Monthly Archives: September 2007

‘Indiana’ Blabber Faces Doom

I really cannot take credit for that headline. That goes to the New York Post which is reporting on its insightful “Page Six” that one of the extras from the new Indiana Jones Movie gave an interview to his hometown news paper and reveled secrets about the movie in violation of his NDA. (Read the story here).

I thought that this would be a great opportunity to give quick discussion about NDAs, Non Disclosure Agreements. If you don’t know, an NDA is a promise to keep your mouth shut about the happenings of the project you are working on. Typically, the NDA will allow for injunctive relief (think restraining order) to keep the contracting party from leaking any information that was required to be kept confidential. It also provides an avenue to sue for damages in the event the NDA is breached.

But what happens in this situation where you have an extra in a movie, who has been tapped to perform a dance scene and discovery of the disclosure occurs after it happens? Well, while there are possible damages available, I doubt this fledgling actor has any type of cash to pay to Spielberg. So, what does Spielberg do? He cuts his scene and systematically destroys this young actors career! Who is going to hire this kid when he can’t comply with an NDA?

Well, let this be a lesson to you aspiring actors, producers, directors and crew, if you sign an NDA, adhere to it! And, if you decide not to heed this advice, make sure you’re not working for Spielberg.

Church and State … a follow up …

My recent post about the display of the 10 Commandments in a District Courthouse was received with great support. (See Thou Shalt Display … ) My good friend Marc Randazza had the wonderful opportunity to appear on Lisa Macci’s syndicated legal talk show to address this issue. Give it a listen HERE!!

Free Speech or an Overstep of Authority?

The Denver Post is reporting that a newspaper editor for the Colorado State University student newspaper is facing criticism for his profane editorial attacking President Bush. Despite requests for his resignation, he is refusing to resign. (SOURCE). According to the article, Rocky Mountain Collegian editor J. David McSwane issued a statement defending his editorial, which said “Taser this … (expletive) BUSH,” as an effort to exercise free-speech rights. (SOURCE). I can only imagine what the expletive was…

But does this beg the question about free speech and its conflict with school functions? This is a student run newspaper. As you might recall from my previous post concerning religious speak during a graduation ceremony in my”… Speak no Evil …” post (don’t forget about the Randazza Enlightenment, however) about the school’s ability to have some limited form of censorship to safeguard the students. I’m not sure if McSwane’s editorial falls into any category of speech that could properly be censored by the University. I’m sure a very broad reading of Morse v. Frederick, 127S.Ct. 2618 (2007) could lead one to the conclusion that he had no right to publish the remark. But, the First Amendment to the Constitution protects the ability to criticize our government. I don’t think that because this is a student run paper reduces the free speech rights to any degree. But what is the substance of “Taser This: Fuck Bush”? Is this really information meant for the public to evaluate and to help with criticism?

It will be interesting to see how this case develops over the next few weeks. McSwane is scheduled to be reviewed later this week by the school faculty.

Thou Shalt Display…

… the 10 Commandments in the Courthouse.

Federal District Judge, Karl Forester of the Eastern District of Kentucky, has ruled that “a display of the Ten Commandments at an eastern Kentucky courthouse does not violate the Constitution, but a lawsuit challenging a similar display in another county can proceed.” (Read the Associated Press Story Here).

The ruling comes down as one of four filed by the ACLU which is the Organization’s the second set of challenges to Ten Commandments postings in county government buildings (four courthouses and one public hospital). On behalf of ACLU of Kentucky members and local citizens, the ACLU argued that the postings violated the First Amendment’s establishment clause. The context of the individual postings initially ranged from stand-alone to “historical documents” displays like those enjoined in the first set of cases. After the ACLU filed suit, each government modified its display to contain the same set of “historical documents.” (SOURCE). In each lawsuit, the ACLU is attempting to prove that the county’s real motive for the display is religious, not historical. (SOURCE)

Although I’m still trying to get a copy of the Kentucky opinion, it seems that The basis of this opinion rides on the U.S. Supreme Court case from 2005, McCreary County, Ky. v. American Civil Liberties Union of Ky. 545 U.S. 844, 125 S.Ct. 2722 (2005), that that Ten Commandments displays on government property must be evaluated on a case-by-case basis. Among factors making the displays constitutional, the court said, is if their main purpose was to honor the nation’s legal, rather than religious, traditions. (Read the Opinion HERE).

The crux of this controversy is whether the display of the Commandments is for a legal purpose rather than a religious one. I can see the arguments on both sides. The basis, the core value of the Commandments, is religious and not legal even though it is the “Law” of religion. It was given to Moses by God. But can you take it a step further and say the Commandments, although religious in history, really developed the basis for our laws today? For example, “Thou shalt not kill,” could easily be argued formed the basis of the laws governing murder and violence, obviously a pure historical and legal basis. But one cannot escape the fact that the Commandments are one of the most religiously encompassed items throughout history. Well, just as the interpretation of most laws, there is a lot a gray and it is easy to manipulate the law to suit one’s interests.

