Category: Constitutional


Was Madonna “Over the Borderline?”

By Sam Ventola,

Image by Getty Images via BBC News

Image by Getty Images via BBC News

At a recent protest march, the singer Madonna made the following statement: “Yes, I have thought an awful lot about blowing up the White House.  But I know that this won’t change anything.”  Some have called for her to be prosecuted for making such a statement.  Commentator Piers Morgan writes that “[a]ny ordinary person who said that would be arrested, charged and jailed.”  Is he right, and would such a prosecution be constitutional?

The cases interpreting the First Amendment make a distinction between advocacy of violence, which is protected, and threats or incitement of violence, which are not.  In this case, Madonna states only that she thought about blowing up the White House – not that she was going to do it or that she was encouraging anybody else to immediately do it.  The Supreme Court decision in Brandenburg v. Ohio involves an extreme example of speech that was found to be protected advocacy.  Brandenburg, a Ku Klux Klan leader, appeared at rallies along with burning crosses and firearms, stating that “vengeance” may be brought against Jews and black people.  Although he was convicted and his conviction was affirmed though the Ohio courts, the Supreme Court held that Brandenburg had merely suggested or advocated violence – because he did not threaten violence or immediately incite violence, his speech was protected.

The First Amendment protects speech, even repugnant and foolish speech.  Although we don’t like it, the solution under our system is to denounce these messages with our own speech.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Free Speech in Schools? Well…sort of…

By Sam Ventola,

school deskMany people worry that they may be breaking a rule in their public school if their child carries a Bible in class, or wears a cross or Star of David. We will cover freedom of religion in schools in a later article. Today we consider a recent decision on a related topic, free speech in schools.

In 2011, the federal court of appeals for the seventh circuit (which includes Chicago) decided Zamecnik v. Indian Prairie School District # 204. There, the school district permitted students to participate in a “day of silence” to celebrate homosexuality. On the day of silence participating students would remain silent except when called on in class, and would wear pro-gay t-shirts.

On the next day of school, students against homosexuality participated in a “day of truth,” which included the wearing of t-shirts against homosexuality, stating “be happy not gay.” The school disciplined students wearing the anti-homosexuality t-shirts by requiring their removal or sending them home. The school district’s claim was that they should be able to censor the anti-homosexuality messages because they made other students feel bad.

The federal court of appeals held in favor of the students. Noting that the school had allowed the pro-homosexual messages, they could not censor anti-homosexual messages based on a concern of hard feelings. The court stated “people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.

In many ways Zamecnik was an easy case, because the school was allowing one set of messages while trying to silence the opposing view. Harder cases are presented where the school district claims that it is limiting all messages in order to preserve school order. Watch this space for other developments in free speech and religion in public schools.

If you have questions regarding the First Amendment, free speech or any other legal issue, contact our office by telephone at (303) 864-9797 or email at sam@samventola.com.

Sam Ventola

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

 

Can you speak freely on the internet? Ask Courtney Love

By Sam Ventola,

gossipA while back, news reports indicated that musician(?) Courtney Love was stuck paying $430,000 plus interest to a designer about whom she had unkind words on MySpace and Twitter. That’s an expensive tweet. Ms. Love stated things such as that her designer was a “nasty lying hosebag,” “thief,” and other invective not suitable to be repeated here.

Wait a minute – isn’t there First Amendment protection for opinion expressed on the internet? Well, yes and no. There is broad First Amendment protection for expression of opinion if it is clear that by giving your “opinion,” you are not basing it on undisclosed facts. Here are some examples of statements that were found to be constitutionally protected opinion:

– that a developer’s negotiating position was “blackmail”

– that investors would “sour on” a project in a “stock tip” column

– that a reporter’s story was “sloppy journalism

– that a loudspeaker system did not have “high accuracy”

– describing a fund’s ads as “lies, damn lies, and fund advertisements

– stating that the sale of living wills was a “scam”

– an accusation of “blatant mismanagement”

– that buyers of stock have been “duped” into a “scam”

Normally, the kind of hyperbole in which Ms. Love engaged is the kind of thing that would fall into this constitutionally protect opinion. Ms. Love’s problem was that her statements appeared to be based on undisclosed facts regarding her personal dealings with the designer. When the expression of opinion appears to be based on undisclosed facts, then it is moved from the realm of constitutionally-protected opinion, and the speaker may be liable if the implied facts are not true.

