . . . . Emphasis added. In plainer words, it is Cade’s view that the language of lawyers (words written on parchment) enslaves; it is not his view that it liberates. It is lawyers’ language that takes away liberty; it does not protect liberty. It is the lawyers themselves who are instruments of the oppressors, not the defenders of liberty. Dick’s statement comes from a murderer, not a friend of liberty. Shakespeare knew that such anarchy could only succeed if lawyers were eliminated. The interpretation was initially advanced in 1985 by Justice John Paul Stevens in his dissenting opinion in Walters v. National Ass’n of Radiation Survivors , 473 U.S. 305, 105 S.Ct. 3180 (1985) which denied the right to counsel to veteran’s in administrative hearings. In Walters , Justice Rehnquist, writing for a six-justice majority, articulated remarkably negative (how much of this attitude is shared by the rest of the judiciary is a question for another day) view about the legal profession and the adversary system-so negative, in fact, that Justice Stevens both began and ended his dissent with the extraordinary charge that the Court, "does not appreciate the value of individual liberty." Id. at 358, 372 (Stevens, J., dissenting). Simply stated, the argument that the line is meant to praise lawyers is that the sentence was uttered by a thoroughgoing blackguard, a “riotous anarchist whose intent was to overthrow the lawful government of England.” Shakespeare knew that such anarchy could only succeed if lawyers were eliminated. A very rough and simplistic modern translation of Cade’s words would be "When I'm the King, there'll be two cars in every garage, and a chicken in every pot" "AND NO LAWYERS". It's a clearly) lawyer-bashing joke. The "kill the lawyers" joke is expressed by villains, who later commit murderous deeds. This is their rough solution to a social problem. As stated by the web page Lawyers are Our Friends !: Cade's friend Dick the Butcher, being only barely smarter than Cade, knew Cade's scheme could not succeed if the learned advisors to the real King actually investigated Cade's lineage. So, Dick the Butcher advised Cade that "The first thing we do, let's kill all the lawyers," hoping that this tactic would prevent Cade from being discovered as an imposter. At least in Shakespeare's time, lawyers were regarded as the protectors of truth. Perhaps the line ‘kill all the lawyers” is a warning to all us lawyers to engage in self examination of ourselves and our profession to do what we can to protect liberty and so law is not an instrument of oppression by the powerful against the powerless. What lawyer’s do on an everyday basis was explained by Justice Stevens: “There is no reason to assume that lawyers would add confusion rather than clarity to [ ] proceedings. As a profession lawyers are skilled communicators dedicated to the service of their clients. Only if it is assumed that the average lawyer is incompetent or unscrupulous can one rationally conclude that the efficiency of the agency's work would be undermined.” Walter at 363 (Stevens, J., dissenting). A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama : "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law."' Gideon v. Wainwright , 372 U.S.335, 344-45 (1963).

