Senator leaves long legacy on rights issues

By Jamie Loo

Civil Rights Act just the starting point of Sen. Edward M. Kennedy’s commitment to rights for all.

By Jamie Loo
First Amendment reporter

The right to vote, at age 18.

Increasing the minimum wage.

Employment opportunities for the disabled.

Massachusetts Sen. Edward M. Kennedy helped make these civil rights and quality of life initiatives possible. The senator passed away at the age of 77 late Tuesday night.

History will remember Kennedy for many reasons but it’s his legislative achievements that will have the most lasting impact on the every day lives of Americans. In his 47 years in the Senate, Kennedy was a champion for civil rights, immigration, and health care reform. Kennedy authored more than 2,500 bills during his career and a few hundred became laws, according to his senate press office. The following is just a handful of Kennedy’s accomplishments to expand the rights of people in the United States.

Civil rights

Kennedy pushed for the Civil Rights Act of 1964 which prohibited discrimination in housing, employment, education and public accommodations. In later years, he would continue to lead legislation to expand the protections in this act. Although, President Ronald Reagan vetoed the Civil Rights Restoration Act in 1988, Kennedy successfully led the charge for a congressional override. The Civil Rights Restoration Act required than any organization that receives federal funds must follow federal civil rights laws.
In 1991 he was the chief sponsor of the Civil Rights Act of 1991, which provided additional protection and remedies in cases of intentional job discrimination and workplace harassment.

Kennedy also played a role in expanding voting rights, supporting the Voting Rights Act of 1965. The senator fought to eliminate the poll tax by proposing it as an amendment to the act. The poll tax, a tax that had to be paid in order to vote, was one of hurdles that prevented many lower income residents and African-Americans from voting. The amendment to eliminate the tax didn’t make it into the final bill, but the Supreme Court later declared the poll tax unconstitutional in 1966.

During the Vietnam War in 1970, Kennedy pushed to lower the voting age from 21 to 18, arguing that if U.S. residents were old enough to fight and die for their country they should have the right to vote. Kennedy was the chief sponsor of the Voting Rights Act Amendments of 1982, which were designed to increase minority representation in government. He was also the chief sponsor of the Voting Rights Language Assistance Act, which provided language assistance to Latino, Asian and Native American citizens with limited English skills at the polls.

The senator was also a champion for those with disabilities. Kennedy was one of the chief sponsors of the Americans with Disabilities Act of 1990, which prohibits employers from discriminating against those with disabilities in the employment process and requires public accommodations for the disabled. The law opened the doors for the disabled to have more employment opportunities and to live fuller lives. Prior to that, Kennedy supported the passage of amendments to the Fair Housing Act of 1968, which prohibit discrimination against the disabled and children in the sale or rental of housing.

Kennedy was one of the key supporters of Title IX of the Education Amendments of 1972, which protects women from discrimination in educational institutions and expanded women’s athletics at colleges and universities. The senator also sponsored the Violence Against Women Act of 1994, which improved the way the criminal justice system responds to victims and provides increased services to them. Kennedy was one of the Senate leaders in the passage of the 2008 Lilly Ledbetter Fair Pay Act. The act expands the time period to sue an employer for pay discrimination.

The Equal Rights Amendment, which would add wording to guarantee the rights under the Constitution to women, has been pushed by Kennedy every year since 1982.

In the early ‘90s, Kennedy sponsored the Family Medical Leave Act. Despite its passage in Congress twice and two presidential vetoes, Kennedy kept pushing for the legislation which was eventually signed into law by President Bill Clinton in 1993. The Family Medical Leave Act requires employers to allow employees to take unpaid leave to care for a newborn, or personal or family medical issues.

The minimum wage was increased 16 times during Kennedy’s time in the Senate. He led the most recent push in 2007, which raised the federal minimum wage from $5.15 to $7.25. It was the first change in the wage in a decade. He also played a role in the passage of the Pension Protection Act of 2006.

Immigration

The Immigration Act of 1965 reformed U.S. immigration policy, by eliminating the national origin quotas that were in the law. The quota system, which was based on race and ancestry, tended to favor immigrants from European countries. The act gradually phased out this system and created a system based on immigrant skills and family relationships. It was a turning point for immigration in this country. In 1968, Kennedy sponsored the Bilingual Education Act, which provided funding for bilingual education programs in schools to help immigrant children.

Kennedy authored the Refugee Act of 1980, which improved U.S. policy toward refugees fleeing from war by establishing a more equitable admissions process, and more humanitarian assistance with resettlement.

Healthcare

Kennedy called healthcare reform the cause of his life and gave his first speech on it in 1969. What followed were numerous acts to expand health care and quality of life. Among these are the Consolidated Omnibus Budget Reconciliation Act (COBRA); Children’s Health Insurance Program (CHIP) and the Health Insurance Portability and Accountability Act. Kennedy was also a leader in creating the Women, Infants and Children Nutrition Program (WIC), which offers food, nutrition counseling and health access.

Senator Orrin Hatch and Kennedy were the driving forces behind the Ryan White Comprehensive AIDS Resources Emergency Act of 1990, which created a federal program for people with HIV and AIDS in the U.S. It provided federal funding to states to develop programs geared toward early diagnosis and home care, as well as emergency funding to cities hardest hit by the epidemic. The act has been reauthorized repeatedly over the years.

An Adoptee's "Back to" China Odyssey

By Andrew Miller

An intimate, candid conversation about one woman’s journey back to her birth family in China took place recently at the Columbia College campus in Chicago. The woman at the center of the conversation was Mei-Ling Hopgood, reporter and author of a memoir called A Lucky Girl. Her book recounts her experiences as an adoptee from China and her trip back to meet her birth family over twenty years later. The moderator for the evening was Vikki Ortiz, a journalist at the Chicago Tribune.

The discussion opened with a video introducing Mei-Ling’s early life. She was born in Taiwan in the year of the Ox, but was put up for adoption by her impoverished parents. Later she was to find out that the primary reason her birth family gave her up was that they had really wanted a boy. As an eight-month old baby, she arrived in America for the first time in April 1974. The video continued described Mei-Ling as “a sleeping ox waiting to be discovered.”