Also, the strong protection of opinion works best in areas of “public interest.” Not knowing all the facts, it is not clear whether Ms. Love’s beef with the designer involved issues that would have been of interest to the designer’s other customers or potential customers.

The lesson here is that when you want to express an opinion about someone on the internet, or anywhere else, make it clear that you are stating all the facts on which your opinion is based. Use publicly available facts, such as link’s to the person’s own statements or other web sites. Also make sure you are speaking on an area of public interest. Having an attorney experienced in First Amendment issues review the communication before it goes out is always a good idea.

If you have questions regarding the First Amendment, free speech or any other legal issue, contact our office by telephone at (303) 864-9797 or email at sam@samventola.com.

Sam VentolaSam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

 

Honor Scalia By Honoring the Constitution in the Nomination Process

By Sam Ventola,

supreme-court-546279_960_720

With the death of Justice Scalia, some Republicans are already committing to a policy of refusing to consider any replacement nominated by President Obama, or state that President Obama should not try to nominate anyone. Meanwhile, Democrats are demanding that any nomination for Justice be considered immediately.

Who is right? If we still had Justice Scalia to advise us, I believe he would have us look at the Constitution. Article 2, section 2, paragraph 2 states that “[The President] shall… nominate, and by and with the Advice and Consent of the Senate… shall appoint Judges of the Supreme Court….”

The language is mandatory. The President “shall” nominate Justices, and by implication the Senate shall either give or refuse its advice and consent regarding that nomination. This is a constitutional duty. There is no excuse for failure to meet it.

Republicans point out that in the past, when we had Republican presidents and Democrat Senates, Democrats refused to bring Justices and judges up for a vote. However, the fact that somebody may have acted unconstitutionally in the past is no excuse for failure to follow the constitution now. Somebody has to break the policy of this cycle of refusal of the Senate to meet its constitutional duty. Now would be the perfect time, as the Republicans have a solid majority.

This brings me to the final point. Although the Senate has a constitutional duty to consider any Justice nominated, they have no obligation to approve an inappropriate nominee. Rather than a craven attempt to drag feet and avoid the issue, the Senate could forthrightly refuse any nominee who is not committed to Justice Scalia’s judicial philosophy of originalism. It would be a far greater tribute to Justice Scalia to stand on his judicial philosophy than to unconstitutionally avoid the issue.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Have your legal questions answered by contacting our office by telephone at (303) 864-9797 or email at sam@samventola.com.

Colorado Court of Appeals Rules on Wedding Cake Dispute

By Sam Ventola,

wedding-cake-64821287878047ARgXToday in Craig v. Masterpiece Cake Shop, the Colorado Court of Appeals affirmed a decision fining a Christian baker for refusing to provide cakes for same-sex weddings. The baker did not refuse to provide other goods to homosexual customers, but claimed that forcing him to make cakes for gay weddings violated his rights of free speech and freedom of religion.

The decision was as expected. There is currently a great deal of hostility within courts, and particularly Colorado courts, against claims of free speech and religion when government regulation of gay rights is involved. Further, freedom of religion rights had already been sufficiently eroded nationally that the only possible defense was based on free speech.

The Court did note that in some circumstances, the making of cakes could be considered speech and therefore protected. The Court did not specify the nature of this protection, but if a baker or other businessperson typically insists on placing his own messages in his or her products, then his or her rights would more likely be protected.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Supreme Court decision is that gay marriage is required by the Constitution

By Sam Ventola,

In a 5-4 decision today in Obergefell v. Hodges, supreme-court-546279_960_720(with Scalia, Thomas, Alito and Roberts dissenting), the Supreme Court held that the 14th Amendment’s equal protection clause requires States to recognize gay marriage. The decision is somewhat unusual in that it does not clearly rely on a “level of scrutiny” test as most equal protection cases do. Instead, the majority states that marriage is such an important and fundamental right, it cannot be denied to same sex couples.

