Arizona lawyer—and our arts competition music winner—Stu De Haan made a devilish argument about free speech and freedom of religion.

Arizona lawyer—and our arts competition music winner—Stu De Haan made a devilish argument about free speech and freedom of religion.

If politics and religion are two topics we should never discuss in polite company, the Phoenix City Council seems like the ideal place to address both.

This week has seen a firestorm of hellish indignation over the news that a group of satanists petitioned the Phoenix city clerk’s office to offer the “invocation” at an upcoming City Council meeting. After reviewing the request and the fact that municipalities cannot be in the business of “picking winners and losers” when it comes to deities, it OKed the request.

As Phoenix City Attorney Brad Holm said in a statement, “Consistent with the U.S. Supreme Court’s direction, the city cannot dictate religious viewpoints or the content of a prayer.”

Imagine that—following the law.

Cue the choirs, celestial and otherwise.

Read a news story about the devilish quandary here.

To the surprise of almost no one, there is not unanimous agreement with the decision—though the February 17 meeting will likely be standing-room only due to the controversy.

One Phoenix councilman said it’s “a dumb idea,” and another insisted the Satanists should have been denied and simply let them sue. Knowing there’s often fire where there’s smoke, media are all over this. Here’s a video news story:

I confess I’m surprised by the uproar. I’ve been in that chamber many times, and I’m pretty sure I’ve spotted Lucifer at numerous zoning hearings. And who hasn’t smelled the distinct odor of sulfur as countless variance requests are rubber-stamped? Or maybe I need to get my eyes and nose checked.

Wherever you stand, this is a fantastic lesson in the First Amendment, playing out right in the heart of our state. You’re welcome, America.

Stu De Haan and his instrument in Arizona Attorney Magazine, May 2015.

Stu De Haan and his instrument in Arizona Attorney Magazine, May 2015.

And yes, there is an even more intimate legal angle to this. Spokesman and legal adviser to the Satanic Temple (and a “Satanic Templar”) is Arizona lawyer Stu De Haan. And here at Arizona Attorney Magazine, we are a big fan of him—and his music.

Those with good memories will recall that Stu was the winner in the Music category in our 2015 Creative Arts Competition. He appeared on our cover and inside pages, and we featured “Don’t Get Stuck in a Roadside Ditch” online. That song is by his band Scar Eater, “a five piece post-hardcore band from Tucson.”

As Stu described his song, “This song is about facing fears, shedding one’s negative past, and embracing an aggressive but positive outlook on the inevitable difficulties of life.”

You can read more what I wrote about Stu, and listen to “Roadside Ditch,” here.

Arizona Attorney Magazine May 2015 cover arts competition winnersA final thought: It bears noting that Stu and his fellow Satanic Templar Michelle Shortt are traveling north from Tucson to deliver an invocation—and make a point, I suppose—because the Tucson City Council gets to the work of its meetings without bothering with a prayer of any kind. No muss, no fuss.

Imagine that—focusing on governing.

As we head into our Friday, please enjoy “Sympathy for the Devil” by the Rolling Stones. “Pleased to meet you; hope you guess my name.”

Have a terrific—and free-speech-filled—weekend.

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Thomas Jefferson Center 1st Amendment container indiegogo

Combining art and the First Amendment may be a natural match. But making it mobile? That may ensure the amendment of first in people’s minds.

I just came across a new crowdfunding venture, and this one creates a mobile and democratic monument to the First Amendment.

That could be a worthy follow-up to the installation of Arizona’s Bill of Rights monument near the state Capitol. This new effort would put the monument in a shipping container, which could be re-sited at will. It also would allow and encourage input by passers-by, who could add their own messages to the structure.

Thomas Jefferson Center 1st Amendment container indiegogo logoYou can read more about the campaign here. And here is a video from the organizers.

Board members for this initiative include journalist Dahlia Lithwick and UCLA Law Professor Eugene Volokh.

There are 36 days left in the effort. And if you’ve never viewed a crowdfunding site, take a look. It’s a process that provides some payback—large or small—to funders.

