First Amendment Minutes 11.30.09

We have a full slate of new First Amendment Minutes today, covering topics such as our recent victory in the TSA screener case, immigrant deportation, and what limits there are on the TSA's authority.

Listen here or on our podcast page: http://aclum.org/podcasts/

ACLU First Amendment Minute: TSA and Religious Freedom
A Transportation Security Administration screener at Logan Airport is highly regarded, described by his supervisor as hard-working and loyal. So why did the TSA want to fire him?

ACLU First Amendment Minute: The TSA and Your Luggage
Can one of those TSA airport screeners have your locked up and interrogated because something in your carry-on luggage, which has nothing to do with airline safety, makes them suspicious?

ACLU First Amendment Minute: Immigrant Deportation
There is a human rights crisis in the Massachusetts detention system of immigrants facing deportation.

Free speech vs. threats made online

Upon reading about two similar cases involving free speech (and threatening speech) made online, one of which we’ve directly commented on, I couldn’t help but feel that we’re coming up on some interesting territory for first amendment protections.

The first case is reported here, in a law.com article:

“"These Judges deserve to be killed," declared Harold "Hal" Turner on his Web site on June 2. He was attacking three federal judges who earlier that day had upheld Chicago-area bans on handguns.

By the end of the month, Turner was in handcuffs. On Dec. 1, he's scheduled to go to trial in Brooklyn, N.Y., in a federal case that will test First Amendment protections online.

The case will turn on whether Turner's June 2 and other postings on his Turner Radio Network site are protected as an exercise of free speech, albeit violently hyperbolic, or constitute a "true threat" that posed imminent danger to the targets.”

The second story, which our legal director John Reinstein was quoted in, concerns two men who made a rap video containing alleged threatening remarks (with images) about the New Bedford police.

From the Boston Globe:

“John Reinstein, legal director for the American Civil Liberties Union of Massachusetts, said the outcome of the case will probably rest on whether a judge or jury agrees that the men were directly threatening police officials.

“The law makes a distinction between true threats and political speech,’’ said Reinstein, who did not see the video. “A direct threat to harm someone has usually been held to be outside the protection of the First Amendment.’’

We’ll be watching both cases closely.

Post private pictures on Facebook, lose your employment benefits

We’ve heard of plenty of cases in which employees get in trouble – or are even fired – for things that they express on social networks or in discussion forums. However, one bit of news coming from CBC yesterday is particularly disturbing. The headline reads “Depressed woman loses benefits over Facebook Photos” and it actually gets scarier from there.

The case involves a woman, diagnosed with major depression, who was on medical leave (receiving monthly benefits). Those benefits dried up when Manulife (the insurance company) actually investigated her facebook account, using photos of her on a vacation as evidence that her sick leave should be suspended.

From the news piece:

“Blanchard said she notified Manulife that she was taking a trip, and she's shocked the company would investigate her in such a manner and interpret her photos that way… Blanchard said that on her doctor's advice, she tried to have fun, including nights out at her local bar with friends and short getaways to sun destinations, as a way to forget her problems.

She also doesn’t understand how Manulife accessed her photos because her Facebook profile is locked and only people she approves can look at what she posts.”

This is scary – and a complete invasion of privacy.

“Manulife wouldn't comment on Blanchard's case, but in a written statement sent to CBC News, the insurer said: "We would not deny or terminate a valid claim solely based on information published on websites such as Facebook." It confirmed that it uses the popular social networking site to investigate clients.

Insurance companies must weigh information found on such sites, said Claude Distasio, a spokeswoman for the Canadian Life and Health Insurance Association.

"We can't ignore it, wherever the source of the information is," she said. "We can't ignore it."

A Big Week for The ACLU of Massachusetts

It’s been a hectic news week here at the ACLU of Massachusetts – but thankfully, it’s been good news. We wrote about our major victory in helping Josue Brissot exercise his religious freedom, and we’re very happy to report that Senate Bill 2210 passed! Thanks in no small part to the folks who called or emailed their senators; important criminal justice reform is well on its way.

