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Home > Blog > August 2010

August 2010

  • August 23, 2010

    Opposition to Islamic Religious Centers Reaches Beyond NYC

    As noted by First Amendment scholar Charles C. Haynes, anti-mosque rhetoric is not unique to the situation unfolding around the construction of the Islamic center in New York City. The Washington Post reports on strife surrounding plans for construction of an Islamic center in Murfreesboro, Tenn., not far outside Nashville. Local officials, The Post notes, approved the project in the spring, but the affair has been turbulent. The newspaper also cites similar controversies developing in California and Florida as well as a recent Time poll showing that "43 percent of Americans hold unfavorable views of Muslims, far outpacing" unfavorable views of other religious groups.

    The planned construction of an Islamic worship center in Murfreesboro, which The Post describes as "a quiet town of 100,000 people, largely white conservative Christians," drew especially heated opposition. Jim Daniel, a former county commissioner, told the newspaper, "What I sense is a certain amount of fear fueling the animosity," and that residents worry "the Muslims coming in here will keep growing in numbers and override our system of law and impose sharia law." TV preacher Pat Robertson helped stoke the sentiment on his "700 Club," broadcast asserting that it was "entirely possible," for Muslims to bribe Murfreesboro officials to help push the project forward.

    Akbar Ahmed, head of Islamic studies at American University, told The Post, "We are becoming aware that the gap between Muslims and non-Muslims is wider than it was after 9/11, and that's a frightening prospect."

    In a recent column for FindLaw, constitutional law expert Marci Hamilton wrote that furor over the construction of the Islamic center in NYC revealed a troubling threat to a core American value - religious liberty. "The United States has established the most remarkable principle in the history of cultures - an absolute right to believe whatever you want," she wrote.

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    Tags:
    Religion clauses, Equality and Liberty, First Amendment, anti-mosque rhetoric, Islamic center, New York City
  • August 23, 2010

    Which Lies May be Punished?

    Guest Post
    Aaron H. Caplan is an associate professor of law at Loyola Law School - Los Angeles, where he teaches courses in constitutional law. He has also litigated the constitutionality of punishing false statements made during political campaigns.
    When can the government punish liars? The question recently arose in back-to-back federal court opinions finding the Stolen Valor Act of 2005 to be unconstitutional. The statute makes it a federal crime for any person to "falsely represent[] himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal." In July, the District of Colorado found the act unconstitutional in US v. Strandlof, and in August a divided panel of the Ninth Circuit reached the same conclusion in US v. Alvarez.

    In striking down the act, neither court announced a "right to lie" as has been bandied about in some press accounts. Alvarez said the opposite: "There is certainly no unbridled constitutional right to lie such that any regulation of lying must be subjected to strict scrutiny." Instead, both decisions recognized that in a society committed to freedom of speech - and, as I argue below, freedom of thought - the government does not have authority to punish lies simply because they are lies. Instead, there is power to regulate certain harmful lies.

    False Statements of Fact As A Less-Protected Category

    Government has more power to punish speech that falls within the so-called "unprotected" (or, more accurately, "less-protected") categories, such as incitement to imminent violence, true threats to inflict bodily injury, obscenity, fraud, defamation, false advertising, or speech in furtherance of a crime. The statements in Strandlof and Alvarez fell within none of these. One could imagine scenarios where someone might lie about having received a medal as part of a scheme to defraud. In recent years, many prosecutors have used anti-fraud statutes to prosecute in those situations, purposely avoiding reliance on the Stolen Valor Act due to doubts about its constitutionality. In the latest cases the defendants' bogus boasts were not used to cheat anyone, but only to scratch some inner itch.

    Are the less-protected categories of fraud, defamation, and false advertising truly separate categories, or are they expressions of a single concept, namely that all false statements of fact are per se less protected? Existing Supreme Court opinions don't answer the question. In a frequently quoted phrase from Gertz v. Robert Welch, Inc., the Supreme Court said, "there is no constitutional value in false statements of fact." Yet the Court has often given constitutional protection to demonstrably false utterances, requiring additional showings before they may be proscribed. In New York Times v. Sullivan, the Court not only recognized that some falsity is "inevitable in free debate," but went further to find affirmative value in it, quoting John Stuart Mill: "Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error'."

