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First Amendment

Defense Secretary Puts President Trump’s Transgender Ban on Hold

In the wake of President Donald Trump's proclamation that openly transgender individuals be discharged from the military, in addition to the lawsuits, there has been some pushback from an unexpected source: the Secretary of Defense, General James Mattis. After sources reported that the general was appalled by the president's proclamation, soon after, he came out with a plan that effectively puts the ban on hold. While socially, and politically, transgender rights are a polarizing and controversial issue, it may not be possible to read anything more than prudence into Mattis's actions. Making a sweeping change like this to the military requires careful planning and assessment. What's Mattis's Hold Up? The general, reportedly, has instituted the hold on implementing the newest ban in order to study the effects and strategically plan how to actually do it (and potentially even whether to do it at all). Although the president, in a series of Tweets, claimed to have met with his generals prior to implementing the ban, no general has corroborated this claim. As such, not only was the general caught off guard, but the new policy's effects had not been studied prior to the implementation. While it may be too soon for those on either side of this issue to celebrate, LGBT advocates are pleased that there is at least some relief from the abruptly announced policy that would have uprooted many people's lives. Constitutional Challenges and Civil Rights Laws The lawsuit by the ACLU that challenges the transgender military ban argues that there is no military basis for the ban. According to the ACLU's complaint, "The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly."The Trump administration also faces a lawsuit from Lambda Legal that challenges the constitutionality of the transgender ban. Lambda Legal's lawsuit alleges "the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment," and "are unsupported by any compelling, important, or even rational justification."Although the new administration has taken a position that transgender individuals should not be protected under civil rights laws, there has been a steady trend in the law to protect transgender individuals. The number of states, and even federal courts, that have recognized transgender individuals as belonging to a protected class, and thus protected by civil rights laws, keeps growing. Related Resources: Trump Administration Rescinds Guidance on Bathroom Use for Transgender Students (FindLaw's Law and Daily Life) The Rise of Anti-Anti-Discrimination Laws (FindLaw's Law and Daily Life) California's Gender Neutral Bathroom Bill (FindLaw's Law and Daily Life) Here's the Latest on Trump Immigration Reform Efforts (FindLaw's Law and Daily Life)
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Does a Lawsuit End If the Defendant Can’t Be Served?

Remember Seth Rogen's character in Pineapple Express? No, he wasn't a butler -- he was a process server, an obscure yet essential part of the legal system tasked with delivering the bad news of a lawsuit to the person being sued. After all, if people don't know they're being haled into court, it's kind of hard to defend themselves. Because service of process is the necessary first step to a lawsuit, many think if they can just avoid the process server for long enough, they can't be sued (hence Rogen's disguises). But is that true? Fruitless Searching The issue has come to the forefront of the news after Montana real estate agent Tanya Gersh sued the owner of the racist website Daily Stormer, claiming he unleashed a "tsunami of threats" against her and her family. Gersh is being represented by attorneys from the Southern Poverty Law Center, who have thus far been unable to locate and serve Andrew Anglin with the suit. The process servers hired by the SPLC have made a grand total of 15 visits to seven addresses linked to Anglin, including four different Ohio addresses, but couldn't find him. "One process server said she believes Anglin barricaded himself inside one of the addresses," according to Ars Technica. In addition, attempts to serve Anglin via certified mail were all returned as undeliverable. Until he is properly served, the lawsuit against Anglin can't proceed. Constructive Notice But there's another twist to that -- service by publication. If a plaintiff can show the court that no other method of service has been effective, they can publish a notice in a newspaper. So long as the newspaper is in general circulation where the defendant is likely to be found or where the court is located and is published on more than one occasion (like weekly for three weeks), the court will consider the defendant served, whether he or she actually reads the notice or not. Gersh's attorneys have allegedly begun this more cumbersome and expensive procedure already. The perhaps not-so-funny part about the efforts to serve Anglin in this case is that he is plainly aware of the lawsuit. Soon after the lawsuit was filed in April, he published a post on Daily Stormer entitled, "SPLC is Suing Anglin! Donate Now to STOP THESE K***S!" He retained Las Vegas attorney Marc Randazza, who told the AP, "Everybody deserves to have their constitutional rights defended." Randazza also addressed the service problems and accusations that he had ignored calls and emails from SPLC attorneys asking him to accept service on behalf of his client, albeit rather obliquely. "Would you say that touchdowns are avoiding being scored in a shutout football game?" he rhetorically asked the New York Times. "Or would you say that the offense is not scoring them?" A defendant has no legal obligation to assist the plaintiff in a lawsuit, including making themselves available for service. Fortunately for plaintiffs, hiding from a lawsuit they clearly know exists won't help a defendant avoid being held accountable in court. Related Resources: Find a Lawyer Near You (FindLaw's Lawyer Directory) Don't Bother Avoiding Process Servers (FindLaw's Law and Daily Life) Legal How-To: Showing Proof of Service (FindLaw's Law and Daily Life) Can You Serve Someone With a Lawsuit via Twitter? (FindLaw's Law and Daily Life)
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Arizona Can’t Ban Mexican American Studies in Schools

