Sheridan: Con-Law

STUDENT SPEECH

Suppose you help run a school as a teacher, principal, member of the Board, or as a government council member which oversees the district, and you have a problem with gangs. 

In California we have prison gangs which have local offshoots in cities outside the prison such as the Surenos, Nortenos, Nuestra Familia, Mexican Mafia, Mara Salvatrucha and others for blacks and whites.  Among the Latino gangs the colors red and blue have been adopted by convention to denote one or the other.  There have been innumerable killings simply for wearing the wrong color in the wrong place.  Typically, a challenge is called out, "Which group do you claim?"  If you claim the wrong group, you can die on the spot.  "I'm a natural person," is one way of claiming that you are neither.

Violent gangs also wear gang signs and signals, in addition to colors.  They 'tag' walls and buses.  Members also wear tattoos signifying affiliation, and flash gang finger signs.

As a public school administrator, you, naturally, want to do something to prevent gang violence and promote safety for innocent students.

The word 'public' is significant here, because public schools are publicly run, meaning governed by rules laid down by government officials, as opposed to private schools.  Although for K-12, state law requires the attendance of all school age students at some school, private schools are privately funded and privately administered.

As a public school administrator, you might decide to promote a dress code that would prohibit gang members from wearing their colors and symbols.

But the Constitution guarantees the right of free expression, which seems to conflict with the school policy restricting expression to that which is approved by the school, meaning the government.

Constitutional law recognizes a huge distinction between what you can do as a private person for private reasons, and what you can do as a public official for public purposes.  The Constitution speaks in terms of "Congress shall not..." (5th Amendment) and "No state shall..." (14th Amendment).  It does not speak in terms of "Thou shalt not..." the way the Ten Commandments does.  The one possible exception in the Constitution is the 13th Amendment (forbidding slavery after the Civil War) as that applies directly to private slave controllers.

The cases first recognizing this public-private dichotomy are called the Civil Rights Cases (1883), which seems something of a misnomer, as they have been used to promote the right which you enjoy to practice racial, ethnic, and religious discrimination in private, such as in your choice of spouse and fishing companions.  That is your civil right, to discriminate on those bases.  It's just that government may not so discriminate, not since Brown v. Board (1954), that is, as modified by Parents v. Seattle School District No. 1, last week, which has attempted to make the Constitution color-blind.  The first Justice Harlan, in his notable dissent in 1896 to Plessy v. Ferguson (which upheld 'separate but equal,' thus legalizing Jim Crow) declared that the Constitution was, meaning ought to be, "colorblind" when it came to government law and policy.  The problem is that while the document may be supposed to be colorblind, the people who live under it, and administer its interpretations, are anything but.  Racial politics is as alive and well as it's ever been, although perhaps more subtle and, sometimes, sub rosa, hence the need for strict scrutiny of legislation impacting one race over another on its face or in application.

Suppose as school administrator you consider imposing a rule prohibiting the wearing of any clothing or accessory bearing labels or logos, or colors, or symbols.  That would certainly cover the gang symbol problem, wouldn't it?

Your problem is that you will have great difficulty describing, meaning defining in words, what you want to ban without banning something else that would be protected.  This is the problem Shylock had in 'Merchant of Venice,' where his bond allowed him a pound of flesh in case of the default which in fact occurred.  The lawyer (female) Portia, argued, successfully, that Shylock could in fact take his pound of flesh, but not one gram more.  Shylock, in winning, lost.  Why?  Because there was no way he could be sure, in advance, that he would not take more than his pound of flesh.  No, I don't recall whether he would've settled for less.

Defining prohibited expression is the Shylock problem.  If you try to take more, we say, as a matter of Constitutional Law, that you have failed to 'narrowly tailor' your definition to properly fit your problem and are thus prohibiting protected speech that, in this case, a student has as a matter of constitutional right.

BAD TAILORING FATAL

That's the rule.  Bad tailoring is fatal to well-intentioned rule-making, which is why in First Amendment law the people who go to bat to uphold the Constitution so often find themselves defending Nazis marching in Skokie, students who are wising-off, or critics of presidents who wish to conquer the world, or at least the parts of the world that we consider vital to our flee-floating interests.

In the article below is an example of a school dress code thrown out by a local judge in Napa who has read his Constitutional Law.

FCC: FEDERAL CENSORSHIP COMMITTEE

Censorship by government agency? Here, in America?

Yup.