About Dirty Works: Obscenity

April 2, 2025

This is a complex topic and this article only supplies generalized information on obscenity. There are many nuances to this topic so that the question can be asked is obscenity constitutionally protected? Short answer is no. But this is a very narrow category of sexually explicit expression that the U.S. Supreme Court has ruled is not protected by the First Amendment. Generally, prurient material having a tendency to excite lustful thoughts is not constitutionally protected. Roth v. United States , 354 U.S. 476, 486 (1957) The material must exhibit a ''shameful or morbid interest in nudity, sex or excretion.'' Ginzburg v. United States , 383 U.S. 463, 486 (1966). Materials which appeal only to ''normal, healthy, sexual desires'' are not considered obscene. Brockett v. Spokane Arcades, Inc. , 472 U.S. 491, 498 (1985) There is a regular flow of news articles about whether particular material should be suppressed as obscene. Rightwing groups across US push new bans to limit ‘obscene’ books in libraries, https://www.theguardian.com/us-news/2025/apr/01/new-book-bans-library-schools ; Iowa law banning books including 1984 and Ulysses blocked by US federal judge, https://www.theguardian.com/books/2025/mar/26/iowa-law-banning-books-including-1984-and-ulysses-blocked-by-us-federal-judge#:~:text=Iowa%20law%20banning%20books%20including%201984%20and%20Ulysses% . The Supreme Court has rejected the idea that the First Amendment applies only to statements which inform rather than statements which entertain. The line between the informing and the entertaining is too elusive for the protection of that basic right. It is not the role of the government to make value judgements about oral or written statements. “What is one man's amusement teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.” Winters v. New York , 333 U.S. 507, 510 (1948). Illustrative of the general observation is the fact that [m]usic, as a form of expression and communication, is protected under the First Amendment. Ward v. Rock Against Racism , 491 U.S. 781, 790 (1989). Nude dancing is also. Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 564 (1991). This is because “[t]he right to impart and to receive information and ideas, regardless of their social worth . . . is fundamental to our free society.” Stanley v. Georgia , 394 U.S. 557, 564 (1969). This is especially true if the material is possessed in the privacy of one’s home. Id. In a free society, it is fundamental that citizens have a right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy. Id. "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized man." Olmstead v. United States , 277 U. S. 438, 277 U. S. 478 (1928) (Brandeis, J., dissenting). See Griswold v. Connecticut , 381 U. S. 479, 381 U. S. 482 (1965); cf. NAACP v. Alabama , 357 U. S. 449, 357 U. S. 462 (1958). Despite this conservative notion of individual liberty, many assert the right to protect the individual's mind from the effects of obscenity. In reality, this assertion amounts to the belief that the State has the right to control the moral content of a person's thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. As the Court said in Kingsley International Pictures Corp. v. Regents , 360 U. S. 684, 360 U. S. 688-689 (1959): "[t]his argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. . . . And, in the realm of ideas, it protects expression which is eloquent no less than that which is unconvincing." Stanley v. Georgia , at 565-66. Accordingly, obscene material, referring to certain sexually explicit material, see Mahanoy Area School District v. B.L. , 594 U.S. 180 (2021) (holding school's interests in preventing disruption not sufficient where student posted profane message off campus about school activity); Cohen v. California , 403 U.S. 15, 20 (1971) (noting that obscene expression must be erotic, not just crude), may be protected even if it is arguably devoid of any ideological content. Stanley v. Georgia , at 566. But what if the material advocates some immoral position? As explained in Stanley v. Georgia , the advocacy of an unpopular social opinion may sometimes be proper no less than advocacy of some political opinion. Kingsley International Pictures Corp. v. Regents , at 688-89.

The Return Of Dred Scott: Opposition To The Well Settled Principle Of Birthright Citizenship Enacted By Virtue Of The Civil War

January 27, 2025

What does it mean when President Trump states that he wants to do away with birthright citizenship? To answer that, one must understand some legal history. Dred Scott v. Sandford , 60 U.S. (19 How.) 393 (1857), was a horrible decision of the United States Supreme Court which found that the U.S. Constitution did not extend American citizenship to people of black African descent, and therefore they could not enjoy the rights and privileges the Constitution conferred upon American citizens. In essence, Black people could never be citizens of the United States, even if they were free. Dred Scott , 60 U.S. at 406–27. Dred Scott thus endorsed racialized citizenship in America. Chief Justice Roger B. Taney read the 7-2 opinion which also stated that Congress had no authority to ban slavery from a federal territory. In this ruling, the U.S. Supreme Court stated that enslaved people were not citizens of the United States and, therefore, could not expect any protection from the federal go vernment or the courts. The opinion also stated that Congress had no authority to ban slavery from a Federal territory. In essence – and contrary to tradition – the Supreme Court imposed a test of inherited citizenship in America. Due to the existence of chattel slavery, the Court reasoned, all Black people in the United States of America failed this test since all of them (according to Chief Justice Roger B. Taney) were either enslaved or descended from enslaved people. Dred Scott also moved us a step closer to our Civil War. Justice Taney wrote that “[t]his opinion [as to Black inferiority] . . . was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.” Dred Scott , 60 U.S. at 407. Because members of the “negro African race” were considered “beings of an inferior order, and altogether unfit to associate with the white race” when the Constitution was drafted, neither slaves nor their descendants, regardless of whether they were free, were “intended to be included in the general words used in that memorable instrument.” Id. at 406, 407; see also id. at 404–05. Thus, our Supreme Court’s decision in Dred Scott v. Sandford set forth a racialized definition of American citizenship that excluded Black people, free or enslaved, just four years before the start of the Civil War. In 1865, after the Union's victory in the Civil War, the Court's ruling in Dred Scott was rejected by the passage of the Thirteenth Amendment to the U.S. Constitution, which abolished slavery, and the Fourteenth Amendment, whose first section guaranteed citizenship for "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof." The Supreme Court unequivocally found that “[t]he main object of the opening sentence of the fourteenth amendment was to settle the question. . . as to the citizenship of free [Black people]. . . and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they re- side.” Elk v. Wilkins , 112 U.S. 94, 101 (1884) (citations omitted and emphasis added); United States v. Wong Kim Ark , 169 U.S. 649, 675 (1898) (noting that the “fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms” in the Fourteenth Amendment and the Civil Rights Act of 1866). The Civil Rights Act of 1866, enacted over President Johnson’s (a racist former slaveowner) veto, set forth that “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Wong Kim Ark , 169 U.S. at 675 (discussing the Act). See, GARRETT EPPS, DEMOCRACY REBORN: THE FOURTEENTH AMENDMENT AND THE FIGHT FOR EQUAL RIGHTS IN POST-CIVIL WAR AMERICA (2006) (discussing Johnson’s veto and noting that “no Congress had ever before overridden a presidential veto on an important measure”), https://www.amazon.com/Democracy-Reborn-Fourteenth-Amendment-Post-Civil/dp/0805086633 The whites only citizenry principle set forth in Dred Scott was rejected for the inclusive Fourteenth Amendment principle of citizenship at birth for all persons, regardless of race in America. It is important to understand that the Fourteenth Amendment principle of citizenship at birth was not a new idea but one based on three hundred years of British common law. Wong Kim Ark , 169 U.S. at 655–58; Id. at 660 (“Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”) (citations omitted). This rule was articulated by Sir Edward Coke in Calvin v. Smith , 77 Eng. Rep. 377 (KB) (Calvin’s Case) (1608). Heather Horn, Birthright Citizenship Wasn’t Born in America, THE ATLANTIC (Sept. 1, 2015), https://www.theatlantic.com/international/archive/2015/09/birthright-citizenship-donald-trump-england/403159/ Therefore, President Trump’s desire to reject birthright citizenship is contrary to constitutional law enacted by virtue of the American Civil War.

