Civil Liberties

August 7, 2013

Third Circuit Upholds Girls’ Free Speech Rights in School

In September 2011, just before I stepped down as Pennsylvania NOW President, PA NOW along with the Feminist Majority, Legal Momentum, and several other feminist organizations signed onto an amicus brief written by the Women’s Law Project in support of two middle school girls from the Easton Area (PA) School District who participated in a youth breast cancer awareness program by wearing “I ♥ boobies” breast cancer awareness bracelets to school.

"I ♥ Boobies" bracelets made by the Keep a Breast Foundation

Sample “I ♥ Boobies” bracelets that were banned by the Easton Area School District; photo courtesy of Keep a Breast Foundation

Kayla Martinez and Brianna Hawk, then seventh and eighth graders, were suspended for wearing Keep A Breast bracelets on Breast Cancer Awareness Day.  Subsequently the school district instituted a district wide ban on the bracelets because they were supposedly “lewd” statements about women’s bodies.  These young women, citing 1st Amendment rights, refused to take them off and then filed suit through their parents after the district-wide ban was instituted.

On August 5, 2013, the 14-member 3rd Circuit Court of Appeals, in a 9-5 en banc decision, upheld the District Court injunction against this ban on educational free speech.  They looked at the question of whether or not speech about women’s bodies and their health “could [be] interpret[ed] as lewd, vulgar, profane, or offensive [when that] speech could also plausibly be interpreted as commenting on a political or social issue.”  The court decided that breast cancer is a social issue exception and thus protected speech.  This means that talk about breasts and breast cancer is protected speech in schools throughout Pennsylvania, Delaware, and New Jersey, the three states that fall under the jurisdiction of the 3rd Circuit Court of Appeals.

According to the Keep A Breast Foundation, the makers of this bracelet, the 3rd Circuit Courts decision

“[M]arks the first time a federal court of appeals has ruled that the First Amendment protects student speech that is plausibly understood as commenting on political or social issues.”

The Court’s bottom-line statement in its en banc decision, I believe, says it all:

“The bracelets are intended to be and they can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health.”

Thanks to Mary Catherine Roper of the ACLU of Pennsylvania  for taking this case to the 3rd Circuit and to Terry Fromson and staff of the Women’s Law Project for working on this issue in support of young women’s free speech rights when talking and taking a stand on their bodies and their health!

February 27, 2013

Institutional Corruption and the Influence of Money and Politics on People’s Lives

Fountain Pen and SignThis morning, I was scanning Tweets that came into my Twitter account. One of the Tweets said,

“Why the phrase ‘Supreme Court to hear campaign-finance case’ should scare you.”

It contained a link to an article in the Daily Beast. This article said that the US Supreme Court has decided to take another look at campaign financing in a case from the United States District Court in DC called McCutcheon v. Federal Election Commission. I read the article.

And yes this case scares me. McCutcheon argues that there should be no limits at all on campaign financing.  It scares me because I believe that if the Supreme Court rules in favor of McCutchen, there will be more influence and therefore more institutional corruption on our public policy.  This will then allow the creation of more holes in the safety net for people’s lives due to the corrupting influence of big money. For clarification, institutional corruption is defined as:

[T]he consequence of an influence within an economy of influence that illegitimately weakens the effectiveness of an institution especially by weakening the public trust of the institution.

Why? Because I do not trust the members of the current Supreme Court to openly and fairly take into account that elected officials need to answer to their constituents and not to the people and companies and lobbyists that influence them by throwing lots of money and offering consulting jobs to these elected officials (a form of “money”) once they leave office.

My mistrust results from their decision in the 2009 Citizens’ United case.  They held that the First Amendment to the US Constitution prohibits the government from restricting independent political campaign expenditures from corporations and unions.  The aftermath of this decision has been devastating. Immediately after this decision, the DC Circuit Court (which handles cases involving federal regulations) ruled that

“individuals could make unlimited contributions to so-called Super PACs, which supported individual candidates.”

And what did we see?  In the 2010 elections, Super PACs—mostly funded by the mega-rich—assisted conservative Tea Party candidates at all levels of government to win seats that they would not have otherwise been able to win.  This resulted in a lot of gerrymandering around the country for the incumbents’ self-interest.  And in 2012, $6.2 billion was spent on elections; over $10 million of these funds were given to a small number of Super Pacs by a very small number of mega-wealthy individuals—including the Koch brothers—to influence the outcome of the elections.

If this case overturns what few limits on campaign financing are left, the doors for institutional corruption will be thrown wide open.  Candidates will spend even more time chasing money, mostly soliciting funds from large, non-constituent individuals and corporations.  Most of these individuals are heads of corporations whose special interest is their bottom-line profits and not the interests of the “47%.”