The FCC patrols the broadcast airwaves, making sure that children don't hear 'fuck,' a word I loined from other kids when I was around five-years-old, in StatNisland, N.Y., one of the Five Boroughs comprising New York City, the capital of vocal expressionism. See Brooklyn, just a short green ferryboat ride away, now connected by the Italian Bridge, sometimes called the Verazzano-Narrows Bridge, for short. I watched it go up from my high school window (Curtis, sometimes pronounced "Coitus.") My dad built the damn thing. The Bridge, not Curtis.

In S.I., we grew up sounding like miniature versions of the character made into a verbal icon by the comedian Andrew Dice Clay, who inserted the word as an intermediate syllable of emphasis to give impact to words that would other-fucking-wise fall flat, if you get my f*cking drift.

Okay, so I heard the taboo words when I a little shrimp. So what. You seen da film, "My Cousin Vinny?" Dat's one of dose kids all grown up. Guy did a good job. Vinnie, starring Pesce, Joey. And Mona Lisa Vito, by Marisa Tomei. I'd give my heart for a witness like her. Or even her.

Maybe hearing those woids is good for youse. You hear 'em and become a lawyer or a professor of constitutional law. How bad is that? I'm not stealing hubcaps. Not any more, I ain't.

Here's for bad words. They teach you when not to say certain things or you'll get your lip busted. By the guy you said them too, not the gummint, which has no dog in this fight, beyond fighting words and keeping the peace.

You don't want your kid to hear bad words? Don't use 'em and they won't know what they are.

I could go on, but there are bigger fish to fry. Guys are dying in Iraq because we have this president, see...?

Here's the article, from the International Herald Tribune, reporting on how the FCC got dumped by a court which believes in the First Amendent, today.

Bravo!

BALCO & THE ALLEGED REPORTER'S PRIVILEGE

The reporter's privilege, which doesn't exist in federal court, would, if adopted, permit reporters to grant anonymity to sources even when the sources were crooks.  As the law now stands in federal courts, the reporters can be jailed for refusing to give up crooked sources.  That was the problem in the Judith Miller case, she formerly of the NY Times, in the Plamegate case in which Scooter Libby is on trial for leaking confidential information from the Vice-President's Office outing a CIA employee, i.e. one of our spies.

It's the problem in the BALCO baseball steroid use investigation starring S.F. Giants home-run hitter Barry Bonds.  Or was until the source, a lawyer, confessed that it was he who leaked secret, protected by court order, grand jury testimony, and then blamed government prosecutors for doing the leaking instead of him.  He then used the alleged government misconduct to move to dismiss the case against his client.  This is crooked no matter how you look at it.  The lawyer has pled guilty and agreed to accept up to two years in the federal penitentiary for this breach of court rule.  I wouldn't expect to see him practicing law very much in the future, either.

The report is below.  It shows how twisty-turny First Amendment law can be, and why there are few, if any, clear cut answers, to FA questions.  If you opt for allowing reporters the protection, they become the priests of FA protection, and can immunize dirty sources.  But if you don't, you don't let them get the story of what could become the next Watergate.  Either way, you jump, you jump wrong when the next big case comes along.

This reminds me somewhat of the problem when the junk science, Daubert v. Merrill Dow Pharmaceuticals (1993), came along.  Should the courts allow evidence gained from new scientific technique, or wait until such results were generally accepted in 30 years?  Make room for the next Galileo or make his observations wait 30 years in order to keep out charlatanry?

The solution was to set up a neutral 3rd party referee, the trial judge, to hear arguments on both sides, and then to act as the gate-keeper on whether the new scientific technique results are close enough to being good science for the jury to consider.  The closer the evidence looks to astrology and tea leaf reading, the greater the chance it is kept out.  The more it looks like good science, such as by published test techniques, peer reviewed in public journals, capable of independent retesting and the like, the more likely it comes in.  Galileo is protected while Nostradamus is not.

Perhaps the journalist's editor could perform this function, if he has an editor.  Not all journalists have editors.  When I report and comment on a case, here, am I performing as a journalist, since I tell the world?  If I do, guess what, the only editor is me.  I'm strictly self-policing.  So the neutral 3rd party turns out to be a federal judge if push comes to shove.

The problem with the neutral 3rd party approach is that it effectively handcuffs the reporters, who cannot offer immunity, only immunity-maybe.  Then they don't get the story because the source clams up.

In the BALCO case, however, the reporters knew their source later lied.  But they went back and relied on him again, anyway.  The bigger story was that their source, an attorney, had leaked.  But that wasn't the story they were interested in working on.  They were after Barry Bonds, superhero.  That was the bigger story.  So they decided to give the crooked lawyer a pass.  And were sentenced to jail, pending further developments, the interesting one which saved their bacon being that the lawyer was smoked out and agreed to go to prison instead of the reporters.  Happy ending indeed, right?  Send the real crook to jail, not the messenger.