We also have a new batch of first amendment minutes – this weeks episodes feature discussion of marriage equality in Maine, the “I believe” license plates in South Carolina, and the very interesting free-speech case involving justice Kennedy and his censoring of a high school newspaper.

ACLU First Amendment Minute: High School Speech
 A United States Supreme Court Justice gives a speech at a high school assembly. So, for sure, the high school paper can report on what the justice said, right?



ACLU First Amendment Minute: Marriage Equality in Maine
 The 53-47% defeat of gay marriage in this November's election in the state of Maine raises difficult questions.


ACLU First Amendment Minute: South Carolina License Plates
 Since 2008, the state of South Carolina has been issuing license plates that show an image of a cross, in front of a stained glass window, along with the words "I believe."

As always, check out our podcast page for the latest episodes (updated every week!)

Video - Demand your dotRights

“Did you know that everything you do online leaves a trail of personal information behind?”

So begins the latest video from the ACLU’s DotRights campaign (which seeks to educate folks about their rights in the digital space). It’s a fantastic 2-minute piece, done up in the appealing style of an old 8-bit videogame (think Mario Brothers or Megaman), highlighting the ways in which everyone’s digital rights are in danger.

Watch it here:

http://www.dotrights.org/education

That doesn’t mean you should close your browser and shut off your computer. The ACLU is working hard to preserve privacy rights in the increasingly tech-obsessed world – but you should exercise caution in your surfing. Utilize privacy controls on social networking sites, think twice about sharing any personal information – anywhere online, and be aware of your “dotrights”.

Victory in Major TSA case

We’re happy to report a major victory today in the case of a respected Transportation Security Administration baggage screener who was discriminated against on religious grounds.

Josue Brissot is a baggage screener at Logan airport – and despite a commendable service record, he had been passed up for numerous promotions due to the fact that he wears his hair in dreadlocks in accordance with his Rastafarian religion. When hired, he was told that his long hair would be no problem – but that wasn’t the story when he suspected unfair treatment:

From our news release, published earlier today:

“Brissot, a highly regarded screener, had been assured when hired that the agency had no problems with the way he wore his hair for religious reasons. Yet, by 2004, after continually being passed over for raises and promotions, Brissot began to ask questions and was told his hair was not in compliance with agency policy. In August 2005, managers threatened him with loss of his job, and he came to the ACLU of Massachusetts for help.

"The irony of this case," said Sarah Wunsch, ACLU of Massachusetts staff attorney, "is that the so-called 'faith-based administration,' the Bush Administration, was willing to fire an excellent, highly trained screener because he wore his hair long for religious reasons. They showed no respect for his religious needs and apparently cared more about appearances than safety."

Boston attorney Jonathan Margolis, who was co-counsel in the case, noted that the law requires employers to make accommodation to employees' religious needs, unless to do so would impose an undue burden on the employer. "We made many proposals to TSA on how to reasonably accommodate Josue's religion," Margolis said, "and they literally told him to stuff it, to stuff his long thick dreads inside his shirt collar. The judge said that was unreasonable and, indeed, it was."

Read the full news release here:

http://aclum.org/news/20091117.php

Needless to say, we’re extremely pleased when we can report news like this. We wish Brissot the best and congratulate all involved in this important victory for religious freedom.

Threats to Marriage Equality in New Hampshire

Coming off of an agonizing defeat in Maine earlier this month, The Eagle-Tribune news ran an article this morning titled “NH Gay Marriage Law Challenged”, which details two legislative proposals that would overturn the new law that allows same-sex couples to wed.

“One of the two proposals is a bill that bans same-sex marriage, but allows for civil unions. The other is a constitutional amendment calling for marriage to be defined as the union of a man and a woman. But both could derail what Rep. Jim Splaine, D-Portsmouth, has fought for years to achieve.”

Splaine himself is confident that neither of the measures will go into effect: “adoption of a constitutional amendment would require approval from 60 percent of the members from the both the House and Senate to be placed on the ballot. Then, two-thirds of voters would have to adopt the measure.

