Pleasant Grove City v. Summum, No. 07-665
In a First Amendment action claiming that Plaintiff was entitled to place a monument in a public park where Defendant city had allowed other monuments, denial of a preliminary injunction is affirmed, where the First Amendment does not apply to government speech.
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Series of Raids
All told, six raids took place in St. Paul in 24 hours, resulting in six arrests. (Read about the other raids here.) On Sunday, the Minnesota Chapter of the National Lawyers Guild sent out a press release announcing that it is “seeking prompt judicial review” of the “preventative detentions” of the six people arrested, all of whom remain on “probable cause holds” in the Ramsey County Jail. According to the press release: “In Minnesota, a probable cause hold can be ordered by a police officer without a prosecutor or a judge reviewing a criminal complaint. Due to the arrest occurring on a weekend holiday, all six citizens can be held until Wednesday, September 3, 2008, without the filing of a formal charge.”
The extent of the federal involvement in the raids is not entirely clear. Although they were reportedly spearheaded by the Ramsey County Sheriff’s office, St. Paul Police coordinated them with the FBI. Furthermore, according to the Star Tribune, the raids were “aided by informants planted in protest groups.” Indeed, as Glenn Greenwaldreminded readers on Sunday, the Minneapolis Joint Terrorist Task Force spent months recruiting people to spy on activist groups planning to protest the RNC. On May 21, the Minneapolis City Pagesran a bizarre but chilling story titled “Moles Wanted,” about the recruitment efforts by the task force — specifically, attempts to enlist people to “attend ‘vegan potlucks’ throughout the Twin Cities and rub shoulders with RNC protesters” in a mission to “investigate terrorist acts carried out by groups or organizations which fall within the definition of terrorist groups as set forth in the current United States Attorney General Guidelines.”
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Read the entire account of these raids here.
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Glenn Greenwald has more, including video interviews.
[U.S. 3rd Cir., July 21, 2008] – A federal appeals court threw out the $550,00 fine imposed by the FCC against CBS for Janet Jackson’s “fleeting image of nudity” on national television during the 2004 Super Bowl XXXVIII Halftime Show broadcast, an incident that may best be remembered more for its “wardrobe malfunction” defense.
Breaking News Alert
The New York Times
Monday, June 23, 2008 — 1:15 AM ET
—–
George Carlin, the Grammy-Award winning standup comedian and
actor who was hailed for his irreverent social commentary,
poignant observations of the absurdities of everyday life and
language, and groundbreaking routines like “Seven Words You
Can Never Use on Television,” died in Los Angeles on Sunday
according to his publicist Jeff Abraham. He was 71.
Read More:
http://www.nytimes.com/?emc=na
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Carlin’s famous routine was the subject of the US Supreme Court’s decision in FCC v. Pacifica Foundation, et.al. [1978]
FOR IMMEDIATE RELEASE
June 11, 2008
CONTACTS:
Email: media@caedefensefund.org
Dr. Steven J. Kurtz: (716) 812-2968
Lucia Sommer, CAE Defense Fund: (716) 359-3061
Edmund Cardoni, Hallwalls Contemporary Arts Center: (716) 854-1694
ARTIST CLEARED OF ALL CHARGES IN PRECEDENT-SETTING CASE
Department of Justice Fails to Appeal Dismissal
Kurtz Speaks about Four-Year Ordeal
Buffalo, NY–Dr. Steven Kurtz, a Professor of Visual Studies at SUNY at
Buffalo and cofounder of the award-winning art and theater group Critical
Art Ensemble, has been cleared of all charges of mail and wire fraud. On
April 21, Federal Judge Richard J. Arcara dismissed the government’s entire
indictment against Dr. Kurtz as “insufficient on its face.” This means that
even if the actions alleged in the indictment (which the judge must accept
as “fact”) were true, they would not constitute a crime. The US Department
of Justice had thirty days from the date of the ruling to appeal. No action
has been taken in this time period, thus stopping any appeal of the
dismissal. According to Margaret McFarland, a spokeswoman for US Attorney
Terrance P. Flynn, the DoJ will not appeal Arcara’s ruling and will not seek
any new charges against Kurtz.
For over a decade, cultural institutions worldwide have hosted Kurtz and
Critical Art Ensemble’s educational art projects, which use common science
materials to examine issues surrounding the new biotechnologies. In 2004 the
Department of Justice alleged that Dr. Kurtz had schemed with colleague Dr.
