On the Record

By: Caryn Tamber

If your kid’s teacher makes disparaging comments about religion, is it a First Amendment Establishment Clause violation?

The 9th Circuit will consider that question. The WSJ Law Blog writes:

The teacher, James Corbett of Capistrano Valley High School in Mission Viejo (which graduated former Los Angeles Raider Todd Marinovich) referred to Creationism as “religious, superstitious nonsense” during a 2007 lecture. Corbett made a host of other controversial statements as well. One of his students, Chad Farnan, sued Corbett and the school district, alleging a violation of his First Amendment Rights.

In May, a federal judge in Santa Ana, Calif., James Selna, granted summary judgment, partly in favor of Farnan and partly in favor of the defendants. Click here for the opinion. Specifically, Judge James Selna ruled that the “superstitious nonsense” comment violated Farnan’s rights, but ruled that nearly two dozen statements did not. Both sides appealed to the Ninth Circuit.

What do you think? Was the teacher out of line? Constitutionally? Professionally?

By: Steve Lash

On Saturday, I spent a rejuvenating morning serving as a judge for the semi-final round of a moot-court competition hosted by American University’s Washington College of Law.

My service to the Burton D. Wechsler First Amendment Moot Court Competition stirred me in three ways:

1. It made me feel 20 years younger, when I nervously stood as a law student waiting to be grilled by “judges” at the same school;

2. It enabled me to step out of the role of spectator (I have reported on oral arguments for two decades) and participate in the enterprise; and

3. As a husband — and father of a teen and a tween — it was refreshing to have people listen to me and answer my questions.

It also didn’t hurt that the fact pattern and issue were right up my alley.

The head of research and development at a major high-tech company was suing for libel a blogger who had accused him online of running a Mumbaian sweatshop where child laborers built computer components.

The issue before the moot court was whether the company executive qualified as a “public figure” or “private person” under the Supreme Court’s First Amendment jurisprudence, a critical distinction that largely determines who wins the case.

Public figures, to prove libel, have the heavy burden of showing that the reporter wrote an erroneous story either knowing it was false or with a reckless disregard for the truth.  Private individuals need only show that the journalist was negligent in reporting a story that was  untrue.

The three-judge panel on which I served — as “chief” no less — ruled for the reporter. Imagine that.

By: Caryn Tamber

Happy Monday! High of 85 today–now that’s the way I remember September in Baltimore. Here are a few law links to start your week:

• A dispute over the Pasadena-based National Breast & Ovarian Cancer Connection’s name could lead to the organization going under.
• Work in a law firm first, consider going to school at night, be aware that your law school will lie to you, and other advice for prospective lawyers from John Bratt.
• For lawyers, free speech has its limits.
• Law firms are gay-friendly places to work, says the Human Rights Campaign. HT: ABA Journal.
• “Victim impact statements have received such widespread support because they promote justice without interfering with any legitimate interests of criminal defendants,” writes law prof Paul Cassell in “In Defense of Victim Impact Statements.” HT: The Crime Report.

By: Danny Jacobs

Quick - what’s the first thing that comes to mind when you see this proposed license plate?

For those of you with your minds in the gutter, it was actually Kelley Coffman-Lee’s attempt to announce her fondness for tofu. But the proposed vanity license plate could be interpreted as her fondness for… um… something else, which led the Colorado Deparment of Revenue to deny Coffman’s request last month.

Now comes word the state actually keeps a list of unacceptable letter combinations under a law allowing authorities to ban potential license plates that are “offensive to good taste or decency.” The list currently has close to 3,000 entries.

This does not sit well with the American Civil Liberties Union of Colorado, which obtained the list and believes authorities are unjustly censoring residents. The organization now has a section on its Web site devoted to vanity license plates and teases a “Vanity Plate Game” will soon be added.

Sounds gr8 to me.

By: Danny Jacobs

I was a student at the University of Maryland a few years ago when “Deep Throat” was shown at the Hoff Theater on campus. While I was surprised 530 students attended (The Apex on South Broadway probably would kill for that kind of turnout), I didn’t think much else of it.

So when I read Hoff was going to screen another porn earlier last week, I wasn’t too shocked. But then a funny thing happened: the movie became a political cause in more ways than one. Legislators threatened to withhold funding from the university if the film went on as planned, and an on-campus political party hosted a screening of part of the film days before the Student Government Association election. Today, the state Senate thankfully rejected a silly budget amendment that would have withheld construction funds at state schools unless they developed a porn policy. Not since Mary Carey ran for governor of California have porn and politics been so closely tied together. 

As an alum, however, what bothers me most about this whole episdoe was the university’s decision to cancel the screening in the first place. The independent campus newspaper The Diamondback, in a spot-on editorial, summarized my feelings about university administrators:

They have encouraged short-sighted state legislators to make empty threats to meddle with the very information the university distributes. We simply don’t believe state legislators would shut down the most productive source of education, a gem of the state, because Hoff showed some bouncing breasts. But potentially worse, administrators have declared in unequivocal terms they don’t need student input before regulating the content supported by this university.