‘I don't see that happening," Splaine said. "I think the Republicans are just looking to make an issue of it,’ referring to the GOP backers of the proposals to repeal gay marriage.”

Unfortunately, it’s difficult not to be wary, since equal marriage rights are so threatened at this time. It’s especially concerning that Rep. Jordan Ulery, (R-Hudson) is quoted in this article using such antiquated – and frankly, insulting - language to describe same sex couples and GLBT people.

"’Marriage isn't an equal rights issue’," he said. ‘I don't believe it's a right at all. It's a privilege.’

And later: “Ulery also said he doesn't think gay couples should be overly concerned if the new law is overturned.

‘I don't think they have any right to feel threatened," he said. "No one is threatening their lifestyle.’

Civil marriage is absolutely a right – a right that should be extended to all citizens in a free nation. You can bet that the ACLU of Massachusetts will continue to fight in every possible way for inclusivity and equality.

Foreign and Native born residents of Massachusetts: a balanced relationship

By Melissa Mongogna

In the recent article prepared for The Immigrant Learning Center titled “Massachusetts Immigrants by the Numbers: Demographic Characteristics and Economic Footprint” foreign born immigrants to Massachusetts are examined in relation to native born in regards to basic demographics (age, location, profession, household make-up, degree attainment, etc), social services used (public education, welfare, etc), and societal contributions (tax payers, consumers, etc). What they found was that, on the whole, established immigrants and natives are much alike.

The study found that immigrants bring diversity, population growth, and basic job growth in both low skilled (food service, administration, manufacturing) and high valued fields (such as science and technology) which allow Massachusetts to not only run efficiently as the population ages but also remain competitive in the global market. Additionally, as immigrants tend to immigrate between ages 25-44, they are of prime working age to replace the large portion of retiring Massachusetts baby boomers ensuring Massachusetts’s continued economic progression.

According to the report, recent immigrants face challenges such as poverty, limited English language skills and low educational attainment among some groups. The incidence of poverty for recent immigrants is significantly greater than for natives. Overall, however the report finds that immigrants are overrepresented at both the low end and the high end of the occupational distribution, degree attainment and income making comprehensive statements about wealth and success difficult to generalize.

Estimates show that while there are differences between natives and immigrants in the payment of taxes and receipt of social services and transfer payments (food stamps, public assistance, Social Security, etc.), these differences are not great. First, immigrants receive transfer payments at a lower rate and lower amounts than natives and must wait five years to be eligible for any transfer (social assistance) payments. Additionally, because they own less property, invest less and have overall lower incomes, immigrants tend to pay somewhat less overall in taxes than natives. But they pay into the state income tax system at a higher rate than their percentage of the population (somewhat due to the split filing of head of households due to spouses not being able to immigrate). Immigrants do send more children to the public schools (however, those are often native-born children so can also be considered an investment in the state’s future workforce) but are institutionalized (correctional facilities, juvenile facilities, nursing homes, skilled nursing facilities, residential schools and social assistance) at significantly lower rates than are natives.

Overall, the report leaves one with a sense of foreign born residents having a symbiotic relationship to their new home in Massachusetts based on mutual benefit of both contributors.

Certainly one that is balanced in relation to their neighbor’s, native born residents of Massachusetts, contribution and consumption.

However, I invite you to make up your own mind based on these facts gathered by the Immigration Learning Center (http://www.ilctr.org/). To find out more details regarding foreign born resident’s strengths and challenges of living in Massachusetts, please read the full report at: http://www.ilctr.org/wordpress/wp-content/uploads/2009/09/immigrants-by-the-numbers.pdf. While there read up on immigrant rights and other research about Massachusetts immigrants as entrepreneurs, workers and consumers.

Our Tax Dollars at Work on the MBTA

By Nancy Murray

I watched the searchers do their work last week in Central Square MBTA station. There were five of them – five police officers gathered round a small table on which sat a metal box.

