tag:theconversation.com,2011:/africa/topics/constitutional-rights-23707/articles
Constitutional rights – The Conversation
2023-06-30T19:18:54Z
tag:theconversation.com,2011:article/208354
2023-06-30T19:18:54Z
2023-06-30T19:18:54Z
‘We the People’ includes all Americans – but July 4 is a reminder that democracy remains a work in progress
<figure><img src="https://images.theconversation.com/files/535045/original/file-20230630-19-9rx4tu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">When the Constitution was written, the term 'We the People' had a very limited application for voting rights.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/108914576/photo/a-protestor-holding-a-placard-in-front-of-the-us-capitol-building.jpg?s=1024x1024&w=gi&k=20&c=On4svGb-O5Cv9XvMXuS4wV-FzqfSsO0ZdpW4o5yzjNM=">Antenna/Getty Images </a></span></figcaption></figure><p>The United States’ founders firmly rejected King George III and the entire idea of monarchy 247 years ago, on July 4, 1776. </p>
<p>Political power does not come from some absolute authority of a king over people, the founders argued. Rather, political power comes from the <a href="https://billofrightsinstitute.org/primary-sources/federalist-no-39">people themselves</a>. And these people must <a href="https://www.archives.gov/founding-docs/declaration-transcript">agree to any authority</a> <a href="https://academy4sc.org/video/representative-vs-direct-democracy-power-of-the-people/">governing their society</a>. </p>
<p>This is why the <a href="https://www.archives.gov/founding-docs/constitution-transcript">U.S. Constitution</a> starts with the words “We the People,” and not “I, the ruler.”</p>
<p><a href="https://www.researchgate.net/profile/Joseph-Jones-8">I am</a> a historian, ethicist and media scholar <a href="https://www.psu.edu/news/bellisario-college-communications/story/dissertation-focused-food-journalism-earns-annual-davis/">and have studied</a> how people build communities.</p>
<p>America’s founders did not trust everyone’s ability to equally participate in the <a href="https://www.ushistory.org/gov/1c.asp">new democracy</a>, as laws at the time showed. </p>
<p>But, because of policy changes on issues like voting, the idea of who actually is represented in the phrase “We the People” has <a href="https://www.facinghistory.org/resource-library/we-people-united-states">changed over time</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/535047/original/file-20230630-41655-azdorj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A painting depicts men dressed in old fashioned clothing in a large room crowded around some men on a raised platform." src="https://images.theconversation.com/files/535047/original/file-20230630-41655-azdorj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/535047/original/file-20230630-41655-azdorj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=387&fit=crop&dpr=1 600w, https://images.theconversation.com/files/535047/original/file-20230630-41655-azdorj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=387&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/535047/original/file-20230630-41655-azdorj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=387&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/535047/original/file-20230630-41655-azdorj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/535047/original/file-20230630-41655-azdorj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/535047/original/file-20230630-41655-azdorj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Washington, Benjamin Franklin, Thomas Jefferson and other founders prepare to sign the Constitution in 1787.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/525372757/photo/signing-the-us-constitution.jpg?s=1024x1024&w=gi&k=20&c=fUS2e0GJevIjoW2km_VDY6Y7syikiU8nt-86W9eXopM=">GraphicaArtis/Getty Images</a></span>
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<h2>First steps</h2>
<p>In 1776, only <a href="https://www.loc.gov/classroom-materials/elections/right-to-vote/the-founders-and-the-vote/">white men who owned property</a> had the right to vote.</p>
<p>“Few men, who have no property, have any judgment of their own,” as former President John Adams <a href="https://shec.ashp.cuny.edu/items/show/1645">wrote in 1776</a>.</p>
<p>As activists – including <a href="https://www.history.com/topics/womens-history/women-who-fought-for-the-vote-1">some women</a> and <a href="https://www.archives.gov/research/african-americans/vote/people">Black Americans</a> – proclaimed their equality, <a href="https://files.eric.ed.gov/fulltext/ED606970.pdf">public education spread</a>, and <a href="https://education.nationalgeographic.org/resource/voting-rights-throughout-history/">social thinking shifted</a>. </p>
<p>By about 1860, all state legislatures had lifted <a href="https://www.loc.gov/classroom-materials/elections/right-to-vote/the-founders-and-the-vote/">property requirement for voting</a>. Allowing only wealthy property owners to vote did not align with the democratic notion that “<a href="https://www.loc.gov/classroom-materials/elections/right-to-vote/the-founders-and-the-vote/">all men are created equal</a>.” </p>
<p>While some states, <a href="https://www.crf-usa.org/bill-of-rights-in-action/bria-8-1-b-who-voted-in-early-america">like Vermont</a>, eliminated the property voting requirement in the 18th century, this shift became more popular in the 1820s and the 1830s. </p>
<p>Congress passed the 15th Amendment in 1870, <a href="https://guides.loc.gov/15th-amendment">giving Black men</a> and others the right to vote, regardless of race.</p>
<p>But <a href="https://www.loc.gov/classroom-materials/elections/right-to-vote/voting-rights-for-native-americans/">that amendment still excluded</a> some people, chiefly Native Americans and women. </p>
<h2>An unfinished history</h2>
<p>Despite the 15th Amendment, violence and intimidation in some states still <a href="https://www.loc.gov/classroom-materials/elections/right-to-vote/voting-rights-for-african-americans/#:%7E:text=Until%20the%20Supreme%20Court%20struck,people%20whose%20ancestors%20were%20slaves.">prevented Black men from voting</a>.</p>
<p>State lawmakers also used bureaucratic measures, such as a poll tax, renewed attempts at a property requirement and literacy tests, to prevent African Americans from voting. </p>
<p>The fight over <a href="https://www.archives.gov/research/african-americans/vote">African American suffrage</a> continued for decades, and many courageous Americans protested and were arrested or killed in the struggle to exercise their voting rights. </p>
<p>Thanks to the work of <a href="https://www.loc.gov/collections/civil-rights-history-project/articles-and-essays/voting-rights/">civil rights activists</a> – including <a href="https://www.britannica.com/biography/John-Lewis-American-civil-rights-leader-and-politician">John Lewis</a>, <a href="https://time.com/5692775/fannie-lou-hamer/">Fannie Lou Hamer</a> and <a href="https://kinginstitute.stanford.edu/mlk-topic/voter-registration">Marting Luther King Jr.</a> – public opinion shifted. </p>
<p>In the 1960s, Congress passed additional legal measures to protect the voting rights of Black Americans. This included the <a href="https://constitution.congress.gov/constitution/amendment-24/">24th Amendment</a>, which outlawed the use of poll taxes, and the <a href="https://www.archives.gov/milestone-documents/voting-rights-act">1965 Voting Rights Act</a>, which prohibited any racial discrimination in voting. </p>
<h2>Women’s turn</h2>
<p>In 1920, <a href="https://www.loc.gov/classroom-materials/elections/right-to-vote/voting-rights-for-women/">women gained</a> the right to vote with the addition of the 19th Amendment, following another decadeslong struggle.</p>
<p>Women’s rights activists made the first organized call for female suffrage at the <a href="https://www.loc.gov/item/today-in-history/july-19/">Seneca Falls Convention in 1848</a>. </p>
<p>In the following years, suffragists pushed for <a href="https://www.history.com/topics/womens-history/the-fight-for-womens-suffrage">constitutional amendments, state laws and a change in public thinking</a> to <a href="https://www.jstor.org/stable/23001287">include women</a> in “We the People.” </p>
<h2>Native American rights</h2>
<p>Having self-governed for centuries, Native Americans were not legally recognized with voting rights until Congress approved the <a href="https://constitutioncenter.org/blog/on-this-day-in-1924-all-indians-made-united-states-citizens">Indian Citizenship Act</a> in 1924.</p>
<p>While that supposedly gave Native Americans the same rights as other Americans, <a href="https://www.loc.gov/classroom-materials/elections/right-to-vote/voting-rights-for-native-americans/">Native Americans faced the same tactics</a>, like violence, that white racists used to prevent Black Americans from voting. </p>
<p>Like other people excluded from “We the People,” <a href="https://medium.com/indigenously/meet-the-indigenous-women-who-fought-for-the-vote-ecdc335fb29f">Native Americans</a> have continued to push for voting rights and other ways to ensure <a href="https://nativenewsonline.net/currents/history-of-native-american-voting-rights">they are included in American self-government</a>. </p>
<h2>Making democracy more democratic</h2>
<p>In 1971 “We the People” again expanded, to include younger people, with the <a href="https://history.house.gov/HistoricalHighlight/Detail/37022">lowering of the voting age from 21 to 18</a>. The ongoing <a href="https://www.gilderlehrman.org/history-resources/essays/winning-vote-history-voting-rights">Vietnam War shifted public opinion</a>, and there was popular support for the idea that someone old enough to die fighting for their country should also be able to vote. </p>
<p>A government once described by Abraham Lincoln as “<a href="https://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm">of the people, by the people, and for the people</a>” was now going to technically include all of the people.</p>
<p>But equality for women, young people and racially marginalized groups did not change overnight. </p>
<p>Social equality remains far off for many people, including undocumented immigrants, for example, and LGBTQ+ individuals.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/535049/original/file-20230630-17-732pno.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person walks past a white sign that says 'Vote here.'" src="https://images.theconversation.com/files/535049/original/file-20230630-17-732pno.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/535049/original/file-20230630-17-732pno.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/535049/original/file-20230630-17-732pno.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/535049/original/file-20230630-17-732pno.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/535049/original/file-20230630-17-732pno.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=497&fit=crop&dpr=1 754w, https://images.theconversation.com/files/535049/original/file-20230630-17-732pno.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=497&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/535049/original/file-20230630-17-732pno.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=497&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">While some states have it made it harder to vote in recent years, others have made it easier.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1204917011/photo/voters-in-14-states-head-to-the-polls-on-super-tuesday.jpg?s=1024x1024&w=gi&k=20&c=x4w0NYntBddlGQ41pzexXLAg9bTXcyG8Es8oaEbou60=">Stephen Maturen/Getty Images</a></span>
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<h2>Current limitations to ‘We the People’</h2>
<p>The government has recognized that citizens over the age of 18 have a right to participate in self-government. But there are still political and legal attempts to <a href="https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-june-2023">restrict people’s</a> ability to vote. </p>
<p>While some states have passed new laws that make it harder to vote in recent years, other states have made it easier. </p>
<p>North Carolina passed new <a href="https://www.wbtv.com/2023/04/28/nc-supreme-court-reverses-previous-opinion-deems-voter-id-law-constitutional/">ID requirements</a> in April 2023 that make it difficult for those without current state identification to vote.</p>
<p><a href="https://spectrumlocalnews.com/tx/south-texas-el-paso/politics/2023/04/03/bill-aims-to-purge-texas-voters-if-they-skip-elections">Texas</a>, <a href="https://apnews.com/article/ga-state-wire-georgia-election-2020-voter-registration-business-a916e90db938aa60a4eff3d00d391006">Georgia</a>, <a href="https://oklahomawatch.org/2019/04/22/nearly-90000-inactive-oklahomans-removed-from-voter-rolls/">Oklahoma</a> and Idaho are also <a href="https://www.npr.org/2019/12/20/790319853/are-states-purging-or-cleaning-voter-registration-rolls">among the states</a> that <a href="https://www.npr.org/2019/12/20/790319853/are-states-purging-or-cleaning-voter-registration-rolls">are deleting some voters</a> from their rolls – if people do not regularly vote, for example.</p>
<p>Arizona has <a href="https://eu.azcentral.com/story/news/politics/arizona/2019/09/12/arizona-has-closed-hundreds-polling-places-2013-voting-rights-act-">closed multiple polling sites</a>, making it more difficult for some people to vote. </p>
<p>Twenty-five states, meanwhile, including Hawaii and Delaware, have passed laws over the last few years that <a href="https://theconversation.com/some-states-are-making-it-harder-to-vote-some-are-making-it-easier-but-its-too-soon-to-say-if-this-will-affect-voter-turnout-in-2022-176102">make it easier to vote</a>. One of these measures automatically registers people to vote when they turn 18. </p>
<p>There are <a href="https://www.theguardian.com/us-news/2023/jun/25/voting-rights-act-voter-map-registration-id-racism-supreme-court-georgia">more examples</a>. The bottom line is, voters have fewer protections when it becomes harder to vote, and American democracy is not as democratic as it could be. </p>
<h2>The big picture</h2>
<p>Voting is not the only form of <a href="https://direct.mit.edu/daed/article/152/1/52/115008/Power-to-Pursue-Happiness">recognition and participation</a> in a democracy. People can be respected at work, paid what they are worth and treated with dignity. Community members can be treated fairly by police, school officials and other authorities, given an equal opportunity for justice and education to improve their lives. </p>
<p>People <a href="https://constitutioncenter.org/blog/civic-virtue-and-why-it-matters#:%7E:text=Civic%20virtue%20describes%20the%20character,of%20its%20values%20and%20principles">can also contribute</a> to the social and economic well-being of a democracy in ways other than voting, <a href="https://www.brookings.edu/articles/the-bucket-list-for-involved-citizens-76-things-you-can-do-to-boost-civic-engagement/">doing everything</a> from planting a tree in a public park to attending a political rally. </p>
<p>But the overall expansion of voting rights and a historical understanding of “We the People” shows that everyone belongs in a democratic society, regardless of wealth, achievement or other differences.</p><img src="https://counter.theconversation.com/content/208354/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joseph Jones does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The meaning of the Constitution’s preamble, which begins with the words ‘We the People,’ has evolved over time as voting rights have expanded.
Joseph Jones, Assistant Professor of Media Ethics and Law at Reed College of Media, West Virginia University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/206834
2023-06-15T12:37:31Z
2023-06-15T12:37:31Z
How ‘constitutional county’ declarations undermine the Constitution – a legal scholar explains
<figure><img src="https://images.theconversation.com/files/531818/original/file-20230613-19-1o7sl2.jpeg?ixlib=rb-1.1.0&rect=17%2C8%2C5884%2C3920&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ottawa County Commissioners Joe Moss, left, and Sylvia Rhodea ran for the positions vowing they would 'thwart tyranny' in the community.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/ottawa-county-commissioners-joe-moss-left-and-sylvia-rhodea-news-photo/1252065466?adppopup=true">Evan Cobb for The Washington Post via Getty Images</a></span></figcaption></figure><p><a href="https://www.mlive.com/news/grand-rapids/2023/05/ottawa-county-becomes-constitutional-county.html">Declaring its community a “constitutional county</a>” on May 23, 2023, the Board of County Commissioners in Ottawa County, Michigan, voted 9-1 not to enforce any law or rule that “restricts the rights of any law-abiding citizen affirmed by the United States Constitution.” </p>
<p>Nor will the county provide aid or resources to any state or federal agency that county officials judge to be infringing on or restricting those rights.</p>
<p>Ottawa is not the first county in Michigan to declare itself a refuge from what its leaders say are anti- or unconstitutional actions undertaken by an overzealous state or federal authority. </p>
<p>Livingston County, also in Michigan, <a href="https://www.bridgemi.com/michigan-government/livingston-declares-itself-constitutional-county-resist-gun-reforms">passed a similar resolution</a> in April 2023. </p>
<p>It is not clear how many there are, exactly, but there are also <a href="https://highlandscurrent.org/2023/03/31/editors-notebook-the-tricky-origins-of-the-constitutional-county/">self-designated constitutional counties</a> in Virginia, Texas, Nevada and New York. <a href="http://jfinn.faculty.wesleyan.edu/">As a scholar of constitutional theory</a>, I believe more will follow, especially in the <a href="https://tacticalgear.com/experts/second-amendment-sanctuary-reviewed-every-u-s-state-and-county">roughly 1,100 counties</a> of the nation’s 3,200 counties that have already declared themselves Second Amendment sanctuaries. </p>
<p>But where <a href="https://www.thetrace.org/2020/01/second-amendment-sanctuary-movement/">Second Amendment sanctuaries</a> aim to create havens for gun rights allegedly under siege, the constitutional county movement has a broader agenda. </p>
<p>One of the drafters of the Ottawa Resolution, for example, <a href="https://www.mlive.com/news/grand-rapids/2023/05/ottawa-county-becomes-constitutional-county.html">explained</a>, “As we wrote this resolution … we recognized the need to protect not only Second Amendment rights but all constitutional rights. … We wish to highlight freedoms and constitutional rights which have been violated over the past few years, as well as those currently at risk due to societal and political pressures.” </p>
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<figcaption><span class="caption">A news report about the Ottawa County, Michigan, vote to declare itself a ‘constitutional county.’</span></figcaption>
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<h2>Why constitutional counties are unconstitutional</h2>
<p>Although the two Michigan county resolutions are chiefly symbolic and do little more than encourage – rather than order – local law enforcement authorities and local officials to disregard federal laws they claim are unconstitutional, the dangers they pose to the U.S. constitutional system are substantial.</p>
<p>This way of thinking <a href="https://theconversation.com/sanctuaries-protecting-gun-rights-and-the-unborn-challenge-the-legitimacy-and-role-of-federal-law-122988">is profoundly mistaken</a> and undermines Americans’ collective commitment to constitutional democracy.</p>
<p>Declaring oneself a constitutional county undermines the authority of officials authorized to act under the Constitution. I believe it ultimately subverts the authority of the Constitution itself. </p>
<p>When these resolutions instruct county police not to enforce certain laws, such as red flag laws that allow the confiscation of firearms from certain people, they violate <a href="https://constitution.congress.gov/browse/article-6/#:%7E:text=Article%20VI%20Supreme%20Law&text=All%20Debts%20contracted%20and%20Engagements,Constitution%2C%20as%20under%20the%20Confederation.">Article 6 of the U.S. Constitution</a>. Article 6 declares that the Constitution itself and federal laws are “<a href="https://constitution.congress.gov/constitution/article-6/">the supreme Law of the Land</a>” and cannot be overruled or superseded by state laws or laws at lower levels of government. </p>
<p>So any county that claims to nullify federal laws it finds objectionable raises constitutional problems. So, too, do assertions of a right to obstruct federal law or to impede the exercise of federally guaranteed rights and liberties. </p>
<p>In both scenarios, <a href="https://www.mlive.com/news/grand-rapids/2023/05/ottawa-county-becomes-constitutional-county.html">local authorities</a> claim they are under no constitutional obligation to enforce, or to <a href="https://www.livingstondaily.com/story/news/local/community/livingston-county/2023/04/25/livingston-declared-constitutional-county-in-second-amendment-reaffirmation/70147404007/">help state or federal officials enforce</a>, laws and regulations that are, in their view, plainly unconstitutional. </p>
<p>On the other hand, if the point is simply to refuse to assist federal officials in enforcing federal law, then that probably is not unconstitutional. </p>
<p>In <a href="https://www.oyez.org/cases/1996/95-1478">Printz v. United States</a>, the Supreme Court held in 1997 that federal officials cannot force state and local officials to enforce federal law. </p>
<h2>Constitutional principles – or politics?</h2>
<p>Among the constitutional liberties <a href="https://www.mlive.com/news/grand-rapids/2023/05/ottawa-county-becomes-constitutional-county.html">Ottawa County officials think are at risk</a> is freedom of religion, which they say is threatened by state and federal diversity requirements in schools. Other rights they say are threatened include those granted by the Second Amendment and parental liberties; they also cite certain kinds of threats to individual liberty, such as COVID-19 mask requirements.</p>
<p>Notably absent were concerns about threats to reproductive autonomy, sexual and gender identities, or public safety endangered by firearms violence. Professions of constitutional fidelity by constitutional county advocates are more often about politics than real concern for the Constitution. </p>
<p>These declarations can be used – and I believe will be used – for pretty much any political agenda and to evade federal laws that some citizens find objectionable. </p>
<p>In doing so, they become little more than political excuses to end-run Article 6 of the Constitution whenever it suits. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Screen shot of an announcement about the upcoming vote on the constitutional county measure by the county commissioners." src="https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=788&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=788&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=788&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=990&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=990&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531816/original/file-20230613-21-f5ywyi.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=990&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An announcement by ‘2A PATRIOT,’ a Michigan pro-Second Amendment group, about the Ottawa County commissioners meeting at which the constitutional county measure would be voted on.</span>
<span class="attribution"><a class="source" href="https://2apatriot.org/f/ottawa-county-going-for-constitutional-county-status">2A PATRIOT</a></span>
</figcaption>
</figure>
<h2>Taking the Constitution seriously</h2>
<p>It is tempting to applaud any effort by citizens to take the Constitution seriously. As I wrote in my book “<a href="https://kansaspress.ku.edu/9780700619627/">Peopling the Constitution</a>,” a healthy and vibrant constitutional democracy requires citizens who understand its promises and take some responsibility for making those promises a reality. </p>
<p>A resolution that simply makes a symbolic claim about federal law or about what the Constitution truly means, and does not order authorities to ignore or violate federal law, does not itself violate the Constitution. Such claims are a vital part of civic and constitutional debate in a healthy constitutional democracy. </p>
<p>But constitutional populism is a double-edged sword. The line between principled constitutional differences of opinion and partisan politics pretending to be a constitutional argument will not always be obvious or easy to discern. </p>
<p>When it substitutes partisanship for discernment, and assertion for argument, the constitutional counties movement undermines the very Constitution it purports to honor. </p>
<p><em>This story incorporates material from <a href="https://theconversation.com/sanctuaries-protecting-gun-rights-and-the-unborn-challenge-the-legitimacy-and-role-of-federal-law-122988">a previous story</a> in The Conversation by the author.</em></p><img src="https://counter.theconversation.com/content/206834/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Finn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
By declaring a ‘constitutional county,’ local leaders assert they are creating a refuge from anti- or unconstitutional actions undertaken by an overzealous state or federal authority.
