Let’s talk about boobies

by Molly Tack-Hooper, ACLU-PA Staff Attorney

I think about breasts a lot.  They have been central to both my professional and personal life recently.

For the past two years, I’ve represented Kayla and Brianna, young women who defied their middle school’s ban on the Keep a Breast Foundation’s “i [heart] boobies!” cancer awareness bracelets, and were suspended for wearing the bracelets to school—on the school’s Breast Cancer Awareness Day.

According to the Easton Area School District, the bracelets are inappropriate.  Although it took the school awhile to settle on a precise explanation, eventually the district claimed that the phrase “i [heart] boobies!” was a sexual double entendre because boobies—breasts—are an “inherently sexual” body part.

I beg to differ.

As a breastfeeding mother, half of Philadelphia has now seen my boobs.  Dozens of doctors, strangers in coffee shops.  All my friends.  My whole extended family.  My boss.  None of these interactions was sexual in the slightest.

At their best, my boobs are miraculous.  They dispense milk that is perfectly nutritionally balanced for my growing child.  No cooking, no dishes; my body produces instant comfort food that is warm and ready to go whenever my son gets hungry.

At their worst, they are a source of intense pain, frustration, and embarrassment.  Breastfeeding ain’t always easy, and it can take a hell of a toll on the nipples.  My milk-laden boobs are often lopsided and leaky.  (And don’t even get me started on breast pumping.  Let’s just say I now have a great deal of empathy for dairy cows.)

My boobs are many things.  Sexual?  That’s not high on the list of adjectives I’d use to describe my lactating breasts.

So why would a school tell twelve- and thirteen-year-old girls that breasts are inherently sexual, and an inappropriate topic of conversation, even on Breast Cancer Awareness Day?

The school’s reaction to the bracelets—and its take on breasts, generally—is exactly what the Keep a Breast Foundation is trying to combat with its “i [heart] boobies!” campaign.  The exuberant campaign seeks to start conversations with the bracelets, not only to facilitate the exchange of information about breast cancer, but also to empower young women to feel comfortable talking about their breasts.  It uses the word “boobies”—a term so familiar and comfortable that it’s how many adults teach little kids to refer to breasts—because it’s not clinical.  It’s not scary.  And discussion of breasts should not be the exclusive domain of the health sciences, and it shouldn't be intimidating.  And it certainly needn't be sexual. 

Maybe things would be better if the Keep a Breast Foundation had been around when EASD’s lawyer and its middle school principals and I were growing up.  Maybe then discussion of breasts by judges and middle schoolers wouldn't elicit giggles or admonishment by adults.  Maybe then writing a blog post about my own boobs wouldn't feel quite so taboo.  And maybe then no one would define breasts as mere sexual objects.

We can’t turn back the clock and improve on the breast education adults got when we were younger, but we can certainly stop standing in the way of progress.  Our students deserve a safe space to discuss boobies.  

This post is part of a series in honor of Women's History Month.

A boy and a girl and the morality police

When the legislature passed and the governor signed legislation to create a new crime of underage teen "sexting," the ACLU of Pennsylvania and its allies like the Juvenile Law Center and the Pennsylvania Psychiatric Society warned that a teen couple that privately sends sexually suggestive photos to each other would get caught up in the new law and that a teen's bedroom is no place for the government. Supporters insisted to me that those kinds of situations would never make it to a district attorney.

We were right, and they were wrong. In Westmoreland County, just a week after the new law went into effect, a 13-year-old girl and a 14-year-old boy have been cited. Their "crime"? According to press reports, the girl sent the boy a topless picture of herself. He looked at it, because he's a 14-year-old boy and that's what they do, and then deleted it.

Here's the money quote, from Westmoreland County District Attorney John Peck, as reported by the Pittsburgh Tribune Review.

“I think a summary offense is more appropriate in most incidents,” Peck said.

This DA has such a lack of perspective, he's so intertwined in government power and thinks that being cited for criminal activity is no big deal if it's for a lesser offense, that he can't see the damage that can be done in citing a 13-year-old girl, whose picture has now been seen by numerous adults, and a 14-year-old boy for the "crime" of exploring their sexuality, something that teenagers have done since our species evolved.

And, putting the juvenile justice piece aside, there are free speech questions here, too. Our legal director tells me that we will look to challenge this law in court if this is how it is going to be applied.

Sexting by minor teenagers is risky behavior. It's behavior best addressed by parents and educators, not the government. But people in government don't get that. They're too busy playing the morality police.

Aside: The press dropped the ball here, too. No court in Pennsylvania has upheld a felony charge in a sexting situation, but all three outlets linked above- the Trib, the AP, and WTAE-TV-  said that this would have previously been a felony.

Philadelphia Firefighters: Please call us!

We have received numerous calls from friends and family of Philadelphia firefighters regarding the city’s new social networking guidelines. We are happy to look into it, but we need to hear from firefighters themselves about how the policy directly affects them.

Please call our Philadelphia office at 215-592-1513 x501 and leave a message including your name and phone number. All calls are confidential and protected by attorney-client privilege. 

Appeals Court will hear "I ♥ Boobies" student speech case en banc

We got word this morning that the Third Circuit Court will sit en banc to hear our student speech case B.H. and K.M v. Easton Area School District. This is our case on behalf of two middle school girls who were suspended for wearing "I ♥ Boobies" breast cancer awareness bracelets from the Keep A Breast Foundation.

