the ERA is back

Shout outs to Representative Carolyn Maloney for re-introducing the Equal Rights Amendment with fellow Republican Judy Biggert of Illinois. It's nice to see both sides of the aisle come together for the equal application of the Constitution to both men and women.

Not familiar with the history of the ERA? Check out my blog post The Equal Rights Amendment and the Three State Strategy.

your 1st Amendment rights stop at food

When I learned of "food disparagement laws" earlier today, I entered a state of shock.

Hours later, still shocked, I fiddled around and stumbled upon allegedly one of the top 25 censored stories from 1997:

The birth of disparagement laws occurred in 1989 when the legendary CBS news magazine show 60 Minutes publicized a Natural Resources Defense Council report charging that the chemical Alar, which enhances the appearance of apples, caused cancer. Apples, apple juice, and applesauce were immediately removed from grocery store shelves, resulting in a loss of $130 million to Washington apple growers. In response, the Washington growers sued the television show for $250 million—insisting that their product had been falsely disparaged. Supporters of the agricultural disparagement laws aim to make products easier to market as well as to avoid significant financial losses.

These laws are a direct threat to the free speech rights granted under the First Amendment. Under such food disparage-ment laws, mass media and individual citizens would lose their right to inform—and to be informed. If you’re sued for disparagement and you lose, the punishment in Idaho is typical: you have to pay the plaintiff for recovery of all and any financial loss. In Colorado, you could also go to prison for a year. Perversely, such laws cannot be challenged until someone is charged with violating it. “It’s terrifying,” says David Bederman, an Emory University law professor who tried unsuccessfully to challenge Georgia’s disparagement law. The judge ruled that he couldn’t dispute the law until he had a real dispute. But a real dispute could have far-reaching implications.

Currently, there are twelve states that have passed these laws and thirteen that have legislation pending. Critics charge that scientists might not study the effects of pesticides on foods—and that journalists and activists might not report on or discuss such concerns—thus leaving consumers in the dark.

Although generally silent on the issue, the media hit the fan in 1996 when Oprah talked about Mad Cow Disease on her show:

A coalition of cattle ranchers sued Winfrey and Lyman for $10.3 million, claiming that their comments caused the beef market to lose value. The suit was brought under the Texas False Disparagement of Food Products Act, a law that allows agricultural interests to sue an individual if something they say causes perishable food to decay “beyond marketability” (as would happen when people refuse to buy the product).

Of course, Oprah won the case--but was stuck in costly litigation for years. The message was pretty much "Shut your mouth or else."

Case in point:

Consider the experience of University of California at Santa Barbara environmental studies instructor J. Robert Hatherill. Passages in a book of his discussing the dangers of some dairy and meat products were removed by his publisher. Why? It was not out of a fear of losing a lawsuit, but of being sued in the first place.

“We could win the lawsuit,” Hatherill was told by his publisher, “but it would cost us millions and it’s just not worth it.”

Those with the evidence to back up their claims, but without the resources to defend them in court, run the risk of self censorship.

Oy vey. I really don't want to keep this article running so long, but this issue is just crazy:

Of course the agricultural industry insists that food disparagement laws are needed to protect their investments. But another reason for having such laws probably parallels the industry’s opposition to labeling. For example, food companies do not want to be forced to tell consumers that the package of skinless, boneless chicken breasts they are about to purchase had a dose of radiation sent through it (a process called irradiation).

The industry says that people have a right to NOT know how their food is produced, or what is in or on it, and that labeling irradiated food will lead to “irrational” behavior on the part of the consumer (i.e. people will not purchase the food). The industry even admits that consumers probably will not knowingly buy irradiated food.

Michael Colby, executive director of Food and Water, told the Springfield Advocate that letters to congress from a dozen food industry associations say that labeling makes food unmarketable.

“So these industries argue that these technologies are so safe, the greatest thing since sliced bread, but they hide the fact of their use. They know they have a technology that the American public overwhelmingly distrusts” Colby said.

So, by opposing labeling, corporations are trying to keep consumers from making purchasing decisions based on production practices.

Veggie libel laws have a similar effect. Out of a fear of costly litigation, individuals or organizations may refrain from informing consumers about unhealthy food or the dangerous consequences of some agricultural practices. READ THE FULL ARTICLE

come on, Clarence

Justice Thomas, who has not asked a question from the bench since 2006, recently spoke with a group of students and opened up a bit. I was surprised that he would be so candid about struggling with his mood. But I was HORRIFIED by:

He talked about his own school days, reminiscing fondly about seeing “a flag and a crucifix in each classroom.”

Oh yes, the good old days when the church and state played together more openly.