Senator Larry Craig Gets ACLU Backing

The American Civil Liberties Union has filed an Amicus Brief with the District Court in Hennepin County Minnesota arguing that:

The Minnesota law under which the defendant in this case was charged, and to which he pled guilty, applies both to speech protected by the United States Constitution, and to speech which is unprotected. That is true of the very words of the law, and it is true of its application in the context of this case.

The First Amendment and the Due Process Clause of the Constitution require that a law which covers both protected and unprotected speech:

1. not be so overbroad as to pose a real and substantial threat of ensnaring protected as well as unprotected speech;

2. provide clear standards, to law enforcement and to the public, about where it may be legitimately applied and where it may not;

3. be well crafted to serve the legitimate regulation of speech and not to ensnare protected speech.

It is very doubtful that, on the record as it appears so far, the prosecution in this case can meet any of those requirements. Given that, there is a very real possibility that this defendant pled guilty under circumstances in which the Constitution would not have permitted a conviction. That strongly suggests that in the interests of justice, the defendant should be able to withdraw his plea.

But, that’s not all. According to the ACLU the law which Craig was charged under, was historically found to be unconstitutional. The brief states:

Almost 30 years ago, the Minnesota Supreme Court ruled that the law involved here was unconstitutionally overbroad and vague. It preserved the law by restricting its application to “fighting words,” a restriction which would almost certainly make any conviction in this case a near impossibility. In re S.L.J., 263 N.W.2d 412 (1978).

I am proud to say that the ACLU has outdone themselves on this endeavor. I guess even scandal-clad politicians need help occasionally. Especially those who are so quick to stamp on other’s rights and liberties. My friends and collegues Marc Randazza and Jon Katz have great takes on this issue here and here.

View the ACLU Brief HERE

WHAT?! (The Randazza Enlightenment)

Wow! When I first read Hirsanyi’s piece about poor Ms. Corder I took it on it face. My Mistake! I have to appreciate that there are some people in this world who took a little time to investigate the facts of my recent post “… Speak no Evil …” My good friend Marc Randazza in his recent post shed some light on an apparently very misleading Op Ed piece to which I (originally) had sympathy for. Read the Randazza enlightenment here!

Thank you Marc for bringing this to our attention!

… Speak no evil …

Denver Post columnist David Harsanyi hit the nail on the head with his recent column in Sunday’s Denver Post. His article, entitled “Student spoke up, school let her down” details the story of a young Colorado high school valedictorian who was denied her high school diploma because she spoke out and “introduced” the audience to Jesus Christ. As Harsanyi details in his article,

Corder was one of 15 valedictorians at Lewis-Palmer High School in 2006, all of whom were invited to speak for 30 seconds at a graduation ceremony. When it was Corder’s turn, she decided to introduce her audience to a celebrity.

“His name is Jesus Christ,” she said. “If you don’t already know him personally, I encourage you to find out more about the sacrifice he made for you.”

This, according to Corder, provoked the principal to deny Erica her diploma until she apologized via e-mail to the entire class for her proselytizing. She did so fearing a delay would hurt her college admissions.

Talk about prior restraint! Denying her diploma because she expressed her views and opinions about people loving Jesus. Harsanyi draws a correlation to the recent Supreme Court decision arising out of a case from Alaska cleverly nicknamed the “Bong Hits for Jesus” case. Or as we in the legal community like to refer to it: Morse v. Frederick, 127 S.Ct. 2618 (2007).

Now, perhaps the school administrators of Lewis-Palmer High School thought that in light of the Morse case, they could slap the equivalent of duct tape over Ms. Corder’s mouth. Apparently, they failed to actually read the opinion, and get some counsel before infringing on the First Amendment Rights of the students. Don’t misread what I am saying here. I’m not a big fan of the Morse opinion to begin with. But I’m also not an advocate of drug use. But the opinion does recognize some very important factors which went entirely overlooked by the school. But to put it in perspective, you need to understand the facts of the Morse case. There,

At a school-sanctioned and school-supervised event, petitioner Morse, the high school principal, saw students unfurl a banner stating “BONG HiTS 4 JESUS,” which she regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, Morse directed the students to take down the banner. When one of the students who had brought the banner to the event-respondent Frederick-refused, Morse confiscated the banner and later suspended him. The school superintendent upheld the suspension, explaining, inter alia, that Frederick was disciplined because his banner appeared to advocate illegal drug use in violation of school policy. Petitioner school board also upheld the suspension. Frederick filed suit under 42 U.S.C. § 1983, alleging that the school board and Morse had violated his First Amendment rights.

Personally, I see a HUGE difference between promoting drug use and promoting Jesus. Maybe because you can get “high on Jesus” the Lewis-Palmer officials thought this was a bad thing to be talking about. But the school officials had completely the wrong analysis of this situation. The Supreme Court opinion sets out such a decent map for anyone to follow and makes it clear what type of speech school officials can restrain. Specifically,

Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). At the same time, we have held that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), and that the rights of students “must be ‘applied in light of the special characteristics of the school environment.’ ” Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Tinker, supra, at 506, 89 S.Ct. 733). Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it.

But asking the public audience to recognize Jesus? How does that even fit in the same universe as promoting illegal drug use?

If you ask me, the Lewis-Palmer School Officials owe the apology. I’ll be awaiting my email!