John E. Finn, Professor Emeritus of Government, Wesleyan University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/203626
2023-04-20T12:40:42Z
2023-04-20T12:40:42Z
Supreme Court Justice Clarence Thomas moves to reverse the legacy of his predecessor, Thurgood Marshall
<figure><img src="https://images.theconversation.com/files/521925/original/file-20230419-28-6kaum8.png?ixlib=rb-1.1.0&rect=15%2C0%2C801%2C609&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Thurgood Marshall, left, had a very different view of the purpose of the Supreme Court than his successor, Clarence Thomas.</span> <span class="attribution"><span class="source">U.S. Supreme Court via Wikimedia Commons</span></span></figcaption></figure><p>As public attention focuses on Supreme Court Justice Clarence Thomas’ close <a href="https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow">personal and financial relationship</a> with a politically active conservative billionaire, the scrutiny is overlooking a key role Thomas has played for nearly three decades on the nation’s highest court.</p>
<p>Thomas’ predecessor on the court, Thurgood Marshall, was a <a href="https://www.oyez.org/justices/thurgood_marshall">civil rights lawyer before becoming a justice</a>. In 1991, in his final opinion before retiring after a quarter century on the court, Marshall warned that his fellow justices’ growing appetite to revisit – and reverse – prior decisions would ultimately “<a href="https://supreme.justia.com/cases/federal/us/501/808/#tab-opinion-1958871">squander the authority and legitimacy</a> of this Court as a protector of the powerless.” </p>
<p>His prediction has been quoted by Supreme Court decisions since, including a three-justice dissent from the June 2022 <a href="https://supreme.justia.com/cases/federal/us/597/19-1392/">Dobbs v. Jackson Women’s Health Organization</a> ruling that declared there was no constitutional right to reproductive choice and overturned Roe v. Wade.</p>
<p>In his concurrence with the majority decision in that case, Thomas declared his opposition to Marshall’s principle, lamenting that the court had not done more to pare back its prior work. “<a href="https://supreme.justia.com/cases/federal/us/597/19-1392/">In future cases</a>, we should reconsider all of this Court’s substantive due process precedents,” Thomas wrote – directly implicating Americans’ rights to sexual privacy and same-sex marriage.</p>
<p>Throughout Thomas’ tenure he has pushed the Supreme Court to revisit prior decisions that embraced robust rights for society’s most vulnerable, and to <a href="https://www.sup.org/books/title/?id=35050">replace Marshall’s vision</a> with one more amenable to the powerful than the powerless. And in writing my book tracing the lives and work of both justices, I have seen the fruits of this effort multiply over the past decade.</p>
<h2>A shield for those in need</h2>
<p>Few phrases could so aptly capture Thurgood Marshall’s vision of the court’s work as “protector of the powerless.” And few, if any, Americans have done as much to make that vision a reality. </p>
<p>Marshall’s work to advance Black citizenship is <a href="https://www.oyez.org/justices/thurgood_marshall">well known</a>, but he also fought for expanded rights for <a href="https://supreme.justia.com/cases/federal/us/417/188/">women</a> and the <a href="https://supreme.justia.com/cases/federal/us/397/471/">indigent</a>, the <a href="https://www.oyez.org/cases/1985/84-6263">accused</a> and <a href="https://www.oyez.org/cases/1973/72-1465">convicted</a>, <a href="https://supreme.justia.com/cases/federal/us/432/63/">adherents to marginalized religions</a> and <a href="https://www.oyez.org/cases/1967/510">those with unpopular viewpoints</a>.</p>
<p>At the root of Marshall’s jurisprudence was a hope that while law could be a powerful tool of oppression, it might also be a shield. </p>
<p>As he wrote in that final dissent, in <a href="https://supreme.justia.com/cases/federal/us/501/808/#tab-opinion-1958871">Payne v. Tennessee</a>, enforcement of constitutional rights “frequently requires this Court to rein in the forces of democratic politics,” to protect the powerless from the tyranny of the majority.</p>
<p>While his Payne dissent criticized the court for reversing itself, Marshall was no stranger to calling for reconsideration of established law. Marshall’s signature accomplishment as a lawyer in <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a> was to convince the court to overturn the doctrine of separate but equal that had emerged after the 1896 <a href="https://www.oyez.org/cases/1850-1900/163us537">Plessy v. Ferguson</a> decision. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three men in suits stand in front of the Supreme Court building." src="https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=473&fit=crop&dpr=1 600w, https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=473&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=473&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=594&fit=crop&dpr=1 754w, https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=594&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=594&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The three attorneys who won Brown v. Board of Education stand outside the Supreme Court after their victory: from left, George E.C. Hayes, Thurgood Marshall and James Nabrit Jr.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/washington-dc-attorneys-who-argued-the-case-against-news-photo/517387902">Bettmann via Getty Images</a></span>
</figcaption>
</figure>
<p>As a justice, Marshall argued passionately and repeatedly that the <a href="https://www.oyez.org/cases/1971/69-5030">death penalty violated the Eighth Amendment</a>’s prohibition on cruel and unusual punishment, leading to a brief period where it was considered unconstitutional.</p>
<p>The distinction between Marshall and Thomas is not really about whether the court should reverse past decisions but simply which ones. </p>
<p>While Marshall willed the court to become a “protector of the powerless,” Thomas has, I believe, argued not only to scale that vision back, but to advance the interests of the powerful.</p>
<h2>Power as a key factor</h2>
<p>While last summer’s abortion decision is an obvious example, Thomas has led the court’s assault on precedent in other areas as well. </p>
<p>For example, years before the court invalidated portions of the Voting Rights Act in <a href="https://www.oyez.org/cases/2012/12-96">Shelby County v. Holder</a>, Thomas had <a href="https://www.law.cornell.edu/supct/html/08-322.ZS.html">argued</a> that the lack of modern voting discrimination made the act unnecessary. </p>
<p>Similarly, recent decisions have followed Thomas’ <a href="https://www.oyez.org/cases/2018/17-1717">lead</a> in weakening the vitality of the First Amendment’s Establishment Clause, which fortifies the separation between church and state. </p>
<p>Thomas has even <a href="https://supreme.justia.com/cases/federal/us/586/17-1026/#tab-opinion-4057622">called</a> for the court to reconsider its ruling in <a href="https://supreme.justia.com/cases/federal/us/372/335/">Gideon v. Wainwright</a>, which established a constitutional right to a lawyer for indigent criminal defendants. </p>
<p>In each case, it is the powerless who stand to be most significantly affected. </p>
<p>Those in need of constitutional protection in Thomas’ view are more likely to be <a href="https://www.oyez.org/cases/2020/20-107">property owners</a>, <a href="https://www.oyez.org/cases/2003/02-1674">corporations making campaign contributions</a> or <a href="https://www.oyez.org/cases/2021/20-843">gun owners</a>.</p>
<h2>On affirmative action</h2>
<p>Perhaps no topic better captures the distinction between the two men’s views than affirmative action, which the court is considering in a pair of cases from <a href="https://www.oyez.org/cases/2022/20-1199">Harvard</a> and the <a href="https://www.oyez.org/cases/2022/21-707">University of North Carolina</a> to be decided this term.</p>
<p>The distrust of government that fuels many of Thomas’ perspectives is never more personal than in cases about the use of race in college admissions. He has railed against affirmative action, saying it brands Black people in prominent positions with a “<a href="https://supreme.justia.com/cases/federal/us/539/306/#tab-opinion-1961291">stigma</a>” about “whether their skin color played a part in their advancement.”</p>
<p>Indeed, Thomas claims his position requiring colorblindness is a <a href="https://supreme.justia.com/cases/federal/us/539/306/#tab-opinion-1961291">better path toward full Black citizenship</a>. He has made that claim even in situations where he knew it would result in more limited access to opportunities for Black students in the short term.</p>
<p>Marshall always looked at the issue from a different perspective, arguing that access to opportunities was essential not only for the Black students affected but for the nation at large. </p>
<p>“If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her,” Marshall wrote in 1977, “<a href="https://supreme.justia.com/cases/federal/us/438/265/#tab-opinion-1952757">we must be willing to take steps to open those doors</a>.”</p>
<p>It was access for the powerless that Marshall thought ought drive the thinking of the court.</p>
<p>But this summer, the court may finally embrace a different vision on affirmative action, coming again to a position Thomas has been advocating for decades. </p>
<p>That turn would be yet another reversal squandering Marshall’s vision of the court.</p><img src="https://counter.theconversation.com/content/203626/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Kiel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Throughout Thomas’ tenure on the court, he has pushed the Supreme Court to replace Marshall’s vision with one more amenable to the powerful than the powerless.
Daniel Kiel, FedEx Professor of Law; Author of The Transition: Interpreting Justice from Thurgood Marshall to Clarence Thomas, University of Memphis
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/200480
2023-02-28T13:26:15Z
2023-02-28T13:26:15Z
Mocking the police got an Ohio man arrested – and the Supreme Court ignored The Onion’s plea to define the limits of parody
<figure><img src="https://images.theconversation.com/files/512501/original/file-20230227-481-pgq3w7.jpeg?ixlib=rb-1.1.0&rect=6%2C3%2C2302%2C1277&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Satire can be dangerous.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/satirical-cartoonist-royalty-free-illustration/533153903?phrase=political%20satire&adppopup=true">DigitalVision Vectors/Getty Images</a></span></figcaption></figure><p>Can Americans be jailed for making fun of the government? Most would respond with a resounding “No, of course not! The First Amendment protects us from that.”</p>
<p>But <a href="https://www.cleveland.com/parma/2016/03/parma_man_charged_with_felony.html">Anthony Novak learned otherwise in March 2016</a>, after he created and posted a fake version of the Parma, Ohio, Police Department’s Facebook page. </p>
<p>He copied the department’s name and profile picture onto his satirical <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/251523/20230106102432958_22-293%20Brief%20in%20Opposition%20FINAL.pdf">Facebook page</a>, but unlike the official page, Novak’s was designated a “Community” page and displayed the slogan: “We no crime,” a parody of the department’s actual slogan, “We know crime.”</p>
<p>During its short life – the page was available for only about 12 hours – Novak published six posts, all parodies. One – echoing Jonathan Swift’s classic satire, “<a href="https://www.gutenberg.org/files/1080/1080-h/1080-h.htm">A Modest Proposal</a>,” that suggested Ireland’s poor sell their children as food for the rich - announced a new law forbidding residents to give “ANY HOMELESS person food, money, or shelter in our city for 90 days,” so that “the homeless population eventually leave our city due to starvation.”</p>
<p>Parma police promptly posted a notice on its official page, warning residents not to be fooled by Novak’s parody. Novak in turn posted that same notice on his own page, but also deleted the few posted reader comments opining that his page was fake. After police announced a criminal investigation, Novak took his page down entirely.</p>
<p>Novak asked the U.S. Supreme Court to rule in the resulting court case stemming from the police’s heavy-handed treatment of him. In late February 2023, the high court refused to take the case, forfeiting an opportunity to make a definitive statement about how far free speech protections extend when it comes to satire about government.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A post on a fake Facebook page for the Parma Police Department that says no one will be allowed to provide material help to homeless people." src="https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=641&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=641&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=641&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=805&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=805&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=805&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A screenshot from Anthony Novak’s fake Parma Police Department Facebook page.</span>
<span class="attribution"><a class="source" href="https://www.oyez.org/cases/1987/86-1278">City of Parma brief to U.S. Supreme Court</a></span>
</figcaption>
</figure>
<h2>First Amendment protection?</h2>
<p>Here’s how the case developed: Citing a state law making it a crime to use a computer <a href="https://codes.ohio.gov/ohio-revised-code/section-2909.04#:%7E:text=(B)%20No%20person%20shall%20knowingly,%2C%20commercial%2C%20or%20governmental%20operations">to disrupt police operations</a>, the police searched Novak’s apartment, seized his phone and laptop and jailed him for four days. A jury <a href="https://www.cleveland.com/court-justice/2016/08/jury_acquits_parma_man_who_mad.html">acquitted him of the felony charge in August 2016</a>.</p>
<p>Novak then <a href="https://www.cleveland.com/court-justice/2016/09/parma_man_sues_over_arrest_pro.html">filed a lawsuit against the police</a>, arguing that they had violated his First Amendment rights. </p>
<p>The law enforcement officials replied that they were entitled to “<a href="https://www.ncsl.org/civil-and-criminal-justice/qualified-immunity#:%7E:text=So%20qualified%20immunity%20protects%20states,to%20states%20and%20local%20governments.">qualified immunity</a>,” a legal doctrine protecting government employees from liability for conduct that has not been clearly established as unconstitutional. </p>
<p>A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, which has jurisdiction over cases from Ohio, Kentucky, Michigan and Tennessee, ruled that although parody is protected speech, copying the department’s official warning and deleting the comments questioning the page’s authenticity might not be. It concluded that the officers could have reasonably believed that some of Novak’s Facebook activity violated the criminal statute and <a href="https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0090p-06.pdf">was not protected by the First Amendment</a>. </p>
<p>Novak asked the Supreme Court to review his <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/238740/20220926094542129_Petition%20for%20Writ%20of%20Certiorari%20Novak%20v.%20Parma.pdf">case in September 2022.</a> He argued that police should not be allowed to arrest an individual solely for making fun of the government, yet “that is exactly what happened here. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.” Novak also invited the high court to reconsider the qualified immunity doctrine, especially in cases where protected speech is the basis for arresting someone.</p>
<p>The police response solemnly predicted that a ruling in Novak’s favor could lead to a virtual law enforcement Armageddon, confusing the public, eroding their trust in official social media sites, posing a threat to safety and “<a href="https://www.supremecourt.gov/DocketPDF/22/22-293/251523/20230106102432958_22-293%20Brief%20in%20Opposition%20FINAL.pdf">exacerbate[ing] the nationwide crisis police agencies are experiencing</a>.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An official Parma Police Department Facebook posting that says 'The Parma Police Department would like to warn the public that a fake Parma Police Facebook page has been created.'" src="https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Parma’s police department posted on its legitimate Facebook page a warning about the satirical page.</span>
<span class="attribution"><a class="source" href="https://www.facebook.com/261731697214075/posts/the-parma-police-department-would-like-to-warn-the-public-that-a-fake-parma-poli/949891288398109/">City of Parma Police Department Facebook page</a></span>
</figcaption>
</figure>
<h2>The Onion weighs in</h2>
<p>Novak’s petition was supported by amicus curiae briefs by politically diverse “friends of the court,” including the satirical news sites <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/242292/20221003125252896_35295545_1-22.10.03%20-%20Novak-Parma%20-%20Onion%20Amicus%20Brief.pdf">The Onion</a> and <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/244213/20221028092221628_Babylon%20Bee%20-%20Amicus%20Brief.pdf">The Babylon Bee</a>, who argued that their own survival depends on First Amendment protection for parody. </p>
<p>Acknowledging that its own writing has <a href="https://abcnews.go.com/International/times-people-fooled-onion/story?id=31444478">occasionally confused some readers</a>, The Onion pointed out that satire only works if it credibly mimics whatever it is parodying. The courts, they wrote, should not assume “that ordinary readers are less sophisticated and more humorless <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/242596/20221006144840674_Novak%20Parma%20Onion%20Amicus%20Brief.pdf">than they actually are</a>.” </p>
<p>The Onion concluded by declaring it “intends to continue its socially valuable role bringing the disinfectant of sunlight into the halls of power. And it would vastly prefer that sunlight not to be measured out to its writers in 15-minute increments in an exercise yard.”</p>
<p>But on Feb. 21, 2023, the Supreme Court chose to deny the petition for certiorari. The court <a href="https://www.supremecourt.gov/orders/courtorders/022123zor_g20h.pdf">would not hear the case.</a> </p>
<p>Coincidentally, this order was issued three days before the 35th anniversary of the release of the Supreme Court’s opinion in <a href="https://www.oyez.org/cases/1987/86-1278">Hustler Magazine, Inc. v. Falwell</a>. That major ruling established that the legal tradition protecting robust criticism of public figures and government operations must extend to satirical cartoons and parody, however “caustic” they may be. </p>
<p>From the 19th century caricaturist and editorial cartoonist <a href="https://www.illustrationhistory.org/artists/thomas-nast">Thomas Nast</a> to the creators of the animated <a href="https://www.theguardian.com/tv-and-radio/2023/feb/22/baseless-nonsense-meghan-and-harry-wont-sue-south-park-for-mocking-them">“South Park” TV show</a> and movie, satirists do their best work when they are free to skewer public officials and celebrities without fear of legal consequences. </p>
<p>And as then-Chief Justice William Rehnquist, the author of the Hustler opinion and <a href="https://www.cnn.com/2012/10/28/justice/rehnquist-legacy/index.html">himself a one-time editorial cartoonist</a>, wrote for the unanimous court, “From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screenshot of a fake Facebook page announcing the Parma Police Department's 'stay inside and catch up with the family day.'" src="https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=543&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=543&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=543&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=682&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=682&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=682&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One of the Facebook parody pages made by Anthony Novak, satirizing the Parma Police Department in Ohio.</span>
<span class="attribution"><a class="source" href="https://ij.org/wp-content/uploads/2022/09/Novak-Facebook-Post-02.png">Institute for Justice</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Violating American tradition</h2>
<p>The Hustler case, however, was a civil action for emotional distress filed by the Rev. Jerry Falwell after the magazine published an “ad parody” making fun of the nationally known fundamentalist minister. </p>
<p>By contrast, Novak was arrested, detained and criminally prosecuted for lampooning the police, who were seeking to deprive him of his liberty and, presumably, serve as a warning to others.</p>
<p>Using criminal statutes to silence satirists and parodists occurs in <a href="https://www.cnn.com/2023/01/29/europe/russian-teen-social-media-ukraine-war-intl-cmd/index.html">countries like Russia</a>, <a href="https://rsf.org/en/iranian-journalist-gets-long-jail-term-satirical-comments-about-mullah-regime">Iran</a> and <a href="https://www.amnesty.org/en/latest/news/2022/09/thailand-mock-fashion-show-protester-sentenced-to-two-years-for-insulting-the-monarchy/">Thailand</a>, where officials tolerate no disrespect. I believe that it is distinctly un-American. </p>
<p>Yet as recently as 2010, Justice Neil Gorsuch, then a judge for the 10th Circuit U.S. Court of Appeals, wrote that “the Supreme Court has yet to address <a href="https://casetext.com/case/mink-v-knox-3">how far the First Amendment goes in protecting parody</a>.” That was in a case challenging a prosecutor’s claim of qualified immunity after she approved the search, seizure and arrest of a parodist for allegedly violating the Colorado criminal libel statute. </p>
<p>Refusing to review Novak’s case is a missed opportunity for the Court to consider and decide once and for all whether the First Amendment protects satire and parody. And that’s no joke.</p><img src="https://counter.theconversation.com/content/200480/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane E. Kirtley was executive director of the Reporters Committee for Freedom of the Press from 1985-1999, and during that time authored an amicus brief before the Supreme Court in the Hustler Magazine, Inc. v. Falwell case. She received no funding for this brief from any of the parties to the case. In 2018, as Silha Professor and Director of the Silha Center, she co-curated a symposium, State of Our Satirical Union, at the University of Minnesota, marking the 30th Anniversary of the Hustler Magazine, Inc. v. Falwell case. The event was sponsored by:
The University of Minnesota's Silha Center for the Study of Media Ethics and Law,
The Association of American Editorial Cartoonists,
The Minnesota Journalism Center,
The Hubbard School of Journalism and Mass Communication, and
The Herb Block Foundation.</span></em></p>
A satirist posted a parody of a police Facebook page. He was arrested and jailed for four days. How far do free speech protections extend when it comes to satire about government?
Jane E. Kirtley, Professor of Media Ethics and Law, University of Minnesota
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/198485
2023-01-30T13:14:09Z
2023-01-30T13:14:09Z
Sheriffs who see themselves as ultimate defenders of the Constitution are especially worried about gun rights
<figure><img src="https://images.theconversation.com/files/506480/original/file-20230125-6572-dsyl9r.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4684%2C3561&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Scott Jenkins, sheriff of Culpeper County, Va., is one of a large number of so-called 'constitutional sheriffs' in the U.S.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/culpeper-county-sheriff-scott-jenkins-speaks-to-afp-during-news-photo/1194254278">Eva Hambach/AFP via Getty Images</a></span></figcaption></figure><p>A gun control law signed by Gov. J.B. Pritzker of Illinois in January 2023 immediately faced <a href="https://abcnews.go.com/US/74-illinois-sheriffs-departments-vow-defy-new-state/story?id=96384352">opposition</a> from a group key to the law’s enforcement: sheriffs. They are county-level, locally elected public officials who run jails, provide courthouse security, and, in many counties, are the primary providers of law enforcement services. </p>
<p>In Illinois, and around the nation, some sheriffs also view themselves as the <a href="https://www.themarshallproject.org/records/2587-constitutional-sheriffs-and-peace-officers-association">ultimate defenders of the U.S. Constitution</a> and its rights – even though there’s no law and no history giving them that position.</p>
<p>In Illinois, <a href="https://www.wqad.com/article/news/politics/illinois-politics/illinois-sheriffs-against-assault-weapons-ban/526-368230a6-e4b7-45ec-916a-935d95f81cfe">approximately 80 of the state’s 102 sheriffs</a> oppose the <a href="https://www.illinois.gov/news/press-release.25890.html">Protect Illinois Communities Act</a>, a law that banned the sale and distribution of assault weapons, high-capacity magazines and switches that convert firearms to assault weapons. <a href="https://isp.illinois.gov/Home/HB5471Faqs">Anyone who owned those items before the law passed</a> in January 2023 must register them with the state. Most of the sheriffs who opposed it issued statements saying they believe the law violates the <a href="https://constitutioncenter.org/the-constitution/amendments/amendment-ii">Second Amendment</a> to the U.S. Constitution, and therefore they will not be enforcing it. </p>
<p><a href="https://www.browncoil.org/sheriff/">Sheriff Justin Oliver of Brown County</a>, for example, posted a public statement <a href="https://www.facebook.com/104436839001412/photos/a.104440082334421/161215966656832/">on the office’s Facebook page, on letterhead</a>. The statement says he swore to protect the rights provided in the Constitution and he believes that the act violates the Second Amendment, so “as chief law enforcement officer for Brown County … neither myself nor my officers will be checking to ensure that lawful gun owners register their weapons with the State, nor will we be arresting or housing law abiding individuals.”</p>
<p><a href="https://www.usatoday.com/in-depth/news/investigations/2022/11/03/sheriffs-elected-survey-political-views-police-immigration/10627451002/">In our research surveying sheriffs, in 2012 and again in 2021</a>, we have found that sheriffs are far more likely to support looser gun laws than the public at large. And we have also found that that perspective is linked to some sheriffs’ views that they are the highest level of defenders of the U.S. Constitution and Americans’ constitutional rights.</p>
<p><iframe id="kYKW7" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/kYKW7/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>A last line of defense?</h2>
<p>We traced sheriffs’ views of themselves as ultimate protectors of the Constitution to the <a href="https://web.archive.org/web/20230125183042/https://cspoa.org/">Constitutional Sheriffs and Peace Officers Association</a>, a political organization founded in 2009 by Richard Mack, a former sheriff of Graham County, Arizona. </p>
<p>Mack first gained notoriety in right-wing circles as a plaintiff in <a href="https://www.oyez.org/cases/1996/95-1478">Printz v. United States</a>, decided by the U.S. Supreme Court in 1996. In its ruling, the court declared a portion of the 1993 Brady Handgun Violence Prevention Act unconstitutional. The ruling said the law’s requirement for state and local officials to perform background checks on prospective gun buyers violated the <a href="https://www.law.cornell.edu/constitution/tenth_amendment">10th Amendment</a>, which limits how much influence the federal government can have on state and local governments.</p>
<p>The association, which Mack founded after former President Barack Obama’s election, calls itself a network of (self-described) “<a href="https://www.usatoday.com/in-depth/news/investigations/2022/11/03/county-sheriff-constitutional-power-richard-mack-oath-keepers/10627256002/">constitutional sheriffs</a>” that encourages sheriffs to <a href="https://www.adl.org/resources/report/constitutional-sheriffs-and-peace-officers-association-cspoa-and-richard-mack-how">refuse to enforce laws</a> they believe to be unconstitutional and to resist overreach by the federal government.</p>
<p>Its key idea dates back further, though, to <a href="https://www.splcenter.org/fighting-hate/intelligence-report/1998/hate-group-expert-daniel-levitas-discusses-posse-comitatus-christian-identity-movement-and">Posse Comitatus</a>. That was a white supremacist, antisemitic right-wing movement in the 1970s that believed as part of its <a href="https://us.macmillan.com/books/9780312320416/theterroristnextdoor">conspiratorial ideology</a> that the county sheriff held the ultimate government authority in the United States. This view is <a href="https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2022/09/Constitutional-Sheriffs-Fact-Sheet.pdf">not historically accurate, nor is it found in the U.S. Constitution</a>.</p>
<p>Nevertheless, Mack and his organization have spent more than a decade actively recruiting and training sheriffs to believe that their office is more powerful than the president, and that they can reject laws they believe to be unconstitutional. Mack told NPR in 2019 that sheriffs “<a href="https://wamu.org/story/19/02/21/when-sheriffs-wont-enforce-the-law/">have the responsibility to interpose</a> – it’s the ‘doctrine of interposition’ – whenever anybody is trying to diminish or violate the individual rights of our counties.”</p>
<p><iframe id="t1bMc" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/t1bMc/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Their own views</h2>
<p>This movement of so-called “constitutional sheriffs” has been particularly successful at recruiting more sheriffs into its ideology around issues of guns, immigration and <a href="https://www.themarshallproject.org/2020/05/18/the-rise-of-the-anti-lockdown-sheriffs">COVID-related policies</a>. </p>
<p>The resistance in Illinois is not the first effort of sheriffs to resist gun control. When Obama pushed for <a href="https://obamawhitehouse.archives.gov/issues/preventing-gun-violence">national gun control legislation</a> after the 2012 Sandy Hook Elementary School shooting in Newtown, Connecticut, Mack’s group recruited more than 450 sheriffs and 19 state sheriff associations to <a href="https://chestertownspy.org/2014/08/21/gun-wars-wicomico-co-sheriff-among-many-who-wont-enforce-some-gun-bans/">oppose federal gun control efforts</a>.</p>
<p>Similarly, when the state of Washington passed a <a href="https://www.washingtonvotes.org/2021-HB-1054">gun safety measure</a> in 2018, sheriffs statewide opposed the measure and <a href="https://thehill.com/homenews/state-watch/429460-at-least-13-county-sheriffs-in-washington-refusing-to-enforce-states-new/">threatened not to enforce it</a> because they said it violated people’s constitutional rights. </p>
<p>And in Illinois, its followers continue to stand in the way of the law, even though they lack any legal justification for doing so. <a href="https://www.foxnews.com/politics/illinois-governor-slams-sheriffs-vowed-defy-gun-ban-says-law-protects-school-kids-churchgoers">State</a> and <a href="https://casten.house.gov/media/press-releases/casten-ramirez-garcia-krishnamoorthi-quigley-foster-call-sheriff-mendrick">federal officials</a> have called on Illinois sheriffs to enforce the law, as their oaths of office require. But many sheriffs continue to say they get to determine which laws to enforce, even if their <a href="https://abc7chicago.com/dupage-county-sheriff-illinois-assault-weapons-ban-board-james-mendrick/12731267/">constituents disagree</a>.</p><img src="https://counter.theconversation.com/content/198485/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mirya Holman collaborates with the Marshall Project to engage in research on sheriffs and their attitudes. As a part of that project, the Marshall Foundation paid for research costs by purchasing a contact list for sheriffs.</span></em></p><p class="fine-print"><em><span>Emily Farris collaborates with the Marshall Project to engage in research on sheriffs and their attitudes. As a part of that project, the Marshall Foundation paid for research costs by purchasing a contact list for sheriffs.</span></em></p>
A significant number of county sheriffs across the US have a particular – and false – view of their role in defending Americans’ constitutional rights.
