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Saturday, September 30, 2006 - 14:51:11
The Price Of Religious Freedom
$150,000. That's how much it cost the ACLU to successfully win its lawsuit forcing Georgia to remove a religious monument in its Supreme Court. Georgia had to reimburse the ACLU these legal fees. The Houston Chronical recently ran an article about a bill that just passed the U.S. House, and is now being considered in committee in the Senate Judiciary, The Public Expression of Religion Act,. This act would modify a current practice of granting attorney fees to any plaintiff that successfully sues the government for a violation of the constitution This would set lawsuits seeking religious freedom different than lawsuits involving most other constitutional deprivations. The bill passed with 98% of Republicans for it and 87% of Democrats against. it.Its official title is:
To amend the Revised Statutes of the United States to prevent the use of the legal system in a manner that extorts money from State and local governments, and the Federal Government, and inhibits such governments' constitutional actions under the first, tenth, and fourteenth amendments.
Extortion seems a little strong to describe a successful lawsuit defending religious freedom. Why are Republicans so in favor of this bill? Aren't they for religious freedom? In general, I would say they are, but since most government agencies are run by people who identify themselves as Christian, most of these lawsuits are in opposition to state efforts to promulgate Christian beliefs on everyone. Take for example, the furor over the massive rock inscribed with the ten commandments in Georgia. If Governor Huckabee did something nutty like that ( and even he is not that nutty) a private citizen or group could sue to have it removed. The attorney general would have to defend the state most likely. It could take years of litigation and thousands cost thousands of dollars in legal fees. The Governor wouldn't care, he would have “free” representation. If this bill becomes law, any group that sues would not be reimbursed even if they win. Their only victory would be that the religious monument would have to be removed. Few people would pursue such a lawsuit if they knew that even if they won, they would receive no compensation for defending their constitutional rights.
Sometimes you hear independent and 3rd party candidates saying there is no difference in Republicans and Democrats – and that you shouldn't vote for either. It is bills just like this one in which the differences are make strikingly clear. If you feel like telling your senator you are for or against this bill, U.S. Senate version is S. 3696.
Sincerely,
The Hoglawyer
hoglawyer@gmail.com
I'm Not Fat, I'm Big Boned !
I'm not politically correct and in general political correctness annoys me. I'm also not naïve enough to know that I don't routinely censor myself The wrong phrase or description can quickly bring the wrath of a whole religion, race, nation, or minority group. While some people tend to be sincerely trying to avoid offending people by their choice of words an equal number of people are just worried about being sued or vilified. There is a strong overlap of groups who are offended by certain words. and groups that are given special protection by law.These groups are fluid and change over time. For example, if homosexuality ever becomes a suspect class, the number of jokes, comments, and even discussion of homosexuality in the workplace would radically change. New terms might have to be invented to avoid using words any new protected class may view as a slur. Writing about minority groups is like crossing a politically correct minefield, one wrong step and you will offend someone. For example, according to the New York Times style manual the term “a gay man” is correct but describing a group of gay men as “gays,” apparently is not. “Sexual orientation” is correct, while “sexual preference” is discouraged. The National Center on Disability and Journalism has made a list so that any writer may be as politically correct as they dare. Interestingly, while “gay male” is correct, “disabled male” is wrong. Instead, the person is expected to be put before the disability. I'm sure I just blew up two or three mines in this paragraph alone.
Two things this week made me think more about protected classifications. First, in the show Boston Legal, William Shatner was having a blind date with a lawyer me met on “FaceSpace.” He had a photo of his date, who looked quite striking, and then she arrived, all 4'4” of her. Over the course of dinner, he inadvertently called her a midget, which I have since learned is a derogatory term, and she sued him for intentional infliction of emotional distress. Of course, Boston Legal is just a TV show and just because someone calls you a bigoted, racist, or rude name isn't actionable in most circumstances. Apparently right or wrong, you can still use “little people” as they prefer to be called to be the joke on a popular TV show. As odd as it seems, if you are under 4'5” you probably have a genetic condition and can't be discriminated against because of height. However, if you are just short yet with no genetic abnormality – you are fair game.
I also read this week that obesity does not have to be regarded as a disability. A quick search of web sites that cater to persons with disabilities (apparently “the disabled” is yet another slur “revealed that obesity need not be referred to as a disability or given special journalistic treatment. As recently as this month, a federal appeals court ruled that an employee who was morbidly obese, he weighed 450 pounds, had to prove he had a disability. To prove his weight was a disability he had to prove it had a “physiological cause,” which he failed to do. In the end, the appeals court found that discrimination based on a mere physical condition (morbid obesity) was not prohibited by the Americans with Disabilities Act. To be clear, the court did not rule that obesity is never a disability, as obviously there are a myriad of physiological causes for weight gain and retention.