One held a clicker in his hand, and pushed its button as people walked past to go through the subway turnstile. Occasionally, he would ask someone to stop, and give his or her bags to the other officers.

There were bewildered looks but no refusals during the five minutes I stood and watched. Bags were swabbed and swabs were “sniffed” by the machine. People were then told they could proceed to the train.

What are you doing? I finally asked.

We are making sure no terrorists are coming into the station.

Really? What about the people you didn’t stop - how do you know they are not terrorists? And what about someone who turns around and goes back up the stairs after catching sight of you? If that person wanted to set off explosives, wouldn’t he just go to another station?

We have a dog patrol up there – they can catch him.

Really? How will they know?

Well, the cameras will catch him – look they are everywhere – there and there and there. Why don’t you smile for the camera?

I have another question for you. I just read in the paper that there are serious public safety issues with the MBTA. Tracks are out of alignment, bridges are crumbling, that kind of thing. I would prefer my tax dollars to be used to fix those things, not to pay five of you to stand around this little table. What do you think?

That’s above my pay grade. We’re just doing what we are told. We’re keeping the MBTA safe.

First Amendment Minutes 11.9.09

For those of you who follow the ACLU of Massachusetts online, you may of heard of our podcast – the First Amendment Minutes.

Every week, we post 2-4 new episodes of the series, which are 90-second spots on a given news item and its civil rights/civil liberties implications.

Check out this week’s episodes!

ACLU First Amendment Minute: AIDS in America
Let's say a US health organization wants to have a conference to plan for the future fight against AIDS. Obviously, some people who are HIV-positive would attend. So, can you hold that conference in America?

ACLU First Amendment Minute: Anonymity in the News
A newspaper reporter promises a whistle-blower or another source that he will keep his identity secret, but then a prosecutor subpoenas the reporter to a grand jury or a trial and demands that the reporter reveal his source. What happens?

ACLU First Amendment Minute: Domestic Abuse Asylum
May a woman who has been the victim of serious domestic abuse apply for asylum in America?

Let us know what you think in the comments section, and be sure to check back at http://aclum.org/podcasts/ each week for the latest episodes!

Saying No in Maine

The following was originally posted (by us) at DailyKos:

All day yesterday, four of us from the ACLU of Massachusetts office canvassed for the No on 1 campaign to protect marriage equality in Maine. We walked door-to-door, urging supporters to get out and vote – and to tell everyone they knew. We talked to some great folks, including one woman who wished her teenaged son could come out and vote (he’s waiting anxiously for his eighteenth birthday). She told us that her young daughter, who had medical issues, was watching the news one night and remarked, “With all the problems in the world, why would anyone care about people who just want to get married?”

We also spoke with people who believed in equality but don’t in any way, shape or form resemble any sort of liberal cliché that our opponents seem to attach to us. These were folks with pickups and big dogs and NRA stickers on their windows, proudly proclaiming, “Anyone should get to choose what they want”. It was heartening to hear, and it kept us going through what turned out to be a very long day, and an even longer night.

As we drove home from a semi-celebration in Ogunquit, Maine. we were unsure of how to feel – it was 11 PM and the final count wasn’t in yet, just random reports from precincts that we knew fairly little about, but it was looking close. As we drove closer and closer to home, the numbers took a bleak turn. Finally, the heartbreaking news came in – Maine had voted to overturn gay marriage.

This morning, I woke up in a free state, and I couldn’t help but feel privileged. I knew – and couldn’t help but lament – that so many Mainers, straight, gay or bi, were feeling the pain of knowing that their state was no longer free. Thousands are no longer eligible for the essential legal protections that a marriage grants. They can’t count themselves in with the other five states that allow full marriage equality to all citizens. I can only imagine how painful that must be.

I’m tempted to say that we have it pretty well in Massachusetts. In reality, what we have is what all states – and the citizens of all states in a free nation – SHOULD have.

We will continue to fight for equal marriage equality until we get there. We will, eventually – though it’s my sincere hope that it doesn’t take much longer.

