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First Amendment

First Amendment Shouldn’t Protect Homophobia in Schools

It’s distressing to hear that students are being permitted to wear t-shirts with homophobic messages on them at school. This issue has come up a few times in the past year. In one situation, judge said it was ok for a student to wear a shirt that said, “Be Happy, Not Gay” because a school didn’t have the right to prevent a student from expressing their beliefs. At another school, students were not disciplined when they came to school wearing shirts that said “Straight Pride” on the front and a verse from Leviticus on the back: “If a man lay with a male as those who lay with a woman, both of them have committed an abomination and shall surely be put to DEATH.”

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Image by NIST2018 via Flickr

Now, I’m a huge supporter of the First Amendment. Tinker v. Des Moines School District says that your constitutional right to free speech doesn’t end when you enter the school property, and I think that’s true. It’s perfectly fine to have your beliefs, but there must be limitations on how you’re allowed to express them.

There are also needs to be a line drawn between Tinker and these anti-gay t-shirt cases. In Tinker, the students wore black armbands as a symbol that they were against the Vietnam War. They were expressing their political view. They weren’t discriminating against anyone. Their armbands probably didn’t create a hostile learning environment. A shirt that says all homosexuals should be killed does.

If a school permits students to wear “Gay Pride” shirts then students should be allowed to wear “Straight Pride” shirts. The students should have been disciplined because they wore shirts that called for killing of homosexuals! There wouldn’t have been any discussion if these students had shown up to school in shirts that promoted the KKK, said that women were the lesser sex, or displayed the Nazi flag. No one would have been allowed to wear any of these shirts because “it sparked a conversation.” Discipline would have been swift and automatic.

Too often, people are using the right to religious freedom to promote homophobia, and schools are accepting this crap argument. School administrators should not tolerate any type of discrimination on school grounds. They can respect that students have a right to their religious beliefs (even closed-minded beliefs) without giving them so much freedom of expression that they allow these bigoted students to interfere with other students’ ability to learn. There’s a huge difference between allowing a student to have their beliefs and putting limits on how they are allowed to express it in the classroom. It is unacceptable for schools to use religious freedom as an excuse for allowing LGBT students to be bullied in the classroom.

Flash Mobs Are Not Crimes

Disclaimer: I am not a lawyer.  This blog should not be viewed as legal advice.  It is simply my experiences, opinions, and information I looked up on the internet.

It appears the term “flash mob” is being used inappropriately and its meaning is being overly broadened to include any group activity that is coordinated using social media.  This year, there have been several robberies and assaults perpetrated by a group of people that appear (at least on the surface) to have been orchestrated via social media sites.  The media has called them “flash mob crimes.”  They make it sound like someone created a Facebook event that said, “Meet at Broadway and Main at 10pm.  At exactly 10:03, we’re all going to run into the minimart, grab whatever we want, and run out.”  That’s not a flash mob.  That’s solicitation and possibly conspiracy.  If the event actually occurs, it’s larceny and perhaps inciting a riot.

Improv AZ - Where's Waldo Flash Mob Photo by Jeff Moriarty

A flash mob is defined as “a group of people who assemble suddenly in a public place, perform an unusual and sometimes seemingly pointless act for a brief time, then disperse, often for the purposes of entertainment and/or satire.”  Flash mobs have been occurring at least since the 1970’s.  In recent years, they have been orchestrated via email and social media websites; however, that does not mean that every public group activity that is coordinated via social media is a flash mob.

Flash mobs are generally light-hearted innocuous fun.  People who participate in flash mobs ride public transportation without their pants; they welcome back strangers at the airport; they have fake battles between heroes and villains; and they stand frozen in place for short periods of time.  Some protests and promotional events are referred to as “flash mobs,” but technically they’re not.  And any event that has a criminal intent is definitely not a flash mob.

I give the media some leeway when it comes to coining terms; however, I was deeply disturbed when I saw a legal website refer to flash mobs as including criminal behavior.  It suggests the writer did not do their research on this topic.

I love flash mobs.  I have been participating in them and organizing them since 2009.  When Improv AZ organizes a flash mob, we do thorough research on the potential legal implications of our event.  I have attended an event with pages of statutes in my back pocket to ensure that we’re acting within the confines of the law.  We are diligent to inform our participants in advance of their do’s and don’ts.  We may push the envelope, but we never intend to cross the line.  Most of our encounters with police involve them smiling or laughing at us.  At the 2010 No Pants Ride after party, a Tempe police car stopped near us and an officer yelled out, “We had a briefing about you!”  And then he went about his merry way, knowing we were harmless.  A bit odd and rather goofy, but harmless.