For all you English majors out there, editors, and of course attorneys, this is one of those crazy cases were the comma makes all the difference. The case centers on whether an EEOC regulation properly included the term “physiological disorder or condition” as opposed to the term “physiological disorder, condition “ As I have said before, words matter, and in this case, punctuation mattered too. In this case, one comma might mean that obesity is not a disability under most circumstances -With the percentage of Americans who are obese around 30% and rising, and those who are overweight at 60%, the political pressure to change a few words or punctuation marks will surely increase. Fat jokes may one day become a thing of the past if the “circumferently challenged” have their way.
Friday, September 29, 2006 - 20:09:43
Freedom of Speech for Me but not for Thee
As I mentioned in my last entry, I did some door-to-door campaigning this weekend in a local race for the first time in years. . I had my little map and my list of likely voters. There were twenty or so voters listed on a certain west Little Rock street. When I got to the street, the street sign said “Pvt” and there was a sign indicating it was a condominium complex. There was another sign “No Soliciting.” My memory flashed back to years ago, my first summer job in law school was working on a Arkansas House of Representatives race in Hillcrest. As I was earnestly passing out literature I was stopped by a manager for an apartment complex to testily told me I had to leave immediately or she would call the police. Not wanting to cause my candidate controversy, I left. I mentioned this to the campaign coordinator I was working with yesterday, and he assured me – its not solicitation if you aren't trying to sell anything. So who is right?
A comment on one of my recent posts said anyone who has a problem with Sir Rod Bryan's right to debate "needs to look at the first amendment." Of course, my entire blog was entirely about the first amendment, as is this one. We have all heard the cliché that the first amendment doesn't allow us to yell “Fire” in a crowded theater, it doesn't say that in the first amendment either. You can, however, yell "theater" in a crowded firehouse. According to the U.S. Supreme Court, it also doesn't allow us to hand out leaflets at the local shopping mall. On the other hand, it does allow us to protest on a public college campus ( not just anywhere you want though.".
To keep this blog somewhat succinct, I won't drone on about the history of these issues, even though it is fascinating. Instead I can tell you from my review of this issue: there are no definitive rules as to door-to-door canvassing of apartments and condominiums in Arkansas so do so at your own risk. I sincerely doubt most police would even consider arresting someone for peaceful political activities – but what if you are campaigning against an incumbent sheriff in somewhere like Conway County? You might get run out of town, or at least the local retirement home or trailer park, on a rail.
Free speech is not an unlimited right, and in many circumstances the government enforce a reasonable, content neutral time, place, and manner of speech in a public forum. For instance, a citizen may apply and receive permission from a college campus to protest, gather petition signatures. But, a rest home or apartment complex is private, not public forum, and in many instances free speech may be banned altogether. To further complicate matters almost every state has its own version of the freedom of speech in their constitution. That means that each state has some discretion to regular freedom of speech slightly differently.
The best I can say about this issue is that there is no universal rule to follow when it comes to determining where and how you can politically campaigns door to door. Almost everything I have read indicates that an owner of a multi-unit apartment complex, a condominium home owner's association, or a trailer park owner all have a property right to exclude uninvited political candidates from distributing materials on their property. Conversely, I assume that an owner of even huge apartment complexes may chose to allow one candidate on the premises, but not another. It seems unfortunate that the property owners would prevent their tenants from being educated about a political race or issue – but sometimes the class of constitutional rights creates unfortunate results.
I had hoped to make this a little more lively topic – but as I learned in law school, free speech doesn't necessarily mean interesting important, or relevant speech, just like most political debates.