The American response to hateful words is traditionally more words. Is there a better way?

The American response to hateful words is traditionally more words. Is there a better way?

This spring saw a sometimes-troubling dialogue about campus speech erupt. Some of that dialogue was spurred by videotape catching the racist chants of members of the Sigma Alpha Epsilon Fraternity at the University of Oklahoma.

Arizona Republic columnist E.J. Montini wrote about the incident, and some of the reactions he’s gotten.

In it, Montini says he supports the school’s expulsion of students who perform that way. But he got pushback from an ASU student who said all speech should be permitted—even the offensive speech.

First Amendment challenges have never been more challenging.

I’ve written before about the difficulties a free society faces where speech is concerned. And the newest skirmishes remind me of a book I’ve touted in the past: The Harm in Hate Speech, by Jeremy Waldron.

In these United States, we have been taught to believe that (pretty much) all speech should be unregulated. But Waldron points out that the American view is not the only possible course.

Maybe the American view is correct. Maybe the only antidote to horrific speech is simply more speech, as if the latter will shout out the former.

But other nations—even many who have a rule of law we respect—take a decidedly different tack. Their approaches are founded on a belief that the public utterance of hateful speech can cause harm, even if it is not paired with criminal behaviors.

Harm in Hate Speech book cover Jeremy WaldronThose nations could be wrong, and “speech codes” find little support in the United States. But I wonder what would happen if the next time an incident of hate speech makes the national headlines, those in the majority culture took a rhetorical pass and remained silent for a bit. It might be enlightening to hear only from people of color on the topic of how to address hate speech.

Who knows? Their response may be the same, as we are all steeped in an American culture that insists, “I condemn your speech, but I will defend to the death your right to say it.”

But maybe not. Maybe the response will be more nuanced than simply calling for tolerance and more speech.

It is far too easy for those who are never affected by hate speech (except to find it vaguely distasteful) to insist that such utterances are a sad but necessary part of our republic. As I’ve written before, it is offensive to maintain a position that requires people in minority communities to carry the burden of daily insults so that an American sense of fair play can by upheld.

Sure, everyone’s opinion on hate speech is welcome. But I’d prefer if we gave prime position to those opinions that arise from minority communities. Does hate speech simply “come with democracy”? Or can words alone be such a debilitating harm that they should be addressed and maybe curtailed in some way?

What do you think? Write to me at arizona.attorney@azbar.org.

David Bodney, of Ballard Spahr, chairs the upcoming ABA Forum on Communications Law

David Bodney, of Ballard Spahr, chairs the upcoming ABA Forum on Communications Law

One thing that always draws me in to speakers and conferences is their occasional attempt to offer some hands-on learning.

That is one of the pluses I spotted in the upcoming ABA Forum on Communications Law. The 20th annual conference will be held February 5-7, 2015, at the Fairmont Scottsdale Princess.

Besides that interactivity, I also was pleased to see Arizona’s own David Bodney is the conference chair. Whether you’re a lawyer or a journalist (or both), you know David is a national leader on the topic of media and communications law.

Back to that interactivity.

Among other things, the conference will include a one-day “Media Advocacy Workshop” on February 5. I understand that in the hands-on advocacy training, participants in small groups will focus on media-law problems and will:

  • Argue a motion to quash a subpoena to a blogger in a civil case based on the First Amendment
  • Argue a summary judgment motion involving an invasion of privacy claim based on a leaked sex video and a defamation claim based on comments by an anonymous blog poster
  • Review a television story and related social media promotions based on public records and confidential sources

This is relevant, timely stuff, which would benefit attorneys and maybe even journalists.

Another highlight is the keynote speaker, Mary Beth Tinker, a plaintiff from the landmark students’ rights case Tinker v. Des Moines Independent School District, which involved the freedom of speech.

You can view the conference brochure here.

Early conference registration is December 15; the deadline to register for the Workshop is January 30, 2015.

I plan to attend parts of the conference (and hopefully the workshop too). I’ll let you know how the hands-on learning goes.