Flash mobs are harmless, playful, and unexpected events.  They are not criminal acts by design.  Flash mobs and crimes are two completely different phenomena.  They do not exist on the same continuum.

In other news, the flash mob community needs to send a big “thank you” to Mayor Jackson and the city of Cleveland.   Mayor Jackson recently vetoed a proposed law that would have made it illegal to use social media to coordinate a flash mob.  Thank you for protecting our First Amendment rights!

Discrimination Against GSA in West Bend

I was listening to Dan Savage’s Savage Love Podcast last week and I heard about a sad but inspiring situation in West Bend, Wisconsin.  East and West High Schools has had an unofficial Gay-Straight Alliance for over a decade and is currently being denied the recognition of being an official school group.

Some schools have Gay-Straight Alliances or si...

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Prior to this year, student group recognition was fairly informal, and it appeared that every group that requested recognition received it.  This year a new process was imposed that required a group to show that they have curricular tie, national or state affiliation, student appeal and a volunteer adviser to receive recognition by the school.  The GSA complied with every requirement of the application process and their application was approved by the school district administrators.   All they needed was the approval from the West Bend Board of Education.

The students of the West and East High School GSA did a very ballsy thing – they hired an attorney who assisted them throughout this process.  When the group went before the school board, their attorney warned the board members that legal action for discrimination could result if they denied the group’s request for official recognition.  They walked into that meeting and basically said, “We’ve complied with your requirements.  We know we have rights, and if you deny us our rights, we’re going to sue you.”  I love it!

The school board unfortunately voted against granting the GSA recognition.  Randy Marquardt, president of the board of education, voted against recognition and does not understand the need for the school to recognize the GSA.  He allegedly said the board should not vote in the group’s favor to avoid a threat of legal action.

The GSA complied with the school’s requirements for recognition, and therefore they have earned the right to be an official school group.  The co-presidents of the GSA have filed a federal lawsuit against the West Bend Board of Education for violations of their First Amendment rights and the federal Equal Access Act that grants all non-curriculum student groups equal access if a school recognized at least one non-curriculum student group.  The students claim that they are being denied the privileges afforded to recognized student groups such as using the school’s PA system, posting flyers and posters in the school, using the school’s resources and equipment, raising funds for group activities, and being included in the school yearbook.

These students should be applauded for their determination and for refusing to sit in the back of the proverbial bus.  Their group’s mission is “to combat bullying and harassment through education and advocacy and to provide an emotionally and physically healing learning environment for people of all gender and sexual orientations.”  The GSA has only asked for a declaration that the board of education violated rights, a court order requiring the school to recognize the GSA as student group, less than $20 of damages and attorneys’ fees.  They are not asking for anything spectacular, only for what is fair.

To the students in West Bend, keep fighting the good fight. I was pleased to hear that the community for the most part seems to support you.  Please let us know what we can do to continue to support you and your cause.

If you want to send Randy Marquardt a message urging him to allow the GSA to be an officially recognized student group, you can email him at rmarquardt@west-bend.k12.wi.us or call him at 262-306-2601.

UPDATE: On Monday, June 13, 2011, in a re-vote the West Bend School Board approved the request for an official GSA at West Bend High School.  It appears that the school board caved because they were advised that if they fought the lawsuit filed against them, that they would lose.  Randy Marquardt had the audacity to say that the board was bullied by the GSA and that he still does not approve of giving the group recognition as a student club.  Regardless of why the board approved the GSA, it was the right thing to do.  Congratulations kids!

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The Legal Side of Blogging – Part 2 of 4: Can My Blog Get Me Arrested?

Disclaimer: I am not a lawyer. I am a law student. In accordance with ABA policy, this blog should not be viewed as legal advice. It is simply my experiences, opinions, and stuff I looked up on the internet.

While most of what we post online is protected by the First Amendment, not all speech is protected.  Therefore, it is logical to think that anything that would be illegal to publish in a newspaper is likely illegal if it was posted online.  There are a fair number of things that could probably get you arrested if you put it on your blog.

Threats of Violence

In general, it’s illegal to threaten violence against another person.  In Arizona, “intentionally placing another person in reasonable apprehension of imminent physical injury” is assault.  The law doesn’t say what methods of creating this apprehension are illegal; therefore you can make an argument that a threat against you in someone’s blog is enough to have the author charged with a crime.  In Britain, there has already been one arrest when a woman threatened to kill someone on Facebook.

It’s also not a good idea to make threats that sound like terrorist plots.  Sarcastic threats should also be avoided since sarcasm doesn’t translate well from reality to the internet.  Paul Chambers learned this the hard way.  He was angry that the airport was closed due to snow and tweeted, “You’ve got a week and a bit to get your s**t together otherwise I’m blowing the airport sky high!”  He was convicted of sending “‘indecent, obscene or menacing’ messages over a public electronic communications network.”

