Wednesday, February 23, 2011

No More Deaths

Kimberly Ashworth


The issues occurring along the border between the United States and Mexico have been the center of media attention for quite some time. The migrants who choose to make the treacherous journey from rural Mexico to the United States face fifteen law enforcement agencies, drug smugglers, bandits, ranchers and gun-toting American militia groups. Those that attempt to provide the migrants with medical aid and assistance face criminal charges and retaliation. Despite these risks, there are those who continue to provide help to the migrants.


One of the most inspiring stories comes from Tucson, Arizona, where John Fife and Gene Lefebvre continue to work tirelessly to assist migrants. A Presbyterian minister and a co-founder of the Sanctuary Movement, Fife began his mission to help migrants crossing the border in the 1980s. This choice led to criminal charges and five years of probation. Undeterred, he partnered with Lefebvre in 2000 to found Humane Borders in response to the growing number of migrant deaths along the border. Humane Borders built 55-gallon water drums along the paths throughout the desert—or “death trails,” as Fife and Lefebvre call them. In 2002 Fife and Lefebvre founded Samaritans, a faith-based volunteer group that patrols the desert, providing medical aid, water, and food to migrants crossing the border in the summer heat. And in 2004 the two founded their current organization, No More Deaths (No Mas Muertes). No More Deaths is a faith-based humanitarian group whose volunteers walk the death trails and provide water and food to those crossing the border. No More Deaths operates under the slogan “humanitarian aid is never a crime.” Fife and Lefebvre believe their job is to save lives, not to protest or worry about political consequences.


Their thirty-year struggle to help migrants—whose only crime is seeking a better life and way to feed their children—is inspiring. Anti-immigration groups preach about the inevitable downfall of America if migrants are allowed to continue crossing the border into America. But their hate speech only leads to violence and tragedy. Recently, members of an anti-immigration group killed a nine-year-old girl and her father and seriously injured her mother. No More Deaths plays an interesting role in the immigration reform movement. Rather than protest or attempt to change the law, it seeks to provide aid and prevent unnecessary deaths along the border. It is a humanitarian group that can hopefully serve as an inspiration to those against immigration. No More Deaths emphasizes the message that we are all humans and that we are commanded by God, conscience, or another higher power to treat each person as we would want to be treated. It is not about which side is right, but about helping our fellow man. It’s time to forget the anger and violence directed towards those left with no choice but to come to America. It’s is time to remember that we are all human beings no matter where we may be from.

Tuesday, February 22, 2011

First Amendment Showdown: The Right to Free Speech vs. The Right to Privacy

By Meagan Armstrong

How will the U.S. Supreme Court rule in Snyder v. Phelps, the controversial funeral protest case? This case pits two First Amendment rights against each other: the right to free speech and the right to privacy. The Court is expected to render its opinion sometime in June 2011. Several onlookers have opined that the Court will decide that the right to privacy does not trump the right to free speech in the context of a funeral. Kevin Goldberg, a First Amendment attorney at Fletcher, Heald & Hildreth, predicts how each Justice will vote:

I’ve got it at 5-4, maybe 6-3, in favor of Phelps. 

Here’s how I break it down.

Clearly for Snyder:
There’s no question in my mind that Justices Alito and Roberts will be voting for Snyder. 
Alito is the weakest on the current Court when it comes to the First Amendment. He was the only Justice who voted to uphold a clearly overbroad law in United States v. Stevens; his concern appeared to center on concerns of morality and proper behavior, rather than First Amendment interests. 
Despite some indications that Chief Justice Roberts may not be that bad on First Amendment cases, in the Snyder argument he seemed convinced that the tort of IIED could exist even where a matter of public concern exists. One question he asked really stood out. During Phelps’s argument, Roberts asked:
[I]f you recognize that there can be a tort of emotional distress in [in some cases], isn’t that, the factual question of whether it rises to that level of outrageousness, which is part of the tort for the jury?
This indicates to me that the Chief Justice is not willing to foreclose as a matter of law the possibility that an IIED claim can permissibly be pursued when a private figure plaintiff is suing based on speech on a matter of public concern.

Likely for Snyder
Justice Kennedy is also one who is generally favorable to the First Amendment, but he seemed particularly concerned that allowing groups like the Phelpses and their church to escape liability would open the door to everything short of outright stalking and harassment. He described the Phelps position as advocating the ability to follow any citizen around at any point, and noted that “torts and crimes are committed with words all the time.” Taking these observations together, I feel that he’s wary of giving unfettered rights to inflict insult in all situations.

