I didn’t look the part, so I was forced to quit.Chili’s, where I worked for nearly two years, was starting a new management training program and my superiors encouraged me to apply. It was a great opportunity, and I was excited about the prospect of a promotion.I was planning to buy a home for the first time, and the pay increase would have helped a lot. I’m a single mother, so what I earn matters. I’m also a lesbian, a part of my identity that influences how I dress.I’d started working at a Phoenix, Arizona, Chili’s two years earlier. Right away, I loved it. The people who worked there became like a family to me. I worked in several roles at the restaurant, including cook, expediter, and host. Most recently, I was a server — and I was good at it. My customer reviews were always top-notch.When I was asked to learn more about Chili’s new Certified Shift Leader program, which would allow me to take another step up the corporate ladder, I was thrilled. I attended a seminar about the program in June. I never thought that what I wore to the seminar would cause the end of my Chili’s career.I attended the seminar wearing an outfit I felt confident in — a men’s button-up shirt, fitted slacks, and boat shoes. It was professional attire and similar to what I saw male managers wear to work. But after the seminar, my manager relayed to me that his boss, the district manager, had seen me at the seminar and thought my clothes were inappropriate. I brushed it off and applied to be a certified shift leader anyway.After interviewing with the district manager, I was offered the promotion — on one condition: I needed to “dress more gender appropriate,” in the words of my manager. I asked him, “Are you telling me that I need to have my breasts hanging out to be successful in your company?” He answered, “Not in those words.” I asked him why I could not wear a chef-style coat like the one he was wearing and he replied, “It’s for boys.”No, it is not. I am speaking out now to tell that manager — and every other person who thinks similarly — that women do not need to be stereotypically feminine in order to get a promotion or be an effective employee or manager.I couldn’t continue to work at a place where my willingness to conform to a stereotype was more important than my job performance. So I left a job that I enjoyed and said goodbye to the coworkers I considered family.I later learned from a coworker that I had been overlooked for a bartender position because the same manager “didn’t want a gay girl behind the bar” because he didn’t think I would attract the right kind of clientele.To add insult to injury, when I wrote to Chili’s to tell them what I had experienced, they said I must be lying because the manager’s best friend is gay. Having a gay friend doesn’t excuse what happened to me. I was so disappointed that the company I loved didn’t even apologize or try to make things right, not just for me, but for all of the other employees who still work there.That’s why on Wednesday, with the help of the ACLU, I filed a complaint with the Equal Employment Opportunity Commission against Chili’s for sex discrimination. My opportunities at a company like Chili’s should not be limited because I am a lesbian who does not conform to Chili’s stereotypes about what a woman should look like.After I was forced to quit, I was unemployed for a month. I finally found a new server job, but as the new employee, I get fewer hours on the schedule and so I’m earning significantly less than I did at Chili’s.I am now working my way back up the ladder. Who knows how long it will be before I am considered for a management position again. My dream of buying my first home is on hold, which obviously disappoints me. But the alternative — being forced to conform to a stereotype that conflicts with my identity every time I go to work — would have been unbearable.
Meagan Hunter loved her job as a server at Chili’s Grill & Bar in Phoenix, Arizona — and she excelled at it. She was thrilled when her supervisors suggested that she apply for a new training program to become a manager.In order to learn more about the opportunity, she attended a seminar on Chili’s Certified Shift Leader program. She wore a men’s button-up shirt, fitted slacks, and boat shoes — an outfit similar to what male managers at Chili’s wear. So she was surprised when her general manager told her that the district manager had seen her at the seminar and commented that she was “inappropriately dressed.”Meagan tried to overlook the comment. But after she interviewed for the promotion, the general manager doubled down on the criticism of her clothes. “We really want to hire you,” he told her. “However, we need you to dress more gender appropriate.” Incredulous, she asked, “Are you telling me that I need to have my breasts hanging out to be successful in your company?” He responded, “Not in those words.”When Meagan asked why she could not wear a chef-style coat like the one her general manager wore, he answered, “It’s for boys.”Outraged and hurt by her general manager’s response, Meagan knew she couldn’t continue to work for Chili’s. She was forced to quit because she didn’t fit her boss’s idea of what a woman should look like. Meagan later learned that the same general manager had told her co-workers that he passed her over for a bartender position because he “didn’t want a gay girl behind the bar.” He said he didn’t think she would attract the “right kind” of clientele.Meagan’s story is shocking, but it is far from unique. All too often, women and LGBTQ people are excluded from opportunities at work and school because they don’t look the part. In Meagan’s case, her boss told her she wouldn’t advance professionally because she did not look feminine enough. Yet on plenty of occasions, women and LGBTQ people face criticism if they dress in a manner that’s deemed too revealing or attractive. ACLU client Lizzy Martinez, for example, was kicked out of class and forced to cover her nipples with Band-Aids when she wore a loose t-shirt to school without a bra underneath. School officials told Lizzy that her nipples were “too distracting” to the boys in her class.At every turn, women and girls are caught between contradictory rules about how they should dress and appear. Cover your breasts too much, and you’re told you won’t be able to attract customers. Leave your breasts too exposed, and you’re told you’re “distracting” to those around you.Laws banning sex discrimination were supposed to put this problem to rest. In a landmark 1989 case, the Supreme Court ruled in favor of Ann Hopkins, a woman who was told her “professional” problems would be solved if only she would “walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.” The court recognized that Hopkins, a senior manager, was stuck between a rock and a hard place — out of a job because she was considered “macho” and out of a job if she wasn’t seen as macho enough.That decision established that employers can’t punish employees because they don’t match stereotypical notions about how women or men should look and act. A growing number of lower courts have also recognized that federal law protects workers like Meagan who experience discrimination because of their sexual orientation.Yet 30 years after Ann Hopkins’s case, Meagan still found herself out of a job because she didn’t fit her company’s stereotypes about what it means to be a woman. That’s why the ACLU today filed a charge of discrimination against Chili’s with the Equal Employment Opportunity Commission. When employers punish workers for who they are and what they look like, they lose valuable people like Meagan. That’s not only wrong and bad for business — it’s also against the law.
Hawaiian vacation. Margarita machine. Sparkles the Clown. Are we going to add Trump’s border wall to the list of “ridiculous things” that civil asset forfeiture funds have been spent on?It seems so if left up to this administration.On Friday, two congressional Republicans told the Associated Press that the administration had been looking at civil asset forfeiture funds to finance the border wall’s construction. And it’s easy to see why. The federal government’s forfeiture fund currently has $3.7 billion in cash, but over $7.6 billion in assets. For the Trump administration, what could be more tempting than liquidating this slush fund to build the wall it wants a new influx of $5.7 billion for?This scheme exemplifies all that is wrong with civil asset forfeiture, which occurs when law enforcement takes property away from someone based on the mere suspicion it is connected to a crime. To be clear — because people can’t believe this is a thing — you do not have to be arrested or convicted of a crime to have your property seized and taken under civil asset forfeiture.And once forfeited, local law enforcement in many places can use this money for almost anything it wants. This is how civil forfeiture has earned the nickname “policing for profit.” And this is why the Trump administration thinks forfeiture funds are on the table for a border wall.That assumption at the federal level, however, is mistaken.Building a wall with federal forfeiture funds is no slam dunk. Federal law limits the use of such funds to certain law enforcement purposes. “Border wall” is not one of them. And it doesn’t look like Congress would take action to change the law so that “border wall” is a permissible expense. Even though we’ve heard a member of Congress suggest that a wall should be built with forfeiture funds, most federal officials are strongly opposed to civil forfeiture. On Tuesday, Sen. Mike Lee (D-Utah), a civil forfeiture reformer, questioned Attorney General nominee William Barr on the practice. Lee got Barr to concede that you “have to strike the right balance” on civil forfeiture. In 1991, Barr said that civil asset forfeiture could give law enforcement a “speed-trap mentality” where agencies pursue forfeitures to line their own coffers.And last week, Reps. Tim Walberg (R-Mich.) and Jamie Raskin (D-Md.) kicked off the 116th Congress by participating in a briefing on civil asset forfeiture reform, with Walberg sharing his plan to again reintroduce the FAIR Act, a comprehensive reform bill on the subject. Last Congress, the U.S. House adopted bipartisan amendments to a spending bill that would have prohibited the Justice Department from using federal dollars to increase forfeiture practices, but those amendments were not included in the final package.When 84 percent of constituents oppose civil asset forfeiture, and 76 percent of voters are more likely to support candidates who back forfeiture reform, elected officials better listen. And this administration should listen to those who are saying building a wall with forfeiture “might be the worst idea yet.”
A federal court has blocked the Trump administration’s decision to add a citizenship question to the 2020 census, stating that it constitutes an “egregious” violation of federal law. The ruling deals a serious blow to the administration’s plan to use the 2020 census to attack the financial and political resources of immigrants and communities of color.In a decision released Tuesday, Judge Jesse M. Furman determined that the Trump administration's attempt to add a citizenship question to the 2020 census, “would undermine the proposition—central to the rule of law—that ours is a government of laws, and not of men" and that it violated the Administrative Procedure Act (APA) in many different ways — “a veritable smorgasbord of classic, clear-cut APA violations.” In the end, Judge Furman concluded that if the Trump administration got its way and a citizenship question was put on the census, “hundreds of thousands—if not millions—of people will go uncounted in the census.”In particular, Judge Furman ruled that Commerce Secretary Wilbur Ross’s decision was “arbitrary and capricious” pursuant to the APA, which governs federal agency action. As demonstrated at trial, Secretary Ross decided to add a citizenship question in the early days of the Trump administration and only after did it “set out to find a ‘legal rationale’ to support it”— a reverse engineering process that both directly contravenes the APA and goes against the story that Secretary Ross has told for months. During the course of our litigation, we obtained documents that revealed that Secretary Ross lied to Congress about the origin of the citizenship question, testifying that he added the question because the Department of Justice had requested it in order to better enforce the Voting Rights Act (VRA). However, as litigation revealed, Secretary Ross actually started considering a citizenship question almost 10 months before DOJ made its request, and he had even compelled Commerce Department staff to push DOJ to make the ask in the first place.It’s no wonder that Judge Furman determined that Secretary Ross’s March 2018 memo officially adding the question, his sworn testimony before Congress, and the information he initially provided in our lawsuit was “materially inaccurate.”Judge Furman also determined that “Secretary Ross’s explanations for his decision were unsupported by, or even counter to, the evidence” before him. Namely, Ross ignored a voluminous amount of quantitative evidence showing that a citizenship question would both harm the quality of census data and result in a net differential undercount — meaning that noncitizens and Hispanics would disproportionately be undercounted resulting in states and localities with large immigrant and Hispanic communities losing political power and federal funding for crucial social programs. By ignoring large swaths of evidence showing how harmful a citizenship question would be, and by failing to adequately test a citizenship question before putting it on the census form, “Secretary Ross’s decision [was]neither logical nor rational.”The ruling came in a consolidated set of cases brought on behalf of several immigrants’ rights groups, as well as 18 states, 15 cities and counties, the District of Columbia, and the U.S. Conference of Mayors. In June 2018, the ACLU sued to stop the citizenship question from going forward, and on Nov. 5, we commenced a two-week trial before Judge Furman.The Constitution requires that the federal government conduct a census every 10 years to count the total number of all “persons” living in the United States. Everyone is counted without exception — adults and children, citizens and non-citizens alike. The Trump administration added the question for the first time in 70 years despite longstanding opposition to the question from the Census Bureau during both Republican and Democratic administrations.Experts agreed that asking about citizenship on a decennial census survey would have an inevitable and predictable consequence: It would drive down participation and skew the accuracy of the count. So did Secretary Ross: When testifying before the Senate, he conceded that by the administration’s own estimate, the question could result in an undercount of an estimated 1 percent of the population — more than 3 million people.Census population data is critically important for two main reasons. For one, it’s used to apportion representation in Congress, draw congressional and state legislative districts, and allocate votes in the Electoral College. It also determines how an estimated $900 billion in funding is allocated for crucial social service programs such as Medicaid, the Children’s Health Insurance Program, Title 1 funding for elementary and secondary schools, and social services block grants. A significant undercount of immigrant communities of color — a near-certainty if a citizenship question is put on the 2020 census form — will dramatically reduce the political power of, and federal funding allocated to, immigrant communities of color for the next 10 years. Secretary Ross’s purported Voting Rights Act rationale has also fallen apart under even basic scrutiny. DOJ has neither requested nor needed a citizenship question on the census to enforce the VRA in the 53-year history of the law. John Gore — a former top-ranking DOJ official who ghostwrote the DOJ letter requesting a citizenship question — testified that the question is not necessary for VRA enforcement, and that he doesn’t even know whether the citizenship data that DOJ will get from a citizenship question is any better than the data on which DOJ currently relies for VRA enforcement, undercutting Secretary Ross’s entire rationale for the question. And former Attorney General Jeff Sessions even forbade DOJ staff from meeting with Census Bureau experts who wanted to share an alternative proposal to give DOJ higher-quality citizenship data at lower cost for VRA enforcement.Secretary Ross’s justification for a citizenship question, as Judge Furman’s decision shows, is a sham — a deception designed to cover up the true motive of reducing the political power of communities whom the Trump administration has targeted since its first days in office. The Trump administration will no doubt appeal the ruling, perhaps all the way to the Supreme Court. But for now, a federal court stands in the way of a citizenship question on the census.
Same-sex couples in North Carolina won the freedom to marry in 2014, but LGBTQ people continue to be denied equal protection under the law in many other areas of life.North Carolina is currently the only state in the nation that prevents those in same-sex relationships from accessing protective orders for domestic violence. The ACLU of North Carolina and attorney Amily McCool of the Scharff Law Firm are challenging that unequal policy in court on behalf of a survivor of domestic violence who was denied a protective order because the person who made violent threats against her was a woman.More than 157,000 North Carolinians suffered domestic violence in 2014, according to the North Carolina Department of Justice. And, unlike state law, domestic violence does not discriminate on the basis of sex or sexual orientation.Survivors of domestic violence in North Carolina can ask a court for a domestic violence protective order that would grant them a range of legal protections against their abuser. If the court grants a protective order and the abuser violates it, they are subject to criminal penalties. However, a domestic violence protective order is only available to people who are defined as having a “personal relationship” under state law. That language currently specifies that people who are in or have been in a dating relationship and do not live together can only receive such protections if they are “persons of the opposite sex.” That means that an unmarried person can receive protection from a different-sex partner with whom they didn’t live but not a same-sex partner. Such unequal treatment for same-sex and different-sex couples is unconstitutional discrimination, plain and simple.The woman we represent in this case, M.E.,* was in a dating relationship with another woman, but they did not live together. When M.E. ended the relationship, her ex became physically aggressive and threatened physical violence. M.E. locked her ex out of the house and called the police. Her ex tried to force her way into the house, and police eventually removed her. M.E.’s ex had access to firearms and continued to go to M.E.’s home and homes of her friends in an attempt to contact M.E.M.E. asked the district court in Wake County, where she lived, to grant a domestic violence protective order that would prevent her ex from contacting her or having access to firearms. Courts recognized that M.E. was “terrified” and that her ex had “caused [her]to suffer substantial emotional distress by placing her in fear of bodily injury and continued torment[.]” But she was not granted a protective order for one reason: Her ex was a woman. A judge found that the facts in the case “would have supported the entry of a Domestic Violence Protective Order … had the parties been of opposite genders.”Instead, M.E. was granted a temporary “no contact” order, a lesser safeguard that fails to provide certain protections, like prohibiting abusers from accessing firearms. If she or her ex were a man, that additional protection would have been granted.Our domestic violence laws should apply equally to everyone in the state, regardless of sex, sexual orientation, or gender identity. We are representing M.E. to ensure that she — and every other LGBTQ North Carolinian — receives equal protection under our state domestic violence laws.And we are not alone. A range of leading groups and individuals — from North Carolina Attorney General Josh Stein to Equality North Carolina to the North Carolina Coalition Against Domestic Violence — have submitted briefs in the case, arguing that our current state law is discriminatory and needs to change.Intimate partner violence does not discriminate, and neither should state laws protecting people from that violence.*We are protecting M.E.’s identity due to the sensitive issues in this case.
McDonald’s isn’t just a fast-food restaurant. It’s an American institution, with sales of $37.6 billion in 2017. And we don’t just flock there as customers. The company employs more than 1 million people at its U.S. corporate offices and more than 14,000 franchise stores. Indeed, according to one estimate, nearly 13 percent of all Americans have worked for the company at some point in its history. But in the past few years, female McDonald’s employees have begun speaking out about the ugly cost of serving up Big Macs: egregious sexual harassment. Most recently, in May 2018, 10 women working in McDonald’s restaurants stretching from California to Florida filed charges of discrimination with the Equal Employment Opportunity Commission — the first step toward a federal civil rights lawsuit — alleging a wide range of unchecked harassment, perpetrated by supervisors and co-workers. And on Sept. 18, 2018, thousands of McDonald’s workers in 10 cities protested the company’s culture of harassment by walking off the job. As one striking worker from Chicago put it at the time, “You will hear us today. We will not stay silent anymore.” On Monday, the ACLU joined forces with the Fight for $15 movement and the law firms of Altshuler Berzon LLP and Outten & Golden LLP to lay the groundwork for the next wave of EEOC harassment charges against the company. As one of the country’s largest employers and the most profitable fast-food chain, McDonald’s must be held accountable. The misconduct documented in the pending EEOC charges runs the gamut from sexually explicit comments to improper touching. In Chicago, for instance, a manager asked a female employee, “How many dicks can you fit in your hole?” Women have reported unwanted hugging, back rubs, spanking, and intentional “brushing up” against them. Some said they were trapped in supply closets and pestered for dates. One woman alleged that a male manager she worked with threatened to expose his genitals to her. Tune into the Lifetime network tonight to hear from three of the complainants on “Breaking the Silence,” hosted by former Fox news anchor Gretchen Carlson at 8 p.m. ET.The women — one of whom was just 15 years old at the time she was harassed — further contend that McDonald’s provides little to no information about harassment or how to lodge a complaint. But when they did complain, the women faced retaliation, including cuts in their hours, unwarranted discipline, and outright termination.Since the #MeToo movement erupted a year ago, the pervasiveness of sexual harassment in the restaurant industry has become more well-known, but it’s long been a reality. Fast food workers are no exception: One study found that 40 percent of female employees had experienced at least one form of harassment. This shouldn’t be surprising, given that the vast majority of the fast-food workforce comprises “front-line workers,” or non-managerial employees like cooks and cashiers. These employees — most of whom are adults, contrary to stereotypes — live at the economic margins, unable to risk losing a shift or a job by filing a complaint. They earn an average of less than $9 an hour, and consequently, roughly half of them rely on one or more forms of public assistance, in contrast to just 25 percent of the rest of the American workforce. More than a quarter of them are supporting children.McDonald’s likes to evade responsibility for the abuse occurring in its restaurants around the country by explaining that the majority are independently owned franchises. The company contends that civil rights violations occurring at those locations are, to put it bluntly, not its problem. But where a company dictates the smallest details in how franchisees fulfill its brand — down to what kind of pickles they may use — it should not be able to absolve itself of the harassment endured by the people who make that brand profitable.McDonald’s employees have asked the company to, among other measures, strengthen its policies against harassment; mandate training for all supervisors and employees; create a safe and effective system for receiving and responding to complaints; and convene a committee of workers, representatives from corporate and franchise stores, and workers’ rights advocates to identify other remedies. These are common-sense demands. We will be working to assure that they become a reality.If you have experienced harassment at McDonald’s, tell us your story.