Mirya Holman, Associate Professor of Political Science, Tulane University
Emily Farris, Associate Professor of Political Science, Texas Christian University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/182379
2022-05-04T00:03:07Z
2022-05-04T00:03:07Z
Abortion right guaranteed by Roe will be replaced by state power if the Supreme Court adopts the leaked Alito opinion
<figure><img src="https://images.theconversation.com/files/461042/original/file-20220503-11804-bdaw6v.jpeg?ixlib=rb-1.1.0&rect=18%2C9%2C6062%2C4029&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Abortion rights battles look set to go from the Supreme Court to statehouses.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-choice-protester-left-and-an-anti-abortion-protesters-news-photo/1240412950?adppopup=true">Amanda Andrade-Rhoades/For The Washington Post via Getty Images</a></span></figcaption></figure><p>Draft opinions circulated among Supreme Court justices are meant to allow for deliberation and editing before a final version is released. They are not the last word, nor ready for public reaction.</p>
<p>But on the evening of May 2, 2022, <a href="https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473">Politico published</a> a bombshell: a leaked <a href="https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf">draft of an opinion</a>, written by Justice Samuel Alito, that overturns <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a> and <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a> – the two rulings that gave constitutional protection to the abortion right. </p>
<p>While the final text of the opinion in the case of <a href="https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/">Dobbs v. Jackson</a> may be somewhat different, the meaning of the current draft is clear. First, the powers of individual states to determine whether abortions are legally available are increasing. Second, the Supreme Court’s barriers for overruling a precedent are decreasing.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of men and women protesting near a city building in the winter, holdings signs that say 'Love life' and 'Everyone should have a birthday.'" src="https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=410&fit=crop&dpr=1 600w, https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=410&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=410&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=515&fit=crop&dpr=1 754w, https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=515&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/461051/original/file-20220503-24-7oem2e.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=515&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An estimated 5,000 people marched around the Minnesota Capitol building in St. Paul on Jan. 22, 1973, protesting the U.S. Supreme Court’s Roe v. Wade decision against state laws that criminalized abortion.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MINNEAPOLISANTIABORTIONRALLY/4483f8b574e4da11af9f0014c2589dfb/photo?Query=Roe%20V.%20Wade&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=428&currentItemNo=0">AP photo</a></span>
</figcaption>
</figure>
<h2>State by state voting</h2>
<p>Under American constitutional democracy, many decisions are made by majority rule, accomplished through elections. This applies to routine regulations like drug laws or speed limits. </p>
<p>But other decisions are beyond the reach of majorities and protected by individual rights guaranteed under the Constitution. Under Roe v. Wade, the abortion decision fell into the category of rights. </p>
<p>But the leaked draft opinion moves abortion from being a constitutionally guaranteed right to an act whose legality is determined by state laws. </p>
<p>That means it falls under majority rule, determined by the citizens of each state through their elected state legislators. Alito is saying that when the Constitution does not recognize a clear right, the people must elect representatives that share their view rather than appeal to courts.</p>
<p>The Alito draft repeats its core holding several times: The right recognized in Roe v. Wade “has no basis in the Constitution’s text or in our Nation’s history.”</p>
<p>The court that decided Roe, Alito writes, “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves to the people.” Therefore, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”</p>
<h2>Is there a constitutional right?</h2>
<p>Roe in 1973 and Casey in 1992 determined the right to an abortion was found in a combination of protections recognized by the Constitution. </p>
<p>These include the <a href="https://constitution.congress.gov/browse/amendment-4/">Fourth Amendment’s</a> protections against state intrusion, and <a href="https://constitution.congress.gov/browse/amendment-9/">the Ninth Amendment’s</a> recognition of non-enumerated rights, or “others retained by the people.” The most prominent justification in those rulings is <a href="https://constitution.congress.gov/browse/amendment-14/">the Fourteenth Amendment’s</a> protection against deprivation of “life, liberty, or property, without due process of law.” Roe grounded the abortion right in a broader right of privacy, while Casey added an emphasis on reproductive autonomy and bodily integrity.</p>
<p>In Alito’s view, Roe “was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” His draft concludes that Roe’s “message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”</p>
<p>The standard the Supreme Court has employed to recognize a right not specifically stated in the Constitution’s text has been whether it is <a href="https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701">“deeply rooted in this Nation’s history and tradition.”</a> Alito’s draft demands historical evidence of political assertions, judicial rulings or public laws that demonstrate the existence of the right.</p>
<p>But Alito’s review of the history argues that the opposite is the case: There is no evidence of an established right and there are, instead, many examples of public restrictions. A 30-page appendix lists all of the state laws outlawing or regulating abortion passed between 1825 and 1952. He concludes that “until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”</p>
<p>An important part of the draft ruling focuses on the question of who has the power to determine <a href="https://theconversation.com/supreme-court-could-redefine-when-a-fetus-becomes-a-person-upholding-abortion-limits-while-preserving-the-privacy-right-under-roe-v-wade-169236">prevailing social facts</a> as well as protected legal principles. </p>
<p>At what point a fetus becomes a person – and as such a holder of rights – is a long-standing dispute at the heart of the abortion debate. This is a crucial aspect of the conflict because a woman’s rights to autonomy and liberty may be limited if other rights held by other persons are involved. But it has not been clear who has the power to make that determination.</p>
<p>Roe – 50 years ago – and Casey – 30 years ago – said that the <a href="https://www.pewresearch.org/religion/2013/01/16/a-history-of-key-abortion-rulings-of-the-us-supreme-court/">court should set a national standard</a> for recognizing fetal personhood. Casey established <a href="https://www.washingtonpost.com/business/fetal-viability-and-the-fate-of-abortion-laws-in-us/2022/05/03/d83c4440-cad5-11ec-b7ee-74f09d827ca6_story.html">viability at around 24 weeks</a>, or the point at which fetal life is deemed to be self-sustaining outside the womb, as the point at which a state could recognize fetal rights and therefore restrict abortion. </p>
<p>But Alito argues that this specific standard “makes no sense” and that the previous rulings “provided no principled defense of the viability line.”</p>
<p>So Alito puts the decision about when a fetus becomes a person clearly in the hands of the elected representatives of each state: “In some states, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other states may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A dark-haired man in a suit, with wire glasses, looking thoughtful." src="https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=381&fit=crop&dpr=1 600w, https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=381&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=381&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=478&fit=crop&dpr=1 754w, https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=478&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/461058/original/file-20220503-19-l5o2zt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=478&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">At his confirmation hearings in 2006 on Capitol Hill, U.S. Supreme Court nominee Judge Samuel Alito declined to call Roe v. Wade ‘settled law.’</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-nominee-judge-samuel-alito-answers-questions-news-photo/56578425?adppopup=true">David Hume Kennerly/Getty Images</a></span>
</figcaption>
</figure>
<h2>A weakened standard for overruling precedent</h2>
<p>The Supreme Court is reluctant to discard its previous rulings, <a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052">following precedent</a> unless there is a substantial reason to repudiate the old reasoning.</p>
<p>For <a href="https://supreme.justia.com/cases/federal/us/505/833/">30 years, the Casey ruling upholding Roe has been considered the “precedent on precedent</a>.” It established <a href="https://www.everycrsreport.com/reports/RL33172.html">four considerations for the legitimate discarding of a previous decision</a>: The ruling misunderstood the Constitution; it proved to be unworkable in practice; new facts had emerged; and whether or not citizens had shaped their life decisions grounded in the ruling, what is known as “reliance interests.” </p>
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<p>In overturning Roe, the draft opinion offers a new and weaker standard for overturning precedent. The most significant change is what Alito calls “the quality of reasoning.” Rulings that “looked like legislation,” that offered faulty history, or created standards unjustified by the Constitution can be overruled under Alito’s reasoning. This new standard leads to the draft’s conclusion that precedent “does not compel unending adherence to Roe’s abuse of judicial authority.”</p>
<p>Alito’s draft reverses Roe by weakening the law of precedent. This is likely to open up many other rulings for potential reversal, including on same-sex marriage and affirmative action.</p>
<h2>A future of state-level conflict</h2>
<p>We know that state legislatures will gain power if the final ruling resembles the leaked draft. What we don’t know is what each of them will do.</p>
<p>Some analyses estimate <a href="https://www.nytimes.com/2022/05/03/upshot/abortion-united-states-roe-wade.html">the number of states</a> that will outlaw abortion at around 25. That would effectively divide the nation evenly into abortion rights states and anti-abortion rights states. </p>
<p>This will no doubt increase the regional polarization and geographical sorting of Americans by culture and ideology. It will also likely create long-term conflict in states that are divided by ideology and partisanship – including large states like Florida, Pennsylvania and Ohio. It sets up conditions for this one issue to dominate state elections and partisan battles for years to come.</p>
<p>Some states will likely attempt to <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4032931">restrict their own citizens from traveling</a>, and abortion rights states will attempt to aid other citizens to travel to their territory. </p>
<p>How the Supreme Court will react to such laws is unclear. But what is clear is that the Alito draft will return power over abortion and potentially other issues to the state level, raising the stakes and the bitterness of local democracy throughout the United States.</p><img src="https://counter.theconversation.com/content/182379/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
If the Supreme Court guts landmark rulings that established a constitutional right to abortion, the legal struggle will shift to statehouses and state courtrooms.
Morgan Marietta, Associate Professor of Political Science, UMass Lowell
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/162200
2021-06-16T16:08:01Z
2021-06-16T16:08:01Z
How Israel’s missing constitution deepens divisions between Jews and with Arabs
<figure><img src="https://images.theconversation.com/files/406180/original/file-20210614-125373-544ha5.jpg?ixlib=rb-1.1.0&rect=0%2C23%2C5130%2C3615&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Without a formal constitution, Israelis disagree on such basic issues as whether Israel is a Jewish state.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/right-wing-israeli-supporters-of-prime-minister-benjamin-news-photo/1233254116?adppopup=true">Jack Guez/AFP via Getty Images</a></span></figcaption></figure><p><a href="https://www.nytimes.com/2021/06/15/world/middleeast/israel-coalition-hamas.html">Renewed fighting</a> has erupted again between Israel and the Palestinian group Hamas, endangering a ceasefire instituted after an <a href="https://www.bbc.com/news/world-middle-east-57081848">11-day war in May</a>. </p>
<p>The conflict in Gaza is an early test of Israel’s <a href="https://www.pbs.org/newshour/show/a-look-at-the-israeli-coalition-looking-to-strip-netanyahu-of-power">new coalition government</a>. Recently, parties across the political spectrum united to remove Israel’s scandal-plagued prime minister Benjamin Netanyahu from power, ending a two-year political crisis – though he may maneuver his way back into power. </p>
<p>While conducting dissertation research on the relationship between religion and state in Israel, I traced Israel’s chronic instability to what I believe is its core: Unlike most countries, <a href="https://m.knesset.gov.il/en/activity/pages/basiclaws.aspx">Israel does not have a constitution</a>. </p>
<h2>Why constitutions matter</h2>
<p>Constitutions <a href="https://www.cambridge.org/core/journals/american-political-science-review/article/abs/constitutional-origins-and-liberal-democracy-a-global-analysis-19002015/AD138F031B07119CBEF099B8879FB888">constrain the power of governments</a> by defining in precise terms who has what rights, what rights form the basis of legal decisions and how political power is dispersed among institutions.</p>
<p>Israel is governed by a changeable, ever-growing body of what are called “basic laws” – “Chukei Ha-Yesod” in Hebrew. The basic laws were passed individually over the past 73 years, beginning with one two-page law that described the makeup of Israel’s legislature, the Knesset, and citizens’ voting rights. </p>
<p>Today, Israel is governed by a 124-page collection of 13 laws. Although the basic laws outline a vision of democratic rights, they remain, to paraphrase the late legal scholar Ruth Gavison, “unanchored.” </p>
<p>This allows Israel to <a href="https://press.huc.edu/defining-israel-the-jewish-state-democracy-and-the-law-reviewed/">maintain an ambiguous stance</a> on key issues central to a nation’s identity. </p>
<p>First, Israel has never officially defined the <a href="https://www.cambridge.org/us/academic/subjects/politics-international-relations/middle-east-government-politics-and-policy/between-state-and-synagogue-secularization-contemporary-israel?format=PB">relationship between religion and state</a>. Is Israel founded on the Jewish religion? Or is it a secular state that is home to Jews, with non-Jewish minorities? That question remains unanswered.</p>
<p>Nor has the country fully determined whether Arab Israelis and other <a href="https://www.tandfonline.com/doi/abs/10.1080/14650045.2011.562944">non-Jewish citizens</a> – who make up about a quarter of its 9 million people – enjoy the same rights as their Jewish counterparts.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/406254/original/file-20210614-72954-5jemdl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/406254/original/file-20210614-72954-5jemdl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/406254/original/file-20210614-72954-5jemdl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/406254/original/file-20210614-72954-5jemdl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/406254/original/file-20210614-72954-5jemdl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/406254/original/file-20210614-72954-5jemdl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/406254/original/file-20210614-72954-5jemdl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/406254/original/file-20210614-72954-5jemdl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">When David ben Gurion became the first prime minister of Israel in 1948, the country had no basic laws.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/david-ben-gurion-first-prime-minister-of-israel-1948-news-photo/566465999?adppopup=true">Universal History Archive/Universal Images Group via Getty Image</a></span>
</figcaption>
</figure>
<p>Israel also <a href="https://heinonline.org/HOL/Page?handle=hein.journals/hascq39&div=15&g_sent=1&casa_token=aemNY4_AOrYAAAAA:YyZITcqo1btDCFbdITwR3s8feHnu6eI6V0_zmtzUF5pLI0QA_hY-EF4ggTaV11d6AqA9P58g&collection=journals">waffles on the relative</a> power of the legislature and judiciary. </p>
<p>The Israeli Supreme Court has used this constitutional ambiguity to retroactively subject new legislation to judicial review. Meanwhile, legislators in the Knesset have <a href="https://forward.com/news/breaking-news/308355/ayelet-shaked-plans-to-rein-in-israel-supreme-court/">tried to weaken</a> the court’s authority over their lawmaking. Incoming Prime Minister Naftali Bennett’s Yamina party, for example, has previously attempted to pass legislation <a href="https://www.timesofisrael.com/court-override-bill-dead-in-the-water-as-haredim-liberman-rule-out-support/">allowing the Knesset to override</a> judicial decisions.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/406188/original/file-20210614-126247-scn6xz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A shouting man is pushed out of legislative chamber" src="https://images.theconversation.com/files/406188/original/file-20210614-126247-scn6xz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/406188/original/file-20210614-126247-scn6xz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/406188/original/file-20210614-126247-scn6xz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/406188/original/file-20210614-126247-scn6xz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/406188/original/file-20210614-126247-scn6xz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/406188/original/file-20210614-126247-scn6xz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/406188/original/file-20210614-126247-scn6xz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Angry Israeli lawmakers shout at incoming Prime Minister Naftali Bennett in the Knesset, Israel’s Parliament, June 13, 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/man-is-led-away-after-holding-up-signs-and-shouting-at-news-photo/1233449333?adppopup=true">Marcus Yam / Los Angeles Times via Getty Images</a></span>
</figcaption>
</figure>
<p>Even Israel’s official borders aren’t defined. Israel maintains it has <a href="https://foreignpolicy.com/2020/06/08/netanyahu-annexation-palestinians-stop-calling-israel-a-jewish-democracy/">sovereignty over the West Bank</a> territory, but officially the West Bank is not part of Israel. So Palestinians living in the West Bank <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2019&context=jil">do not have rights</a> under Israeli law, because they are not Israeli citizens. </p>
<p>Palestinians there live under Israeli military rule, subject to <a href="https://www.theguardian.com/world/2019/dec/17/israeli-military-law-stifles-palestinian-rights-watchdog-says">military law</a> that is unconstrained by any constitutional bounds, alongside Israeli settlers who are subject to Israeli law. </p>
<p>This ambiguity led Yuli Tamir, an Israeli politician and academic, <a href="https://www.haaretz.com/israel-news/.premium.HIGHLIGHT-forget-about-jewish-or-democratic-is-israel-even-an-actual-country-1.9224997">to quip</a>, “Is Israel even an actual country?”</p>
<h2>A young democracy</h2>
<p>Israel is not the only parliamentary democracy without a formal constitution. The United Kingdom doesn’t have one either.</p>
<p>But <a href="https://www.jstor.org/stable/764688?casa_token=p1DnWvmVuJMAAAAA%3AvTIrqkIHAqbez7SXh19N7aNW2pcsa6BvVimHXbuy3BIt7cA195WwMu7nkggkBYsBWXs908bjVUK0H6wF5Ln2WeuenaDOLlQpQvzzvI3NG_Ta3blTSA&seq=1#metadata_info_tab_contents">the United Kingdom has a large body of laws</a> accumulated over centuries of political conflict. This well-established common-law tradition, which served as one of the sources for the United States’ own Constitution, is the legal basis of governance in the U.K. </p>
<p>Israel, founded in 1948, does not have such a history to fall back on. And many of its problems are common to relatively young democracies. <a href="https://oxford.universitypressscholarship.com/view/10.1093/oso/9780198826927.001.0001/oso-9780198826927">Weak, fractured party systems</a> and <a href="https://www.tandfonline.com/doi/pdf/10.1080/13510347.2011.619777?casa_token=0h2VEYPRN_QAAAAA:pxKnhO2vTyDq9r-JcBkISNFzZ-yuECa_lHWdBUE6n5gPnoY5-GtkuUKUmOYqjLG7rq6jPirA6CI">competition between ethnic and religious groups</a> are hallmarks of the democratization process. The early U.S., for example, grappled with many such problems, too. </p>
<p>But rule of law generally prevails in the U.S., and democracy progresses, because both the courts and legislators defer to a central document: the U.S. Constitution. </p>
<p>The Constitution outlines the powers of each branch of government, as well as procedures for amendment. The U.S. Bill of Rights – the first 10 amendments – guarantees specific rights of citizens.</p>
<h2>Let’s go logrolling</h2>
<p>The <a href="https://www.euppublishing.com/doi/abs/10.3366/hlps.2019.0215">Netanyahu government</a> attempted to settle some long-running disagreements about Israel’s identity during his most recent term in office – though not necessarily with an eye toward strengthening liberal democracy.</p>
<p>In 2018, the Knesset passed a basic law naming Israel the “nation-state of the Jewish people.” <a href="https://en.idi.org.il/articles/24241">This effort</a> to settle a central identity question pleased almost nobody. Left-wing and Arab Israelis objected to the tacit downgrading of Arabs to second-class status, while religious Jewish groups found the law too secular. </p>
<p>Divisive political gambles like this became commonplace in the late stages of Netanyahu’s rule. As coalition politics became increasingly fragile, Netanyahu spiraled into what political scientists call “<a href="http://webhome.auburn.edu/%7Ejohnspm/gloss/logrolling.phtml">logrolling</a>”: using policy trade-offs among parties in exchange for political support. </p>
<p>This was especially the case in regard to religion, as Netanyahu bartered policies appeasing the Orthodox Jewish groups that kept him in power. In 2018, for example, Netanyahu’s coalition <a href="https://www.washingtonpost.com/world/israels-battle-between-religious-and-secular-jews-escalates-with-ban-on-saturday-shopping/2018/02/28/bb13f43c-164b-11e8-930c-45838ad0d77a_story.html">passed new legislation enforcing</a> previously symbolic laws such as restrictions on businesses operating on the sabbath. It was a punishing move for cities like Tel Aviv with large secular populations.</p>
<p>Similarly, Netanyahu’s policy of encouraging Jewish settlers to move to the West Bank and other occupied Palestinian territories and build cities was more political strategy than religious fervor. His aggressive support for Jewish nationalism <a href="https://abcnews.go.com/International/uprisings-palestinians-israeli-citizenship/story?id=77741627">increasingly alienated</a> Israel’s Arab population, who have few legal avenues to challenge their treatment.</p>
<p>[<em>Over 100,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>Minorities are mistreated and even subjugated in countries that have constitutions, too. But constitutions give them legal pathways to challenge that discrimination. </p>
<p>The Netanyahu era showed that strategic politicians can exploit Israel’s constitutional vacuum to maintain power well beyond their popular mandate. These destabilizing issues will continue to fester as a new government takes the reins in Israel.</p><img src="https://counter.theconversation.com/content/162200/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brendan Szendro does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Governed by a changeable body of ‘basic laws,’ Israel never settled basic questions like the rights of religious minorities. These destabilizing issues will continue to fester under a new government.
