January 11, 2012

Sharia Law: Constitutional Ban or Bane?

US Court of Appeals, Tenth Circuit: Awad v. Ziriax

On November 2, 2010, Oklahomans voted on a proposed constitutional amendment. The final ballot measure read as follows:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teachings of Mohammed. [Emphasis the court’s.]

The amendment passed with a 70% majority vote. The final step to becoming law is certification of election results by the State Election Board, a procedural process to be completed the Tuesday after election Tuesday.

To paraphrase the movie title, If it’s certification Tuesday, this must be Belgium, because it certainly isn’t Oklahoma.

Two days after the people spoke, Muneer Awad, Executive Director of the Oklahoma Chapter of the Council on American-Islamic Relations, sued the members of the Oklahoma Election Board to prevent them from certifying the election results. The District Court granted a temporary restraining order, then a preliminary injunction. This appeal followed.

The Court of Appeals found that Mr. Awad had standing to challenge the constitutional amendment, that the issue was “fit for judicial review” and that, even applying a strict standard of scrutiny, Mr. Awad “is likely to succeed on the merits.” The problem the court could not ignore: “The amendment bans only one form of religious law—Sharia law.”

Quoting language from an earlier Ninth Circuit decision, the court put it this way: “[W]hen a law that voters have approved ‘affronts the federal Constitution—the Constitution which the people of the United States themselves ordained and established—the court merely reminds the people that they must govern themselves in accordance with the principles of their choosing.’”

For better or worse, we’re stuck with the rules of the game we created. The Constitution protects everyone. Either it will continue to make this a great nation where freedom reigns, or it will protect freedoms that will be our undoing.

We’ve gotten the balance right for over 200 years. There’s no reason to think we can’t do it for another 200, notwithstanding the latest challenges to our way of life and the fear that so often overshadows the debate.

Posted by Mark A. Eskenazi | | Email This Post | Comments (0)

Posted In: Brave New World , Culture War , Discrimination , Religion , Unconstitutional

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December 20, 2011

Free Speech: Twitter Twits

US District Court for the District of Maryland: US v. Cassidy

Just how much First Amendment protection do Bloggers and Tweeters get? Apparently as much as Colonists got when they posted announcements on public bulletin boards. Which, all things considered, is probably the right result since, as the court notes, “A Blog is like a bulletin board, except that is erected in cyberspace rather than in one’s front yard,” and Twitter is likewise a kind of bulletin board, only one which sends the posting from one Colonist’s bulletin board to another, if the other wants to receive it (Twitter subscribers have the ability to restrict certain Tweets or Tweeters).

Newman (from Seinfeld) put it this way: “When you control the mail, you control information.” The courts generally embrace the Newman postulate in these terms: When you control content (with limited exceptions), you unlawfully control public discourse and violate the First Amendment. Either way, controlling content or information is, in most cases, unacceptable in a free society.

Back to bulletin boards and Mr. Cassidy: Cassidy was indicted under the federal stalking statute for Blogging, Tweeting and DM’ing (direct messaging) with “intent to harass and cause substantial emotional distress to a person in another state.” His target, Alyce Zeoli (or A.Z.), was the Supreme Head of a Buddhist Sect known as KPC. Cassidy and A.Z. had some brief history, both personal and professional, which did not end well. From that point on, Cassidy used cyberspace to launch a crusade against A.Z. which she and the FBI thought ran afoul of the federal stalking statute.

Not as applied to this case, says the court. And the nature of the electronic communication is significant:

Whether couched in terms of the Internet or Colonial bulletin boards, there is one consistent aspect of both eras. One doe not have to walk over and look at another person’s bulletin board; nor does one Blog or Twitter user have to see what is posted on another person’s Blog or Twitter account. This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed to another person, and that difference...is fundamental to the First Amendment analysis in this case.

The decision chronicles a handful of the offensive, weird and questionable Tweets and Blogs of Mr. Cassidy. But because these communiqués could be ignored or restricted, A.Z. could not rightly claim that she was being harassed. The Tweets and Blogs, insulting and even outrageous, did not fall into the category of unprotected speech (obscenity, fraud, true threats, incitement, or speech integral to criminal conduct). Moreover, A.Z. is a well-known religious figure who was the subject of a critical non-fiction book called The Buddha from Brooklyn, and “although in bad taste, Mr. Cassidy’s Tweets and Blog posts about A.Z. challenge her character and qualifications as a religious leader.” Fair game in a free society. As such, the restrictions attempted in this criminal matter would have to survive strict scrutiny.