On Tuesday, the Senate Judiciary Committee will begin hearings on William Barr’s nomination to be the next attorney general of the United States, offering senators an opportunity to scrutinize his record and views.Such scrutiny is especially crucial in the Trump era. As we’ve seen throughout his time in office, from imposing the Muslim ban to the recent shutdown fight over border wall funding, President Trump has tried to use “national security” as a pretext to justify discriminatory or otherwise illegal policies.That’s why his nomination of William Barr should concern everyone -- because Barr has a long record of doing the same thing during the George H.W. Bush administration. If confirmed to be Trump’s attorney general, Barr could enable the president to act on many of his worst instincts.Defending discriminatory profilingIn the lead up to the Persian Gulf War, the FBI questioned hundreds of Arab-Americans. It claimed these interviews were to solicit information about terrorism. Barr, who served as deputy attorney general at the time, defended the FBI’s actions, insisting that they were needed “to solicit information about potential terrorist activity and to request the future assistance of these individuals.”Community activists said that the FBI was singling them out and questioning their loyalty because of their identity. Many of the people who were questioned said that they were interrogated about their political views and travel plans and if they personally knew terrorists — based not on actual evidence, but on national origin. As an official charged with upholding the law, Barr should know not only are such practices offensive, ineffective, and a waste of limited resources, but they also undermine the very constitutional rights he swore to protect.Supporting secret military trialsAnd Barr’s history doesn’t stop there.Following the 1988 Lockerbie Bombings, Barr floated the idea of the president convening secret military tribunals to try people accused of involvement with suspected terrorist activities. Barr revived the idea of secret military trials after the 9/11 attacks and testified in support of President George W. Bush’s decision to order them without congressional authorization.Barr told the Senate that the president has the power to order such trials as long as he cites “national defense” interests. Barr said that “no war need be declared for this power to come into being,” and that there is “no geographical limit” for the president to exercise such powers. Anyone declared a foreign adversary, he said, “is not entitled to constitutional protections.”More recently, Barr’s belief that the president has virtually unchecked security powers is also seen in his defense of the first version of Trump’s Muslim ban.Such beliefs are in keeping with his sweeping views of executive power. Indeed, Barr has said that “the real threat to domestic liberties is the artificial restriction of our powers of national defense by gratuitously expanding constitutional guarantees beyond their intended office.”Endorsing detention and denying rightsBarr’s nomination should trouble anyone worried about executive overreach, especially as Trump is trying to go beyond his authority to ban asylum-seekers and expand detention, including the separation of parents from their children.During the George H.W. Bush-era, Barr endorsed the administration’s use of the U.S. Naval Base at Guantanamo Bay to detain Haitians seeking asylum in the U.S., denying them access to legal advice during their asylum proceedings. A federal judge rebuked the government for indefinitely detaining the Haitians and denying them access to legal counsel.The Trump administration, meanwhile, has announced that it will force asylum seekers to wait in Mexico while their claims for protection are processed. And right now, the president is threatening to formally declare a national emergency in order to build his border wall without congressional approval or appropriations.As Trump leads attacks on civil liberties and the rule of law, often by making false claims about national security, senators must ask Barr about his troubling record and make sure that he will not become a rubber stamp for the president’s unlawful actions.
Amid rising floodwaters from Hurricane Florence in September, two women in the custody of the Horry County Sheriff’s Office were left to drown in the back of a transport van.The facts are as straightforward as they are damning. The two deputies, Joshua Bishop and Stephen Flood, transporting Nicolette Green and Wendy Newton to a hospital for mental health treatment disregarded roadblocks indicating flooded roadways. Floodwaters quickly overtook the van, and it was soon submerged. The women remained trapped as the water filled the van’s locked compartment.This tragic loss of life was both predictable and preventable.The sheriff’s department fired both officers in October, and on Jan. 4, prosecutors announced criminal charges against them. This is an important step toward individual accountability for the wrongful deaths of these two women. But criminal charges alone remain an imperfect and short-sighted remedy. In order to ensure a similar tragedy never happens again, the failures that led to the deaths of Green and Newton must be identified and addressed on a systemic level.When people are taken into custody — whether as patients receiving mental health treatment, as was the case with Green and Newton, or as immigrant detainees, pretrial detainees, or convicted prisoners — they are at the mercy of the state. Once in custody, people must depend on the state for their most basic needs: food, medical care, mental health treatment, and physical protection. The state is constitutionally obligated to meet those fundamental needs. The deputies driving Green and Newton, however, failed to meet this basic charge.People with serious mental illness, like Green and Newton, are even more vulnerable when placed into custody. Across the country, there are about 35,000 patients in state psychiatric hospitals. And there are nearly 10 times that number — more than 350,000 people — with serious mental illness incarcerated in state prisons and jails. In fact, approximately 20 percent of jail detainees and 15 percent of state prisoners live with a serious mental illness.Yet when natural disasters strike, too often states disregard the needs of the most vulnerable people in their care. In the case of Green and Newton, the transporting deputies deliberately and inexplicably declined to follow the safe route mapped out for them. In other situations, officials similarly have failed to follow protective protocols designed to ensure the safety of the community, simply because the people in their care were in custody. These are not isolated incidents, but familiar patterns that must be addressed.More than 10 years ago, as Hurricane Katrina ravaged New Orleans, local officials abandoned prisoners, and some staff, in the Orleans Parish Prison with no electricity and chest-high floodwaters. Officials later evacuated prisoners to other facilities around the state, where many were subjected to systemic abuse and racially motivated assaults. The ACLU National Prison Project issued a scathing report, documenting the systemic failures that led to chaos and crisis. Despite post-hoc oversight and reprobation, officials in jurisdictions across the country have continued to ignore the lessons of history.During Hurricane Florence, South Carolina implemented mandatory evacuation zones for residents in areas threatened by the storm. Even so, the state refused to evacuate a prison that sat in that evacuation zone, leaving hundreds of vulnerable prisoners in harm’s way. In the midst of Hurricane Harvey, Texas prisoners reported being forced to remain in flooded prisons filled with sewage and without adequate access to food and potable water. And during Hurricane Irma, prisoners in the St. Thomas jail endured sewage-flooded cells and inadequate food, water, and security staffing.Emergency contingency plans, particularly in areas prone to natural disasters, should be standard procedure instead of last-minute afterthoughts. The lessons of Katrina, Florence, Harvey, and Irma should be studied and remembered. Plans of action to protect people in custody must then be implemented with the same care and detail as the plans designed to protect the general population.Individual accountability for the deaths of Green and Newton is a step in the right direction, certainly. But officials must now also ensure they are prepared for when the inevitable strikes again.
Last month, news broke that in June 2018, President Trump’s current nominee for attorney general, William P. Barr, sent an unsolicited 20-page memo to the Justice Department critiquing special counsel Robert Mueller’s current investigation into Russian election interference.Barr, who previously served as attorney general under President George H.W. Bush, penned the memo as “a former official deeply concerned with the institutions of the Presidency and the Department of Justice.” The memo questions the scope of Mueller’s investigation, and it argues that Mueller should not be permitted to demand answers from the president about possible obstruction of justice based on attempts by Trump to pressure former FBI Director James Comey to drop his investigation of Trump’s ex-National Security Advisor Michael Flynn.The fact that Barr sent Trump this memo, and may have subsequently been rewarded with a nomination to join Trump’s cabinet, raises serious concerns. To start, the memo’s legal theories advance an overly expansive view of presidential power. More specifically, the memo prompts questions about whether Barr would order Mueller to halt further inquiry into possible obstruction by the president if the Senate confirms him. It even raises questions about whether Barr deliberately sought to curry favor with Trump by taking a position favorable to him in order to secure a top government position.Legal commentators are divided in their interpretation of the Barr memo. Marty Lederman, a former top Obama administration lawyer, attacks the memo for “conjuring from whole cloth a preposterously long set of assumptions” about Mueller’s investigation. He also critiques Barr’s analysis, more broadly, for its sweeping views of the president’s constitutional role and prerogatives, including the notion that the president has “absolute” and “all-encompassing” constitutional authority over actions by executive branch officers in carrying out law enforcement powers given to them by Congress, including decisions about criminal investigation and prosecution. In a New York Times op-ed, Daniel Hemel and Eric Posner go further, arguing that Barr’s memo “seriously damages his credibility and raises questions about his fitness for the Justice Department’s top position.”Others, however, have been more muted in their critiques. For example, Jack Goldsmith, who served as head of the Justice Department’s Office of Legal Counsel under George W. Bush, offers a qualified defense of Barr’s memo, maintaining that Barr’s positions on executive power have “significant support” in precedent. While that view may not be surprising coming from a former top lawyer in the George W. Bush administration, perhaps Goldsmith’s more interesting point is that a close reading of the Barr memo suggests that Barr has not already made up his mind to stop Mueller’s investigation into obstruction by Trump. Rather, Goldsmith suggests, the memo may actually and openly concede a plausible path to Trump’s eventual guilt. Goldsmith points to Barr’s statement that he is “in the dark about many facts” and Barr’s recognition that, at least in some circumstances, the president can commit obstruction of justice by sabotaging a proceeding’s truth-seeking function — for example, by encouraging perjury or inducing a witness to change his or her testimony.That is a critical concession, according to Goldsmith, and it reduces the importance of what has been the most attention-grabbing argument in the Barr memo — that Mueller could not pursue an obstruction charge if Trump merely “hoped” Comey would drop his investigation of Flynn or fired Comey without proof that Trump sought to impair evidence-gathering.Even if Goldsmith is right that Barr has not entirely prejudged Mueller’s investigation, however, the memo is worrying and should trigger intensive scrutiny by the Senate during the upcoming confirmation hearings.The Senate needs to press Barr on his views of executive power, which will have ramifications far beyond the Mueller investigation. The Senate should not confirm any attorney general whose extreme views of presidential power diverge from Supreme Court precedent and a proper regard for our constitutional separation of powers. My colleagues have already described how Barr previously laid the groundwork for massive violations of Americans’ privacy rights in creating the National Security Agency’s bulk data collection program. The Barr memo enhances our fears about how its author might further erode constitutional rights if he is again appointed attorney general.The Senate needs to probe Barr on his views of obstruction of justice and how he might interpret the federal obstruction law if he knew more about the facts. In particular, the public needs to know under what circumstances Barr would halt Mueller’s obstruction investigation. Even if Barr was acting as a well-intentioned former public servant, and not as a suppliant for a client, it is essential to scrutinize how his positions on the presidency could affect the ongoing investigation into possible malfeasance by this particular president. And the Senate must likewise demand answers from Barr on whether, and to what extent, he will use claims of executive privilege to keep secret portions of Mueller’s report, stymying further investigation by Congress.Senators should ensure that the nation’s top law enforcement official isn’t going to stand in the way of a full and accurate account of key events in the Trump presidency.Sign up for the ACLU’s Best Reads and get our finest content from the week delivered to your inbox every Saturday.
Last week, USA Today ran a hit piece on federal prisoners with the tabloid headline, “Government shutdown: Federal inmates feast on Cornish hens, steak as prison guards labor without pay.” Not to be outdone, The Washington Post followed this up with their own shameful story under the headline, “‘I been eatin like a boss’: Federal prisoners served steak by unpaid guards during shutdown.” The problem here is twofold. First, the shutdown has nothing to do with the food served to federal prisoners and, second, the food descriptions are wildly exaggerated.I should know. I was a federal prisoner from 2007 to 2013 and ate thousands of meals during that time. Twice a year — usually Thanksgiving and New Year’s Day — federal prisoners receive “special” meals for the holidays. These meals are rare, highly anticipated, and a touch above the low-quality food prisoners get the rest of the year. While the article used “steak” in the headline for impact, it was a little more accurate in the article, referring to the meal as roast beef. Mind you, this roast beef is not the corner delicatessen version but a grey, rubbery, low-cost version.As offensive and archaic as these articles were, the worst aspect is they conflate a long-standing holiday meal tradition within the Bureau of Prisons with President Trump’s government shutdown. There is no fairness in blaming federal prisoners for the situation BOP staff find themselves in due to Trump’s shutdown — but it sure makes for good clickbait. Unfortunately, the government shutdown has very real impacts on federal prisoners, which the reporters ignored in their attempt to generate outrage.With budgets frozen, daily life in prison will become even more miserable. Delays in mail being delivered; unstocked commissaries; shuttered gyms; and no classes, visits, transfers, or library access take a toll on peoples’ well-being and the relative peace in the federal prison system. I recall during potential shutdowns in the 2000s that even toilet paper was being parceled out at the rate of one roll per week.During the current shutdown, the BOP has furloughed a portion of its staff and is making other staff work without pay, restricting many aspects of prison life even more than usual. My experience in federal prison was that during budget crises or potential shutdowns, all programs perceived as extras or nonessential were canceled or curtailed. And I would argue that much of what the BOP perceives as “extra” is actually essential.According to The Marshall Project, at some facilities, social visits were canceled during the holiday season due to the lack of staff in the visiting room. Visits are a critical part of prison life. They help prisoners connect to the outside world, build and repair relationships with their families, and aid reentry, all of which contribute to reducing recidivism.I also worry about the prisoners who are waiting for compassionate release. The program has already been criticized by criminal justice reform advocates for how slow it processes applications, and the shutdown will only make this worse. Despite the fact that elderly and terminally ill prisoners’ lives hang in the balance, the BOP will consider compassionate release “nonessential.” The result: People will die in prison while their applications go unread.Then there’s the mental health aspect to the shutdown. A significant number of people in federal prison also require mental health treatment, which will not happen while the government is shut down. A little-known fact is that all staff at a federal prison can be assigned security details, in my personal experience, and the shutdown will likely increase this. If the psychology staff is required to operate as guards, then there is no staff to run the mental health programs.Finally, I worry about what it must be like to be in federal prison right now with prison guards and staff upset and angry about the government shutdown. Articles that conflate the government shutdown with holiday meals are grossly inappropriate and will only create an even more hostile environment if guards’ resentment against prisoners grows.So ignore the stories about prisoners living it up during the shutdown. The reality is that prison conditions have and will only continue to deteriorate as the shutdown deprives the BOP of the resources it needs to be fully staffed. Prisoners will face the worst of the shutdown, a fact the hit pieces ignore. That’s the real story, not prisoners getting a holiday meal that I assure you is just a notch above inedible.
Standing up for your First Amendment right to protest can be challenging — especially if you’re a government employee.Since Dec. 22, nearly 800,000 government employees nationwide have been affected by the partial federal government shutdown, putting a stop to work and paychecks. Despite President Trump’s claim that federal workers “agree 100 percent with what I’m doing,” many have wondered about their right to protest during the shutdown — and whether there could be workplace retaliation for doing so.Here are some answers.Can federal workers organize a protest to convince government leaders to end the shutdown?Yes. While federal employees are subject to certain restrictions of their First Amendment free speech rights while functioning in their official capacity, they still retain the right to engage in free speech activities as private individuals.That said, it would be smart to check any employment policies that may apply to ensure that such speech and expressive activity is not listed as a violation of an employee handbook or code of conduct. If such policies cover private speech on a matter of public concern, they are likely unconstitutional, but the government may nevertheless attempt to invoke them.Can federal workers protest during the shutdown without repercussion?The Supreme Court has repeatedly held that people do not surrender their First Amendment rights by accepting public employment. Courts have drawn a line between work time and private time, so any restrictions about what a federal government employee can do in their personal time would be problematic. But if a federal worker organizes a protest, it is important to make it clear that the participants are doing so on their own time and not in their official capacities.What is the Hatch Act and how does it affect federal workers?The Hatch Act prevents certain federal employees from engaging in partisan political activities, such as engaging in partisan actions while on duty or using the employee’s official authority to affect the outcome of an election. However, the law does not prohibit federal employees from engaging in a protest or speaking out on a political issue outside of work hours. Can a federal worker talk to the media about the shutdown?When federal workers are speaking as government representatives in connection with their official duties, then the government has a much greater ability to regulate such speech. But when federal workers speak as private individuals and outside of the scope of their employment, then they retain the usual First Amendment protections.That means that while the government may be able to limit federal workers from speaking out about their problems with particular coworkers or internal management decisions by their supervisors, for example, the government certainly can’t prohibit a federal worker from talking about how the shutdown has affected their life — for example, having difficulty paying bills or stress at home.Can the government regulate the speech of any federal worker?The government may claim it has additional power to regulate the speech of certain high-level officials because such positions require personal loyalty and confidence for proper functioning. This makes it more difficult for such employees to know when their speech is subject to regulation.Overall, the First Amendment right to join together in protest or peaceful assembly is critical to a functioning democracy. These protests reflect the profound importance of our constitutional right to peaceful assembly where people come together, voice their dissent, and organize for change.
In 1992, a little less than a year into his new job, Attorney General William P. Barr added to the zeitgeist of “tough-on-crime” policies when he issued the Bush administration’s “24 Recommendations to Strengthen Criminal Justice.” Barr’s harsh approach, which included expanding capacity for pretrial detention and offsetting the cost of such expansion with the labor of inmates, was distilled by the Office of Policy and Communication and given an unequivocal title, “The Case for More Incarceration.” At the time, there were about 850,000 people incarcerated across America’s state and federal prisons — the highest number to that point.With Barr’s confirmation hearings for attorney general scheduled for next week, his writings on criminal justice deserve careful scrutiny from members of the Senate Judiciary Committee, especially as the nation increasingly rejects policies that led to the current crisis of mass incarceration. Barr was an ardent champion of policies that have transformed America into the world’s leading incarcerator, and there’s little reason to believe that his opinions have changed. The Senate Judiciary Committee must inquire as to whether he still believes that prison expansion is the best response to crime. Barr’s thesis in “The Case for More Incarceration” wasn’t subtle: “There is no better way to reduce crime than to identify, target, and incapacitate those hardened criminals who commit staggering numbers of violent crimes whenever they are on the streets.” Barr blamed “a small group of hardened, chronic offenders” and “violent predators” for America’s pain.“Too many violent criminals are sentenced to probation with minimal supervision,” Barr wrote in the introduction to the report. “Too many violent criminals are sentenced to prison but are released early on parole or simply to relieve the pressure of prison crowding. None of us is naive enough to think that these criminals will suddenly become upstanding, law-abiding citizens upon release.”He distilled the essence of his prescription to three simple points: “First, prisons work. Second, we need more of them. Third, inadequate prison space costs money.” For Barr, mass incarceration had no negative effects — “the most common objections to incarceration do not hold up to scrutiny.”And a failure to incarcerate, he argued, will only cost the nation in tax revenue, jobs, and property value. He then suggested a simple solution — cutting the use of parole and probation as a crime-reducing measure because individuals who benefit from such arrangements of release commit “avertable crimes.”These views have long been rejected by scientific research, and a bipartisan consensus has formed that America’s prison population is far too large. But Barr seems captured in the very reflexive “tough-on-crime” politics that so many others have rejected as naïve, costly, and inhumane. In 2014, the National Research Council refuted the analysis that high incarceration rates reduce crime. It found that most studies estimated the “crime-reducing effect of incarceration to be small,” and instead, recognized the astronomical expansion of incarceration to have an “uncertain” correlation to crime reduction. Given the magnitude of American incarceration, the impact on such policies on crime reduction “was unlikely to have been large.”The report also found that harsh policies propel the expansion of incarceration by mandating longer sentences that have little preventative utility and can instead “have the effect of increasing post-release criminality.” The NRC also found that when it comes to crime reduction, the “incremental deterrent effect of increases in lengthy prison sentences is modest at best,” and that “overreliance on the severity of punishment” has not been proven to be good crime-reduction policy. In the last 40 years, the amount of people held in prisons and jails has increased by 500 percent. Since 1991, when Barr first took office as attorney general, America’s incarcerated population has nearly tripled. This increase is a consequence of a myriad of policies, many of which Barr advocated, such as expanding the use of pretrial detention in local jails.Between 1993 and 2008, the jail population increased from 223,568 to 472,607 people. According to the Prison Policy Institute, this increase is “driven by the rise of pre-trial detention and in the holding of people for other agencies.” Many of these people have not been convicted of a crime and remain detained because they are too poor to pay for release. In 2017, Human Rights Watch found that in California, at least 63 percent of people in county jails “have not been sentenced, but are serving time because they cannot afford to pay bail.” Furthermore, in federal prison, the increase in the overall population is not largely violent offenders, as Barr would suggest, but “lower-rate and lower-level offenders.”Twenty-eight years ago, Barr’s tough-on-crime attitude was revered by the Senate, and he was swiftly confirmed. Today, many Americans and an increasing number of members of Congress see it for what it is: an unduly harsh and counterproductive waste of resources and human potential that disproportionately damages the most vulnerable communities in America.In recent years, many states and the federal government have responded by taking measures to reduce criminal sentences and incarceration as well as make the system fairer. Louisiana, Arkansas, Michigan, and Hawaii, for example, have expanded probation eligibility to steer offenders away from prison in the first place, while Connecticut, Michigan, Mississippi, Rhode Island, and South Caroline have all reduced their incarcerated populations between 14 and 25 percent in the past decade. And last month, Congress passed and President Trump signed the First Step Act, which, among its many modest reforms, allows judges discretion to reject mandatory minimums for drug offenses.Voters have also made their voices heard at the ballot box, too, approving more criminal justice reforms during the midterms. In Florida, which was one of four states that permanently barred former felons from voting, voters restored the franchise to approximately 1.4 million people, and in Louisiana, voters finally ended the practice of non-unanimous juries. Voters also rejected the war on marijuana. In Michigan, voters approved recreational use of marijuana, while Oklahoma, Missouri, and Utah approved medical marijuana use. As the country embraces criminal justice reform and seeks an end to mass incarceration, the Senate Judiciary Committee must determine if Barr is still the same champion of mass incarceration that he was a quarter-century ago. As the committee prepares to question Barr on his record, it should reaffirm a commitment to reform or face the political consequences.