Clearly for Phelps:
Justices Ginsburg, Kagan and Sotomayor seem firmly in the Phelps camp. 
Ginsburg was “up in the grill” of Snyder’s attorney, Sean Summers, from the get-go (the term is in quotes because, oddly enough, Margie Phelps used that term three times in her oral argument to describe the difference between, on the one hand, protected speech and, on the other, unprotected IIED or “fighting words”). Ginsburg especially seemed unconvinced that protesters who complied with every time, place and manner restriction put upon their speech could later be held liable.
Justice Kagan highlighted the portion of Hustler quoted above. I think she is concerned about subjectivity and I think she’s not willing to impose liability in this case.
Justice Sotomayor also seemed skeptical about the public figure/private figure distinction. She noted at one point:
[U]nder what theory of the First Amendment would we do that? What [Supreme Court decision] would stand for . . . the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?

Likely for Phelps
Justice Breyer is a little tougher. Despite being tagged as a “liberal” member of the Court, he isn’t rock solid on First Amendment protections. But he’s still pretty good. For me, the key moment occurred when he seemed to be seeking a way to protect this speech by allowing some liability but not where matters of public concern are involved. (You can find this moment at pages 45-46 of the transcript.)
But Justice Scalia was the real revelation to me. As usual, he was an active questioner, launching into both attorneys. But everything crystallized – and I think the case might have tipped to Phelps – in this exchange during Summers’s rebuttal:
MR. SUMMERS:  The court – the district court would have to look at the signs, as the district court did in this case, and determine which one he believed were directed at the family and which ones were not. There was a comment earlier that all the signs were presented. Well, all the signs were presented by the Respondents, not by Mr. Snyder. So we -
JUSTICE SCALIA:  I guess that that kind of a call is always necessary under – under the tort that you’re – that you’re relying upon. The conduct has to be outrageous, right?
MR. SUMMERS:  Correct.
JUSTICE SCALIA:  That always requires that kind of a call, unless the tort is unconstitutional, as applied to all – all harm inflicted by words.  
I’m sensing that Justice Scalia is concerned that Snyder’s position requires consideration of the message’s content in determining whether there is outrageousness. He’s always been concerned with regulating speech based on a particular viewpoint, yet that’s what Mr. Summers seems to be advocating. There’s no way that Scalia will agree with this. If I’m right, he definitely provides what could be the crucial vote for Phelps.  

Unknown
Justice Thomas. The guy didn’t ask a single question (again). Sometimes he loves the First Amendment, but sometimes he comes way out of left field, especially in cases where he can view himself as the protector of a “weak” constituency. (Check out his concurring opinion in the "Bong Hits for Jesus" student speech case in which he went so far as to advocate a return to the 19th Century, when schools basically governed every aspect of their students’ lives.) His paternal streak might say that the government should step in where funerals are involved.
It’s my uncertainty about Thomas’s vote that keeps me from a conclusive prediction as to the vote split – 5-4 or 6-3 – but, if my other big guess (that would be Justice Scalia) pans out, the Swami sees a victory for Phelps and, more particularly, the First Amendment.

Fifth Circuit to Reexamine the Desired Balance Between Security and Privacy in the Context of Incarceration

By Alese Bagdol

The Fifth Circuit may soon reverse its position—in the recently argued case of Jimenez v. Wood County—by finding blanket strip-searches of pretrial arrestees constitutional.

In Jimenez, the plaintiff was arrested for hindering her husband’s apprehension by hiding him in the trunk of her car. (In Texas, “hindering apprehension” is a Class A misdemeanor.) The plaintiff was then taken to Wood County Jail, where she was strip-searched in accordance with the facility’s policy to search all new detainees—regardless of whether they were under suspicion for weapon or contraband possession. The plaintiff sued Wood County under the Fourth Amendment and a jury awarded damages.  Wood County appealed.

The Fourth Amendment protects against unreasonable search and seizure.  So, Jimenez turns on whether this particular strip search was unreasonable. The guards who conduct the strip searches say that security concerns require them to search for weapons possibly smuggled into the facility. But a woman booked for committing a minor misdemeanor would probably lack the foresight to conceal a weapon on her person before her arrest. Is the security threat substantial enough to warrant this invasion of privacy?

The U.S. Supreme Court addressed a similar issue when, in 1979, it decided Bell v. Wolfish.  In that case, however, the facility conducted hands-off body cavity strip searches after detainees had had contact visits with friends and family from the outside.  The court reasoned that the need to uphold security interests outweighed any concern for an inmate’s right to privacy.

Like the Fifth Circuit in Stewart v. Lubbock, most Circuits have distinguished their seminal cases on the subject from Wolfish.  Only when the Eleventh Circuit remarked that most other Circuits have wrongly interpreted Supreme Court precedent did the Fifth Circuit contemplate reversing its view.

Security interests run high in many contexts, especially incarceration.  Still, how far ought a court to go to protect those interests? Will reading Wolfish more broadly lead to greater infringement of an inmate’s right to privacy? The judges on the Fifth Circuit ought to consider these questions before reversing their initial stance on striking the proper balance between maintaining adequate security standards and protecting the privacy rights of inmates in custody.