They did not.

According to the court, that portion of the stalking statue relied on to indict Cassidy for harassment “amounts to a content-based restriction because it limits speech on the basis of whether that speech is emotionally distressing to A.Z.” The court went on to say that “A.Z. had the ability to protect her ‘own sensibilities simply by averting’ her eyes from the Defendant’s Blog and not looking at, or blocking his Tweets.”

The statute was unconstitutional as applied and the indictment was dismissed.

Free speech can be uplifting, inspiring and profound, but in the free-for-all where we live, it also means protection for the vulgar, insensitive and crude. We get to choose who to follow and who to ignore, not the government.

The alternative is unthinkable—nay, unspeakable.

Posted by Mark A. Eskenazi | | Email This Post | Comments (0)

Posted In: Brave New World , Speech , The Internet , U.S. District Court , Unconstitutional

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April 5, 2010

Sixth Amendment Right to Counsel: No Talk, Perp Walks

District of Columbia Court of Appeals: Kelvin L. Martin v. United States

Kelvin Martin was convicted of assaulting US Park Police Officer Ross Dykman after he was halted in traffic because his front seat passenger was drinking from a bottle in a paper bag. After refusing to surrender the bag at the officer’s request, Dykman reached into the vehicle to commandeer the bag and examine the contents himself. Martin’s passenger had other plans, however, and yelled “Go!” to Martin, who, in a flash of bravado and really bad judgment, took off in his Suburban, dragging Officer Dykman along for the getaway as he hung from the open window. During the “wild ride” Dykman drew his service revolver, fired several shots hitting the passenger before he fell from the vehicle. Martin was apprehended shortly thereafter. At trial he and his brown-bagging passenger testified that they thought Dykman was a carjacker, having failed to notice his Park Police uniform, badge, name plate, Park Police patch and police equipment belt.

Apparently, the jury didn’t buy Martin’s defense. He was convicted of assault. Given the facts, Martin needed something more substantive to continue the fight.

Martin had testified in his own behalf. His testimony started on Friday afternoon. So too did the cross examination. At 4:45 court recessed for the day. Before leaving, however, the prosecutor requested an instruction to defendant Martin that he not be permitted to talk to his lawyer about his testimony during the weekend recess. Without objection or argument from Martin’s lawyer, the court directed Martin “not to speak to anyone pending the examination on Monday…” This appeal followed. It challenged as unconstitutional the un-objected-to instruction that prevented him from speaking to his lawyer about his testimony.

The DC Court of Appeals agreed, finding that the instruction (the sequestration order) violated Martin’s Sixth Amendment right to counsel and was plain error. Citing Supreme Court rulings that spoke to the issue, the court held that any order prohibiting a defendant from conferring with his counsel during an overnight break, was a denial of the right to counsel. Moreover, defendant need not show he wanted to speak, planned to speak or even thought about speaking to his attorney—he need only show he was prohibited from doing so. Accordingly, the order was reversible error and the conviction was overturned.

While “sequestration orders are appropriate when directed to ordinary witnesses,” they do not fly when applied to criminal defendants. Kelvin Martin has an absolute right to counsel, and implied therein is an absolute right to speak to his attorney during a substantial recess, even about his own testimony. As the court indicated, “the goal of preventing improper influence or witness ‘coaching,’ which suffices to justify lengthy sequestration orders directed at ordinary witnesses, must be pursued by other means when the witness is the defendant in a criminal trial.”

For prosecutors, “other means” are found in the power of cross examination: If a good cross can’t show that a defendant is changing, tailoring, modifying or finagling his testimony after a court recess, then that prosecutor is in the wrong business.

Given the underlying facts and Martin’s seemingly ridiculous carjacking defense, one would think the government could obtain a conviction without any help from the court. And in truth, it probably would have, only prosecutors are so used to simply asking for and receiving sequestration orders that they never stopped to consider the constitutional implications.

In DC, they will from now on.

Posted by Mark A. Eskenazi | | Email This Post | Comments (0)

Posted In: Unconstitutional

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