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CHICAGO – Responding to a series of incidents in which individuals in four counties in Illinois have been charged with violating Illinois' eavesdropping law for making audio recordings of public conversations with police, the American Civil Liberties Union of Illinois today asked a federal court to rule that the First Amendment bans such prosecutions. The ACLU lawsuit, filed in federal district court in Chicago, argues that individuals (and organizations such as the ACLU) may make audio (and video) recordings of police who are performing their public duties in a public place and speaking in a voice loud enough to be heard by the unassisted human ear.
The case is of particular import because the law is being used to arrest and prosecute those who want to monitor police activity in order to deter or detect any police misconduct. In Champaign a few years ago, for example, a group of community activists attempting to document police practices in predominantly African American neighborhoods were charged with violating the Illinois eavesdropping law when they filmed and recorded police interactions with citizens in the public way. (The charges were dropped only after the installation of a new states attorney.) In Chicago, State's Attorney Anita Alvarez currently is prosecuting an individual for violating the eavesdropping statute by recording police officers.
Illinois' eavesdropping law criminalizes the recording of certain non-private conversations, one of a small handful of states that does so. Similar prosecutions have occurred in other states, including Massachusetts and Maryland. Yet even as the Illinois law criminalizes civilians who audio record police, the law allows police to audio record civilians during traffic stops and in other situations.
The ACLU recently felt the limitation of this law. The media reported that Chicago police were conducting random searches of bags and backpacks of individuals who were passing by Chicago beaches on the pathway that runs adjacent to the beach and Lake Shore Drive. When the ACLU investigated, it could not use widely available audio/video recording devices – like the smart phones carried by millions of Americans – to document police activity and conversations, because doing so would risk arrest or prosecution.
“There is a lot of talk about the need for more transparency in government – we should demand that transparency from the police,” said Harvey Grossman, Legal Director for the ACLU of Illinois. “Organizations and individuals should not be threatened with prosecution and jail time simply for monitoring the activities of police in public, having conversations in a public place at normal volume of conversation.”
“Illinois' eavesdropping law does not permit individuals or groups such as ours to gather critical information about police activities – information that we share with our members, policy makers and the general public,” Grossman added.
The lawsuit was filed against Anita Alvarez as the State's Attorney of Cook County. She is sued in her official capacity as a prosecutor charged with enforcing the law. The ACLU of Illinois argues that the law infringes on the First Amendment right of individuals and organizations to gather information about the police, to share such information with the public, and to use such information to petition government for redress or grievances or policy changes. The ACLU seeks a court declaration and injunction against the application of Illinois' eavesdropping law to audio recording police performing their public duties in a public place while speaking in a voice audible to the unassisted ear.
“It is not acceptable that an organization such as the ACLU of Illinois is threatened with prison time for conducting legitimate investigations into police action in Illinois,” said Adam Schwartz, Senior Staff Counsel for the ACLU of Illinois. “We should not be forced to choose between fulfilling our mission and risking prison time for staff members.”
“If this law stays in force, it will remain difficult for many citizens in Illinois to monitor and seek reform of police practices,” added Richard O'Brien, a lawyer with the Chicago office of Sidley Austin LLP who is cooperating with the ACLU on this case. “It is time to change this law and let transparency shine into the practices of our law enforcement agencies.”
Assisting Grossman, Schwartz and O'Brien on the case are Linda R. Friedlieb and Matthew D. Taksin of Sidley Austin LLP and Karen Sheley of the ACLU of Illinois.
A copy of the complaint if available at http://www.aclu-il.org/featured/2010/Complaint-ACLUvAlvarez.pdf
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PITTSBURGH – A teacher suspended after hosting a bachelorette party that included a stripper will receive back pay, an award for emotional distress and attorneys' fees, and have her personnel record cleared as part of a settlement with the Brownsville Area School District (Fayette County), the ACLU of Pennsylvania and the Pennsylvania State Education Association announced today. Ginger D'Amico, a Spanish teacher at Brownsville High School, was suspended without pay for thirty days in January after photos of her with a stripper at a bachelorette party were posted on Facebook by someone else who attended the event.
"As technology breaks down barriers to privacy, public employers cannot punish employees simply because they disapprove of the worker's off-duty conduct," said Witold "Vic" Walczak, legal director for the ACLU of Pennsylvania. "Discipline for off-duty conduct must be limited to behavior that is significantly harmful to the employer."
On December 19, 2009, Ms. D'Amico hosted a bachelorette party for a fellow teacher. The majority of guests were teachers or other school district employees. The following day someone who had attended posted pictures from the party, which included an appearance by a male stripper, on her Facebook page. The pictures were removed at Ms. D'Amico's request less than one day after they were posted.
School administrators launched an investigation of the bachelorette party after being notified about the photos. In February all the teachers who attended the event received certified letters saying disciplinary notices would be placed in their personnel files because of "immoral behavior." Because Ms. D'Amico was the only one clearly identifiable in the photos, she was given a thirty-day suspension without pay.
Until this incident, Ms. D'Amico, who has taught at the school for seven years, had a clean disciplinary record and had received satisfactory reviews. Prior to returning to the district in 2003, where her father had been a venerated teacher for 34 years, Ms. D'Amico was an award-winning teacher in Baltimore County, Maryland.