Threats Against the President

It appears that the Secret Service patrols the internet looking for postings that threaten the president’s life and that all threats are taken seriously.  Fourteen year-old Julia Wilson was pulled out of class and questioned by the Secret Service after she posted a picture of then-President George W. Bush with the words “Kill Bush” on her Myspace page.  She didn’t know that threatening the president was a federal offense.  The First Amendment lets us express dissatisfaction with the administration, but not with death threats.

Cyberharassment

I’ve already jumped on my proverbial soapbox once about cyberharassment It’s illegal in most states and people are getting arrested for bullying people via social media websites, text messages, email, and for bullying people by creating websites about them.  Authorities have been taking these cases more seriously since Megan Meier committed suicide at age 13 after receiving a message on her Myspace page that she was better off dead.

Illegal Sales

The internet gives us numerous forums to sell our stuff; however, selling certain items and services like drugs, human body parts, stolen property, and sex, are still illegal wherever it occurs.  In some situations, you might get off by saying, “It’s not mine,” or “I didn’t do it,” but that will be a harder argument to make if these items are being sold from your personal website.

Solicitation

You can commit solicitation via your blog if you command, encourage, request, or solicit people “to engage in specific conduct which would constitute the felony or misdemeanor.”  I haven’t seen a case like this yet, but given how much the law caters to irrational, foolish people who don’t think through their actions, I can see it happening.

Another thing to remember is that your blog could be used as evidence against you in the event that you are arrested.  There has been at least one case where a sex offender was given a harsher sentence when the judge held that the offender’s blog indicated that he could not follow the court’s orders or control his actions.  His designation was changed from being a sex offender to a sexual predator when he created a posted aimed at his victim.

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The Legal Side of Blogging – Part 1 of 4: Can My Blog Get Me Sued?

Disclaimer: I am not a lawyer. I am a law student. In accordance with ABA policy, this blog should not be viewed as legal advice. It is simply my experiences, opinions, and stuff I looked up on the internet.

First Amendment
Image by NomadicEntrepreneur via Flickr

Thanks to the First Amendment, we have the right of free speech in the United States. There are limits on free speech  regarding the time, place, and manner of the speech which is why we can’t shout “Fire!” in a crowded theatre. The First Amendment also doesn’t protect obscenity or libel.

Speech on the internet is generally protected, including anonymous speech. I don’t understand why people want to speak anonymously in this public forum, but the law protects it.

Americans are very quick to sue people they don’t like, so the real question is, can I be sued and lose because of my blog? A quick search on the database and Google has revealed that bloggers have been successfully sued for their blogs.

Defamation and Libel
Based on case law I read, a blogger can be sued for defamation and libel if they use their blog to make false statements about a public figure. The courts seem to apply a broad definition to “public figure.” If the public figure the blogger talks about in their blog can show that the blogger made a false statement about them and that the statement was made with “actual malice,” then they have a valid claim for defamation and libel.

Conversely, a blogger’s personal opinion is protected by the First Amendment. It’s only when they are making statements of fact or a combination of fact and opinion that they have to be concerned that they could be sued if they are publishing false statements.

Copyright Infringement
A person gets a copyright if they create an original work of authorship that is fixed in a tangible medium. They don’t have to register their work in any database; they just have to create it. Therefore, bloggers should own the copyright for all their posts, unless they previously gave up their copyright rights to someone else. If a blogger posts someone else’s material and claims it as their own, that’s copyright infringement. Writing about the same ideas is ok; stealing someone’s verbiage is not.

I don’t know why anyone would do this – isn’t the purpose of having a blog to express your own views and ideas? I suspect few bloggers are policing the internet looking for people infringing on their work and most aren’t equipped with the resources to file a claim against another blogger for stealing their work. I’m fine with people stealing my verbiage for their blog as long as they include a link back to this site. My guess is most bloggers are equally fine with others quoting them as long as they get the attribution.

You Can Be Sued for Your Comments – Not Sure If You Can Lose
Aaron Wall was sued by Traffic-Power.com when negative comments about the company appeared on Wall’s website, SEOBook.com. Wall opted to remove the comments about Traffic Power instead of spending his time, energy, and money to fight the lawsuit.

I don’t know what the comments about Traffic Power said, but it makes me wonder if other companies will threaten lawsuits against bloggers to remove negative comments about themselves online. Most bloggers probably won’t want to go through the time and hassle of fighting the suit, even when the comments might be protected by the First Amendment. Even if there wasn’t a valid case in this situation, it should serve as a reminder that bloggers are responsible for the comments they allow to be posted on their sites.

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