Brendan Szendro, PhD Candidate, Binghamton University, State University of New York
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/159617
2021-05-04T12:14:58Z
2021-05-04T12:14:58Z
How qualified immunity protects police officers accused of wrongdoing
<figure><img src="https://images.theconversation.com/files/397657/original/file-20210428-17-zb3vej.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C2096%2C1178&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Body camera footage shows a Virginia police officer pepper-spraying a Black U.S. Army officer during a traffic stop in December 2020.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ArmyOfficerTrafficStopLawsuit/cb4ac641a5444dd59a64f7cfdf1355e3/photo">Windsor Police via AP</a></span></figcaption></figure><p>When police officers kill people without apparent justification, those officers may face both criminal charges – as in the case of Derek Chauvin, <a href="https://theconversation.com/why-this-trial-was-different-experts-react-to-guilty-verdict-for-derek-chauvin-159420">convicted of murdering George Floyd</a> in Minneapolis in 2020 – and civil lawsuits.</p>
<p>Floyd’s family filed a federal civil rights suit against Chauvin and three other officers, alleging they used “<a href="https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/15/891221766/floyd-family-attorneys-to-announce-a-civil-lawsuit-against-minneapolis-and-polic">unjustified, excessive, illegal and deadly force</a>” while detaining him. The suit also named the city of Minneapolis, alleging city officials did not have good policies about using force and didn’t train the officers properly.</p>
<p>In March 2021, as Chauvin’s criminal trial was set to begin, the city settled the lawsuit – agreeing to <a href="https://abcnews.go.com/US/27-million-settlement-george-floyds-family-approved-minneapolis/story?id=76419755">pay US$27 million to Floyd’s family</a> – but Chauvin and the other officers paid nothing. </p>
<p>That’s because, as a Minneapolis police officer at the time he killed Floyd, Chauvin was legally immune from civil lawsuits seeking damages for his actions. The principle is called “qualified immunity,” and it protects government workers from being sued for things they do in their official roles at work.</p>
<h2>A brief history of immunity</h2>
<p>The U.S. legal system has two types of immunity. The first is absolute immunity, which has a long history dating back to <a href="http://dx.doi.org/10.31703/glsr.2020(V-II).01">judges’ rulings under English common law</a> from the 1700s. This type of immunity protects <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/touro24&div=29&id=&page=">judges and lawmakers from being sued</a> by people who suffer financially from their rulings or policy decisions. Therefore, judges and lawmakers are free to make the best decisions for society as a whole without worrying that anyone who is somehow harmed by their choices could come back and sue them for damages.</p>
<p>The second kind of immunity, the one that affects police officers, stems from the <a href="https://www.fjc.gov/history/timeline/civil-rights-act-1871">Civil Rights Act of 1871</a>. That law allowed an officer to be sued for official acts only if he knew, or should have known, that his action would violate a person’s constitutional rights, or if he intended to deprive someone of their constitutional rights. This liability depended on the officer’s internal state of mind, which is <a href="https://constitutioncenter.org/interactive-constitution/blog/looking-back-at-the-ku-klux-klan-act">notoriously hard to prove in court</a>.</p>
<p>In 1967, the U.S. Supreme Court changed that focus. The change came about in a ruling that an officer <a href="https://supreme.justia.com/cases/federal/us/386/547/">could not be sued for false arrest</a> in the arrest of a person who was later found not to be guilty of a crime. The court did not look at the officer’s state of mind. Instead, the court compared the officer’s actions with those that would be taken by a <a href="https://supreme.justia.com/cases/federal/us/457/800/">reasonable public official</a> in the same circumstances. If the officer’s actions were reasonable, then immunity was granted.</p>
<p>Over time, this immunity has been expanded by the courts. It now <a href="https://theappeal.org/the-lab/explainers/qualified-immunity-explained/">extends to cover other misdeeds</a>, such as infringement of a suspect’s civil rights during the exercise of a police officer’s authority, <a href="https://www.law.cornell.edu/wex/qualified_immunity">whether those misdeeds were intentional or not</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/397659/original/file-20210428-23-19frqyw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Police in protective gear spray chemical agents at demonstrators" src="https://images.theconversation.com/files/397659/original/file-20210428-23-19frqyw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/397659/original/file-20210428-23-19frqyw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=320&fit=crop&dpr=1 600w, https://images.theconversation.com/files/397659/original/file-20210428-23-19frqyw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=320&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/397659/original/file-20210428-23-19frqyw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=320&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/397659/original/file-20210428-23-19frqyw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=403&fit=crop&dpr=1 754w, https://images.theconversation.com/files/397659/original/file-20210428-23-19frqyw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=403&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/397659/original/file-20210428-23-19frqyw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=403&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Police use of force, as in this July 2020 pepper-spraying incident in Seattle, is under scrutiny around the country.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/WashingtonLegislaturePoliceReform/7fa589f813a14396aba00593f1ace647/photo">AP Photo/Ted S. Warren</a></span>
</figcaption>
</figure>
<h2>Making lawsuits harder</h2>
<p>The current standard, <a href="https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/">created by the Supreme Court in 1982</a>, protects officers from being sued in civil court unless their actions are objectively ruled a violation of the law.</p>
<p>An aggrieved citizen with a civil rights complaint can no longer argue that an officer’s conduct was motivated by wrongful intent, malice or even prejudice. What matters is not what the officer did but how it compares with what a reasonable officer might have done.</p>
<p>The result of the changed standard has been to <a href="https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform">severely limit the number of civil claims</a> against police that make it past the officer’s broad defense of qualified immunity.</p>
<p>Over many decades, and with increasing intensity in recent years, news reports and citizen complaints have identified police officers harming civilians, particularly Black Americans, seemingly with impunity. Officers know the law will shield them from personal liability, and they also know that it is <a href="https://www.hrw.org/legacy/reports98/police/uspo14.htm">rare for officers to face criminal charges</a> – much less be convicted.</p>
<p>But recent examples may bring additional attention to this issue.</p>
<p>In March 2021, Marion Humphrey, a Black law student at the University of Arkansas, filed a <a href="https://arktimes.com/arkansas-blog/2021/03/11/marion-humphrey-jr-sues-state-police-trooper-over-i-40-stop-handcuffing-and-search-for-driving-while-black">federal lawsuit against an Arkansas state trooper</a>, alleging the trooper unlawfully searched his personal belongings during a traffic stop in August 2020. The trooper has not been disciplined or faced criminal changes, but the lawsuit says a video camera captured the trooper making insulting remarks about Humphrey’s race and age.</p>
<p>In April 2021, Caron Nazario, a Black U.S. Army lieutenant, filed a civil rights lawsuit against <a href="https://www.npr.org/2021/04/11/986271819/officer-who-handcuffed-and-pepper-sprayed-black-army-lieutenant-is-fired">two police officers in Virginia who pepper-sprayed him</a> during a December 2020 traffic stop. One of the officers involved <a href="https://www.cbsnews.com/news/virginia-police-officer-fired-pepper-spray-handcuff-black-army-lieutenant-traffic-stop/">was fired</a>, and the other was ordered to undergo retraining. The state attorney general is <a href="https://www.npr.org/2021/04/11/986271819/officer-who-handcuffed-and-pepper-sprayed-black-army-lieutenant-is-fired">investigating the incident</a>, in which Nazario says his constitutional rights were violated. </p>
<p>It is not yet clear how those lawsuits will address the possibility of the officers claiming – or being granted – qualified immunity. But those incidents and others like them have <a href="https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform">sparked intense debate</a> about whether, and under what circumstances, police officers should have qualified immunity. </p>
<p>Proponents say qualified immunity offers a balance between letting victims hold officials accountable and minimizing harm to society as a whole. Opponents say it serves as protection for wrongdoers that harks back to Jim Crow laws and is a vestige of racism that perpetuates unequal treatment before the law.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/397656/original/file-20210428-25-qbith1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of people march, some carrying mock coffins" src="https://images.theconversation.com/files/397656/original/file-20210428-25-qbith1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/397656/original/file-20210428-25-qbith1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/397656/original/file-20210428-25-qbith1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/397656/original/file-20210428-25-qbith1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/397656/original/file-20210428-25-qbith1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/397656/original/file-20210428-25-qbith1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/397656/original/file-20210428-25-qbith1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Family members of people killed by police in Minnesota march on the state’s Capitol building in October 2020 demanding better accountability for police violence, including an end to officers’ qualified immunity from civil lawsuits.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protesters-march-down-university-avenue-towards-the-news-photo/1228969528">Chris Juhn/Anadolu Agency via Getty Images</a></span>
</figcaption>
</figure>
<h2>A move to eliminate qualified immunity</h2>
<p>Qualified immunity is a federal law construct; however, some states are already moving to do away with this type of legal protection for police officers. In June 2020, the state of Colorado did so, in <a href="https://coloradosun.com/2020/06/19/colorado-police-accountability-bill-becomes-law/">direct response to George Floyd’s death</a> and the resulting protests. In August 2020, <a href="https://reason.com/volokh/2020/08/02/connecticut-passes-law-curbing-back-qualified-immunity-but-with-loopholes/">Connecticut took a similar step</a>.</p>
<p>In March 2021, the <a href="https://council.nyc.gov/press/2021/03/25/2079/">New York City Council did the same</a> for its police department. <a href="https://www.jurist.org/news/2021/04/new-mexico-governor-signs-law-eliminating-qualified-immunity/">New Mexico joined the growing movement</a> the following month.</p>
<p>At the federal level, the U.S. House of Representatives passed the <a href="https://www.congress.gov/bill/117th-congress/house-bill/1280">George Floyd Justice in Policing Act</a> in March 2021, which in part seeks to limit the ability of police officers to claim qualified immunity as a defense in private lawsuits. The bill is now in the U.S. Senate for consideration. Similar laws are likely to spread across the country as Americans and their lawmakers examine whether qualified immunity for police does more harm than good.</p>
<p>[<em>Over 100,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p><img src="https://counter.theconversation.com/content/159617/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ronnie R. Gipson Jr. does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Police officers who kill, injure or violate the rights of citizens are often not held accountable, even in civil court – because in most cases, they can’t be sued for official acts.
Ronnie R. Gipson Jr., Assistant Professor of Law, University of Memphis
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/156323
2021-04-13T14:41:25Z
2021-04-13T14:41:25Z
Law protecting interests of South African communities in mining deals falls short
<figure><img src="https://images.theconversation.com/files/394765/original/file-20210413-19-1x6erzj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The community of Xolobeni village, in the Eastern Cape, succeesfully challenged the mining of their land in the High Court in 2018. </span> <span class="attribution"><span class="source">Rogan Ward © Sunday Times.</span></span></figcaption></figure><p>The impact of mining operations on rural communities is a contentious issue in South Africa. There is also concern about the manner in which communities are consulted about mining on their land. </p>
<p>There is often tension between pursuing the economic benefits of mining, and protecting the socioeconomic and <a href="https://www.sahrc.org.za/home/21/files/SAHRC%20Mining%20communities%20report%20FINAL.pdf">cultural rights of people</a>. Some communities rely on the land to sustain themselves through agriculture, and for some their cultural identity is <a href="https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf">tied to the land</a>. </p>
<p>South Africa has laws to safeguard the interests of communities in their dealings with mining companies. The <a href="https://www.gov.za/sites/default/files/gcis_document/201409/act31of1996.pdf">Interim Protection of Informal Land Rights Act</a> of 1996 requires that communities provide “consent” before mining operations can start. The <a href="https://cer.org.za/wp-content/uploads/2004/05/28-of-2002-MINERAL-AND-PETROLEUM-RESOURCES-DEVELOPMENT-ACT_7-Dec-2014-to-date-1.pdf">Mineral and Petroleum Resources Development Act</a> of 2002 stipulates that there must be “meaningful consultation” between mining companies and communities. </p>
<p>As my <a href="http://www.saflii.org/za/journals/PER/2020/22.html">research</a> on the case of the Xolobeni community in the Eastern Cape province shows, the Mineral and Petroleum Resources Development Act does not provide the necessary protection to communities in the awarding of licences to mine their land. </p>
<p>I noted that the new <a href="https://www.gov.za/sites/default/files/gcis_document/201911/4286528-11act3of2019tradkhoisanleadership.pdf">Traditional and Khoi-San Leadership Act</a> might not provide more protection to communities either. And it could be open to abuse. If the basic level of trust between communities and traditional leaders is not present, then legislation will not remedy injustices that occur.</p>
<h2>Challenges to community engagement</h2>
<p>In November 2018, the <a href="https://geotargit.com/index.php?qcountry_code=ZA&qregion_code=05&qcity=Xolobeni">Xolobeni</a> community <a href="http://www.saflii.org/za/cases/ZAGPPHC/2018/829.html">successfully challenged</a> the awarding of a licence to an Australian mining company to mine for titanium on their land.</p>
<p>The case concerned the level of consent required to obtain a mining right over property held by a community with informal land tenure. In South Africa communal land is <a href="https://theconversation.com/why-giving-south-africans-title-deeds-isnt-the-panacea-for-land-reform-98106">collectively owned by the community</a> in terms of customary law and managed by the tribal authority.</p>
<p>The high court <a href="http://www.saflii.org/za/cases/ZAGPPHC/2018/829.html">ruled</a> that in the case of informal land right holders, consent by the community was a requirement for obtaining a mining licence. The court’s decision followed a decade-long battle. It had pitted the community against the mining company and the traditional leaders.</p>
<p>My research, based on official documents and published accounts from the community, showed that traditional leaders or community representatives did not adequately represent the interests of the community in this case.</p>
<p>They did not consult properly with the affected members of the community, and thereby failed to adequately represent their interests. </p>
<p>Another problem is the potential for corruption. As a <a href="https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf">report</a> by a legislative review panel chaired by former president Kgalema Motlanthe has found, there have been instances where leaders consented to mining in exchange for <a href="https://www.timeslive.co.za/sunday-times/business/2017-10-10-report-identifies-opportunities-for-corruption-in-mining-approval-processes/">certain advantages</a>. </p>
<p>There is also no oversight measure to ensure that communities are actually consulted properly. </p>
<h2>The Traditional and Khoi San Leadership Act</h2>
<p>In a further attempt by the legislature to address the issue of community engagement, the <a href="https://www.gov.za/sites/default/files/gcis_document/201911/4286528-11act3of2019tradkhoisanleadership.pdf">Traditional and Khoi San Leadership Act</a> was passed in 2019. Section 24 of the Act regulates the conclusion of agreements between a traditional council and private entities. It supersedes provisions of all the other laws. </p>
<p>A <a href="https://www.gov.za/sites/default/files/gcis_document/201911/4286528-11act3of2019tradkhoisanleadership.pdf">traditional council</a> is a body that administers the affairs of a rural community. It is made up of elected members of the community or traditional leaders or both. </p>
<p>The new Act doesn’t fix the problems that my research identified. Instead of placing the focus on community rights, the Act seems to reaffirm the absolute authority of traditional leaders over the community engagement process. The most affected voices within a community could once again be lost.</p>
<p>According to the Act, partnerships and agreements between mining companies and communities must benefit the communities and enjoy their majority support.</p>
<p>“Consent” by the entire community, as previously required by the Interim Protection of Informal Land Rights Act, is no longer required. The decision should merely be supported by the majority. </p>
<p>It could be difficult to determine whether there is in fact majority support for a mine. The legislation doesn’t say how this majority will be determined.</p>
<p><a href="https://www.tandfonline.com/doi/pdf/10.1080/02587203.2020.1867483?needAccess=true">According</a> to legal scholars Janine Ubink and Joanna Pickering:</p>
<blockquote>
<p>Legislation regulating traditional leadership, for its part, centralises the powers of senior traditional leaders without incorporating crucial accountability mechanisms inherent in customary law. </p>
</blockquote>
<p>It is, therefore, necessary to find measures to ensure that the process of obtaining consent for mining operations is legitimate and fair. </p>
<p>For this to happen, the actions of mining companies should be monitored more effectively by independent third parties. This is to ensure that they do engage with affected community members in a manner that gives these people a voice. </p>
<h2>Solving the problem</h2>
<p>Government might have hoped to make the process of community engagement more transparent by regulating the way mining agreements should be reached in the Traditional and Khoi San Leadership Act. But it would be misguided to think that this will be possible.</p>
<p>The Act gives too much power to traditional leaders by giving them the right to control the engagement process and decide when a sufficient level of consent has been reached. </p>
<p>In order to resolve this problem, a few practical steps need to be taken by government, traditional leaders and mining companies. Firstly, communities need to be fully aware of their rights concerning community engagement and the process that has to be followed for companies to obtain consent to mine their lands. </p>
<p>Although there have been <a href="https://cer.org.za/wp-content/uploads/2014/03/CER-Mining-and-your-Community-Final-web.pdf%5D%5Bhttps://cer.org.za/wp-content/uploads/2016/05/LRC-2016_Mining_affected_communities_Eng.pdf">initiatives</a> by civil society to inform communities of their rights, much work remains to be done in this regard. Community leaders and mining companies can also contribute to such advocacy efforts.</p>
<p>Secondly, government needs to address the matter of traditional leaders abusing their authority. If traditional leaders cannot effectively fulfil the role of intermediary between communities and mining companies, then that responsibility should be delegated. This could be done by appointing an impartial third party.</p>
<p>In general, there is a need for more transparency and accountability regarding the awarding of mining licences. This could prevent corruption and ensure the protection of communities’ rights.</p><img src="https://counter.theconversation.com/content/156323/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Yolandi Meyer does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Traditional leaders do not adequately represent the interests of rural communities in dealing with mining companies.
Yolandi Meyer, Post-Doctoral Research Fellow, University of Johannesburg
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/149064
2020-11-03T19:50:47Z
2020-11-03T19:50:47Z
Why the youth climate court case failed, and what’s next for Canadian climate policy
<figure><img src="https://images.theconversation.com/files/367251/original/file-20201103-17-1nwf5jh.jpg?ixlib=rb-1.1.0&rect=286%2C122%2C5078%2C3071&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protesters at the global climate change strike in Vancouver in September 2019.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>Last week, the Federal Court <a href="https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/487686/index.do">dismissed a case</a> 15 young Canadians brought against the federal government because of its record on climate policy. </p>
<p>The plaintiffs filed their case in October 2019, claiming their rights to life, liberty and equality were being violated because <a href="https://davidsuzuki.org/wp-content/uploads/2019/10/Statement-of-Claim-2019-10-25-FILED.pdf">Ottawa had not done enough to protect them against climate change, despite knowing for decades that it will disproportionately harm children</a>. </p>
<p>The court concluded that it was “plain and obvious” that the case was doomed to fail, making a full trial pointless.</p>
<p>Intentionally or not, the court has given Canadians <a href="https://www.pacificcell.ca/20201027-judge-denies-trial/">a big wake-up call</a>. It shows that citizens need to take action on climate. Here’s why the case failed, and what’s next for climate policy in Canada. </p>
<h2>What was the youth climate case about?</h2>
<p>In the case, <em>La Rose et al. vs. Her Majesty the Queen</em>, the plaintiffs argued that Canada’s climate inaction violates their constitutional rights and the rights of all children and youth in Canada — now and in the future. </p>
<p>They argued that the federal government has a <a href="https://wcel.org/blog/atmospheric-trust-litigation?utm_source=twt">public trust duty</a> — a <a href="https://www.thecanadianencyclopedia.ca/en/article/law-of-fiduciary-obligation">fiduciary obligation</a> — to protect the common natural resources such as air (including the atmosphere), water and the <a href="https://e360.yale.edu/features/how-melting-permafrost-is-beginning-to-transform-the-arctic">Arctic permafrost</a> critical to sustaining human life and liberties.</p>
<p>Finally, they requested an order requiring the government to create a legally binding climate plan consistent with Canada’s fair share of the <a href="https://www.mcc-berlin.net/en/research/co2-budget.html">remaining global carbon budget</a> necessary to stabilize the Earth’s climate system.</p>
<h2>Why did the court dismiss the case?</h2>
<p>The Federal Court determined the constitutional arguments are so political that the courts are unsuited to deal with them. Their claims question the whole of Canada’s response to climate change, which the court decided is a matter for the legislative and executive branches of government, not the judiciary.</p>
<p>While the court concluded the public trust argument raised a properly legal — not political — question, it found this argument too broad and unprecedented to succeed at trial.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/367258/original/file-20201103-17-877u69.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Aerial view of a low-lying coastal town built on permafrost." src="https://images.theconversation.com/files/367258/original/file-20201103-17-877u69.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/367258/original/file-20201103-17-877u69.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=345&fit=crop&dpr=1 600w, https://images.theconversation.com/files/367258/original/file-20201103-17-877u69.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=345&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/367258/original/file-20201103-17-877u69.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=345&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/367258/original/file-20201103-17-877u69.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=434&fit=crop&dpr=1 754w, https://images.theconversation.com/files/367258/original/file-20201103-17-877u69.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=434&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/367258/original/file-20201103-17-877u69.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=434&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Thawing permafrost, rising sea levels and more powerful waves are eating away the coast of Tuktoyaktuk, a hamlet in the Northwest Territories, forcing residents to relocate their homes and erect walls to prevent erosion.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<h2>But haven’t climate cases succeeded elsewhere?</h2>
<p>Climate cases have had mixed success around the world, but some courts have sided with the plaintiffs’ push for greater government action.</p>
<p>In 2015, a Dutch court set a legally binding emissions target and deadline for the Netherlands, and the Dutch Supreme Court confirmed the ruling last year.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-a-dutch-supreme-court-decision-on-climate-change-and-human-rights-means-for-canada-146383">What a Dutch Supreme Court decision on climate change and human rights means for Canada</a>
</strong>
</em>
</p>
<hr>
<p>In 2018, the <a href="http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2018/20180405_11001-22-03-000-2018-00319-00_decision-1.pdf">Supreme Court of Justice of Colombia ruled in favour of 25 child plaintiffs</a> who argued their rights to life, water, food and a healthy environment were threatened by increasing deforestation in the Amazon. </p>
<p>And in the summer of 2020, the <a href="https://www.ejiltalk.org/the-supreme-court-of-irelands-decision-in-friends-of-the-irish-environment-v-government-of-ireland-climate-case-ireland/">Supreme Court of Ireland rejected Ireland’s National Mitigation Plan</a> because it failed to specify how Ireland will transition to a low-carbon economy by 2050. The court ordered the government to create a concrete plan. </p>
<p>Canadian climate advocates hoped these cases would help convince our courts to hold the government accountable for its inadequate action on climate change. But these cases differ from the Canadian case in two important ways.</p>
<p>First, each had a specific legal basis for judicial intervention. In <a href="https://www.constituteproject.org/constitution/Colombia_2005.pdf">Colombia</a> and <a href="https://www.servat.unibe.ch/icl/nl00000_.html">the Netherlands</a> there’s a constitutional right to environmental protection. In Ireland the plaintiffs based their claim on the government’s inadequate implementation of Ireland’s <a href="http://www.irishstatutebook.ie/eli/2015/act/46/enacted/en/html">Climate Action and Low Carbon Development Act</a>. Canada has neither a constitutional environmental right nor a single, all-encompassing climate law. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-all-human-rights-depend-on-a-healthy-environment-148689">Why all human rights depend on a healthy environment</a>
</strong>
</em>
</p>
<hr>
<p>Second, Canadian courts have no appetite to tackle climate change. They prioritize the legal status quo and <a href="https://www.canlii.org/en/ca/fct/doc/2008/2008fc1183/2008fc1183.html">repeatedly</a> <a href="https://www.canlii.org/en/ca/fct/doc/2012/2012fc893/2012fc893.html">decline</a> to rethink our laws to meet the existential threat of climate change.</p>
<p>In dismissing the youth climate case, the court acknowledged that climate change is serious, but not serious enough to reconsider the reach of the constitution. <a href="https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/487686/index.do">The court explained</a> that it “cannot circumvent its constitutional boundaries … no matter how critical climate change is and will be to Canadians’ health and well-being.”</p>
<h2>What’s next for Canadian climate policy?</h2>
<p>The Federal Court’s ruling slams the door on big, <a href="https://academic.oup.com/jel/article-abstract/30/3/483/5055379">“holy grail” climate cases</a> in Canada.</p>
<p>There’s still an important role, however, for <a href="https://academic.oup.com/jel/article-abstract/30/3/483/5055379">smaller climate cases</a> that focus on specific policies and projects. <a href="https://www.theglobeandmail.com/canada/alberta/article-alberta-mountaintop-coal-mine-hearings-to-begin-amidst-fears-of/">A proposed coal mine in Alberta</a>, for example, will likely be challenged in court because of its climate impacts and local contamination risks.</p>
<p>Small, unsexy climate cases are important, but they won’t save us. They take too long, and even when they succeed in stopping destructive projects, they don’t help us imagine sustainable alternatives to business as usual.</p>
<h2>What’s being done elsewhere?</h2>
<p>A <a href="https://www.law.columbia.edu/faculty/michael-gerrard">leading climate law expert</a> called the Colombian Supreme Court of Justice’s 2018 ruling “<a href="https://www.dejusticia.org/en/asi-se-gano-en-colombia-un-litigio-por-el-planeta/">one of the strongest environmental decisions ever issued by any court in the world</a>.” While that may be true on paper, its impact on the ground is another story. The Colombian government <a href="https://www.dejusticia.org/en/the-colombian-government-has-failed-to-fulfill-the-supreme-courts-landmark-order-to-protect-the-amazon/">hasn’t complied with the court’s order and deforestation in the Colombian Amazon continues</a>. </p>
<p>But that hasn’t stopped the Colombian youth plaintiffs from working with lawyers, researchers and Indigenous knowledge holders to create the “intergenerational pact for the life of the Colombian Amazon” ordered by the court. The pact must include “national, regional and local actions of a preventative, obligatory, corrective and pedagogical nature.”</p>
<p>By imagining a sustainable future for the Amazon and themselves, the Colombian youth plaintiffs are building broad political pressure to force the Colombian government to step up. The efforts of the Colombian youth plaintiffs are an example of the “<a href="https://goodanthropocenes.net/">good Anthropocenes</a>” approach.</p>
<p>Good Anthropocenes are positive and hopeful scenarios for people and the planet. These scenarios are developed by communities from the bottom-up. They’re realistic, because they’re grounded in concrete practices. But they’re also radical, because they’re transforming the status quo.</p>
<p>Examples are many and diverse:</p>
<ol>
<li><p>The <a href="https://link.springer.com/article/10.1007/s11625-020-00873-z">Rotterdam Port Industrial Petrochemical Cluster’s</a> decarbonization via renewable energy development, which requires new investment strategies to support the long-term transformation of the Netherlands’ electricity grid. </p></li>
<li><p><a href="https://predatorfreenz.org/big-picture/pf-2050-vision/">Predator Free New Zealand 2050</a>, a biodiversity conservation initiative combining Māori environmental principles with the needs and know-how of agricultural workers.</p></li>
<li><p>The global <a href="https://transitionnetwork.org/">Transition Town movement</a> is creating self-sustaining economies through re-skilling, local food security and community-owned energy production.</p></li>
</ol>
<p>So what does this mean for Canadian climate policy-making?</p>
<p>The federal court dismissed the youth climate case because climate policy is a matter of politics, not law.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/367268/original/file-20201103-19-o0tj15.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Weathered totem poles stand in a field." src="https://images.theconversation.com/files/367268/original/file-20201103-19-o0tj15.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/367268/original/file-20201103-19-o0tj15.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/367268/original/file-20201103-19-o0tj15.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/367268/original/file-20201103-19-o0tj15.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/367268/original/file-20201103-19-o0tj15.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/367268/original/file-20201103-19-o0tj15.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/367268/original/file-20201103-19-o0tj15.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Totem poles in Ninstints, Gwaii Haanas, a National Park Reserve and Haida Heritage Site.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>We can’t afford to wait years for confirmation of the government’s obvious climate responsibility. We have to act now by envisioning sustainable futures for our communities, and demanding our governments help us make those visions a reality. Canadian examples of good Anthropocenes include:</p>
<ol>
<li><p><a href="https://goodanthropocenes.net/iron-and-earth-changing-the-narrative-about-canadian-energy-futures/">Iron and Earth</a>, an organization committed to re-skilling workers in Canada’s oil and gas industry for the renewable energy sector.</p></li>
<li><p><a href="https://goodanthropocenes.net/tribal-parks/">Tribal parks</a>, where Indigenous peoples manage <a href="https://thecanadianencyclopedia.ca/en/article/gwaii-haanas">land and biodiversity</a> using traditional ecological knowledge.</p></li>
<li><p><a href="https://goodanthropocenes.net/cities-for-people/">Cities for People</a>, a multi-stakeholder initiative imagining how to transform cities into more inclusive, liveable and resilient spaces.</p></li>
</ol>
<p>Each of these projects is doing what no court can do: bringing people together to imagine and put into practice new and sustainable ways of living.</p><img src="https://counter.theconversation.com/content/149064/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jason MacLean is affiliated with the Pacific Centre for Environmental Law and Litigation, which supported the Canadian youth climate plaintiffs.</span></em></p>
In dismissing the youth climate case, the court acknowledged that climate change is serious, but not serious enough to reconsider the reach of the constitution.