Generally speaking, courts are fairly deferential to schools on educational matters, except possibly when it comes to race. And while the Supreme Court has major rulings on school desegregation and affirmative action, this might be the first time a federal court has taken up the issue of race in a school district's curriculum. Arizona had passed legislation prohibiting courses "designed primarily for pupils of a particular ethnic group," which targeted a decades-long, voluntary Mexican American Studies program for K-12 students in the Tucson Unified School District. But a federal judge ruled the ban was "enacted and enforced with a discriminatory purpose," and is therefore unconstitutional. Racial Animus Judging from local reporting on the ban, it became a personal issue. The Arizona Daily Star reports that Arizona's superintendent of public education at the time, Tom Horne, and former state senator, and Horne's successor John Huppenthal, had it out for the Mexican American Studies program for years, culminating in an alleged blog post comment by Huppenthal comparing the classes to Hitler's rise to power. In 2010, the Arizona Senate passed H.B. 2281, which prohibited a school district or charter school from including in its program of instruction any courses that: "Promote the overthrow of the United States government," "Promote resentment toward a race or class of people," "Are designed primarily for pupils of a particular ethnic group," or "Advocate ethnic solidarity instead of the treatment of pupils as individuals." Racial Motivations In a scathing opinion, Judge A. Wallace Tashima determined officials "were motivated by racial animus" and were pushing "discriminatory ends in order to make political gains." Tashima ruled that the ban violated students' First and Fourteenth Amendment rights by denying them the "right to receive information and ideas" and discrimination against Latinos, respectively. "Having thus ruled out any pedagogical motivation," Tashima wrote, "the Court is convinced that decisions regarding the MAS program were motivated by a desire to advance a political agenda by capitalizing on race-based fears." The court will hear arguments regarding what remedies to take in the coming weeks. Related Resources: Arizona Law Outlawing Mexican-American Studies Ruled Unconstitutional (AZ Central) Teachers: How to Talk to Students About Privilege, Legally (FindLaw's Law and Daily Life) MN Students Sue School District Over Gay Policy (FindLaw's Law and Daily Life) Banned Books Week: Can Schools Ban Books? (FindLaw's Law and Daily Life)
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ACLU, Lambda Legal Sue Trump Over Transgender Military Ban

Over the course of three tweets last month, President Donald Trump expressed his intent to ban transgender people from serving in the military. The White House made that intent official on Friday, issuing a Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security "prohibit[ing] openly transgender individuals from accession into the United States military and authoriz[ing] the discharge of such individuals. And it didn't take long for the lawsuits to follow. Both the ACLU and Lambda Legal have sued Donald Trump and his Secretary of Defense James Mattis, claiming the ban is unconstitutional and "compromises the safety and security of our country." Animus Trump's memo reverses Obama-era guidance allowing transgender individuals to openly serve in the military and allowing defense funds to cover sex-reassignment surgery. The ban would remain in place "until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above." In the memo, Trumps says, "The Secretary of Defense ... may advise me at any time, in writing, that a change to this policy is warranted," but that recommendation for change must be something that "I find convincing." The ACLU claims there is no military basis for the ban: The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly. News reports indicate that the Secretary of Defense and other military officials were surprised by President Trump's announcement and that his actual motivations were purely political, reflecting a desire to accommodate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender, with a goal of gaining votes for a spending bill that included money to build a border wall with Mexico. Amicus The claims may bear some truth. Mattis was reportedly caught off guard by Trump's tweets, and sources say he was "appalled." Lambda Legal's suit alleges "the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment," and "are unsupported by any compelling, important, or even rational justification." This is not the first time Trump has been sued over an executive order or memo -- there are now at least three lawsuits regarding the transgender military ban alone -- and will likely not be the last. Related Resources: Find Civil Rights Lawyers Near You (FindLaw's Lawyer Directory) Military Transgender Ban to Begin Within 6 Months, Memo Says (The New York Times) Transgender Service Members Sue Trump Over Military Ban Tweets (FindLaw's Courtside) Trump Administration Rescinds Guidance on Bathroom Use for Transgender Students (FindLaw's Law and Daily Life)
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Is Mooning Someone Illegal?