"I don't know what was more devastating to me, being singled out amongst a group of colleagues or feeling as if I destroyed my family name," said Ms. D'Amico. "An innocent girls' night out was turned into a crime, which it certainly was not. Now I'm just glad we've reached an agreement and hopefully everyone can put this matter behind them."
The school district agreed to reinstate Ms. D'Amico halfway through her suspension after the ACLU-PA threatened a lawsuit. Subsequently, the district agreed not to contest the PSEA's union grievance to recover Ms. D'Amico's back wages and to pay $10,000 to settle the matter without litigation.
"Under what circumstances public employers can punish employees for off-the-job conduct is a gray area legally and the instances of employers learning about employees' conduct is skyrocketing with the proliferation of recording technology, especially cell-phone cameras," said Walczak. "Unless we want to open the door to teetotalling bosses punishing workers for having a beer during a backyard barbecue, dating the wrong person, or enjoying the wrong entertainment, the law needs to develop a clearer line to limit public employers' control over employees' off-duty conduct."
At a press conference announcing the decision today, the ACLU of Pennsylvania and Ms. D'Amico expressed their appreciation to the Brownsville Area School District for its willingness to work out a settlement in this matter and to help put the incident behind the parties.
More information about the case, including a copy of the settlement, can be found at: www.aclupa.org/damico
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Citing the important free speech issues involved in the case, the ACLU of Rhode Island today announced it has agreed to represent Tiverton resident David Nelson, the president of a local tax reform group, who has been sued for defamation by two Town Council members. Nelson, head of Tiverton Citizens for Change, was sued for making public comments alleging that Council members submitted "false" documentation to the State Department of Revenue relating to an unapproved proposal for a tax increase. The ACLU called the complaint against Nelson "a classic SLAPP suit designed to intimidate town residents from speaking out on political matters."
Nelson made the comment after the Town Council filed what it called an informal "checklist for eligibility" with the state to see if the Town could get permission to impose a tax increase beyond the 4.5% cap authorized by state law. The Town Council made this request without the knowledge of the town's Budget Committee, the entity officially authorized to recommend a budget to the Financial Town Meeting, and which had formally proposed a budget below the cap.
Arguing that the request was never publicly authorized by the Town Council and was prepared on the state documents necessary to formally apply for a state waiver from the tax cap, Nelson publicly charged town officials with submitting "false documentation to the State to facilitate a tax increase."
Last month, two Town Council members, Louise Durfee and Joanne Arruda, sued Nelson for punitive damages, calling his comments "false, defamatory and harmful to plaintiffs' reputation." Their lawsuit is also against unknown individuals the council members say participated in preparing and sending the letter. Interestingly, in a letter to state finance officials after the Town Council's actions came to light, the chair of the town budget committee also called the submission a "falsified document," but he has not been sued.
Nelson has filed a counter-claim for damages under the state's SLAPP suit law, and the ACLU has agreed to represent Nelson in getting the lawsuit against him dismissed. SLAPP suits ("Strategic Lawsuits Against Public Participation") refer to lawsuits brought to chill people from exercising their freedom of speech on matters of public concern.
Concerned about the use of SLAPP suits to try to stifle public debate on a variety of issues, the Rhode Island ACLU has succeeded in getting a number of similar suits dismissed since an anti-SLAPP statute was enacted in 1995. In the first such case handled by the ACLU, the R.I. Supreme Court ordered dismissal of a defamation suit brought against North Kingstown resident Nancy Hsu Fleming for critical statements she made about a private landfill. Shortly thereafter, the ACLU also helped the South Kingstown Neighborhood Congress in a suit filed against it for public comments its members made against a local developer's activities.
RI ACLU volunteer attorney Karen Davidson, who is representing Nelson, said today that the councilors' suit was "a classic SLAPP suit designed to intimidate town residents from speaking out on political matters. The SLAPP suit statute was enacted in order to prevent just this type of litigation, and we are hopeful for a quick dismissal of the suit." Nelson added: "Our bedrock constitutional rights allow us to express disagreement with elected officials and report on matters of public concern. I will not cower from this attempt to intimidate my public participation in local budget and taxation issues."
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PHILADELPHIA – Lincoln University students and Chester County residents have settled their federal lawsuit in which they alleged that the Chester County Board of Elections and Department of Voter Services deprived African-Americans in Lower Oxford Township of their right to vote by assigning them to inconvenient and inadequate polling facilities. On Election Day 2008, hundreds of Lower Oxford East voters - most of them African-American - waited up to seven hours in the pouring rain to cast their votes. Those who were unable to wait left without voting.
"The voting process in 2008 presidential election was a frustrating and time consuming process. With the changes coming, residents and students will have adequate facilities and better experience," said Wanda Havelow, who waited six hours in the rain next to active train tracks to vote.
The lawsuit charged that the long lines at Lower Oxford East resulted from a combination of factors, most importantly the location of the polling place in a tiny community center that could accommodate only two lines of voters, a small number of privacy booths and a single ballot scanner. Voting was slowed further by the failure of the Department of Voter Services to provide up-to-date voter rolls, a problem that did not occur at other polling places. After the 2008 election, in response to a voter petition to move the polling place to Lincoln's campus, the Board of Elections instead relocated the polling place to the township building, which is just as cramped as the community center, is more than a mile from the Lincoln University campus on a winding country road and is virtually inaccessible for students without a car.