Knight Fdn First Amendment bullhorn cropped

This week, let’s hear what people are thinking. In the next three days’ posts, I’ll share data from recent surveys.

The first comes to us from the Knight Foundation, which sponsored a survey of young people on their views regarding the First Amendment. Happily, they are generally supportive of the basic right (thank goodness for small wonders). In fact, they may be more supportive of it than are adults.

That is actually a reversal of views that have been expressed over the past decade. The Knight folks optimistically indicate that “increased digital news consumption and classroom teaching are driving the change.” The national study of 10,463 high school students and 588 teachers was released last month, on Constitution Day.

The Knight folks continue:

“[The survey] found only 24 percent of students said that the First Amendment goes too far in guaranteeing the rights of religion, speech, press assembly and petition. In comparison, a Newseum Institute survey that tracks adult opinions on the first amendment showed that 38 percent of adults feel this way. This marks a shift: 10 years ago students (35 percent) were more likely than adults (30 percent) to say that the First Amendment goes too far.”

The report also provides great insight into impressions of privacy and surveillance.

Below is an infographic based on the report. And the whole report is available for downloading here.

Knight Fdn First Amendment infographic

Is the First Amendment really implicated in the Donald Sterling/LA Clippers case? (Um, no)

Is the First Amendment really implicated in the Donald Sterling/LA Clippers case?

Is there any amendment more misunderstood than the First?

As the brouhaha over LA Clippers team owner Donald Sterling heated up this month, you also may have engaged in a face palm. Why? More and more commentators and random commenters alluded to whether Sterling’s “First Amendment rights” were violated when the NBA issued its punitive edict.

Can we please recall that the First Amendment protects your speech against government interference? Yes, organized sports in this country may have received government subsidies, and they may have benefited from special consideration by government agencies. But the NBA is not the government. And that’s the specter the First Amendment protects against.

I was pleased to read a CNN op-ed that opens with that very point. And it adds to the pleasure that the writer, Marc Randazza, is an Arizona-admitted lawyer. (Yes, he’s admitted elsewhere too.)

Randazza doesn’t stop with the First Amendment discussion, though. He jumps into the controversial question of the propriety of the NBA’s lifetime ban. Not to hide the ball, Randazza thinks it is inappropriate. Why?

“Start with illegal. In California, you can’t record a conversation without the knowledge or consent of both parties. The recording featuring Sterling and V. Stiviano may be the result of a crime. Once she gathered this information, someone leaked it (she denies it was her) — and it went viral. This is where I think things went morally wrong.”

Marc J Randazza

Marc J. Randazza

“We all say things in private that we might not say in public. Sometimes we have ideas that are not fully developed—we try them out with our closest friends. Consider it our test-marketplace of ideas. As our ideas develop, we consider whether to make them public. Should we not all have the freedom to make that choice on our own?”

“Think about what his public character execution means. It means that we now live in a world where if you have any views that are unpopular, you now not only need to fear saying them in public, but you need to fear saying them at all—even to your intimate friends. They might be recording you, and then that recording may be spread across the Internet for everyone to hear.”

Read Randazza’s whole commentary here.

Sterling has yet to respond publicly to the NBA’s decision. It’s not hard to imagine that his counter-gambit could be a lawsuit, which would stretch out to time immemorial the 15 minutes of this scandal’s life.

A hat tip to Unwashed Advocate, for pointing out the Randazza op-ed. UA has good stuff and is worth a follow. To get started, be sure to read and enjoy his blog’s “rules of engagement.”

So what do you think about the penalty levied by the NBA? Over the top? Potentially a violation of its own rules? Do you anticipate a lawsuit, and on what grounds? Write to me at arizona.attorney@azbar.org.

Who doesn't cheer the First Amendment? (Well, most of us do.)

Who doesn’t cheer the First Amendment? (Well, most of us do.)

Have you heard the phrase unconference?

It’s been applied—or maybe misapplied—to almost any gathering organized by participants rather than by hosts. It’s a way to have a professional conference without all the trappings that often get in the way of true communication.