Trump Has No Right To Trifle With Birthright Citizenship

December 16, 2024

Let’s try a little thought experiment. A husband and pregnant TIwife from the Taiwan are flying to the United States. As the jet enters American air space, the mother gives birth to her baby. Does the baby have a right to American citizenship? This is not just a thought experiment. It really did happen. Plane birth sparks controversy in Taiwan, https://www.bbc.com/news/world-asia-34568772 . However, the actual event did not happen in American airspace but over international waters. But assume the facts of our thought experiment. The answer to the question does the baby have a right to American citizenship was answered by the Supreme Court over a 100 years ago in U.S. v. Wong Kim Ark , 169 U.S. 649 (1898). This judicial decision has been affirmed by the US Department of State. The U.S. Dept. of State Foreign Affairs Manual, 8 FAM 301.1-5 (“The rules applicable to vessels obviously apply equally to airplanes. Thus a child born on a plane in the United States or flying over its territory would acquire United States citizenship at birth.”), https://fam.state.gov/fam/08fam/08fam030101.html In Wong Kim Ark , the U.S. Supreme Court examined at length the theories and legal precedents on which the U.S. citizenship laws are based. In particular, the Court discussed the types of persons who are subject to U.S. jurisdiction. The Court affirmed that a child born in the United States to Chinese parents acquired U.S. citizenship even though the parents were, at the time, racially ineligible for naturalization. The Court also concluded that: “The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.” Id. at 693. Pursuant to this ruling: (a) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally; and that; and (b) A child born in an immigration detention center physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction. This is so even if the child’s parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States. Wong Kim Ark, found that while the 14th amendment clearly declares birthright citizenship, the idea comes from an idea that existed in colonial times, that prevailed at the time it was adopted and ratified. As the Court said at 169 U.S. at 676: As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any person from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v Sandford (1857) 19 How 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States. Citations omitted. Thus, the Court established that Dred Scott was wrongly decided. Moreover, the common rule of birthright citizenship was found to be a constitutional right that could not be changed by statute. Donald Trump, however, suggested that unnamed legal scholars believe that birthright citizenship may not apply to the children of aliens residing in the United States without proper documentation. This argument apparently hinges upon an interpretation of the phrase “subject to the jurisdiction thereof” in the 14th Amendment. The unnamed legal scholars mentioned by Trump clearly have not read Wong Kim Ark. The Court determined that persons born in an area under the control of the monarch owed their allegiance to the monarch and were also deemed protected by the monarch; that is the essence of citizenship: The fundamental principle of the common law with regard to English nationality was the allegiance ….or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual … [and] were predictable of aliens in amity, so long as they were within the kingdom. Children born in England, of such aliens, were therefore natural born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born and during within their hostile occupation of parts of the King’s dominions, were not natural born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said this day, within the jurisdiction of the King. Wong Kim Ark at 655. Emphasis added. This clearly sets forth that when the 14th Amendment was adopted, the framers of the amendment meant the term ”subject to the jurisdiction” of the United States to have the same meaning as in common law; that is, people within the geographic power of the king and who therefore owed allegiance to the king. Trump and his followers should recall Afroyim v. Rusk , 387 U.S. 253 (1967) which analyzed a different area of citizenship but made the point that: Citizenship is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its implied grants of power. … The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.. Id at 268 In other words, Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment. Id at 256-57. “The Constitution, of course, grants Congress no express power to strip people of their citizenship, whether in the exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power.” Id. The Supreme Court applied the equal protection clause of the 14th Amendment to undocumented school-age children who had been denied a free public education by the State of Texas. In doing so the Court directly addressed the phrase “subject to the jurisdiction thereof” in the 14th Amendment: In appellants’ view person who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within the State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that construction…. Plyler v. Doe , 457 U.S. 202, 211 (1982)