Robert Ferrell of the University of Pittsburgh Graduate School of Public
Health to illegally acquire two harmless bacteria cultures for use in one of
those projects. The Justice Department further alleged that the transfer of
the material from Ferrell to Kurtz broke a material transfer agreement, thus
constituting mail fraud.
Under the USA PATRIOT Act, the maximum sentence for these charges was
increased from five years to twenty years in prison.
Dr. Kurtz has been fighting the charges ever since. In October 2007, Dr.
Ferrell pleaded to a lesser misdemeanor charge after recurring bouts of
cancer and three strokes suffered since his indictment prevented him from
continuing the struggle.
KURTZ SUMS UP END OF FOUR-YEAR NIGHTMARE
Finally vindicated after four years of struggle, Kurtz, asked for a
statement, responded stoically: “I don’t have a statement, but I do have
questions. As an innocent man, where do I go to get back the four years the
Department of Justice stole from me? As a taxpayer, where do I go to get
back the millions of dollars the FBI and Justice Department wasted
persecuting me? And as a citizen, what must I do to have a Justice
Department free of partisan corruption so profound it has turned on those it
is sworn to protect?”
Said Kurtz’s attorney, Paul Cambria, “I am glad an innocent man has been
vindicated. Steve Kurtz stared in the face of the federal government and a
twenty-year prison term and never flinched, because he believes in his work
and his actions were those of a completely innocent man. Clients like him
are a blessing, and although I have had many important victories, this one
stands at the top of the list.”
As coordinator of the CAE Defense Fund, a group organized to support Kurtz
from the beginning of the case, Lucia Sommer sees the end of the prosecution
as bittersweet, and like Kurtz, is thoughtful about the broader significance
of the case: “This ruling is the best possible ending to a horrible
ordeal–but we are mindful of numerous cases still pending, and the grave
injustices perpetrated by the Bush administration following 9/11. This case
was part of a larger picture, in which law enforcement was given expanded
powers. In this instance, the Bush administration was unsuccessful in its
attempt to erode Americans’ constitutional rights.”
Referring to the international outcry the case provoked, involving
fundraisers and protests held on four continents, Sommer said, “The
government has unlimited resources to bring and prosecute these kinds of
charges, but the accused often don’t have any resources to defend
themselves. This victory could never have happened without the activism of
thousands of people. Supporters protested, vocally opposed the prosecution,
and refused to let it go on in silence. And without their efforts at
fundraising, Kurtz and Ferrell would not have been able to defend themselves
from these false accusations.”
Sommer added that the next step for the defense will be to get back all of
the materials taken by the FBI during its 2004 raid on the Kurtz home,
including several completed art projects, as well as Dr. Kurtz’s lab
equipment, computers, books, manuscripts, notes, research materials, and
personal belongings. The four confiscated art projects are the subject of
an exhibition entitled SEIZED on view at Hallwalls Contemporary Arts Center
in Buffalo, NY, through July 18:
http://www.hallwalls.org/visual_shows/2008/show_seized.html.
BACKGROUND TO THE CASE
The case originated in May 2004, when Kurtz’s wife Hope died of heart
failure as the couple was preparing a project about genetically modified
agriculture for the Massachusetts Museum of Contemporary Art. Police who
responded to Steve Kurtz’s 911 call deemed the Kurtzes’ art materials
suspicious and alerted the FBI. Kurtz explained that the materials (legally
and easily obtained basic life science equipment and two harmless bacteria
samples) had already been displayed at museums throughout Europe and North
America with absolutely no risk to the public. However, the following day,
Kurtz was illegally detained for 22 hours on suspicion of bioterrorism, as
dozens of agents from the FBI, Joint Terrorism Task Force, Homeland
Security, Department of Defense, ATF, and numerous other law enforcement
agencies raided his home, seizing his personal and professional belongings.
After a federal grand jury refused to charge Kurtz with bioterrorism, Kurtz
and Ferrell were indicted on two counts of mail fraud and two counts of wire
fraud concerning the acquisition of of harmless bacteria for one of
Critical Art Ensemble’s educational art projects. (Critical Art Ensemble is
the recipient of numerous awards for its projects, including the prestigious
2007 Andy Warhol Foundation Wynn Kramarsky Freedom of Artistic Expression
Grant, in recognition of twenty years of distinguished work:
http://www.creative-capital.org/index2.html.)
The Department of Justice brought the charges in spite of the fact that the
alleged “victims of fraud”–American Type Culture Collection and the
University of Pittsburgh–never filed any charges or complained of any
wrongdoing, and the fact that in bringing the charges the Department of
Justice was acting completely outside its own Prosecution Policy Relating to
Mail Fraud and Wire Fraud
(http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/43mcrm.htm).