As part of the settlement, the Board of Elections has agreed to return the Lower Oxford East polling place to the Lincoln University campus, where it had been in the 1990s. The county will notify all Lower Oxford East voter of the change in polling location. The county will also seek to transfer a portion of Lower Oxford East north of Baltimore Pike to Lower Oxford West. Voters affected by that change will also be notified by mail that they will continue to vote at the township building. The federal court will retain jurisdiction over issues relating to the Lower Oxford East polling place through the 2012 presidential election, allowing plaintiffs to return quickly to the same judge if problems with the settlement arise.
"All people in this country have a chance to voice their opinion through the vote. Government with all of it responsibilities to the people should never demonstrate such little regard for the process that give people a sense of being free to have their voices heard," said Golden English, who had taken the day off work to vote but left before casting a ballot in order to babysit his granddaughter.
The plaintiffs are represented pro bono by Phil Wilson, John E. McKeever and Nicole Edwards of DLA Piper LLP (US); and by Michael Churchill of the Public Interest Law Center of Philadelphia; Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania; Bryan Sells of the American Civil Liberties Union Voting Rights Project; and Marian Schneider, Esq., a Chester County lawyer, election integrity and voting rights advocate.
More information about the suit, including a copy of the original suit and the settlement, are available at: aclupa.org/legal/legaldocket/englishetalvchestercounty.htm
Earlier comments by ACLU got city council's attention
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Hampton, VA –The ACLU of Virginia today sent a letter to the members of Hampton City Council asking them to amend a recently adopted ordinance that bans expression protected by the First Amendment in a traditional public forum.
The ordinance prohibits individuals from soliciting money from or offering goods or services to the occupants of motor vehicles while "on or adjacent to a highway." Although banning such activities in a roadway where cars travel is a reasonable restriction intended to protect public safety, sidewalks adjacent to streets are considered public forums where such speech is protected.
Shortly after the new ordinance was passed last month, the ACLU of Virginia made it clear to public officials in Hampton that it was unconstitutional. According to news reports, city council is now considering amending the ordinance to remove the speech restrictions on public sidewalks. The amendments could be voted on as early as tomorrow.
The City of Newport News passed a similar non-solicitation ordinance about the same time as Hampton, but with much vaguer language. However, soon after passage -- and after the ACLU voiced its objections -- city officials announced that it would not be enforced against individuals on sidewalks.
"In difficult times, when there are more homeless people asking for donations and more day laborers seeking work, there is a tendency to pass these kinds of blatantly unconstitutional ordinances," said ACLU of Virginia executive director Kent Willis.
"But local government officials, out of step with the concept of free speech, try to clear the sidewalks of people just because they consider them to be less desirable members of our society," added Willis. "These individuals have a story to tell, whether it is the need for a job or for more money, and they have a right to tell it while standing in public places such as sidewalks. We can't make poverty or a bad economy go away by silencing its messengers, but that is exactly what we seem to be trying to accomplish with these ordinances."
"Elected officials need to be reminded that the same constitutional principle of free speech that gives them the right to hand out literature and ask for contributions to their campaigns also protects the right of homeless persons to ask for donations," said Willis.
The ACLU's letter, written by ACLU of Virginia legal director Rebecca Glenberg, follows.
August 10, 2010
City of Hampton City Council
8th Floor, Hampton City Hall
22 Lincoln Street
Hampton, VA 23669
Dear Council Members:
I write regarding the recent enactment of City Code Sec. 21-188, which regulates leafleting, solicitation, and sale of goods on public roads. As it stands, the ordinance appears to include an unconstitutional prohibition on speech on public sidewalks. It is my understanding that Council intends to consider an amendment at this Wednesday's meeting that will address that problem, and I urge you to vote in favor of that amendment.
The ordinance prohibits any person distributing literature to, soliciting money from, or offering goods or services to the occupants of motor vehicles while "on or adjacent to a highway." While the term "adjacent to" is undefined in the ordinance, it could reasonably be interpreted to include public sidewalks.
Public sidewalks are "traditional public forums" that "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. C.I.O., 307 U.S. 496, 515-16 (1939). Speech in public forums may be limited only by "content-neutral and reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999) (internal quotation marks and citation omitted).
To the extent that it includes activities on public sidewalks, the ordinance is not narrowly tailored to serve the government's interests in traffic flow and traffic safety, because it prohibits a broad array of speech that does not implicate those concerns. For example, it prohibits speech directed to the occupants of lawfully parked vehicles, speech directed to vehicles that may lawfully pull over into a parking lane, and speech that invites drivers to pull into a parking lot to receive the speakers' information.
It is my understanding that the proposed amendment to the ordinance would remove the words "or adjacent to" from the ordinance, clarifying that the ordinance extends only to activity that takes place on the highway itself. In our view, this amendment would fix the constitutional problem.
Should you have any questions, please do not hesitate to call me at (804) 644-8080. Thank you for your attention to this matter.