The Third Circuit Court of Appeals is the federal appeals court for Pennsylvania, New Jersey, and Delaware. Most cases on appeal are heard by a panel of three judges, and rulings are either unanimous or by a 2-1 majority. When the court sits en banc (French for "full bench"), argument is heard by all of the active judges, plus any senior judge who has previously heard the case. Our en banc court will be the thirteen active judges of the Third Circuit plus Senior Judge Greenberg.

Our initial suit was in November of 2010. We were granted a preliminary injunction by the District Court in April of 2011, the other side appealed, and we argued before a three-judge panel of the Third Circuit this past April. Since then we've been awaiting a ruling, but instead we got this news.

Today's news means that more than half of the Third Circuit judges believe this case warrants an en banc hearing. As we see it, that's a good thing.

Breaking the Silence

By guest blogger Erik Eagle, Brownsville Area High School student

This year as the president of the newly formed Brownsville Area High School Gay Straight Alliance (GSA)*, I have had the honor of being the student organizer for the Day of Silence. I managed to bring the Day of Silence to my school despite opposition from the administration, which tried to infringe upon our rights by forbidding us from using the school’s PA system to explain the event and wearing T-shirts with messages about the Day of Silence. If it were not for the help of the ACLU of Pennsylvania, their efforts to block us might have been successful.

Brownsville Area High School students (from left) Daniel Boger Jr., Erik Eagle , Marissa Calvaresi, Katherine Diamond and Kimberly Kennedy. Photo courtesy of John F. Brothers/HeraldStandard.com

Although the school made assurances that they would allow the Day of Silence, when I sought pre-approval for these activities from the administration, all of my requests were denied.  At the same time the school allowed another student organization to do the exact same things for another event. It was only after receiving a letter from the ACLU-PA explaining our rights that the administration allowed us to proceed.

The Day of Silence, recognized on April 20 this year, is a student-led action that began 17 years ago at the University of Virginia. On that day, students take a vow of silence to bring attention to the silence faced by LGBTQ youth who are bullied; the students' silence is meant to echo that silence. With 90% of LGBTQ students reporting being harassed and 30% of LGBTQ students being physically accosted at school, this is a cause that is intended to make schools a safer place for those students.

I personally have encountered students who have made remarks such as "Why remain silent? Shouldn't you speak out against the bullying?" or "Being silent never accomplished anything, the Day of Silence is pointless." I respect these opinions, but at the same time I feel that it is paramount to understand that the Day of Silence is not expected to make immediate change. The point of the Day of Silence is to get people's attention and to make them think about why the day of silence is necessary. By grabbing people's attention in such a strange way, it piques their interest to the point that someone who would brush off the subject of anti-LGBTQ bullying will now want to engage you in a conversation about it. I have been told by everyone who participated in our district that they saw this effect almost immediately.

*Note: The GSA itself was only recognized as a student organization and allowed to meet on school grounds after the intervention of the ACLU of PA.  

2011 in Review: The Courage of our Clients

From Sara Rose in Pittsburgh:

The Mort family, with Isabella

As I reflect on the past year as an ACLU-PA staff attorney, foremost in my mind are the clients I represented. Sometimes, we focus more on the civil liberties we defend than the individuals who are affected - and while we say “the Constitution is our client,” it's the people we represent who illustrate why the Constitution is so important. It takes courage and perseverance to stand up for your rights. Their will and determination protect those rights for all of us. 

Steve Conway, a devoted father of three, became our client after Fayette County Children and Youth Services arbitrarily cut off his contact with his children. No one ever accused Steve of abusing or neglecting any of his children - CYS arbitrarily decided his legally consensual relationship with a younger woman constituted child abuse. He spent two years away from his children, including one with no contact whatsoever - no phone calls, not even e-mails. A federal judge ruled in his favor just before Thanksgiving 2010 - a few days after Steve was killed in a car crash.

Debra and Robert Conway, Steve's Parents, have continued the lawsuit on behalf of Steve’s estate. That was not an easy decision. They were forced to relive one of the most painful events in the life of their family – the government-enforced separation of their son from his children – and testify about those events during a four-day jury trial. Debra and Robert felt it was that important to stand up for their son’s rights, and to ensure that the heartache they endured at the hands of Fayette County CYS would not happen to another family.

Liz Mort and Alex Rodriguez were also separated from their child – this time in Lawrence County, by CYS and by Jameson Hospital in New Castle. Just three days after their daughter, Isabella, was born, two caseworkers arrived with two police officers to take her away. Liz had failed a drug test, administered by the hospital without her knowledge while she was in labor.

Read more »

2011: The Year In Civil Liberties

It's been a very mixed year for we civil libertarians, with major victories and stunning defeats. On one hand, we're all happy to be out of Iraq - on the other, Gitmo is fast approaching its tenth year in business, and Congress has given the President nearly unchecked authority to detain or execute suspected terrorists. Don't Ask/Don't Tell died in 2011, and New York State doubled the number of LGBT Americans with full marriage rights, but Pennsylvania is once again considering a Constitutional ban on same-sex marriage. We've dramatically increased the number of Americans with access to decent health care, but Pennsylvanians may soon have to leave the state to get a safe and legal abortion. Through it all, we've been encouraged to see record numbers of Americans take to the streets to make their voices heard - and sickened to see them arrested, beaten, and pepper-sprayed for speaking out in a public forum.