For more information and extensive documentation, including the Judge’s
dismissal, please visit: http://caedefensefund.org
NY Times (Thomas Lueck): Police Dept. Settles Suit by Protesters Over Tactics
To settle a lawsuit, the New York Police Department has agreed to formalize changes it had made in its crowd-control procedures during political demonstrations, the authorities said on Tuesday. The lawsuit was filed in 2003 by the New York Civil Liberties Union on behalf of antiwar protesters who said they had been treated harshly by the police. The suit charged that the police trapped protesters inside pens and blocked off “avenues of escape” while approaching on horseback, causing people to be knocked down.
First Amendment– The Commonwealth is appealing a District Court order allowing a defendant’s motion to dismiss a criminal complaint for open and gross lewdness where the judge ruled that the defendant’s nude dancing was protected by the First Amendment.
Enjoy commentary by Robert Ambrogi.
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For more oral arguments before the SJC.
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(Travis County Dist. Ct., Texas – March 28, 2008) – A Texas judge ruled that the state’s $5 ‘Pole Tax’ on strip club patrons is unconstitutional under the First Amendment.
Via National School Boards Association–Legal Clips–Sign up for free subscription
A New Jersey federal district court has issued an order prohibiting a school district from disciplining elementary school students who wore a button protesting the school district’s mandatory uniform policy. M.D. and A.L., who attend separate elementary schools in the Bayonne School District (BSD), wore buttons bearing the phrase “No School Uniforms” with a slashed red circle overlaying a historical photograph of the Hitler Youth. BSD officials responded by sending letters to the students’ homes that stated, “The background images on this badge are considered objectionable[,] are offensive to many Bayonne citizens[,] and do not constitute free speech according to Mr. Kenneth Hampton, attorney for the Bayonne Board of Education.” The letters also threatened suspension if the students wore the buttons to school again. Their parents sued, alleging BSD had violated the First Amendment and seeking a preliminary injunction to bar BSD from disciplining a student who wears the button until the court has made a decision on the merits of the case.
The court began by stating that the U.S. Circuit Court of Appeals for the Third Circuit (NJ, DE, PA) has held that school districts regulate student speech in three circumstances: (1) vulgar, lewd, obscene, and plainly offensive speech, which a school may regulate under Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); (2) school-sponsored speech, which a school may regulate under Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988); and (3) speech that falls into neither of these categories, which a school may be able to regulate under Tinker v. Des Moines Community School District, 393 U.S. 503 (1969). A fourth category recognized recently by the U.S. Supreme Court in Morse v. Frederick, 127 S.Ct. 2618 (2007), allows schools to restrict speech “reasonably viewed as promoting illegal drug use,” but the Supreme Court expressly rejected the argument in that case that the student’s drug references fell underFraser’s “plainly offensive” standard, which the Supreme Court found “should not be read to encompass any speech that could fit under some definition of ‘offensive.’”
The court rejected the BSD’s argument that Fraser should apply to this case since the Nazi imagery was not “plainly offensive” Because the speech in question was not school-sponsored nor drug-related, the court found the case was governed by Tinker. Applying the Tinker standard, the district found that “[b]ecause the Button did not cause any disruption and [BSD] failed to demonstrate a ‘specific and significant fear of disruption, not just some remote apprehension of disturbance,’ … [BSD’s] censorship is unwarranted.” The court also rejected BSD’s argument that recent Third Circuit precedent suggests that the Tinker standard either does not apply or is significantly relaxed for elementary school students. None of the Third Circuit cases cited by BSD discussed the applicability of Tinker to elementary school students, and none was decided on that issue, the court found.DePinto v. Bayonne Bd. of Educ., No. 06-5765 (D. N.J. Sept. 19, 2007)
Students cannot be prohibited from wearing buttons depicting a Hitler Youth assembly to protest a public school’s mandatory uniform policy, a federal judge in New Jersey has ruled.
Issuing a preliminary injunction against the ban, U.S. District Judge Joseph Greenaway Jr. found that the students and parents would likely prevail in their suit alleging a First Amendment violation.
“Plaintiffs seek to exercise their First Amendment rights through expressive speech,” Greenaway wrote Monday in DePinto et al. v. Bayonne Board of Education, 06-5765. “Defendants provide no evidence that the educative process will be disrupted or that the button will result in a failure in the discipline process.”
However, Greenaway cautioned that the preliminary injunction does not allow the plaintiffs to distribute the button at school or curtail the school’s ability to take action if the buttons substantially interfere with the work of the school or impinge upon the rights of other students
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