Following the video, Mei-Ling, a petite, cheerful woman, talked directly to the audience and described her life with disarming candor. She began her story with a quote from her adoptive mother, who said she, “for one split-second,” saw the “discarded dark bundle” as “foreign,” but when the baby was in her arms, her mother knew that “[she] was theirs.” Mei-Ling then talked about her childhood in Taylor, Michigan, and how she interacted with her family, stating that she always desired to be an all-American girl. Her family was truly international, with two brothers who had been adopted from South Korea. Although Mei-Ling’s childhood was happy, she was straightforward about the isolation she felt as an Asian-American living in an overwhelmingly white town. Her parents dealt with her physical difference by assuring her that she was beautiful. Even this positive and loving reassurance could not quite mask the stark reality that she looked different from those around her.

Having adjusted very well to her new life over the years, Mei-Ling was taken aback when the nun who organized her adoption called her two decades later. Saying that she had news of her birth family, she wondered if Mei-Ling wanted to know more about them—perhaps even to meet them. She found out from the nun that both her parents were 59 and that her mother was a homemaker and her father a farmer. The nun told her that she had six sisters and a single brother who had been adopted from South Korea. To Mei-Ling, these statistics felt dry, even cold.

One colossal misconception about adoptees, she told the audience, is that “adoptees all want to know about their past.” Wrong! She elaborated on that by using herself as a model: “I’m adopted and that’s that.” She was quite frank in saying that she didn’t want to know a lot about her family, let alone meet them.


On February 7, 1997, the new Chinese year came—a perfect metaphor for a second chance and even rebirth for Mei-Ling. But she continued to be tormented by all the questions that bombarded her mind and weighed her heart—and soul—down. “What if I’m hurt even disappointed by the ugly truth?” she thought.

After finally having decided to meet her birth family, Mei-Ling told her adopted parents about her decision, not daring to say “my” mother and father to her adopted family. As any loving, protective parents would, they supported her odyssey with apprehension and hope.

Although she at first saw this as a journalistic exploration into the past, she began to be nervous when she landed in Taiwan’s colossal, noisy airport, and saw a sign with her name. Behind that sign was a crowd of Asian people—not only her immediate family, but also her extended family, including biological siblings’ spouses and a myriad of kids. In retrospect, she said she was shocked by how “pushy” they were, especially at the first reunion. She seemed a bit amused as she recalled the first reunion as “chaotic,” even “intoxicating.”

At this point, for the first time, Mei-Ling’s voice began to break—her eyes blinked more rapidly as if she were trying to block any tears that might slip out. She tried to calm herself with a quick hearty laugh after recalling the trite, even misleading, reunion movies in which people cry and exclaim, “We love you!” Yes, she recalled the crying—but they were strangers crying and hugging while meeting each other for the first time.

She described the complex nuances of her relationship with her birth family, saying that she has grown closer to her sisters and brother over the ten years since that first reunion. But she still has some frustration with her birth father because of his philandering.

Towards the end of the discussion, one member of the audience asked the essential question: “Would you still feel complete if you hadn’t gone back to meet your birth family?” To the apparent surprise of some in the crowd, she simply answered, “Yes.” She emphasized that each adoptee has a personal perspective on the situation. As she did, they all must deal with it to the best of their ability. What more can anyone ask?

I am myself an adoptee from Romania and thus was particularly attuned to her ordeal and her emotional anxieties and frustrations. I know vaguely where and who my birth parents are. I was born in Turnu Măguerele, Romania in 1988 and was adopted in 1990—one year after the bloody Romanian Revolution. I have my two birth parents’ names on a sheet of paper. As with Mei-Ling, the names seem so removed from my life. Unlike her, however, I yearned to know my past and my birth parents and potential siblings when I first realized that I was adopted—and I still do. Because I know some other adoptees’ interactions with their past lives, I emphatically agree with her that non-adoptees mistakenly think that all adoptees want to know who their birth parents are or to meet them. I occupy a middle ground. Although I have not gone back to Romania, I want to, and hope to find out what happened to my birth parents—I did not just say “parents,” for my mom and dad are my “parents.” Life is a journey of discovery for each of us, and each of us must find our own paths to self-understanding.

Speaking Up

By Shawn Healy

Among the First Amendment community, Mary Beth Tinker's defiance in wearing a black armband to school in protest of the Vietnam War is seen as the pinnacle of Supreme Court free speech jurisprudence within the schoolhouse gate. The decision, Tinker v. Des Moines, has been elevated to the status of stone tablets, with each successive ruling a chip away at this majestic milestone. Anne Proffitt Dupre, in her 2009 book titled Speaking Up (Harvard University Press), turns this prevailing wisdom on its head, documenting the "unintended costs" that the Tinker decision unleashed by promoting free speech in public schools.

Dupre, a law professor at the University of Georgia and a former classroom teacher, laments the manner in which Tinker forever altered the relationship between students and their teachers and administrators. By abandoning in loco parentis, the Court unleashed a wave of litigation, where justices and judges defined what is permissible student expression in a public school setting at the behest of teachers, principals, and local school boards.

The author argues that we should view the Tinker decision in the context of the civil rights era when it was handed down, but unforseen challenges have since emerged that undermine the wisdom of the 1969 ruling. From hair length to library books, controversial newspaper articles to Christianity, and drug-related speech to that facilitated through the blogosphere, courts have aimlessly tried to apply the ideals of Tinker to student expression inside and outside of school walls.

In Dupre's opinion, the Court let the proverbial cat out of the bag with Tinker, and attempts to reign in lewd and vulgar speech through the Fraser decision in 1986, control speech through school-sponsored vehicles like student newspapers in Hazelwood (1988), and limit speech that advocates the illegal use of drugs in Morse (2007), only served to further muddy the First Amendment waters. Perhaps Justice Clarence Thomas' dissent in Morse best describes the current landscape: "students have a right to speak in school--except when they don't."