Fred Wertheimer is President of Democracy 21. It is a non-partisan group that works to eliminate the undue influence of big money in the public arena.  He agrees with me that big money corrupts our public institutions. In a press statement on February 19, he said that the

“[A]ggregate limit on contributions by individuals is necessary to prevent circumvention of the limits on contributions to candidates and political parties and the prohibition on federal officeholders soliciting huge corrupting contributions.”

And further, if the Supreme Court either completely guts or weakens campaign financing, this decision

“…would open the door to $1 million and $2 million dollar contributions from an individual buying corrupting influence with a powerful officeholder soliciting these contributions, and with the political party and federal candidates benefiting from these seven figure contributions.”

I believe that it is the local constituent who should be influencing their representatives.  Not corporations. Not big money. And not the 1% at the top of the income ladder who do not live or experience the lives of the people who live in each of our communities.

I am one of the 85% of Americans who view Congress unfavorably because of what they have NOT been doing for people’s lives. Like allowing funds for critical domestic programs to be cut due to the budgetary stalling and delays of the Fiscal Cliff and Hurricane Sandy debates and resulting Sequestration that now looks like it will become reality this coming Friday. Like delaying passage of the Violence Against Women Act (VAWA) from being reauthorized for over two years (which, may change tomorrow when and if the House FINALLY votes on the Senate-passed VAWA Act of 2013).  Like talking about but not taking any comprehensive action, so far, to deal with violence and gun safety (for more information on this gun safety issue, read my blogs here and here).

No, I don’t trust the US Supreme Court.  And no, I do not trust Congress. All because of the influence of money on the decisions the do and do not make.

Institutional Corruption is a problem.  We need to reduce that corruption.  We need to empower the small donors.  New York City, as well as Los Angeles and San Francisco have done this.  And in a plan put together by Brennan Center for Justice at New York University School of Law and Democracy 21, we could do the same thing as well across the country. Look at the plan and then lobby your legislator, even if you don’t trust him or her. Vote for candidates in the future who pledge to listen to their constituents and not to big money.

This will take a long time.  But it is necessary. Then and only then do I believe that we can and will be able to trust our elected officials to truly represent us and our concerns.

For More Information on Institutional Corruption

For more information, watch the video below. In this 2009 presentation, Lawrence Lessig defines institutional corruption.  He then discusses the probable effects of this undue influence of money (broadly defined) not only on elected officials but its effect on other institutions, such as the EPA and medical research.

January 17, 2013

Message from VP Joe Biden on Gun Safety

I received an email this morning from Vice President Joe Biden that he wrote yesterday, January 16, 2013 after President Obama announced his Gun Safety Plan called “Now is the Time to Do Something About Gun Violence.”  Here’s the message with his Call to Action:

White House Logo

Hello —

Today President Obama announced a plan to help protect our kids and communities from gun violence. You’re going to hear a lot about it, but I wanted to make sure you got a chance to get the facts, straight from me.

After hearing from Americans from across the political spectrum, we decided to focus on some key priorities: closing background check loopholes, banning military-style assault weapons, making our schools safer, and increasing access to mental health services.

The ideas we sent to President Obama are straightforward. Each of them honors the rights of law-abiding, responsible Americans to bear arms. Some of them will require action from Congress; the President is acting on others immediately. But they’re all commonsense and will help make us a little safer.

Now is the time for all of us to act.

Read about the events that brought us to this point, learn about the plan we’ve proposed to help protect our kids, and then add your name in support to help build momentum for this plan.

Here’s what we’ve put together:

We’re calling for requiring background checks for all gun sales and closing the loopholes that allow dangerous individuals to make their purchase without going through one of these checks.

We’re asking for a new, stronger ban on military-style assault weapons and high-capacity magazines that allow a shooter to fire dozens of bullets as quickly as he can pull a trigger. And we’re asking Congress to help protect law enforcement by make it illegal for members of the public to possess armor-piercing bullets.

We’re going to give law enforcement more tools and resources to prevent and prosecute gun crimes, and we’re going to end the freeze on gun violence research that prevents the Center from Disease Control from looking at the causes of gun violence.

We’re calling on Congress to help make schools safer by putting up to 1,000 school resource officers and mental health professionals in schools and ensuring they have comprehensive emergency management plans in place.

And we’re going to increase coverage so that students and young adults can get access to the mental health treatment they may need.

We know that no policy we enact or law we enforce can prevent every senseless act of violence in our country. But if we can save the life of even one child, we have a deep responsibility to act.

Now is the time to come together to protect our kids. Learn about the plan, then add your name alongside mine:

http://www.whitehouse.gov/now-is-the-time

Thanks,

Vice President Joe Biden

 

January 16, 2013

We Can Do It! Alice Paul and a New White House ERA Petition

If she was alive today, Alice Paul would be 138 years old.  Ms. Paul was born on January 11, 1875. After the 19th Amendment to the US Constitution granting women the right to vote was ratified in 1920, many of the suffragettes thought women’s rights were won.  Alice Paul disagreed, saying that until women were fully written into the US Constitution, our rights would always be at risk and we could (and would) be treated as second-class citizens.  In 1923, Ms. Paul introduced and then continued working for passage of what became known as the Equal Rights Amendment (ERA) for the rest of her life.