He also commented:

“I am often surprised by the virtual nobility that seems to be accorded those with [the Bill of Rights]...shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”

Read the full article in the New York Times.

send a message to Ken Star

HRC is organizing petitions against Ken Star:

To: Ken Starr, Lead Counsel defending Proposition 8 before the CA Supreme Court

Your attempt to nullify the marriages of 18,000 loving couples in California is misguided and malicious. The rights of a minority should never be stripped by a simple majority vote, and the idea that divorcing parents could help the welfare of children is disgusting. History will condemn your actions.

Send one here

Bush v Gore setting precedent afterall?

Although the Supreme Court ruled in the case of Bush v. Gore that “Our consideration is limited to the present circumstances for the problem of equal protection in election processes generally presents many complexities,” it was used in the United States Court of Appeals for the Sixth Circuit, in Cincinnati, and was a key talking point in Minnesota Supreme Court’s consideration of the Norm Coleman/Al Franken recount litigation. (full article)

I guess the one-time-only carries no weight...but I am more disturbed by the fact that recounting votes to ensure accuracy allegedly violates the equal protection clause, because "by later arbitrary and disparate treatment" one person's vote is valued over another.

Rather, it seems to me that the equal protection clause is violated when reasonable evidence that clearly indicates a false outcome within the results of a certain voting bloc is ignored.

ending unanimity for execution

After a jury failed to unanimously agree to execute Brian G. Nichols for the rash murder of 4 government employees:

Georgia legislators have began lining up to introduce bills eliminating the requirement that juries be unanimous for a death sentence. Hard-on-crime lawmakers have long favored easier rules on death sentencing, but the Nichols sentence has given new urgency to their cause. full article

Representative Barry A. Fleming believes the law should be weakened because “Unfortunately, you have people who say they’re willing to consider the death penalty, but when they get on a jury, it becomes clear that they’re actually death penalty opponents.”

Uhhh...you mean once citizens become personally involved in the process, they tend to realize that execution is cruel and unusual punishment? That Americans retract support of the death penalty on the spot lends credence to eliminating the punishment--not making it easier to execute (no pun intended).

Supreme Court to revisit ex-detainee torture case

Thanks to new precedent set forth by Boumediene v. Bush, Guantánamo prisoners have the right to challenge their detention in federal court--and in light of this, the Supreme Court is restoring a law suit by 4 British citizens/former detainees against Rumsfeld. Read it hot from the New York Times

Oh Kennedy. You old swing vote, you.

why all the smack about the exclusionary rule?

I am trying to understand all of the frenzy surrounding the exclusionary rule, or at least quell academic criticisms (that through some scholastic snobbery feebly posit American adversarial courts as less concerned with justice by deeming illegally-obtained evidence as inadmissible).

Thanks to Mapp v. Ohio (1964), evidence obtained in violation of the 4th and 5th Amendments is thrown out of court to deter wrongful police conduct...

EXCEPT when there is a good faith attempt by police to obtain the evidence legally, and
EXCEPT when evidence would have been obtained by other means (free will, inevitably, whatever)

Can we all recognize the wiggle room here and quit the yapping?

gay rights are not a matter of constitutional relativism

Textualist, activist, textualist, activist...

Aside from my own humble opinions concerning judicial philosophy and the schools of jurisprudence (which I have yet to unfold to my readers...but it's in the oven), the fact of the matter is that gay rights do not fall under a relativist rendering of the Constitution--but pleasantly reside under the original intent of equal protection under the law.

The Huffington Post featured a long rant on the matter, which you may read here.

Supreme Court Take Case on President’s Power to Detain

Exciting stuff:

WASHINGTON — The Supreme Court on Friday agreed to decide the most fundamental question yet concerning executive power in the age of terror: Can the president order the indefinite military detention of people living in the United States? (full article)

atheist placard alongside nativity scence--what's the fuss?

The Freedom from Religion Foundation put a sign celebrating the winter solstice and denouncing religion next to a Nativity scene in the Legislative Building of Olympia, Washington. While calls of appreciation are pouring in (25% of residents are unaffiliated with religion or atheist), so are angry residents and Christian organizations.

On the issue, Governor Gregoire commented, ""I happen to be a Christian, and I don't agree with the display that is up there,but that doesn't mean that as governor, I have the right to deny their ability to express their free speech."

Thanks, Governor. You are exercising rational thought.

Read the full article.

child porn and free speech

I have been brewing up an in-depth blog on free speech and censorship, but while it's baking, let me get a simple issue off of my chest.

Advocates of censorship generally lay their claim on the premise that the dangers of completely unregulated speech allow atrocities such as child pornography to run rampant. Oh, those heathen civil libertarians who want to protect free speech!

I would like to clarify that the aforementioned argument simply does not fly. Child pornography is unethical because it exploits a minor who cannot give consent--therefore kiddie porn is out the window before it can even enter the domain of free speech discussion.

what does Palin know about liberty?

After all, she supports an amendment to the U.S. Constitution that would ban same-sex marriages in America. Small government my ass.

McCain believes that this is a state issue--but as he is likely to croak sooner than later, one must give Palin's bible-beating banter strong consideration.