“Sunshine is the best disinfectant.”That’s a line that is used so much that it’s become almost trite. But it’s oft-repeated because it is so true. And here in the Keystone State, the Pennsylvania State Police is doing everything in its power to block access to its policy on monitoring social media. So we’re headed to the state Supreme Court to get it.The ACLU of Pennsylvania’s attempt to obtain the state police’s social media monitoring policy has been a two-year odyssey that started in March 2017. Using the state’s Right-to-Know Law, we submitted a request for the policy. In response, the state police’s open records officer sent us a nine-page document that was so heavily redacted that it was nonsensical. Some pages showed only the headers of some sections. Other pages were completely blacked out. No reasonable person could conclude that such a response was transparent or in the spirit of open records.Pennsylvania’s Right-to-Know Law allows a person to appeal a denial or a partial denial of a request to the commonwealth’s Office of Open Records, an independent state agency that is intended to be a neutral arbiter in disputes over requests. After reviewing the state police’s social media policy in camera — a legal term that means the review is conducted privately and not as part of the public record — the OOR agreed with us that the policy should be an open record and that the state police’s claim that it could deny the request under the “public-safety” exception in the law was not plausible.Score one for transparency.But, as noted above, the saga did not end there. As they have the right to do, the state police appealed that decision to the Commonwealth Court, one of Pennsylvania’s appeals courts. Without reviewing the contents of the policy, the court sided with law enforcement and upheld the state police’s decision to give us the largely redacted policy.It’s important to pause here for a moment and consider the implications of the court’s decision. By not reviewing the state police’s policy, which would have given the court an understanding of the rationale for redacting most of the document, the Commonwealth Court effectively gave state police — and any other law enforcement agency in Pennsylvania — a blank check to apply the public safety exception of the Right-to-Know Law to any open records request. That is a dangerous precedent and will allow law enforcement to act unchecked and without public accountability.That’s why we’re taking this case to the Supreme Court of Pennsylvania. The public has a right to know how its state police monitors social media. We know that law enforcement can and has utilized social media to track activity protected by the First Amendment. This is not a hypothetical scenario. It’s real.In 2018, the ACLU of Massachusetts released a report that found that the Boston Police Department had used software for tracking social media activity for a brief time in 2014 and then throughout 2015 and tracked keywords that included #MuslimLivesMatter, “protest,” “Ferguson,” and “ummah,” the Arabic word for community. The Boston police’s monitoring program swept up thousands of records, including a Facebook post by a then-City Councilmember who had mentioned Ferguson, Missouri, in writing about poverty and homelessness.Fittingly, in a lesson on why public transparency is so important, Boston police dropped the program after a public backlash in 2016, when the department asked for bids on a $1.4 million dollar contract for another monitoring program, according to the Boston Globe.In 2016, the ACLU of California found that the software company Geofeedia was marketing it’s monitoring product to law enforcement agencies as a means for tracking protests and referred to unions and activists as “overt threats.”And we’re no strangers to such a controversy here in Pennsylvania. In 2010, another state agency, the Office of Homeland Security, contracted with a private company to provide daily bulletins of the activities of anti-fracking activists, antiwar organizers, animal rights demonstrators, and Muslims observing Ramadan, deeming them all threats to public safety. The director of the office was forced to resign over the incident, and then-Gov. Edward Rendell described the actions of the office as “extraordinarily embarrassing.”That’s why we want to know what policy the Pennsylvania State Police has in place to control and restrict how social media monitoring is used in investigations. Power applied under cover of darkness can be extremely dangerous and damaging. We hope that the Supreme Court of Pennsylvania will shine some light on what the state police is doing.
What if you lost your job? It could happen to anyone, right?In 2016, 19.9 million people were laid off or discharged. What if you needed unemployment benefits to sustain you between jobs? That’s not unreasonable either. There were 1.83 million people collecting unemployment benefits last spring. But what if you had to take and pass a drug test in order to collect those benefits, even if you lost your job for reasons unrelated to drug use? Well, that is exactly what the Trump administration is proposing.This month, the Department of Labor finished soliciting feedback on a proposed federal rule, which the ACLU opposed, that would encourage states to conduct blanket drug testing for those seeking unemployment insurance. Never mind that current law already denies unemployment benefits to people terminated for drug use. And don’t worry that such blanket drug testing is probably unconstitutional. The Fourth Amendment protects people from unreasonable searches by the government. Courts have said drug testing is a search and subject to Fourth Amendment protections. So unless there are probable cause and individualized suspicion, there should be no search. Exceptions to this rule have been made when the government can show it has a “special need” and that need outweighs individual privacy rights, but that is not the case here either. Simply put, the government is on very shaky ground if it thinks it can subject the unemployed to blanket drug testing. Courts have rejected government attempts to mandate suspicionless drug testing for other public assistance programs. The ACLU successfully challenged Florida’s mandatory drug testing for those seeking Temporary Assistance for Needy Families (TANF). The ACLU also successfully argued that a public technical college did not have special needs that justified drug testing all incoming students, even if some of those students pursued studies that posed some safety risk.And as if being unconstitutional were not enough, broad drug testing programs for unemployment benefits is bad policy. Opening the door for states to drug test for unemployment insurance imposes huge human and financial costs. The proposed rule itself acknowledges that state funding for unemployment insurance is at an all-time low and that drug testing is an expensive endeavor that produces negligible results. In 2016, in 13 states that spent $1.6 million collectively to drug test TANF applicants, only 369 people tested positive out of around 250,000.On top of the financial cost, drug testing those seeking unemployment benefits adds an unnecessary and degrading toll to the existing stigma of being out of work. Blanket drug testing just further demeans people who the government has no reason to suspect of using drugs. This type of futile and unconstitutional intrusion into people’s privacy simply because they are out of work is unacceptable.If the Department of Labor issues a final rule that encourages states to drug test the unemployed, states should know better. Imposing blanket drug testing for unemployment insurance is a lose-lose scenario for them. If states implement this federal rule, they will end up spending money implementing a costly program that does not help employers or workers while spending more money defending the program when its constitutionality is challenged in court.When it comes to drug-testing unemployment applicants, states should just say no.
If no one tells you they’re discriminating, is it still discrimination?According to the Trump administration, the answer is no. In a memo reported by The Washington Post last week, the administration has placed in its cross hairs a civil rights enforcement tool that has for decades been used to counter discriminatory actions when a bias motive is not obvious.Federal civil rights laws protect against discrimination on the basis of race, national origin, religion, sex, disability, and age. Many of these laws were first enacted in the 1960s to prohibit overt discrimination — like restaurants and stores that openly refused to serve Black customers — in housing, employment, and education that not long before had been sanctioned by government. Even at that time, Congress recognized that discriminatory motives could also be easily disguised and that our country’s long history of discrimination made it easy to perpetuate inequality without much thought.For these reasons, civil rights laws incorporate disparate-impact liability, which focuses on consequences, not just motives. Ever since, disparate impact liability has been a vital tool in advancing equality. In 2014, Justice Kennedy remarked on the role of disparate impact in Texas DHCA v. Inclusive Communities: “It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent [discrimination]that might otherwise result from covert and illicit stereotyping.”How does disparate impact liability work?First, disparate impact analysis asks whether there is a disparity caused by a particular policy or practice. Second, it asks if there is a legitimate, nondiscriminatory, need for the policy? If so, is there an alternative way to meet the need that does not result in disparate impact? Statistics are an important part of disparate impact analysis, but they are never the sole facet of inquiry. The multistep road map provided by disparate impact analysis allows for careful consideration.Disparate impact liability has advanced civil rights in many areas. In the housing sector, disparate impact suits have invalidated housing restrictions that arbitrarily and unfairly exclude people of color from certain neighborhoods, perpetuating segregation. For example, in the wake of Hurricane Katrina, St. Bernard Parish blocked the construction of affordable, multi-family housing and restricted housing rentals to blood relatives in an area that was roughly 88 percent white and 7 percent Black.For no good reason, these actions made it harder for Black people to live in the area. Disparate impact analysis was applied to challenge and invalidate these acts. Disparate impact has also been applied to address unfair housing eviction policies that disadvantage women when they report experiencing domestic violence in their home.The Department of Education recently rescinded guidance on school discipline, suggesting that they will no longer enforce disparate impact liability. In many cases, investigating disparities in school discipline also reveals evidence of disparate treatment, and the department is considerably narrowing its enforcement authority by refusing to seriously examine these cases.But even where intent is not evident, discipline policies that have an unnecessary disparate impact deny students an equal educational opportunity. For example, the rescinded Department of Education guidance from 2014 gave an example of a school policy that assigned discipline consequences for truancy. In the example, Asian-American students are disproportionately disciplined because they tend to live farther away and are dependent on public transit, which often gets them to school late. The school, in its defense, asserts a legitimate goal of encouraging good attendance.Under a disparate impact analysis, the investigation would then consider whether the policy was reasonably likely to achieve the goal of reducing tardiness and whether there are available alternatives, like aligning class and bus schedules or excusing tardiness due to bus delays, that would further good attendance without producing a disparate impact. In scenarios such as this, removing unfair and unnecessary barriers to education furthers equal opportunity. Ignoring them creates an unequal playing field for some schoolchildren. To the detriment of our nation’s schoolchildren, however, the Education Department will no longer be doing these analyses.The availability of disparate impact is also important for challenging emerging forms of discrimination. In the age of big data, employers, lenders, insurers and others have increasing access to data about us — things like where you shop, whether you just got married, whether you are interested in products for Black hair. Access to this data makes it easier to differentiate and target groups and easier to produce disparate impacts, affecting whether you see a job advertisement, how much you are charged for health insurance, or whether you are marketed a loan with high-risk terms. Thinking about disparate impacts is critical to ensuring that advances in technology don’t expand inequality and segregation.The attack on disparate impact is the latest in a series of Trump administration assaults on civil rights. No matter how far the administration attempts to cut protections, discrimination continues to be a real problem in America. The federal government, charged with protecting civil rights, should be doing more, not less to advance equality.
This week, amid a partial government shutdown, senators tried to sneak through a bill that would encourage states to suppress constitutionally protected political boycotts of Israel.Ultimately, the Combating BDS Act failed to make it to the Senate floor, largely because enough people exercised their First Amendment right to protest the bill and educate senators that they should get their priorities straight. But it seems that’s not the only education that is in order.The recent spate of bills that seek to penalize Israel boycotts is a bipartisan problem. Many Senate Democrats blocked the Combating BDS Act this week, rightly arguing that Congress should end the government shutdown rather than making this the first order of business of the new session. But four Senate Democrats voted to pass the bill, and many others, including Sens. Chuck Schumer (D-N.Y.) and Ben Cardin (D-Md.), have expressed support for other anti-boycott efforts, even when they have come at the expense of our constitutional rights.This week, however, Sen. Marco Rubio (R-Fla.) led the charge, and even took to Twitter to spread a number of perplexing and often downright false statements about the First Amendment and the Combating BDS Act.Here’s what Sen. Rubio got wrong:Fiction: Local and state companies should be free to end contracts with companies that boycott Israel.Senator Rubio suggested that not only should states be free to boycott the boycotters, they have the right to boycott them. That’s a troubling proposition, and one specifically prohibited under the Constitution.First Amendment rights belong to the people, not the government. The government cannot impose its views on people or punish them for expressing views that the government disagrees with. This principle applies to both individuals and companies doing business with the state, and with full force to politically motivated boycotts. Two federal courts recently affirmed this, blocking laws in Arizona and Kansas that penalized individuals and companies for boycotting Israel. And this principle was famously tested in the McCarthy era, when many state laws required government employees to declare they were not members of the Communist Party or other “subversive groups” in order to keep their jobs.The ACLU successfully challenged many of those laws on constitutional grounds — just as it’s now fighting unconstitutional state laws suppressing lawful boycotts of Israel — and anti-Communist loyalty tests have been mostly relegated to the dustbin of history. The same should happen to the laws requiring people to pledge not to boycott Israel as a condition of doing business with the government.Fiction: The Combating BDS Act ‘doesn’t punish any political activity.’That’s what Sen. Rubio tweeted to his followers on January 7. Less than a day later, he tweeted that his bill “allows local & state govt’s to boycott the boycotters.” That, by definition, is state-sponsored punishment for a constitutionally protected activity, and it’s what the First Amendment seeks to protect people from.Representative Eliot L. Engel (D-N.Y.), told The Washington Post that he prefers another bill, the Israel Anti-Boycott Act, because, he argued, it seeks to address constitutional concerns about the Combating BDS Act. That’s also false. Both bills come from the same unconstitutional playbook and make a mockery of the First Amendment. In fact, the Israel Anti-Boycott Act takes it to another level, imposing criminal penalties of up to $1 million on individuals or companies boycotting Israel or any foreign country if the boycott were called for by international governmental organizations like the United Nations. Senators Diane Feinstein (D-Calif.) and Bernie Sanders (I-Vt.) similarly expressed concerns that the bill violated the First Amendment.Fiction: Opposing anti-BDS laws is de facto support of BDS.Not true. The ACLU doesn’t take a position on boycotts of Israel, but we have long defended the right to boycott, which is a proud part of America’s constitutional tradition and protected by the First Amendment. And we’re not the only ones. A number of members of Congress — many of whom who don’t take a position on the Boycott, Divestment, and Sanctions movement or have even expressed opposition to it — have First Amendment concerns with the bill.Whatever your views on BDS, we all should be able to agree that the government has no business telling us which causes we can or cannot support.Marco Rubio and his colleagues may not agree with the BDS movement, and they have a First Amendment right to express that. But public officials cannot use the power of public office to punish views they don’t agree with. That’s the kind of authoritarian power our Constitution is meant to protect against.
William Barr, President Trump’s nominee for attorney general, has a history of getting it wrong. From designing warrantless surveillance programs to justifying the president’s power to disregard acts of Congress, Barr has advanced dubious legal theories that have been rejected by the courts, Congress, and the public.As Barr begins the confirmation process, senators must question Barr on his record regarding the right to privacy and the Fourth Amendment — which raises serious concerns about his suitability to be attorney general. Barr has violated or supported violations of Americans constitutional rights, leaving a disastrous legacy of warrantless spying and government abuse.Barr was the godfather of the NSA’s bulk data collection programWhile serving in the George H.W. Bush administration, Barr helped develop what became a “blueprint” for the National Security Agency’s mass phone surveillance program. In 1992, he and his then-deputy Robert Mueller authorized the Drug Enforcement Administration to begin amassing phone call data in bulk, ordering telephone companies to secretly hand over the records of all phone calls from the U.S. to countries — which eventually grew to be well over 100 nations — where the government believed drug traffickers were operating.As USA Today reported when the DEA program came to light, it “was the government’s first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime.”The DEA program ultimately became a model for the NSA’s phone records collection program under the Patriot Act of 2001, which the agency used to collect the domestic call records of tens of millions of Americans. The NSA program, exposed by NSA whistleblower Edward Snowden, was found to be illegal by a federal appeals court, and in 2015 Congress voted on a bipartisan basis to partially reform it. Barr, unsurprisingly, was an ardent supporter of the Patriot Act when it was enacted. In fact, he said the law didn’t go far enough.Congress should question Barr about whether he will be a roadblock to still-needed surveillance reforms and whether he believes the government has the power to resurrect or expand warrantless spying programs.Barr worked to make it easier for Verizon and other companies to hand over massive amounts of sensitive customer data to the governmentIn the George W. Bush era, during which Barr served as executive vice president and general counsel at Verizon, the telecom giant participated in a massive, warrantless surveillance program known as Stellar Wind. Under Barr’s watch, Verizon allowed the NSA — without any court approval — to intercept the contents of Americans’ phone calls and emails and to vacuum up in bulk the metadata associated with Americans’ phone calls and internet activities.This surveillance was prohibited by the Foreign Intelligence Surveillance Act (FISA), which Congress passed to regulate government surveillance practices and prevent abuses. The Justice Department eventually concluded that portions of the program were illegal. Other portions proved to be a forerunner of the NSA’s Upstream surveillance program, which the government continues to use today to unlawfully search Americans’ emails and internet communications without a warrant.As Verizon’s general counsel, Barr later lobbied Congress to give telecom companies retroactive and future immunity from private lawsuits for participating in illegal surveillance programs, which would make sure that companies like Verizon would never be held accountable for helping the government violate Americans’ privacy.Barr himself has held the legal position that Americans do not have a Fourth Amendment-protected privacy interest in data held by third parties — a view that the Supreme Court declined to adopt in last year’s pro-privacy ruling about cellphone location tracking by police.Senators should question Barr on whether he still holds the position that individual’s do not have a Fourth Amendment-protected interest in information held by third parties. In addition, they should question whether he will support actions that widen the surveillance dragnet, as his history at Verizon suggests that he will have few qualms about conscripting other private companies — including tech giants like Facebook and Google — into handing over private user information to the government.Barr has defended the president’s power to disregard laws passed by CongressBarr is also an advocate of sweeping executive authority, which would have major implications for oversight. In a 1989 memo, Barr, then serving as assistant attorney general for the Justice Department’s Office of Legal Counsel, raised doubts about the ability of Congress to limit the executive branch’s powers, and he has even argued that the FISA law is too restrictive and that the president can disregard its limits under the guise of fighting terrorism.As long as the president invokes national defense, Barr believes an administration could embark on virtually any endeavor. This philosophy helped lend credence to the radical theory that the executive branch has nearly unlimited counterterrorism powers that Congress cannot regulate, which is shared by the likes of John Yoo, who in the George W. Bush administration worked to justify the Stellar Wind program and torture.This theory could be used as justification to flout laws passed by Congress addressing everything from foreign policy to immigration to domestic law enforcement.The future of privacy rightsThe Trump administration, with help from Congress, has already done grave harm to our right to privacy. While Trump has raised concerns about perceived surveillance abuses, albeit often with false and misleading claims, he signed into law the FISA Amendments Reauthorization Act, which arguably codified and expanded certain surveillance powers.Barr’s nomination is more evidence that the Trump administration will continue to pursue vast surveillance powers at the expense of our Fourth Amendment rights and will have little respect for Congress’ power. Members of the Senate Judiciary Committee must seize their opportunity to question Barr thoroughly and determine whether he will protect Americans from government intrusions and expansive executive power if he’s returned to run the Justice Department for a second time.