You can read the LA Times story on the matter below.

"THAT'S WHY YOU'RE IN A GOD DAMN LAWSUIT"

That's what the feller who lost the city towing contract told the town council, for which the local cop arrested him and took him to jail for disorderly conduct, the catchall charge commonly used to arrest for contempt of cop and other forms of grand mopery.

Charges were dropped a month later and the feller sued the cop in U.S. District Court for violating his freedom from unreasonable seizure under the Fourth Amendment and also for violating his free speech rights under the First Amendment.

The lower court sided with the cop but the feller with the mouth took it to the U.S. Sixth Circuit Court of Appeal which has ruled in favor of Mr. Mouth.

The article is here.

The opinion of the court is here.

Free speech means what it says.  Unless it fails to pass the Brandenburg v. Ohio (1969) test, meaning an immediate destruction of governmental processes to the point of violence, you're free to vent.  You might be legally hauled out of the room, but not arrested and successfully prosecuted for speech alone.  Caveat:  this is not legal advice and do not rely on it.  Consult your own criminal defense lawyer before mouthing off at a meeting or you might find yourself litigating your criminal conviction for one thing or another for years to come.  Not all local cops are truly up on the Constitution.

The opinion of the court doesn't expressly cite Brandenburg, to my surprise, but it does refer to First Amendment doctrine that is decades old.  What other case could the court have had in mind, I wonder.

SEPARATE BUT CONNECTED, THE CHUCK CLOSE, POINTILLIST APPROACH TO BIG PRINCIPLES

Chuck Close is the contemporary artist whose portraits are composed of squares in which are painted other paintings.  Close-up you see the individual paintings.  Stand back and you see the painting-in-chief.  Perhaps you've seen the Salvador Dali painting of Abraham Lincoln.  Or one of the French impressionist paintings in the pointillist idea. Same idea.

Constitutional Law strikes me as being a bit like this, especially in the area of the First Amendment.

"Freedom of speech" is a nice idea, but the fact is that we regulate it all over the lot, in our homes, where kids get their filthy mouths washed out with soap (sometimes it works, and sometimes it doesn't), on broadcast TV where you can't say George Carlin's seven dirty words, or Lenny Bruce's either, or show Janet Jackson's right breast at half-time in the Superbowl.

One person's free speech is another's fighting words.

So you don't get very far in Con law by saying, such-and-such is allowed "because of the First Amendment."  That's like saying, in criminal law, "but Your Honor, this is so unfair,"  or "my client is a nice guy," or "he has a job."

You need to get down to cases in a hurry when arguing from general principles of fair play and justice or you'll get tuned out before the laughter starts.

This is a way of saying that despite the ringing general principles, our law is context driven.  The general principles are custom tailored by appellate courts to conform to the general principles established by the Framers and the Supreme Court, which acts, I hate to say, as a perpetual Constitutional Convention, like it or not.  That's just the way it works out, it seems, which is okay, because you'd get no change at all if we had to have an official Amendment process each time we wanted to make a little change (or big) here and there. Some changes can be effected by Congress, such as when a federal statute or rule is struck down as unconstitutional.  Others, such as the Dred Scott decision (1857) require a war and three amendments to correct.

So when you study broad general principles contained in the Constitution, such as due process, equal protection, freedom of speech, religion, etc.the general principle shines like the moon in the sky, while we toilers in the legal vineyards must relate the behavior in question to cases that bear on this specific context, and there are a LOT of different contexts.  No chance for boredom when it comes to the First Amendment, I'm afraid.

Each separate little context, compared to the whole, reminds me of a unit of a Chuck Close painting, not to mention a Salvador Dali or a French pointillistic dot. 

Separate but connected. 

That has a bit of a Con law ring, doesn't it?

TEN COMMANDMENTS, BAH HUMBUG!

Oh, NOW I geddit.

Religion isn't really religion when we ignore it.

Christmas isn't a religious holiday, it's a commercial exercise.

The way to get rid of religion is to ignore it.  Treat it like old wallpaper, there but unnoticed unless someone calls attention to it.

Christmas trees, Hannukah bushes, they're all the same.

"In God We Trust?"  Just a quaint slogan on the coins.  If I were God, I'd be p*ssed, and would smite someone.

The Ten Commandments were upheld in Seattle, below.

Pretty soon they're going to be making the schoolkids say "under God" in the Pledge, as long as they don't really mean it, of course.  Until Michael Newdow comes along (again) with his thunderbolt, that is.

SO WHAT IF THEY PUT A GAG IN YOUR MOUTH

This, from Robbie, my son, who, thankfully, doesn't have cotton in his ears...