Check out the full article.

deeply offended

I am deeply offended by Sarah Palin's mockery of grassroots organizing. She snidely stated:

I guess a small-town mayor is sort of like a "community organizer," except that you have actual responsibilities.

What makes this country great is our Constitution--and our protected rights to freedom of speech and assembly which allow for political empowerment and governmental accountability. Those are the underpinnings of democracy. This is why, despite much-needed progress, I love my country.

Without organizing, politically marginalized and under-represented communities would continue to fall under the radar and face gross socio-economic injustice. Without organizing, our elected officials could not represent their constituents. Without organizing, political speech would be a fart in the wind.

And let me tell you, I have been an organizer--and those experiences were among the most challenging and draining in my life. Nothing but deep concern for social justice and political participation could ever compel any one to take on such a tremendous burden (and a great joy).

As David Plouffe so keenly commented:

Community organizing is how ordinary people respond to out-of-touch politicians and their failed policies.

In my view, Palin just took a shit on democracy--and she'll have a whole lot more time to pray and shoot animals when this campaign is over, because Obama/Biden is the winning ticket.

I am a Constitution Voter

Love this from the ACLU. Sign the petition and get an "I am a Constitution Voter" bumper sticker.

I Am a Constitution Voter

• I believe that no one -- including the President -- is above the law.
• I oppose all forms of torture, and I support both closing the Guantánamo Bay prison and ending indefinite detention.
• I oppose warrantless spying.
• I believe that government officials, no matter how high-ranking, should be held accountable for breaking the law and violating the Constitution.
• I believe that the Constitution protects every person's rights equally -- no matter what they believe, how they live, where or if they worship, and whom they love.
• I reject the notion that we have to tolerate violations of our most fundamental rights in the name of fighting terrorism.
• I am deeply committed to the Constitution and expect our country's leaders to share and act on that commitment -- every day, without fail.

Protect reproductive freedom in California--NO ON PROP 4

For the third time, reproductive freedom is threatened in California. Proposition 4 seeks to amend the California Constitution, and specifically:

The initiative would prohibit abortion for unemancipated minors until 48 hours after physician notifies minor’s parent, legal guardian or, if parental abuse has been reported, an alternative adult family member.

Let's stop trying to control the reproductive organs of others.

McCain-Feingold Discriminates Against Millionaires

Everyone should have learned from Mitt Romney that money alone cannot buy an office. But for some reason, the general collective cannot let go this idea that this system is bought and sold--and so we have created special and discriminatory rules for races involving self-financed candidates who rack in the bucks.

If a candidate puts $350,000 or more into one's own campaign, the opponent may TRIPLE the legal contribution cap. That is $6,900 per person.

Understandably, Democrat millionaire Jack Davis--who has lost twice in unseating congressional incumbent Tom Reynolds of upstate New York despite his fortune--followed his case to the Supreme Court, where he rightfully claimed the First Amendment has been violated. Money is political speech is free speech. End of story.

The Supreme Court is still pending on the matter, but I have to hand it to Scalia who asked if now we have to force more eloquent candidates to talk with pebbles in their mouth to "level the playing field"?

atheist soldier suing Defense Department

Spec. Jeremy Hall, a soldier in Iraq, was prevented from gathering with other atheists and non-Christians, and is basing his lawsuit on practices that discriminate against non-Christians in the military. His First Amendment rights were also frequently violated due to discrimination he faced when refusing to join prayer.

Atheist Revolution reports the full story, as well as Hall's jeopardized safety resulting from his suit against Maj. Freddy Welborn and Secretary of Defense Gates for violating his religious freedom--meaning freedom to both participate in and refrain from religion.

I don't know why it is so difficult to tolerate atheisism. If anything, a group of people who value reason are an asset to society--even if a theist disagrees with one belief in a larger framework that values critical thinking.

Bush is above the 4th Amendment?

A 2003 Justice Department memo was recently disclosed, and in its 81 pages, it declared that George W. Bush is above the 4th Amendment. This memo was made public last week in response to an ACLU lawsuit. No Court has ever ruled that the 4th Amendment does not apply to the military.

The Washington Post writes:

The document disclosed, for example, that the administration's top lawyers had declared that the president has unfettered power to seize oceangoing ships as commander in chief; that Congress has no ability to pass legislation governing the interrogations of enemy combatants; and that federal laws prohibiting assault and other crimes did not apply to military interrogators who questioned al-Qaeda captives.

One section discussed to what extent the president might be allowed to legally maim a prisoner, such as through the use of a "scalding, corrosive, or caustic substance." A footnote argued that Fifth Amendment guarantees of due-process rights "do not address actions the Executive takes in conducting a military campaign against the Nation's enemies."

These bold assertions surprised many experts, including career officials and Bush appointees at the Justice and Defense departments, who said the previously secret opinions are overly broad and improperly granted vast powers to the president without adequate internal debate or judicial oversight.