One of the core purposes of the First Amendment is to allow people, regardless of their views, to hold the government accountable through expression. So, if your elected representative has an official Facebook page where she invites comments, can she block you from commenting because you criticize her work?According to a federal appeals court, the answer is a resounding nn Monday, the Fourth Circuit Court of Appeals ruled that the interactive portion of a public official’s Facebook page is a “public forum,” so an official cannot block people from it because of the opinions they hold.The case arose after the chair of a local board of supervisors in Virginia, Phyllis Randall, briefly blocked a critic from her official Facebook page and deleted a comment he made about her colleagues’ management of public funds.The critic, Brian Davison, represented by the Knight First Amendment Institute, filed a lawsuit arguing that Randall had violated his First Amendment rights by removing him from a public forum — space the government makes available for people’s expressive activity — because she disagreed with his views. Randall countered that she has the authority to control the page’s content — including the comments. (President Trump has used some of the same arguments in a lawsuit against him for blocking people on Twitter.) We filed a friend-of-the-court brief in support of Davison, arguing that officials cannot prevent people from joining in a public conversation because of their viewpoints, and the three-judge appeals court panel agreed.It is important to remember that people who hold public office can wear two hats: Sometimes, they act as private individuals, and other times they are government actors. While they maintain their First Amendment rights when acting as private individuals, they are subject to the limits the First Amendment places on the government whenever they’re doing government work.As the court rightly held, that includes any time that they’re controlling a Facebook page they maintain in their official roles. Specifically, the court recognized that when a public official uses a Facebook page as a tool of governance — that is, when she uses it to inform the public about her government work, solicits input on policy issues through the page, and swathes it “in the trappings of her office” — she is controlling the page as a government actor.And if she opens that page to public comment, the interactive space of the Facebook page constitutes a public forum. The fact that the page exists on a website owned by a private company doesn’t change that.That means that, when a public official blocks critics from the page because of their viewpoints, she violates the Constitution. Indeed, the right to criticize the government is at the heart of the First Amendment. The court specifically recognized blocking as infringing on that right, noting that blocking someone in order to silence criticism of government work is itself evidence of government action.The Fourth Circuit is the first appellate court to opine on this issue, and its order controls public officials and agencies in Virginia and nearby states. Elsewhere around the country, public officials have also stopped censoring critics on their social media pages thanks to the work of the ACLU.These cases help to ensure that our First Amendment rights remain protected as our democracy increasingly moves online. The fact that a public official disagrees with you on an issue doesn’t mean she can silence you. Indeed, it means the opposite — and that holds true whether you’re speaking out in a public park, at a town hall meeting, or on a Facebook page.
On Tuesday night, President Trump will address the nation in a primetime speech in which he’ll make his case for a 1,000-mile border wall, followed by a trip to South Texas’ Rio Grande Valley on Thursday.But Trump’s characterization of the situation on the southwest border is driven not by facts but by his own nativist agenda and political obsession with building a wall. In advance of the speech, here are some things you might hear, fact-checked.Lie 1: Border crossings are at or near an all-time high.Border crossings are at some of the lowest levels in decades. Trump and his aides fabricate facts and spread misinformation in order to justify many of the president’s false claims about the border, even though the Department of Homeland Security itself reports differently. The Border Patrol’s own statistics show that the number of migrants apprehended at the border last year was the fifth lowest total since 1973.While the Trump administration has repeatedly cited increased migration from Central America as a national security-based justification for the wall, a majority of these migrants are families and unaccompanied children who voluntarily present themselves to immigration authorities. Indeed, the average Border Patrol agent is apprehending fewer than two people per month, and about 60 percent of these migrants are families and children.Lie 2: Terrorists are entering the country through the southern border, creating a national security crisis.Many of the migrants at our southern border are refugees from violence with a right to apply for asylum in the United States. Many are families with young children or children alone. There is no evidence that any terrorist group is sending people through Central America.White House Press Secretary Sarah Sanders was recently called out for making false claims about thousands of supposed terrorists attempting to enter the country through the U.S.-Mexico border. The Justice Department confirmed to NBC News that “no immigrant has been arrested at the southwest border on terrorism charges in recent years.”Lie 3: The wall would stop gang members.The Trump administration has claimed that a wall is needed in order to stop gang members from coming into the U.S., but many of these migrants are in fact fleeing gang violence and recruitment in their home countries. We have also seen a pattern where government officials have wrongly labeled young migrants as gang members with false and unsubstantiated claims, hyping the threat of groups like MS-13 and threatening the rights of innocent young people.Trump is raising the spectre of gangs to spread harmful stereotypes about immigrants, distort and invent numbers of alleged gang members apprehended at the border, and punish the very people who are most affected by gang violence.Lie 4: The wall would stop drugs from pouring in through the border.The president likes to suggest that construction of a border wall will help bring an end to drug addiction problems in America.However, the clear majority of illegal drugs, including opioids, enter through legal ports of entry, and a wall would have no impact on the use of passenger vehicles, boats, planes, and tractor trailers that are primarily used to smuggle drugs.Lie 5: We need a new wall. There are over 650 miles of existing border barriers. A report by the Government Accountability Office found that Trump’s ill-conceived wall plan would waste billions of dollars and might “cost more than projected, take longer than planned, or not fully perform as expected.”Congress has already approved almost $2 billion to fortify existing border barriers since 2017, and border communities and local officials have protested Trump’s plans for a 1,000-mile long wall.It is also unlikely that new barriers will reduce migration, the project’s purported aim: A recent study by Stanford and Dartmouth economists found that the addition of hundreds of miles of border barriers as a result of the 2006 Secure Fence Act barely had any effect on migration. Our recent report, “Death, Damage, and Failure,” details the harms resulting from border walls. The name sums up how destructive and unnecessary Trump’s wall is: We can't let him and his administration lie and extort their way to building any of it.Members of Congress know that neither the facts nor the public are on his side. A majority of Americans are opposed to Trump’s border wall follies, including his disgraceful and futile push to use a government shutdown to force Congress into giving him billions of dollars in new wall funding.Congress should continue to reject demands for wasteful border wall funds and instead vote on pending bipartisan measures to reopen the government.
Last week, in response to a lawsuit filed by the ACLU of Louisiana, the Lafayette Public Library agreed to lift its unconstitutional ban on patrons organizing events called Drag Queen Story Time.This was welcome news for our clients, the LGBTQ community, and everyone in Lafayette who will once again be able to use library space without being unfairly interrogated or censored by library officials.Drag Queen Story Time was designed by Lafayette residents to give young people diverse, positive role models and to combat harmful gender stereotypes. The goal of the program was to provide children with constructive lessons in inclusion and diversity, while also having a positive impact on literacy.But when Matthew Humphrey and other Lafayette residents tried to organize the event at the Lafayette Public Library, they were stymied by library officials who refused to allow them to use the space for any event related to Drag Queen Story Time. All residents who wanted to use a meeting room for any purpose were made to sign a form disavowing any affiliation with Drag Queen Story Time and promising not to use the space for that purpose. The form also threatened residents that they could be sued if they used the library for that purpose.The new library policy stemmed from a frivolous lawsuit filed by an anti-LGBTQ group called Warriors for Christ, which was trying to block the library from hosting Drag Queen Story Time. The library’s response to the lawsuit was not only to hold off on any official sponsorship of the event, but to prohibit their patrons from doing so as well.Last month, the ACLU of Louisiana filed suit, challenging the ban on Drag Queen Story Time as a violation of the First Amendment right to free speech. As we explained in our suit, it’s a fundamental principle of our democracy that the government can’t discriminate against people — or silence them — based on the content of their speech. By banning people from using public library meeting rooms for the purpose of organizing a Drag Queen Story Time, library officials were engaging in targeted, viewpoint-based discrimination in violation of the First Amendment.Adding insult to injury, library officials allowed extremists to usurp the public library to advance their intolerant agenda. The Warriors for Christ argued in their court filings that allowing Drag Queen Story Time would mean “endorsing transgenderism” as a religious ideology and “relegating Christians to second class citizens.” As their suit was being litigated, the library reached an agreement with the court to “stand down” on planning the event, and introduced the form requiring library patrons to disassociate themselves from Drag Queen Story Time.These baseless and offensive claims would be laughable if they didn’t inflict such real harm on society and on the rights of vulnerable kids and communities in desperate need of acceptance and support.The Constitution protects all people’s right to practice whatever religion they wish, or none at all. If the Warriors for Christ wanted to organize a meeting to denounce libraries and books, we would defend their right to do so. However, contrary to the Warriors for Christ’s rhetoric, gender identity is not a religion and we won’t let them use the legal system to advance their radical brand of intolerance.But what the Constitution does not give the “Warriors” the right to do is discriminate against, harm, or silence people on the basis of their gender identity or sexual orientation. Nor does it give them the right to banish LGBTQ people from public spaces, as we’ve seen in attempts to do here in Louisiana and across the country.Last week, it seemed that the library realized the unconstitutionality of their actions and agreed to stop using the form. This was a big victory for the LGBTQ community.“Too many LGBTQ youth are suffering in communities where they feel they were made wrong. They have to know it gets better,” said our client, Matthew Humphrey. “Kids who are different have to know it's okay, and kids who aren't different have to know it's okay for other kids to be different. That's what Drag Queen Story Time is about.”The Lafayette library and parish have an obligation to protect the rights of everyone they serve. Drag Queen Story Time is a show that must go on. Thankfully, it seems as though the Lafayette Public Library finally recognized that.
When my daughter Jordan began her junior year at Mingus High School in Cottonwood, Arizona, she immediately felt stigmatized. On her first day of school, the school’s administration forced Jordan to wear a bright red identification badge. Everyone on campus knows what this “scarlet badge” means. Upperclassmen at Mingus wear grey colored badges, but any junior or senior student with missing credits are given a red badge, and it doesn’t signify courage.Publicly shaming my child and countless of other students for falling behind academically is wrong. I know how hard my daughter is working to get her grades up, and I know how discouraged she feels when she walks into school every morning with the “scarlet badge.” Yet she knows that every time a teacher or fellow student sees her red badge they think less of her.In September, Jordan, her friend Jonah, and one other student took initiative and went directly to Mingus High’s school board. They shared how the “scarlet badge” was leading to an increase in bullying, harassment, and discrimination. The board listened to their comments and only revoked the badge for one student who has a learning disability. They did not change the policy.I decided to contact the ACLU of Arizona’s Demand to Learn campaign. Aimed at eliminating practices that lead to student withdrawal, I wrote to them about my concerns with the “scarlet badge.” I worried that the academic pressure that the “scarlet badge” inflicts in students can lead to further disengagement from class. What’s more, Mingus is one of the few high schools in the area we live in. Transferring schools is not an option for students who are bullied for struggling academically.The ACLU of Arizona sent a letter to Mingus, notifying them that their badge scheme is unlawful. A student’s academic information is private, but the “scarlet badge” forces certain upperclassmen to display their sensitive academic information to everyone on campus. This is a violation of the Family Education Rights and Privacy Act. Under FERPA, public schools may only disclose student education records to authorized school officials, such as teachers. Fellow students are not authorized officials. Yet, by forcing Jordan to walk around with a badge that lets the whole school that she’s missing credits, the school is advertising her academic achievement level.This badge scheme subjects all students, particularly students with learning disabilities, to ridicule and discrimination. Students with learning disabilities, who may already struggle to keep up, have faced increased pressure in their academic performance knowing that other students will know what their grades are if they are given a “scarlet badge.” High school is hard enough. Students like my daughter should not be publicly shamed for falling behind academically. Jordan and her classmates head back to Mingus this week for a new semester. If any upperclassmen had difficulty with a class last semester, all their friends will know if they return to class with a “scarlet badge.” Although Mingus has yet to revoke the policy, I’m proud of my daughter and her friends for speaking out against it.I know it wasn’t easy, but I hope their activism will inspire other students and parents to stand up against the “scarlet badge” policy.
In the middle of a government shutdown, the Senate leadership’s first order of business in the 116th Congress is not legislation to reopen the government.Instead, and incredibly, the Senate is again trying to slip a measure intended to suppress protected political expression past public scrutiny. The bill is the “Combatting BDS Act,” which would express federal approval of state laws that place restrictions on boycotts of Israel and its settlements, as part of an effort to weaken the Boycott, Divestment, and Sanctions (BDS) movement against Israel. The bill is included in S.1, which the Senate plans to vote on this week. On Monday, the ACLU sent a letter to senators expressing opposition to the bill. To their credit, Sens. Ben Cardin (D-Md.), Chris Van Hollen (D-Md.), and Bernie Sanders (D-Vt.) have urged the Senate not to consider any bills, other than those that would reopen the government, until the shutdown ends. We agree. The Combatting BDS Act represents yet another covert attempt by the Senate to enact legislation that would burden fundamental free expression rights without proper consideration on the heels of a failed attempt last month to pass a different law criminalizing boycotts of Israel. But moreover, voting on it now, amid a partial government shutdown, would be, as Sen. Cardin noted, “a fundamental failure to govern.”The Combating BDS Act would attempt to give legal cover to states that enact laws penalizing businesses and individuals who participate in boycott activities against Israel and Israeli-controlled territories. These state laws, dozens of which exist in many different forms, generally compel state contractors and any entity in which the state invests — for example, through a state-run pension, retirement, or endowment fund — to sign oaths promising not to boycott Israel as a requirement of maintaining their relationship with the state. However, as courts found in the McCarthy era, the government can’t fire its employees or contractors just because they refuse to sign an oath promising not to engage in disfavored expression or association. And two federal courts have already held state requirements to swear not to participate in boycotts of Israel be unconstitutional.While we take no position on Israel boycotts, the BDS movement or the Israeli-Palestinian conflict, we do maintain that states should not be sanctioning businesses on the basis of First Amendment-protected expression and association. We have consistently — and successfully — argued this position in situations where government entities have threatened to boycott a company based upon its constitutionally protected speech and associational choices. This is especially true where the ideological position has no connection whatsoever with the business relationship at stake. Math teachers in Kansas and newspapers in Arkansas should not have to disavow participation in protected expression and association in order to do their jobs or engage in business relationships with the state. With the Combatting BDS Act, Congress would be approving state laws imposing such unconstitutional requirements.On Monday, Sen. Marc Rubio (R-Fla.), the lead sponsor of the bill, tweeted:However, as we responded, the government, under the Constitution, does not have the right to punish people for their views. The First Amendment protects the people, not the government.Even setting aside our fundamental disagreement about the wisdom of the Combatting BDS Act, it is abundantly clear that the Senate should not be considering this legislation, or any other legislation, until it fulfills its first duty: maintaining a functioning government. The Senate should vote first to open the government and alleviate the pain of this interminable shutdown that disrupts people’s lives and livelihoods every second that it continues.
This piece originally appeared at The New York Times. After The New York Times revealed last month that Facebook continued to share personal information of millions of consumers with companies like Netflix, Yahoo, Spotify and Google — despite contrary assertions to Congress — many people decided to delete their Facebook accounts. But if Facebook’s actions, as described by The Times, violated the law, consumers should be able to send an even more powerful message, one that could leave a much larger imprint on the company’s ledger books: suing the company for damages.Facebook knows this and has been working to make it near impossible to do so.For example, consumers recently filed a lawsuit in Illinois claiming Facebook violated a state privacy law by using facial recognition technology on their uploaded photographs without their consent. Facebook is fighting the lawsuit by trying to get the court to buy into troubling arguments that would make it even more difficult for consumers to sue lawbreaking companies for damages.Facebook is arguing that the law at issue doesn’t grant consumers the ability to sue companies, otherwise known as a “private right of action,” based solely on the fact that a company violated the law. Instead, according to Facebook, consumers should have to show that the lawbreaking practice caused additional harm beyond a mere violation to get their day in court and damages.To continue reading this piece at The New York Times, click here. Sign up for the ACLU’s Best Reads and get our finest content from the week delivered to your inbox every Saturday.
Imagine a symphony orchestra barred by the state from performing again because a musician was found to have sold marijuana to a colleague backstage. Imagine a bookstore being shuttered by the government because peace activists planned acts of civil disobedience in a backroom. Imagine a movie theater permanently closed because an employee assaulted a patron.In Providence, Rhode Island, you don’t have to imagine it, because it happened to a strip club called the Foxy Lady. On Dec. 19, the Providence Board of Licenses voted to permanently shut down the adult entertainment venue, which has been in operation for decades, after police arrested three employees for allegedly soliciting sex from undercover police officers earlier in the month. By doing so, the board threw more than 200 people out of work less than a week before Christmas.Within days, the state Department of Business Regulation quickly restored the club’s liquor license, but the Foxy Lady’s owners were required by law to petition the state Supreme Court to regain its entertainment license. On Monday, the ACLU of Rhode Island submitted a friend-of-the-court brief to that court arguing that it should grant a stay of the board’s revocation of the Foxy Lady’s license on the grounds that the board violated the due process and First Amendment rights of the establishment. Yesterday, the state Supreme Court agreed to issue a stay, allowing the club to reopen for now, but the threat of future closure remains.To understand the incredible severity of the punishment, a few things are worth noting. The Foxy Lady has been around for 38 years, and this is the first time it was hauled before the board for any violation. The board has a long-standing policy of progressive discipline for license violations, something it completely ignored in this case. In issuing the draconian penalty of permanent license revocation to the Foxy Lady, it concluded that having three women supposedly solicit sex from men who were patronizing a strip club constituted “a danger to the health, welfare and quality of life of the public” and posed a “severe” “harm to the community.”But compare that to some of the board’s other recent punishments meted out against license violators: a four-day suspension to a club where a double stabbing occurred, a 30-day suspension to a club found not to have in place required security plans when a patron fired a gun inside the establishment, and a 90-day reduction in hours to a club where a shooting took place right outside and the manager was found to have ordered the deletion of that night’s surveillance footage.The unfairness is compounded when one learns that the sting operation at the club was supposedly initiated because a female employee had, a few weeks earlier, been the victim of a sexual assault by a customer, and the club sought the police department’s help. Yet thanks to the police and the Board of Licenses, it’s women who have borne the brunt of the punishment. Three of them face criminal charges and have had their names and photos splashed across the media for a victimless crime, and dozens more were put out of work for weeks and without a paycheck — all under the guise of “protecting” women.The Foxy Lady provides entertainment protected by the First Amendment. The Cirque de Soleil it may not be, but before the government should be able to completely shutter an establishment engaged in free speech activity, a much stronger showing than the flimsy grounds presented here must be demanded.In addition to ensuring that the Board of Licenses acts with some consistency in penalizing violators, it is essential that clear, objective, and narrow standards are in place before any government agency should be able to decide whether an establishment engaged in First Amendment activity can be punished, much less completely shut down. As our brief noted:“The ordinance governing the Board’s revocation decision grants it authority to revoke a license ‘for any reason which the board may deem to be in the public interest.’ … That standard exemplifies the ‘unbridled discretion’ that the Supreme Court has repeatedly found to be inconsistent with the requirements of the First Amendment.”The precedent created by the board’s decision is unsettling. Just as unsettling is the board’s hypocrisy in being more concerned about the possibility of solicitation of consensual sex taking place in licensed establishments than the occurrence of actual violence. This puritanical obsession — the notion that sex deserves more condemnation than violence — may be a constant in American culture, but it deserves to be challenged when a government agency engages in it and tramples upon the First Amendment.Sign up for the ACLU’s Best Reads and get our finest content from the week delivered to your inbox every Saturday.