The ERA passed Congress in 1972. It has not yet been ratified by three-quarters of the state; it needs three more states to sign on.  It is short but to the point:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

In honor of Alice Paul’s birthday, a group of women supporting the Madison Amendment or “three-state” approach for passage of the Equal Rights Amendment started a second petition on the White House petition website.

I recently wrote about the ERA and the first of these petitions. Unfortunately because of the lack of organization surrounding the first petition, it is highly unlikely that it will receive the 25,000 signatures required by its January 17 deadline in order to get a response from the White House.

This new petition, in contrast, looks like it has a much better chance of reaching the 25,000 signature threshold.  In the first 6 days of this petition drive, there have been over 4800 signatures received.  That’s an average of 800 signatures each day.  With 25 days left (deadline is February 10)—and if the momentum keeps up—we could make it.  Between now and then we need to average a total of 840 additional signatures each day.  Your help is needed.

So I am once more asking people to sign on and tell President Obama that you want him to:

Vigorously support women’s rights by fully engaging in efforts to ratify the 1972 Equal Rights Amendment (ERA).

Once you sign the petition, please let your friend, family members, and colleagues know about the petition and ask them to sign as well.  Like the WWII poster says, “WE CAN DO IT!”

We Can Do It poster

“We Can Do It!” poster created by J. Howard Miller for the War Production Co-Ordinating Committee during World War II and later associated with “Rosie the Riveter”

January 6, 2013

White House Petition for the ERA

The Equal Rights Amendment was originally proposed by Alice Paul in 1923 after the 20th Amendment giving women the right to vote.  It has not yet become part of the US Constitution. It is time to put pressure on the White House to help get women included in our premiere document of rights.

What is the full text of the ERA? Here it is:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

What does the ERA do? Basically, it clarifies the legal status of sex discrimination in the courts and would raise women’s legal status to the same level of constitutional protection that men and people of color receive.

The ERA was introduced into Congress every session since 1923 until it passed in 1972.  Amendments to the Constitution require three-fourths of all states to ratify the amendment before it becomes part of the US Constitution.  It currently sits three states shy of reaching this threshold and has been at that point since June 30, 1982, the date by which Congress said all state ratification had to occur.

Since 1982, the ERA has been reintroduced in every session of Congress. In the 112th Congress (2011-2012), two sets of ERA ratification bills were introduced. S.J.Res. 21 (lead sponsor, Senator Robert Menendez, D-NJ) and H.J.Res. 69 (lead sponsors, Representative Carolyn Maloney, D-NY, and Representative Judy Biggert, R-IL) is the bill  that would have started the process all over from the beginning.

A second bill introduced by Representative, now Senator, Tammy Baldwin (D-WI)—H.J.Res. 47—is a much simpler bill. It would remove the ERA’s ratification deadline and make it part of the Constitution when three more states ratify. There are 15 states that have not ratified the ERA. They are Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.

This route, often called the Madison amendment route or the three-state process, follows the 203 year route taken by the 27th amendment. That amendment was originally introduced by James Madison in 1789 as part of package of the proposed Bill of Rights amendments. There was no time limit placed on passage and in 1992 this amendment became the 27th amendment to the US Constitution.

Legal opinion supports the conclusion that the Constitution does not impose a time limit for ratification of amendments because states only ratify the text of the amendment, not any proposing clauses.  The time limit placed into the ERA bill passed in 1972 and the extension passed in 1979 was one of the proposing clauses. The other proposing clause states that the amendment goes into effect two years after the ERA is ratified by three-quarters’ of the states. With the passage of the Madison Amendment 203 years after it was first proposed, this argument against sun-setting an amendment was strengthened.

Both sets of ERA bills failed to pass once again in the 112th Congress and are expected to be reintroduced in the 113th Congress. As I previously said, getting three more states to ratify the ERA using the Madison amendment route is a shorter and somewhat easier route to place women in the Constitution and to afford them the constitutional protections that men and people of color receive.  President Obama, using his bully pulpit can help make this happen.

President Obama has created a petition on the White House website. He has said that he will respond to any petition that receives 25,000 or more signatures within a one-month period. There is currently a petition on the website calling on President Obama to “Support and Advance the Equal Rights Amendment, originally introduced in 1972.” The petition deadline is January 17,2013.

Here is the link to the petition. Please click, sign in to the website (you will need to create an account if this is your first time here), and then add your name to the petition.

https://petitions.whitehouse.gov/petition/support-and-advance-equal-rights-amendment-originally-introduced-1972/JPFwT541

And once you sign the petition, ask your friends, family, and colleagues to sign as well. If we can get this to go viral, then President Obama will respond.

Thanks.