See no evil

Suppose you are standing on a street corner waiting for the pedestrian light to change when you look up and see a police officer standing next to you who suddenly orders you to look away; to not look at him, and if you continue to do so he will arrest you for looking at him. Is that police officer legally and constitutionally authorized to order you not to look at him?

Of course not! You are free to look at anything, anyone or any activity going on in a public place. You are free to whip out your notebook and write down a description about anything you see. And you are just as free to record exactly what you can see with your own eyes with a cell phone or digital camera.

But what if the cop is in the process of using force to subdue a criminal suspect; taking him down, handcuffing him, making an arrest and taking him into custody? Can that cop order you and all other bystanders on the street not to look at that? Are you and others not allowed to use your own eyes if the cop orders you to look away? Can the cop order you not to remember what you saw; to refrain from writing it down; to not record the event in any fashion?

Again, of course not! The very idea is ridiculous! No one has the legal or constitutional authority to tell you that you are not allowed to look at events, such as police activity, that are happening right out in the open in a public place. And if you are free to look at such events, you are just as free to write about them, and yes, to record them with a camera.

OK, but what about this nitwit U.S. District Court Judge Mark Kearney from Philadelphia who ruled that citizens can sometimes be stopped from recording police officers on duty? There is only one reason why any police officer performing his duties in a public place, such as a street corner, would object to bystanders looking at him or recording his activities – he might not want to be accountable for what he is doing.

It’s a simple as that.

This nitwit judge is going to be overruled in the court of appeals. He thinks that citizens don't have an unfettered right to record police activity and that police are free to stop such recordings unless the person shooting the video announces he or she is recording as a challenge or protest to officers' actions. The First Amendment doesn't give people a right to record police unless it is part of "expressive conduct," declared the judge.

That is the most bizarre judicial ruling I have ever heard in my entire 45 year legal career. A cop can order bystanders in a public place to see no evil unless they announce that it is expressive conduct, the judge reasons. That’s what his ruling amounts to.  

"Gathering information for dissemination is a fundamental part of what we do under the First Amendment, and videotaping a police officer conducting their duties in a public space is a fundamental example of gathering information," observes Paul Hetznecker, a civil rights lawyer who represented a photojournalist arrested in 2010 for recording police at a protest in Philadelphia.

Forget about the First Amendment; were talking about a most basic and fundamental liberty here. Bystanders on a public street enjoy the liberty to look at and record any activity that is taking place in public. They may not be deprived of that basic liberty without due process of law, and since looking at activity occurring in a public place is not a crime no police officer has the authority to order them to…

see no evil.  

Holy Homophobes!

Suppose a bunch of religious extremist lawmaker Neanderthals decided to pass laws permitting state licensed agencies, organizations and businesses to refuse services to mixed race couples, or mandating that a separate category of marriage license be issued to them.

If you thought that kind of treatment is unconstitutional you would be one-hundred-percent correct. The government can’t get away with making laws which deny equal protection of the laws to mixed race couples.

Never-mind all that, declare the Holy Homophobes. Yes, the Holy Homophobes are back in Georgia and Kentucky! And when it comes to the matter of gay couples their religious beliefs inform them that they have a perfect right to deny gays their Fourteenth Amendment fundamental rights to equal protection of the law.

Georgia's governor indicated that a bill is in the works allowing faith-based organizations which are licensed by and receive financial grants and other generous benefits from the state to refuse service to gay couples without repercussion.

The legislation is intended to prevent religious adoption agencies, schools and other organizations from losing licenses, state grants, or other government benefits on account of exercising their religious beliefs about same-sex marriage. The measure as approved by the Senate allows individuals and faith-based organizations to decline service to couples based on religious beliefs about marriage.

Of course, if faith-based organizations and individuals want to continue their discrimination practices against gays, there is a perfect solution – stop taking state money.

Meanwhile, Kentucky's state Senate approved a bill that creates different marriage license forms for gay and straight couples, because, as one homophobe senator explained: any form that does not include the words "bride" and "groom" is disrespectful to traditional families.

The original purpose of the legislation was to remove the names of county clerks from marriage licenses, a response to the controversy surrounding Rowan County Clerk Kim Davis and her refusal to issue marriage licenses to same-sex couples. But the Republican-controlled Senate amended the bill as a way to show their support for traditional marriage. "Quite frankly… That has nothing to do with bigotry, nothing to do with discrimination,” deadpanned Republican state Sen. John Schickel.