-Danielle Riendeau
Online Communications Coordinator
ACLU of Massachusetts
www.aclum.org

The Results

The following is from Gavi Wolfe, Legislative Counsel at the ACLU of Massachusetts.

Yesterday was a heartbreaking defeat on the road to a victory that is sure to come in the not-too-distant future. To all of us, it seems preposterous that anyone (let alone 53% of a neighboring state) would be motivated to vote to deny a whole group of fellow citizens equality when it costs most people nothing but means the world to those whose lives it directly affects. But, clearly, we’ve still got a lot of work to do.

That said, I want to acknowledge the good work of the group that went up to Maine yesterday. Together, we knocked on hundreds of doors, made hundreds more phone calls, and got people to the polls who otherwise wouldn’t have had their votes counted. Even just in our limited conversations, and by adding our energy to a tired campaign at the final push, we made an impact.

I want to give a special shout-out to the four members of our team that had never done campaign canvassing before – Megan, Kerry, Danielle, and Anne. You guys were awesome! I hope you won’t let the disappointing outcome on this one keep you from getting out there in future elections. As Danielle and I marveled while going door-to-door on random backroads, in the end, this very human, very old-school, foot-leather work is the stuff that campaigns are made of, and it’s all about more and more people getting out there and talking to other human beings face-to-face. May this be the first of many (more successful) campaigns in your futures.

Next time,
Gavi

No Equality for Maine

Yesterday, the ACLU of Massachusetts journeyed to our neighboring state of Maine to help aid the No on 1 campaign to protect marriage equality for LGBT couples. We went door to door, made phone calls, and spoke to some wonderful folks about the importance of marriage equality, but in the end, it wasn’t enough. Gay marriage was vetoed.

As we drove back last night (and started to hear unfavorable reports), we began to speculate about the forces against marriage equality. The arguments made by the opposition bordered on the ludicrous (ads that “appalled” Maine’s Attorney General stated that gay sex would be taught in schools) – so what makes a person stand in the way of others’ freedom to marry whom they choose?

It is the opinion of this humble blogger that personal discomfort is the number one culprit. All it takes is for an otherwise uncomfortable person to get to know one (just one!) LGBT community member – and often, they’ll become more supportive of LGBT rights.

Make no mistake – yesterday’s vote was a blow to civil rights in Maine. However, the ACLU – and all ACLU affiliates – will continue to work for equal marriage rights for all citizens. We look forward to the day that all Americans may legally marry the person they love.

We’ll be blogging throughout the day on yesterday’s events and their implication for LGBT rights in New England and across the nation.

Six Tests

The right to equal marriage (that is, the right of gay and lesbian couples to legally marry) is one of the biggest – and most important - civil rights issues in our country today. While Massachusetts was the first state to grant this right to GLBT folks back in 2004; the political climate, along with dangers such as the Defense of Marriage Act (DOMA) and the struggles in our neighboring New England states make it very clear that the fight for GLBT equality is far from over.

The New York Times has posted an excellent editorial regarding six important battles coming up for GLBT equality. From the article:

“Three jurisdictions — New York, New Jersey and the District of Columbia — seem tantalizingly close to securing legislative approval for measures ending the hurtful and unjustifiable exclusion of same-sex couples from civil marriage. But in Maine, Washington State and Kalamazoo, Mich., voters are being asked on Tuesday to strip away vital rights and protections.”

Closest to home is the vote tomorrow in Maine:

“The dominant Election Day battleground is Maine. Last fall, forces of the religious right backed a successful ballot measure that overruled California’s top court by banning same-sex marriage. Now those forces are trying for another mean-spirited victory with Maine’s Question 1, which, if approved, would block the legalization of same-sex marriage passed by the State Legislature and signed by Gov. John Baldacci in May. With the outcome likely to be close, a heavy turnout by voters committed to tolerance and justice is crucial.”

Tomorrow, several staff members from the ACLU of Massachusetts will be in the great state of Maine to aid our sister organization (the Maine Civil Liberties Union) in the fight for equality. Expect a follow-up on Wednesday, right here on the Mass Rights Blog.