Imagine a symphony orchestra barred by the state from performing again because a musician was found to have sold marijuana to a colleague backstage. Imagine a bookstore being shuttered by the government because peace activists planned acts of civil disobedience in a backroom. Imagine a movie theater permanently closed because an employee assaulted a patron.In Providence, Rhode Island, you don’t have to imagine it, because it happened to a strip club called the Foxy Lady. On Dec. 19, the Providence Board of Licenses voted to permanently shut down the adult entertainment venue, which has been in operation for decades, after police arrested three employees for allegedly soliciting sex from undercover police officers earlier in the month. By doing so, the board threw more than 200 people out of work less than a week before Christmas.Within days, the state Department of Business Regulation quickly restored the club’s liquor license, but the Foxy Lady’s owners were required by law to petition the state Supreme Court to regain its entertainment license. On Monday, the ACLU of Rhode Island submitted a friend-of-the-court brief to that court arguing that it should grant a stay of the board’s revocation of the Foxy Lady’s license on the grounds that the board violated the due process and First Amendment rights of the establishment. Yesterday, the state Supreme Court agreed to issue a stay, allowing the club to reopen for now, but the threat of future closure remains.To understand the incredible severity of the punishment, a few things are worth noting. The Foxy Lady has been around for 38 years, and this is the first time it was hauled before the board for any violation. The board has a long-standing policy of progressive discipline for license violations, something it completely ignored in this case. In issuing the draconian penalty of permanent license revocation to the Foxy Lady, it concluded that having three women supposedly solicit sex from men who were patronizing a strip club constituted “a danger to the health, welfare and quality of life of the public” and posed a “severe” “harm to the community.”But compare that to some of the board’s other recent punishments meted out against license violators: a four-day suspension to a club where a double stabbing occurred, a 30-day suspension to a club found not to have in place required security plans when a patron fired a gun inside the establishment, and a 90-day reduction in hours to a club where a shooting took place right outside and the manager was found to have ordered the deletion of that night’s surveillance footage.The unfairness is compounded when one learns that the sting operation at the club was supposedly initiated because a female employee had, a few weeks earlier, been the victim of a sexual assault by a customer, and the club sought the police department’s help. Yet thanks to the police and the Board of Licenses, it’s women who have borne the brunt of the punishment. Three of them face criminal charges and have had their names and photos splashed across the media for a victimless crime, and dozens more were put out of work for weeks and without a paycheck — all under the guise of “protecting” women.The Foxy Lady provides entertainment protected by the First Amendment. The Cirque de Soleil it may not be, but before the government should be able to completely shutter an establishment engaged in free speech activity, a much stronger showing than the flimsy grounds presented here must be demanded.In addition to ensuring that the Board of Licenses acts with some consistency in penalizing violators, it is essential that clear, objective, and narrow standards are in place before any government agency should be able to decide whether an establishment engaged in First Amendment activity can be punished, much less completely shut down. As our brief noted:“The ordinance governing the Board’s revocation decision grants it authority to revoke a license ‘for any reason which the board may deem to be in the public interest.’ … That standard exemplifies the ‘unbridled discretion’ that the Supreme Court has repeatedly found to be inconsistent with the requirements of the First Amendment.”The precedent created by the board’s decision is unsettling. Just as unsettling is the board’s hypocrisy in being more concerned about the possibility of solicitation of consensual sex taking place in licensed establishments than the occurrence of actual violence. This puritanical obsession — the notion that sex deserves more condemnation than violence — may be a constant in American culture, but it deserves to be challenged when a government agency engages in it and tramples upon the First Amendment.
Earlier this year, letters from the state of Arkansas began drifting across my desk, demanding that our weekly newspaper, the Arkansas Times, either sign a pledge not to boycott Israel or forfeit all state advertising.The letters were the result of an obscure, cookie-cutter law passed in 2017 by our Republican-controlled legislature. Specifically, it requires any company entering into a contract with a public entity to certify that it “is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel.”Initially, we and our longtime state agency clients simply ignored it and went about our business of producing a newspaper. But when the University of Arkansas System began strictly enforcing the law last fall, it told us that we had to sign the anti-boycott pledge in order to continue running advertisements for the University of Arkansas-Pulaski Technical College.At that point, we had a decision to make. Times are hard in the publishing industry, and we really needed the business. But at what price? It had never occurred to us to boycott anyone, but the idea that the state would force a publishing company to take a political position in return for business was offensive.We then learned the law offered to let us continue to do business without signing the pledge, so long as we accepted a 20 percent cut in our ad rates. I said, “Well, to hell with them.” We were not going to pay a 20 percent tax for the right to hold beliefs independent of the Arkansas Legislature, at least not without a fight.So, with the help of the American Civil Liberties Union, we sued the state to have this law overturned on free speech grounds. Our hearing to get an injunction against enforcement of the law is on Friday, Jan. 4. In other states where similar laws have been passed, citizens have sued because they support the boycott against Israel based on how that country is treating the Palestinians. We’re focused on Arkansas at the Arkansas Times and have never editorially advocated for a boycott of Israel. But as journalists, citizens, and taxpayers, we dispute the right of the state to impose any ideological litmus test on a publisher or other business, when the only consideration in awarding a state contract should be merit.We’ve heard through the grapevine that the law has created some absurd confrontations for the state. For example, many state colleges and universities bring in touring musicians for concerts. Imagine demanding that a Rock & Roll Hall of Fame musician sign what amounts to a loyalty oath to the state of Israel before he can be paid. An architect from Fort Smith, Arkansas, who was bidding on a state job said it well when he wrote his local newspaper that he has “no political axe to grind with either Israel or the Palestinians, but this is a rather remarkable thing to require of a citizen to get a job.”Supporters of the law have argued that it is regulating action, not free speech. But political boycotts have long been recognized as free speech, going back to the civil rights boycotts of white businesses in Mississippi during the 1960s. If political boycotts are not protected, then neither is political speech.What other pledges might state legislatures require if this law is upheld? And what might the federal government, which has considered passing a criminal anti-boycott bill, come up with? Could legislatures in blue states penalize citizens or businesses for flying the Confederate flag? Might red state legislatures prohibit the state from doing business within anyone who boycotts Trump family businesses? Imagine similar scenarios where boycotts of tobacco companies or political parties are at issue.This law is a rabbit hole our country does not need to go down. Since when do American citizens have to pledge to act in the interest of a foreign power in order to do business with their own government? Since when does the state of Arkansas punish its own taxpayers in an effort to assist a foreign government with its domestic policy?As an American, I say it is none of their damn business what political beliefs we hold. We’ll see them in court.
The past two years have been challenging times, as we have witnessed attacks on our shared values and civil rights from the Trump White House and a Republican-dominated Congress. It can sometimes feel difficult to make change happen, but even in this hostile climate, ACLU activists helped drive key legislative victories to advance civil liberties during the 115th Congress, which ends tomorrow. As the new Congress is sworn in on Thursday, these victories should remind us that people power works in Washington, too, and should prepare us to take on emerging fights in the new year. Following pressure from advocates, Congress approved a criminal justice reform package that will help reduce mass incarceration in the U.S., and for the first time in over a decade, it reauthorized a law to improve conditions in the juvenile justice system. Lawmakers also passed critical legislation to reform the broken and secretive process Congress uses when an employee brings a claim of sexual harassment. Congress also failed to move forward with two troubling proposals: a $5 billion payment towards Trump’s border wall and a measure that would have penalized free speech.Here are some of the fights where activists made a difference during the 115th Congress:Stopping new funding for border wall and immigrant detention As recently as November, it seemed inevitable that Trump’s wall would get funded, and his administration’s brutal detention of immigrants would continue with impunity. Senate Democratic leadership was willing to commit $1.6 billion towards a border wall before negotiations with the president had begun in earnest, while the House Republicans approved $5 billion in its own version of the Homeland Security appropriations bill. Both chambers were poised to re-authorize, if not increase, Immigration and Customs Enforcement’s already exorbitant budget, allowing them to detain around 45,000 immigrants per day.But ACLU members made clear that our elected representatives should not cave to Trump’s dangerous demands.As a result, what once seemed like a sure thing is now anything but. Trump has followed through on his threat to shut down the government over his desire to get more money for his border wall, a boondoggle which would likely cause massive damage to the safety of migrants, border communities, and the environment. Incoming House Speaker Nancy Pelosi has said that the House will “will swiftly pass legislation to reopen government” that does not include new wall money, and a majority of House members in the new Congress oppose Trump’s wall.Many of the new members of the 116th Congress have vocally opposed Trump’s anti-immigrant agenda, and they will now a chance to weigh in, which is an important win in and of itself. So we have a chance to make our voices heard on the issue of the border wall as well as to work to stop Trump from looting other federal agencies for funds to pay for his wall and more detention. The new Congress should also spend more time investigating and preventing abuses at the border and by Trump’s detention and deportation force rather than giving billions of dollars to expand the administration’s brutal detention policies and sharply curtail ICE’s authority to transfer and reprogram money towards detention.Defending free speechThe final version of the spending legislation will not contain a measure penalizing free speech and protest. While that may sound incredulous, the last Congress had been considering slipping legislation into the budget that would criminalize politically motivated boycotts of Israel and potentially other countries. While the ACLU does not take a position on Israel-Palestine, we always fight for the freedom of expression of every person, and that includes those who are critical of the Israeli government or pro-Palestinian rights.The federal government should not be in the business of punishing First Amendment-protected activities simply because government disagrees with them. Federal courts have struck down state laws similarly curtailing speech critical of Israel in Arizona and Kansas following ACLU legal challenges.Advancing criminal justice reformA bipartisan coalition in Congress passed the FIRST STEP Act, which helps to address the country’s mass incarceration crisis by reforming federal sentencing laws. While much more is needed to be done to change a system that has inflicted grave harms on communities of color and dramatically increased the country’s incarcerated population, the FIRST STEP Act enacts key reforms on the federal level.The new law ends the practice of “stacking” gun sentences, retroactively applies a 2010 law reducing disparities between the crack and powder cocaine sentences, reduces mandatory minimums for certain offenses, and grants judges more leeway in sentencing. It also reforms “three strikes” laws and increases the number of credits incarcerated people can earn to shorten the length of their sentences. The president signed the bill into law in December.The version passed by Congress and signed by Trump is a significant improvement over a previous version of the bill, which only dealt with the conditions in federal prisons. But there is still a lot of work that needs to be done to change America’s criminal justice system, and lawmakers should use the FIRST STEP Act as a starting point to advocate for more comprehensive reforms.Reauthorizing juvenile justice protectionsIn a major breakthrough, Congress reauthorized the Juvenile Justice and Delinquency Prevention Act (JJDPA) for the first time in 16 years. The 1974 law addresses the treatment and conditions of the more than 50,000 kids in the juvenile justice system, and this year’s reauthorization contains improvements to help support and safeguard children.The JJDPA helps protect the safety of young people by limiting their contact with incarcerated adults and the time spent in adult facilities, and it also pushes states to use alternatives to incarceration, such as community and school-based programs and counseling. JJDPA also supports states in planning and implementing measurable goals to address the disproportionate arrest and detention rates among youth of color, who are overrepresented in the juvenile justice system.Overhauling sexual harassment policiesFollowing disturbing scandals regarding sexual harassment and other forms of discrimination on Capitol Hill, Congress unanimously approved the Congressional Accountability Act of 1995 Reform Act. Under the old system, workers who brought a claim of harassment or discrimination had the deck stacked against them: While members of Congress had government assistance to fight and settle claims, employees were left on their own to advocate for themselves. And that was just one aspect of how unfair the old system was to workers who faced harassment.This new law will better protect people who bring a claim of harassment or discrimination by providing access to confidential advisors, expanding protections to interns and fellows, eliminating mandatory mediation, and making sure that members of Congress, rather than taxpayers, are responsible for any financial awards or settlements for harassment, which would no longer be made in secret.These wins show that even in an era where civil liberties are under attack, activists can still deliver major victories and successfully advocate much-needed reforms in the United States.
President Trump has followed through on his threat to shut down the government in order to feed his border wall obsession. In fact, he’s gone further, stating that he’ll loot his cabinet departments, including the military, if necessary.After Trump refused to sign a bipartisan bill passed by the Senate, which would have kept the government open through February 8, 2019, White House Press Secretary Sarah Sanders suggested that the administration will somehow find money to pay for a border wall by raiding “every agency” for dollars. “We’re looking at every avenue available to us,” Sanders said. “The president asked every one of his cabinet secretaries to look for funding that can be used” to build the wall.Unfortunately there are bad precedents in the Trump administration for this sort of sham accounting: At the beginning of hurricane season, for example, the Department of Homeland Security (DHS) shifted nearly $10 million in disaster relief funds from the Federal Emergency Management Agency (FEMA) to use for ICE detentions.We have since seen a number of proposals from both the Trump administration and Congress to pay for Trump’s wall fetish. One was to provide $1.6 billion for his border wall along with a whopping $1 billion of “reprogrammed funds” for Trump to use on “immigration-related issues.” House Democratic Leader Nancy Pelosi accurately described this a “slush fund.”There has also been discussion of different types of long-term funding bills that would last until the end of the fiscal year, in September 2019. This could be a trap that gives Trump much of what he wants on the wall: Although a year-long funding bill would reopen the government and avoid more negotiations over DHS funding, it would also present a serious danger of providing Trump with massive resources to build additional border barriers.This is because such a bill — called a “continuing resolution” — replicates funding from the previous fiscal year. The 2018 spending bill for DHS, passed by Congress in March, included $1.375 billion in funding for border barriers — the same level of funding that, without explicit changes from Congress, would be included in a full-year continuing resolution for the 2019 fiscal year.Because the 2018 border funding prohibited the use of Trump’s wall prototypes and specified projects for “fencing,” “replacement walls” or “levee walls,” some incorrectly assume that the bill did not include wall funding. But as the president himself has recently recognized, there is little meaningful difference between a border wall and border fencing. Border communities know that they both lead to government seizures of private property, irreparable damage to wildlife and the environment, and more migrant deaths. Congress has a way out, and it doesn’t involve rewarding the Trump administration for its attacks on immigrants: A continuing resolution could be amended to explicitly divert border wall funds so they don’t fuel Trump’s cruel border policies. After the tragic deaths of two young children in CBP custody, even the agency’s Commissioner Kevin McAleenan has indirectly suggested how funds could be better used. He has testified that Congress could appropriate $4 billion to cover the “deficit at ports of entry” — which is presently invoked to justify the refusal to allow asylum-seekers to exercise their legal right to ask for refuge — and a “budget for medical care and mental health care for children” in new facilities to replace clearly inadequate and dangerous Border Patrol jails.If Congress needs more time to debate these amendments, it should take up the stopgap bill that the Senate passed last week to fund the government until February. Federal workers and contractors should not bear the brunt of Trump’s shutdown.Given that even CBP is talking about funding priorities other than border barriers, there is no reason for the new Congress to give in to Trump. Congress also needs to limit Trump’s ability to raid other budgets, including the military’s, for wall money.The administration is already moving money around to fulfill Trump’s anti-immigrant agenda: In November, The Daily Beast reported that DHS “quietly moved nearly $100 million dollars out of other areas of its budget” — including the FEMA transfer to ICE before hurricane season — to support its detention and deportation dragnet. Members of Congress have objected to the administration’s desire to divert $450 million in Department of Defense funding toward wall construction in Arizona.Immigration and Customs Enforcement needed the additional funds to finance its detention of a record number of people — there are nearly 45,000 people in ICE detention on average per day, significantly higher than the previous record of 40,520 funded by Congress for 2018. In other words, even after Congress funded ICE detention at unprecedented levels, the agency ignored its budget and outspent its account. And now it’s asking Congress not only to bail it out but also to give DHS — the department of family separations, the tear gassing of families, and the fatal neglect of children — a raise.Lawmakers who oppose any border wall spending should know that they have the public on their side: Over 60 percent of Americans oppose Trump’s border wall, and nearly 70 percent think it should not be a congressional priority. Polls have also found that residents of border states are strongly opposed to the wall. Just 35 percent of those surveyed most recently about the shutdown said they backed including money for the wall in a congressional spending bill. And only 25 percent said they supported Trump shutting down the government over the matter.Members of Congress should hold fast in their refusal to fund Trump’s obsession with achieving his monument to brutality at the border.
This article was originally published in The Los Angeles Times. For immigrants, there’s no way to sugarcoat 2018. The Trump administration enacted a series of draconian policies targeting noncitizens, and the one that will most define the year — and this administration — is the separation of thousands of children, some less than a year old, from their mothers and fathers at the U.S. border.Conceived as a means to deter people from seeking refuge, the scope of the “zero tolerance” family separation policy was unprecedented, notwithstanding the administration’s claim that past presidents engaged in similar practices. The government took more 2,500 children away from their parents. The government did this systematically, without regard for the trauma that would inevitably follow and without a plan for how these families could ever be reunited. This was the worst policy I’ve seen in more than 25 years of civil rights work.Of course, this was not the only attack on immigrants by the administration, which is also seeking to rescind the Deferred Action for Childhood Arrivals program, putting 800,000 young people who were raised here at risk of being deported. The administration has also enacted an asylum ban and abruptly taken protected status away from hundreds of thousands of people who fled wars and natural disasters decades ago.And yet what I saw this past year has made me hopeful.I spent much of the year traveling the country making legal arguments in defense of immigrants. I experienced the power of our courts to return children to their parents, affirm the fundamental right to seek asylum and stop entire communities from being hastily deported to countries where they fear persecution and torture.Our courts not only held the line in numerous cases involving the government’s worst abuses, but also issued decisions that spoke to the country we aspire to be.Click here to keep reading.
The enactment of the First Step Act earlier this month will bring some much-needed change to our criminal justice system. But the First Step Act remains just that, a first step — particularly with respect to the impact that mass incarceration has had on cisgender women and trans people.The legislation ends two gender-specific indignities of federal incarceration: the shackling of pregnant women and restrictions on access to menstrual hygiene products. Shackling pregnant women during delivery has zero safety or health purposes, and serves only to demean and endanger the individual and her infant. The First Step Act moves toward permanently banning this practice by prohibiting federal correctional authorities from shackling incarcerated women during pregnancy and for a period thereafter, with some exceptions. The act also requires the federal Bureau of Prisons to provide sanitary napkins and tampons at no charge. As with the shackling of pregnant women, unnecessary restrictions on access to menstrual health products have turned a normal bodily function into a nightmare for people in prison.These changes, in addition to the act’s other reforms, are welcome improvements, but they only begin to scratch the surface for incarcerated women. Even in the areas of pregnancy and menstrual health, many problems in federal prisons will go unaddressed. For instance, the often indiscriminate and arbitrary use of solitary confinement against pregnant women and the inadequate provision of OB-GYN care will not change. Furthermore, though cost will no longer be an issue, access to sanitary napkins and tampons is not guaranteed since institutions can continue to set arbitrary monthly quotas on such supplies. The act also will not end policies that deny or delay laundry privileges or a change of clothes to someone who has bled through their clothing. And if you are in federal immigration detention or are one of the unknown number of transgender prisoners in federal men’s facilities, you are not covered by the legislation at all.Moreover, most women behind bars will not benefit from the act simply because the vast majority of imprisoned women are in state and local facilities.In recent decades, women have been the fastest growing incarcerated population in the country. That growth has been concentrated in state and local facilities due to several factors. The increased criminalization of poverty at the local level means that jurisdictions across the country are throwing women in jail because they cannot afford to pay government fines and fees, and because they cannot afford bail. As a recent ACLU and Human Rights Watch report found, “While most women admitted to jails are accused of minor crimes, the consequences of pretrial incarceration can be devastating.” Whether in jail for a day or for months, women face the prospect of losing their jobs, apartments, children, and — as the deaths of Sandra Bland and Natasha McKenna remind us — even their lives.The rising women’s population in state prisons is partially the result of the overcriminalization of drug-related offenses, the spread of “broken windows”-style policing and sentencing, and the criminalization of behavioral responses to gender-based and sexual violence. Additionally, girls and trans youth — particularly youth of color — are being pulled into the criminal justice system earlier and more often through the increased criminal prosecution of in-school behavior and the school-to-prison pipeline.Most cisgender women and trans people who come into contact with the criminal justice system either have some history of substance abuse, or are survivors of or witnesses to violence. Yet state and local facilities often fail to provide appropriate trauma counseling, mental health services, or other supports that would reduce retraumatization and improve odds of successful reintegration upon release.The First Step Act’s requirement that incarcerated people in federal prisons be placed within 500 driving miles of their families signals an acknowledgment that family separation harms both people in prison and their loved ones. However, this rule will not apply to the roughly 60 percent of women in state prisons and 80 percent of women in local jails who are mothers with minor children. Even though these women also are more likely to be single parents or primary care providers than jailed fathers, odds are that they will be imprisoned far from home, regardless of the impact on their personal or their families’ well-being.The reforms of the First Step Act should be implemented and expanded at the state and local levels. More steps should be taken to permanently ban the shackling and solitary confinement of all prisoners and ensure free and unimpaired access to menstrual health supplies and OB-GYN medical services. Additionally, we must end money bail and close debtors’ prisons, adopt incarceration and prosecution alternatives, and institute trauma-informed practices in all detention and prison facilities. These are just a few examples of more gender-inclusive reform efforts.To achieve meaningful gender justice, we need to apply a gender lens in analyzing both problems and solutions. Otherwise, and despite important efforts like the First Step Act, sexist inequities in institutions throughout society, including the criminal justice system, will persist.