One issue with the case is that its reasoning is quite broad, and therefore arguably implies the necessity of recognition of others’ efforts to get marriages, such as those wishing to engage in plural marriages or who are too closely related under State law. It remains to be seen whether the Justices in the majority would apply the same reasoning in those cases, or whether they would simply decide which relationships they deem to be acceptable on a case by case basis.

The result in the decision was widely anticipated, and already possible legislative responses are being considered. One possibility is that a State could simply eliminate “marriage” and create civil unions for any two – or even more – people who wish to commit to each other legally and financially. This could include siblings, a parent and an adult child, etc.

Also, it is important to note that this decision does not affect the First Amendment right of a minister or church to continue to decline to participate in gay marriages. The First Amendment preserves the rights of a religion to preserve its own doctrine and set its own parameters of what is a proper marriage. Although some service providers such as bakers and photographers have been required to participate in gay marriages, this would not be extended to ministers, churches, or anyone who would be required to engage in expression on behalf of the marriage.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Supreme Court Hands Down Decision Upholding Obamacare – Do the laws mean what they say or what we think they should mean?

By Sam Ventola,

young-woman-bored-11281332030yRqtToday in its decision in King v. Burwell, the US Supreme Court, by a 6-3 vote, interpreted the Affordable Care Act (“Obamacare”) in the manner requested by the Obama administration. Specifically, the Court held that tax credits are available for people who bought health policies on the federal exchange, even though the actual terms of the statute limited those credits to those who bought policies on exchanges “created by a State.” The decision did not directly affect Colorado residents because Colorado had established a State exchange.

However, people in 34 other states would have lost any tax credit – and the elimination of tax credits would have imperiled the entire Obamacare system. The Supreme Court acted to avoid these results by interpreting the Act to allow the credits even to people who did not buy on State exchanges.

The decision brings to the fore the central tension in American judicial philosophy – should judges interpret statutes (and the Constitution) strictly as written, or should they try to advance policies the judges believe should be promoted? Although our first impulse may be that we think judges should try to reach the best result, the implication of this view is that we place judges in the position of unelected “Philosopher Kings” who dictate policies they think best, even though the laws may say otherwise. The three dissenting judges (Scalia, Thomas, and Alito) contend that a judge’s role in a Constitutional democracy must be limited to enforcing the laws as written. This is a tension which will continue to play out in judicial decisions.

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

More Fun with Prosecutorial Discretion

By Sam Ventola,

More Fun with Prosecutorial Discretion – Oklahoma and Nebraska sue Colorado over Marijuana.

1904_tug_of_warIn our last entry, we explored the issue of “prosecutorial discretion,” particularly as it involved President Obama’s executive amnesty for certain illegal immigrants. With today’s news comes another story created by the Obama Administration’s decision not to enforce some parts of the federal law.

Today the States of Oklahoma and Nebraska filed a lawsuit with the U.S. Supreme Court challenging Colorado’s legalization of marijuana. The States contend that Colorado’s program violates federal policy which makes marijuana strictly illegal, and that federal policy in the field must be considered supreme.

The curious part is, the federal government – or at least the current administration – apparently does not consider marijuana regulation to be so important, because it has so much as announced that it will refrain from enforcing federal marijuana laws in States such as Colorado that have legalized it. The lawsuit essentially contends that Colorado must prohibit marijuana sales in Colorado even where the federal government has declined to do so. As stated by Colorado Attorney General John Suthers, “it appears the plaintiffs’ primary grievance stems from non-enforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado.”

Indeed, the States suing Colorado include as support of their claim the fact that the U.S. has signed international treaties requiring that marijuana be illegal under U.S. law. But again, it would seem to be the obligation of the federal government to comply with those treaties, rather than the Colorado government.