Sincerely,
Rebecca K. Glenberg
Legal Director
Approval of Ballot Initiative Would Mean Less Accountability
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COLUMBUS - The American Civil Liberties Union of Ohio sent a formal letter to Columbus City Council President Michael Mentel and Mayor Michael Coleman urging them to abandon plans to amend the city charter to allow for closed door meetings. In July, city council members approved language for the November 2 ballot, and if passed by voters, will mean the city may conduct some business privately. Currently, the Columbus city charter has a broad requirement that all meetings be conducted in open.
ACLU of Ohio Legal Director James L. Hardiman said, "Columbus' current charter language is commendable and should be a model for all government entities who wish to be transparent and accountable to the public. Changes to the charter will only lead to a loss of access for residents who wish to be informed about the council's work."
In its letter, the ACLU also took issue with the language of the ballot initiative. The amendment simply states that the Columbus City Council will operate in compliance with Ohio's Sunshine Laws, but does not indicate to voters that this change will allow closed door sessions.
The Sunshine Laws refer to state law that regulates accessibility of public records and open meetings for all government entities.
"While state law provides protections against corruption and secrecy, it only outlines the bare minimum that government must do," Hardiman added. "The current Columbus city charter goes above and beyond to ensure that residents have full access to information, so they may be effective watchdogs. Limiting the charter is an invitation for officials to abuse closed door sessions and exclude the public from decision-making."
In July, Mayor Coleman endorsed the ballot initiative, but expressed concerns that closed door sessions could be abused in the future.
"Broad access to information ensures that residents are more engaged in civic life, and helps guard against officials' wrongdoing. Columbus officials should be proud that their current charter offers greater access to residents. Rather than looking for ways to exclude the public, officials should be using the tools provided in their current charter to better serve them," concluded Hardiman.
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NEW YORK – The New York Civil Liberties Union today praised the State Legislature for including in the budget a provision that ends the practice of prison-based gerrymandering – inflating the population of electoral districts with prisons in them by counting incarcerated people where they are confined, not where they are from.
"We applaud the State Legislature for including in the budget the important provision that will restore the principle of one person, one vote that is fundamental to our democracy," said NYCLU Executive Director Donna Lieberman. "The strength of your vote shouldn't depend on if your legislative district contains a prison or not, and the passage of this provision brings fairness to voting in New York."
The U.S. Census Bureau currently counts incarcerated people where they are confined, not where they were living before they were incarcerated, even though the vast majority of people return home when they are released. In New York, politicians have taken advantage of this to inflate their districts' population numbers with prisoners. As a result, New Yorkers living near prisons get disproportionate representation in Albany, weakening the votes of people who do not live near prisons.
Though some have claimed that the budget provision that ends prison-based gerrymandering will take needed funding away from communities near prisons, there is no truth to this claim. This provision has no effect on how census numbers are used to distribute federal funding. The count will only be used only for drawing district lines correctly.
"Our state's system for drawing legislative districts has been fundamentally unfair for far too long. By counting incarcerated people where they were confined, not where they were from, the system has artificially padded the populations of districts with prisons while weakening the vote of every other New Yorker," Lieberman said. "The Legislature today stood up for fairness. Now Governor Paterson has a chance to put himself on the right side of history. When he signs this provision, the governor will leave an important legacy for all of New York State."
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SARASOTA, Fla. – The American Civil Liberties Union of Florida and its Sarasota/Manatee/DeSoto Chapter today announced a $50,000 settlement in Cannon and Allen v. City of Sarasota, which was filed in March 2009. In the lawsuit, the ACLU asked the court to rule that the city's policy is unconstitutional. The settlement includes an agreement that the city will no longer enforce the ordinance.
The Sarasota ordinance allows police to seize and impound vehicles when drivers are charged with playing their music too loud. The ACLU sued on behalf of Mark Cannon, a resident of Sarasota, and Latrese Allen, a resident of Bradenton. Cannon was stopped for "loud music" and his vehicle was seized and impounded. Allen was stopped while traveling on Martin Luther King, Jr. Way, singing along with a song written in memory of a deceased friend. She was ticketed for violating the city's noise ordinance. The city subsequently dropped the charges.
"Sarasota's noise ordinance, with its draconian penalties, violated fundamental First Amendment principles. The resolution of this case, including the suspended enforcement of the ordinance, ensures that the rights of Sarasota residents and visitors are protected," said Muslima Lewis, ACLU of Florida Senior Attorney and Racial Justice Project Director.
Although Florida Statute § 316.3045 makes it illegal to drive a car if the sound system can be heard more than 25 feet away, Sarasota's ordinance went one step further, allowing police to seize the car of a person who is found to be violating the statute.
Florida's Second District Court of Appeal has twice struck down similar noise ordinances as being unconstitutional. Despite being aware of the potential exposure to lawsuits, the City Council decided to empower police to seize and impound cars.
"Impounding vehicles for playing amplified music was a drastic remedy inconsistent with the First Amendment. Making exceptions for political and commercial vehicles made no sense at all," said Michael Barfield, Sarasota-based ACLU cooperating attorney.
Attorneys representing Cannon and Allen are ACLU cooperating attorney Andrea Flynn Mogensen; ACLU of Florida Legal Director Randall Marshall; and Muslima Lewis, ACLU of Florida Senior Attorney. Legal Consultant Michael Barfield assisted the attorneys in the litigation.
