November 2011

  • November 30, 2011

    by Jeremy Leaming

    Earlier this fall one of the nation’s largest public interest groups devoted to countering hateful messages and actions against lesbians, gay men, bisexuals and transgender women and men celebrated a “Spirit Day,” which included celebrities and others speaking out against bullying of LGBT persons.

    The Gay & Lesbian Alliance Against Defamation in a press statement regarding Spirit Day, Oct. 20, declared it a success with numerous media outlets, celebrities, corporations, and the White House showing support of anti-bullying initiatives.  

    But as two recent convictions of people involved in the brutal deaths of a transgender woman and a gay teenager show, more than one day is needed to focus the nation’s attention on the frequent dangers the LGBT community face.

    In particular, violence against transgender men and women, as TransgenderDOR.org reported earlier this month, has resulted in more than 200 murders this year. Neal Broverman for Advocate.com wrote on Nov. 18, “it seems inconceivable that we need such a thing as Transgender Day of Remembrance, which memorializes those murdered for their gender identity,” but “when publications like the New York Post refer to Chaz Bono as a ‘she-man,’ as it did this week, you can see where some of the intense hate directed at transgender people is born.”

    In a recent post for the National Center For Lesbian RightsOut For Justice Blog, the group’s State Policy Director Liz Seaton reflected on the deaths of Krissy Bates, a transgender woman, and Lawrence “Larry” King, a gay youngster. Seaton says she wants Krissy and Larry “to be remembered not just by their families and friends, but by others as well.”

  • November 29, 2011
    Guest Post

    By Monica Youn, the Brennan Center Constitutional Fellow at NYU School of Law, and the editor of Money, Politics and the Constitution: Beyond Citizens United.


    That the conservative majority of the Roberts Court are champions of free speech is a trope that simply refuses to die. The New York Times summed up the Court’s most recent term by describing free speech as a “signature project” of Chief Justice Roberts, and numerous commentators have chimed in, contributing to the common misperception that the Roberts Court is “the most free speech Court in American history.”  Efforts to debunk this myth, by Erwin Chemerinsky, David Cole, and Nadine Strossen, among others, have seemingly failed to make much of a dent in the popular wisdom. 

    Ben Sachs’ forthcoming Columbia Law Review article, “Unions, Corporations, and Political Opt-Out Rights after Citizens United,” serves as a useful corrective, and, indeed, is one of the absolutely essential pieces of scholarship that I’ve seen in the wake of the decision. But before getting into the article in more depth, let’s look at some basic numbers for background.

    In its first five years, from 2006 until 2011, the Roberts Court granted certiorari in 29* cases in which a free speech violation was claimed (including the speech, press, assembly, and association guarantees). In these cases, the Court held that that a free speech violation existed in 10 of the cases, and that no free speech violation had been demonstrated in 19 of these cases. Thus, simply looking at the numbers, the Roberts Court has supported a free speech claim in 34.48 percent of argued cases. By way of comparison, as Lee Epstein and Jeffrey A. Segal have shown, from 1953 to 2004, the Supreme Court supported claims of deprivation of First Amendment liberties in 53.95 percent of argued cases. Thus, at the most basic quantitative level, the Roberts Court seems to be not especially protective of free speech rights.

  • November 28, 2011
    Guest Post

    By Robert Raben, president and founder of The Raben Group, and a member of the American Constitution Society’s Board of Directors.


    The secrecy around the American Bar Association's judicial vetting process is a fact, probably in their view necessary in order to arrive at firm judgments about professionals. For many, acutely among those of us who identify and promote talented minority candidates for the bench, that secrecy breeds suspicion, particularly when the outcomes seem to have a disparate impact on minorities. 

    But we don’t know the contours of that impact until we address the threshold problem: the lack of transparency.

    The New York Times' Charles Savage is the latest intrepid investigator to try to get behind the veil of the ABA to determine whether that organization's judicial vetting process is a good one, especially with respect to minority nominees. And, apparently, it's not pretty.

    To be slightly unfair to the ABA, as a matter of politics -- that is, actual senators voting yea or nea on actual questions -- the ABA is in my view of regrettably modest influence on policy across the board, particularly in light of the fact that it represents the most powerful people in the nation --attorneys. ABA positions, so carefully constructed, are treated almost completely pretextually by federal elected officials. 

    If the Member agreed with the position, it will be sure to be raised in debate. If the Member disagrees with the position, it is of zero moment.  This is not an indictment of the ABA's substantive positions -- which, except for the Individual Rights Subcommittee, I've long stopped following.  Rather, it's because the ABA refuses to put either of the things that matter to electeds -- votes [constituents] or money [fundraising] -- behind its policies. Hortatory works for prayer; not in politics.

    Gloria Navarro of Nevada was rated poorly by the ABA, but with the muscle of Majority Leader Harry Reid of Nevada, was confirmed 98-0. Res ipsa loquitur.

  • November 23, 2011

    by Jonathan Arogeti

    Envision OpenPlanet, a hypothetical program that could patch together every surveillance camera in the world and pair it with Facebook’s facial recognition software to create a perpetual video timeline database for each Facebook user. Would this violate the Fourth Amendment as an unreasonable search and seizure?

    This question, posed by George Washington University law professor Jeffrey Rosen, represents the crux of the issue explored at a recent forum at American University Washington College of Law titled, “Social Technology and the Threat to Privacy: How Facebook, GPS & Google Are Changing Our Lives.” Click here for video.

    Rosen links this question to the 2006 firing of Stacy Snyder, a Pennsylvania woman who was allegedly fired from her teacher training program after a MySpace picture showed her wearing a pirate hat and drinking from a plastic cup with the caption “Drunken Pirate.” Snyder sued in federal court that the picture was protected speech, but the judge disagreed because it “didn’t relate to matters of public concern.”

    Rosen points to law and technology as mechanisms for dealing with this “Stacy Snyder problem.” Europeans are experimenting with le droit a l’oubli, or the right to oblivion, as a mechanism to force online companies to protect the privacy of its customers. Technology, too, can secure customer privacy, and he points to a company that erases text messages after a specific period of time designated by the user.

  • November 23, 2011

    by Jonathan Arogeti

    In fewer than 12 months, millions of Americans nationwide will head to the polls for the 2012 election. With the presidency, 33 Senate seats, all 435 House seats, 11 state governorships, and more than 80 percent of state legislature seats on the ballot, some are considering it to be the among the “most important election[s].”

    But a spate of new restrictive state voting laws threatens to limit voter participation during this election, as documented by a new report from the Brennan Center for Justice. During a forum convened by leading Democratic congressmen, several prominent voting rights experts lamented the abrupt “shift” in momentum away from expanding the franchise. Laws that require photo identification or proof of citizenship, reduce registration opportunities and limit early voting could “make it significantly harder for more than five million eligible voters” to cast ballots in 14 states, the report estimates. And these estimates do not even take into account the potential consequences of proposed measures states that have not yet passed in at least 24 other. Click here for video of the forum.

    “These new laws threaten to silence the voices of those least heard and rarely listened to in this country -- the poor, the elderly, racial and ethnic minorities, the young and the differently abled. Now is the time to act,” said League of Women Voters President Elisabeth MacNamara during the forum.  

    This month has also seen calls by leading Democratic congressmen for a hearing in the House on new state restrictions on voting, and a letter signed by more than 200 House members urges all 50 state secretaries of state to oppose these laws.