Her critique is a welcome and necessary addition to First Amendment scholarship, yet it is wanting for a well-articulated alternative. She holds out hope that the Court will once again enter the fray and recalibrate the landscape. Maybe this involves overturning Tinker altogether, as Thomas is wont to do, or clarifying the application of the exceptions to free student speech, among them "material and substantial disruption," "lewd and vulgar speech," and censorship for "legitimate pedagogical reasons."

The book's greatest strength is its thorough review of First Amendment case law in the school setting. The landmark decisions, and several of lesser known fame, are reviewed in minute detail. It should be noted that the book is written for a general audience, so non-lawyers will find its content widely accessible. Dupre does devote an extensive number of pages to religious speech in schools, which reads like a departure and at times a reach from the book's overall theme. That said, the case Westside School District v. Mergens (1991) is notably missing from this chapter, a landmark decision for student's freedom of association through the First Amendment.

Dupre also examines teachers' free speech rights in the second-to-last chapter. This subject is rarely discussed, but a great deal of case law in the area does exist. Yet the extent to which teachers are free to speak their minds via the platform that is their classroom remains contested.

Speaking Up is a recommended read for those seeking a chronological, comprehensive review of school-based First Amendment case law through a critical eye. Its contemporary, contrarian take makes it the exception in an all-to-thin library.

Supreme Court Review: 2008-2009 Docket

By Andrew Miller

The McCormick Freedom Museum hosted an intellectually stimulating round table discussion on the Supreme Court’s 2008-2009 term on July 30th at the Loyola University Law School. Gretchen Helfrich, formerly of NPR's Odyssey program, moderated the program, which featured two erudite lawyers and professors considered to be "giants" in their fields: Geoffrey Stone, former Dean of Law and Provost of the University of Chicago Law School, who now teaches First Amendment laws, and Oxford-educated Richard Epstein, who specializes in property rights. The two experts delved into specifics related to the most important Supreme Court cases of the last docket of 2008-2009, as well as their larger social significance. The subjects discussed included some of the most controversial issues impacting American citizens: whether affirmative action can be used in hiring or job promotions, whether freedom of speech laws allow cruel movies of dogfights to be distributed, and whether evidence can be used if it is obtained through "police misconduct."

One of the most interesting cases discussed was Ricci v. DeStefano, considered a landmark ruling by some. In a conservative vs. liberal arm-wrestle, the Supreme Court ruled 5-4 in favor of a group of New Haven white firefighters, striking down the 2nd Circuit’s affirmation of the city’s refusal to promote them. The court determined that the white firefighters, whose test scores were thrown out because of reported racial disparity, were being oppressed. According to Epstein, this ruling was "over the top." He added that the "equal protection clause of the 14th Amendment needs discretion" and lamented the fact that attackers only had to show incongruence and disparity, not intent of disparity. Stone pointed out that it's usually the liberals who make the case of disparate impact in support of affirmative action; according to him, conservatives turned the tables in this case, using arguments that they normally abhor. A footnote on this case is that then Judge Sonia Sotomayor was one of the federal appeals court judges who sided with the city in its desire to throw out the test scores to avoid lawsuits by minority firefighters.

The next case under discussion, one which has not yet been heard, US v. Stevens, will focus on whether videos of dog fights are protected by freedom of speech. The positions to be argued are whether these violent videos are simply entertainment, or whether they are inciting violence. The panelists agreed that the ruling will most likely be 5-4 with Justice Anthony Kennedy being the swing voter.

In Herring v. United States, the Supreme Court ruled again in a divisive split-5-4, with Kennedy as the swing voter-in favor of police, even if evidence is obtained through police misconduct. This is quite significant, since it overturns the "exclusionary rule" that forbids this type of evidence to be used against the defendant. The 4th Amendment, which decries "unlawful searches and seizures," was on the scales in this decision. The conservative wing of the Supreme Court Justices Samuel Alito, John Roberts, Clarence Thomas and Antonin Scalia, with Kennedy following them-stated that their majority ruling did not pertain to "deliberate, reckless and grossly negligent conduct," which, according to them, was when the "exclusionary rule" could be used. They considered the case at hand, which dealt with an alleged outstanding warrant (in fact, there was none) being used against a man whose car was searched. In the search, the police found methamphetamine and a gun. The Supreme Court allowed the evidence to be used, even though there had been police misconduct. This is a very significant ruling which will provide police with significantly more leeway.

On a broader scale, the two law experts stated that the four conservatives mentioned above are in constant battle with the four liberals-Ruth Bader Ginsburg, John Paul Stevens, Stephen Breyer and David Souter (now replaced by Sotomayor). Kennedy is in his own sphere. It was observed that one can't help but wonder at the colossal power that Kennedy has over the Supreme Court-and therefore over the country.

As the senator from Arizona and 2008 Republican Presidential Candidate, John McCain, once said, "Elections have consequences." He was absolutely right considering the presidential election and re-election of George W. Bush. He was given the auspicious opportunity to appoint two more Justices to the Supreme Court and did---two solid conservatives, Roberts and Alito. On the flip side, President Barack Obama has been able to nominate Judge Sonia Sotomayor due to the retirement of Judge David Souter. The next election, in 2012, will be critical. Landmark and controversial cases, like Roe v. Wade (1973), are at stake. If a Republican wins the presidency, then she or he will be able to nominate and eventually appoint one to several justices to an aging Court. . For now, though, Kennedy is the crucial swing voter in such divisive issues. For the most part, he has sided with the conservatives on those issues. If, however, Obama or some other Democrat wins reelection, then the Supreme Court will mostly likely stay in a partisan deadlock, at least until more conservative Justices are gone, since Ginsburg and Stevens are most likely the next ones to retire.

CTA’s video game ad ban draws court challenge

By Jamie Loo

First Amendment reporter

The Chicago Transit Authority’s rule prohibiting advertisements for violent video games is being challenged in court for allegedly violating constitutionally protected speech.

The Entertainment Software Association (ESA), an industry trade group, is suing the CTA for its policy that specifically bans advertisements for video and computer games that are rated as “M” for “Mature 17+” and “AO” for “adults only 18+”.

The new restrictions, which took effect in January, cite the correlation between video game violence and youth violence as part of the reason for the ban. It also noted that between Sept. 2007 and August 2008, 36 Chicago public school students had been killed. The ordinance states that the CTA “has a substantial interest in ensuring that its assets and resources are not used to advertise violent video or computer games which may foster or encourage violent or aggressive behavior.”