See what I mean? Mixed year.

As we always are, the ACLU has been in the middle of most of these issues, as busy as ever in the courthouse and busier perhaps than ever before in Congress and state legislatures across the country. We've been so busy, in fact, that it's going to take us the rest of the year to tell you about it.

Over the next ten days, we'll review some of the highs and lows of 2011, to let you know what the ACLU has been doing for you - both in Pennsylvania and across the country - and to remind you why we need your support. In return, we hope you will consider becoming a card-carrying member (if you're not already), making a tax-deductible year-end contribution, or both - because if there's one thing we want you to know about our work, it's that we can't do it without you.

Netflix rates are on the rise - more proof you should be concerned about Net Neutrality?

If my Facebook and Twitter feeds are any indication, people everywhere are mad about the new rate structure at Netflix. Real mad. Like, agrarian revolt mad. I'm half expecting an angry mob with pitchforks and little red envelopes to start gathering outside City Hall any minute.


The anger at Netflix took me back to November, when a smaller number of tech-nerds raised a small outcry about a move by Comcast against Netflix and partner company Level 3. As Tony Bradley summarized it at PC World:

Comcast--which has its own on-demand streaming content and pay-per-view movies--demanded a recurring fee in exchange for allowing Netflix streaming media content to flow unfettered through its network. The fee--which Netflix backend provider Level 3 Communications agreed to pay to avoid service interruptions for Netflix customers--feels a lot like extortion a' la paying mob "protection money" to avoid "bad things" happening to your business.

The story made very small ripples, mostly among the tech blogs and we civil liberties wonks, but there was no great public outcry. Until now. This is not to say that Comcast's "extortion" is the only cause behind a rate increase at Netflix - there are other factors, including demands for a larger piece of the action from the movie and TV studios who produce content, and of course Netflix's own profit motive - but a 60% sock in the wallet to Netflix customers should serve as a reminder of something the ACLU has long been urging: the dire need for strong net neutrality rules.


As the Internet has become a critical part of our daily lives, we users have taken for granted that we are all experiencing the same Internet - but we are trusting private corporations, in most cases, to bring us that content. Like prison guards sorting our mail, those corporations have absolute power over what data reaches us, how fast, and at what cost. Until recently, the motive to filter user data was not strong enough to justify the cost - but with online delivery of music, movies, and television developing into a multi-billion dollar industry, the motive is there. The question is, do they have the right?


Net neutrality laws and policies are murky at best, full of loopholes and largely written by lobbyists from the same companies they are meant to regulate. Major telecom corporations, including Comcast as well as AT&T, Time Warner, and others, have invested heavily into opposing strong net neutrality rules. The ACLU is a strong proponent of net neutrality, as are groups including the Electronic Freedom Foundation, Free Press, and others.


Our concern is less with the price of streaming movies and television shows, and more with the other ways in which companies might restrict or filter Internet traffic. If Comcast can selectively filter Netflix, what's to say they wouldn't filter out individual expression? It's not unprecedented - in 2007, AT&T censored a live-streamed Pearl Jam performance, silencing Eddie Vedder's political statement against then-President George W. Bush. In 2005, Canadian telecom Telus blocked all of its users from accessing the web site of a union that was on strike against Telus. 


Net neutrality has always proven an issue difficult to communicate. I've tried to explain it to people, and it usually takes a few seconds before their eyes glaze over. It's not a threat that seems real to most of us. We, the first generation of Internet users, have grown up in the electronic version of the wild west, and we've taken it for granted. Even Daily Show resident expert John Hodgman has a difficult time articulating the issue:

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Net Neutrality Act
www.thedailyshow.com
Daily Show Full Episodes Political Humor & Satire Blog The Daily Show on Facebook

The folks on my Facebook and Twitter feeds are mostly angry at Netflix, and rumors are flying of a mass customer exodus. Whether that will happen remains to be seen, but if it does it plays right into Comcast's wishes - those customers aren't going to ditch their ISP. Maybe instead they'll upgrade their cable package, and get their streaming content from the same company who brings the Internet into their home.

Maybe, though, some of them will see the $6 a month for what it is: one of the early bricks in the wall that's being constructed between customers and the free and open Internet.