LOST LIVES: WRONGFUL CONVICTIONS DESTROY LIVES

November 22, 2024

It is now clear the criminal system all too frequently makes mistakes. By mistake I am referring to a conviction which has been shown to be wrong by exoneration. exoneration occurs when a person who has been convicted of a crime is officially cleared after new evidence of innocence becomes available. As of February 25, 2024, the National Registry of Exonerations has recorded 3,478 exonerations in the United States from 1989 through the end of 2023. THE NATIONAL REGISTRY OF EXONERATIONS REPORT (MARCH 18, 2024), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.law.umich.edu/special/exoneration/Documents/2023%20Annual%20Report.pdf Even one exoneration casts a reasonable doubt on the integrity of the criminal system. This situation has become such a concern that October 2 has been designated as International Wrongful Conviction Day. A terrible cost of wrongful convictions is the loss of irreplaceable years behind bars. Persons exonerated in 2023 lost an average of 14.6 years to wrongful imprisonment for crimes they did not commit—2,230 years in total. Importantly, official misconduct occurred in at least 118 exonerations in 2023. Official misconduct means police, prosecutors, or other government officials significantly abused their authority or the judicial process in a manner that contributed to the exoneree's conviction. 75 homicide cases—85% of homicide exonerations in 2023—were marred by official misconduct. Nearly 84 percent of exonerations last year (127/153) were persons of color. Nearly 61 percent of the exonerees (93/153) were Black. 50 exonerations in 2023 were for convictions based at least in part on mistaken witness identifications. 43 cases involved forensic evidence that was false or misleading. 32 exonerations involved false confessions (YES PEOPLE CONFESS TO CRIMES THEY DO NOT COMMIT). A confession is false when a statement is made to law enforcement at any point during the proceedings which was interpreted or presented by law enforcement as an admission of participation in or presence at the crime, even if the statement was not presented at trial. A statement is not a confession if it was made to someone other than law enforcement. A statement that is not at odds with the defense is not a confession. A guilty plea is not a confession.