In the lawsuit filed in U.S. District Court, the ESA says that the ordinance unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.” The ESA argues that the CTA allows advertisements for books, magazines, movie and television shows that have similar ratings and content. The ordinance is unnecessary, the ESA said, because advertisements that are seen by the general public are reviewed by the Entertainment Software Rating Board’s Advertising Review Council. The video game’s content rating is also displayed on the ads.

This isn’t the first time that the CTA and ESA have met in a court room over video game advertisements. Last year the CTA entered a contract to display advertisements for the video game Grand Theft Auto IV. The ads were removed after a media report questioned why the ads were allowed after a wave of youth violence in Chicago. The ESA took the CTA to court for breach of contract and First Amendment violations. In the settlement, the CTA agreed to allow a replacement ad campaign in November and December 2008.

“Courts across the United States, including those in the CTA’s own backyard, have ruled consistently that video games are entitled to the same First Amendment protections as other forms of entertainment,” said ESA chief executive officer Michael D. Gallagher in a press statement. “The CTA appears unwilling to recognize this established fact, and has shown a remarkable ignorance of the dynamism, creativity and expressive nature of computer and video games. The ESA will not sit idly by when the creative freedoms of our industry are threatened.”

CTA officials did not respond to requests for comment by press time.

Protected speech

Although video games are protected by the First Amendment, some states and the federal government have attempted to regulate violent video game sales. Here are some recent cases:

-In February, the 9th U.S. Circuit Court of Appeals ruled that California’s labeling requirements and restrictions on the sale or rental of violent video games to minors was unconstitutional.

-U.S. Rep. Joe Baca, D-Calif., introduced the Video Game Health Labeling Act earlier this year which would require a “WARNING: Excessive exposure to violent video games and other violent media has been linked to aggressive behavior” label on games rated “T” for Teen or higher. It was sent to a committee but the House did not vote on this bill.

-Former Illinois Gov. Rod Blagojevich attempted to ban the sale of violent and sexually explicit videos games to children under age 18, and included heavy fines and up to one year in prison for violators. The law was challenged in the court system and was eventually struck down by the 7th U.S. Circuit Court of Appeals. Similar laws in Michigan., Louisiana and Minnesota were also found unconstitutional by courts.

-Washington tried to prohibit the sale of video games showing violence against law enforcement officers. A court struck down that law in 2004.

Publius' Pariahs

By Shawn Healy

By Shawn Healy, Managing Director

The dog days of summer have been punctuated by a testy national debate over health care reform. Opponents of the so-called "public option" have taken to the airwaves, blogosphere, talk radio, and town halls, placing their proverbial stake in the ground against "socialized medicine." Their detractors, supporters of President Obama's plan, have responded with equal fervor, questioning their credibility, and most of all, the source from whom them take their marching orders. From my vantage point, this focus on the messengers is misguided, for it creates a sideshow from a legitimate debate about a system that encompasses one-sixth of our economy. More importantly, it cuts against the very design of our democratic republic.

James Madison, disguised as "Publius" in Federalist 10, made a case for factions as fundamental to the political framework known as the Constitution as it made its way through the ratification debates. He defined factions as "a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."

Considering the existence of factions inevitable, Madison suggested that there were two means of extinguishing them: "one, by removing its causes; the other, by controlling its effects." Both are intolerable, he argued, for "the first destroy(s) the liberty which is essential to its existence; the other...giv(es)...every citizen the same opinions, the same passions, and the same interests."

Moving beyond eradicating factions' causes, Madison suggests that we may only temper their effects. Turning toward the current debate on health care, if the current cacophony of voices "...consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote." Simply stated, the protests will give way to passage of reform legislation, for this is what the majority in America demands.

Madison's argument is premised on the breadth of the "republic," for a regional faction can rarely undermine the public good. Instead, it is through the competition of factions, or from a later era, Justice Oliver Wendell Holmes "marketplace of ideas," that the public interest emerges through often turbulent debates. This does not obscure the fact that misinformation like "death panels" and "socialized medicine" have entered the common vernacular, but it is the duty of public option proponents to refute them and make a compelling case for their own position. Furthermore, legitimate questions about the Obama plan are circulating through the marketplace and cannot be summarily dismissed by those who demonize any dissent.

This brings me to my second concern about the excessive focus on the town criers. Whether they take their orders from an organized interest group like FreedomWorks, Rush Limbaugh's radio program, a local listserve, or their own principled opposition to the plan, this combined top-down and grass roots movement is doing nothing more than exercising five freedoms embedded in the famous 45 words written once more by Madison, the First Amendment.

FreedomWorks, of Tax Day Tea Party fame, is led by former House Majority Leader Dick Armey, and financed by big businesses and wealthy conservative scions. However, it stands as a prime example of the factions Madison so passionately defended, and the First Amendment protects our right to associate with this group, or the major labor unions (AFL-CIO and SEIU) turning out members in droves to support Obama's plan at the same town hall meetings.

Rush Limbaugh is exercising freedom of the press when he broadcasts a conservative message to his 20 million listeners. True, he has a galvanizing effect of his "dittoheads," but how is this different than the liberal calling orders issued daily by the New York Times editorial page or MSNBC's Keith Olberman?

Since Obama's ascension to the presidency, conservatives have closed the gap with their counterparts on the left through organizing virally on the Internet and utilizing their freedom of assembly through massive turnout at public events. They learned their lesson from the President himself, who so effectively managed these levers in last year's contest to win the election going away. The Obama-backed Organizing for America relies on his extensive email list from the campaign to take the bully pulpit of the presidency to the masses and circumvent the scrum that is Washington.

The last of these factions are millions of Americans who are at a minimum skeptical of the health care reform bills circulating through Congress and touted by the president. Perhaps their fears are misguided, but demonizing their motivations obscures the national debate that needs to occur. I am not a fan of shouting down one's opponent or disrupting a public meeting, for they damage one's cause and interfere with substantive debate. Rather, civil discourse is my preferred vehicle of conversation. Nonetheless, the First Amendment, if nothing else, was adopted to protect all forms of political speech, in this case petitioning the government (through its representatives) for redress of what they see as real grievances.