This piece was originally published in the Washington Post.I was exposed to abuse at a very young age. I knew certain things early on, without ever having to be told. I knew that men have the power — physically, socially and financially — and that a lot of institutions support that arrangement. I knew this long before I had the words to articulate it, and I bet you learned it young, too.Like many women, I had been harassed and sexually assaulted by the time I was of college age. But I kept quiet — I did not expect filing complaints to bring justice. And I didn’t see myself as a victim.Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.Friends and advisers told me I would never again work as an actress — that I would be blacklisted. A movie I was attached to recast my role. I had just shot a two-year campaign as the face of a global fashion brand, and the company dropped me. Questions arose as to whether I would be able to keep my role of Mera in the movies “Justice League” and “Aquaman.”I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.Imagine a powerful man as a ship, like the Titanic. That ship is a huge enterprise. When it strikes an iceberg, there are a lot of people on board desperate to patch up holes — not because they believe in or even care about the ship, but because their own fates depend on the enterprise.In recent years, the #MeToo movement has taught us about how power like this works, not just in Hollywood but in all kinds of institutions — workplaces, places of worship or simply in particular communities. In every walk of life, women are confronting these men who are buoyed by social, economic and cultural power. And these institutions are beginning to change.We are in a transformative political moment. The president of our country has been accused by more than a dozen women of sexual misconduct, including assault and harassment. Outrage over his statements and behavior has energized a female-led opposition. #MeToo started a conversation about just how profoundly sexual violence affects women in every area of our lives. And last month, more women were elected to Congress than ever in our history, with a mandate to take women’s issues seriously. Women’s rage and determination to end sexual violence are turning into a political force.We have an opening now to bolster and build institutions protective of women. For starters, Congress can reauthorize and strengthen the Violence Against Women Act. First passed in 1994, the act is one of the most effective pieces of legislation enacted to fight domestic violence and sexual assault. It creates support systems for people who report abuse, and provides funding for rape crisis centers, legal assistance programs and other critical services. It improves responses by law enforcement, and it prohibits discrimination against LGBTQ survivors. Funding for the act expired in September and has only been temporarily extended.We should continue to fight sexual assault on college campuses, while simultaneously insisting on fair processes for adjudicating complaints. Last month, Education Secretary Betsy DeVos proposed changes to Title IX rules governing the treatment of sexual harassment and assault in schools. While some changes would make the process for handling complaints more fair, others would weaken protections for sexual assault survivors. For example, the new rules would require schools to investigate only the most extreme complaints, and then only when they are made to designated officials. Women on campuses already have trouble coming forward about sexual violence — why would we allow institutions to scale back supports?I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion — and my life and livelihood depended on myriad judgments far beyond my control.I want to ensure that women who come forward to talk about violence receive more support. We are electing representatives who know how deeply we care about these issues. We can work together to demand changes to laws and rules and social norms — and to right the imbalances that have shaped our lives.
After a high-speed pursuit in South Dakota in September, a highway patrol trooper shot and wounded a man after he “ignored verbal commands” and “tackled” the trooper. One month later, the Department of Criminal Investigation cleared the trooper of any wrongdoing. Then in November, a South Dakota sheriff’s deputy shot and killed a suspect who had fled after reportedly firing at deputies during a pursuit.The people of South Dakota, however, do not know the names of these law enforcement officers. And the reason for this lack of transparency is Marsy’s Law, an obscure set of victims’ rights, which South Dakota voters added into the state constitution in 2016. In both instances, the officers invoked their right to privacy under Marsy’s Law as crime victims.Yes, you read that right. The officers, public servants who used their weapons in the line of duty, both claim they are crime victims and therefore assert that the government is legally prohibited from releasing their names publicly.While Marsy’s Law looks slightly different in each the 11 states where it has been adopted, one consistency is its overly broad definition of victim and the victim’s right to privacy.According to Marsy’s Law in South Dakota, a victim is “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” This definition captures everything from someone who witnesses a drug sale to a corporation that experiences minor check fraud or shoplifting.Also under South Dakota’s Mary’s Law, everyone who fits under that expansive definition of victim has the “right to privacy.” This, according to the law, “includes the right to refuse an interview, deposition or other discovery request, and to set reasonable conditions on the conduct of any such interaction to which the victim consents.”These rights, apparently, now extend to police officers, with grave implications for government transparency, public scrutiny, and freedom of the press in the state.If police are considered victims under Marsy’s Law every time they are involved in a police shooting, a hostile arrest, or similar situation, officers would have the right to withhold their name from the public and avoid answering questions from the press or, even more disconcerting, from defense counsel. Given the sweeping right to refuse an interview, it’s worth considering whether Marsy’s Law could be invoked by an officer to refuse an interview by their own internal affairs investigators.Our objections to this interpretation of victims’ rights goes beyond the ACLU’s previously stated concerns about granting victims a constitutional right to refuse discovery requests. Enabling police to withhold information from defendants and defense counsels could strike an even greater blow to a defendant’s constitutional right to see evidence that could prove the defendant’s innocence.Moreover, it is exactly in situations of police violence that the public interest in transparency is the most heightened. In the context of civilian victims of violent crime, particularly victims of domestic or sexual violence, withholding their name from the media may be appropriate.Police officers, however, are public servants. When they are involved in arrests, shootings, or other law enforcement activities, they are doing so on behalf of the taxpayer and using taxpayer money. There are different expectations of transparency and public access to information.South Dakota already amended Marsy’s Law once to prevent the unintended withholding of information related to unsolved crimes. And yet those tweaks didn’t address the law’s continued infringement on public accountability and transparency.After the November mid-term elections, Marsy’s Law will be in effect in 11 states, and the people behind it, including California billionaire Henry Nicholas, are expected to pursue its adoption in other states. The spread of Marsy’s Law to new states, coupled with Nicholas’ 50-state strategy and goal of adding Marsy’s Law to the U.S. Constitution, makes the law’s unintended consequences a concern for all.States can strengthen victims’ rights without adopting the overly broad and problematic language in Marsy’s Law and without simultaneously shielding law enforcement from public scrutiny. Just as we said that victims’ rights should not come at the expense of defendants’ rights, neither should victims’ rights come at the expense of police accountability.As public servants entrusted with the use of deadly force, police should be held to a higher standard of accountability and transparency. The use of Marsy’s Law to instead lower that standard is one more reason why states should be leery of adopting this law and its unintended consequences.
On Tuesday, the Federal Commission on School Safety issued recommendations that it claims will help makes schools safer following the mass shooting in Parkland, Florida. But at the center of the report is a proposal that will endanger millions of public school students, especially students of color and students with disabilities, by reversing federal guidance intended to address racial disparities in school discipline. Doing away with the guidance will weaken federal civil rights protections at a time when the Government Accountability Office reports that Black K-12 students receive punishments that are overly severe and frequent in schools across the country.Following Parkland, the Trump administration faced massive protests from student activists calling for gun control measures. The administration established the Federal Commission on School Safety in response to the demands for action from across the country and appointed Education Secretary Betsy DeVos to chair it. But rather than grapple with students’ demands, the commission has pushed the false narrative that schools can be protected from mass shootings by rolling back civil rights protections for Black and brown students and students with disabilities.The commission has placed blame on the school discipline guidance issued by the Departments of Justice and Education under the Obama administration in 2014 to address the nationwide problem of students of color receiving harsher punishments than their white peers for the same infractions. The commission claims that this guidance “endangers student safety,” despite the lack of any evidence linking civil rights protections for students of color to school shootings.Rather than “overreaching,” as the administration claims, the school discipline guidance simply provides educators and students with clarification of long-standing civil rights laws and reminds schools of the need to avoid and repair discrimination in the application of school discipline. The guidance was developed in light of a substantial body of academic research detailing the disparate discipline of youth of color as well as the government’s own investigations, which included findings of “cases where African-American students were disciplined more harshly and more frequently because of their race than similarly situated white students.”The final analysis from the Departments of Justice and Education: “Racial discrimination in school discipline is a real problem.”The school discipline guidance is also part and parcel of a comprehensive, bipartisan movement to reform the ways in which schools address discipline to reflect what we’ve learned from decades of research. Research and statistics show that the “zero-tolerance” approaches to student conduct that flourished in the 1990s and early 2000s were counterproductive. Increasing punishments, removing kids from school, and referring them to the juvenile justice system led to higher rates of recidivism and an increased chance of involvement with the criminal justice system as an adult — all at a huge cost to the state, children, and their families. New scientific research about adolescent brain development provides an understanding of why zero-tolerance doesn’t work. As any parent knows, children are prone to make mistakes and to challenge rules set by grown-ups. This is actually part of the process of learning good decision-making skills. But unlike adults, adolescents’ brains respond best to immediate and positive inputs and do a poor job of comprehending far-off or negative consequences — like punishment.LISTEN: CRIMINALIZING SCHOOLKIDS (PODCAST)Education researchers and dedicated teachers and administrators have developed many approaches to school discipline that rely on positive support and intervention techniques, rather than escalating punishments, to improve outcomes for students, teachers, and schools. The Department of Education has invested in assisting school districts across the country to implement best practices in school discipline. The school discipline guidance is part of a range of resources on Rethinking School Discipline, including information about evidence-based programs and free technical assistance, provided by the Department of Education. The commission’s recommendations are an about-face on these years of work by career professionals within the Department of Education.We’ve known these recommendations were coming, even before the commission began its work. When it was created, it was tasked with a starkly worded objective: “Repeal of the Obama Administration’s ‘Rethink School Discipline’ policies.” We’ve also been well aware of the hostility towards civil rights protections exhibited by the commission’s chair, Education Secretary DeVos, who has demonstrated an aversion to enforcing the Education Department’s civil rights policies or even acknowledging that systemic racism exists.The call to rescind the federal school discipline guidance is not grounded in a sincere effort to protect student safety. Fair, evidence-based approaches to school discipline promote safe and healthy schools, and there is no evidence linking school discipline reform to school shootings. Schools should continue their legal obligation to administer discipline in a nondiscriminatory way and develop the right alternatives to exclusionary discipline. Sign up for the ACLU’s Best Reads and get our finest content from the week delivered to your inbox every Saturday.
When Benjamin Hodge, who is serving a nine-month sentence at the Criminal Justice Complex (CJC) on St. Thomas in the U.S. Virgin Islands, told a corrections officer he had found a cockroach in his food, he did not expect that officer would choke him to near unconsciousness.Though the jail’s own chief investigator found that the officer, Jamal Crooke, had used excessive force and lied in his account of the incident, Crooke continues to work at the jail to this day. No criminal investigation was opened into potential assault charges. No known disciplinary action was taken against him.That’s particularly stunning given the video footage of the confrontation between Hodge and Crooke. We recently showed the footage in federal court, in our longstanding lawsuit against the government challenging the horrific conditions and abuse at the jail.It starts innocently enough: Hodge examines his food and finds a cockroach on his chicken patty. He shows the cockroach to his fellow prisoners, and requests a new tray from Officer Crooke, which Crooke provides. A few minutes later, video shows Crooke returning to the unit with a cup of water requested by another prisoner.As soon as he hands the cup to the prisoner who requested it — and without missing a beat — Crooke launches a ferocious attack on Hodge, who is shown standing nearby, hands by his side. Crooke throws a punch at Hodge with his right arm, and Hodge and Crooke stumble out of view of the camera. Seconds later, they come back on camera, with Officer Crooke using a chokehold — which is prohibited by Virgin Islands Bureau of Corrections policy — to drag Hodge by the neck.Hodge later stated that he almost passed out from the chokehold.This is the reality of life for the men and women held at the CJC, a dangerous facility where prisoners are subject to violence and inadequate medical and mental health care. Staff at the facility, run by the Virgin Islands BOC, continually struggle to adhere to their own policies, properly investigate security incidents, and discipline problem corrections officers.Chokeholds are an inherently dangerous, potentially lethal use of force that BOC officers are absolutely barred from using on prisoners. Strikes above the clavicle, like the punch Officer Crooke threw at Hodge, are only authorized if the officer “reasonably believes he/she is in immediate danger of serious bodily harm or death.” This was not the case here.After the assault, Crooke filed an incident report falsely accusing Hodge of provoking the attack by shoving Crooke. BOC’s own investigation into the assault determined that Hodge posed no threat and gave no resistance to Crooke before he assaulted Hodge, and that Crooke used unnecessary and excessive force “in an abusive and punitive manner.”This is not the first time BOC has had a problem with Crooke: In 2016, he was caught sleeping while on post in a housing unit, armed with a pillow and blanket.Nor was Crooke the only staff member cited for misconduct in this incident. CJC Security Chief Myron Fredericks was also faulted by BOC’s chief investigator, for not completing his required 48-hour review of the incident until 39 days later. The chief investigator found that Fredericks’ review was “off base, regarding [attempts at] de-escalation, cooling off period, [the]type and manner of force used, and medical attention required.” The chief investigator further concluded that “with the aid of the video recording, the use of force incident was clearly outside policy, procedure and training.” Fredericks, too, has a checkered past at the jail: Two years ago, he failed for 72 hours to order a lockdown of the facility and initiate a search for a missing kitchen knife.The threats posed to the men and women held at CJC mostly emanate from neglect, plain and simple. Three years ago, a seriously mentally ill woman who was eight months pregnant was locked down for weeks in her cell rather than being hospitalized, even though she was not eating regularly or taking prenatal medications. She eventually gave birth to her child on the floor of her cell. A year before that, a mentally ill woman committed suicide at the jail after repeated prior suicide attempts. Two years ago, a prisoner was able to set fire to another prisoner’s cell after the officer on duty abandoned his post.The cavalcade of lapses would almost be comedic if the consequences were not so deadly.Benjamin Hodge should not have to fear being brutalized for complaining about a dead cockroach in his food. The men and women held at CJC should be able to trust that BOC officials will investigate misconduct and appropriately discipline any officers who engage in it — and refer to law enforcement cases of potential criminal assault.It’s part of their job, and their failure is endangering the health and lives of prisoners in their care. Sadly, the video of Benjamin Hodge being assaulted by an officer will likely not be the last of its kind we see from the St. Thomas jail.
The Trump administration’s campaign to dismantle our asylum system just suffered another major setback.A federal judge in Washington, D.C., permanently blocked a June 2018 “expedited removal” policy that gutted asylum protections for immigrants fleeing domestic violence and gang brutality. Holding that “there is no legal basis for an effective categorical ban on domestic violence and gang-related claims,” Judge Emmet Sullivan struck down the policy for being contrary to the Immigration and Nationality Act, the Refugee Act, and the Administrative Procedure Act. As part of the injunction, the court ordered the government to bring anyone who was wrongfully removed under this policy, at no expense to them, back to the United States so that they can pursue their asylum claim. Under the court's order, each of our plaintiffs will receive a new credible fear interview and their expedited removal orders will be canceled.The ACLU and the University of California’s Hastings Center for Gender and Refugee Studies brought the lawsuit on Aug. 9 on behalf of 12 adults and children who all had their asylum claims wrongfully rejected at the “credible fear” screening stage based on the unlawful policy.Our clients, predominantly women from Central America, endured extensive sexual and physical violence in their countries of origin. Fearing they would be killed, along with their young children, they sought refuge in the U.S. Grace* fled Guatemala after being raped, beaten, and threatened for over 20 years by her abusive partner, who frequently disparaged her indigenous heritage. She sought help from local authorities, only to have them assist her persecutor in forcibly evicting her from her home. Mina* escaped her country after a gang murdered her father-in-law and local police did nothing to help. Gang members broke down her door and beat her so badly that she was unable to walk the next day. They told her that they would rape her and mutilate her body unless she left town.Because our clients were placed in a summary deportation process known as “expedited removal,” they were required to pass a threshold “credible fear” screening with an asylum officer before they could get a full hearing on their asylum claims. But under the Trump administration’s new policy, the asylum officers concluded that our clients did not have a “credible fear of persecution” and ordered them deported without a hearing.That’s not because the asylum officers didn’t find their accounts credible — they did — it’s because the Trump administration had illegally changed the rules.In June, former Attorney General Jeff Sessions chose to intervene in an individual asylum case, Matter of A-B-, where he reversed the grant of asylum to a Salvadoran woman who fled horrific sexual and domestic violence at the hands of her then-husband. Sessions used that ruling to issue a broad, and deeply flawed, legal decision that sought to disqualify whole categories of claims as legitimate grounds for asylum in the United States.“Generally,” Sessions asserted, “claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” He followed this up with a footnote stating, “Accordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution.” In order to support this claim, Sessions argued that the plight of domestic and gang violence survivors is “merely personal” and not indicative of membership in a “particular social group” — one of the five protected grounds for asylum. But his conclusion ignored decades of settled law that individuals fleeing gender-based violence can satisfy the asylum standards.He also said that an asylum seeker fleeing persecution by someone who is not the government — like a gang, an intimate partner, or a powerful political or social group — must show that the government either “condoned” the violence or other harm or was “completely helpless” to stop it. This was a stark departure from the existing standard, which is that asylum seekers must show that the government is “unable or unwilling” to effectively protect them. That’s not how the credible fear process was supposed to work. When Congress established expedited removal in 1996, it deliberately established a low threshold screening standard so that no one with a potentially meritorious asylum claim would be sent back to danger. Credible fear interviews are meant to determine whether there is a “significant possibility” that an immigrant could show they are eligible for asylum in a full deportation hearing with evidence, witnesses, and appeals. If so, they get that chance; if not, they are quickly removed from the United States.By ratcheting up the credible fear standard, the Trump administration put thousands of immigrants at risk of being removed to places where they fear for their lives.The court found key aspects of Sessions’ decision in Matter of A-B-, and related policy guidance with respect to expedited removal proceedings, unlawful. For example, the court invalidated Session’s requirement that people fleeing persecution by nongovernmental actors need to show that their home country government either “condoned” the persecution or is “completely helpless” to prevent it. The court also struck down the government’s new rule that asylum officers can just ignore court of appeals precedents that are inconsistent with Matter of A-B-. As a result, the administration is now permanently blocked from applying these unlawful policies to credible fear proceedings going forward.In the court’s own words: “[B]ecause it is the will of Congress — not the whims of the Executive — that determines the standard for expedited removal, the Court finds that those policies are unlawful.”*To protect the safety of the plaintiffs, names are pseudonyms.Sign up for the ACLU’s Best Reads and get our finest content from the week delivered to your inbox every Saturday.