Sincerely,
The Hoglawyer
hoglawyer@gmail.com
Sunday, September 24, 2006 - 18:41:43
I'd Like Three Representatives And Two Senators To Go Please
Before you know it, it will be time for another session of the Arkansas General Assembly. We don't even know who all will constitute the legislature but already the incumbents are gathering, the lobbyists are a calling, and the grassroots organizations are watering their political lawns. Recently I attended a meeting in which I learned a little about the ins and outs of trying to get a bill made into a law, how to testify in support of your bill, and the best ways to get your voice heard. One of the speakers, a former lobbyist himself, said it revolved around four letter words: GOLF, FOOD, BEER. He had some other great advice as to how things really get done at the capitol. Come early, stay late. Not much really gets decided on the floor of the house and senate – most happens in committee rooms and even more before the session even begins. Now is the time to approach your local Senator, your local representative ( if you know who they will be ) and tell them what you think is important. Do you want to see you local police acting as a Immigration officer and arresting suspected undocumented workers? Tell them that. Email them – they write back – I promise they always have for me. I'm not sure if this is true as much anymore but a handwritten or very personal letter is more effective than a cut and paste job any day. Even more effective – call your representative. I guarantee on most issues that don't involve their committee, they haven't heard of most bills and are open minded still. It always helps to have a house or senate bill number but most issues aren't that far along yet. Some things change but this will always remain true: legislators listen to constituents who can vote them out of office.There is no doubt that lobbyists and special interests are more easily heard – but don't forget there are often lobbyists on both sides of an issues. There are groups on both sides of an issue and many issues aren't just for or against – multiple groups want diametrically opposed results at times, other times their interests coincide. It is true that money and campaign donations get some people noticed more easily than others – but with 135 legislators, even the hardest working lobbyists can't meet every single member of the General Assembly for very long -
I'm going to throw out some issues I see being debated. These are issues that will be sure to come up and get some attention. Of course school consolidation and the rights of rural school children will be made an issue. The gay foster parent / adoptive parent debate is not over – it was just a agency policy that was overturned – there will probably be multiple bills addressing this issue. From the last gubernatorial debate its pretty clear that the sales tax on food will be an issue. What about this for a smaller issue – declaring that child neglect includes smoking in your car with the windows rolled up? What about smoking in the house. ? What do you think will be the top five issues?
Many of these issues will eventually gain media attention -but now is the time to try to pin down legislators on their opinions on these issues – to draw them into your camp and with the help of others in your community show how you are not the only one who feels the way you do.
When its gets closer to election time – I'll do an extensive blog about how to find a bill you are interested in, how to find who is the sponsor, which committee it has been assigned to, and check the status. Whenever possible, I'd like to discuss issues by bill number so we can discuss what is actually being considered and not just what the supporters or detractors of a certain bill think it means.
On a different note I spent three hours today going door to door campaigning for a candidate in a local race. That is hard work and although it was a nice day to be outside, I was completely worn out at the end. I've worked on many campaigns though – and one thing I've learned is going door-to-door is the way to win. In smaller races many times people don't know much about the candidates or issues but they know a candidate or volunteer took the time to come to their home and ask for their vote – and for more than a small amount of people, that is enough to win their favor at the ballot box.
the hoglawyer
hoglawyer@gmail.com
Tuesday, September 19, 2006 - 21:11:16
To Debate Or Not To Debate, That Is The Question
You know who i like? Rod Bryan. I bet I agree with him on 90% of the issues he endorses. That doesn't mean I have to vote for him.. You know who else I like? Jim Lendall. Like Rod, Lendall is a great guy. Lendall was even a state representative for eight years. I'm not voting for him either. Who remembers Ralph Forbes? As Justice Anthony Kennedy wrote in Forbes v. AETN, "Forbes was a perennial candidate who had sought, without success, a number of elected offices in Arkansas." Forbes, like Warren Carpenter before him, and like Bryan and Lendall now, ran his campaigns on little or no money, staff, or mainstream support. Like Bryan, Forbes badly wanted some free air time as could be provided by a televised debate. In 1992, he sued to be allowed to participate claiming that a tax-payer funded television station, AETN, could not keep out candidates just because they were not in one of the two major parties. Forbes had accumulated 6,000 signatures in support of hid candidacy.
The U.S. Supreme Court specifically held that AETN's decision to exclude Ralph Forbes from the televised debate did not violate the 1st amendment. They court wrote that the televised debate was not a public forum – that is, it was not open to just anyone who wished to speak on any topic. The Court majority agreed that Forbes was not being excluded from the debate because of his political views. Instead, he was being excluded because he had not generated “appreciable public support.” As long as the AETN's exclusion of Forbes was reasonable and viewpoint neutral, it did not violate the 1st amendment. The Court's decision was more based on journalistic discretion than on whether a public television network had to treat all candidates equally. The Court wrote
Much like a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum, a broadcaster by its nature will facilitate the expression of some viewpoints instead of others. Were the judiciary to require, and so to define and approve, pre-established criteria for access, it would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.
There are only four candidates in the Governor's race. What if there were ten? Twenty? Should AETN have to host a debate with twenty candidates, only two of whom have greater than 1% name recognition and support? Few journalists would sponsor or participate in such a debate Does anyone think AETN or any other station should or would host a debate with twenty or even ten candidates? The Court found “Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates' views at all.” Should write-in candidates be allowed to debate too? No one is suggesting that AETN must host a debate. I agree if there were 10 or 15 candidates, they would host a debate at all..