We’ve all been to an unconference, of course. When you emerge, haggard and exhausted from a hotel conference room seminar and sink with happiness into a comfortable lobby chair, and engage in the best conversation of the day with a fellow wanderer, you’re at an unconference.

When you follow up with a speaker and get her to engage on the issues facing you and your practice (unaddressed in the formal presentation), you’ve created your own unconference. You have grasped the sinews of the conference, which had been organized to the tiniest detail, and bent them to be responsive to you. When you do that, and when you and your conversant both come away richer, you’ve become an unconference aficionado.

I recall hearing about the concept at—of course—a conference a few years ago, where a Tennessee bar leader urged attendees to think creatively. And I’ve been intrigued ever since by how we all learn, really learn, what we need to learn. And that learning happens only occasionally in a seminar room.

1st Amendment Gallery SF logo

A modern logo for a traditional concept

A few weeks ago, I participated in an unconference in the back of a cab. As I shared a ride from the airport into the San Francisco NABE conference, I had a great conversation with a Bar colleague whom I only sometimes get to converse with. We work close by, but the day-to-day always takes precedence over the leisurely chat. In the cab’s enforced lethargy, I was able to gain valuable insight into his thoughts and vision for the organization.

The ensuing conference itself was great, but its high points were almost all marked by conversations like that—brief, shining moments of genuineness and clarity. Who could wish for better?

As it is Change of Venue Friday, I must share one odd view I got during that cab ride (but it’s related, I promise). As we spoke, I looked out the taxi window and was surprised to see a sign bearing a legal term. “First Amendment,” it proclaimed. But was it a dive bar, a political office, a nostalgic cry? (Its retro font immediately put me in mind of the TV show Cheers. Young readers, ask someone old what that means.)

I snapped this bad photo:

The First Amendment Gallery, San Francisco

The First Amendment Gallery, San Francisco

But it wasn’t until later that I discovered the meaning on the organization’s website:

“1AM, short for First Amendment, is a gallery dedicated to street and urban art. Monthly themed exhibitions will feature artists from San Francisco to around the world. Seeing is believing, so come witness the 1AM movement.”

Read more about them here.

And they’re on Facebook and Twitter too.

So on this Friday, when I consider conferences and the people who transform them, enjoy looking at some art of people wholly dedicated to all the enumerated rights, including that to peaceably assemble.

When I’m next in San Francisco, I know I will return to 1AM (despite the font choice).

Have a communicative weekend.

law-schoolWhat is your law school’s bar-passage rate?

If you’ve been out of school more than a few years, you probably don’t track that kind of data. But what would you guess? 75 percent? 80 percent? Even better?

What if you discovered your school’s bar failure rate was 93 percent?

I know; my jaw dropped too.

You may have seen this story via the ABA Journal, which reported on a lawsuit in which the Southern California Institute of Law (its real name) sued over the California Bar’s requirement that the school divulge its bar-passage rate for the past 10 exams (required of all California-accredited schools).

(Sidebar: On its website, the school says that Ninth Circuit Chief Judge Alex Kozinski was its 2013 commencement speaker. Can anyone report what he said in his address?)

I had to smirk when I read about the school’s attempt to claim a First Amendment violation:

“The school claims it is being forced to publish a government message with which it disagrees, violating its free speech rights. The school says it disagrees with the ‘ideological belief that a law school should be judged by the passage rates of its graduates.’”

Very high-minded of them.

I think any lawyer who has ever practiced for even a day may agree that there is not a direct correlation between law school classes and successful practice, or even (necessarily) between the bar exam and practice (except, of course, that you need to pass the exam to practice).

But in an age of law school transparency efforts (like this one), prospective law students (read consumers) deserve as much information as possible. As alumni from even highly performing schools graduate and face bleak job prospects, a school’s impish insistence on its own free-speech rights is almost insulting.

And no, despite questions some folks have raised, the school’s lawyer is not one of its own graduates (which could have been problematic on UPL grounds). But I was pleased to see that George Shohet offices right in Venice Beach, where I recently visited; I should have stopped in to visit the Loyola Law School grad, who was admitted in California the same year I was. (I pointed out here how cool a Venice law office could be.)