Ten years ago, Illinois enacted a law that imposes important protections against companies collecting and storing our biometric information — including using facial recognition— without our knowledge and consent. The law is called the Biometric Information Privacy Act. Although facial recognition was relatively crude when it was passed, the wisdom of Illinois’ decision has been borne out over the last decade, as facial recognition and other biometric collection has developed and spread.On Monday, the ACLU filed a friend-of-the-court brief in federal appeals court defending the Illinois law against arguments advanced by Facebook trying to remove the law’s pro-privacy teeth. (The brief was filed along with ACLU affiliates in Illinois and California as well as the Electronic Frontier Foundation, Center for Democracy & Technology, and Illinois PIRG).Under the law, a company may collect a person’s biometric identifiers — like fingerprints or data from a person’s face or iris — only if it first obtains informed consent from that person. In the case now pending in the Ninth Circuit Court of Appeals, Facebook users in Illinois have alleged that the company violated their rights under the law by using facial recognition technology to identify them in digital images uploaded to the site without disclosing its use of facial recognition or obtaining consent.One of Facebook’s arguments in the case is that people should not have an automatic right to sue when their biometric information has been collected in violation of the law. Rather, they must prove that they have suffered monetary or other damages. As we explain in our brief, however, that runs counter to the Illinois Legislature’s intent, which was to provide strong, enforceable protection against surreptitious collection of sensitive biometric data.In the decade since passage of the law, the need for its protections has become crystal clear. As we explain in the brief, today:Retail stores use facial recognition technology to “identify known shoplifters,” and at least some companies are reportedly using such technology to track shoppers in their stores. Employers collect biometrics for time tracking and attendance management, as well as to manage access to company phones, laptops, and cloud storage accounts. Banks have invested in collecting customers’ biometric data, including face scans, fingerprints, iris scans, and voiceprints, to authenticate those customers’ identities. Churches have adopted facial recognition and fingerprint collection technology “to accurately track attendance for various events like Bible studies, worship services and Sunday school.” Many schools now collect fingerprints to manage attendance, cafeteria purchases, library services, and security, and some schools have started installing facial recognition systems to control entry into buildings.Perhaps most concerning, major technology companies like Amazon have invested heavily in powerful facial recognition systems that they sell access to on the cheap. Amazon says its facial recognition system, called Rekognition, is not only able to store facial recognition images of large numbers of people, but it is also able to “perform real-time face searches against collections with tens of millions of faces” and “detect, analyze, and index up to 100 faces ... in a single image,” such as photographs captured at “crowded events ... [and]department stores.”Using it is cheap, and as we have warned before, without protections, this technology could enable civil rights and civil liberties violations on a massive scale. Indeed, a recent survey conducted by the ACLU revealed that 18 of the top 20 American retail companies refused to say whether they collect facial recognition scans of their customers.That’s why we support a strong interpretation of the law’s protections. As the district court wrote in its ruling against Facebook in February, “When an online service simply disregards the Illinois procedures, as Facebook is alleged to have done, the right of the individual to maintain her biometric privacy vanishes into thin air.”Without an enforceable requirement that companies disclose their collection of biometric information and obtain consent, people will have no way to protect themselves against surreptitious corporate surveillance.
Should it be a crime to call public officials corrupt? Yes, according to the police in Exeter, New Hampshire. Earlier this year, they arrested a local man for writing a comment on a news website accusing Police Chief William Shupe of covering for a corrupt officer.Robert Frese was accused of violating New Hampshire’s criminal defamation law, which makes it a misdemeanor to intentionally and falsely disparage another person. New Hampshire’s law — and others like it in 24 other states around the country — literally make it a crime to say mean things about people.These laws have no place in modern American democracy. That’s why we filed a lawsuit Tuesday in New Hampshire federal court arguing that criminal defamation laws violate the First Amendment.Frese was arrested after he posted comments to a Seacoast Online article about a retiring police officer. Frese had a number of issues with the officer and accused him of misconduct. He also wrote that Chief Shupe “covered up for this dirty cop.” A few weeks later, the Exeter police filed a criminal complaint against Frese. The complaint said that Frese “purposely communicated on a public website, in writing, information which he knows to be false and knows will tend to expose another person to public contempt, by posting that Chief Shupe covered up for a dirty cop.” The police ultimately dropped the charges — after the ACLU of New Hampshire spoke out against Frese’s prosecution.There’s a long history of law enforcement officials using defamation laws to silence their critics. Under English common law, the crime of “seditious libel” prohibited criticism of the government because it could lead to insurrection. And in the Sedition Act of 1798, Congress criminalized false statements criticizing the federal government.But, as the Supreme Court recognized in a landmark 1964 decision, New York Times Company v. Sullivan, the First Amendment was meant to repudiate the whole notion of seditious libel. In that case, an Alabama police commissioner sued The New York Times for defamation after it published an advertisement describing police department actions against civil rights protesters.In its decision upholding the newspaper’s First Amendment rights, the Supreme Court recognized the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”Of course, freedom of speech does not give anyone the absolute right to spread malicious lies about their fellow citizens. That’s why our laws allow people who have been slandered to file civil lawsuits for money damages.Time has shown that civil lawsuits are fully capable of addressing the harms caused by defamation, which is why criminal defamation prosecutions became increasingly rare over the course of the 20th century. But in states that still have criminal defamation laws on the books, public officials still use them to prosecute their critics.For example: The editor and publisher of a small newspaper in Kansas were convicted of criminal defamation after the paper published an article suggesting that the mayor lived in another county and was therefore ineligible for public office. A Massachusetts woman was convicted of criminal defamation in New Hampshire after she claimed that a coffee shop’s employees spit in police officers’ coffee. And a Kansas man was charged with criminal defamation after he posted a yard sign criticizing his local government’s inaction on a water drainage problem; the lawsuit was dropped after the ACLU got involved.It’s important to note that a disproportionate number of criminal defamation convictions have involved politicians and law enforcement officials. This is no coincidence. Whenever people in power are given a tool to punish critics, you can bet they’ll be sorely tempted to use it. As a result, criminal defamation laws are often used to punish political speech lying at the heart of the First Amendment, just like the old seditious libel laws.The Exeter Police Department’s criminal complaint against Frese is a textbook example of the use and abuse of criminal defamation laws. Someone who has had a history of trouble with the police went to the internet to air his grievances, and the police department itself decided to prosecute himThis is absurd, and it’s a telling reminder of what happens when law enforcement is given the power to crack down on expression. It’s time we toss criminal defamation laws into the dustbin of history, where they belong.
This piece was originally published in The New York Times.When the Supreme Court declined on Monday to hear cases brought by Louisiana and Kansas attempting to exclude Planned Parenthood and other abortion providers from their Medicaid programs, legal soothsayers were out in full force opining about what it means for the future of abortion rights under the newly constituted court.The decision drew a dissent from three conservative justices, Clarence Thomas, Neil Gorsuch and Samuel Alito, who suggested that the court was ducking the cases because they involved Planned Parenthood and touched on abortion. But, intriguingly, the court’s two other conservatives, Chief Justice John Roberts Jr. and the court’s latest member, Brett Kavanaugh, sided with the court’s liberals in rejecting the case.What are we to make of it?It’s not easy to read the tea leaves here because the cases didn’t pose a direct challenge to the constitutionality of abortion restrictions. Instead, they centered on whether those states could exclude Planned Parenthood from providing contraception and other health services in the Medicaid program. Those states object to Planned Parenthood providing access to abortion outside Medicaid, which does not cover the procedure. Had the court accepted the states’ arguments, tens of thousands of indigent women could have lost the health care they receive from the group.Click here to keep reading.
E.J. Bradford. Chikesia Clemons. Ulysses Wilkerson. Sureshbhai Patel. Greg Gunn.These are only a few of the names of those who have been in headlines after being brutalized or killed at the hands of law enforcement in the state of Alabama in recent years. Each of these incidents represent a state-wide pattern of police using excessive, and sometimes fatal, force against the people they’re supposed to protect and serve. Disproportionately, the victims are people of color with the violence occurring during routine interactions with police.Given their authority to use force in certain circumstances, police officers must be held accountable when they abuse or misuse their extraordinary powers. It is crucial that those entrusted such authority be committed to using it sparingly, equitably, legally, and in a racially unbiased way and that police departments have the proper policies in place to ensure its officers use force appropriately.That’s why last week the ACLU of Alabama and the Alabama NAACP filed public records requests with police departments in Birmingham, Mobile, Montgomery, Hoover, Huntsville, and Saraland to turn over their use-of-force policies, body camera policies, and racial bias training materials. By collecting this information, we can evaluate the policies and practices of law enforcement and determine if officers in the field are being trained to recognize how implicit bias toward people of color can lead to individuals of color being wrongfully accused, brutalized, and killed.Black and brown Alabamians shouldn’t have to live in constant fear of the agents and officials who are charged with protecting them. Far too often, the concept of “reasonable force” has been distorted or stretched beyond belief to justify police officers killing or seriously injuring people of color for indefensible reasons.Take E.J. Bradford for example. He had the right, like all Black and brown Alabamians, to carry a concealed weapon. Yet on the night of his death, a Hoover police officer saw E.J.’s gun, deemed him a threat rather than being considered “one of the good guys,” and shot him to death from behind. The deaths of people like E.J. are a constant reminder of the mistrust people of color have toward the police.Most police, however, aren’t taking the problem seriously. A Pew Research Center poll released in 2017 found that two-thirds of the nation’s police officers believe the deaths of Black Americans during encounters with police are isolated incidents and not an indication of broader problems between law enforcement and the Black community. This reveals a disconnect between law enforcement and Black people. Culture shifts and internal reform are needed to prompt agents of the law to foster a positive, trusting relationship with communities they serve.Our information request is the first step towards changing the culture of policing in Alabama and initiating reform. We hope to build a database of policing policies, so that the people of Alabama can read their police department’s policies on use-of-force, body cameras, and racial bias. And after comparing these policies, we will offer our own model policies so that police can rebuild the trust they’ve lost across the state while ensuring police understand what constitutional policing is.The people of Alabama deserve police forces that serve and protect all communities equally. Our information request is the first step toward making that a reality.
Rolling Stone reported this week that face recognition was used on attendees at a Taylor Swift concert in Los Angeles to look for stalkers. Stalkers are a real problem, and we sympathize with how scary it must be for a celebrity to know that they are out there. Nonetheless, we have a number of concerns about where this goes.We already know this technology is starting to be deployed in sports stadiums and retail stores. This is an enormously powerful surveillance tool — something that has never before been seen in the history of humanity, and something that we shouldn’t rush into embracing without checks and balances to make sure it’s not abused.One set of questions concerns what, if anything, was done with all the photos that were collected at the Taylor Swift concert. Were they saved? Will they be shared with anyone or used for marketing purposes? Will the security people use them for tracking people’s movements and behavior and flagging those who are supposedly “suspicious”? These are the privacy issues that affect every concertgoer here and in any future uses of the technology.Another issue is the matter of notice. In this case, security staff essentially tricked concertgoers into presenting a clear frontal view of their faces by setting up a kiosk playing a video of concert highlights, with a camera that captured the faces of those who stopped to gaze at it.The officials at the concert venue should have told people that their faces would be scanned for security purposes — preferably before they paid for a ticket. They also should also have told attendees whether they were saving the photos and what they were planning to do with them. If concert officials didn’t think people would mind, there’s no reason they shouldn’t have done so. If they did think that their customers would mind, but did it anyway, that’s pretty shady. Security people are used to operating with secrecy, but this is a novel, controversial, and very powerful technology, and people have a right to know when they’re being subjected to it.Then there are the perennial questions about the accuracy of this technology, which is questionable. If there’s a match between concertgoers and suspected stalkers, how would those people be treated? Would security agents treat them as dangerous, or would they be treated with respect until a speedy and fair verification process is completed?Regardless of how this technology was implemented in this one situation, we know that as it is rushed into deployment by lots of different operators, it’s often not going to be done right.Finally, one of the biggest concerns here is fairness and due process around private watchlists. Face recognition is of little use as a security tool unless there’s a watchlist to back it up — a set of photos of people that you’re looking out for. With any watchlist, the questions are who is put on those lists and based on what information? Are the people listed told that they’re being included? Are they given an opportunity to appeal their listing?Certainly a private property owner can order anyone they want to leave their property, and at least as of now, there’s no law preventing them from setting up a face surveillance system to make sure they don’t come back. But as these watchlists become institutionalized, and in all likelihood shared, the consequences of unfair treatment or racial bias in the compilation of these lists become magnified.Today, if you are treated badly by a store clerk, and you stand up for yourself and get in an ugly argument, the worst thing that’s likely to happen is you feel rotten for a while. But with today’s technology it’s not hard to imagine a store clerk entering a photo of your face from surveillance cameras into a watchlist so that you’re approached by security when you try to shop there again — and maybe at any of that company’s stores across the country, or at places run by corporate partners of that store, too, including perhaps concerts, sports stadiums, malls, and who knows where else.For one thing, that means that you’re less likely to stand up for yourself, because that clerk now wields enormous power over you. Power has been shifted from customers to companies and their employees. It also means that the consequences have become greatly amplified for those who are blacklisted unfairly.There’s a long history of private and quasi-private watchlists being abused, going back to the labor battles of the early 20th century, when workers and organizers were blacklisted as “troublemakers” and could have trouble getting a job. And the government’s nightmarish system of watchlists continues to be riddled with Kafkaesque problems even after years of reform efforts as well as checks on the government like the Privacy Act and the Fourth Amendment, which don’t apply to private companies.We understand the importance of protecting someone like Taylor Swift against the dangerous people that are unfortunately out there. What we don’t want to see is companies turned into stalkers themselves, following our every move just because a technology has come along that makes that possible.Sign up for the ACLU’s Best Reads and get our finest content from the week delivered to your inbox every Saturday.
The First Amendment right to record the police is a critical check and balance for people living in a free, open, and democratic society. It promotes the free discussion of governmental affairs as well as protects the democratic process. And for some communities, it’s a vital tool for uncovering, if not deterring, police misconduct.But Boston-based civil rights activists Eric Martin and René Pérez were afraid to record the police. Under a state wiretap law passed in 1968, known as Section 99, it is a crime to secretly record private individuals and government workers, even those on duty like police officers. Since 2011, the Boston Police Department has applied for a criminal complaint against at least nine people for secretly recording police officers performing their duties in public, and the Suffolk County District Attorney’s Office has opened numerous case files based on this felony charge as well.Because of this fact, although Martin and Pérez often feared for their safety when openly recording police officers in public, they also knew recording secretly could subject them to arrest and prosecution. Caught between safety concerns and fear of punishment, they often chose not to record at all.But that’s about to change.Two years ago, the ACLU of Massachusetts filed a lawsuit, Martin v. Gross, on behalf of Martin and Pérez, arguing that they have every right under the First Amendment to secretly record police officers carrying out their duties in public. This week, a federal court agreed.Taking photographs, video, and audio in public spaces is a constitutional right — and that includes law enforcement officials carrying out their duties. The defendants in this case argued that they could lawfully apply Section 99 to prevent individuals from secretly recording police officers performing their duties in public. In her recent ruling, Judge Patti B. Saris of the United States District Court for the District of Massachusetts called that application of the wiretap law unconstitutional.The court explained that police officers have “diminished privacy interests” when performing their job in public, while the public has a constitutionally protected interest in newsgathering, information-dissemination, and monitoring the conduct of law enforcement officials. The parties must now submit proposed language for an order implementing the court’s decision by January 10.The ACLU of Massachusetts has long championed the right to record the police in the public performance of their duties. In another ACLU case, Simon Glik openly recorded Boston police officers when they treated a man too roughly on the Boston Common. Glik himself was then arrested for his constitutionally protected behavior. In 2011, the U.S. Court of Appeals for the First Circuit unanimously affirmed that he had a First Amendment right to record the police carrying out their duties on the Boston Common.Although the fact pattern in Glik happened to involve an open recording, the First Circuit did not so limit its First Amendment ruling. Judge Saris’ ruling evokes Glik’s protection of both the open and secret recording of police officers performing their duties in public, reiterating that “the First Amendment’s protection for information-gathering has special force with respect to law enforcement officials who are granted so much discretion in depriving individuals of their liberties.”In recent years, the exercise of this First Amendment right has changed the public’s understanding of encounters between police officers and the public. Time and time again, people’s recordings of police interactions have started national conversations about police reform and accountability, from Eric Garner to Philando Castile to Sandra Bland. As the Trump administration welcomes a new attorney general who opposes Obama-era police reform and civil rights work, all of us play an increasingly important role in keeping the local police in check.This week’s decision will help ensure that we have the tools to do so.Sign up for the ACLU’s Best Reads and get our finest content from the week delivered to your inbox every Saturday.
The ACLU is in a federal appeals court on Thursday, challenging a slate of Arkansas laws intended to prevent women from being able to get abortions. One of the four laws we are challenging is a ban on the dilation and evacuation (D&E) procedure, a safe and effective abortion method. If enforced, the ban would prevent women from being able to obtain an abortion at all.Arkansas’ ban is part of an anti-abortion campaign being orchestrated by states across the country. Already, Kansas, Oklahoma, Texas, Louisiana, Alabama, and Kentucky have passed similar bans. But so far, every court to examine these laws has seen them for what they are — blatant attempts to ban abortion and prohibit physicians from using their best judgment in caring for their patients.The motivation behind these restrictions is not grounded in medicine or science. Major medical groups like the American Medical Association and American College of Obstetricians and Gynecologists have long spoken out against D&E bans. And, this year, the National Academies of Science, Engineering, and Medicine concluded that D&E is the “superior method” of abortion after the earliest weeks of the second trimester.D&E bans are just the latest attempt by politicians to insert themselves into the exam room and try to micromanage medicine in order to score political points. In doing so, they are infringing upon doctors’ best judgment and a woman’s ability to get the care that is safe and most appropriate for her. States like Arkansas have been at the forefront of this coordinated national anti-abortion strategy, with politicians enacting a panoply of restrictions designed to make it impossible for a woman to get the care she needs.The other restrictions we are challenging in Arkansas include a requirement that abortion providers notify a woman’s partner or other family members of her abortion decision, which would jeopardize a woman’s confidentiality and in some cases enable them to block her abortion; unnecessary, burdensome requirements to report a young woman’s abortion to local police in a way that invades her and her family’s medical privacy and comes on top of already-robust mandatory reporting requirements; and a medically unnecessary requirement that abortion providers track down a woman’s medical records from prior pregnancies to assess her reasons for seeking an abortion — which is meant to burden providers, violate physician-patient confidentiality, and delay or outright block women’s care.Arkansas is not alone in these efforts to obstruct abortion access. Kentucky has also attempted to ban D&E abortions. The Kentucky legislature also attempted to shut down the Commonwealth’s last abortion clinic without any medical justification, and passed a law mandating that women undergo a forced, medically unnecessary ultrasound prior to abortion, designed to shame them and stigmatize abortion care. We challenged that law too, and a federal court blocked it last year.We know exactly what the anti-abortion movement’s end goal is — to ban abortion in the United States. We will do everything in our power to fight these laws in the courts so that all women can get the abortion care they need.