    The opinions in Alvarez puzzled over how to harmonize these conflicting statements. The dissent took the Gertz dictum at its word, concluding that all false statements of fact form a single exception to the general rule of free speech. Cases like New York Times v. Sullivan represent exceptions to the exception, whereby a subset of false statements are protected because punishing them would cause an unacceptable chilling effect on truthful speech. In an interesting amicus brief in Strandlof, Eugene Volokh argued that the Stolen Valor Act was unlikely to create such a chilling effect. If that is the right question, this may be the right answer. (Amicus briefs opposing the Act were also filed by the ACLU of Colorado and the Rutherford Institute.)

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    Tags:
    Speech and expression, Other courts, Constitutional Interpretation and Change, First Amendment, Guest Post, Ninth Circuit, Stolen Valor Act
  • August 20, 2010

    Toward Full Recognition of Domestic Violence as a Basis for Asylum

    Guest Post
    By Karen Musalo, clinical professor of law and director of the Center for Gender and Refugee Studies at the University of California, Hastings College of Law.
    On August 4, 2010, in a closely watched case, an immigration judge granted asylum to Ms. L.R., a woman from Mexico. The grant in Ms. L.R.'s case came on the heels of a grant of asylum in another high-profile case, that of the Guatemalan asylum seeker, Rody Alvarado. What both cases had in common is that the women asylum seekers had fled brutal violence and abuse at the hands of their male partners in a situation where neither the police nor the courts responded to repeated calls for protection. Taken together the cases send a message loud and clear that domestic violence can be the basis for a successful claim to asylum. They also stand for the broader principle that women who suffer a range of violations of their fundamental human rights - from female genital cutting (FGC), to honor killings, to forced marriage or sexual slavery - are also entitled to protection as refugees.

    Although the protection of women whose human rights are violated should not be a controversial proposition, it has been - and continues to be - and women have had to struggle for the recognition that "women's rights are human rights." Their activism over the years has resulted in the promulgation of a number of international human rights instruments, including the Declaration on the Elimination of Violence against Women that specifically address the human rights of women.

    In the United States, these advances began to bear fruit in the refugee protection area with the 1996 grant of asylum to Fauziya Kassindja, a woman who fled female genital cutting [FGC]. The decision in Fauziya Kassindja's case (known as Matter of Kasinga) was issued by the Board of Immigration Appeals (BIA), the highest immigration tribunal in the U.S., and was the first precedent decision in U.S. law granting asylum to a woman who fled a gender-based form of persecution. Women's rights and refugee rights advocates celebrated the grant in Ms. Kassindja's case, seeing it as the opening of the door to protection for women fleeing gender-based violations.

    However, the celebration was short-lived. Three years later the BIA denied asylum to Rody Alvarado, who sought asylum from more than a decade from what can only be characterized as torture at the hands of her husband, an ex-soldier in the Guatemalan military. Over the ten years of their marriage, her husband pummeled her with his fists, broke windows and mirrors with her head, woke her in the middle of the night with a knife to her throat, and threw machetes across the room at her. The police never answered her desperate calls for help, and a judge told her he wouldn't get involved in a "private" matter.

    The denial of asylum in Ms. Alvarado's case was the opening shot in a 14-year-long battle to vindicate the principle that women's rights are human rights, and to hold the courts to the precedent exemplified by the grant of asylum in Matter of Kasinga. Ms. Alvarado was finally granted asylum in December 2009. To understand how this came about, it's necessary to return to where we began - the L.R. case, which the Obama Administration chose to be the vehicle by which it would articulate its position on the issue of asylum in cases such as these. Although one can only speculate, it is a good assumption that the Administration chose the L.R. case because its facts were not only compelling, but also representative of cases involving gender-based violence.