Thanks to Above the Law for providing a link directly to the judge’s order denying the relief the school sought. You can read what ATL calls a judicial “smackdown” here. (And you’ve got to love the caption, which ends with the names of the defendant Bar examiners: “Southern California Institute of Law v. Archie ‘Joe’ Biggers et al.”)

Where do you come down on the issue? It may be a no-brainer that a school cannot hide this information. But when it comes down to it, what data really mean something to you when you consider a lawyer’s credentials?

A tough and sometimes controversial job: The Jury, by John Morgan painted in 1861).

A tough and sometimes controversial job: The Jury, by John Morgan (painted in 1861).

Juries simply fascinate us—like an uncle who is typically wise but occasionally demented. All in all, though, he’s the one we go to when we need advice.

Recently, a slew of material has flooded my way regarding juries, good and bad. And I could use your help.

I’ve been collaborating with an attorney on an article about cameras in the courtroom, and how they may affect jurors and other participants. We are covering a lot of ground, but it still would be nice to land on an insightful and local angle that illuminates the topic in new ways.

What do you think of cameras in the courtroom? And more specifically, what angle or hook would lead you to read a story that has percolated nationwide for decades?

Meanwhile, a colleague shared a dialogue he had heard regarding state laws that prohibit jurors from making money (from books or interviews) after a trial. The question arose during Florida’s prosecution of George Zimmerman in Trayvon Martin’s death. But after sitting through months of an Arizona trial of Jodi Arias, we wonder about the same thing here.

We are all accustomed to laws denying convicted people the opportunity to profit from their own stories. But restrictions on jurors are less often discussed; usually they come to light after major prosecutions, such as those against O. J. Simpson or the Menendez brothers. A recent story details what a Florida legislator proposed in the panhandle state. The law:

“would make it a third-degree felony for jurors to sell their stories within 270 days of serving on a jury. State Rep. Scott Randolph, D-Orlando, said the law would also apply to media organizations who try to pay jurors for their stories. It would not prohibit jurors from speaking freely without compensation or payment.”

The news squib is here. So under the law jurors would be free to speak with the trial’s lawyers, but could not sell their stories. What do you think?

Judge Sherry Stephens presided over the Jodi Arias trial, which involved issues of juror speech and cameras in the courtroom. Here, she urges the jury to continue deliberating after the jury delivered a message that they were deadlocked on a penalty for Arias, May 22, 2013. (AP Photo/The Arizona Republic, Rob Schumacher, Pool)

Judge Sherry Stephens presided over the Jodi Arias trial, which involved issues of juror speech and cameras in the courtroom. Here, she urges the jury to continue deliberating after the jury delivered a message that they were deadlocked on a penalty for Arias, May 22, 2013. (AP Photo/The Arizona Republic, Rob Schumacher, Pool)

Meantime, you may recall the story of the judge who put a gag order on jury members, and it affected their speech, to anyone, whether or not for pay. The article was from way back in 1998, ancient history. But I do not know if the unique order, which was upheld by the Fifth Circuit, was ever overturned.

It is a curious idea, the one where judges feel the need to protect the nebulous “judicial system,” even if it infringes on First Amendment rights. How many jurors expect that a do-not-talk order will continue for days, months and years after a trial is complete?

(A more rare instance—in which a juror is retained as a trial consultant in a retrial of the original case—is discussed here. Also examined is what’s known as the Juror Integrity Act.)

Another article from the early 2000’s explains how a gag order was enforced until after the appeals. And it overtly affected both the media and the lawyers.

Here is a nice summary of the law on the topic of juror speech.

Both of these topics—cameras in the courtroom and juror speech—implicate substantial constitutional issues. When the right to free speech runs hard against the right to a fair trial, the second should win. But the facts may not be so bald, and judges and legislators must craft solutions that aid both.

Do those topics interest you? If so, what magazine story approach would cause you to say, “Wow. That’s surprising”?