First Amendment Roundup: Radicalization, Bigfoot, and Random Drug Tests

A bit late getting this up today, forgive me. I was waylaid by hearings to determine how radicalized I am. Word on the street is 85%, but no one can tell me where that number came from. Here, in no particular order, are some of the First-Amendment-related cases you may have missed this week:

• In case you somehow missed it, Representative Peter King's hearings on the "Radicalization of American Muslims" have been described by some as an opportunity for non-experts to spout unattributed racist and xenophobic superstitions about Muslims, by some as not doing enough to confront threats to America, and by one particular pundit as "just like" Robert Kennedy's 1962 mafia hearings. You can follow those links, or play a fun game where you guess which news outlet is taking which angle.
• Tennessee, meanwhile, is considering a law that would make the practice of Sharia Law a felony punishable by up to fifteen years in prison.
• A school bus driver in Oregon was fired for decorating his pickup truck with a Confederate flag, emblazoned prominently with the word "Redneck," and refusing to remove the flag at the bus yard. The driver and his attorneys argue that he has a First Amendment right to fly the flag.
• A school district outside Providence, Rhode Island, has refused a request by the Rhode Island ACLU to remove a prayer mural, which is pretty specifically Christian, that has been on display at their high school for about 50 years. The Rhode Island ACLU has announced that they will sue. 
• Bigfoot is suing the state of New Hampshire. Performer Jonathan Doyle, who enjoys making amateur videos of himself dressed as Sasquatch (or is it "a sasquatch?") on Mount Monadnock, is suing after park rangers informed him that his particular form of mountain recreation would require applying for a $100 permit two weeks in advance and securing a $2 million insurance bond. Ah, New Hampshire: the Live Free or Die (or give us $100 and prove that you have insurance to dress as Bigfoot on our Mountain) State. The New Hampshire ACLU supports Doyle's lawsuit.
• Here at home, the ACLU of Pennsylvania is suing the Panther Valley School District over their practice of random drug tests for students, a practice the Supreme Court ruled unconstitutional way back in 2003. To be fair, when I went to high school our American history textbooks stopped before even the Vietnam War.
• A Maryland lawmaker has proposed a bill, supported by the ACLU, that would protect employees from having to disclose their usernames or passwords for social networking sites like Facebook, and from threats of discipline should they refuse to do so.

I'll close by reminding you that this was also the (very depressing) week President Obama officially fully reversed his campaign position on Gitmo, reopening military tribunals and announcing that the United States may "need" to keep some individuals imprisoned indefinitely without trial. At this point habeas corpus has been lost so long he probably has Stockholm Syndrome. Poor guy almost made it to 800.

Friday First Amendment Roundup: Privacy on Twitter and Amazon, Free Speech "Anarchy,"

As the developing story in Egypt casts new light on the importance of free speech and privacy in the age of the Internet (and hopefully calls attention to threats to those freedoms here in the United States) as usual there are other, smaller dramas around the Country that you may have missed:

• The ACLU and the Electronic Freedom Foundation have challenged the government's attempt to obtain the records of three Twitter users in conjunction with the FBI's WikiLeaks investigation. On that note, the ACLU has commended Twitter for defending the privacy of their users.
• The ACLU also defended the privacy rights of Amazon.com customers in North Carolina, where state authorities were requesting information that could tie customers to specific purchases.
• The Orange County, California district attorney's office has filed criminal charges against 11 UC Irvine students who protested a speech by the Israeli ambassador to the US last year. DA Tony Rackauckas's statement, in part: “We must decide whether we are a country of laws or a country of anarchy . . . We cannot tolerate a pre-planned violation of the law, even if the crime takes place on a school campus and even if the defendants are college students. In our democratic society, we cannot tolerate a deliberate, organized, repetitive and collective effort to significantly disrupt a speaker who hundreds assembled to hear.”
• A speech by William Ayers at Georgia Southern University drew protesters from the Sons of Liberty, who were informed that they were not permitted to protest because they'd failed to register in advance.
• The National Labor Relations Board (which, incidentally, has a Facebook page) reached settlement in a case defending the rights of workers to discuss working conditions on Facebook and other social networking sites.
• A conflict is brewing in New Jersey over religious exemptions to state immunization requirements, as State Assemblyman Herb Conaway Jr. argues that the parents' word that immunization violates their religion should not be sufficient to grant an exemption.
• The ACLU and several other organizations have launched the Develop For Privacy Challenge, a contest encouraging mobile phone application developers to address privacy concerns. Entries will be accepted at the contest web site until May 31.

We'll be back next Friday with another First Amendment Roundup. In the meantime, I hope you'll spend a little time celebrating the birthday of The Great Emancipator (and maybe the US's greatest LGBT President). If you have no other plans, it's also Evolution Weekend - so if your life's ambition is to finally reconcile religion with science, this is the weekend for you.

Friday First Amendment Roundup: Interrupting the Constitution, Shielding Against Whistleblowers, and the Soledad Cross

Big week for civil liberties this week, with new lawmakers (and new House majorities) both in Harrisburg and in Washington.  PA State Representative Darryl Metcalfe is starting hard out of the gate, with an anti-baby bill and an anti-gay Constitutional amendment in his eager little hands.  As we always remind you, though, challenges to civil liberties come in all shapes and sizes.  Here's a quick review of what you may have missed this week.