A PDF copy of the original complaint filed in the Circuit Court of the Twelfth Judicial Circuit in and for Sarasota County can be downloaded here: http://www.aclufl.org/pdfs/Legal%20PDfs/NoiseOrdinanceComplaint.pdf
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MIAMI – The American Civil Liberties Union (ACLU) of Florida applauds U.S. District Judge Kenneth A. Marra's decision in favor of freelance journalist David Lippman in a monumental civil rights case arising out of the Free Trade Area of the Americas (FTAA) conference held in Miami in 2003. Though the court acknowledged that the law enforcement officials faced significant safety concerns associated with the conference, it ruled that such generalized concerns could not justify breaking into and searching a parked vehicle. Because no 'safety concerns' were linked to Lippman individually, the judge wrote "Defendants did not have arguable probable cause or exigency to justify searching Lippman's truck for a bomb." The court's July 20, 2010, order allows Mr. Lippman's case to proceed against officers from the FBI, Miami Police, and Broward Sheriff Office.
In May 2006, the ACLU of Florida and its Greater Miami Chapter filed a lawsuit on behalf of Lippman after his parked vehicle was searched, seized, and damaged by officers from several law enforcement agencies without probable cause. The ACLU lawsuit cites violations of Lippman's rights to free press, speech, and assembly, and his right to be free from unreasonable searches and seizures.
"This opinion represents a huge victory for civil liberties in this post-911 era," said Benjamin James Stevenson, ACLU of Florida Staff Attorney. "The 'war on terror' is not an invitation to the police to search whatever home, car, or person they want. Our constitution protects our privacy and requires them to have an individualized foundation for their suspicions, which was clearly lacking here."
Documents obtained by the ACLU indicate that Lippman was under Federal Bureau of Investigation (FBI) surveillance for being an unspecified "known protestor w/history" as he traveled from his home in North Carolina to Miami to cover the Free Trade Area of the Americas (FTAA) protests. FBI agents recruited the local officers to break into his vehicle and then, after damaging the vehicle and overturning his personal possessions he kept within it, to haul away the vehicle and his possessions.
"With this decision, we will be able to proceed to trial and show that the constitution has not been suspended," said Jeanne Baker, lead counsel for Mr. Lippman on behalf of the ACLU of Florida's Greater Miami Chapter. "The manner in which officers dealt with Lippman and his vehicle was unlawful and inappropriate, and we hope this lawsuit will serve as a reminder that violations of the right to be free from unreasonable searches and seizures are un-American and will not be tolerated."
Download a PDF of the order at: www.aclufl.org/OpinionOrderLippman.pdf
Download a PDF of the Third Amended Complaint at: www.aclufl.org/LippmanComplaintAmended.pdf
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DENVER – Issuing a decision in a longstanding ACLU of Colorado case, the Tenth Circuit Court of Appeals ruled today that a Weld County assistant prosecutor can be held legally responsible for an illegal search of the home of Thomas Mink and the illegal seizure of his computer. The search was carried out pursuant to a warrant issued in late 2003 as part of a Greeley Police Department investigation of supposed "criminal libel" for Mink's role in publishing "The Howling Pig," an online publication featuring satiric commentary on issues of public concern to the University of Northern Colorado (UNC) community.
The investigation and the warrant were based solely on the first three issues of "The Howling Pig." The prosecutor, Susan Knox, reviewed the publications, the application for search warrant, and the draft of the warrant itself. Although Knox did not personally participate in the illegal search, the court held that her approval of the warrant application set the illegal search in motion.
"Today's decision is a major victory for the protection of free expression and the protection of the public from unreasonable searches and seizures," said Mark Silverstein, ACLU Legal Director. "The court held that our client's publication was clearly protected by the First Amendment and that no reasonable prosecutor could have believed otherwise. The court also held that no reasonable prosecutor could have believed that the search warrant—which authorized seizure of any and all papers in the home—was specific enough to comply with the Fourth Amendment."
The ACLU filed the lawsuit in early 2004 and quickly obtained a restraining order forbidding the threatened "criminal libel" prosecution and securing the return of Mr. Mink's computer. The ACLU also sought an order declaring the "criminal libel" statute unconstitutional, but the Tenth Circuit, in a 2007 ruling, held that Mr. Mink could not challenge the statute because he was no longer threatened with prosecution. Today's ruling, on the case's second trip to the federal court of appeals, held that Ms. Knox is not entitled to invoke the defense of "qualified immunity."
In addition to Silverstein, Mink is represented by ACLU Cooperating Attorneys Marcy Glenn and Bruce Jones, of Holland & Hart.
More case information and court documents available online at: www.aclu-co.org/docket/200320/200320_description.htm
To read the ACLU’s letter supporting the SPEECH Act, go to: www.aclu.org/free-speech/aclu-letter-senate-support-hr-2765-securing-protection-our-enduring-and-established-cons
First Amendment Rights Must Be Protected
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In response to criticism of its ban on media and public access within 20 meters of the oil spill boom safety zones, the Coast Guard has announced new rules recognizing the First Amendment rights of reporters. These new guidelines provide a means for media representatives to obtain credentials to access the oil spill zone while recognizing the need for public safety.
"This change is needed to ensure public access to information about this catastrophe," said Marjorie Esman, Executive Director of the ACLU of Louisiana. The people of this country rely on independent reporters to tell the rest of us what is happening, and these changes will go a long way towards providing the information we all need about this disaster and the response to it."