Jason MacLean, Assistant Professor of Law, University of New Brunswick
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/128967
2020-01-14T13:47:53Z
2020-01-14T13:47:53Z
Can the Constitution stop the government from lying to the public?
<figure><img src="https://images.theconversation.com/files/308449/original/file-20200103-11904-29ocdq.jpg?ixlib=rb-1.1.0&rect=0%2C17%2C6000%2C5973&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The old joke says you can tell a politician is lying if his lips are moving.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/politician-long-nose-lies-man-pop-1071460601">Alexander_P/Shutterstock.com</a></span></figcaption></figure><p>When regular people lie, sometimes their lies are detected, sometimes they’re not. Legally speaking, sometimes they’re protected by the First Amendment – and sometimes not, like when they commit fraud or perjury. </p>
<p>But what about when government officials lie?</p>
<p>I take up this question in my recent book, “<a href="https://www.cambridge.org/core/books/governments-speech-and-the-constitution/BAE6367A698475ED9DBB328B5D9E40E5">The Government’s Speech and the Constitution</a>.” It’s not that surprising that public servants lie – they are human, after all. But when an agency or official backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.</p>
<p>My research found that lies by government officials can violate the Constitution in several different ways, especially when those lies deprive people of their rights.</p>
<h2>Clear violations</h2>
<p>Consider, for instance, police officers who <a href="https://supreme.justia.com/cases/federal/us/391/543/">falsely tell a suspect that they have a search warrant</a>, or <a href="https://supreme.justia.com/cases/federal/us/372/528/">falsely say that the government will take the suspect’s child away</a> if the suspect doesn’t waive his or her constitutional rights to a lawyer or against self-incrimination. These lies violate constitutional protections provided in the <a href="https://www.law.cornell.edu/constitution/fourth_amendment">Fourth</a>, <a href="https://www.law.cornell.edu/constitution/fifth_amendment">Fifth</a> and <a href="https://www.law.cornell.edu/constitution/sixth_amendment">Sixth</a> Amendments.</p>
<p>If the government jails, taxes or fines people because it disagrees with what they say, it violates the First Amendment. And under some circumstances, the government can silence dissent just as effectively through its lies that encourage employers and other third parties to punish the government’s critics. During the 1950s and 1960s, for example, the <a href="http://mshistorynow.mdah.state.ms.us/articles/243/mississippi-sovereignty-commission-an-agency-history">Mississippi State Sovereignty Commission</a> spread damaging falsehoods to the employers, friends and neighbors of citizens who spoke out against segregation. As a federal court found decades later, the agency “<a href="https://law.justia.com/cases/federal/district-courts/FSupp/719/1345/1438234/">harassed individuals who assisted organizations</a> promoting desegregation or voter registration. In some instances, the commission would suggest job actions to employers, who would fire the targeted moderate or activist.”</p>
<p>And some lawsuits have accused government officials of <a href="https://www.reuters.com/article/us-usa-noflylist/us-court-allows-no-fly-list-lawsuits-dissenters-warn-of-danger-idUSKCN1Q32JV">misrepresenting how dangerous a person was</a> when putting them on a no-fly list. Some judges have expressed <a href="https://www.leagle.com/decision/infdco20140630872">concern about whether the government’s no-fly listing procedures</a> are rigorous enough to justify restricting a person’s freedom to travel. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=366&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=366&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=366&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=460&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=460&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=460&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In 1971, The New York Times and The Washington Post published the Pentagon Papers, exposing officials’ lies about the war in Vietnam.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Watchf-Associated-Press-Domestic-News-New-York-/61378866a8224e64be95556e7b29dcb5/137/0">AP Photo/Jim Wells</a></span>
</figcaption>
</figure>
<h2>Spreading distrust and uncertainty</h2>
<p>But in other situations, it can be difficult to find a direct connection between the government’s speech and the loss of an individual right. Think of government officials’ lies about their own misconduct, or their colleagues’, to avoid political and legal accountability – like the many lies about the Vietnam War by Lyndon Johnson’s administration, <a href="http://archive.nytimes.com/www.nytimes.com/interactive/us/2011_PENTAGON_PAPERS.html?_r=1">as revealed by the Pentagon Papers</a>. </p>
<p>Those sorts of lies are part of what I’ve called “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3097156">the government’s manufacture of doubt</a>.” These include the government’s falsehoods that seek to distract the public from efforts to discover the truth. For instance, in response to growing concerns about his campaign’s connections to Russia, President Donald Trump claimed that <a href="https://www.reuters.com/article/us-usa-trump-obama/trump-claims-obama-wiretapped-him-during-campaign-obama-refutes-it-idUSKBN16B0CC">former President Barack Obama had wiretapped him</a> during the campaign, even though the Department of Justice confirmed that <a href="https://www.newsweek.com/trump-russia-investigation-wiretap-fbi-obama-658888">no evidence supported that claim</a>.</p>
<p>Decades earlier, in the 1950s, Sen. Joseph McCarthy sought both media attention and political gain through <a href="https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1286&context=californialawreview">outrageous and often unfounded claims</a> that contributed to a culture of fear in the country.</p>
<p>When public officials speak in these ways, they undermine public trust and frustrate the public’s ability to hold the government accountable for its performance. But they don’t necessarily violate any particular person’s constitutional rights, making lawsuits challenging at best. In other words, just because the government’s lies hurt us does not always mean that they violate the Constitution. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Sen. Joe McCarthy, left, talks with his attorney, Roy Cohn, during Senate hearings in 1954.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:McCarthy_Cohn.jpg">United Press International/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>What else can people do?</h2>
<p>There are other important options for protecting the public from the government’s lies. Whistleblowers can help uncover the government’s falsehoods and other misconduct. Recall FBI Associate Director Mark Felt, <a href="https://www.vanityfair.com/news/politics/2005/07/deepthroat200507">Watergate’s “Deep Throat”</a> source for The Washington Post’s investigation, and <a href="https://www.npr.org/templates/story/story.php?storyId=5651609">Army Sgt. Joseph Darby</a>, who revealed the mistreatment of prisoners at Abu Ghraib. And lawmakers can enact, and lawyers can help enforce, laws that protect whistleblowers who expose government lies. </p>
<p>Legislatures and agencies can exercise their oversight powers to hold other government officials accountable for their lies. For example, Senate hearings led Sen. McCarthy’s colleagues to <a href="https://www.senate.gov/artandhistory/history/common/censure_cases/133Joseph_McCarthy.htm">formally condemn his conduct</a> as “<a href="https://www.senate.gov/artandhistory/history/resources/pdf/1954McCarthyCensure.pdf">contrary to senatorial traditions and … ethics</a>.” </p>
<p>In addition, the press can seek documents and information to check the government’s claims, and the public can protest and vote against those in power who lie. Public outrage over the government’s lies about the war in Vietnam, for example, contributed to <a href="https://www.history.com/news/lbj-exit-1968-presidential-race">Lyndon Johnson’s 1968 decision not to seek reelection</a>. Similarly, the public’s disapproval of government officials’ lies to cover up the Watergate scandal helped lead to <a href="https://www.history.com/this-day-in-history/nixon-resigns">Richard Nixon’s 1974 resignation</a>.</p>
<p>It can be hard to prevent government officials from lying, and difficult to hold them accountable when they do. But the tools available for doing just that include not only the Constitution but also persistent pushback from other government officials, the press and the people themselves.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/128967/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Norton does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
When a person or agency backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.
Helen Norton, Rothgerber Chair in Constitutional Law, University of Colorado Boulder
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/127785
2019-12-05T12:43:20Z
2019-12-05T12:43:20Z
‘Stop-and-frisk’ can work, under careful supervision
<figure><img src="https://images.theconversation.com/files/305045/original/file-20191203-67007-m2td5r.jpg?ixlib=rb-1.1.0&rect=8%2C17%2C2886%2C1736&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A 2012 training session between two New York police officers demonstrated a way stop-and-frisk encounters could be handled.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Stop-and-Frisk-Whistleblowers/eabebdc6461e470e9ee668699dd736f0/106/0">AP Photo/Colleen Long</a></span></figcaption></figure><p>In mid-November, former New York City Mayor Michael Bloomberg apologized publicly for his backing of a practice intended to reduce violent crime that had for years been criticized as racially biased. “<a href="https://www.cnn.com/2019/11/17/politics/michael-bloomberg-stop-and-frisk-apology/index.html">I realize back then I was wrong, and I’m sorry</a>,” he said.</p>
<p>But <a href="https://www.nytimes.com/aponline/2019/11/17/us/politics/ap-us-election-2020-bloomberg.html">his apology</a>, made at a predominantly black church in Brooklyn, puzzled many observers. That included scholars of criminal justice <a href="https://scholar.google.com/citations?hl=en&user=SYMKKZQAAAAJ">like</a> <a href="https://scholar.google.com/citations?user=yLB0rKoAAAAJ&hl=en&oi=ao">ourselves</a>.</p>
<p>Bloomberg has long been a vocal supporter of a policy the city police department officially called “<a href="https://www1.nyc.gov/site/ccrb/investigations/stop-question-and-frisk.page">Stop, Question, and Frisk</a>,” including during his time as New York’s mayor. In an effort to control crime, police aggressively and indiscriminately stopped and questioned people on the streets or in public housing projects. Police also often patted down suspects to check for weapons.</p>
<p>His apology was confusing because that phrase, often shortened to “stop and frisk,” is used to describe two different things. </p>
<p>As we wrote in our book, “<a href="https://nyupress.org/9781479835881/stop-and-frisk/">Stop and Frisk</a>: The Use and Abuse of a Controversial Policing Tactic,” one is a legitimate, constitutionally sanctioned tactic, grounded in a police officer’s reasonable suspicion that a particular person is engaged in criminal activity. </p>
<p>The other is an illegitimate, broad crime-control strategy that, more often than not, ignores the law’s requirement that a particular person be reasonably suspected of breaking the law. </p>
<p><iframe id="17HbW" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/17HbW/3/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>A legal tactic</h2>
<p>For centuries, the <a href="https://ccjls.scholasticahq.com/article/2723.pdf">English common law tradition</a>, which undergirds U.S. law, has recognized a police officer’s right to stop a member of the public to inquire about potentially criminal behavior. They can do this without needing to meet the legal standard for arresting the person and charging them with a crime – provided the officer had reasonable grounds to be suspicious in the first place.</p>
<p>In 1968, the U.S. Supreme Court codified that practice in its decision in <a href="https://www.law.cornell.edu/supremecourt/text/392/1">Terry v. Ohio</a>. In that case, a police officer saw two black men walking up and down a Cleveland street and repeatedly peering into a particular store’s windows. A white man joined them, after which the police officer approached the group, identified himself and patted down the men’s clothes – effectively, stopping and frisking them. The pat-down revealed that two of them were carrying illegally concealed firearms and burglars’ tools.</p>
<p>The men challenged the constitutionality of the initial stop and the subsequent pat-down. </p>
<p>When the case got to the Supreme Court, the justices established that stop-and-frisk was a practice fundamentally different than a search or seizure as specified by the <a href="https://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a>. They concluded that the police officer had what they called a “reasonable suspicion” that the suspects were preparing to burglarize the store. </p>
<p>The court also ruled that police could pat down suspects to ensure they aren’t armed with weapons that could be used against the officers. </p>
<p>Taken together, the ruling gives police broad authority to decide when, whether and why to stop, question and frisk people. </p>
<p>In several rulings since 1968, the Supreme Court has <a href="https://scholarship.law.umn.edu/mlr/2312">expanded officers’ power to stop</a> members of the public. That expanded power includes <a href="https://www.law.cornell.edu/supremecourt/text/446/544">stopping someone in the open concourse area of an airport and requesting to see person’s ticket and identification</a>, <a href="https://caselaw.findlaw.com/us-supreme-court/463/1032.html">briefly searching a car for hidden weapons</a>, <a href="https://www.law.cornell.edu/supct/html/95-5841.ZO.html">stopping people for minor infractions</a> while really investigating more serious crimes and even frisking people under the pretext of looking for weapons <a href="https://www.law.cornell.edu/supct/html/91-2019.ZO.html">in hopes of finding drugs</a>.</p>
<p>Left unchecked, all that discretion could lead to discriminatory, racially unjust and unconstitutional behavior in which blacks and Hispanics are targeted more often than their proportion of the population would suggest they should be.</p>
<p><iframe id="PQpMq" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/PQpMq/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>A broad strategy</h2>
<p>At its core, the stop-and-frisk approach is supposed to rely on more than a hunch. But the low burden of proof, the large discretion granted to police and the relatively invisible nature of these sorts of encounters combine to create real potential for abuse. Indeed, several U.S. police departments turned stop-and-frisk tactics into a wider, <a href="http://www.skogan.org/files/Stop_Frisk_as_an_Organizational_Strategy.Lessons_from_Chicago_and_New_York.pdf">more aggressive strategy to cut down on crime</a>. </p>
<p>Since 2002, New York City police officers, for instance, have stopped, questioned and often frisked hundreds of thousands of people each year. Police conducted more than 685,000 stops in 2011 alone. <a href="https://www1.nyc.gov/site/nypd/stats/reports-analysis/stopfrisk.page">Over 82% of the people stopped</a> were black or Hispanic, in a city where <a href="https://furmancenter.org/files/sotc/The_Changing_Racial_and_Ethnic_Makeup_of_New_York_City_Neighborhoods_11.pdf">52% of the population</a> is black or Hispanic. <a href="http://guides.lib.jjay.cuny.edu/nypd/StopandFrisk">Just 12% of all stops</a> – of people of any race – resulted in an arrest or a summons.</p>
<p>Based on that data, a federal judge ruled in 2013 that the New York Police Department had <a href="https://www.nytimes.com/2013/08/13/nyregion/stop-and-frisk-practice-violated-rights-judge-rules.html">unconstitutionally racially profiled</a> its stop-and-frisk targets. </p>
<p>That year, New York police stopped 191,851 people; since 2014, under Bloomberg’s successor Mayor Bill DeBlasio, the number has dropped steadily. In 2018, <a href="https://www1.nyc.gov/site/nypd/stats/reports-analysis/stopfrisk.page">just 11,008 people were stopped</a>, and 31% of the stops resulted in an arrest or a summons.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/303843/original/file-20191126-112531-2xyt9f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/303843/original/file-20191126-112531-2xyt9f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/303843/original/file-20191126-112531-2xyt9f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=475&fit=crop&dpr=1 600w, https://images.theconversation.com/files/303843/original/file-20191126-112531-2xyt9f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=475&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/303843/original/file-20191126-112531-2xyt9f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=475&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/303843/original/file-20191126-112531-2xyt9f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=597&fit=crop&dpr=1 754w, https://images.theconversation.com/files/303843/original/file-20191126-112531-2xyt9f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=597&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/303843/original/file-20191126-112531-2xyt9f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=597&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">As mayor of New York City, Michael Bloomberg warned that a judge’s 2013 ruling restricting ‘stop-and-frisk’ policing could bring rising crime rates. Since the ruling, crime has stayed historically low.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Stop-and-Frisk/fec6d7f8f1aa4e078ce2cfeda649c427/9/0">AP Photo/Seth Wenig</a></span>
</figcaption>
</figure>
<h2>Taking on crime</h2>
<p>New York’s aggressive stopping-and-frisking practices happened at the same time as changes within the city’s police department, including a strategy in which police commanders identified what they called “<a href="https://doi.org/10.1371/journal.pone.0157223">high-crime areas</a>” and <a href="https://doi.org/10.1371/journal.pone.0157223">flooded those locations with officers on foot patrols</a>.</p>
<p>During that same time frame, the <a href="http://doi.org/10.1093/acprof:oso/9780199844425.001.0001">city’s crime rate dropped</a> – especially its murder rate. </p>
<p>But <a href="https://www.wsj.com/articles/new-york-citys-murder-rate-hit-new-low-in-2018-11546559793">crime rates stayed historically low</a> even after officers dramatically reduced the frequency of stop-and-frisk encounters, signaling that other circumstances – not stop-and-frisk – drove the crime rate lower.</p>
<p><iframe id="xESKU" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/xESKU/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>A path forward, with caution</h2>
<p>Despite those problems in New York, we believe that it is possible for <a href="https://nyupress.org/9781479835881/stop-and-frisk/">stop-and-frisk to succeed in contemporary policing</a> – so long as it is not used broadly and indiscriminately. </p>
<p>Officers can be fair to suspects if they stop and question a person only when objective circumstances give rise to reasonable suspicion of criminal activity – and if they frisk that person only when clear facts suggest the person may be armed.</p>
<p>For instance, it could be <a href="http://nypdmonitor.org/wp-content/uploads/2017/06/2017-02-17-FloydLigonDavisCourtApprovalofRecommendationreFTSTraining-Att1.pdf">appropriate for an officer to stop and frisk someone on the street</a> for wearing a trench coat in hot weather. Another example that could warrant a stop-and-frisk would be if an officer sees someone repeatedly entering and leaving a bank or store without doing any business inside. </p>
<p>Those situations don’t depend on the race or ethnicity of the potential suspect. Racial or ethnic characteristics should be part of an officer’s decision to stop someone only if the person in other ways matches a description of a criminal suspect police are seeking.</p>
<p>Given the pervasiveness of racism and <a href="http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/">implicit bias</a>, we believe that police departments that use stop-and-frisk tactics should be <a href="https://nyupress.org/9781479835881/stop-and-frisk/">actively on guard</a> against officers’ misuse of police power. </p>
<p>That includes careful recruitment and selection of new officers, excellent training and clearly written policies. Moreover, officers must be supervised in ways that increase accountability and transparency, potentially involving external oversight.</p>
<p><a href="https://nyupress.org/9781479850150/cops-cameras-and-crisis/">Body-worn cameras</a> offer an opportunity for police departments to monitor and control officer decision-making during stop-and-frisk activities. Supervisors, training officers and even community members could systematically review body-worn camera footage as part of efforts to hold officers accountable for staying within the bounds of department policies and constitutional limitations.</p>
<p>If used properly, we believe, stop-and-frisk can be successfully and legitimately used while treating people with dignity and respect and giving suspects fair opportunities to tell their sides of the story. By making decisions fairly and acting with trustworthy motives, officers can ensure public safety while honoring citizens’ constitutional rights.</p>
<p>[ <em><a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=expertise">Expertise in your inbox. Sign up for The Conversation’s newsletter and get a digest of academic takes on today’s news, every day.</a></em> ]</p><img src="https://counter.theconversation.com/content/127785/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Former New York Mayor Michael Bloomberg apologized for his city’s ‘stop-and-frisk’ police strategy. Two criminologists argue it isn’t necessarily inherently racist – though New York’s program was.