Justice William Brennan, a champion of the First Amendment, said that these 45 words represent nothing less than a "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." The latter descriptors are obviously present in the current national health care debate, but as we consider making another "commitment," let's not lose sight of the former, and diminish their enabling vehicle, none other than the First Amendment.

Bughouse Square Debates: 21st Century Style

By Andrew Miller

By Andrew Miller
Five Freedoms Intern

On July 25th, in Washington Square Park adjacent to Chicago's Newberry Library, the century old Bughouse Square Debates once again became a noisy and invigorating demonstration of First Amendment rights at work. For the uninitiated who might raise eyebrows at the debate name, the word "bughouse" refers to the mental hospitals of the early 20th century and stems from the almost anarchic nature of the debates. Over the decades, people have stood on soapboxes, professing (or shouting) their beliefs to a usually skeptical crowd, who then heckle or cheer the orator. The orators have been a diverse and sometimes infamous group, including leftist radicals from the labor movement and anti-war movement, such as Lucy Parsons and Emma Goldman, and renowned lawyers, such as Clarence Darrow, who most famously defended John Scopes in the "trial of the century," the Monkey Trial.

Rick Kogan, a veteran reporter from the Chicago Tribune, emceed the debates, providing a brief history and touting its decades-old support of civil rights, the Bill of Rights, and particularly the First Amendment. Kogan then presented an award to Barbara Till, who until recently was an advisor for the Stevenson High School newspaper, The Statesman. Till resigned after the school cracked down on her support for a controversial "Hook-up" article on teenagers’ sexual escapades.

A reenactment of one of the legendary Lincoln-Douglas Debates followed the award presentation. Kogan introduced the actors/orators playing the roles of the original debaters, Republican lawyer Abraham Lincoln was played by Michael Krebs, and Democratic Sen. Stephen Douglas. Both the original debate, and the Bughouse reenactment centered on the Kansas-Nebraska Act which stated that people in the sovereign territories could decide their own future regarding the issue of slavery. The original debate was held in Galesburg on October 7, 1858.

Douglas assailed Lincoln, who was adamantly against the act, for his alleged flip-flopping on the issue of slavery and racial equality-denouncing slavery to one group in the North while emphasizing the physical inferiority of the black slaves to another group in the South. Douglas also criticized the Republican Party as a "sectional" party while he extolled the national, patriotic Democratic Party. He praised the landmark U.S. Supreme Court case Dred Scott v. Sanford (1857) which Supreme Court Chief Justice Roger B. Taney, stated that black slaves, even freed ones, are not and can never be American citizens and that blacks never were meant to be covered by the "All men are created equal" line in the Declaration of Independence.

Douglas appeared to be vexed and perplexed by Lincoln's alleged support of black slaves because of these words in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness." According to Douglas, Lincoln also said, "I'm not into equality for blacks" because of physical differences between the races; therefore, he was being either hypocritical or illogical. Douglas condemned Lincoln's position on the Kansas-Nebraska Act, calling it "heresy." He also pointed out that even Thomas Jefferson, who helped write the Declaration of Independence, owned slaves. He claimed that the Republican Party was for "mob law" and concluded by espousing a federalist view that each state must decide its own future, underscoring the direct sovereignty of its people.

Then Abraham Lincoln took to the podium to counter all that had been said against him and the Republican Party as a whole. Although he acknowledged that Thomas Jefferson had kept slaves, Lincoln observed that Jefferson was heard saying that he "trembled" for his country over the issue of slavery, for he feared the wrath of a just God. In regards to the Compromise of 1850 and the Kansas-Nebraska Act of 1854, Lincoln assailed their root-old Mexican law-which he said could not be considered models for the nation as a whole. In closing, Lincoln lamented that the two laws mentioned did not say that slavery was either good or bad. He believed the acrimonious territorial grab and the fight between the free and slave states, as epitomized in "Bleeding Kansas," would result in a "divided house," or Union, that "will not stand"-eerily foreshadowing the Civil War.

In rebutting Lincoln's charges, Douglas called for an "up or down" vote on slavery. Also, he stated that he eagerly anticipated territorial expansion so that people of the territories could then democratically voice their opinion and vote in the eventual elections. For the listener, this reenactment of one of the most important moments in American history brought home the intensity and complexity of American society and our continuing struggle with the issues of race, fairness, and the balance between states' rights and the role of the federal government.

The soapbox debates, which followed the reenactment, each consisted of a 15-minute speech in which hecklers could voice their dissent and supporters could be equally vocal. The topics varied from support for abortion on demand to advocacy for an illegal immigration compromise. The audience was extremely diverse.

Jorge Mujica’s soapbox debate focused on illegal immigration. He denounced the hysteria over illegal immigrants, recalling the xenophobia of the late 19th century and 20th century. One heckler yelled at him, wanting to know if he came to the U.S. illegally. Mujica candidly admitted that he had been illegal at one time and is now an American citizen. He seemed amused that there are not walls around O'Hare Chicago Airport when, according to him, one-half of illegal immigrants come via airplane.

In his soapbox speech Michael Mackaplow, called for more responsibility among the races and the elimination of affirmative action. Lamenting the fact that there are many single African-American mothers, he called for vigilance, birth control, and a "reasonable life style" among the minorities. He advocated fewer racial preferences for one's own race. Mackaplow offered a personal anecdote, recalling that, when his Chinese business associates were asked to hire new people, they brought in others of their own race. Mackaplow stated that he has seen white people be more altruistic than minorities, although they are, in his opinion, the ones truly facing discrimination. One heckler yelled at him: "Have you been pulled over by the police only because of your race?" Mackaplow admitted that he hadn't and acknowledged that there is racial discrimination, but he still believes that white people are discriminated against more than minorities-and that minorities needed to be more empathetic. According to him, white people already are.