The apparent endgame to this is the University System of Maryland, which oversees the public institutions in the state, will now develop a porn policy for all state campuses. A USM official called the porn controversy a “tragedy.” I call it a self-inflicted wound.

By: Steve Lash

Prince George’s County officials argued in vain to U.S. District Judge Marvin J. Garbis that alcohol and exotic dancers shouldn’t mix. The combination leads to gun violence and other crimes, the county said.

Garbis on Wednesday struck down as unconstitutional a law calling for the revocation of liquor licenses to bars that feature exotic dancing. The judge, who sits in Baltimore, said the broadly worded law effectively banned the controversial dancing and infringed on the First Amendment freedom of expression.

County officials tried to defend the law as “narrowly tailored” to achieve the “substantial” governmental goal of preventing criminal activity that they said exotic dancing — mixed with alcohol — attracts. But Garbis rejected the argument, stating in his opinion that the county had failed to provide sufficient evidence of these alleged “harmful secondary effects” of what used to be called gentlemen’s clubs.

Meanwhile, the county this year has endured violence near bars, some which feature exotic dancing and some that do not.

Bernard Irvin was stabbed to death Jan. 31 at the Legend Night Club in Temple Mills, which has the dancing and successfully challenged the law, Gazette.Net reported.

On Tuesday night, a day before Garbis’ decision, a vigil was held near the Tradewinds nightclub. Family and friends of Darryl Robinson II gathered across the street from the Temple Mills establishment, near where the 28-year-old was shot and killed on Jan. 31, Gazette.Net added.

According to Gazette.Net:

Robinson’s death was among several in recent years near county entertainment hotspots. In March 2007, nine nightclubs were shut down after 11 people were killed in only 11 days. Former Police Chief Melvin High was granted the authority to shut down any venues he saw as an “imminent danger.”

The article also mentions the March death of a Bowie man at The Sideline Bar and Grill, the Largo sports bar owned by former Redskins linebacker LaVar Arrington.

In light of these deaths, should Garbis have taken judicial notice of the county’s asserted link among alcohol, exotic dancing and violence and upheld the law as a justified restriction on the First Amendment?

By: jackie.sauter

We’re coming to the end of Sunshine Week 2008. Its purpose is to promote the idea that you – the public – have a right to know what’s going on in the halls of power.

I’ll let SunshineWeek.org explain:

Though spearheaded by journalists, Sunshine Week is about the public’s right to know what its government is doing, and why. Sunshine Week seeks to enlighten and empower people to play an active role in their government at all levels, and to give them access to information that makes their lives better and their communities stronger.

Sunshine Week actually began as Sunshine Sunday in Florida in 2002, according to the effort’s Web site. The creation was “in response to efforts by some Florida legislators to create scores of new exemptions to the state’s public records law.”

“The increased public and legislative awareness” from the first three Sundays led to the defeat of approximately 300 exemptions to open government laws in Florida.

Other states followed, and a 2003 summit hosted by the American Society of Newspaper Editors led to the creation of the annual Sunshine Week.

Like the quote says, this is the goal of all good journalism, but the public needs to play its part, as well. Last year, newspapers and other organizations recognized Sunshine Week with essays on government accountability, exposes on government databases and even an archive of editorial cartoons.

The week’s almost over, but the mission remains. Ask questions. Demand answers. This is a participatory democracy, and it needs your voice to thrive. Take some time today to read up on Sunshine Week and Maryland’s approach to open government.

JOE BACCHUS, Web Specialist

By: jackie.sauter

Attorney General Douglas F. Gansler now says 17-year-olds should be allowed to vote in the Feb. 12 primaries as long as they will be 18 by the general election.

Maryland	2002	2004
Total voter turnout	46.6%	59.7%
18 to 24	19.5%	42.9%
25 to 44	37.0%	52.5%
45 to 64	56.4%	70.9%
65 to 74	65.1%	67.9%
75+	63.1%	60.1%

That used to be Maryland’s policy — until Gansler advised the Maryland State Board of Elections that a December 2006 opinion by the Court of Appeals, which struck down an early voting statute, suggested the practice was illegal.

In the latest advisory opinion, Gansler stood by the first interpretation but said it’s outweighed by the First Amendment rights of the 17-going-on-18-year-olds.

But here’s the question: even if the policy is changed back, how big a difference will it make? A quick look at U.S. Census Bureau statistics indicates that young people don’t, in fact, rock the vote: Although the 18-to-24 age group dramatically increased in voter turnout from the 2002 to 2004 elections, it still remains the lowest in the state.

Will this proposed change make a difference? Or, in the long run, is it not about numbers but about a constitutional right?

Liz Farmer, Legal Affairs Writer