Henry F. Fradella, Professor and Associate Director, School of Criminology and Criminal Justice, Arizona State University
Michael D. White, Professor of Criminology and Criminal Justice, Arizona State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/118425
2019-06-11T11:23:34Z
2019-06-11T11:23:34Z
Investigating the investigative reporters: Bad news from Down Under
<figure><img src="https://images.theconversation.com/files/278712/original/file-20190610-52771-jgka0r.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australian federal police entering the Australian Broadcast Company headquarters on June 5, 2019.</span> <span class="attribution"><a class="source" href="https://www.abc.net.au/news/2019-06-05/abc-raided-by-australian-federal-police-afghan-files-stories/11181162">A.B.C. screenshot from videotape</a></span></figcaption></figure><p>Sometimes the best journalism tells us the worst news. </p>
<p>The United States has a tradition of learning troubling news through extraordinary reporting efforts from combat zones. During the Vietnam War, award-winning journalism revealed the slaughter of Vietnamese civilians by <a href="https://theconversation.com/my-lai-50-years-after-american-soldiers-shocking-crimes-must-be-remembered-93516">American soldiers at My Lai</a>. More recently, reports describing the <a href="https://www.newyorker.com/magazine/2004/05/10/torture-at-abu-ghraib">torture and abuse of prisoners at Abu Ghraib in Iraq</a> embarrassed the U.S. government. </p>
<p>Such investigative reporting ultimately helped American citizens hold accountable those charged with acting in their name. But that didn’t mean the news was welcome, or even appreciated, at the time.</p>
<p>It’s important to recall these examples in light of <a href="https://www.abc.net.au/news/2019-06-05/abc-raided-by-australian-federal-police-afghan-files-stories/11181162">the raid by the Australian Federal Police</a> at the headquarters of the Australian Broadcasting Corporation on June 5. </p>
<p>As an American <a href="https://www.cies.org/grantee/michael-socolow">Fulbright Research Scholar</a> studying media at <a href="https://www.canberra.edu.au/research/faculty-research-centres/nmrc/Team">the University of Canberra</a> in Australia, I’ve watched this controversy closely.</p>
<p>Comparing the way these two western democracies protect – and undermine – investigative reporting raises important questions about journalism’s role in democracy. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/278714/original/file-20190610-52785-qqlep9.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/278714/original/file-20190610-52785-qqlep9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/278714/original/file-20190610-52785-qqlep9.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=327&fit=crop&dpr=1 600w, https://images.theconversation.com/files/278714/original/file-20190610-52785-qqlep9.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=327&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/278714/original/file-20190610-52785-qqlep9.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=327&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/278714/original/file-20190610-52785-qqlep9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=411&fit=crop&dpr=1 754w, https://images.theconversation.com/files/278714/original/file-20190610-52785-qqlep9.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=411&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/278714/original/file-20190610-52785-qqlep9.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=411&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Screen Shot from the homepage of ABC investigation of actions taken by Australian soldiers in Afghanistan.</span>
<span class="attribution"><a class="source" href="https://www.abc.net.au/news/2017-07-11/killings-of-unarmed-afghans-by-australian-special-forces/8466642">Australian Broadcasting Corporation</a></span>
</figcaption>
</figure>
<h2>Journalists and their sources</h2>
<p>The Australian police acted in response to a series of online and broadcast news stories, called “The Afghan Files,” that originally appeared in 2017 and 2018. The reports <a href="https://www.abc.net.au/radio/programs/am/afp-raids-the-latest-chapter-in-afghan-files-war-crimes-saga/11184362">alleged atrocities were committed in Afghanistan</a> by Australian soldiers. </p>
<p>The <a href="https://www.abc.net.au/news/2019-06-05/abc-raided-by-australian-federal-police-afghan-files-stories/11181162">police obtained a warrant</a> to search the premises and computers of the Australian Broadcasting Corporation in order to uncover – and possibly indict and prosecute – the sources informing the story. </p>
<p>The leaking of such embarrassing secret information likely violated Australian law, leaving both the leaker and the Australian Broadcasting Corporation vulnerable. The Australian police’s broad warrant allowed the police to spend hours copying “data holdings” including hard drive files, emails and other documents, and they left the network’s headquarters in possession of USBs filled with electronic files related to the Afghanistan stories. </p>
<p>Australian Broadcasting’s lawyers <a href="https://www.abc.net.au/news/2019-06-06/abc-raids-what-they-tell-us-about-press-freedom/11187364">secured a two-week period</a> in which to carefully review the documents seized by police. But Australian journalists lack both the constitutional protections and the established body of case law that often <a href="https://www.cjr.org/united_states_project/journalists_privilege_shield_law_primer.php">allow American journalists to protect their sources</a>. </p>
<h2>Power from profitability is no more</h2>
<p>The destruction of the <a href="https://www.washingtonpost.com/opinions/forty-years-after-watergate-investigative-journalism-is-at-risk/2012/06/07/gJQArTzlLV_story.html?utm_term=.7c440687c5a4">advertising profits that funded ethical and professional journalism</a> has <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674545502">made journalistic outlets less enthusiastic about</a> <a href="https://reason.com/2017/02/22/where-did-all-the-investigativ/">supporting bold and difficult reporting.</a> There are fewer reporters to carry out this painstaking and time-consuming reporting, and the financial peril faced by many news organizations has left them much more vulnerable to attack.</p>
<p>Journalism is now in a transitional state. The kind of power that outlets like CBS News and The Washington Post possessed in the Watergate era <a href="https://www.niemanlab.org/2018/05/why-the-golden-age-of-newspapers-was-the-exception-not-the-rule/">was based in the enormous commercial profitability</a> that effectively insulated investigative journalism. </p>
<p>Controversial reportage – no matter how accurate and verified – is now regularly derided as “<a href="https://www.vox.com/policy-and-politics/2018/5/9/17335306/trump-tweet-twitter-latest-fake-news-credentials">fake news.</a>” Whether produced by CNN in the United States, Al Jazeera in Qatar, or even by a state broadcaster like the Australian Broadcasting Corporation (which has seen <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/BudgetReview201819/Fundingfornationalbroadcasters">its funding cut</a> in recent years), unwelcome information is quickly attacked and dismissed. </p>
<p>The public’s support for independent and critical reportage is essential to sustaining it. Without it, the governments of such leaders as <a href="https://www.cjr.org/local_news/trump-and-trickle-down-press-persecution.php">Donald Trump</a>, <a href="https://www.nytimes.com/2019/02/07/us/politics/khashoggi-mohammed-bin-salman.html">Saudi Prince Mohammad bin Salman</a>, <a href="https://rsf.org/en/philippines">Rodrigo Duterte in the Philippines</a>, and even <a href="https://www.abc.net.au/radio/programs/pm/mounting-pressure-for-inquiry-into-media-freedom-in-australia/11196496">Prime Minister Scott Morrison</a> in Australia, can act with impunity to intimidate - and even silence - journalists. </p>
<p>The global attacks on the media are having a cumulative effect. <a href="https://rsf.org/en/rsf-index-2018-hatred-journalism-threatens-democracies">Support for journalism is eroding</a> even in Western democracies, according to journalism advocates Reporters Without Borders. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/278721/original/file-20190610-52753-mxqtzf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/278721/original/file-20190610-52753-mxqtzf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/278721/original/file-20190610-52753-mxqtzf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=376&fit=crop&dpr=1 600w, https://images.theconversation.com/files/278721/original/file-20190610-52753-mxqtzf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=376&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/278721/original/file-20190610-52753-mxqtzf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=376&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/278721/original/file-20190610-52753-mxqtzf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=473&fit=crop&dpr=1 754w, https://images.theconversation.com/files/278721/original/file-20190610-52753-mxqtzf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=473&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/278721/original/file-20190610-52753-mxqtzf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=473&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Journalists and supporters protest in January 2018 against the revocation of the registration of news organization, the Rappler, which published stories critical of Philippines President Duterte.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Philippines-Media/611a79b429fe428ebb80b8bf649de2d6/8/0">AP/Bullit Marquez</a></span>
</figcaption>
</figure>
<h2>Police warrants mean intimidation</h2>
<p>The Australian police raid wasn’t the only one aimed at journalists in recent weeks. On May 24, San Francisco’s chief of police <a href="https://www.nytimes.com/2019/05/25/us/san-francisco-police-chief.html">was forced to apologize</a> for raiding a journalist’s home two weeks earlier. </p>
<p>Aside from violating the Constitution, the San Francisco police department may have broken California’s <a href="https://www.sfchronicle.com/bayarea/article/California-journalists-shield-law-one-of-the-13846045.php">journalistic shield law</a>. That law was designed to protect the ability of journalists to keep sources confidential. </p>
<p>But in Australia, shortly before the Australian Broadcasting Corporation raid, authorities seached <a href="https://www.bbc.com/news/world-australia-48511217">a newspaper journalist’s home in the nation’s capital</a> looking to discover her source for a report about a secret government surveillance plan. Though the press howled in outrage, the raid was legal.</p>
<p>In the United States, the closest parallel to the Australian Broadcasting Corporation search occurred in 1971, in response to the CBS Reports documentary <a href="https://interviews.televisionacademy.com/shows/cbs-reports-the-selling-of-the-pentagon">“The Selling of the Pentagon.”</a></p>
<p>That program revealed how taxpayer funding underwrote domestic propaganda to convince Americans to support the military during the controversial Vietnam War. “The Selling of the Pentagon” made allegations of impropriety and illegality. Public controversy erupted immediately. </p>
<p>At least two government representatives claimed the film had been manipulated to alter the substance of their remarks, resulting in a congressional subcommittee demanding to see CBS News’ draft scripts and film outtakes. </p>
<p>Frank Stanton, the president of CBS, rejected the subpoena, arguing that all reporting materials were protected by the First Amendment. After announcing <a href="https://books.google.com/books/about/Fighting_for_the_First_Amendment.html?id=Fv9kAAAAMAAJ&source=kp_book_description">he was prepared to go to jail to protect CBS journalism</a>, the public rallied in favor of the network and the House committee voted to stand down.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/LLyd5zjqsSs?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Former CBS President Frank Stanton discusses “The Selling of the Pentagon” and defying a government subpoena for reporters’ notes.</span></figcaption>
</figure>
<h2>Public support for journalistic liberty</h2>
<p>Stanton’s ability to challenge Congress occurred because he had the backing of his corporate board. And his defiance was empowered by public support for journalistic liberty. </p>
<p>By the time “The Selling of the Pentagon” aired on CBS, the <a href="https://www.nytimes.com/2017/01/07/opinion/sunday/vietnam-the-war-that-killed-trust.html">American public had turned against the Vietnam War and viewed the Pentagon with suspicion</a>. Attacking CBS News backfired on Congress and the Pentagon, as the charges made in “The Selling of the Pentagon” were given new life by continuing press coverage.</p>
<p>The same thing <a href="https://twitter.com/abc730/status/1136128785504321536">seems to be occurring</a> with the heavy-handed tactics employed by the Australian police now. </p>
<p>Australians are, courtesy of the police, being reminded of the original ABC reporting. It’s become so embarrassing to the government that Prime Minister Morrison – after stating he’s <a href="https://indaily.com.au/news/2019/06/06/government-not-to-blame-for-media-raids-morrison/">“never troubled” by police who are upholding the law</a> – has now said that his government “<a href="https://indaily.com.au/news/2019/06/06/government-not-to-blame-for-media-raids-morrison/">is absolutely committed to freedom of the press</a>.” </p>
<p>In my opinion, Morrison’s reversal is simple: He’s sensed public opinion turning against his administration’s anti-press tactics.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/278724/original/file-20190610-52753-1i0qkdn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/278724/original/file-20190610-52753-1i0qkdn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/278724/original/file-20190610-52753-1i0qkdn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/278724/original/file-20190610-52753-1i0qkdn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/278724/original/file-20190610-52753-1i0qkdn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/278724/original/file-20190610-52753-1i0qkdn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/278724/original/file-20190610-52753-1i0qkdn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/278724/original/file-20190610-52753-1i0qkdn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A poster is displayed by Finnish newspaper Helsingin Sanomat in Helsinki on July 15, 2018, the day before a summit meeting between U.S. President Donald Trump and Russian President Vladimir Putin.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Finland-Trump-Putin-Summit/40b406d8bfbc403b9ca1a45463c619d7/17/0">AP/Markus Schreiber</a></span>
</figcaption>
</figure>
<h2>The chilling effect</h2>
<p>Whether it was “The Selling of the Pentagon” or the “Afghan Files,” <a href="https://theconversation.com/state-intimidation-of-journalists-leaves-media-freedom-in-jeopardy-25282">these intimidation tactics</a> are never primarily concerned with the reporting at hand. In both cases, the stories were already public. Any damage they caused had already been absorbed by the time the governments sought remedy. </p>
<p>The real purpose of these legal actions is to <a href="https://rsf.org/en/2019-world-press-freedom-index-cycle-fear">discourage new independent reporting in the public interest</a>. </p>
<p>Courageous journalism is critical to democracy, and <a href="https://www.cambridge.org/core/books/driving-democracy/92B639505D8D6B1D0CD46FF055DA0257#fndtn-information">its role in checking the power of state authority is essential</a>. So these moves against future investigative stories are actually attacks by the state on democratic governance and the authority of the citizenry.</p>
<p>If law enforcement in the U.S. or Australia can lodge doubts and instill fear in the minds of journalists and their sources, or if they can get news organizations to shy away from controversial stories, then these raids will have served their purpose – even if no follow-up charges result. </p>
<p>It’s called the “<a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/bulr58&div=39&id=&page=&t=1560125235">chilling effect,”</a> and its success can only be measured in the negative, when stories <em>aren’t</em> reported.</p>
<p>That hesitation and uncertainty in the mind of every journalist and confidential source represents the real damage to democracy. But it’s something that will receive far less publicity than any police raid.</p>
<p>[ <em><a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=thanksforreading">Thanks for reading! We can send you The Conversation’s stories every day in an informative email. Sign up today.</a></em> ]</p><img src="https://counter.theconversation.com/content/118425/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael J. Socolow receives funding from the Fulbright Scholar Program. He is currently a Fulbright Scholar at the News & Media Research Centre at the University of Canberra (Australia).. </span></em></p>
An American media scholar studying in Australia looks at the protections offered by the two countries for investigative reporting, raising crucial questions about journalism’s role in democracy.
Michael J. Socolow, Associate Professor, Communication and Journalism, University of Maine
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/108322
2018-12-07T11:40:57Z
2018-12-07T11:40:57Z
Fight for federal right to education takes a new turn
<figure><img src="https://images.theconversation.com/files/249318/original/file-20181206-128208-1bln74n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The nation's founders saw education as key to self-rule.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/digital-composite-statue-liberty-supreme-court-279495323?src=4XfHCs9m3BpeFe2C8OQDWw-1-54">Joseph Sohm/www.shutterstock.com</a></span></figcaption></figure><p>A new fight to secure a federal constitutional right to education is spreading across the country. This fight has been a long time coming and is now suddenly at full steam.</p>
<p>In 1973, plaintiffs in <a href="https://www.oyez.org/cases/1972/71-1332">San Antonio Independent School District v. Rodriguez</a> argued that school funding inequities violated the right to education. The Supreme Court rejected education as a fundamental right under the federal Constitution, leaving funding inequalities in Texas and elsewhere completely untouched. For more than 40 years, no one even dared to directly challenge Rodriguez’s conclusion in court. Now, in just two years, four different legal teams and plaintiff groups have done just that. But this time, they are shifting their arguments away from just claims about money. They are focusing on educational quality, literacy and learning outcomes.</p>
<p>The boldest claim was <a href="https://www.theatlantic.com/education/archive/2018/11/lawsuit-constitutional-right-education/576901/">filed</a> on Nov. 29 in Rhode Island, arguing for an education that prepares students for citizenship – an argument that draws directly on my own legal <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2982509">research</a> and expertise as a <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=621981">scholar of education law</a>. </p>
<p>When plaintiffs filed the first two cases in Detroit and Connecticut in 2016, the Supreme Court was set to shift significantly to the left. Hillary Clinton was a strong favorite to win the presidency and fill the vacancy created by the death of Justice Antonin Scalia. What looked like perfect timing for plaintiffs in mid-2016 turned awful a few months later when Clinton lost. The questions now are why plaintiffs, including new ones, continue to press forward and whether they have any chance of winning. The answers lie in a strange and tangled confluence of events that include school funding shifts, new legal theories and evolving cultural challenges.</p>
<h2>Steep declines in school funding</h2>
<p>Schools’ real-world problems are first and foremost driving the litigation. Detroit’s schools, for instance, are among the most segregated, lowest performing and most financially strapped in the country. The net result, plaintiffs allege, are schools where “<a href="https://www.detroit-accesstoliteracy.org/wp-content/uploads/2016/09/2016-09-13-Complaint.pdf">illiteracy is the norm</a>.” Detroit’s problems, while severe, are not entirely unique. Public schools nationwide are suffering from increasing <a href="https://www.vox.com/2018/3/5/17080218/school-segregation-getting-worse-data">segregation</a> and a decade of steep <a href="https://www.aft.org/sites/default/files/decade-of-neglect-2018.pdf">funding cuts</a>. </p>
<p>State tax revenues have been up since 2012, but most states continue to fund education at a <a href="https://www.cbpp.org/research/state-budget-and-tax/a-punishing-decade-for-school-funding">lower level</a> than they did before the 2008 recession. </p>
<p>While many state supreme courts allow students to challenge educational inequality and inadequacy, about 20 do not. The courts that bar such challenges say that educational opportunity involves issues beyond their authority to tackle. So children’s right to challenge educational deprivations sadly depends on where they live. Michigan, Mississippi and Rhode Island are three of the states where kids have no recourse in state court. This explains why three of the four new lawsuits are in these states.</p>
<h2>A novel approach</h2>
<p>Whether these cases succeed, however, depends far more on the legal theories behind them than egregious facts. The Rodriguez ruling rejected the fundamental right to “equal” education. Plaintiffs in Michigan and Connecticut assert a fundamental right to “adequate” education, not equal education. More specifically, the plaintiffs call it <a href="https://assets.documentcloud.org/documents/3034130/Martinez-v-Malloy-Complaint.pdf">minimally adequate education</a> in Connecticut and <a href="https://www.detroit-accesstoliteracy.org/wp-content/uploads/2016/09/2016-09-13-Complaint.pdf">literacy</a> in Michigan. Earlier this year, the lower courts in those cases rejected the notion that this nuance was significant and held that kids do not have a federal right to those things either. </p>
<p>The case just filed in Rhode Island seeks to avoid that trap by doing something completely new. It focuses on the civics knowledge and skills that our democratic form of government demands of citizens – a topic with deep historical roots. My recent <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2982509">research</a> demonstrated that our founders intended public education to be a core aspect of the “republican form of government” that our federal Constitution demands.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/249328/original/file-20181206-128202-6m3s3s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/249328/original/file-20181206-128202-6m3s3s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/249328/original/file-20181206-128202-6m3s3s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/249328/original/file-20181206-128202-6m3s3s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/249328/original/file-20181206-128202-6m3s3s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/249328/original/file-20181206-128202-6m3s3s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/249328/original/file-20181206-128202-6m3s3s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/249328/original/file-20181206-128202-6m3s3s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The nation’s founders encouraged public education.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/signing-declaration-independence-us-two-dollar-272952671?src=FHIsoVfe_PGqcOyEBAeH4g-1-2">vkilikov/www.shutterstock.com</a></span>
</figcaption>
</figure>
<p>Our republican form of government began as an experiment in the idea that everyday citizens could govern themselves. But our founders – people like George Washington, John Adams and Thomas Jefferson – <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3256887">emphasized</a> that public education was necessary for those governments to work. In legislation that would dictate how the western territory would be divided up and later become states, Congress in the Northwest Ordinances of <a href="https://www.u-s-history.com/pages/h1150.html">1785</a> and <a href="https://www.ourdocuments.gov/doc.php?flash=false&doc=8&page=transcript">1787</a> mandated that each township reserve a central lot for public schools and that the states use their public resources to “forever encourage” those schools. </p>
<p>The most explicit evidence of education’s necessity comes from Southern states’ readmission to the Union following the Civil War. Congress <a href="https://theconversation.com/the-constitutional-right-to-education-is-long-overdue-88445">forced</a> all the Southern states to provide for education in their state constitutions and explicitly conditioned the readmission of the last three states’ on those states never depriving students of the education rights they had just extended to citizens.</p>
<p>Congress was not acting arbitrarily. The Constitution requires Congress to “<a href="https://www.law.cornell.edu/constitution/articleiv">guarantee</a>” a republican form of government in the states. The South’s <a href="https://www.thirteen.org/wnet/slavery/experience/education/docs1.html">criminalization</a> of literacy among blacks, refusal to create school systems for middle-class whites, and general failure to operate a government that looked anything like democracy only reinforced the wisdom of the nation’s founding ideas. Following the war, Congress took decisive steps to correct the South’s failures in education and give full meaning to the constitutional idea of a republican form of government. </p>
<h2>Prospects for federal right to education</h2>
<p>Whether this history will serve as the key to unlock the right to education for today’s generation is uncertain. Regardless of the merits of these cases, Donald Trump’s nominations have made the Supreme Court more conservative. Yet, recent political cycles have also exposed weaknesses in America’s democracy and the need for a better-informed electorate, as everyday citizens struggle to make sense of highly polarized political debates, fake news and conflicting media accounts.</p>
<p>Public education cannot solve democracy’s challenges by itself, much less do so in a short period of time. The challenges are far too large. But if the nation is to secure a meaningful long-term solution, it will be through the same strategy as the founders.</p>
<p>They long ago warned in <a href="http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl47.php">letters</a>, <a href="http://avalon.law.yale.edu/18th_century/washs08.asp">presidential addresses</a> to Congress and other <a href="https://www.wgbh.org/news/2016/06/21/local-news/4-things-worth-knowing-about-massachusetts-constitution-which-236-years-old">official acts</a> that the strength of our democracy would depend on public education cultivating the skills of citizenship. Public education was to be the fuel that makes democracy work and the only sure guarantee that those controlling government will preserve rights and liberties, rather than trample on them. Put that way, the federal right to education may be a moonshot, but it is one the plaintiffs in these cases cannot afford to miss.</p><img src="https://counter.theconversation.com/content/108322/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Derek W. Black does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The Supreme Court long ago rejected the idea of a federal right to education. Can a series of new lawsuits convince the court to change its mind?