The American Civil Liberties Union observed that the Senate was "setting a dangerous slippery slope precedent by catering to one specific religious belief and privileging that over others… Separate forms for gay and lesbian Kentuckians constitute unequal treatment under the law… Pure and simple, this bill is motivated by the desire to accommodate discrimination against same-sex couples."

Democratic Sen. Gerald Neal of Louisville said creating two marriage licenses is taking the state "down a path that has already been paved in this commonwealth that has a tendency to reinforce bigotry… Separate has never been equal," he said.

One must understand what we’re dealing with here – a bunch of religious bigots who’ve yet to learn their lessons about the United States Constitution Fourteenth Amendment and the guarantee of equal protection of the law.

Holy Homophobes!

National insecurity extortion

Last week we saw the federal goons try to take a bite out of Apple for not voluntarily cooperating with demands for its corporate product secrets which would put millions of its loyal customers in jeopardy.

Apple is rightly pushing back. So now the Justice Department has filed a motion in federal court to compel Apple to provide “reasonable technical assistance” in the government’s investigation of the locked iPhone belonging to Syed Farook, the San Bernardino gunman terrorist.

"Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which has been found by this Court to be warranted for an important investigation. Despite its efforts, Apple nonetheless retains the technical ability to comply with the order, and so should be required to obey it," say the goons. 

First, understand that Apple is totally innocent of any crime, has committed no wrongdoing whatsoever, and had nothing to do with Farook’s terrorist act. Never-mind all that scream the feds; they demand in the name of “national security” that Apple help them unlock his iPhone.

This is nothing more than a show of government national insecurity extortion.

Where in the United States Constitution does the government enjoy the authority to extort a person or corporation to employ technology to design products which will “help” it in its criminal investigations – in this instance to create a “backdoor” to unlock data stored on its iPhnes? Nowhere!

To the contrary, the Thirteenth Amendment plainly prohibits slavery or involuntary servitude anywhere in the United States, except as a punishment for crime whereof the party shall have been duly convicted.

"No matter how you slice this pie, if the government succeeds in getting this back door, it will eventually get a back door into all encryption, and our world, as we know it, is over… In spite of the FBI's claim that it would protect the back door, we all know that's impossible. There are bad apples everywhere, and there only needs to be one in the US government. Then a few million dollars, some beautiful women (or men), and a yacht trip to the Caribbean might be all it takes for our enemies to have full access to our secrets," explains famed anti-virus software maker, John McAfee.

McAfee says that the FBI's demand, coupled with the corresponding court order, marks the "end of the US as a world power."  He’s offered to decrypt the terrorist's iPhone free of charge, explaining that he works with the best hackers in the business. Working together relying primarily upon social engineering techniques, they would be able to break iPhone encryption in just three weeks.

"I would eat my shoe on the Neil Cavuto show if we could not break the encryption on the San Bernardino phone. This is a pure and simple fact… So here is my offer to the FBI. I will, free of charge, decrypt the information on the San Bernardino phone, with my team. We will primarily use social engineering, and it will take us three weeks. If you accept my offer, then you will not need to ask Apple to place a back door in its product, which will be the beginning of the end of America."

So you see that the government goons need not resort to extortion and force against Apple and its loyal customers -- wholly innocent parties in this case -- to get what they want in their investigation – the encrypted information of a terrorist’s iPhone. But the government goons are used to getting what they’re after by force. To the goons it’s a matter of national insecurity rather than national security.

The goons would rather use national insecurity extortion.

Goons bite Apple

What would you think if the federal government goon squad demanded of every lock manufacturer in the nation a key to open every single lock it makes so that there is no way that the company could assure its customers that the goons would not have the means to secretly unlock their front doors at any time for access to their private property?

Suppose the FBI goons cajoled a federal judge into ordering safe manufacturers, bank deposit box manufacturers and software encryption makers to fork over the means of defeating the purpose of every device or software they make whenever they like in order to discover the secrets within they are looking for?

What if you were the owner of a new technology which allowed your customers to keep a tight secret of all their private thoughts, papers and effects? How would you like it if a government goon ordered you to turn it over and give it up to big brother who doesn’t like the idea of anyone keeping secrets from it?

If the United States government wants access to your secret it thinks it has the perfect right to demand access to it by any means possible, and it has no qualms about demanding the cooperation of others to help it satisfy its desires.

So now the goons are trying to take a bite out of Apple Computer. The FBI convinced a federal judge last Tuesday to order Apple to assist the government break into the encrypted iPhone belonging to one of the deceased San Bernardino terrorists.

“Apple has the exclusive technical means which would assist the government in completing its search, but has declined to provide that assistance voluntarily,” prosecutors whined.  US government officials are concerned that the expanded use of strong encryption is hindering national security and criminal investigations. Apple has it. We want it. Therefore Apple must give it up argue the goons.