ARRESTING SOMEONE FOR DRESSING THE WRONG WAY

November 19, 2024

Can the government make wearing a hat the wrong way a criminal offense? I have a case where a kid wore his baseball hat to the right in a park. The police arrested him for disorderly conduct. Is such an arrest valid? In Wisconsin, the power to arrest must be authorized by statute. City of Madison v. Two Crow , 88 Wis. 2d 156, 159, 276 N.W. 2d 359 (Ct. App. 1979). Under Wisconsin Statutes, a police officer may arrest a person without a warrant when the officer has reasonable grounds to believe the person is committing or has committed a crime. § 968.07 (1)(d), Wis. Stats. Case law has interpreted the phrase “ reasonable grounds” to be the equivalent of probable cause. Ball v. State , 57 Wis. 2d 653,659, 205 N.W.2d 353 (1973); State v. Paszek , 50 Wis. 2d 619, 624, 184 N.W. 2d 836 (1971). Probable cause to arrest is “... that quantum of evidence which would lead a reasonable police officer to believe the defendant probably committed a crime.” Ball , 57 Wis. 2d at 659, quoting, State v. Doyle , 40 Wis. 2d 461,466,162 N.W. 2d 60 (1968); Molina v. State , 53 Wis. 2d 662,671,193 N.W. 2d 874 (1972). Probable cause is, therefore, the sine qua non of a reasonable or lawful arrest. Dunaway v. New York , 442 U.S. 200, 208 (1979). This quantum of evidence must be more than an officer’s subjective good faith belief or suspicion. Leroux v. State, 58 Wis. 2d 671, 682-83, 207 N.W. 2d 589 (1973). While the evidence need not be the same quantum to justify a conviction, the evidence of guilt must amount to more than a mere possibility of guilt. State v. DiMaggio, 49 Wis. 2d 565,572-73, 182 N.W. 2d 466 (1971). Without probable cause, therefore, an arrest is arbitrary and contrary to the “paramount purpose” of the Fourth Amendment. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 417 (1974). The test of whether there is a sufficient quantum of evidence is whether the arresting officer could have obtained an arrest warrant on the basis of the information known prior to the arrest. Loveday v. State, 74 Wis. 2d 503, 247 N.W. 2d 116 (1976). In this case the police officer may have a subjective good faith belief or suspicion of criminal activity, but that is not probable cause to make an arrest. The criminality of a defendant cannot be made to turn upon a policemen’s suspicion or his satisfaction with the citizen’s account of himself (note that the burden is put on the citizen to explain his presence or his actions) or his view of what is orderly or disorderly, the statutes or ordinances in question delegate to the policemen too much power over the citizen’s liberty-the citizen is subjected to the discretion, be it arbitrarily exercised or not, of the policemen as to whether his actions are to be, in the given case, classified as criminal. City of Dayton v. Allen , 28 Ohio Misc. 181, 271 N.E. 2d 574, 577 (Ohio 1971). Emphasis added Wearing a hat sideways is simply not criminal. Nor could such conduct ever be criminal in a democratic America. What we wear is a part of who we are: The body is the innermost part of the material Self in each of us; and certain parts of the body seem more intimately ours than the rest. The clothes come next. The old saying that the human person is composed of three parts—soul, body and clothes—is more than a joke. We so appropriate our clothes and identify ourselves with them that there are few of us who, if asked to choose between having a beautiful body clad in raiment perpetually shabby and unclean, and having an ugly and blemished form always spotlessly attired, would not hesitate a moment before making a decisive reply.1 WILLIAM JAMES, THE PRINCIPLES OF PSYCHOLOGY 292 (1890). Wearing a baseball cap is the type of conduct is constitutionally protected. Cf. Tinker v. Des Moines Independent Community School District , 393 U.S. 503 (1969) (student wearing black arm band on sleeve in school is constitutionally protected speech). There was considerable debate in colonial America about what rights should be specifically enumerated in the Bill of Rights. See, Hamilton, Madison, Jay, The Federalist Papers, (1961) Chap. 38, 84; Jefferson, T., On Democracy (Saul K. Padover e.d. 1939) p.47. During the 1789 Congressional debates, there was much discussion about whether the right of assembly should be mentioned in the Bill of Rights. Brant, I., The Bill of Rights (1965) p.53-67. It was in the midst of this discussion that Congressman Benson of New York stated this right should be included so that it could not be infringed upon by the government. Congressman Sedgwick of Massachusetts responded by stating: If the committee were governed by that general principle... they might have declared that a man should have a right to wear his hat if he pleased... but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed.” Id., at 54- 55. Emphasis added. Therefore, court’s have found that one’s personal appearance is deserving of constitutional protection. Peppies-Courtesy Cab Co. v. City of Kenosha , 165 Wis. 2d 397; 475 N.W.2d 156 (1991) (ordinance requiring cab drivers to cut hair unconstitutional); Breen v. Kahl , 419 F.2d 1034, 1036 (7th Cir. 1969) (personal hair length is personal freedom protected by the United States Constitution). This conduct is like members of the National Socialist Party who wish to parade through a predominately Jewish community in uniforms reminiscent of those worn by members of the German Nazi Party while saluting the swastika. While distasteful, such conduct is, and must always be, constitutionally protected. Collin v. Smith , 447 F.Supp. 676 (N.D.Ill.1978), aff’d, 578 F. 2d 1197 (7th Cir. 1978). As in the case of the uniformed Nazis saluting and marching through Skokie, the presumed conduct of my client is constitutionally protected. My client’s conduct does not therefore allow a police officer to reasonably suspect my client of a crime based upon that conduct. Because a police officer cannot reasonably suspect my client of a crime based upon such conduct, an officer cannot make a valid stop based upon this conduct. See, §968.24; Wisconsin Law Enforcement Officers Criminal Law Handbook, at 43, 44.