Derek W. Black, Professor of Law, University of South Carolina
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/105277
2018-10-23T10:44:09Z
2018-10-23T10:44:09Z
These kids and young adults want their day in court on climate change
<figure><img src="https://images.theconversation.com/files/241740/original/file-20181022-105776-16faksp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Young people will spend more years living with the consequences of climate policies than their elders.</span> <span class="attribution"><a class="source" href="http://t.co/5SAiSqtOiV">Robin Loznak, courtesy of Our Children's Trust</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span></figcaption></figure><p>Humanity must rapidly decrease greenhouse gas emissions to avoid catastrophic levels of global warming, <a href="https://www.ipcc.ch/news_and_events/30years.shtml">climate scientists</a> have warned for decades. But America’s president has both feet on the <a href="https://www.theguardian.com/environment/2018/oct/08/global-warming-must-not-exceed-15c-warns-landmark-un-report">fossil fuel accelerator</a>.</p>
<p>One way to force President Donald Trump to put the brakes on his dangerous “<a href="https://theconversation.com/is-energy-dominance-the-right-goal-for-us-policy-79825">energy-dominance</a>” policy is a lawsuit filed on behalf of 21 young people. Using a <a href="http://climatecasechart.com/case/juliana-v-united-states/">barrage of legal motions</a>, the administration’s lawyers are scrambling to keep this case, known as Juliana v. United States, from going to trial.</p>
<p>As <a href="https://law.uoregon.edu/explore/mary-wood">environmental law</a> <a href="https://scholar.google.com/citations?user=5fHeakAAAAAJ&hl=en&oi=ao">professors</a>, we have <a href="http://www.aulawreview.org/no-ordinary-lawsuit-climate-change-due-process-and-the-public-trust-doctrine/">written</a> about this remarkable case and are teaching our students about it. This case positions the climate crisis squarely in the realm of fundamental civil rights jurisprudence, where we believe it belongs. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/xzcMYnp4xCM?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Our Children’s Trust plaintiff Aji Piper gave a TED talk in which he explains why he and 20 other young people are suing the federal government over climate change.</span></figcaption>
</figure>
<h2>A long time coming</h2>
<p>Spearheaded by <a href="https://www.ourchildrenstrust.org/">Our Children’s Trust</a>, a nonprofit, this lawsuit is pending in a federal court in Oregon. It challenges U.S. energy policies on the basis that they are destabilizing the climate and violating established constitutional rights to personal security. The case originally took aim at the Obama administration when lawyers <a href="https://insideclimatenews.org/news/09022017/climate-change-lawsuit-donald-trump-children">first filed the case in 2015</a>. It now targets the Trump administration. </p>
<p><a href="https://www.youthvgov.org/meet-the-youth/">The 21 youth plaintiffs</a>, who currently range in age from 11 to 22 years old, are seeking to require the federal defendants to prepare and implement an enforceable <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/reel.12248">national remedial plan</a> to phase out the excessive greenhouse gas emissions that cause climate change. </p>
<p>The district court in Oregon issued a <a href="http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2018/20181015_docket-615-cv-1517_opinion-and-order.pdf">decision</a> reaffirming the case’s core <a href="http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2015/20150910_docket-615-cv-1517_complaint.pdf">claims</a> on Oct. 15. </p>
<p>Currently, the fate of this case hangs in the balance due to a motion to <a href="https://www.usnews.com/news/news/articles/2018-10-19/us-tries-to-stop-youth-climate-lawsuit-days-before-trial">stop the proceedings</a>, filed by Justice Department lawyers in the U.S. Supreme Court just 11 days before the trial was scheduled to begin on Oct. 29. The <a href="https://www.motherjones.com/environment/2018/07/supreme-court-says-kids-can-sue-trump-over-climate-change/">Supreme Court</a> had refused the Trump administration’s prior effort to throw out the lawsuit in July 2018. This time, the court <a href="https://www.apnews.com/da345dcfc68842e59147cc4bf1613e6f">temporarily put the trial on hold</a> the next day. </p>
<p><a href="https://cdn.theconversation.com/static_files/files/332/2018.10.22.SCOTUS_Brief_FINAL_for_filing.pdf?1540238023">Attorneys for the youth plaintiffs</a> have since filed a response with the Supreme Court to this <a href="https://www.climateliabilitynews.org/2018/10/06/trump-administration-kids-climate-case/">latest of many attempts by Justice Department lawyers</a> to stop the climate trial from going forward. </p>
<p>But the trial is <a href="https://static1.squarespace.com/static/571d109b04426270152febe0/t/5bd286c44785d33e125cbdff/1540523717271/2018.10.25+Media+Advisory+for+Oct+29.pdf">now in limbo</a> pending a Supreme Court order on the petition. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1053424874880827392"}"></div></p>
<h2>Civil and constitutional rights</h2>
<p>Should the Juliana case succeed, there would be a court-supervised federal plan to shrink the nation’s carbon footprint at a rate necessary to stave off <a href="https://www.cnn.com/2018/10/07/world/climate-change-new-ipcc-report-wxc/index.html">disastrous levels of climate change</a>.</p>
<p>Environmental lawsuits <a href="https://billmoyers.com/2014/09/19/natures-trust-new-approach-environmental-law/">typically rely</a> on statutes or regulations. But Juliana is a civil rights case. It bores down to legal bedrock by asserting that people have constitutional rights to inherit a stable climate system capable of sustaining human lives and liberties.</p>
<p>The <a href="http://www.aulawreview.org/no-ordinary-lawsuit-the-public-trust-and-the-duty-to-confront-climate-disruption-commentary-on-blumm-and-wood/">judicial role</a> in this case is analogous to court-supervised remedies aimed at ending official school segregation after the Supreme Court’s landmark <a href="https://theconversation.com/much-of-what-you-think-you-know-about-linda-brown-a-central-figure-in-brown-v-board-of-education-is-wrong-94082">Brown v. Board of Education</a> ruling.</p>
<p>The district court has rightly described Juliana as “<a href="http://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf">no ordinary lawsuit</a>.” As the youth plaintiffs assert, there remains only “an extremely limited amount of time to preserve a habitable climate system for our country.”</p>
<h2>Role of the courts</h2>
<p>U.S. fossil fuel production surged during <a href="https://www.motherjones.com/environment/2014/09/how-obama-became-oil-president-gas-fracking-drill/">Barack Obama’s presidency</a> even though he did support renewable energy and he engaged in climate-related diplomacy. As the window of opportunity to avert what UN Secretary General António Guterres calls the “<a href="https://www.un.org/sg/en/content/sg/statement/2018-09-10/secretary-generals-remarks-climate-change-delivered">direct existential threat</a>” of climate change is about to close under Trump’s leadership at a time when Republicans control both chambers of Congress, checks and balances in government matter more than ever before. </p>
<p>The U.S., after all, has three, not two, branches of government. In the Constitution, the Founders wisely created an independent judiciary and gave it the responsibility of preventing the other branches from trammeling upon the fundamental liberties of citizens.</p>
<p>In the Juliana case, youth plaintiffs are asserting well-established rights under the Constitution’s due process and equal protection clauses to personal security, family autonomy and property. They contend that the government’s fossil fuel policies jeopardize human life, private property and civilization itself.</p>
<p>They further assert rights secured by the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2572802">public trust doctrine</a>, a principle with ancient roots requiring government to hold and protect essential resources as a sustaining endowment for citizens, in the present and the future.</p>
<p>Oregon District Court <a href="https://www.ord.uscourts.gov/index.php/court-info/judges/judge-aiken-sub/93-honorable-judge-ann-aiken">Judge Ann Aiken</a> issued a <a href="http://www.slate.com/articles/health_and_science/science/2016/11/the_kids_lawsuit_over_climate_change_is_our_best_hope_now.html">landmark decision</a> in 2016 upholding both the Constitution’s due process rights and public trust rights, allowing the case to proceed.</p>
<p>At that time, she declared, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” Numerous <a href="https://insideclimatenews.org/news/11072018/joseph-stiglitz-kids-climate-change-lawsuit-global-warming-costs-economic-impact">world-class experts plan to testify</a> during the trial in her courtroom to explain the grave threats posed by Trump’s energy policies.</p>
<h2>Not just here</h2>
<p>Judicial alarm over governmental failure to confront the climate emergency is growing around the world, resulting in decisions in <a href="https://www.theguardian.com/environment/2015/oct/07/pakistan-high-court-comes-to-defence-of-climate?CMP=share_btn_tw">Pakistan</a>, the <a href="https://www.theguardian.com/environment/2018/oct/09/dutch-appeals-court-upholds-landmark-climate-change-ruling">Netherlands</a>, and <a href="https://www.climateliabilitynews.org/2018/04/05/colombia-amazon-climate-change-deforestation/">Colombia</a> that ordered the authorities to act. These cases are all based on similar legal arguments: that governments have an obligation to protect their citizens from climate change.</p>
<p>A Dutch appeals court, for example, has ordered the Dutch government to cut emissions by <a href="https://www.irishtimes.com/news/environment/dutch-court-upholds-ruling-ordering-cut-in-emissions-1.3657599">25 percent from 1990 levels by 2020</a>. </p>
<p>In trying to get the case thrown out, <a href="https://thehill.com/policy/energy-environment/412045-trump-admin-again-asks-supreme-court-to-stop-youth-climate-lawsuit">Justice Department lawyers</a> for the <a href="https://www.ourchildrenstrust.org/federal-proceedings/">Trump and Obama administrations</a> alike have contested the <a href="http://climatecasechart.com/case/juliana-v-united-states/">jurisdiction of the district court</a> over these claims. The Trump lawyers also argue that a 50-day trial would impose an undue burden and cause irreparable harm.</p>
<p>But for the Supreme Court to stop the case on the eve of trial would disregard the standard judicial process. The courts use trials to develop a full record to determine constitutional violations.</p>
<p>In our view, following the <a href="https://theconversation.com/what-gorsuchs-conservative-supreme-court-means-for-workers-76196">controversies</a> and <a href="https://theconversation.com/us/topics/brett-kavanaugh-56609">turmoil surrounding Trump’s Supreme Court nominees</a>, the credibility of the judiciary itself is fragile. <a href="https://www.youthvgov.org/trial">Rallies</a> planned around the country in support of the litigation could soon turn to protests against a perceived abrogation of fair judicial process if the case does not go to trial.</p>
<p>We think that this climate lawsuit should force everyone to see what a fleeting – and terrifying – moment in history this is. With humanity’s very ability to survive on the planet hanging in the balance, the stakes could not be higher. </p>
<p><em>This article draws on material originally published on <a href="https://theconversation.com/earth-on-the-docket-why-obama-cant-ignore-this-climate-lawsuit-by-americas-youth-69193">Dec. 15, 2016</a>. It was updated to indicate that the Supreme Court stay has led to the trial’s indefinite postponement.</em></p><img src="https://counter.theconversation.com/content/105277/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Wood has participated in a group of more than 60 law professors signing amicus briefs in support of youth-led climate cases against government. </span></em></p><p class="fine-print"><em><span>Michael C. Blumm has participated in a group of more than 60 law professors signing amicus briefs in support of youth-led climate cases against government.</span></em></p>
The Trump administration is trying to spike a lawsuit against the US government arguing that there’s a constitutional right to a stable climate.
Mary Wood, Philip H. Knight Professor of Law, University of Oregon
Michael C. Blumm, Jeffrey Bain Scholar & Professor of Law, Lewis & Clark
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/69467
2016-12-12T03:40:59Z
2016-12-12T03:40:59Z
Celebrity voices are powerful, but does the First Amendment let them say anything they want?
<figure><img src="https://images.theconversation.com/files/149477/original/image-20161209-31391-6kl964.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Taking a knee during the national anthem isn't risk-free in the NFL.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Protesting-Dolphins-Football/4a2a88bed8f449cfab9062479a24dab6/1/0">AP Photo/Stephen Brashear, File</a></span></figcaption></figure><p>When NFL player <a href="https://theconversation.com/the-oppressive-seeds-of-the-colin-kaepernick-backlash-66358">Colin Kaepernick</a> refuses to stand for the national anthem, or the cast of the Broadway musical “Hamilton” confronts the vice president-elect, or the Dixie Chicks <a href="http://www.dailykos.com/story/2013/3/11/1193171/-Ten-Years-Ago-This-Week-the-Dixie-Chicks-Found-Free-Speech-Comes-at-a-High-Price">speak out against war</a>, talk quickly turns to freedom of speech. Most Americans assume they have a constitutional guarantee to express themselves as they wish, on whatever topics they wish. But how protected by the First Amendment are public figures when they engage in political protest?</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/orXogk3euMA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Recently, celebrities have become increasingly vocal regarding the collective Movement for Black Lives, for instance.</span></figcaption>
</figure>
<p>Coming out publicly, whether for or against some disputed position, can have real consequences for the movement and the celebrity. However helpful a high-profile endorsement may be at shifting the public conversation, taking these public positions – particularly unpopular ones – may not be as protected as we assume. As a professor who studies the intersection of law and culture, I believe Americans may need to revisit their understanding of U.S. history and the First Amendment. </p>
<h2>Harnessing the power of celebrity</h2>
<p>Far from being just product endorsers, celebrities <a href="http://dx.doi.org/10.1007/s10551-009-0090-4">can and do use their voices</a> to influence policy and politics. For example, <a href="http://www.stat.columbia.edu/%7Egelman/stuff_for_blog/celebrityendorsements_garthwaitemoore.pdf">some researchers believe</a> Oprah Winfrey’s early endorsement of Barack Obama helped him obtain the votes he needed to become the 2008 Democratic nominee for president.</p>
<p>This phenomenon, however, is not new. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/149474/original/image-20161209-31352-1uldoe0.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/149474/original/image-20161209-31352-1uldoe0.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/149474/original/image-20161209-31352-1uldoe0.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=846&fit=crop&dpr=1 600w, https://images.theconversation.com/files/149474/original/image-20161209-31352-1uldoe0.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=846&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/149474/original/image-20161209-31352-1uldoe0.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=846&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/149474/original/image-20161209-31352-1uldoe0.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1063&fit=crop&dpr=1 754w, https://images.theconversation.com/files/149474/original/image-20161209-31352-1uldoe0.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1063&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/149474/original/image-20161209-31352-1uldoe0.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1063&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gilbert du Motier Marquis de Lafayette, early celeb.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Gilbert_du_Motier_Marquis_de_Lafayette.PNG">Joseph-Désiré Court</a></span>
</figcaption>
</figure>
<p>Since the birth of the nation, celebrities have used their voices – and had their voices used – to advance important causes. In 1780, George Washington enlisted the help of Marquis de Lafayette, a French aristocrat dubbed by some “<a href="https://newrepublic.com/article/123170/marquis-de-lafayette-americas-first-celebrity">America’s first celebrity</a>,” to ask French officials for more support for the Continental Army. Lafayette was so popular that when he traveled to America some years later, the press <a href="http://www.jstor.org/stable/4233634">reported on each day and detail</a> of his yearlong visit.</p>
<p>Social movements also have harnessed the power of celebrity influence throughout American history. In the early 1900s, after the National Woman Suffrage Association was founded to pursue the right of women to vote, <a href="http://www.historynet.com/womens-suffrage-movement">the group used celebrities</a> to raise awareness of the cause. Popular actresses like Mary Shaw, Lillian Russell and Fola La Follette, for example, <a href="https://books.google.com/books?id=QO79UClRsDMC&pg=PA7&lpg=PA7&dq=national+woman+suffrage+movement+actress&source=bl&ots=EKlau1ccmV&sig=bERJBYmVA4vtMwKoZZhoQ5RorZU&hl=en&sa=X&ved=0ahUKEwi-3rvW6OXQAhULjlQKHZOjAZoQ6AEINTAE#v=onepage&q=national%20woman%20suffrage%20movement%20actress&f=false">brought attention</a> to the movement, combining their work with political activism to push the women’s suffrage message.</p>
<h2>Celeb actions can move the needle</h2>
<p>The civil rights movement of the 1960s benefited from celebrities’ actions. For instance, after Sammy Davis Jr., a black comedian, refused to perform in segregated venues, many clubs in Las Vegas and Miami became integrated. Others – including Ossie Davis and Ruby Dee, Dick Gregory, Harry Belafonte, Jackie Robinson and Muhammad Ali – were <a href="https://news.vcu.edu/article/Hollywood_celebrities_unsung_role_in_the_civil_rights_movement">instrumental in the success</a> of the movement and passage of the Civil Rights Act of 1964. These actors planned and attended rallies, performed in and organized fundraising efforts and worked to open opportunities for other black people in the entertainment industry.</p>
<p>By the 1980s, you could watch Charlton Heston and Paul Newman <a href="https://books.google.com/books?id=7Q3QE-n8q4UC&pg=PA154&lpg=PA154&dq=Charlton+Heston+and+Paul+Newman+nuclear&source=bl&ots=-eRL7vFhFg&sig=rb4q3wEvuYDCpF9ztOnT3mSkfgs&hl=en&sa=X&ved=0ahUKEwjTx9SN9OXQAhVKw1QKHaa9BDkQ6AEIRjAL#v=onepage&q=Charlton%20Heston%20and%20Paul%20Newman%20nuclear&f=false">debate</a> national defense policy and a potential nuclear weapons freeze on television. Meryl Streep <a href="http://www.pbs.org/tradesecrets/docs/alarscarenegin.html">spoke before Congress</a> against the use of pesticides in foods. Ed Asner and Charlton Heston <a href="https://books.google.com/books?id=-OHQCwAAQBAJ&pg=PA299&lpg=PA299&dq=Nicaraguan+contras+ed+asner+heston&source=bl&ots=dwjrso1QRO&sig=yj8m0oS3JrWqTKiL7_4PyqZ4-hY&hl=en&sa=X&ved=0ahUKEwjAmYfD9eXQAhUhrFQKHfbcD94Q6AEIIzAB#v=onepage&q=Nicaraguan%20contras%20ed%20asner%20heston&f=false">publicly feuded about</a> their differing opinions of the Reagan administration’s support of right-wing Nicaraguan militant groups.</p>
<p>Whatever you think of how well thought out their opinions are (or aren’t), celebrities have the ability to draw attention to social issues in a way others do not. Their large platforms through film, music, sports and other media provide significant amplification for the initiatives they support.</p>
<p>There is, in particular, a measurable connection between <a href="https://doi.org/10.1017/S0021849904040206">celebrity opinions and young people</a>. Most marketing research shows that celebrity endorsements <a href="http://dx.doi.org/10.1086/209029">can improve the likelihood</a> that young consumers will choose the endorsed product.</p>
<h2>Antagonism toward celebrity activism</h2>
<p>Celebrities have been important partners, strategists, fundraisers and spokespeople for social movements and politicians since the earliest days of modern America. Recently, however, celebrities speaking out about policy and politics have received some harsh responses. </p>
<p>Kaepernick, in particular, has received <a href="http://www.esquire.com/news-politics/news/a48246/tomi-lahren-kaepernick-facebook/">scathing criticism</a>. Fans of his team <a href="http://www.dailymail.co.uk/news/article-3762239/You-never-play-NFL-Canada-49ers-fans-burn-Kaepernick-jerseys-national-anthem-114million-sport-star-refused-stand-protest-black-oppression.html">have burned his jersey in effigy</a>. Mike Evans, another NFL player, drew so much criticism for sitting in protest of Donald Trump’s election to the presidency that he was <a href="https://www.washingtonpost.com/news/early-lead/wp/2016/11/15/nfl-player-who-knelt-in-protest-of-donald-trumps-election-pledges-to-stand-for-anthem-again/?utm_term=.7c6cdf41259a">forced to apologize</a> and say he would never do it again. <a href="http://www.nytimes.com/2016/11/19/us/mike-pence-hamilton.html?_r=0">#BoycottHamilton trended on Twitter</a> after the cast of the Broadway show Hamilton addressed Mike Pence. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"799828567941120000"}"></div></p>
<p>President-elect Donald Trump jumped into the fray, tweeting that he does not support the public expression of sentiments like those of the “Hamilton” cast. </p>
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<h2>Unprotected speech</h2>
<p>All of this raises significant questions about speech, protests and the law. Often celebrities, commentators and pundits talk about being able to say whatever they want thanks to their right to freedom of speech. But this idea is based on common misconceptions about what the U.S. Constitution actually says.</p>
<p>What is allowed under the law starts with the text of the <a href="https://www.law.cornell.edu/wex/first_amendment">First Amendment</a>, which provides that:</p>
<blockquote>
<p>“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”</p>
</blockquote>
<p>The language essentially allows for freedom of expression without government interference. The right to free speech includes protests and distasteful speech that one might find offensive or racist.</p>
<p>But, the First Amendment as written applies only to actions by Congress, and by extension the federal government. Over time, it’s <a href="http://faculty.smu.edu/jkobylka/supremecourt/Nationalization_BoRs.pdf">also come to apply to</a> state and local governments. It’s basically a <a href="https://fas.org/sgp/crs/misc/95-815.pdf">restriction</a> on how the government can limit citizens’ speech. </p>
<p>The First Amendment does not, however, apply to nongovernment entities. So private companies – professional sports organizations or theater companies, for instance – <a href="http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1135&context=hlr">can actually restrict speech</a> without violating the First Amendment, because in most cases, it doesn’t apply to them (unless the restriction is illegal for other reasons). This is why the NFL <a href="http://www.michiganreview.com/the-nfl-vs-freedom-of-expression/">could ban</a> DeAngelo Williams from wearing pink during a game in honor of his mother, who had died from breast cancer, and fine him thousands of dollars when he later defied the rules and did it anyway.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/149476/original/image-20161209-31370-1jq2fx9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/149476/original/image-20161209-31370-1jq2fx9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/149476/original/image-20161209-31370-1jq2fx9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=384&fit=crop&dpr=1 600w, https://images.theconversation.com/files/149476/original/image-20161209-31370-1jq2fx9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=384&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/149476/original/image-20161209-31370-1jq2fx9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=384&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/149476/original/image-20161209-31370-1jq2fx9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=483&fit=crop&dpr=1 754w, https://images.theconversation.com/files/149476/original/image-20161209-31370-1jq2fx9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=483&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/149476/original/image-20161209-31370-1jq2fx9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=483&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">DeAngelo Williams is outspoken in supporting breast cancer research. The NFL can limit when he can display his position.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Seahawks-Panthers-Football/2777653831ae429aa42a301b9d7b3b01/16/0">AP Photo/Nell Redmond</a></span>
</figcaption>
</figure>
<p>How does all of this affect celebrities? In a nutshell, if a celebrity is an employee of, or has some kind of contract with, a nongovernment entity, his speech actually can be restricted in many ways. Remember, it’s not against the law for a nongovernment employer to limit what employees can say in many cases. While there are other more limited protections <a href="http://www.americanbar.org/publications/insights_on_law_andsociety/15/winter-2015/chill-around-the-water-cooler.html">based on state and federal law</a> that protect employee speech, they are incomplete and probably wouldn’t apply to most celebrity speech. Any questions about what a public figure can or cannot express, therefore, will start with the language of any contracts she has signed – not the First Amendment. </p>
<p>For better or worse, celebrities can make significant impacts on policy, politics and culture, and have been doing so for centuries. But speaking out can put them at risk. Celebrities can be fined by their employers, like DeAngelo Williams, have their careers derailed, like the <a href="http://www.savingcountrymusic.com/destroying-the-dixie-chicks-ten-years-after/">Dixie Chicks</a>, or <a href="http://edition.cnn.com/2016/09/21/sport/colin-kaepernick-death-threats/">receive death threats</a>, like Colin Kaepernick. Even so, their involvement can provide an influential platform in promoting and creating societal change.</p><img src="https://counter.theconversation.com/content/69467/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shontavia Johnson provides consulting services for Johnson International Group LLC, an organization that provides business assistance to entrepreneurs and entertainers. </span></em></p>
Americans enjoy a right to free speech, and some public figures really exercise that right. The Constitution might not protect them the way they think it does, though.