Perhaps you just meant it as a prank among friends. Or maybe you were really mad and meant to insult a neighbor. Does that intent matter under state laws on indecent exposure? Do your bare buttocks count as "genitals" under state statutes? Here's what you need to know about mooning and indecent exposure laws. No Ifs, Ands, or Butts Most indecent exposure laws, like California's for instance, require intent by the exposing party to sexually arouse, or sexually insult or offend. The Golden State statute broadly makes it a crime to willfully expose your genitals to someone else, motivated by a desire to sexually gratify yourself or offend or insult the other person. So if you're not trying to offend or insult someone with your bared buttocks, you're probably alright. Even if you are trying to get a rise out of someone, the law also only applies to exposing one's genitals. Most courts have ruled that showing a bare female breast is not considered exposing your genitals, thus protecting breastfeeding mothers from prosecution on indecent exposure charges. So as long as you're showing your butt, and only your butt, it generally will not constitute indecent exposure under most indecent exposure statutes, including California's. Cheeky Free Speech In 2006, a Maryland court similarly determined that indecent exposure relates only to exposure of the genitals, noting that even if mooning is a "disgusting" and "demeaning" act, it was not illegal. "If exposure of half of the buttocks constituted indecent exposure," the court held, "any woman wearing a thong at the beach at Ocean City would be guilty." The Maryland court also held that mooning is a form of speech, protected by the First Amendment. Relying on a 1983 case where a woman was arrested for wearing nothing but a cardboard sign that only covered the front of her body during a protest in front of the U.S. Supreme Court, the court ruled the man could not be guilty of indecent exposure, even if the mooning took place in front of a mother and her 8-year-old daughter. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) BofA Exec Can't Moon His Boss and Keep His Job, IL Court Rules (FindLaw's Legally Weird) Foxy Brown Cleared of 'Mooning' Charges: Witness Refused to Testify (FindLaw's Celebrity Justice) State Indecent Exposure Laws (FindLaw's Learn About the Law)
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Top Legal Questions About the President’s Power

There were certainly questions about presidential power during Barack Obama's presidency, especially when it came to Obamacare and his executive actions on gun control. But those questions have reached a fever pitch under President Donald Trump, as he has attempted to remake the presidency in his own image. So what are the limits on the president's power, if any? 1. Can President Trump Change the Constitution? As a candidate, Trump proposed quite a few constitutional amendments. Now that he's president, can he make them happen? Even though a president can't unilaterally change the text of the Constitution, he can direct executive agencies in their interpretation and enforcement of its provisions. 2. What Power Does the President Have Over Deportation Policy? There are reports of immigration officials pulling undocumented persons out of hospitals. Is this a new practice? And how much impact can President Trump have on choosing who to deport and why? 3. Can the President Really Curb Speech of Federal Agencies? Trump's White House issued directives to several federal agencies, looking to limit public statements and social media posts regarding matters that the previous administration supported. But do those orders violate federal employees' First Amendment rights? 4. Ethics Rules for White House Employees There are strict ethics rules regulating what government officials should do when they have a personal financial interest in a certain business or industry, generally requiring the official to disclose their interest and recuse themselves from work where there could be a conflict of interest. But the Trump administration appears to be playing fast and loose with those rules. 5. Can Trump Cancel the Iran Deal? Previous President Barack Obama's administration brokered a historic nuclear agreement with Iran in 2015, an accord current President Donald Trump has called "the stupidest deal of all time." Does that mean the current administration can back out of the deal? Related Resources: Find Civil Rights Lawyers Near You (FindLaw's Lawyer Directory) Trump's First Week as President (FindLaw's Law and Daily Life) Do Restrictions on Protests Violate the Constitution? (FindLaw's Law and Daily Life) Trump's New Travel Ban Blocked Like the Old Travel Ban (FindLaw's Law and Daily Life)
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Connecticut May Soon Employ Deadly Police Drones