Apple CEO Tim Cook says: Screw you, goon squad; we’re not going to lie down and roll over like government lap dogs when you threaten the security of our customers. “We oppose this order, which has implications far beyond the legal case at hand.” He knows that his customers want their private secrets protected from hackers – including government hackers. He is deeply committed to those customers.

But now the government is demanding that Apple build a “backdoor” to the iPhone. It “wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.”

“While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect,” Cook concludes.

Lots of American technology companies like Google and others are wisely agreeing with Cook. I say thank goodness there are patriotic American CEO’s who are willing to risk their businesses by standing up to the government goons.

I hope the FBI can eventually crack the terrorist’s phone and get access to the encrypted data within. But not at the expense of Apple and its loyal customers who have a right to count on the company to safeguard their precious secrets.  If the government can’t crack it; that’s just tough luck. 

The goons don’t have the right to bite Apple. 

Remembering Scary Scalia

I was unexpectedly saddened by the sudden passing of SCOTUS Justice Antonin Scalia this past weekend. As much as I viscerally disagreed with him over his opinions on a whole host of legal and constitutional issues, I still recognized that he was a brilliant jurist, an excellent writer, a man of integrity and a fine gentleman all around.

I’m going to miss Nino Scalia – even though he was scary.

Today I’m remembering why.

This was the man in a black robe on the bench of the highest court in the land who thought that it’s easy to decide “gay rights” cases: the Constitution does not protect gay rights. That’s it; next case!  If the Constitution says nothing about gay rights then there are no gay rights. If the Constitution says nothing about abortion then there are no abortion rights. If the Constitution says nothing about breathing then there is no right to breathe. (Err, no, he didn’t say that; I said it for him) It’s easy; next case.

You see, Scalia called himself a "textualist."  When writing opinions he strove to apply the words in the Constitution as they were understood by the people who wrote and adopted them 235 years ago. If it’s not in the text, he thought, forget about it!

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia told the American Enterprise Institute.

Scalia believed that it is a perfectly proper function of federal, state and local governments in this supposedly free country of ours to legislate morality among the populace such that conduct deemed to be philosophically moral or immoral may be rewarded or punished at the whim of the majority. He declared in U.S. v. Windsor: “As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms…”

Thus, the state could outlaw masturbation but not automatic pistols according to Scary Scalia. That’s what he implied in his dissent in the 2003 case of Lawrence v. Texas. He said the court "has largely signed on to the so-called homosexual agenda… Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home," wrote Scary Scalia. "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

So if a state legislature votes 51 to 49 that a behavior is immoral, they can ban it and no court may declare the law unconstitutional, least of all the Supreme Court, thought Scary Scalia, no matter how unreasonably it infringes upon individual liberty. If a state legislature says you can’t masturbate, eat ice cream, toast your bread, go to bed after 9 p.m., or sleep in until noon, well, then you go to jail, directly to jail and do not pass go.

That’s how the brilliant mind of Scary Scalia worked. It was all part of his Catholic religion – nothing whatever to do with reason or logic. As far as he was concerned the word liberty didn’t carry much weight in the United States Constitution. Recently, he told an audience in Louisiana, that the idea of government religious neutrality is bunk. "To tell you the truth there is no place for that in our constitutional tradition.” So much for the First Amendment Establishment Clause; Scalia had little regard for that.

He liked to say, for example, that there is no right of privacy in the Constitution, therefore the case of Roe v. Wade was wrongly decided and women do not have a constitutional right to abortion. It was just like saying that there is no right to liberty in the Constitution. There is no right to eat in the Constitution; no right to breathe; to walk; to travel; to see; to hear; to reproduce; and on and on and on. All of those rights are derived from the fundamental right to life and liberty. All must be interpreted as recognizable constitutional rights though they are found nowhere in that document.

One couldn’t tell that to Nino.

The Constitution says nothing about Obamacare either but Scalia, apparently forgetting that, would have held that Obamacare is unconstitutional. In other words, congress can ban masturbation; that’s OK, and Scalia would declare it constitutional, but it can’t pass Obamacare; that’s unconstitutional.

You must understand that Antonin Scalia, and all strict judicial constructionists of the Constitution, was only strict about it when it came to furthering his own personal political and religious agenda. Otherwise, he was quick to carve out imaginary exceptions when the mood struck him to do so, and in those instances strict construction went flying out the courthouse window. 