Because it is a lawsuit between States, this case was originally filed in the Supreme Court, so we may have a final ruling on this issue much sooner than in most cases. Watch this space for further developments.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

First Ruling Comes Down On Obama’s Executive Immigration Amnesty.

By Sam Ventola,

AMNESTYVery often a legal question comes down to a decision as to where to draw the line. Is something legal or prohibited? Does something belong to this person or that one? Lawyers and judges are left to interpret cases, statutes, and constitutions and apply them to fact patterns that differ in subtle, often unanticipated ways.  The line drawing becomes even more difficult in the field of Constitutional law, as we are trying to apply rules over two centuries old to the actions of politicians skilled at pressing the limits.

Today in the case of Elionardo Juarez-Escobar, the federal district court in Western Pennsylvania became the first to try to draw those lines in considering President Obama’s decision to grant amnesty to certain illegal immigrants. The government had picked up Mr. Juarez-Escobar for violations of the immigration law. The judge seemed to want to address the issue of the constitutionality of executive amnesty, because the judge on his own directed the parties to address the issue of whether Mr. Juarez-Escobar was entitled to amnesty under the program. The government argued that the program did not apply, but that didn’t stop the judge. Having created the issue, the judge then resolved it by finding that the executive amnesty is illegal.

The case presents the issue of where the line is to be drawn between the president’s duty to enforce the law, and the executive branch’s “prosecutorial discretion.” It is taken for granted that prosecutors and law enforcement officers, and by extension the attorney-general and president that supervise them, cannot prosecute every case. So they are considered to have the discretion to refuse to arrest, to dismiss cases, to plea bargain, and to decline to appeal. However, the Constitution also requires the president to “take Care that the Laws be faithfully executed.” On which side of the line falls President Obama’s policy of granting amnesty to certain illegal immigrants, and even giving them documentation to prove their status and obtain benefits?

Some scholars have argued that so long as the president is ordering the executive branch to refrain from taking action in certain situations, then the (non-) action is permitted as part of prosecutorial discretion. In our opinion this draws the line much too far on the prosecutorial discretion side. Could a conservative president unilaterally decide that environmental regulations are too strict and therefore will not be enforced? Could he determine that tax rates are too high and instruct the IRS to collect lower amounts, even creating tax forms that apply his new revised rates?

The judge in the Juarez Escobar case drew the line by saying that when the executive action announces a policy that is not on a case-by-case basis, or creates substantive rights that would be difficult to withdraw later, it is too far from prosecutorial discretion and illegal. Finding that President Obama’s executive amnesty violated both those tests, he declared it unconstitutional. However, because of the unusual way in which the case was presented (no party in this case was seeking an injunction against the President’s program), this decision is not likely to affect the Obama Administration’s actions.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Supreme Court To Hear Arguments Today on Facebook Threats

By Sam Ventola,

homme-daffaires-ordinateur-pcIf you have teenagers, you have no doubt heard the argument that some awful thing posted on Facebook or other social media should be ignored because “it’s just song lyrics.”

Anthony Elonis tried that defense too. It hasn’t worked so well for him so far, and now his case Elonis v. United States is before the U.S. Supreme Court for oral argument today. Mr. Elonis posted Eminem song lyrics about his wife including “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” After being visited by a female FBI agent, he posted “Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat.”

The jury that convicted Elonis was instructed that his words should be regarded as a threat, which is not protected by the First Amendment, if a reasonable person would interpret the words as a threat. Elonis’ argument is that the prosecution should have been required to prove that Elonis subjectively intended the language as a threat.

Watch this space for the result, however we predict that the Court will reject Elonis’ argument. The Supreme Court often evaluates First Amendment cases by considering the value of the speech sought to be protected, and there is little value to Elonis’ quasi-threats here. Also, the Court is unlikely to favor an approach that requires authorities to gauge the subjective intent of a speaker.

Please contact us if you have questions about this case, or First Amendment rights generally.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.