The new rules require media representatives to obtain credentials by providing their name, media affiliation, and contact information. While this should allow every representative of the media to be credentialed, the ACLU cautions those issuing the documentation to respect independent reporters, and those working for media outlets that may not be well-known. "Famous reporters, or those working for large media companies, should not have preferential treatment," said Esman. "We trust that anyone working as a reporter, in any medium and for any outlet, will have the same access, so that as many people as possible will be able to get the information they need and are entitled to have."
Broad Massachusetts law enacted this year bans constitutionally protected speech online for topics including literature, art, sexual and reproductive health.
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BOSTON -- A coalition of organizations and local booksellers today filed suit to block a broad Massachusetts censorship law that bans constitutionally protected speech on the Internet for topics including contraception and pregnancy, sexual health, literature, and art.
Signed in April by Governor Patrick and effective yesterday, the law, Chapter 74 of the Acts of 2010, imposes severe restrictions on the distribution of constitutionally protected speech on the Internet. The law could make anyone who operates a website or communicates through a listserv criminally liable for nudity or sexually related material, if the material can be considered "harmful to minors" under the law's definition. In effect, it bans from the Internet anything that may be "harmful to minors," including material adults have a First Amendment right to view. Violators can be fined $10,000 or sentenced to up to five years in prison, or both.
"The Internet is the new gallery, the new museum," said Glenn Ruga, executive director of the Photographic Resource Center in Boston. "This law infringes on our right to present images that we feel are vital to free expression and within bounds of socially acceptable imagery, yet someone with no particular legal authority may decide to be harmful for children."
"The risk of five years in prison or a $10,000 fine will certainly have a chilling effect on booksellers with websites that describe their books available online or in a store," said Chris Finan, President of the American Booksellers Foundation for Free Expression (ABFFE). "Most bookstores are small businesses, and it is very likely that booksellers will try to avoid problems by engaging in self-censorship."
Plaintiffs in the suit against state attorney general Martha Coakley and Massachusetts district attorneys are the American Booksellers Foundation for Free Expression, the American Civil Liberties Union of Massachusetts, the Association of American Publishers, the Comic Book Legal Defense Fund, the Harvard Book Store, the Photographic Resource Center, Porter Square Books, and licensed marriage and family therapist Marty Klein.
Since there is no way for websites to determine the age of an Internet browser and there is no way to block Internet users from Massachusetts regardless of the location the website originates from, the law threatens Internet users nationwide and even worldwide. The suit seeks to have the law declared unconstitutional and void on its face, and to enjoin the state from enforcing it, on the basis of the First and Fourteenth Amendments of the U.S. Constitution, and the Constitution's Commerce Clause.
"While this Act may have been motivated by the desire to protect children from sexual predators on the Internet, its effect is much broader," said John Reinstein, legal director of the ACLU of Massachusetts. "Its inevitable effect, if permitted to stand, is that Internet content providers will limit the range of their speech. There are no reasonable technological means that allow Internet users to ascertain the age of anyone who might access their online communications and then restrict access for minors."
In 1997, the U.S. Supreme Court ruled unanimously in Reno v. ACLU to invalidate a federal law, the "Communications Decency Act," on First Amendment grounds, because it similarly restricted online communication. In 2003, the Third Circuit invalidated a second such federal law, the "Child Online Protection Act," in ACLU v. Mukasey. Additionally, seven state laws containing similar content-based restrictions for online communication have now been struck down or enjoined as unconstitutional, in cases brought by Media Coalition members and ACLU state chapters in Virginia, Vermont, Michigan, New Mexico, Arizona, South Carolina, and New York.
"Courts have repeatedly rejected laws that lead to this sort of self-censorship," said Michael Bamberger of Sonnenschein Nath & Rosenthal LLP, general counsel of Media Coalition and counsel in the case. "We should have adequate safeguards to protect children, but those safeguards cannot unreasonably interfere with the rights of adults to access materials protected by the First Amendment."
The plaintiffs in the case represent a range of speakers, content providers, and access providers who post and discuss online content such as resources on preventing HIV transmission, visual art and images, literature, and books and resources for gay and lesbian people. If this law is struck down, it will not limit the state's ability to prosecute obscenity, child pornography, speech intended to entice minors into inappropriate activity, or harassing speech.
"The Internet is the broadest, most participatory marketplace for human expression ever created, enabling hundreds of millions of people of all ages throughout the world to communicate with a speed and ease never before possible," said Carol Rose, executive director of the ACLU of Massachusetts. "This law must not be allowed to reduce all Internet content and discussion to a level suitable for young children."
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CONTACT: media@aclu.org
Following up on its lawsuit filed two weeks ago on behalf of the Moderate Party of Rhode Island (MPRI), the ACLU is asking a federal judge to temporarily halt the state from distributing to the two major political parties funds contained in a so-called "nonpartisan account" consisting of "donations" made by taxpayers on their tax return. The law authorizing the account excludes independent candidates and new political parties, like MPRI, from any of the disbursement.
