First Amendment

  • August 21, 2014

    by Caroline Cox

    ACS Board of Directors member Linda Greenhouse writes in The New York Times on the debate over whether Halbig should have a rehearing  en banc.

    In Politico, Lee Rowland discusses, in light of the situation in Ferguson, the importance of the First Amendment in fighting against injustice.

    ACS Bay Area Lawyer Chapter Board of Advisors member John Burris speaks on PoliticsNation with Al Sharpton about the legal issues surrounding the Michael Brown investigation.

    NPR’s Audie Cornish and Nina Totenberg report on the Supreme Court’s decision to put a hold on same-sex marriage licenses in Virginia.

    Garrett Epps writes in The Atlantic that Antonin Scalia’s dissent in Windsor may have paved the way for same-sex marriage victories and tarnished his status as a conservative hero.  

  • August 19, 2014

    by Caroline Cox

    Ta-Nehisi Coates of The Atlantic provides historical perspective on the relationship between African Americans and the police.

    The NAACP Legal Defense and Education Fund reports that thirteen civil rights groups have issued a call for action and reforms in response to Ferguson.

    Max Fischer writes for Vox on police treatment of journalists in Ferguson, where the ACLU has already sued the city to stop harassing reporters and won.

    The Economist compares the likelihood of being shot by police in the United States to that in other countries, “adjusting for the smaller size of Britain’s population, British citizens are around 100 times less likely to be shot by a police officer than Americans.”

    The Editorial Board of The New York Times advocates for President Obama to more forcefully use his clemency power.  

  • August 14, 2014

    by Caroline Cox

    ACS Board Member Reuben Guttman and Traci Buschner write for McClatchy DC on how the recent $97 million settlement between the U.S. Department of Justice and Community Health Systems serves as a reminder of why government oversight matters.

    Paul Campos discusses the “scam” of for-profit law schools in The Atlantic. “[T]he odds of a graduate of one of these schools getting a job that arguably justifies incurring the schools’ typical debt level are essentially 100 to 1.”

    Slate’s Jamelle Bouie argues against the escalating militarization of Ferguson, Mo.

    The Huffington Post reports on the detention of journalists Wesley Lowery and Ryan J. Reilly in Ferguson, Mo last night. In light of these arrests, T.C. Sotteck of The Verge details the right of individuals to record the police.

    Garrett Epps of The Atlantic warns against labeling Roane County Circuit Judge Russell Simmons a bigot because of his recent ruling on same-sex marriage in Tennessee.

    Thomas Geoghegan argues in Politico that President Obama should challenge Republican gerrymandering. 

  • July 25, 2014
    Guest Post

    by Justin Marceau and Alan K. Chen. Marceau is an associate professor at the University of Denver Sturm College of Law and a former public defender in Arizona. Chen is the William M. Beaney Memorial Research Chair and Professor of law at the University of Denver Sturm College of Law and a former staff attorney at the ACLU’s Chicago office.

    The State of Arizona’s recently botched execution of Joseph Wood is just the latest in a series of horrific events that have introduced the American public to a criminal justice problem that practitioners and legal scholars long have known about – lethal injections are an extremely troubling method for carrying out capital punishment.  Similar to the cases of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio, Wood reportedly endured extensive suffering during the hour and 52 minutes it took for the drugs administered by the state’s executioners to end his life.

    The Wood Litigation Seeking Access to Information about the Drugs and Executioners

    In the days preceding Wood’s execution, his attorneys mounted an impressive campaign to overturn a lower court order denying him access to basic information about the qualifications (but not the identity) of the executioners and the source of the drugs to be used. Wood argued that he had a qualified First Amendment right of access to such information. 

    On Monday of this week, things looked promising for Wood and his legal team. An erudite panel of the Ninth Circuit concluded that it was not too much to ask of Arizona to require it to turn over the information Wood sought, or to delay the execution. Behind such litigation is the reality that without such information, of course, it would be impossible to assess whether the execution might violate the Eighth Amendment and create too great a risk of cruel and unusual punishment.  In other words, in order to know whether their client had a colorable substantive claim that the execution would be cruel and unusual, the lawyers first had to gain access to the details of the execution procedures. The procedural claim at issue in the Ninth Circuit, then, was a necessary precursor to being able to litigate the substantive legality of Arizona’s execution system.

    The Ninth Circuit panel voted 2-1 that Wood had raised a serious First Amendment claim and would suffer irreparable harm if an injunction against his execution were not granted. To be clear, all the Ninth Circuit ordered was that Arizona either turn over the information and proceed to execution as planned on Wednesday, or delay the execution until full and fair litigation regarding the right to access this information was conducted. Instead, Arizona successfully petitioned the Supreme Court, which quickly overturned the stay of execution.

    Was this Just a Gimmick to Delay Litigation?

    Some might ask why, with a thirty year track record and tacit Supreme Court approval in 2008, lawyers were inquiring about lethal injection methods.  We hear about delays in executions – we even see California’s death penalty held unconstitutional, in part, because of delay. But the reason for the litigation is clear: lethal injection is not working. 

    With drug shortages for the previous three-drug execution cocktail of choice, states have begun to experiment with the doses and types of drugs, and the qualifications of executioners are not getting any better.  In a very perverse turn on Justice Louis Brandeis’ famous quote that states may “serve as a laboratory, and try novel . . . experiments” that the rest of the country might not, states are innovating in their execution methods.  In the rush to continue with executions, Arizona and other states are using their execution chambers as laboratories for human experimentation.  What combination will create the most aesthetically pleasing execution for public consumption is the question the Departments of Correction seek to answer. 

  • July 14, 2014

    by Jeremy Leaming

    John Seigenthaler, a champion of a free speech, human rights and a courageous journalist, died July 11 at the age of 86. Seigenthaler, The New York Times in noting his death said he pursued a “muscular approach to journalism as a crusading newspaper editor and publisher and as the founding editorial director of USA Today.”

    Seigenthaler was also a close friend to Robert F. Kennedy. According to The Tennessean, the newspaper Seigenthaler reported for and eventually became editor, RFK met Seigenthaler “because the young reporter had written a number of news stories about growing corruption in the organized labor movements, particularly involving Jimmy Hoffa and his Teamsters union.” The Times also noted that as reporter for The Tennessean Seigenthaler was dogged in exposing the corruption of Hoffa’s Teamsters and “hounded the union boss.” It was some of Seigenthaler’s reporting that would help revive a federal grand jury that indicted Hoffa for jury tampering.

    When RFK became attorney general during John F. Kennedy’s presidency, Seigenthaler (pictured) was tapped to help the Kennedys work with a growing civil rights movement. In spring 1961, Seigenthaler was dispatched by RFK to help some of the first Freedom Riders; waves of youngsters in buses headed to the Deep South in what would be become a deadly and high-profile attempt to draw attention to ongoing segregation in public places. Seigenthaler was injured trying to help some of the Freedom Riders who were being beaten by a mob of rabid racists in Montgomery, Ala.

    After RFK’s assassination in 1968 during a run for the presidency, it would not be long before Seigenthaler returned to journalism, eventually leading the editorial pages of the USA Today and much later founding the First Amendment Center, part of the Freedom Forum.

    U.S. Rep. John Lewis (D-Ga.), one of the young student Freedom Riders who was beaten and jailed, told The Tennessean Seigenthaler “was a newspaper man at heart who represented the highest tradition of journalist integrity and reporting. He used the power of the pen to help make this country a better place. He was a skillful negotiator, the consummate professional, yet he was a humble, down-to-earth gentleman who was dedicated and committed to his family and friends.”

    [image via Curtis Palmer]