In another soapbox debate, Erwin Lutzer contended that Jesus Christ' life, death, and resurrection had to be accepted by historians as facts. As evidence, he mentioned that most historians agreed that St. Paul wrote to the Corinthians in 52 A.D. Lutzer was received by several skeptical hecklers. One man asked, "Where are the first hand accounts of the alleged ‘five-hundred brethren’ who saw Jesus' resurrection?" Others countered the question with their own outbursts.

The most fiery of all of the soapbox debates focused on the issue of abortion on demand. Mars Caulton and Lina Horne stood at the center of the audience, calling for abortion on demand and denouncing the "pro-life" movement as hypocritical and invasive in the lives of women. They told the crowd that one in every three women will have an abortion once in her lifetime. This position that abortion should be between the woman and her doctor and that ultimately it is about a woman's body clearly infuriated two people in particular, one of whom called the two young women "child-killers."

Although many of the issues were difficult or disturbing, the Bughouse Square Debates—a boisterous affirmation of the First Amendment—was a proud example of what makes this country exceptional and what the Founding Fathers--and Mothers-- intended: that citizens never become apathetic, but that they be informed, concerned, and fully engaged.

Sonia and the Supremes

By Shawn Healy

On Thursday, Judge Sonia Sotomayor won confirmation as the 111th U.S. Supreme Court Justice, with the Senate voting 68 to 31 in her favor. The third woman and the first Latina to land on the High Court, Sotomayor’s ascendancy can be attributed to a number of factors, including the party of the president, the majority party in the Senate, and the associated ideology of the two. Also significant is the ideology of the nominee and the Justice who she is replacing, not the mention the nominee’s professional qualifications. Another factor is the point in a president’s term when the nomination is offered, and his or her willingness to take the case to the public and pressure the Senate for a favorable vote. Given that only two racial minorities have occupied the bench to date, this dynamic is rare yet powerful, and obviously a vital component of the just-completed process. Each of these variables broke in Sotomayor’s favor, and I will analyze them in order.

Sotomayor was nominated by a Democratic President, Barack Obama, and placed before a Democratic-controlled Senate with a filibuster-proof majority of 60 seats. True, two Senators are independents who caucus with the Democrats, and Senator Kennedy was unable to make the vote on account of ill health, but the threat of a filibuster remained remote. Given that nine Republicans ultimately crossed the aisle and supported her confirmation, any effort to impede the vote would have proved futile. True, a good portion of the Democratic caucus is probably more moderate than the President, but he arguably lies at the ideological fulcrum of his party. Contrast this with the last three nominees outright rejected by the Senate, Clement Haynsworth in 1969, G. Harrold Carswell in 1970, and Robert Bork in 1987. Each was nominated by a Republican president who faced a Senate controlled by Democrats. From a pure partisan perspective, with history as her guide, Sotomayor faced favorable terrain.

Turning to ideology, Sotomayor’s 17-year track record on the federal bench provided few glimpses of extremism. Her rulings on cases concerning affirmative action, the Second Amendment, and property rights drew conservative scrutiny, but in total, Sotomayor’s tenure as a federal district and appellate judge was well within the judicial mainstream, and once more close to the center of the Senate Democratic Caucus.

Moreover, she was slotted to replace a moderate-to-liberal Justice in David Souter. With or without Sotomayor, the conservative majority would remain, tempered by the less reliable Justice Anthony Kennedy. It is generally assumed that Sotomayor is no more liberal than Souter. Indeed, one could make an argument that she is more moderate, particularly on matters of law and order. Souter was long known as the “stealth candidate” given that he was nominated by a Republican president (Bush 41), yet drifted toward the Court’s left-leaning bloc. Sotomayor's long track record suggests that a reprisal of history is unlikely.

Bork, by comparison, was picked to replace the moderate Lewis Powell, who for 15 years served as the Court’s swing vote. He would have tilted the Court decisively to the right, thus his Democratic detractors’ successful derailment.

When Supreme Court nominees raise ideological eyebrows, their professional qualifications can either rescue or destroy their candidacy. Sotomayor made two controversial remarks off the bench that triggered conservative sirens, one in favor of judicial activism, and the second centering on empathy toward certain oppressed groups given her status as a “wise Latina.” She summarily dismissed these sound bytes during her confirmation hearing, and her Ivy League background, work as a partner at a corporate law firm, and seventeen years of service as a federal judge spoke to the fact that she is “well-qualified.” In sum, nine Republicans abandoned any ideological misgivings, partially on account of this impressive track record.

Presidents are much more likely to experience successful Supreme Court nominations during the early part of their term in office. Obama was fortunate to receive word of Souter’s retirement just past the 100-day mark of his presidency, a period widely known as his political “honeymoon.” It is during these days that public opinion remains high, Congress is more deferential, and his agenda is often rubber-stamped. Sotomayor’s nomination arrived during a flurry of political activity in both the West Wing and on Capitol Hill. Health care reform, cap and trade legislation, and corporate regulation crowd the agenda. Fortunately for Obama, Sotomayor’s nomination did little to detail his lofty ambitions. Short of an early defense of her controversial remarks, her confirmation sailed along after Obama’s late-May launch, allowing Obama to save political capital for the more contentious battles sure to follow this summer and fall.

In contrast, Reagan’s rendezvous with Bork took place during the second to last year of his final term in office. A lame duck by every definition, Reagan was working with a Democratic-controlled Senate for the first time that smelled blood as the Iran Contra Scandal took root. Despite Reagan repeated attempts to go over the heads of Congress and use his superior communication skills, Bork secured a mere 42 votes and the beleaguered president was forced back to the drawing board.

Sotomayor’s race undoubtedly played a role in Senators’ political calculations as her nomination winded its way through committee toward a full floor vote. Republicans understood that their share of the Latino vote was sliced thin by Obama and the Democrats in the November 2008 election, and that they placed it in further jeopardy by opposing her confirmation. Some, like Judiciary Committee member Lindsey Graham (R-SC), supported Sotomayor on the basis of her qualifications. Others, like Mel Martinez (R-FL), identified with a common heritage. Though thirty Republicans voted against Sotomayor, few made their reservations public, and those who did were mild and reserved in their respective rebukes. Unlike the Democrats’ treatment of Justice Alito in 2006, a filibuster was never on the table.