Shontavia Johnson, Professor of Intellectual Property Law, Drake University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/59125
2016-06-01T15:00:46Z
2016-06-01T15:00:46Z
Internet freedom: why access is becoming a human right
<figure><img src="https://images.theconversation.com/files/124766/original/image-20160601-3253-azci7l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Most South Africans are dependent on unaffordable mobile data to access the Internet</span> <span class="attribution"><a class="source" href="http://networksocietylab.org">Indra de Lanerolle</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>When most people think or speak about internet freedom, they are often concerned with the right, for example, to say what you want online without censorship and without being subject to the chilling effects of surveillance. </p>
<p>These kind of freedoms are sometimes called “negative freedoms” or “freedoms from…”. They address the right not to be interfered with or obstructed in living your life. But there are also “positive freedoms” — <a href="https://www.wiso.uni-hamburg.de/fileadmin/wiso_vwl/johannes/Ankuendigungen/Berlin_twoconceptsofliberty.pdf">“freedoms to…”</a></p>
<p>Some constitutions – notably the US Constitution – only protect negative rights. But South Africa’s includes both negative and positive rights. Positive rights include, for example, the <a href="https://dash.harvard.edu/handle/1/12785996">socio-economic rights</a> to food and shelter. </p>
<p>In its <a href="https://freedomhouse.org/report/freedom-net/freedom-net-2015">Internet Freedom Index</a> Freedom House ranks South Africa as “free” alongside the UK, Argentina and Kenya. The ranking is largely because Freedom House weighs negative freedoms above positive ones. But how “free” is the internet in South Africa? For most, it is positive internet freedoms that may be more urgent.</p>
<h2>Freedom is access</h2>
<p>The South African Constitution in the Bill of Rights does not explicitly protect internet freedom but <a href="http://www.gov.za/documents/constitution/chapter-2-bill-rights#16">section 16(1)</a> states that everyone has the right to “freedom to receive or impart information or ideas”. This is a right for everyone and it is not just a freedom from interference – a “freedom from” – but also a “freedom to”: a right to be able to reach others and be reached by others. In this it follows Article 19 of the <a href="http://www.un.org/en/universal-declaration-human-rights/">Universal Declaration of Human Rights</a>. </p>
<p>In his book <a href="https://books.google.co.za/books?id=NQs75PEa618C&redir_esc=y"><em>Development as Freedom</em></a>, Amartya Sen describes freedom as “our capability to lead the kind of lives we have reason to value”. In many ways, the internet is extending such capabilities. </p>
<p>More people now go online daily than read a newspaper. They are able to read a much greater variety of voices than are seen in print or on television. And <a href="https://twitter.com/CityPowerJhb/with_replies">public services</a> are offering improved responsiveness on social media.</p>
<p>But we are also seeing a new development – instances where internet access is now a requirement. Examples include:</p>
<ul>
<li><p><a href="http://www.cipc.co.za/index.php/Access/how-2/">registering a company</a>,</p></li>
<li><p>The Gauteng Education Department now requires parents with children entering primary or high school to apply <a href="https://www.gdeadmissions.gov.za">online</a>. Previously they could apply at the local school, and</p></li>
<li><p>The South African Broadcasting Corporation has announced that it will no longer advertise its jobs in newspapers, directing job seekers to its own website.</p></li>
</ul>
<p>Indications from government are that we are likely to see <a href="http://www.gov.za/speeches/minister-jeff-radebe-gauteng-e-government-and-ict-summit-2015-2-nov-2015-0000">more such initiatives</a>. The result will be that South Africans’ ability to lead the kind of lives they value will become increasingly dependent on the physical, procedural, economic and social networks that we call “the internet”.</p>
<h2>The question of cost</h2>
<p>According to the <a href="http://www.mediaupdate.co.za/marketing/82875/new-amps-data-shows-relative-stability">All Media Products Survey (AMPS)</a> of June 2015 fewer than half of South African adults had used the internet in the previous four weeks. More than half did not. </p>
<p>When <a href="http://networksocietylab.org/the-new-wave-report-doc/">we asked</a> a representative sample of non-users in South Africa in 2012 why they hadn’t gone online, the main reason was that they had no device to connect with (87%). The second reason was that they didn’t know how to use it (76%) and the third was that it was too expensive (60%).</p>
<p>According to the survey, <a href="http://www.mediaupdate.co.za/marketing/82875/new-amps-data-shows-relative-stability">nine out of ten South Africans</a> now use a mobile phone but only half of those now have access to <a href="https://en.wikipedia.org/wiki/Smartphone">smartphones</a>. The most popular phone brand in South Africa is still Nokia. Most of the models in use have limited or no ability to connect to the net. And because only the better off have access to fixed lines at home or at work, the majority of South Africans, when they do get online, are dependent on mobile networks.</p>
<p>Mobile data is costly.</p>
<p>The International Telecommunications Union and the UN’s Educational, Scientific and Cultural Organisation have set a goal for <a href="http://www.broadbandcommission.org/Documents/Broadband_Targets.pdf">affordable broadband internet access</a>. It is that entry level broadband should not cost more than 5% of average monthly income. Because of a flawed methodology they state in a <a href="http://www.broadbandcommission.org/publications/Pages/SOB-2015.aspx">2015 annual report</a> that South Africa falls well within that target. But digging into the figures shows how unaffordable the internet is for most South Africans.</p>
<p>Statistics SA sets an upper bound poverty line of <a href="http://www.statssa.gov.za/publications/Report-03-10-06/Report-03-10-06March2014.pdf">R779 per month per person</a> (in 2011 prices). Most – about 53% – of the South African population live on income below this, according to the last census. So this poverty line is more or less the average income in the country. The poverty line adjusted for inflation to 2016 would be R1 031.</p>
<p>Taking the international 5% of income goal gives a maximum budget of about R52 per month. On three major networks (which account for more than 95% of all mobile customers) 500MB – the amount of data they set as a minimum – of data costs between R85 and R105. So for the average South African 500MB per month is unaffordable. In fact mobile data prices would have to fall by about half to be affordable.</p>
<p>And is 500MB per month enough? It is enough for a lot of instant messaging, or say about half an hour a day of browsing the web or using Facebook. But it is not enough to participate in otherwise free online courses such as <a href="https://www.khanacademy.org">Kahn Academy</a> that often rely heavily on video.</p>
<p>This is affecting usage. The most popular online activity is instant messaging using applications like whatsapp. But only one in five people download music online.</p>
<p>Could mobile data be much cheaper in South Africa? Evidence suggests that the answer is yes. <a href="http://www.researchictafrica.net/presentations/Presentations/2015_Gillwald_ICT_Access_and_Affordability_AfriSIG.pdf">Research ICT Africa’s price index</a> shows that South Africa’s data prices are over 20% more expensive than Nigeria, Uganda and Mozambique and three times as expensive as Kenya. </p>
<p>It is also worth noting that the poor in South Africa pay much more for data than the better-off. If you have a fixed line in your home you can buy pre-paid data bundles for R7 per GB or even less, a small fraction of what mobile network users pay.</p>
<h2>Free internet?</h2>
<p>We could go further and ask if the internet could and should not only be cheaper but free? In some places and for some people it already is. That includes university students thanks to <a href="http://www.tenet.ac.za">a network for tertiary institutions</a> funded by the government. It also includes many residents in the metropole of Tshwane – including townships – where <a href="http://www.tshwane.gov.za/Pages/WIFI.aspx">there are over 600 wifi hotspots</a> offering 500MB of data per day at fast speeds for free.</p>
<p>Just as South African municipalities give poor households a minimum amount of 600 litres of water and 50kwh of electricity for free, they could extend this model to the internet.</p>
<p>As lawyers sometimes say, the right to freedom of expression is an ‘enabling right’ —- a right that enables people to access or defend other rights. In the same way the internet itself is now an enabling technology that is increasingly required to participate in social, political and economic life.</p>
<p>For many or most South Africans whether or not the <a href="https://pmg.org.za/call-for-comment/420/">Films and Publications Board</a> interferes with their right to view video material online does not affect ‘their capability to lead the lives they value’ because they cannot afford to access video or audio content online. At present, defending ‘negative’ internet rights is protecting the rights of the few. We need to move to demanding the ‘positive right’ of affordable access if we want internet freedom for all.</p><img src="https://counter.theconversation.com/content/59125/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Indra de Lanerolle receives funding from Making All Voices Count for his research on mobile Internet use . He runs the Network Society Lab in the Journalism and Media programme at the University of Witwatersrand, Johannesburg. The Lab conducts research on the social, economic and political effects of the Internet. Indra is a board member of the Freedom of Expression Institute. The views in this article are his own. </span></em></p>
It is time to demand the ‘positive right’ of affordable access if we want internet freedom for all.
Indra de Lanerolle, Visiting Researcher, Network Society Lab, Journalism and Media Programme, University of the Witwatersrand
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/58022
2016-04-26T14:30:56Z
2016-04-26T14:30:56Z
South Africans take stock as the country celebrates Freedom Day
<figure><img src="https://images.theconversation.com/files/120072/original/image-20160425-22383-f8563g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A woman cheers during Freedom Day celebrations in South Africa. </span> <span class="attribution"><span class="source">Reuters/Mujahid Safodien</span></span></figcaption></figure><p>More than any other public holiday, South Africa’s <a href="http://www.gov.za/speeches/freedom-day-2016">Freedom Day</a> serves as a symbol of how far the country has come since its <a href="http://www.sahistory.org.za/dated-event/south-africas-first-democratic-elections">historic elections</a> in 1994.</p>
<p>The country’s peaceful, negotiated transition from an apartheid past earned it international acclaim. It represented the new values of inclusive politics, reconciliation and transitional justice, social transformation, human rights and constitutionalism.</p>
<p>South Africa’s struggle against colonialism was arguably the longest in Africa. Zimbabwe’s independence <a href="http://www.sahistory.org.za/dated-event/zimbabawean-independence-day">in 1980</a> and the impact of the end of the Cold War on southern Africa – in the form of <a href="http://www.sahistory.org.za/dated-event/namibia-gains-independence">Namibia’s independence</a> (1990) and the peace process in Angola – all contributed towards South Africa’s democratisation in the early 1990s. </p>
<p>In the year of the 20th anniversary of the new <a href="http://www.gov.za/documents/constitution/constitution-Republic-South-Africa-1996-1">constitution</a> and the 40th anniversary of the <a href="http://overcomingapartheid.msu.edu/sidebar.php?id=65-258-3">Soweto Uprising</a> it would be appropriate to focus on the state of the nation. Have the expectations of 1994 been met?</p>
<h2>The state of democracy</h2>
<p>The African National Congress (ANC) still <a href="http://www.theguardian.com/world/2014/may/09/anc-wins-fifth-election-south-africa-jacob-zuma">dominates</a> electoral support. But it has come under increasing public criticism and the political narrative has <a href="http://www.news24.com/MyNews24/How-corrupt-is-the-ANC-20111122">turned against it</a>. </p>
<p>Most domestic political discourse is centred on President Jacob Zuma. This includes the <a href="https://theconversation.com/ancs-failure-to-do-the-right-thing-has-left-south-africa-at-an-impasse-57130">Nkandla furore</a> over the use of public money to upgrade his private homestead. He is also mired in allegations of “state capture” by his friends the <a href="https://theconversation.com/why-state-capture-is-a-regressive-step-for-any-society-56837">Guptas</a>, as well as <a href="http://mg.co.za/article/2015-10-09-zuma-blames-anc-kingmakers-for-membership-decline">factionalism</a> in the ANC. </p>
<p>The governing party finds itself in a major crisis sparked by divisions over Zuma’s continued leadership. This follows the unfavourable Constitutional Court <a href="https://theconversation.com/zuma-court-ruling-south-africans-witness-a-massive-day-for-democracy-57070">judgment</a> on <a href="http://www.publicprotector.org/library%5Cinvestigation_report%5C2013-14%5CFinal%20Report%2019%20March%202014%20.pdf">Nkandla</a>. </p>
<p>The ANC’s dominance since 1994 has limited the space for creative opposition, which remains small and fragmented. Nevertheless, since 2009 the governing ANC has lost support in all elections.</p>
<p>The Democratic Alliance, the official opposition, has grown with each election. Smaller parties have all been in decline, with the exception of the radical <a href="http://effighters.org.za/">Economic Freedom Fighters</a>. But it has only contested one election and the 2016 local polls will give a good indication of its real strength. </p>
<p>Though rowdy, challenging, sometimes disrespectful and even chaotic, South Africa’s party and parliamentary politics have become more diverse, more engaging and more demanding of executive accountability. </p>
<p>The increasingly prominent role of parliament, particularly how the opposition uses it, is also very relevant.</p>
<h2>State of the judiciary</h2>
<p>The separation of powers and rule of law principles define the judiciary’s role in society and its independence. The judiciary is fulfilling its mediatory function between opposition parties, parliament and the executive. </p>
<p>The courts’ <a href="https://theconversation.com/zuma-court-ruling-south-africans-witness-a-massive-day-for-democracy-57070">interpretative role</a> of legislation and the <a href="http://www.gov.za/sites/www.gov.za/files/images/a108-96.pdf">constitution</a> plays an increasingly important role in domestic politics. In the process it enhances the judiciary’s independence and the constitution’s supreme status. This has not always endeared it to the governing party, which has accused it of being <a href="https://theconversation.com/are-judges-in-south-africa-under-threat-or-do-they-complain-too-much-45459">untransformed</a>.</p>
<p>Besides the judiciary, <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-09.pdf">Chapter 9 institutions</a> are mandated to support constitutional democracy. Of these, the <a href="http://www.publicprotector.org/about_us/vision_mission.asp">Public Protector</a> has developed into the main body for the public and other parties to investigate abuses of state power or unethical conduct. </p>
<p>By contrast, the Electoral Commission of South Africa is receiving attention for all the <a href="http://mg.co.za/article/2014-09-02-iec-chair-pansy-tlakula-resigns">wrong reasons</a>. Worryingly, the recent annulment of a <a href="https://theconversation.com/annulled-local-byelections-shed-light-on-the-state-of-south-africas-democracy-52100">by-election</a> reflected negatively on the commission’s independence and administrative competence.</p>
<p>The electoral body is one of the main guarantors of the 1994 legacy. Any doubts about its independence will be a serious setback for the trust South Africans have developed in the democratisation process.</p>
<h2>State of the economy</h2>
<p>The <a href="https://theconversation.com/why-south-africas-economy-is-likely-to-grow-more-slowly-than-its-potential-46158">lacklustre economy</a> is a major source of worry. <a href="https://theconversation.com/a-fresh-look-confirms-national-minimum-wage-would-be-good-for-south-africa-51209">Poverty</a>, <a href="http://www.tradingeconomics.com/south-africa/unemployment-rate">unemployment</a> and <a href="https://theconversation.com/factcheck-is-south-africa-the-most-unequal-society-in-the-world-48334">inequality</a> remain stubbornly high.</p>
<p>Economic growth is affected by a number of negative factors. The main ones include the quality of education and training, uncertain power supply, insufficient broadband for small enterprises, inefficient state-owned enterprises, policy uncertainty and a rigid ideological approach to the economy.</p>
<p>But growth isn’t the only indicator of economic quality. Other indicators matter as much, particularly economic equality as measured by the <a href="https://theconversation.com/the-case-for-a-national-minimum-wage-to-tackle-inequality-in-south-africa-50253">Gini coefficient</a> and the <a href="http://hdr.undp.org/en/countries/profiles/ZAF">Human Development Index</a>. South Africa scores poorly on the Gini coefficient but better on the Human Development Index. </p>
<h2>State of delivery of basic services</h2>
<p>Delivery of basic services has been a daunting task. People in many parts of the country have lost patience with the government and have increasingly embarked on <a href="https://theconversation.com/protests-soar-amid-unmet-expectations-in-south-africa-42013">protests</a> over the past decade.</p>
<p>The government regularly presents statistics about increased infrastructure but the quality of services to accompany these does not always improve. Government has embarked on a <a href="http://www.gov.za/about-government/government-programmes/back-basics">“back to basics” plan</a> aimed at addressing some of the most pressing problems. These include a lack of managerial skills, too much party political interference, financial problems and a tradition of non-payment for services.</p>
<p>Most economic decisions depend on international endorsement by financial markets, credit rating agencies and investors. This limits the options open to government to deliver on its promises. Zimbabwe learnt this lesson the <a href="http://www.nytimes.com/2013/11/08/opinion/mutiga-why-zimbabwe-sanctions-boomerang.html?_r=0">hard way</a>. </p>
<p>Arguably the departure point could be that South Africans try and reach consensus about the future they want. This could take the form of an <a href="http://www.iol.co.za/business/news/sa-needs-economic-codesa---sunter-1905660">“economic Codesa” </a>. Key players would come together, as they did in the negotiations that ended apartheid – called the Convention for a Democratic South Africa (Codesa) – to try and reach consensus on the economic choices the country needs to make.</p>
<p>Besides the economy, a number of other areas are crying out for serious attention. These include educational reform, the government’s moral crisis, the development of a culture of public service, and electoral reform that enables voters to punish representatives and parties who fail to respect them.</p><img src="https://counter.theconversation.com/content/58022/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dirk Kotze does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
South Africa’s transition to democracy was based on the values of inclusive politics, reconciliation, human rights and constitutionalism. Twenty-two years on, how has the country fared?
Dirk Kotze, Professor in Political Science, University of South Africa
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/52466
2016-01-12T11:14:27Z
2016-01-12T11:14:27Z
Can schools punish students for off-campus, online speech?
<figure><img src="https://images.theconversation.com/files/106710/original/image-20151218-27854-1j2rfxz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">What are free speech rights of students when they are off-campus?</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/mikecogh/5128537436/in/photolist-8Pc6vf-a1BgB1-51tQ7e-dyPHnn-oA6w7e-6yzN1v-oiTbje-oAki1s-oC7WfT-92YJk5-97zxsu-7jsJYk-7jsJYg-655Dz5-5YeRJH-5Sgrus-fJZgNY-4WvvZq-x13p5-76tqCk-5GdYoN-97xwoa-4mcXzg-2W69b7-2bes4e-4mgZzY-5k63fT-6cMNjL-a6ztE2-4JVF5L-56cgXT-rPUNv-5XA7Tc-5XEo1m-pzAVZ-7ybxrE-77taPz-277T3b-5wH752-6ct1q2-5XEod3-9VaaZe-5SKnNG-f4Yv6-dyfX6r-7VnRhG-rnvHnb-nPDcz-8Q5hSV-67onFd">Michael Coghlan</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>In January 2014, Reid Sagehorn, a student at <a href="http://rhs.elkriver.k12.mn.us/rogers_high.cfm?checked">Rogers High School</a> in Minnesota, jokingly tweeted “<a href="http://arstechnica.com/tech-policy/2015/08/lawsuit-over-two-word-tweet-actually-yes-can-move-ahead-judge-finds/">actually yeah</a>” in response to a question about whether he had made out with one of his high school teachers.</p>
<p>The public school, acting on the tweet, <a href="http://minnesota.cbslocal.com/2014/02/24/theyve-used-an-atom-bomb-to-kill-an-ant-attorney-on-suspension-after-tweet/">suspended him</a> for seven weeks. Sagehorn, a member of the National Honor Society, <a href="http://www.startribune.com/rogers-high-student-sues-district-over-fallout-from-online-post/263479661/">fought the suspension</a> in a federal court, <a href="http://www.scribd.com/doc/230093036/Reid-Sagehorn-v-ISD-728-Rogers-High-School-Complaint">claiming</a> the actions of school officials violated his <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment</a> right to free speech. </p>
<p>Did the school have the right to punish him for his off-campus expression? It turns out – no. </p>
<p>In August 2015, a <a href="http://www.mnd.uscourts.gov/Judges/tunheim.shtml">federal judge</a> <a href="http://kstp.com/kstpImages/repository/cs/files/SagehornLawsuitOrder.pdf">rejected</a> the school officials’ motion to have the case dismissed. After all, the court found that Sagehorn made the post while away from campus, during nonschool hours, without using the school’s computers. And last month Sagehorn collected <a href="http://www.splc.org/article/2015/12/student-suspended-for-two-word-sarcastic-tweet-to-receive-425000-in-settlement">a settlement</a> of more than US$400,000. </p>
<p>Sadly, Reid Sagehorn’s case is not unique. For at least <a href="https://www.bu.edu/law/central/jd/organizations/journals/scitech/volume72/calvert.pdf">the past 15 years</a>, schools across the nation have engaged in Orwellian overreaches into the homes and bedrooms of students to punish them for their off-campus, online expression regarding classmates, teachers and administrators. </p>
<p>Despite the bevy of cases, the issue of whether schools can punish students for off-campus, online speech remains unresolved.</p>
<h2>Cases where school kids were suspended</h2>
<p>For instance, in April 2015, a federal court in Oregon considered a case called <a href="http://law.justia.com/cases/federal/district-courts/oregon/ordce/3:2014cv00605/116657/27/">Burge v Colton School District 53</a> in which an eighth grader was suspended from his public middle school based upon out-of-school comments he posted on his personal Facebook page. </p>
<p>And in September 2014, a federal court in New York considered a case called <a href="https://www.gpo.gov/fdsys/pkg/USCOURTS-nynd-3_12-cv-01888/pdf/USCOURTS-nynd-3_12-cv-01888-0.pdf">Bradford v Norwich City School District</a> in which a public high school student was suspended “based on a text-message conversation he had with another student regarding a third student while outside of school.” </p>
<p>Judge Glenn Suddaby observed in Bradford that “the Supreme Court has yet to speak on the scope of a school’s authority to discipline a student for speech that does not occur on school grounds or at a school-sponsored event.”</p>
<h2>Silence from the Supreme Court</h2>
<p>Indeed, a key problem here is that the <a href="http://www.supremecourt.gov">US Supreme Court</a> has never ruled in a case involving the off-campus speech rights of students in the digital era.</p>
<p>Public school students do possess First Amendment speech rights, although those rights are not the same as those of adults in nonschool settings. </p>
<p>A case in point is the Supreme Court’s <a href="https://supreme.justia.com/cases/federal/us/393/503/case.html">famous 1969 proclamation</a> in Tinker v Des Moines Independent Community School District that students do not
“shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/107090/original/image-20160103-11929-1g80xxx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/107090/original/image-20160103-11929-1g80xxx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/107090/original/image-20160103-11929-1g80xxx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/107090/original/image-20160103-11929-1g80xxx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/107090/original/image-20160103-11929-1g80xxx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/107090/original/image-20160103-11929-1g80xxx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/107090/original/image-20160103-11929-1g80xxx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A key problem has been the silence of the Supreme Court on free speech rights of students.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/kubina/307639437/in/photolist-tbJue-pLFihs-9sMTg8-pVDtsm-xj8dC-fUJT36-5Y3htE-pLGztn-eXMwpm-conrr3-APqHp-oXceR9-peG69R-oXcUFm-cjK2zL-3P99ph-9sMQEz-7YWhrB-djzBuH-etjK2-rbUh3s-6K2mxv-6x6kaD-6YsKD3-aofJU-byuha4-pP6ZFb-mFPdVW-5Vnu54-5TPQZi-eWs9A5-eVXHqp-8s1Vsi-4Q42k7-aFfq3j-9s8LrU-H587R-aC9aKG-fp7JBQ-4YmVeo-my1QAP-6x6kmn-7tLNFt-ch288s-9mNV9x-4TN9ZF-dLk4J-5SB1T1-eVXHYK-27D3n">Jeff Kubina</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>In this case, a divided court upheld the right of students to wear to school black armbands emblazoned with peace signs as a form of political protest against the war in Vietnam. The majority reasoned that such speech could be stopped only if school officials had actual facts to believe it would lead to a substantial and material disruption of the educational atmosphere.</p>
<p>But Tinker was an on-campus speech case. And although the Supreme Court has considered three more student speech cases since Tinker, none involved either off-campus or digital expression.</p>
<h2>A chance to resolve the issue</h2>
<p>Schools today are trying to exert their authority far beyond the schoolhouse gate. Some courts have allowed these efforts and others have rejected them, but now the Supreme Court has a prime opportunity to resolve the matter in a case called Bell v Itawamba County School Board. </p>
<p>In January 2011, a Mississippi high school student, Taylor Bell, was suspended from Itawamba Agricultural High School after he posted, while away from campus during nonschool hours, a homemade rap video to Facebook and YouTube.</p>
<p>In the video, Bell criticizes in no uncertain terms two male teachers for their alleged sexual harassment of minor female students. A version of rap that describes the resulting controversy is available online.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/v83dJsRQBAU?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>In August 2015, the <a href="http://www.ca5.uscourts.gov">US Court of Appeals for the Fifth Circuit</a> narrowly <a href="http://www.ca5.uscourts.gov/opinions%5Cpub%5C12/12-60264-CV2.pdf">ruled</a> that high school officials in Mississippi did not violate the First Amendment speech rights of Bell when they punished him for posting the video because it allegedly threatened two teachers. </p>
<p>In a ruling against Taylor Bell, the Fifth Circuit majority concluded that the rule from the Tinker case applies to off-campus speech:</p>
<blockquote>
<p>when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimidate a teacher, even when such speech originated, and was disseminated, off-campus without the use of school resources.</p>
</blockquote>
<p>One of the judges in the case, James Dennis, writing in dissent, ripped into the majority for broadly proclaiming “that a public school board is constitutionally empowered to punish a student whistleblower for his purely off-campus Internet speech publicizing a matter of public concern.” </p>
<p>Judge Dennis stressed that the rule from Tinker, which requires school officials to reasonably predict a substantial and material disruption will be caused by speech before it can be stopped, does not apply to off-campus speech cases.</p>
<h2>Why the Supreme Court should hear the Taylor Bell case</h2>
<p>Some minors inevitably will post and upload – while away from campus and using their own digital communication devices – allegedly disparaging, offensive or threatening messages and images about fellow students, teachers and school officials on social media platforms such as Facebook, Twitter, YouTube and Snapchat. </p>
<p>The key question, then, is whether and to what extent public schools, consistent with the First Amendment, may discipline students for their off-campus speech. </p>
<p>In November 2015, Bell <a href="http://www.scotusblog.com/wp-content/uploads/2015/12/Taylor-Bell-Cert-Petition-AS-FILED-11-17-15.pdf">filed a petition</a> with the US Supreme Court asking it to hear his case. </p>
<p>As Bell’s attorneys argue, the court should take the case because whether or not Tinker applies to off-campus speech cases has “vexed school officials and courts across the country.”</p>
<p>In December, the organization I direct, the <a href="http://firstamendment.jou.ufl.edu">Marion B Brechner First Amendment Project</a>, filed a friend-of-the-court <a href="http://firstamendment.jou.ufl.edu/pubs/FILED15-666AmicusBrief.pdf">brief</a> urging the court to take the case.</p>
<p>Briefs from the attorneys for the school are <a href="http://www.supremecourt.gov/search.aspx?filename=/docketfiles/15-666.htm">due January 20</a>, and the court will decide whether to hear Bell later this spring.</p>
<p>The bottom line is this: public school students deserve the right to know, pre-posting and pre-texting, what their First Amendment rights are when they are away from campus. </p>
<p>They must, in other words, be given fair notice. The court should hear Bell to let them know precisely what their rights are. It is an issue not likely to go away soon.</p><img src="https://counter.theconversation.com/content/52466/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clay Calvert does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The Supreme Court will soon decide if it will hear a case involving the off-campus speech rights of students.
Clay Calvert, Brechner Eminent Scholar in Mass Communication, University of Florida
Licensed as Creative Commons – attribution, no derivatives.