A Connecticut bill that originally focused on simply banning all weaponized drones recently had a controversial exemption carved out that's garnering national attention. That controversial legal exemption to the ban on weaponized drones would only apply to law enforcement agencies, allowing only police in the state to use weaponized drones. While it may seem logical to only allow police to use weaponized drones, if the bill passes, it would be the first law in the nation that actually authorizes police to use drones equipped with lethal weapons. North Dakota passed a law in 2015 that permits law enforcement to use drones equipped with non-lethal weapons like tear gas or pepper spray, and other law enforcement agencies use drones for surveillance purposes. Standard Drone Protocol If the bill passes, the state's law enforcement training council will be required to devise a standard operating procedure for when and how law enforcement can use weaponized drones. The bill itself contains some regulations regarding drone use, but leaves the specifics on training and use to be determined by the council. This type of regulatory framework will allow some leeway in how law enforcement use drones as the technology advances over time. Proponents have rallied their support around the contention that allowing law enforcement the right to use weaponized drones could help stop a terrorist attack, or other serious threat. However, there are equally strong contentions that allowing the use of drones will result in civil rights violations against certain segments of the population, as well as misuse by police. Police Drones While there have been plenty of other concerns raised about law enforcement's use of drones, particularly when it comes to surveillance and searches, equipping drones with weapons is a new frontier for policing. Although there is clearly a benefit to sending in a robot over a human in a situation where gunfire is likely to be exchanged, anyone who's seen RoboCop or any other similar fictional work involving robotic police, is aware of the ethical dilemma that can be expected when the human element is removed from policing. Related Resources: N.D. Farmer Convicted in 1st Domestic Drone Case (FindLaw Blotter) No First Amendment Right to Drone Surveillance, Conn. Court Holds (FindLaw's Technologist) Who's Afraid of Domestic Drone Strikes? (FindLaw's Law and Daily Life) Drone Operator Attacked: Are They the New 'Glassholes'? (FindLaw's Legal Grounds)
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Is It Illegal to Threaten Someone Online?

Since the assimilation of social media into everyday life became nearly unavoidable, lawmakers have been working to strengthen the laws prohibiting cyberbullying, cybercrime, and online threats. Potentially in spite of the Supreme Court ruling in 2014 that reversed the conviction of a man who posted his own original rap lyrics about his fantasy of killing his wife on social media, state's around the country continue to embrace new laws that create for a safer, less hostile online environment. The Supreme Court's stance on online threats seems to land more in favor of characterizing even the most despicable speech as protected under the first amendment. Despite the Supreme Court's stance that the online harasser's intent matters, states can still regulate and prosecute people they believe have made credible online threats. Context Matters When it comes to evaluating whether an online threat is illegal or not, the context is highly relevant. If the threat is clearly made in a way that makes it appear to be a joke, satirical, or sarcastic, then it probably won't be considered a threat. However, if the language appears to be serious, then it must be looked at more closely to determine whether it is legal or not. Also, context changes with the times. When a recent school shooting is still fresh in the news, making a joke about it, while you may think it's just in poor taste, could very well be viewed by others as a threat, and that can get you arrested. What Makes an Online Threat Illegal? While some states don't have specific laws about online threats, all have laws against making criminal threats and bullying. Determining which online threats are illegal requires looking at the individual characteristics of each threat. If an online threat would rise to the same level as an in-person, or telephonic, criminal threat, then the online threat will likely be considered illegal. Usual considerations include: Who the threat is directed to? What is being threatened? Who is making the threat? Is the threat credible? What did the speaker really mean or intend? If the threat is directed at a specific person, with a specific threat of harm, from an easily identifiable source, and appears credible, it is likely the threat will be considered illegal. When the threat does not target an easily identifiable person or group, or does not specify a type of harm, or is just terminally vague (i.e. "Chicago Cubs fans are going to get it"), this is not likely to rise to the level of a criminal threat. However, as the 2014 Supreme Court decision advised, a speaker's intent can make all the difference in determining whether a post is considered a threat or protected expression. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) What Is Cyberbullying? (FindLaw's Learn About the Law) Top 7 Internet Crime Questions (FindLaw's Blotter) Specific State Laws Against Bullying (FindLaw's Learn About the Law) Shooting at George Zimmerman Illegal, Florida Man Learns (FindLaw's Blotter)
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Supreme Court Calendar: 3 Cases to Watch in January 2016