Recently, a patent application from Amazon became public that would pair face surveillance — like Rekognition, the product that the company is aggressively marketing to police and Immigration and Customs Enforcement — with Ring, a doorbell camera company that Amazon bought earlier this year.While the details are sketchy, the application describes a system that the police can use to match the faces of people walking by a doorbell camera with a photo database of persons they deem “suspicious.” Likewise, homeowners can also add photos of “suspicious” people into the system and then the doorbell’s facial recognition program will scan anyone passing their home. In either case, if a match occurs, the person’s face can be automatically sent to law enforcement, and the police could arrive in minutes.As a former patent litigator, I've spent a lot of time reading patents. It’s rare for patent applications to lay out, in such nightmarish detail, the world a company wants to bring about. Amazon is dreaming of a dangerous future, with its technology at the center of a massive decentralized surveillance network, running real-time facial recognition on members of the public using cameras installed in people’s doorbells. The ACLU and other civil rights groups have repeatedly warned that face surveillance poses an unprecedented threat to civil liberties and civil rights that must be stopped before it becomes widespread. The history of discriminatory government surveillance makes clear that face surveillance will disproportionately harm people already targeted by the government and subjected to racial profiling and abuse — immigrants, people of color, and the formerly incarcerated.The ACLU’s test is consistent with academic research demonstrating that face surveillance technology is less accurate for darker skinned faces and women. These systems threaten to further entangle people with law enforcement, ripping families apart and increasing the likelihood of racially biased police violence. In addition, this technology puts activists and protesters in danger when exercising their First Amendment rights.Despite the risks to civil liberties and racial justice, Amazon has chosen to ignore questions from members of Congress and calls from consumers, civil rights groups, and its own employees and shareholders to take responsibility for the consequences of its technology on communities where it is deployed.This patent application also suggests that Amazon has no plans to stop at identifying people based on their faces. The company anticipates targeting an arsenal of other biometrics, including fingerprints, skin-texture analysis, DNA, palm-vein analysis, hand geometry, iris recognition, odor/scent recognition, and even behavioral characteristics, like typing rhythm, gait, and voice recognition.Diagram from Amazon's patent applicationImagine if a neighborhood was set up with these doorbell cameras. Simply walking up to a friend’s house could result in your face, your fingerprint, or your voice being flagged as “suspicious” and delivered to a government database without your knowledge or consent. With Amazon selling the devices, operating the servers, and pushing the technology on law enforcement, the company is building all the pieces of a surveillance network, reaching from the government all the way to our front doors.Don’t expect Amazon to limit tracking technologies to doorbells or homes. The patent application makes clear that any audio/visual device — such as Amazon’s popular line of Echo products — can be outfitted with the appropriate biometric surveillance features. It confirms that Amazon wants to enable the tracking of everyone, everywhere, all the time. And it’s apparently happy to deliver that data to the government.The application also undercuts Amazon’s own purported defense of its face surveillance product. The company has told the public that biometrics should only be used by law enforcement as an aid, not a replacement, to human judgment. But Amazon’s patent application is pushing the technology toward automation, removing human judgment from the identification process, and instead potentially relying on data, like arrest photos, that itself is a record of racially discriminatory policing.Amazon is building the tools for authoritarian surveillance that advocates, activists, community leaders, politicians, and experts have repeatedly warned against. It is doing so without regard for how the technology will be exploited by law enforcement, ICE, and other government agencies prone to violence and racial discrimination. It’s time for Amazon to take responsibility and stop chasing profit at the expense of safety and civil rights.Sign up for the ACLU's Best Reads and get our finest content from the week delivered to your inbox every Saturday.
I’ve spent the last year representing people in civil asset forfeiture cases across New Jersey. It looks nothing like justice.In theory, civil asset forfeiture empowers law enforcement authorities to deprive individuals of the ill-gotten gains associated with criminal activity. In reality,
I’ve spent the last year representing people in civil asset forfeiture cases across New Jersey. It looks nothing like justice.In theory, civil asset forfeiture empowers law enforcement authorities to deprive individuals of the ill-gotten gains associated with criminal activity. In reality, civil asset forfeiture grants law enforcement authorities effective impunity to steal from the public to enrich their departments.The ACLU of New Jersey recently issued a report on the use of civil asset forfeiture in our state, and the findings are alarming. The forfeiture system is failing all New Jerseyans — especially those in low-income communities and communities of color. In most cases I’ve seen this year, claimants won their money or property back. But they are the exceptions — not for having winning cases but for coming forward to make the government prove its claims.Claimants challenge forfeitures in just 3 percent of cases in New Jersey. Prosecutors count on winning default judgments. Between January and June of 2016, claimants went to court in only 50 of the over 1,860 cases initiated by county prosecutors in the state. Those 1,860 cases involved more than $5.5 million in seized cash, 234 cars, and even a home.It’s no accident so few people fight back. Most seizures take place in heavily policed, low-income communities. Of the 10 cities with the highest frequency of seizures in New Jersey, eight are among the poorest in the state, falling within the bottom quartile in median income rankings.Often, just the court filing fees are prohibitive, let alone the cost of hiring a private attorney. Public defenders in New Jersey are generally barred from representing their clients in civil matters, and most legal services providers don’t offer free assistance in forfeiture cases. The combined costs of litigation frequently exceed the value of the seized property, so mounting a challenge is a losing proposition from the start. A claimant who can overcome these financial barriers, however, quickly faces an uphill legal battle. The government only needs to prove by a preponderance of the evidence — “more likely than not” — that assets are linked to criminal activity in order to permanently seize them, delivering a windfall to the initiating law enforcement agency. This standard applies even if claimants are never criminally charged or criminal charges against them are dismissed.If I stopped you on the street, took the money from your wallet, and asked you to tell me exactly where, when, and how you got every dollar, could you? When challenging the seizure of their property, claimants have to justify every cent to their name. Accordingly, claimants face the exceedingly difficult task of proving a negative: that their money was not connected to a crime. Several clients I worked with didn’t have bank accounts, making them particularly vulnerable to cash seizures. Police and prosecutors treated their possession of a large sum of cash as evidence of a crime. But carrying a few hundred dollars at a time isn’t against the law and it isn’t a smoking gun. For many, it’s a month’s rent, a week’s wages, or a loan from a family member.One client of mine, Andrew,* was stopped by police outside his home in Newark. A pair of officers had arrested someone for buying a small amount of marijuana a few blocks away. When they called for backup, the officers shared a description of the seller: a Black man in dark clothing. The responding officers determined Andrew fit that description.Andrew had no drugs or paraphernalia, but he did have about $750 with him. When we provided the prosecutor with proof that he had received a monthly Social Security payment of $780 just five days prior, the prosecutor asked skeptically, “And then it turned into cash?” Apparently, this alchemy — the kind an ATM or bank agent performs — was more far-fetched than Andrew’s innocence.Reform could lie just around the corner though.The United States Supreme Court is poised to weigh in on civil asset forfeiture this term. Timbs v. Indiana presents the court with a relatively discrete question: Whether the safeguard against excessive fines contained in the Bill of Rights constrains actions by the states in addition to the federal government. Commentators are confident that the court will answer yes. And many are optimistic the court will go further by imposing new limits on the use of civil asset forfeiture. States like New Jersey, however, should not wait for a Supreme Court ruling to institute basic due process protections in civil asset forfeiture cases.For all practical purposes, civil asset forfeiture operates as a form of punishment, and, as such, the protections afforded to criminal defendants should attach. There should be a right to counsel in every case; prosecutors should meet the criminal burden of proof “beyond a reasonable doubt;” and no forfeiture should take place absent of a criminal conviction.In addition, law enforcement should not directly profit from civil asset forfeiture. Cash and proceeds from seized property should be deposited in the state general fund rather than funneled back into the coffers of the initiating agency or department. Finally, the government must turn on the lights. The New Jersey Legislature is considering a bill that would increase accountability by requiring county prosecutors to track and report information on seizures and forfeiture actions. Passage would be a critical first step on the path to meaningful change.*Andrew is a pseudonym used to protect the identity of the client. Sign up for the ACLU's Best Reads and get our finest content from the week delivered to your inbox every Saturday.
The New York Times on Monday ran an extensive article on how the locations of millions of American are being tracked by apps on their cell phones, bought and sold, and used for advertising and other commercial purposes.Is your location data among them? Do you know for sure? Every time you visit a doctor, bar, Planned Parenthood clinic, or friend’s house, is some company storing the when, where, and with whom?I was recently speaking about privacy before an audience of government officials who had just received a pitch from one of these location data companies. I asked everybody in the audience to put up their hands unless they were positive that data from their phone was not being collected. Nearly every hand went up. I then asked people to raise their hands if they had consciously given permission for such tracking. Almost every hand went down.That is the problem. Worse, if companies are collecting and warehousing these mountains of data, the government could get access to it as well.The Times story, appropriately headlined “Your Apps Know Where You Were Last Night,” featured one woman whose location trails, collected by apps on her phone without her knowledge, showed her traveling between her home and the school where she teaches. They also showed her visiting a Weight Watchers center, a doctor, and her ex-boyfriend’s home. Another location record accessed by the Times tracked someone from a home outside Newark to a Planned Parenthood clinic.The current state of our privacy is unacceptable. As new technologies make ever more intimate levels of tracking feasible, companies are competing to exploit them as quickly as possible, with the only limits being what can be done, and inadequate examination of what should be done. As a result, American consumers are subject to a level of monitoring that has never before been experienced in the history of humanity — tracking that is more extensive than many understand and more intrusive than most are comfortable with.The heart of the problem with tracking apps and the rest of our corrupted privacy regime is that it has been built around the concept of “notice and consent”: As long as a company includes a description of what it is doing somewhere in an arcane, lengthy, fine-print click-through “agreement,” and the consumer “agrees” — which they must do to utilize a service — then the company can argue that it has met its privacy obligations.Our ecosystem of widespread privacy invasions has been allowed to fester based on the impossible legal fiction that consumers read and understand such agreements. The reality is that many consumers can’t possibly understand how their data is being used and abused, and they don’t have meaningful control when forced to choose between agreeing to turn over their data or not using a particular service.Worse, technologists and academics have found that advertising companies “innovate” by altering their tracking technologies specifically to resist consumers’ attempts to defeat that tracking. This is done, for example, by using multiple identifiers that replicate each other, virus-like, when users attempt to delete them. Advertisers, the experts conclude, “use new, relatively unknown technologies to track people, specifically because consumers have not heard of these techniques. Furthermore, these technologies obviate choice mechanisms that consumers exercise.”In short, not only is there no meaningful way for consumers to control how and when they are monitored online, companies are actively working to defeat consumer efforts to resist that monitoring. Currently, individuals who want privacy must attempt to win a technological arms race with the multi-billion dollar internet-advertising industry.American consumers are not content with this state of affairs. Numerous polls show that the current system makes people profoundly uncomfortable.What’s needed is privacy legislation that includes a meaningful “opt-in” baseline rule for the collection of any information. By “meaningful,” we mean, among other things, that care be taken not to allow it to degenerate back into the current “notice and consent” regime where consumers are forced to “agree” to arcane agreements that they cannot understand.The advertising industry shouts that such protections for American consumers will “ruin the free internet.” But there is absolutely no reason that needs to be the case.An ad-supported ecosystem of services can flourish without collecting massive quantities of data about individuals in secret and without their consent. Broadcast television stations were an extremely lucrative business throughout the second half of the 20th century, yet broadcasters were never privy to the intimate details of their audience members’ individual viewing habits. Insofar as television ads were targetable at all, it was not through “behavioral” targeting, but instead through good old-fashioned “contextual” targeting, in which ads are matched to the audiences that different shows attract. This is an effective means of targeting ads online, and one that is perfectly consistent with strong privacy protections. An advertiser that wants to reach golfers, for example, can place its ads on a site about golf or on pages returning the results for golf-related search terms.Where ad-based services have been built upon ethically problematic, non-consensual monitoring of individuals’ private lives, that monitoring should be rolled back, just as the telemarketing industry was rolled back by the “do not call” registry. This has not stopped progress or innovation in healthier areas that benefit consumers more.If we protect privacy and constrain behavioral advertising, ad budgets will not dry up, and ad-supported offerings will not wither away. Nor will innovation in online and offline services simply cease because the advertising industry has been proscribed from taking behavioral advertising to the next, even more intrusive, level.These companies are exploiting the inevitable lag between the moment when people’s privacy has been stolen by technology and when they realize that it’s been stolen. But in the end, those gaps will close because people demand privacy. Strong privacy protections that block the kind of things reported on by The Times are entirely compatible with a robust and flourishing economy, online and off.In fact, such protections will establish predictability and stability of expectations that will enhance consumer confidence, prosperity, and innovation.Sign up for the ACLU's Best Reads and get our finest content from the week delivered to your inbox every Saturday.
According to recent reports, congressional leaders from both sides of the aisle are planning to sneak a bill criminalizing politically motivated boycotts of Israel into the end-of-the-year omnibus spending bill.The bill’s original sponsor, Sen. Ben Cardin (D-Md.), is pushing Democratic leadership to include this bill, which has not moved forward thus far primarily because it violates the First Amendment. Senate Minority Leader Chuck Schumer (D-N.Y.) and House Minority Leader Nancy Pelosi (D-Calif.) are reportedly leaning toward slipping the text into the spending bill, which needs to pass for the government to stay open.The ACLU has long opposed the Israel Anti-Boycott Act through its multiple iterations because the bill would make it a crime to participate in political boycotts protected by the First Amendment. Now, the bill’s sponsors are attempting to avoid public scrutiny by including the bill’s unconstitutional criminal penalties in must-pass legislation scheduled for a vote just days before Congress’ holiday recess — likely because it will be harder to pass in the new Congress.Earlier versions of the Israel Anti-Boycott Act would have made it a crime — possibly even subject to jail time — for American companies to participate in political boycotts aimed at Israel and its settlements in the occupied Palestinian territories when those boycotts were called for by international governmental organizations like the United Nations. The same went for boycotts targeting any country that is “friendly to the United States” if the boycott was not sanctioned by the United States.Last week, the ACLU saw an updated version being considered for inclusion in the spending bill (though this text is not publicly available). While Hill offices claim the First Amendment concerns have been resolved, and potential jail time has indeed been eliminated as a possible punishment, the bill actually does nothing to cure its free speech problems. Furthermore, knowingly violating the bill could result in criminal financial penalties of up to $1 million. Were this legislation to pass, federal officials would have a new weapon at their disposal to chill and suppress speech that they found objectionable or politically unpopular.Consider, for example, if the United Nations advocated boycotting Saudi Arabia in response to the murder of Jamal Khashoggi, the Washington Post journalist, or Russia in response to its alleged election interference around the world. That would mean American companies, small business owners, and even non-profits, potentially some religious institutions, and people acting on their behalf in support of the boycott could be subject to criminal penalties.This is a full-scale attack on Americans’ First Amendment freedoms. Political boycotts, including boycotts of foreign countries, have played a pivotal role in this nation’s history — from the boycotts of British goods during the American Revolution to the Montgomery Bus Boycott to the campaign to divest from apartheid South Africa. And in NAACP v. Claiborne Hardware, the Supreme Court made clear that the First Amendment protects the right to participate in political boycotts. Although the bill states that nothing in the act “shall be construed to diminish or infringe upon any right protected under the Constitution of the United States,” such hollow assurances do not undo its core purpose of penalizing First Amendment activities and silencing speech.Members of Congress who support this bill should take note of the fact that just this year, two federal courts blocked state laws seeking to suppress boycotts of Israel. Those laws, like many copycats around the country, required state contractors to certify that they are not participating in boycotts of Israel as a condition of doing business with the state. The courts agreed with the ACLU that these anti-boycott laws violate Americans’ First Amendment rights. The Israel Anti-Boycott Act is another page from the same unconstitutional playbook.Urge Congress to oppose the boycott banIt is clear why congressional leaders fear an open debate on this legislation. Restricting Americans’ freedom of expression is rarely a popular policy. But that is no excuse for smuggling controversial new crimes into a last-minute appropriations package. If the First Amendment means anything, it’s that the government cannot suppress political expression it doesn’t like.Whatever their views on the Israel-Palestine conflict, members of Congress should oppose any effort to include this unconstitutional law within the omnibus spending bill. Americans’ First Amendment rights are at stake.
Physicians hold a special position in U.S. society. They are given a place of honor in return for the expectation that they will use their knowledge and skills in the public interest and adhere to a clear set of ethical standards.Under pressure from the government to misuse their expertise, though, some doctors have been willing to rationalize cooperation in unethical behavior. In recent years, nowhere has such ethical deviation been so starkly on display as in the case of the participation of medical professionals in the CIA torture program. The recent release of a CIA report, secured through an ACLU lawsuit, details how doctors willingly and even proudly became complicit in the CIA’s torture program.The warped rationalizations the CIA doctors used to justify their participation reflect a blatantly unprofessional eagerness to violate medical ethics when encouraged by a government agenda. Once they began participating in interrogations — which is clearly prohibited by American Medical Association (AMA) guidelines — CIA medical professionals went to absurd lengths to deny the reality of the abuses and physical and psychological harms they were witnessing and effectively presiding over.At one point, CIA doctors decided that waterboarding actually “provided periodic relief” to one prisoner “from his standing sleep deprivation.” The CIA doctors also claimed that when a different prisoner was forced into a coffin-sized box, this provided a “relatively benign sanctuary” from other torture methods. The descent into complicity with torture was so deep that they lost sight of the clear ethical breach in helping to modulate relative levels of pain infliction.Torture isn’t the only recent example of unethical physician complicity in U.S. human rights violations. Throughout the last century, and into the current one, physicians have participated in all methods of executions, most recently through lethal injection, in violation of professional ethical guidelines. In a number of states that execute prisoners by lethal injection, physicians have continued to consult on lethal dosages, examine veins, start intravenous lines, witness executions, and pronounce death. Some doctors argue that a physician may be able to alleviate suffering during an execution. The presence of a physician, however, lends a veneer of humanity to a practice that is anything but humane. And all of these acts are in violation of ethical guidelines established by the AMA as well as the World Medical Association.As Physicians for Human Rights laid out in its seminal report, “Breach of Trust,” written with the American College of Physicians and other groups, “doctors are trusted to act in the best interests of their patients, and participating in an execution fundamentally violates that trust.”The twisted logic that states use to enlists doctors in executions — by claiming they are “easing the suffering” of those about to be killed — can also be seen in the CIA doctors’ misguided belief that they can lessen the pain of torture. These are merely excuses.Execution and torture are not medical procedures, and they are not within the scope of medical practice. The trust society places in physicians to work for the benefit of their patients and the public is shattered when medical skills are used to facilitate state executions or government-sponsored torture. Justifications for such collusion are further eroded by the secrecy and anonymity that often accompanies this participation. A number of states have adopted laws that provide anonymity for doctors who participate in executions. Some also pay participating doctors in cash to eliminate a paper trail. Going to such lengths to keep identities hidden is an implicit acknowledgment that something that cannot survive professional or public scrutiny is taking place.The medical profession cannot regulate and police itself properly if violators are protected from scrutiny and review. To prevent further stains on the medical profession through complicity in torture or executions, the names of those involved in both practices need to be made public. State medical boards, which are responsible for licensure and discipline, should define physician participation in torture and executions as unethical conduct and take appropriate action against physicians who violate ethical standards. In some cases, they should consider removing the medical licenses of those found to have participated in torture or executions. The CIA report claims that the torture techniques were “reassuringly free of enduring physical or psychological effects.” Those involved should be made to defend this assertion publicly, in light of what we now know. The detainees remaining in Guantanamo, and many of those released, still suffer from severe and disabling Post Traumatic Stress Disorder. In fact, one of the detainees referenced in the report was evaluated by a doctor appointed by the Defense Department who said he was one of the “most traumatized individuals I have seen” among hundreds of torture victims evaluated. The doctors who facilitated his torture should be held to public scrutiny.The betrayal of ethical obligations by doctors in any circumstances should result in public stigma that will serve to deter future such actions. National professional associations should condemn those who collude in abuse and violations of core ethical obligations and remove them from membership if they are identified. Without consequences, we will all suffer a continuing threat posed to the moral standing of physicians.