Of course in this race there are not ten, but only four. Regardless, the principal still applies - the major candidates decided they did not want to debate if faced with being given the same forum as the most minor candidates. The choice then for the station is either no debate or a debate that only includes the major candidates. I agree with the Supreme Court that as long as candidates are not excluded by a taxpayer subsidized television station for having unpopular views, there is no 1st amendment violation for keeping out the minor candidates. This is not to say that all the candidates could not be given some free forum – such as a post-debate response speech or an hour long interview. Again, journalistic freedom is at stake and even a public television station should have the freedom of the press to make such decisions without court interference.
I'm curious what Bryan and Lendall would prefer – a debate between just Hutchinson and Beebe, or no debate at all? That is the real issue in this controversy. Between now and the last debate, I'll use my journalistic discretion and give both candidates an opportunity to answer that question.
To be fair to Bryan, he doesn't take a legalistic stand in support of his request to be allowed to participate in the debates. Instead, he lambastes both the major candidates for refusing to debate him. Recently someone offered to debate George Bush. He said,
I suggest we talk with Mr Bush, the president of the United States, in a live television debate about world issues and ways out of these standoffs. We would voice our opinions and they would too. The debate should be uncensored, above all for the American public.
These remarks are by the Iranian President Ahmadinejad. I'm not comparing Bryan to the president of Iran, but I am saying that Beebe, Hutchinson, and George Bush may have legitimate and practical reasons for ducking their respective debate challengers.
the hoglawyer
hoglawyer@gmail.com
Summer Salsa Party - Wednesday Night
I didn't write this, just passing it on....Looking for something different to do Wednesday night? There will be a Salsa Party at teh River Market Pavilion - where they have the farmer's market.
When: Wednesday, September 20, 5:00pm to 11:00pm
Phone: (501) 733-4801
Ladies and Gentlemen,
Finish this summer in style with group Salsa dance lessons provided by Arthor Murray Dance Studio of North Little Rock on JFK! This is the perfect event to wear that hot little dress you have tucked away in your closet for so long, just waiting for the perfect occasion to wear it. Guys, make sure you dress to impress and bring some dance moves to back it up! Budweiser beer will be pouring all night long, while Afrodesia provides the beats to dance to. Blue Coast Burrito will serve up some of their famous burritos, while Mary Kay will help accessorize the ladies. To top it off, Nu Tanz will help you keep that tan all through the winter with discounts available on site. Mountain Valley Spring Water will also help you stay hydrated after all of that dancing.
The Summer Salsa Dance Party is the hottest event in town! Come check it out for yourself. Tell your friends and family! I'll see you on the dance floor.
Beebe: 1 Hutchinson: 0
Who watched the Beebe - Hutchinson debate last night? It was a little hard for most people to catch, but it was shown live, online which might be a first for an Arkansas debate. I was fortunate, and got to watch it on a huge flat screen plasma monitor at one of my favorite haunts, the Mallard at the Peabody. It was interesting to watch the debate with such a colorful group of insiders including lobbyists, developers, public relations types, campaign aids, and to make it more interesting I got to meet Dustin McDaniel there as well. He is taller than I expected.
The debate was a bit dry with most of the humidity being absorbed by Hutchinson. I've heard him speak before and he is just not dynamic. His tone is flat, he needs speech lessons in a bad way. Simply put, he lacks passion. Beebe is comfortable in front of any audience and it shows. He used great vocal variety and he knows how to summarize the points he wants to make so they are easier to remember.
Of course, this was not a debate in the classic sense. Instead it was just a series of softball question that each candidate has a stock answer for already. I think it was Prof. Jay Barth who last week predicted that Hutchinson, because he is trailing in the polls, would be the first to go negative and attack Beebe. His prognostication was correct. Hutchinson took every shot he could at Beebe using carefully chosen buzz words and catchy phrases. Hutchinson attacked him using misleading assumptions and other unhelpful rhetoric. Moreover, he did it badly, without style and with a flat presentation.
Beebe was right – voting records should be examined in context of what was happening during each session. If the state was in risk of running a deficit – raising taxes sometimes was necessary. Hutchinson’s viewpoint was too simplistic. How important is it in the end whether someone sponsored a certain piece of legislation? Not very. Simply because Beebe may have voted to raise one tax didn’t mean he didn’t vote elsewhere to lower taxes. I have no idea about his overall tax votes – but I feel fairly certain the story Hutchinson is telling does not reflect how the legislature really works.
Beebe is right about one thing – Hutchinson is a Washington D.C. outsider and after being away has lost touch with the state.
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