Do Prosecutors Who De-Emphasize Long Incarceration and Emphasize Diversion and Attacking Wrongful Convictions Increase Crime?

October 31, 2024

Prosecutors are powerful actors in the criminal system. They select what charges and when such charges will be filed against someone. Judges have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial. In 1997, Congress passed the Hyde Amendment, which was designed to discourage misconduct by allowing the reimbursement of legal fees to defendants who are the victims of wrongful Federal prosecution. In a landmark series, USA Today documented 201 cases in which judges determined that Justice Department prosecutors–-the nation’s most elite and powerful law enforcement officials—violated laws or legal ethics. For example, in Arizona, a woman spent eight years in prison for her conviction in a 2000 bank robbery because the prosecution never told her that another woman —who matched her description almost exactly — had been charged with robbing banks in the area. In Washington, D.C., a court in 2005 threw out murder charges against two men who had spent two decades in prison for a murder they didn't commit, in part because prosecutors hid evidence that two others could have committed the crime. However, some prosecutors value justice over conviction. As pointed out by the Brennan Center, over the past decade, some prosecutors have developed approaches that aim to reduce racial and economic disparities and unjust outcomes in the legal system — such as excessive sentences or the criminalization of poverty through cash bail — while preserving public safety. Myths and Realities: Prosecutors and Criminal Justice Reform, https://www.brennancenter.org/our-work/research-reports/myths-and-realities-prosecutors-and-criminal-justice-reform In response to this emphasis on justice rather than conviction, some people believe these prosecutors are increasing crime. But is such a belief supported by the facts? Simply put, “NO.” In fact, sometimes the reforming prosecutors have caused crime rates to go down. Between Violent Crime and Progressive Prosecution in the United States (2024 Report), https://munkschool.utoronto.ca/research/between-violent-crime-and-progressive-prosecution-united-states-2024-report. For instance, Baltimore State’s Attorney Marilyn Mosby adopted a policy of declining prostitution and lower-level drug offenses during the Covid-19 pandemic. Subsequent research showed very low recidivism among those who had their cases declined, and no increase in these offenses citywide. In 2019, Cook County State Attorney Kim Foxx instructed attorneys in her office not to prosecute people accused of driving with licenses that were suspended or revoked for financial reasons, like failure to pay child support, tolls, or parking tickets. This allowed prosecutors in her office to spend more of their time prosecuting serious and violent crimes. Evaluation of Prosecutorial Policy Reforms Eliminating Criminal Penalties for Drug Possession and Sex Work in Baltimore, Maryland, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://publichealth.jhu.edu/sites/default/files/2021-10/prosecutorial-policy-evaluation-report-20211019.pdf In the words of the Brennan Center, “Before criticizing pro-reform prosecutors who are attempting to create a more equitable justice system that also protects public safety, critics should familiarize themselves with the data to better understand that crime trends in prosecutors’ jurisdictions across the political spectrum tend to be about the same. Prosecutors have limited effect on crime rates, but their policies can mitigate or increase some of the harms caused by decades of over-prosecution.”