Sadly, I think that if Justice Scalia had been on the bench in 1954 to decide Brown v. Board of Education there would still be government sanctioned racial segregation in the United States of America today on the grounds that the Constitution neither requires nor forbids our society to approve of equality for blacks.

Yes, I’m saddened and I’ll miss the guy; but that’s how I will always remember scary Scalia.

Free Exercise Clause has two faces in Phoenix

Christians who insist that the First Amendment Free Exercise Clause gives them the right to use our government as a means to grant favor, support and sponsorship tor their religion are the first to stifle non-Christians from doing exactly the same. 

Consider the two faces of the Free Exercise Clause in Phoenix Arizona. Members of the Phoenix City Council, claiming the right to free exercise of religion, have been routinely opening government meetings with Christian prayers for many years. The current rules allow for anyone who wants to deliver a prayer to simply make a request. 

Enter the Satanist Temple of Phoenix claiming the same right to deliver an invocation at the next meeting and threatening a lawsuit: “if its member’s liberties are trampled.”  

You guessed it. Now the Christian lawmakers are scrambling to change the rules.  The Christians are going to make it impossible for the Satanists to do what the Christians have been doing in the name of free exercise of religion for years.  The new rules will only allow people invited by the elected officials to deliver the prayers at government meetings. And, of course, only Christians will be invited.

“We weren’t comfortable lending either our reputations — or the constituency that voted for us, we didn’t want them to think that we were [allowing] a Satanic prayer at a City Council meeting,” Councilman Jim Waring declared.

When it finally dawned on the Christians that they probably couldn’t get away with their new rules in court, they voted instead to end their longstanding tradition of Christian prayers before meetings, replacing them with a moment of silence. Thus, the Free Exercise Clause collided head on with the Establishment Clause in Phoenix, and both the Christians and the Satanists are going to have to go pound sand.

The decision led to outrage from some people in the room. One pastor began to cry as she tried to push for more Christian prayers. “I am not for the silent prayer,” said Pastor Darlene Vazquez. “I want those who believe in one true God to pray. It breaks my heart to hear what is going on.”

Some Christians will just never learn the reason why the First Amendment Free Exercise Clause can’t have two faces in Phoenix.

Public School Sponsored Private Cheerleaders for Jesus

I sympathize with the young Texas public school cheerleaders who want to spread the Christian gospel right out on the field at middle and high school football games. They believe that Jesus is watching the game from up in heaven and is on their side. After all, they don’t understand why anyone might object. They don’t understand the United States Constitution or the First Amendment Establishment Clause.  

I can forgive them for their youthful ignorance. But I can hardly forgive the Kountze Independent School District for caving in to their demands after initially prohibiting them from displaying banners containing religious messages during their cheerleading routines at school-sponsored events.  They should know better.

The banners represent the private speech of the students who made them, asserts Beaumont attorney David Starnes, who represents the cheerleaders. The school district, however, still contends that it retains the right to restrict content because the banners are government speech.

Well of course the banners are government speech – not private speech. Of course the school has the obligation to prohibit religious government speech. The cheerleaders just like the football players are representatives of the school. Their activities are school sponsored.

But Thomas Brandt, the attorney representing the district, said that the district would not forbid any banners that were religious in nature, but would do so if they contained language that was offensive or in poor taste.

Huh? The school can sponsor religious speech on the part of the cheerleaders but can censor all other speech? That’s preposterous! Jesus is OK, but swastika’s or “WHITE POWER” signs aren’t, is that it? If it really is private speech then the school cannot pick and choose what is acceptable and what is not; that would amount to viewpoint discrimination which the First Amendment prohibits.

If the school district permits Jesus banners, then it will have to permit any and all banners whether offensive or not. Suppose one of the cheerleaders, an atheist perhaps, held up a large banner declaring that: “NOTHING FAILS LIKE PRAYER,” or “GOD IS IMAGINARY.” I don’t think for one minute that the school would permit that. I think the school cheerleading coach would confiscate those banners and kick that student off the squad.

This also begs the question: Is it OK for the football players to display religious messages on their helmets and uniforms? Would that also be considered private speech?  How about the coaching staff and the referees? They’re all representatives of the school participating in school sponsored events. Shouldn’t they be allowed to display religious banners? Would that be private speech? No! Absolutely not!

The fact is that all those banners are perfectly OK if they’re displayed by students and private citizens in the bleachers, up in the stands or anywhere else off the field where no one could conceivably confuse them with government sponsored speech. In those circumstances it is definitely private speech protected by the First Amendment Free Exercise Clause which must not be censored. 

What's not permissible under the First Amendment is public school sponsored private cheerleaders for Jesus.