In a 16-page brief filed today by RI ACLU volunteer attorney Mark W. Freel on behalf of MPRI, seeking a temporary restraining order against implementation of the law, the ACLU argues that "fundamental rights are at stake." Since the law requires the General Treasurer to distribute the funds by September 1st, the brief notes that "once the funds are distributed, it will be difficult – if not impossible – for the Court to 'unring the bell' and unwind the distributions," leaving MPRI without any effective remedy for the violation of its rights.
The suit argues that the statute unconstitutionally "grants windfalls to the parties that least require public funds to compete politically" and that "no government interests justify sponsoring the political operations of some qualified parties but not others."
Taxpayers are permitted to make a political party "contribution" on their tax return in the amount of $5 toward the public financing of the electoral process. The taxpayer can designate receipt of the first $2 of the contribution to a political party of his or her choice. Any donation above that amount, or any donation not specifically designated for a particular party, is allocated to a "nonpartisan account." The state pays 5% of funds in the nonpartisan account to the political party then holding each of the four statewide general offices other than Governor. The state distributes the remaining 80% of the funds "to each political party in proportion to the combined number of votes its candidates for governor received in the previous election," thus freezing out any new political parties from gaining a share of those funds.
Last year, the RI ACLU successfully represented the Moderate Party in challenging another statute that had barred new political parties from collecting in an off-election year the signatures necessary to gain state recognition as a party. No date on the ACLU and MPRI's request for a hearing on a temporary restraining order has been set.
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CONTACTS: (212) 549-2666; media@aclu.org
WASHINGTON – The American Civil Liberties Union, the ACLU of Georgia and the Lawyers' Committee for Civil Rights Under Law (Lawyers' Committee) filed a motion late yesterday in a Washington, D.C. federal court to intervene in a challenge to the Voting Rights Act brought by the state of Georgia. The civil rights coalition is defending the constitutionality of Section 5 of the Act and challenging the state's flawed and racially discriminatory voter-registration practices.
Section 5 has protected racial and language minorities' access to voting across the South and the nation since 1965 and requires some states with a history of discrimination in voting procedures to submit new procedures for federal review before they are implemented.
"The many U.S. citizen minority voters in Georgia who were incorrectly flagged as non-citizens under the state's voter-verification procedures can attest to the fact that discrimination in voting continues and the need for Section 5 remains," said Laughlin McDonald of the ACLU Voting Rights Project.
The coalition filed the motion to intervene in the case, Georgia v. Holder, on behalf of the Georgia State Conference of the National Association for the Advancement of Colored People (NAACP); Georgia Association of Black Elected Officials; Coalition for the People's Agenda; Georgia State Rep. Tyrone Brooks; Edward Dubose, President of the Georgia State Conference of the NAACP; and Helen Butler, Executive Director of the Coalition for the People's Agenda.
The state's questionable voter-registration procedures rely on error-ridden government databases for citizenship verification and require birth certificates and other documents as proof of citizenship that many people, especially students, minorities and the elderly cannot easily access.
Shortly before the last presidential election, the procedures in place at the time resulted in thousands of U.S. citizens being incorrectly flagged as non-citizens and subject to being denied the right to vote. A federal court in Georgia blocked the procedures in October 2008 pending Section 5 review after a coalition of voting rights groups, including the ACLU and Lawyers' Committee, challenged them in a lawsuit, Morales v. Handel.
In May 2009, the Department of Justice blocked the procedures that mandated the use of the flawed voter-verification databases after review under Section 5, citing their discriminatory impact on minority voters.
"Without Section 5's preclearance protections, there is no doubt that racial and language minorities in Georgia and other covered jurisdictions would be subject to new forms of discrimination in voting," said Robert A. Kengle, an attorney with the Voting Rights Project of the Lawyers' Committee.
"These flawed procedures would burden or deny the right to vote to many thousands of eligible Georgia voters," said Chara Fisher Jackson, Legal Director of the ACLU of Georgia. "We are confident that the federal court in the District of Columbia will block Georgia's discriminatory election procedures and uphold the Voting Rights Act."
Attorneys on the case, Georgia v. Holder, include McDonald and Meredith Bell-Platts of the ACLU Voting Rights Project, Fisher Jackson of the ACLU of Georgia, Art Spitzer of the ACLU of the Nation's Capital, and Kengle, Jon Greenbaum and Mark A. Posner of the Lawyers' Committee.
The motion for intervention can be found online at: www.aclu.org/voting-rights/georgia-v-holder-memo-support-motion-intervene
The DOJ letter blocking the state's voter verification procedures can be found online at: www.aclu.org/voting-rights/morales-v-handel-letter-civil-rights-division-acting-assistant-attorney-general-georgi
Civil Liberties Group Also Notes "Over-Criminalization of Kids" In the Shadow of the Luzerne County Scandal
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CONTACT: media@aclu.org
HARRISBURG - Legislation on "sexting" passed by the Pennsylvania House of Representatives today drew criticism from the American Civil Liberties Union of Pennsylvania, which raised concerns that the bill is unconstitutional and will sweep more children into the criminal justice system.
"On the heels of the Luzerne County juvenile court scandal, it's unfortunate that the House would pass a bill that could bring more kids into contact with the criminal justice system," said Andy Hoover, legislative director of the ACLU of Pennsylvania. "Now is the time to approach juvenile justice with a scalpel, not a sledgehammer."