Turn back the clock to 1991 and Clarence Thomas’ infamous confirmation ordeal. Thomas attracted African-American sympathy despite his conservative views, effectively splitting Democratic Senators from one of their core constituencies. They shied away from directly supporting Anita Hill or blasting Thomas directly. Two Republicans voted against him, but eleven Democrats crossed party lines and helped vault Thomas across the finish line in the closest confirmation vote in more than a century, 52-48.

Missing from the conversation in the Sotomayor confirmation hearings was President Obama’s own record as a Senator in Supreme Court confirmation votes. Both John Roberts and Samuel Alito shared Sotomayor’s lofty credentials, yet the future president cast his vote with the opposition in both incidents. In so doing, it was difficult for Obama to dismiss ideological opposition to Sotomayor when he exercised the same line of argument in a different political environment. Sotomayor’s 68 votes were ten short of the 78 achieved by Roberts, and her 31 detractors were eleven fewer than the 42 suffered by Alito.

This tradeoff between politics and legal credentials is at the center of the debate over the Senate’s true role as a provider of “advice and consent” in the Supreme Court confirmation process. Senators in the minority peg their opposition to ideology, while those on higher ground trumpet professional qualifications. Given the alignment of stars in Sotomayor’s strive for the Supremes, her sterling resume made confirmation all but inevitable.

Westboro Baptist Church visits Chicago

By Jamie Loo

Members of the Westboro Baptist Church protest at the corner of Michigan Avenue and Wacker Drive on Monday. The group protested at six sites in the city.


Federal courts split on funeral picketing laws.

By Jamie Loo

First Amendment reporter

CHICAGO – The hateful yelling, obscenities and dirty looks from those passing by is nothing new to Elizabeth Phelps.

“It’s just business as usual, there’s just more of them,” she said as she stood on the corner of the Michigan Avenue and Wacker Drive bridge during rush hour.

Phelps and four other members of the Westboro Baptist Church (WBC) protested at six different sites in the city on Monday. The church, led by Phelps’ father the Rev. Fred Phelps, is known for protesting military service members’ funerals. Church members believe the deaths are punishment from God for the country’s tolerance of homosexuality. Holding signs with slogans such as “Israel is Doomed,” “Mourn for your Sins,” and “God Hates Fags” the group sang songs and shouted at people as they passed by.

While some ignored Phelps’ group others stopped to hurl insults at them. One man walked up behind Phelps and said, “God loves me. He hates you,” into her ear. Others flashed a middle finger at the group, which Phelps said is the informal “salute of a doomed America.”

Chicagoans respond

The WBC was met by more formal counter protestors at the Emmanuel Congregation in Edgewater. Outside the Don Rickles show at the Auditorium Theater the local sketch comedy troupe, Best Church of God, held their own comical protest.

Standing with the WBC, Brendan Sweeney encouraged the church members to sing louder. Beneath his cowboy hat, face contorted in a scowl he waved a bright orange and purple sign that read, “I’m an attention whore.” Nearby, P.J. Keane and Alex Lindquist capture it all on camera.

“We’ve been mock picketing with them,” Lindquist said.

The trio, are the producers of the CrazyPastorFred videos on YouTube, which is a satire of the WBC. Sweeney plays the Rev. Fred Phelps in the videos, where he rants about topics such as “the false prophet,” also known as Harry Potter, and the evils of breakfast cereal.

Lindquist said the WBC’s activities annoyed him and he wanted to find a creative way to deal with them. When people see the WBC protesting they get angry and respond with obscenity and more hate, he said. By using humor, Lindquist said he hopes people will take the WBC less seriously and that the group will have less of an impact on people.

The WBC thrives off anger and attention, he said.

“They’re ignoring us because we’re not giving them what they want,” Lindquist said.

Chris Andonian found out about the WBC’s visit through Twitter and came out to counter protest the group. Andonian, a devout atheist, said he tried to have a conversation with one of the WBC members about science, evolution and his belief that God doesn’t exist. The protestor wasn’t hostile in any way, Andonian said, but it was clear that the man wasn’t listening and stayed consistent with his message. He said he was surprised to see some people giving thumbs up to the WBC, and saw one man pull out his wallet and attempt to give them a donation. Andonian said the things they are teaching to their children are sick.

“I think they (WBC) show all the signs of being a cult,” he said. “They’re all brainwashed.”

Funeral picketing

Although the WBC has been actively campaigning against homosexuality, divorce, abortion and fornication for 18 years, they began drawing more attention in 2005 after they started protesting the funerals of military service members.

The federal government and 40 states have passed laws regulating protests at funerals largely in response to the WBC’s picketing, according to the Associated Press. But some of the laws are vague and in some cases could be unconstitutional. Here are a few cases involving funeral picketing laws:

-In June the U.S. Supreme Court refused to hear an appeal to enforce Missouri’s law, which bans protests at funerals. The law was originally struck down by the 8th U.S. Circuit Court of Appeals.
-The American Civil Liberties Union filed a lawsuit in April challenging Michigan’s funeral picketing law.
-The 6th U.S. Circuit Court of Appeals upheld Ohio’s law in 2008, which prohibits picketing within 300 feet of a funeral or burial service.
-The Kansas Supreme Court struck down the state’s funeral protest law but a new law with the unconstitutional elements removed was enacted in 2008.
-In 2007, a federal grand jury in Baltimore found the WBC liable for invasion of privacy and intent to inflict emotional distress for picketing the funeral of a Marine who was killed in Iraq. The jury originally awarded $10.9 million to the Marine’s family, which was later reduced to $5 million.
-A federal court in Kentucky upheld a preliminary injunction to prevent the state from enforcing its funeral picketing law in 2006.

First Amendment Center scholar David Hudson said one of the constitutional concerns that arise from funeral picketing laws is the possibility of viewpoint discrimination, which is prohibited by the Constitution. Some of the definitions in funeral picketing laws are over broad, he said, and go beyond regulating fighting words.