Flip off: All (protected) speech may not be for everyone.

Flip off: All (protected) speech may not be for everyone.

Where does protected speech end and obstruction of justice begin?

That has been on my mind since the 1980s, when I would regularly drive the many hundreds of miles of the New York State Thruway system.

It was not uncommon then (and probably the same today) that you would see State Trooper vehicles parked on a grassy berm, with a radar gun trained on oncoming traffic.

If you were fortunate enough, that radar gun was pointed the other way, aimed toward the opposite lane of vehicles. And so you, the lucky, were presented with a question: Should you flash your high-beams at the cars headed toward you, warning them that a speed trap was around the next bend?

If conditions were right (i.e., no massive curves that made oncoming cars invisible), I almost always opted to flash my lights. (Judge how you may.)

Please don’t remind me that speed may contribute to accidents and worse; I’m aware of that. But on most modern freeways (even in the 1980s) engineered for substantial speeds, 55 mph was a drowsy punishment. It is simply too easy to drift above that limit. And the costs associated with a ticket (including insurance costs) were (and are) substantial.

Back then, it was very common for many drivers to use their own headlights in aid of oncoming drivers. Especially appreciative appeared to be the semi-truck drivers, who would flash their thanks back to you.

Early social media, I suppose you could call it.

Were the troopers pleased at our community communication? Probably not. But they appeared to know what the First Amendment meant.

More recently, some police officers have been responding to headlight behavior with anger and the heavy hand of the law. Here is a story about a man arrested for obstruction of justice for flashing his lights as a warning.

The story opens:

“Missouri resident Michael Elli wanted to let others on the road know to slow down because they were about to drive into a speed trap, so he did what many kindhearted souls do: He flashed his headlights as a warning.”

“Police didn’t take at all kindly to warnings of this 21st century Paul Revere. They flashed him a ticket of his very own for obstruction of justice. Prosecutors eventually dropped the case, but Mr. Elli has now filed a class action lawsuit against the city because he says that the city retaliates against drivers who exercise their right to free speech–and that the government is trying to prevent it because it doesn’t like the message.”

Maybe the arrest came because so few people will flash oncoming drivers these days. My own unscientific poll of colleagues found that a majority did not even know what the practice meant. So if people are unaware of the flash’s meaning, why would they participate?

So perhaps Mr. Elli is one of the few remaining in that helpful herd. Whereas in years past police would have had to cite hundreds of drivers for the practice (and so wouldn’t), they now see the civic activity rarely, and so feel empowered to smite it.

But how different is Mr. Elli’s behavior, really, than that of some mainstream news organizations?

Every day, the Tucson Sentinel updates its online page of “Radar Van Locations.” You can see a screen-shot below; it’s very detailed. I doubt police like that page, but they appear to understand that it is protected by the First Amendment. How is the activity of a sole driver any different?

Radar Van Locations Tucson Sentinel

“Radar Van Locations” via the online Tucson Sentinel.

Finally, here is an indication that communications attitudes may be changing—when it comes to flipping off a police officer.

“A police officer can’t pull you over and arrest you just because you gave him the finger, a federal appeals court declared Thursday. In a 14-page opinion, the U.S. Court of Appeals for the 2nd Circuit ruled that the ‘ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.’”

The man had been cited for “disorderly conduct.”

Call me old-school, but I must say activity like that is pretty distasteful. Police have a very difficult job, and it cannot always be fun being the professional authority figure. But the court’s reasoning may be sound.

It is interesting that the middle-finger incident occurred when the driver saw a police officer holding a radar gun. (And I chuckled at the fact that the charges were dismissed on “speedy trial grounds.” Get it?) That was the extent of their interaction, but radar may tend to have that effect on people; it just seems, I don’t know, unfair somehow (I know, that’s not a legal basis, but a court sitting in equity would get it!)

Would the police have cited the driver if he had flipped off an unmanned radar camera? (That must happen dozens of times every day.)

What do you think? Do people have a constitutional right to convey information to their fellows, as long as they do not otherwise interfere with police activities?