• First and most exciting: in case you missed it, it's legal again to swear in Pennsylvania.  Don't say we never did anything for you.
• The House of Representatives opened their new session with its first-ever reading of the U.S. Constitution, which opened the opportunity for a birther to give us the first-ever heckling of the House as they read the Constitution.
• Not to be outdone, protesters several times interrupted the press conference by Darryl Metcalfe and his colleagues announcing their multi-state anti-baby bill.  Note the woman 46 seconds into the video urging the protesters to "respect [the speaker's] freedom of speech and sit down." 
• The ACLU welcomed the new congress with polite urging to uphold and protect the rights and values enshrined in the Constitution.
• It's hard to say whether House members had a chance to read their nice letter from the ACLU before proposing the "Shield Bill," which would make it a crime to knowingly and willfully disseminate any information "concerning the human intelligence activities of the United States."  Aimed at whistle-blowers and organizations like WikiLeaks, there are also very serious questions about its potential limitations on journalists.  As an aside, the last time Congress passed a "Shield Bill," it was intended to shield journalists against retaliatory prosecution.  
• A Federal judge in Rhode Island ruled against the Rhode Island ACLU's argument that the city of Narragansett's "Orange Sticker Law," aimed at curtailing loud college parties by quite literally labeling houses police consider a problem, is unconstitutional.
• The Ninth Circuit, meanwhile, ruled that the "Soledad Cross" is an unconstitutional government endorsement of religion, and sent the case back to a federal court to determine whether the cross may be modified to pass muster, or must be removed altogether.

Eleven reasons you should make a last-minute donation to the ACLU

Click here to make a tax-deductible gift to the ACLU Foundation.


11. Because you like to swear.
Admit it.  You do.  We all do.  There's nothing quite as cathartic as unleashing a few choice words when a day isn't going your way.  Even certain mayors know the value of a well-timed dirty word.  Trouble is, some people in authority seem to think there's a "no dirty words" exception to the First Amendment.

In the past few years, we've represented a woman arrested for swearing at an inanimate bathroom fixture, a man who was told that calling his business "I Choose Hell" was illegal for being 'blasphemous,' and a whole slew of people who used words that police officers didn't like.  

So if you enjoy the right to legally use every word in the lexicon, or if your family swear jar is filled to the brim, maybe toss a few dollars our way.  Who knows?  We may someday keep you out of prison.

10. Because you own a cell phone.

...and you'd rather the government didn't use it to track your every movement, or go through it when you aren't looking, or charge you as a child pornographer because you took a naked (or near-naked) photo of yourself.  Cell phones are fast becoming a new front in the fight for civil liberties, and the ACLU is working hard to remind the government that you don't waive your right to privacy when you buy a cell phone.

9. Because criticizing the government does not make you a terrorist.
Nor does protesting against natural gas extraction or attending a vegan block party, and yet people engaged in these very activities ended up in intelligence bulletins distributed to the State Police to warn them of potential terrorist activity.  The ACLU has been helping activists from around the state obtain information as to whether they or their organizations were listed, and has called for an investigation into the matter from an independent party.

Read more »

Potty Mouths, Steer Clear of Pennsylvania

Cross posted at Blog of Rights

If you have a potty mouth, stay away from the Keystone State. It turns out that police in Pennsylvania have delicate sensibilities. A recent ACLU of Pennsylvania Right to Know Law request revealed that in a one-year period, the Pennsylvania State Police issued over 770 disorderly conduct citations for profanity or profane gestures. That's two citations a day. Illegal citations, I should emphasize, as the courts have made it very clear that profanity, unlike obscenity, is constitutionally protected speech.

On Wednesday, the ACLU of Pennsylvania filed two lawsuits against the Pennsylvania State Police and the Mahanoy City Police of Schuylkill County for issuing disorderly conduct citations to two Pennsylvania residents for using profanity. Our lawsuits argue that profanity and profane gestures are constitutionally protected speech.

Much of the problem stems from the fact that there is a huge difference between the legal definition of obscenity, which is illegal, and profanity, which is not. In legal terms, the pornography in your local porn store doesn't even qualify as obscene, much less dropping the F-bomb in front of an officer of the law. Only very graphic or extremely violent sexual acts intended to arouse a sexual response qualify as obscenity. It's understandable that average citizens might not know the difference, but people whose job it is to defend the law should know what the law actually means.

While many people find this case understandably humorous, the consequences of these citations are not so funny. In one case (PDF), our client called a passing motorcyclist she knew an "asshole" after he deliberately swerved as if to hit her and shouted an insult at her. That same day, she reported the incident to the state police, who proceeded to mail her a disorderly conduct citation for swearing. The citation noted that she could face as much as 90 days in jail and a fine up to $300. She was eventually found not guilty — after hiring a lawyer to defend her. In the months leading up to her hearing, our client, a mother of three young children, constantly worried that she might be separated from her family because of the citation.

Unfortunately, the zeal for citing folks for profanity isn't limited to the state police. In the past few years, the ACLU of Pennsylvania has successfully defended about a dozen individuals against similar charges, including most recently a Scranton woman, Dawn Herb, who swore at her clogged toilet in her home and a Pittsburgh man, David Hackbart, who flipped off a police officer in a dispute over a parking space.

Is it poor manners to swear like a sailor? Definitely. Is it a crime? Definitely not.

Sara in Philly

On schools and spy cameras

First, you'll want to have a look at this article on Boing Boing. A brief excerpt:

According to the filings in Blake J Robbins v Lower Merion School District (PA) et al, the laptops issued to high-school students in the well-heeled Philly suburb have webcams that can be covertly activated by the schools' administrators, who have used this facility to spy on students and even their families. The issue came to light when the Robbins's child was disciplined for "improper behavior in his home" and the Vice Principal used a photo taken by the webcam as evidence.