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    Tags:
    Administrative law, Immigration, Asylum, Domestic Violence, Gender-Based Prosecution, Guest Post
  • August 20, 2010

    FCC Commissioners Line Up Against Google-Verizon Proposal for Internet Regulation

    Beyond irking advocates of net neutrality, the Google-Verizon proposal regarding regulation of wireless Internet access has drawn fire from a couple of FCC commissioners.

    Reporting for FDL, David Dayen writes that FCC Commissioners Michael Copps and Mignon Clyburn, "slammed the Google-Verizon joint policy and strongly endorsed net neutrality last night at a hearing before hundreds of citizens in Minneapolis giving the Chairman of the federal agency Julius Genachowski all of the support he would need to regulate broadband Internet if he so chose." The commissioners, Dayen continues, criticized the Google-Verizon proposal saying if adopted it "would eliminate any openness provision over wireless, which is where all Internet applications are going."

    Critics of the Google-Verizon proposal say it is an affront to net neutrality, which calls for information via the Internet to be easily and fairly accessible to all people. The proposal offered earlier this month maintains that net neutrality should not apply to wireless access.

    The FDL post notes that Sen. Al Franken has also criticized the Google-Verizon proposal. FDL includes video of Franken addressing the two companies' ideas. "We can't let companies write the rules that we the people are supposed to follow. Because if that happens those rules will be written only to protect corporations," Franken said.

    Google's team-up with Verizon sparked great consternation among supporters of net neutrality principles, with several claiming that Google had abandoned its commitment to those principles.

    Jordon Rohan, an Internet analyst at Stifel Nicolaus, told The New York Times, "I don't know that Google pondered the moral decision this time. I think the business decision to cooperate with Verizon superseded the other complications and side effects that it may cause."

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    Tags:
    Technology and I.P., Electronic privacy, FCC, Google-Verizon, Net Neutrality
  • August 20, 2010

    Former AG Gonzales Adds Voice to Those Opposing Repeal of 14th Amendment

    Alberto Gonzales is not making news when he calls the nation's immigration system broken. The current administration and other individuals and entities say the same thing about the nation's system of handling undocumented workers and families.

    But, the former Attorney General, who left his post during the George W. Bush administration because of increasing tensions with Congress and some outrageously poor legal advice, such as maintaining that the Geneva Conventions' restrictions on interrogating military detainees do not apply to America's war efforts in Iraq and Afghanistan, has offered more opposition to talk of undoing the Constitution's 14th Amendment.

    In a column for The Washington Post, Gonzales adds his voice to other conservatives who have come out against Sen. Lindsey Graham's argument that the 14th Amendment's citizenship clause should be repealed. That clause guarantees citizenship to anyone born in the country regardless of race, color or status of one's parents or ancestors. As noted by Professor Garrett Epps in a piece for The Atlantic, Graham's call for trashing the 14th Amendment, which was joined by a gaggle of other conservative senators, is all about riling voters during the midterm elections, noting that talk of constitutional amendments often crops up during election time (think Bush I's promotion of an amendment to ban flag burning, and Bush II's use of the federal marriage amendment).

    Gonzales says he opposes amending the constitution because such action "should be reserved for extraordinary circumstances that we cannot address effectively through legislation or regulation. Because most undocumented workers come here to provide for themselves and their families, a constitutional amendment will not solve our immigration crisis."

    He continues that an immigration policy, among other things, should "promote commerce and strengthen our economy."

    For more discussion on immigration reform watch video of a discussion between Labor Secretary Hilda L. Solis and the AFL-CIO's Richard Trumka here. Video of a plenary panel discussion at the 2010 ACS National Convention, "Immigration Reform: Congress and the States," is here.

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    Tags:
    Immigration, Constitutional Interpretation and Change, Equality and Liberty, 14th Amendment, Alberto Gonzales, Birthright Citizenship, Citizenship Clause, Senator Lindsey Graham
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