Your right to inquire: you can ask police questions during a traffic stop

October 22, 2024

James Madison, the architect of the Constitution, believed that “a people who mean to be their own Governours, must arm themselves with the power which knowledge gives.” Letter from James Madison to W.T. Barry (Aug. 4, 1822), https://founders.archives.gov/documents/Madison/04-02-02-0480#:~:text=A%20popular%20Government%2C%20without%20popular,the%20power%20which%20knowledge%20gives . For “A popular Government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy; or perhaps both.” Id. The United States Supreme Court found the Constitution protects “the right of citizens to inquire,” as “a precondition to enlightened self-government and a necessary means to protect it.” Citizens United v. FEC , 558 U.S. 310, 339 (2010). A citizen’s right to inquire holds true in a variety of contexts. Perhaps the most common situation for a citizen is when a police officer pulls them over for a traffic stop. During a traffic stop, do not lie or give false documents to the police. Keep your hands where the police can see them. Because “one of the principal characteristics by which we distinguish a free nation from a police state,” a person has a constitutional right to peaceably ask an officer questions to gain information when stopped without risking arrest. City of Houston v. Hill , 482 U.S. 451, 462-63 (1987). However, when the police officer asks you questions like “where were you born?” “do you know why I pulled you over?”, “where are you coming from?” or “have you had any drinks tonight?” you should respectfully decline to answer the officer. It is important to note that Miranda rights do not go into effect until after you are in custody. The answers you give to these questions are admissible in court. If an officer is asking you questions like this, you may want to ask the officer if you are free to leave. If the officer says no you are not free to leave, you are likely in police custody. Say you wish to remain silent and ask for a lawyer immediately. Don't give any explanations or excuses. Don't say anything, sign anything, or make any decisions without a lawyer. Remember: the officer is not your friend asking you about how your evening is going. The officer is doing her job to try and gather evidence by asking you questions which will be used against you. For instance, the police may be asking you these questions to determine if they smell alcohol on your breath. Nor can your refusal to answer those questions by the officer be used as a basis to arrest someone for resisting or obstructing the officer. The Supreme Court has made it clear that “[h]istorically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power.” Marcus v. Search Warrants of Prop. , 367 U.S. 717, 724 (1961) (citing Fred. S. Siebert, Freedom of the Press in England, 1476–1776 (1952); Laurence Hanson, Government and the Press, 1695–1763 (1936)); see also Boyd v. United States , 116 U.S. 616, 625–27 (1886). The First and Fourth Amendments were written “against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Marcus , 367 U.S. at 729. This means law enforcement must apply the Fourth Amendment with “scrupulous exactitude” when speech is involved. Stanford v. Texas , 379 U.S. 476, 485 (1965). You do not have to consent to a search of yourself or your belongings, but police may order you out of your vehicle and pat down your clothing if they suspect a weapon. Note that refusing consent may not stop the officer from carrying out the search against your will, but making a timely objection before or during the search can help preserve your rights in any later legal proceeding. When the First and Fourth Amendments meet, police and courts cannot mechanically squeeze speech into a penal statute. Instead, they must “examine what is ‘unreasonable’ in the light of the values of freedom of expression.” Roaden v. Kentucky , 413 U.S. 496, 501, 504 (1973) (“The Fourth Amendment . . . must not be read in a vacuum.”). This principle applies regardless of whether the police are seizing papers belonging to a person or seizing a person because they exercised their right to free expression. See Stanford , 379 U.S. at 485. The "scrupulous exactitude" required by the Fourth Amendment for police to seize "things" like papers applies with equal force to First Amendment right to gain knowledge by asking questions of an arresting officer. Id.