House Bill 2189 attempts to deal with "sexting," when kids- usually teenagers- send semi-nude, nude, or sexually provocative photos of themselves and others via electronic communication. A 2010 poll by the Associated Press and MTV indicated that nearly 25 percent of teens have engaged in sexting.
Hoover also raised concerns that the language of the bill is unconstitutional and criminalizes expression protected by the First Amendment.
"If the photos only involve nudity and no one is being abused, it's protected speech," Hoover said. "We don't want to see the commonwealth walk into a federal lawsuit nor do we want to see the lives of some kids damaged by a law that might be unconstitutional."
The ACLU of Pennsylvania recently won litigation in Wyoming County, where the then-district attorney threatened to charge 20 kids with felony child pornography crimes for sexting unless the kids participated in the DA's re-education program on morality and "what it means to be a girl in today's society." Three kids and their parents refused and successfully sued the district attorney.
Hoover noted the connection between the Wyoming County lawsuit, cases in other counties, and HB 2189.
"The state legislature is going through this exercise because there are outlier DAs who are over-charging kids," Hoover said. "Like the Luzerne County judges, these DAs are using the heavy hammer of the law to over-criminalize our children, and they're using statutes that were never intended for this purpose."
HB 2189 now heads to the Senate for consideration.
Review Finds Incidents In At Least 33 States
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CONTACT: (202) 675-2312 or media@dcaclu.org
WASHINGTON – Political surveillance and harassment by U.S. law enforcement agencies are on the rise with incidents reported in at least 33 states since 9/11, according to a review published today by the American Civil Liberties Union. The ACLU also announced the launch of a new “Spyfiles” web hub on domestic political surveillance, which will serve as a comprehensive resource on domestic spying.
Political spying – rampant during the Cold War under the FBI’s COINTELPRO, the CIA’s Operation Chaos and other programs – has experienced a steady resurgence in the years following 9/11 as state and local law enforcement are being urged by federal law enforcement agencies to participate in counterterrorism practices.
“In our country, under our Constitution, the authorities aren’t allowed to spy on you unless they have specific and individual suspicion that you are doing something illegal,” said Michael German, ACLU Policy Counsel and former FBI Special Agent. “Unfortunately, law enforcement in our country seems to be reverting to certain old, bad behaviors when it comes to political surveillance. Our review of these practices has found that Americans have been put under surveillance or harassed by the police just for deciding to organize, march, protest, espouse unusual viewpoints and engage in normal, innocuous behaviors such as writing notes or taking photographs in public.”
The ACLU released its report of 111 incidents in 33 states and the District of Columbia in conjunction with the launch of its new “Spyfiles” web hub on domestic political surveillance, which will serve as a major new resource on domestic spying for the benefit of reporters, researchers, bloggers and any other interested members of the public. It will include a database of documents obtained through state and federal open-records requests as well as links to news reports and other relevant materials.
“In a democracy, there is no place for political spying or surveillance or the collection of information about routine daily activities of citizens by government,” said German. “The ACLU has been warning against domestic political spying for several years now. From our lawsuits against Defense Department spying in the middle of the past decade, to our work on fusion centers, to our ongoing close cooperation with our affiliates in states across the nation to monitor and combat these activities, the ACLU is determined to prevent the emergence of a domestic secret police apparatus in this country.”
United States law enforcement agencies, from the FBI to local police, have a long history of spying on American citizens and infiltrating or otherwise obstructing political activist groups.
“We are determined to prevent the emergence of a domestic secret police apparatus in this country,” said German. “Yet, as the ACLU’s report shows, these activities continue to take place with a regularity that shows there are systemic problems at work that must be monitored closely.”
The ACLU’s review of domestic surveillance incidents can be found at: www.aclu.org/free-speech-national-security/policing-free-speech-police-surveillance-and-obstruction-first-amendme
The ACLU’s Spyfiles page can be found at: www.aclu.org/spyfiles
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CONTACT: media@aclu.org
Responding to numerous reports of interference with the right to photograph and record on public beaches, today the ACLU of Louisiana released a public letter to the sheriffs of all Louisiana coastal parishes, reminding them of their obligation to respect the First Amendment rights of media and the public.
Marjorie R. Esman, Executive Director of the ACLU of Louisiana, said: "Public beaches remain open to the public, whether or not BP officials want them to be. BP may not want the public to know the full effects of the oil spill, but that is precisely why public access is so important. BP doesn't have the right to censor what people learn about the problem that it caused and that it must solve."
Reports range from deputies serving private details for BP and blocking access to beaches at Grand Isle, to deputies advising reporters that they shouldn't film because BP doesn't want them to. Television and magazine reporters, independent photographers, as well as volunteers for various agencies working as observers, have been told to stop their activities even though they have done nothing wrong.
As the effects of the oil spill grow more serious each day, it it essential for everyone to know what is happening to our public waters, our beaches, marches, and coastline. Esman continued: "In the United States, we value free access to information and we rely on an uncensored media to provide a full picture of matters of public importance. Answers are provided through more information, not less. The public has the right to know what's happening on the Louisiana coast. BP cannot impose its own rule of law on the people of Louisiana or the Gulf Coast, just because it doesn't want us to know what is going on."
The letter is available at: www.laaclu.org/PDF_documents/Media_Public_Access_Oil_Spill_Letter_062810.pdf