Now, a brief note that I know you'll enjoy. You may remember our two cases involving online student speech, Layshock v Hermitage School District and JS v Blue Mountain School District, in which conflicting rulings were issued simultaneously on February 4 by two different Third Circuit panels. In the Layshock case, one panel ruled unanimously that a school could not discipline a student for online speech created outside of school. In JS, another panel ruled (in a 2-to-1 decision) pretty much the exact opposite. It's a bit baffling.

Now here's the good part: during arguments in the JS case, Judge D. Michael Fisher, who wrote the majority opinion, remarked that "it's not as if there's a fear that schools will begin monitoring student behavior in the home."

I wonder if Judge Fisher reads Boing Boing.

Edit, 2/19/10: By request, here is a link to the complaint in Robbins v Lower Merion School District, the case referenced in the Boing Boing article.

Chris in Philly

Civil Rights Groups Sue City Of Pittsburgh Over Harassment And Intimidation Of Activists During The G-20 Summit

The ACLU-PA, along with the Center for Constitutional Rights filed suit this past week over the repeated attempts by city officials to suppress the free speech rights of demonstrators attempting to protest the policies of the G-20 Summit. The complaint alleges that the police engaged in a deliberate campaign of harassment and intimidation that prevented two climate and environmental-justice organizations (the Seeds of Peace Collective and the Three Rivers Climate Convergence) from organizing and supporting demonstrations. This lawsuit is the first of what will likely be several cases filed against the City of Pittsburgh and other law enforcement agencies for their interference with and harassment of demonstrators during the G-20 Summit and International Coal Conference.

FOR IMMEDIATE RELEASE
December 14, 2009
Contact: Witold “Vic” Walczak, ACLU of Pennsylvania, (412) 681-7736

PITTSBURGH - The American Civil Liberties Union of Pennsylvania and the Center for Constitutional Rights announced today they have filed papers to expand and continue a civil rights lawsuit against the City of Pittsburgh, city officials and police officers for their repeated harassment and intimidation of two climate and environmental-justice organizations whose efforts to organize and support demonstrations during September’s G-20 Summit were completely frustrated.

“The First Amendment does not allow the government to use possible vandalism by a few to justify suppressing the free-speech rights of many, but that’s exactly what Pittsburgh officials did during the G-20,” said Witold Walczak, the ACLU of Pennsylvania’s Legal Director and one of the groups’ lawyers. “Pittsburgh city officials must be held accountable for systematically and deliberately suppressing non-violent climate and environment-justice demonstrations.”

An amended complaint in the lawsuit, which was originally filed September 21, was filed late Friday night in U.S. District Court for the Western District of Pennsylvania. The suit alleges that City of Pittsburgh officials deliberately adopted a strategy to harass, intimidate, discourage and ultimately prevent Three Rivers Climate Convergence and the Seeds of Peace Collective from exercising their constitutionally protected rights to free speech and assembly during the International Coal Conference and the G-20 Summit in Pittsburgh during the week of September 20, 2009.

This lawsuit is the first of what is expected to be several cases filed against the City of Pittsburgh and other law enforcement agencies for their interference with and harassment of demonstrators during the G-20 Summit and International Coal Conference.

The suit names as defendants Pittsburgh Mayor Luke Ravenstahl, Director of Public Safety Michael Huss, Chief of Pittsburgh Bureau of Police Nathan Harper and Assistant Chief William Bochter, Assistant Director of Pittsburgh City Parks Michael Radley, and as-yet-unidentified police officers who will be named later. It alleges the defendants repeatedly violated the First, Fourth, and Fourteenth Amendments.

“City officials must be held accountable for their blatantly unconstitutional actions during the G-20 in order to help ensure that it doesn’t happen again,” said University of Pittsburgh Law School Professor Jules Lobel, Vice President of Center for Constitutional Rights and one of the attorneys representing the groups.

In addition to the delay and denial of G-20 protest permits that led to September lawsuits in federal court, the suit details an extensive and well-coordinated effort led by the City of Pittsburgh to surveil, harass, intimidate and prevent the Seeds of Peace food bus and Three Rivers Climate Convergence from holding their climate and environmental-justice activities, including the repeated detainment of the Seeds of Peace bus by dozens of armed police officers and the late night confiscation of Three Rivers sustainability fair tents and materials from their permitted location in Schenley Park which effectively ended their ability to demonstrate.

“Rather than seek to strike the difficult but necessary balance in such a high profile event between safety concerns and free speech, the City of Pittsburgh choose instead to use an overwhelming amount of resources and personnel to unconstitutionally harass and stifle dissent, including this group of peaceful activists whose sole mission was to support other activists by providing healthy home-cooked meals during their stay in Pittsburgh,” said Glen Downey of Healey & Hornack, P.C., another of the groups’ attorneys.

The lawsuit filed on Friday seeks the declaration that Seeds of Peace and Three Rivers Climate Convergence’s constitutional rights were violated as well as other compensatory and punitive damages.

Seeds of Peace is a Montana-based, non-profit-cooperative that has attended demonstrations and supported various communities and groups working on the front lines of social change by providing them food, water, and planning assistance. Their vegetable oil and solar powered bus intended to model sustainable practices and support Three Rivers Climate Convergence and other activists in the form of food, water and planning during the International Coal Conference and G-20 Summit.