After a momentous 2015 that saw the Supreme Court save Obamacare (again), give same-sex couples the right to marry, and preserve the death penalty (for now), the Court's October term moves into 2016. While the January session doesn't appear as juicy as previous dockets, there are some cases that will no doubt have a lasting impact. Here are three cases to watch in January 2016 as the Supreme Court closes out the October 2015 term: 1. Friedrichs v. California Teachers Association (January 11) Even if teachers and other public employees don't want to join a union, they can benefit from the union's collective bargaining on their behalf. Therefore, the Court has previous held that public employees may be required to pay union fees, even if they have opted out of joining the union. These are called "agency shop" arrangements, whereby public employees are still represented by the union for purposes of collective bargaining, but those who opt out of union membership only an agency fee for a "fair share" of the union's costs and unions are prohibited from spending nonmembers' agency fees on "ideological activities unrelated to collective bargaining." But a group of California teachers are saying that even public-sector collective bargaining is political speech and they shouldn't be compelled them to subsidize that speech. The Supreme Court will decide whether these "agency shop" arrangements and violate the First Amendment. 2. Puerto Rico v. Sanchez Valle (January 13) Is Puerto Rico part of the United States? Sort of -- it is a U.S. territory and Puerto Ricans have U.S. citizenship, but no star on the flag or senator in Congress. Puerto Rico has its own Supreme Court, but also a U.S. District Court. So how does double jeopardy work with these two court systems? Luis Sanchez Valle was indicted in a Puerto Rican court on gun charges, and then also indicted in a U.S. federal court based on the same facts. His lawyers argued that this was essentially charging someone twice for the same crime, violating the prohibitions on double jeopardy. The Supreme Court will decide whether Puerto Rico and the federal government are separate sovereigns for purposes of double jeopardy. 3. Heffernan v. City of Paterson (January 19) Can public employees get demoted if their boss thinks they support a certain candidate? In this case a city police officer (Heffernan) was demoted after another officer saw him holding a campaign sign for a mayoral candidate (Spagnola) who was running against his chief's chosen candidate (Torres). And here's where it gets even murkier: Heffernan is friends with Spagnola, but wasn't working with the campaign or even campaigning at the time -- he was picking up the sign for his bed-ridden mother. The Court will have to decide whether Heffernan has a valid First Amendment claim based on his boss's incorrect perception of his "speech." Keep an eye on FindLaw's Law and Daily Life blog and Supreme Court blog as we update the oral arguments and the rulings in these and other major SCOTUS cases throughout 2016. Related Resources: The Big 4: Major Cases and Legal Issues of 2015 (FindLaw's Decided) The 5 Most Important Supreme Court Cases of 2015 (FindLaw's U.S. Supreme Court Blog) Supreme Court Could Soon Ban the Death Penalty, Scalia Says (FindLaw's U.S. Supreme Court Blog) Supreme Court Calendar: 3 Cases to Watch in November (FindLaw's Law and Daily Life)
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Man Arrested, Strip Searched for Photographing Cops Gets $125K

A man who was arrested and strip searched after taking photographs of New York City Police Department officers has reached a $125,000 settlement with the city. Dick George filed a federal lawsuit against the city for police misconduct after being arrested for disorderly conduct in 2012, reports the New York Daily News. According to the lawsuit, George was arrested for documenting the officers' "stop-and-frisk" search of three youths. Why was George's arrest likely a violation of his civil rights? Injured? Exercise your legal rights. Get in touch with a knowledgeable personal injury attorney in your area today. Right to Videotape, Photograph Police on Duty Courts have generally found that citizens have a First Amendment right to videotape or photograph police activity occurring in a public place. Furthermore, police generally cannot confiscate or demand to see your footage or photographs without a warrant. In this case, George claims that he was in his car when he saw three young people being searched by NYPD officers. He began taking pictures with his cell phone from inside his car. After the officers had finished searching the youths, George claims he instructed the youths to get the officers' badge numbers next time they were searched. Overhearing this, the officers allegedly pulled George from his car and arrested him for disorderly conduct. The officers also allegedly deleted the pictures on George's phone. False Arrest, Police Misconduct Lawsuits Lawsuits against police for false arrest and other incidents of police misconduct are generally filed under the Section 1983 of the Civil Rights Act. Under Section 1983, a victim of malicious or unlawful police action can bring a lawsuit in federal court for deprivation of a constitutional right. Although these lawsuits can be brought against individual police officers, they often name the city as a party as well, since the police department itself cannot be sued directly. However, before a lawsuit is filed, victims typically must first file a tort claim to give the government entity a chance to respond. If you believe you have been the victim of police misconduct or false arrest, an experienced civil rights attorney can help explain your legal options. Related Resources: New York man wins $125,000 settlement after being arrested for photographing police (The Verge) Videotaping Police is Your First Amendment Right (FindLaw's Blotter) Journalist Arrested for Recording Police Gets $200K Settlement (FindLaw's Injured) For the Record, SCOTUS Won't Stop Citizens from Recording Police (FindLaw's U.S. Seventh Circuit Blog)
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