Monthly Archives: January 2011

AZ Shootings Spark 1st Amendment Debate

State Legislators in Arizona moved quickly to approve emergency legislation to head off picketing by a church near the funeral service for the 9-year-old girl who was killed in Saturday’s attack.

According to the Associated Press,

Unanimous votes by the Arizona House and Senate sent the bill to Gov. Jan Brewer, who signed it Tuesday night. It took effect immediately. Without specifically mentioning the Tucson shooting, the law prohibits protests at or near funeral sites.

The Westboro Baptist Church has made strides in its attempts to gain recognition for its cause, primarily by picketing military funerals to draw attention to its view that the deaths are God’s punishment for the nation’s tolerance of homosexuality. It plans to picket Thursday’s funeral for Christina Taylor Green because “God sent the shooter to deal with idolatrous America.”

I’ve mentioned this group in the past and one of my students wrote extensively on the subject. (Student Blawg – What Price Freedom of Speech).

I understand the issues here, but I don’t think that chipping away at one’s fundamental liberties is the proper response.  I don’t think it sends the right message to people.  Just because you don’t like, or want to hear, the message of the speaker at a certain location, doesn’t mean you pass a law to prohibit it. Make a special note here, the WBC was not singled out in the law.  So, the law applies to any person protesting under these circumstances. I’m still looking for a copy of the law itself, and will bring you more when I find it.

Generally, The Arizona legislation is modeled on an Ohio law that was upheld by the 6th U.S. Circuit Court of Appeals. The four-paragraph Arizona bill makes it a misdemeanor punishable by up to six months in jail to picket or conduct other protest activities within 300 feet of a funeral or burial service — about the length of a football field. The prohibition applies from one hour before the event to one hour after.

This will all boil down to whether this is a reasonable time, place and manner restriction on the location of the speech, since it doesn’t ban the speech in its entirety and is essentially content neutral. Our courts will decide…



CA Supreme Court: No warrant needed to search cell phone

This disturbs me.  One’s expectation of privacy has been shattered in California. The California Supreme Court ruled Monday that police can search the cell phone of a person who’s been arrested — including text messages — without obtaining a warrant, and use that data as evidence.

This ruling opens up the flood gates of abuse by law enforcement, such as unfettered warrantless searches of e-mails, documents and contacts your IPhone or Blackberry.  Not to mention, that tablet and laptop computer you’re toting around.

The ruling involves the 2007 arrest of Gregory Diaz, who purchased drugs from a police informant. Investigators later looked through Diaz’s phone and found text messages that implicated him in a drug deal.  Diaz appealed his conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. The court disagreed, comparing Diaz cell phone to personal effects like clothing, which can be searched by arresting officers.

“The cell phone was an item (of personal property) on (Diaz’s) person at the time of his arrest and during the administrative processing at the police station,” the justices wrote. “Because the cell phone was immediately associated with defendant’s person, (police were) entitled to inspect its contents without a warrant.”

What a bunch of junk. When are the courts going to stand up for the 4th Amendment instead of chipping away at it?  Generally, the 4th Amendment protects one from unreasonable searches and seizures without a warrant.  The CA Supremes here didn’t even carve out an exception to the warrant requirement, such as exigency or a crime in progress.  So, where does that leave us?  That makes this ruling the RULE, not the exception.

What’s the moral here?  Don’t have your cell phone in your pocket when you’re arrested.  Stick it in the trunk along with your gym bag; that seems to be the only place where the 4th Amendment maintains a little dignity.

Read the opinion here!