Three Rivers Climate Convergence is a partnership of Pittsburgh-area groups and individuals, working other regional and national organizations to create meaningful action on climate change, advocate for environmental justice and demonstrate truly sustainable living. The group planned an international convergence of activists and educators to create an educational and participatory climate camp and to mobilize around the Pittsburgh G-20 Summit and the International Coal Conference.

The case is Seeds of Peace Collective, et al. v. City of Pittsburgh, et al. Seeds of Peace and Three Rivers Climate Convergence are represented by Walczak and Sara Rose of the ACLU of Pennsylvania; Lobel; Downey and Michael Healey of Healey & Hornack, P.C.; and Jon Pushinsky. A copy of the amended complaint can be found at: http://aclupa.org/legal/legaldocket/g20protestorsharassedbypol.htm

Protesters' Rights: The Song

It seems that a few people were moved enough by the protesters' rights palm cards we distributed in Pittsburgh during the G20 Summit to put them to music. Please feel free to send us any other creative renderings of our literature you might have - no reason to be boring when educating people about their rights!

Freedom Index by State

I am not endorsing this, but it is too interesting not to share. I also have not had the free time this morning to thoroughly review it and summarize it for you. I know I'm shirking my duty as a blogger here, but civil liberties take work, people!

Anyway, the Mercatus Center at Georgia State University has compiled what they call "Freedom in the Fifty States," an index of personal and economic freedom (check the study for their definitions and standards of measure for each) in each of the 50 States. It's an interesting read.

According to this study, folks in Alaska are running wild as wolves, while New Yorkers are living under lockdown in a statewide gulag. Or something like that. Pennsylvania falls in the "second quintile," with higher than average economic freedom and slightly lower than average personal freedom.


The full study is available here. Thanks to Boing Boing for bringing this to my attention.

Update: Commenter Anonymous (I've looked around the internet and he's quite prolific) supplied a link to a similar page, except this one allows the viewer to customize "freedom" according to his or her own definition. Thanks for the link, A. It's the kind of thing that can entertain some of us ACLU-types for hours on end. And that is in no way depressing.

Chris in Philly

Defending truth and free speech takes a lot of effort

As part of his goals for the New Year, my husband wants to create global utopia in 2009.

OK, maybe that's night quite fair. He wants to come up with a plan for utopia in 2009. He admits that actual implementation may take a bit longer.

So now he's outlining his goals. And one of the things Jeff finds frustrating and would like to eliminate in his Utopian society is the prolific lying that so often passes in this nation for honest debate. (Think the tactics of the intelligent-design movement and its leaders like the Discovery Institute.)

Now maybe it's not fair of me to air my side of our marital disagreements like this (especially without allowing him to present his side) but hey, I'm a writer. That's just the way I roll. He knew this when he married me.

And this is just too fraught with opportunity to ignore.

So, as he says, in his utopia, "People wouldn't be allowed to spread lies."

To which I ask, "So, you're saying you want to criminalize free speech? In utopia?"

Oh sure, he hems and haws and insists that isn't exactly what he means. Then he tries to misdirect the argument and tells me that as long as I'm not willing to do something decisively to halt the deception foisted on the public, then nothing will change.

To which I reply: Darlin', I love you, but you're a freakin' moron. (Except I don't really say "freakin.'")

Then I tell him that I'm sorry that I just can't get down with his little tyranny thing.

To which he replies, "How is that tyranny?" even though he knows damn well what I mean by tyranny, but he's got an argument to win.

Sigh. And on and on it goes. He and I can't seem to schedule five minutes a week to balance our bank accounts, but we can fight for days over stuff like this.

(I should note, in the interest of fairness, that this is the way my husband processes things. He starts out with an extreme position and works his way back to a state of reason. But he always comes back.)

And the truth is, I understand his frustration. Who doesn't?

Spend five minutes on the Internet and you'll easily come up with countless egregious acts of misinformation, like, oh say, here, here and here.

Those spreading these lies count on a public to be too ill informed and overwhelmed by information to understand their deceptions.

But, of course, as ACLU members know, the answer isn't to silence those lies with government restrictions. Rather, it's exposing them with the light of truth. Granted, the system isn't neat and tidy. And it takes a lot of work. But it can also be satisfying. So satisfying.

Take, for example, the Kitzmiller case. Remember how after the trial, the pro-intelligent design board members, who lied through their testimony, were voted out of office by an electorate that had grown tired of the deception? That was cool.

But now Casey Luskin of the Discovery Institute wants to go back and rehash the trial, all in an effort to convince readers that intelligent design did not get a fair shake in Harrisburg's federal courthouse.

In a series of posts, he goes over the testimony of defendants' witness Michael Behe and plaintiffs' witness Ken Miller and the issue of irreducible complexity of the blood clotting cascade, which both scientists revealed during testimony to be an utter scientific fraud. (Even though I'm pretty sure that wasn't Behe's intention.)

Why would Casey Luskin be bringing up Dover more than three years after Judge Jones' decision? Doesn't he have something better to do? Like scientific research? ... Ummm, well, the Discovery Institute does no scientific research. It's sole existence is to engage in deceiving the public with lie-filled propaganda. The kind of institution that my poor misguided husband thinks he'd like to see banned from public discourse.