ELECTION OBSERVERS

October 22, 2024

Certain political parties in Wisconsin have indicated they would have people at the polling places for the coming November election. Some election observers cause problems at the polling place. Conservative election observers tied to an ongoing lawsuit challenging Wisconsin’s absentee ballot laws, as well as past efforts to overturn the 2020 election, caused disruptions at multiple polling places and ballot processing sites in Glendale and Milwaukee, according to officials in those cities. Right-wing election observers cause disruptions in Milwaukee, Glendale polling places, https://www.cbs58.com/news/election-observers-removed-from-glendale-polling-places-after-disruptions So the question becomes who can observe elections in Wisconsin? And what can they do as observers? Anyone, other than a candidate on the ballot for the election, has the right to be present to observe the conduct of the election. Wis. Stat. § 7.41(1). They must check in with the chief election inspector and be issued an Election Observer tag or badge. However, observers may not conduct any of the following disorderly activities while monitoring the conduct of the election and/or election administration event. 1. Wear clothing or buttons related to candidates, parties, or referenda that are intended to influence voting at the election. 2. Interact with voters, except when asked by an elector to provide assistance in marking their ballot. 3. Watch voters mark their ballots. 4. Have conversations about candidates, parties or ballot questions. The Wisconsin Elections Commission has established Administrative Rule EL Chapter 4, outlining a set of rules for observers at the polling place or other location where votes are being cast, counted, canvassed or recounted. See, chrome extension://efaidnbmnnnibpcajpcglclefindmkaj/https://docs.legis.wisconsin.gov/code/register/2022/803a3/register/ss/ss_089_22/ss_089_22.pdf A summary of the observer rules must be provided to each observer. The Wisconsin Election Observers Rules-at-a-Glance brochure may be used to meet this requirement and is available on the agency website. There is no requirement for observers to obtain a permit. All observers will be accorded the same respect regardless of their party affiliation or non-affiliation. A designated observation area at the polling place or other location where votes are being cast, counted, canvassed or recounted should permit observers to hear instructions and to readily observe all public aspects of the process without disrupting the activities. If observers are unable to hear the election inspectors and voters, they may ask for the instructions or information to be repeated. However, there is no requirement that the instructions or information be broadcast at a specific volume. If space permits, observers may move within the designated observer area to better view and/or hear the interactions. To ensure the orderly conduct of the election and/or election administration event, and if necessary due to physical limitations of the host location, an election official may reasonably limit the number of observers representing the same organization or candidate. Observers may silently use cell phones in the polling area. Observers may not use cell phones to take or make voice calls (ringer should be silenced). Observers may not take photographs or videos in the polling place. The chief inspector may prohibit an observer from using a cell phone if it is deemed disruptive. While observers are present, they are prohibited from electioneering or interfering with the orderly conduct of the election and/or election administration event. Any observer who engages in loud, boisterous, or otherwise disruptive behavior with other observes or voters that the election official believes threatens the orderly conduct of the activity or interferes with voting may receive a warning from the election official. If a warning has been issued, and the offending observer continues the disorderly behavior, the chief inspector should order the offending observer to depart the location. If the offending observer declines or otherwise fails to comply with the chief inspector’s order to depart, the chief inspector should summon local law enforcement to remove the offending observer. In the event that the chief inspector orders an observer to leave a location, the chief inspector is required to provide a written order to the observer (EL-110) which includes the reason for the order and the signatures of the chief inspector as well as another election inspector election official representing the opposite political party, if available. The chief inspector has sole authority to order the removal of an observer, but another election inspector may note his or her concurrence or disagreement with the decision on the Inspectors’ Statement (EL-104). When an EL-110 is completed, the municipal clerk or board of election commissioners is required to notify the WEC of the incident within seven days. This notification should include a copy of the EL-110, if available, and the portion of the Inspectors’ Statement which documents the incident. WEC staff will use this information to provide a summary to the Commission after each election of all reported incidents. Observers are not permitted to handle an original version of any official election document, including voter registration forms and/or proof of residence documents while voters are registering. Observers may examine the poll list so long as they do not interfere with election official responsibilities. The poll list may not be handed to the observers. The election official determines whether it is an appropriate time to allow an observer to examine or photograph the poll list. If voters are standing in line to have their names recorded and to receive a ballot, it is not an appropriate time to allow observers to view the poll lists. The poll list must remain under the control of election officials at all times. Observers are not permitted to make a photocopy of or take photographs or video of proof of residence documents and voted ballots. MEDIA OBSERVERS Members of the media may be present at the public location hosting an election and/or election administration event but cannot interfere with the activities. Members of the media are strongly encouraged to conduct the majority of their activities outside of the room where the election is being conducted. It is the responsibility of the election official to deal directly with any media person who is harassing voters. Generally: 1. Communications media observers shall be permitted to use photography and video cameras provided the cameras are not used in a manner that allows the observer to see or record how an elector has voted and provided the cameras do not disrupt or interfere with voting or disrupt the orderly conduct of the election. 2. Contact with electors in the voting area should be limited. This includes interacting with voters who are waiting in line to check-in and/or cast their ballots. 3. Interviews should be held outside of the voting area to ensure doors and entrances are not blocked and the voting process is not disrupted. Finally, electioneering is any activity intended to influence voting at an election. Electioneering is prohibited on public property within 100 feet of any building entrance a voter may use to access the polling place. This does not apply to private property within the 100 feet rule. Wis. Stats. §§ 12.03(2), 12.035(3). There is an exception for election-related bumper stickers on vehicles parked within 100 feet of an entrance to a polling place for the length of time it takes for the occupants to vote. If it appears that the primary purpose of parking a vehicle within 100 feet of an entrance to a polling place is to influence voting, then election inspectors should attempt to contact the vehicle owner and have them move and should contact a law enforcement officer. SOURCE: Election Day Manual for Wisconsin Election Officials (Aug. 2024)