University of Chicago law professor and First Amendment expert, Geoffrey Stone, said state funeral picketing laws that don’t regulate speech content but that restrict time, noise, and access to a funeral site are most likely to withstand a constitutional challenge. The problem with these laws, he said, is that they don’t truly achieve the “state’s interest which is to insulate mourners from offensive messages.” Stone said the laws don’t regulate signs, which then leads to the question of how states can eliminate the problematic activity without regulating sign content and infringing on free speech.

Illinois’ “Let Them Rest in Peace” act passed in 2006 requires protestors to stay at least 200 feet away from funeral sites and prohibits them from displaying any visual images that convey fighting words or actual threats against another person. Protestors are prohibited from blocking access to and from a funeral site. The demonstrations cannot take place 30 minutes before, 30 minutes after, or during the service or burial.

Hudson said the Illinois law is problematic because it extends the fighting words doctrine to fighting images, and could possibly lead to viewpoint discrimination. The 200 feet rule is less than the 300 feet that most states have in their laws, he said, and most states use an hour as their time frame. Stone said Illinois did a pretty good job with its law. The law is very carefully crafted, he said, and as long as the definition of fighting words is consistent with the Supreme Court’s definition, it should be able to withstand a court challenge.

Although the funeral picketing law issue is prime for the Supreme Court to consider because federal circuit courts have split on their decisions, Hudson said there’s no guarantee the court will take it up in the future. Stone said states have many variations on their funeral picketing laws so if lower courts reach different decisions on laws similar to each other it is plausible that the Supreme Court could take a look at it.

The First Amendment is considered the “brightest star” in the Constitution and Phelps said it’s hypocrisy that politicians have tried to limit their freedom of speech at funerals with these laws. Phelps said “that same God that made the First Amendment destroys the hearts of man.” The funeral picketing laws are another way that the U.S. has shown the world what’s wrong with it, she said.

“It’s only had the effect of catapulting our efforts into this world,” Phelps said.

Aside from laws, the WBC’s picketing also hasn’t gone unanswered by private citizens. The Patriot Guard Riders were founded to counteract the protests. The group attends funerals at the request of the deceased’s family and shields mourners from the protestors with their motorcycles or American flags. They often sing patriotic songs or stand by revving their motorcycle engines to drown out noise from the WBC protestors.

Blago Bracketted

By Shawn Healy

By Shawn Healy

Those searching for a quick primer on the pay-to-play scandal starring former Governor Rod Blagojevich that continues to cripple the State of Illinois would be wise to pick up Elizabeth Brackett's Pay to Play. The 236-page tome paints a portrait of a corrupt city and state, where Rod Blagojevich began his improbable rise, and whose equally stunning fall is symptomatic of a rotten political culture. Brackett, a local and national television correspondent for PBS, begins building Blagojevich as a sympathetic figure, only to document his Shakespearean slide upon reaching the pinnicle of power in the Land of Lincoln.

The son of immigrant parents, Blagojevich's tendencies were cemented at a young age. Shunning details, he was at best a mediocre student, entering Northwestern through the backdoor and later attending law school at Pepperdine when his LSAT score prohibited entry at a more prestigious institution. Upon graduation, he first flunked the bar, then upon passage, found that he lacked clout in a city that invented the term. This changed instantly when he met 33rd Ward Alderman Dick Mell's daughter Patti at a political event. They were wed two years later, and Blagojevich's political climb began on the back of a chief patronage provider, his father-in-law.

First elected to the State House of Representatives, Blagojevich felt lost as a backbencher in Springfield, and sought a promotion soon thereafter. His run for Congress centered on an opening provided by the imprisoned Dan Rostenkowski, who temporarily lent the seat to the Republican Michael Flanigan, only to see Blagojevich move it back to the Democratic column with a massive victory in 1996. His tenure in Washington was equally uninspiring, short of his role in freeing three hostages held by former Yugoslav President Slobodan Milosevic.

Come 2002, he campaigned for Governor of Illinois as a reformer, pledging to clean up the mess left by his since imprisoned predecessor George Ryan. He narrowly bested former CPS schools chief Paul Vallas in the primary, then strolled to a general election victory over former Attorney General Jim Ryan, a victim of an unfortunate last name.

Scandal beset Blagojevich from the beginning, as he elevated pinstripe patronage to a sport, trading campaign donations for lofty political appointments and lucrative state contracts. He governed by press conference, preferring to make populist appeals in the realms of health care and public transit over handholding in a legislature dominated by his own Democratic Party during his entire tenure in office.

He was able to stave off corruption charges to secure a second term, all along dreaming of a run for the White House. Blagojevich never lived in Springfield, but even abandoned his Chicago office after 2006, interacting with aides throughout the day from home on his speakerphone. Embittered by Barack Obama's meteoric rise as presidential contender, Blagojevich resolved to share the spoils of his soon-to-be vacant Senate seat, resulting in his swift removal from office.

While this narrative has appeared in many forms elsewhere, its comprehensive, yet fluid presentation is useful for locals all-to-familiar with its specifics, and especially to those from afar previously unfamiliar with the pol with funny-sounding name, a pompadour and a penchant for Elvis. It presents President Barack Obama as an occasional foil, the Chicago politician who navigated troubled waters and somehow emerged untainted. True, Obama confidants Axelrod, Emanuel, Jarrett, and Emil Jones share intimate ties with either Blagojevich, the Daley Machine, or both, and Tony Rezko was also an equal opportunity patron. Yet Obama's straight and narrow contrasts with Blagojevich's down and dirty, and it is no wonder that one man sits in the White House while the other awaits a federal home of a different variety.

Brackett reveals that Blagojevich long admired Richard Nixon. The parallels between these two paranoid men are nothing short of eery. Their up-from-the-bootstraps backgrounds yielded unimagined political success, yet their demons, namely their delusional desire for power, led to their untimely downfall. Nixon resigned when his impeachment was written on the wall. Blagojevich's impeachment trial began on his fallen hero's birthday. Nixon said his "mother was a saint" as he boarded Marine One on the White House lawn one final time. Blagojevich cited Kipling, then Tennyson, and faded with a pledge to continue his fight.

His trial is slated for next year, and the final chapter is far from written, but Brackett's timely work is worthy of a read by any citizen seeking to end pay-to-play, political corruption, and systemic problems bigger than Blagojevich.