So Luskin goes to great contortions in a series of posts called Smoke and Mirrors (Here, here and here) to say that irreducible complexity, the idea that if a working part of the blood clotting cascade were removed, the entire system would collapse and we'd all bleed to death from a paper cut. So that must mean the system could not possibly have evolved through gradual evolutionary processes.

But it's not true. And no matter how many times he whines about it will never make it true.

Sure, it's tempting to want to make Luskin just shut up. Yes, Casey ... please... shut up. Sure, some people end up believing the lies he's peddling. Sure, his goal is to slip his religious views past the First Amendment's Establishment Clause and force them on our children. I get all that. And that's slimy stuff.

But of course, forcing Casey to shut up would only betray the foundations of democracy.

So, instead, we respond with the truth. As Ken Miller, guest blogging for The Loom, did in a series of terrific posts. Using a howitzer to swat a mosquito, as one observer put it.

His responses are here, here and here.

Miller writes:

Luskin's willingness to misread Behe is then followed by an even more brazen attempt to misrepresent, "irreducible complexity," ID's own argument against evolution. The one strength of that argument is that it makes a testable prediction, namely, that the individual parts of an irreducibly complex biochemical system should have no function until all of those parts are assembled together. The difficulty, which Luskin has worked mightily to obscure, is that "irreducible complexity" fails that test at every turn. So he pretends that the existence of fully-functional clotting systems that are missing as many as five parts of the "irreducibly complex" system is no big deal. It is, in fact, a very, very big deal — because it shows that his argument, the claim of "design," and his revisionist account of the Dover trial are all dead wrong.

So, why even respond to Luskin? The Judge Jones' decision was a decisive smack down more than three years ago. Why all the hoopla now?

In his conclusion, Miller explains:

The only relevant question at this point is why the Discovery Institute keeps highlighting its own failings in this way. Why are Casey and his employers now — three years after the Dover trial — trying to rehabilitate the tattered credibility of both Michael Behe and Pandas? What mischief are they planning now? The only conclusion I can draw is that they must be maneuvering for the next round of state board hearings or legislative sessions — and I'm concerned. These folks are a whole lot better at politics and public relations than they are at science, and that means that everyone who cares about science education should be on guard.

So, gear up for the next battle.

True, it's not exactly a Utopian ideal, where we all get to sit around and eat grapes and pick flowers. This system of governance takes a lot of diligence, and hard work, and rational debate in the face of frustrating arrogance and irrational behavior. But until my husband comes up with something much better, thank you very much, I'll keep defending what we've got.

Lauri in York

Amy Goodman speaks about her arrest

This video is a few weeks old, but I just stumbled across it today. Amy Goodman of Democracy Now, who was arrested along with several other journalists at the RNC in St. Paul, talks about her experience and the state of free speech and free press in American with PBS's NOW.

I was amazed by the response a few weeks ago from some SF readers that the behavior of the St. Paul police was perfectly acceptable.

Last Friday the charges against the arrested journalists were dropped by the St. Paul City Attorney.

Andy in Harrisburg

You'd make a great cop

"Got a lot of questions for me
You got a lot of questions for me
Got your finger pointing at me
Distrusted, I look for wires when I'm talking to you
You'd make a great cop."
--Fugazi

Well, it looks like the ACLU of Minnesota is about to get some business.

For whatever reason, political conventions lead the po-lice in the host city to act like our democracy has been replaced by a totalitarian system.

In 2000, it was Philadelphia. Pennsylvania State Police infiltrated an activist group, and an activist friend of mine was beaten so badly by the Philly PD during a protest that he ended up with a permanent hip condition.

In 2004, it was New York and Boston. We chronicled the abuse of free speech rights at those conventions in the Freedom Files episode Dissent.

And now it's Denver and especially St. Paul. Last week in Denver the first checkpoints around the arena where the Democrat party held its convention were two miles away from the arena. Even worse, the Colorado National Guard was on call to deal with protestors. And we all know what can happen when the National Guard deals with protestors.

Perhaps the most egregious abuse of power by the cops has occurred in St. Paul over the last few days. In general, the police have been abusing people for exercising their free speech rights.

Specifically, America is not a country where we arrest journalists. And yet Democracy Now! host Amy Goodman and producers Sharif Abdel Kouddous and Nicole Salazar, AP photographer Matt Rourke, who is based out of Philadelphia, and several other journalists were arrested for simply covering the protests and the police reaction to them. It's incredible that I even have to say this, but they were carrying out the right to freedom of the press protected by the First Amendment of the U.S. Constitution. One of Rourke's supervisors was none too pleased:

David Ake, an AP assistant chief of bureau in Washington, said he was concerned by the arrest of Rourke, a Philadelphia-based photographer.

"Covering news is a constitutionally protected activity, and covering a riot is part of that coverage," Ake said. "Photographers should not be detained for covering breaking news."

Here's the video of police chasing down Salazar. You can hear her screaming, "Press! Press!"



And here's the video of the arrest of Goodman, who was inquiring about what happened to her producers.



So much for "to serve and protect". The St. Paul police certainly are not serving or protecting democracy. They're protecting the thugs who have taken over our government.

National ACLU has released a statement, indicating that ACLU attorneys are on the scene. And here's DN!'s statement on the arrest of its employees.

Andy in Harrisburg